As filed with the Securities and Exchange Commission
on July 25, 2023
Registration No.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
TIAN RUIXIANG Holdings Ltd
(Exact name of registrant as specified in its charter)
Cayman Islands |
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Not Applicable |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification No.) |
Room 1001, 10 / F, No. 25, North East Third
Ring Road,
Chaoyang District, Beijing,
The People’s Republic of China
(Address of Principal Executive Offices)
TIAN RUIXIANG Holdings Ltd 2021 Performance
Incentive Plan
(Full title of the plan)
Cogency Global Inc.
122 East 42nd Street, 18th Floor
New York, NY 10168
(Name and address of agent for service)
800-221-0102
(Telephone number, including area code, of agent
for service)
Copies to:
Ying Li, Esq.
Hunter Taubman Fischer & Li, LLC
950 Third Avenue, 19th Floor
New York, NY 10022
212- 530-2206
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer |
¨ |
Accelerated filer |
¨ |
Non-accelerated filer |
x |
Smaller reporting company |
¨ |
Emerging growth company |
x |
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If an emerging growth company, 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. ¨
EXPLANATORY NOTE
This Registration Statement
is being filed by the Registrant in accordance with the requirements of Form S-8 under the Securities Act in order to register 5,000,000
Class A ordinary shares issuable pursuant to the 2023 Employee Performance Plan (the “2023 Plan”) adopted by the board of
directors of the Registrant.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* |
The documents containing the information specified in this Part I of Form S-8 (Plan Information and Registration Information and Employee Plan Annual Information) will be sent or given to recipients of the grants under the 2023 Plan as specified by the U.S. Securities and Exchange Commission (the “Commission”) pursuant to Rule 428(b)(1) of the Securities Act. Such documents are not required to be and are not filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. The Registrant will provide a written statement to participants advising them of the availability without charge, upon written or oral request, of the documents incorporated by reference in Item 3 of Part II hereof and including the statement in the preceding sentence. The written statement to all participants will indicate the availability without charge, upon written or oral request, of other documents required to be delivered pursuant to Rule 428(b) of the Securities Act, and will include the address and telephone number to which the request is to be directed. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant is subject
to the informational requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and, accordingly,
files periodic reports and other information with the Commission. Reports and other information concerning the Registrant filed with the
Commission may be inspected and copies may be obtained (at prescribed rates) at the Commission’s Public Reference Section, Room
1024, 100 F Street, N.E., Room 1580, Washington, D.C. 20549. The Commission also maintains a website that contains reports, proxy and
information statements and other information regarding registrants that file electronically with the Commission, including the Registrant.
The address for the Commission’s website is “http://www.sec.gov.” The following documents are incorporated by reference
in this Registration Statement:
(a) The Registrant’s Annual Report on Form 20-F for the fiscal year ended October 31, 2022 filed with the Commission on March 15, 2023;
(b) The Registrant’s Current Reports on
Form 6-K furnished to the Commission on June 28, 2023; and
(c) The description of the Registrant’s
Class A ordinary shares contained in the registration statement on Form
8-A, filed with the SEC on January 22, 2021, and any amendment or report filed for the purpose of updating such description.
Except to the extent such
information is deemed furnished and not filed pursuant to securities laws and regulations, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act and, to the extent specifically designated therein, reports on Form
6-K furnished by the Registrant to the Commission, in each case, prior to the filing of a post-effective amendment to this Registration
Statement indicating that all securities offered under this Registration Statement have been sold, or deregistering all securities then
remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date
of filing or furnishing of such documents.
Any statement contained herein
or in a document all or a portion of which is incorporated or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Cayman Islands law does not
limit the extent to which a company’s articles of association may provide for indemnification of officers and directors, except
to the extent any such provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification
against civil fraud or the consequences of committing a crime. The Registrant’s amended and restated memorandum and articles of
association provide, to the extent permitted by law, that the Registrant shall indemnify each director and officer for the time being
of the Registrant or any trustee for the time being acting in relation to the affairs of the Registrant and their respective heirs, executors,
administrators, personal representatives or successors or assigns against all costs, losses, damages and expenses, including travelling
expenses, which any such director, officer or trustee may incur or become liable in respect of by reason of any contract entered into,
or act or thing done by him as such director, officer or trustee or in any way in or about the execution of his duties . The Registrant’s
amended and restated memorandum and articles of association also provide that no such director officer or trustee shall be indemnified
in respect of any matter arising out of such person’s own dishonesty or fraud.
Pursuant to the indemnification
agreements, the form of which is filed as Exhibit 10.1 to the Registrant’s Registration Statement on Form F-1/A (file No. 333-235727)
filed with the Commission on January 14, 2020, the Registrant has agreed to indemnify its directors and officers against certain liabilities
and expenses that they incur in connection with claims made by reason of their being such a director or officer of the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
EXHIBIT INDEX
Item 9. Undertakings.
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(a) |
The undersigned registrant hereby undertakes: |
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(1) |
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
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(i) |
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
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(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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement. |
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(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 (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section
13 or 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).
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(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. |
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(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. |
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(4) |
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
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(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 |
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(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. |
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(5) |
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: |
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(i) |
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
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(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; |
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(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 |
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(iv) |
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b) |
That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 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. |
(c) |
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 Act 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 Act 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 S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Beijing, China, on July 25, 2023.
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TIAN RUIXIANG Holdings Ltd |
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By: |
/s/ Zhe Wang |
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Zhe Wang
Chief Executive Officer,
Chairman of the Board of Directors
(Principal Executive Officer) |
POWER OF ATTORNEY
Each person whose signature
appears below hereby appoints Zhe Wang and Mingxiu Luan, and each of them severally, acting alone and without the other, his or her true
and lawful attorney-in-fact with full power of substitution or re-substitution, for such person and in such person’s name, place
and stead, in any and all capacities, to sign on such person’s behalf, individually and in each capacity stated below, any and all
amendments, including post-effective amendments to this Registration Statement, and to sign any and all additional registration statements
relating to the same offering of securities of the Registration Statement that are filed pursuant to Rule 462 of the Securities Act of
1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact, full power and authority to do and perform each and every act and thing requisite or necessary to
be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact, or their 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.
Signature |
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Title |
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Date |
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/s/ Zhe Wang |
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Chief Executive Officer, Chairman of the Board of |
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July 25, 2023 |
Name: Zhe Wang |
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Directors, and Director (Principal Executive Officer) |
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/s/ Mingxiu Luan |
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Chief Financial Officer |
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July 25, 2023 |
Name: Mingxiu Luan |
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(Principal Accounting and Financial officer) |
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/s/ Sheng Xu |
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Director |
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July 25, 2023 |
Name: Sheng Xu |
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/s/ Benjamin Andrew Cantwell |
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Director |
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July 25, 2023 |
Name: Benjamin Andrew Cantwell |
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/s/ Michael J. Hamilton |
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Director |
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July 25, 2023 |
Name: Michael J. Hamilton |
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/s/ Ning Wang |
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Director |
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July 25, 2023 |
Name: Ning Wang |
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SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE
UNITED STATES
Pursuant to the Securities Act of 1933 as amended,
the undersigned, the duly authorized representative in the United States of America of the Registrant, has signed this registration statement
thereto in New York, NY on July 25, 2023.
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Cogency Global Inc.
Authorized U.S. Representative |
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By: |
/s/ Colleen A. De Vries |
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Name: |
Colleen A. De Vries |
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Title: |
Senior Vice President |
Exhibit 5.1
TIAN RUIXIANG Holdings Ltd
c/o Harneys Fiduciary (Cayman) Limited
4th Floor, Harbour Place
103 South Church Street
P.O. Box 10240
Grand Cayman KY1-1002
Cayman Islands |
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D +1 345 815 1877 |
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E bradley.kruger@ogier.com |
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Reference: 504080.00001 |
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25 July 2023 |
TIAN RUIXIANG Holdings Ltd (the Company)
We have been requested to provide you with an
opinion on matters of Cayman Islands law in connection with the Company’s registration statement on Form S-8, including all
amendments and supplements thereto, filed with the United States Securities and Exchange Commission (the Commission) under the
United States Securities Act of 1933, as amended (the Act), (the Registration Statement), related to the registration of
up to 5,000,000 Class A ordinary shares of the Company of par value US$0.005 each (the Shares) pursuant to the terms of the
Company's 2023 performance incentive plan as appended to the Registration Statement (the Plan);
This opinion is given in accordance with the
terms of the “Legal Matters” section of the Registration Statement.
Unless a contrary intention appears, all capitalised
terms used in this opinion have the respective meanings set forth in Schedule 1 or the Registration Statement, as applicable. A reference
to a Schedule is a reference to a schedule to this opinion and the headings herein are for convenience only and do not affect the construction
of this opinion.
For the purposes of giving this opinion,
we have examined a copy of the Registration Statement. In addition, we have examined the corporate and other documents and conducted
the searches listed in Schedule 1. We have not made any searches or enquiries concerning, and have not examined any documents entered
into by or affecting the Company or any other person, save for the searches, enquiries and examinations expressly referred to in Schedule
1.
Ogier (Cayman) LLP
89 Nexus Way
Camana Bay
Grand Cayman, KY1-9009
Cayman Islands
T +1 345 949 9876
F +1 345 949 9877
ogier.com |
A
list of Partners may be inspected on our website |
As
from 11 October 2022 Ogier, which was constituted as a general partnership under the laws of the Cayman Islands, converted to
a limited liability partnership registered in the Cayman Islands as Ogier (Cayman) LLP. |
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TIAN RUIXIANG Holdings Ltd
25 July 2023
In giving this opinion we have relied
upon the assumptions set forth in Schedule 2 without having carried out any independent investigation or verification in respect of those
assumptions.
On the basis of the examinations and
assumptions referred to above and subject to the qualifications set forth in Schedule 3 and the limitations set forth below, we are of
the opinion that:
Corporate status
| (a) | The Company has been duly incorporated
as an exempted company and is validly existing and in good standing with the Registrar. |
Issuance of Shares
| (b) | The issue and allotment of the Shares
pursuant to the Plan has been authorised by all requisite corporate action of the Company
and when allotted, issued and paid for as contemplated in the Registration Statement and
the Plan and duly entered as fully paid into the Company’s register of members, the
Shares will be validly issued and allotted and (assuming that all of the required consideration
is received by the Company) fully paid and non-assessable. As a matter of Cayman Islands
law, the Shares are only issued when they have been entered into the register of members
of the Company. |
We offer no opinion:
| (a) | as to any laws other than the laws of
the Cayman Islands, and we have not, for the purposes of this opinion, made any investigation
of the laws of any other jurisdiction, and we express no opinion as to the meaning, validity,
or effect of references in the Registration Statement, the Plan or the Memorandum and Articles
to statutes, rules, regulations, codes or judicial authority of any jurisdiction other than
the Cayman Islands; |
| (b) | except to the extent that this opinion
expressly provides otherwise, as to the commercial terms of, or the validity, enforceability
or effect of the Registration Statement or the Plan, the accuracy of representations, the
fulfilment of warranties or conditions, the occurrence of events of default or terminating
events or the existence of any conflicts or inconsistencies among the Registration Statement,
the Plan and any other agreements into which the Company may have entered or any other documents;
or |
TIAN RUIXIANG Holdings Ltd
25 July 2023
| (c) | as to whether the acceptance, execution
or performance of the Company’s obligations under the Plan will result in the breach
of or infringe any other agreement, deed or document entered into by or binding on the Company. |
| 5 | Governing law of this opinion |
| (a) | governed by, and shall be construed in
accordance with, the laws of the Cayman Islands; |
| (b) | limited to the matters expressly stated
in it; and |
| (c) | confined to, and given on the basis of,
the laws and practice in the Cayman Islands at the date of this opinion. |
| 5.2 | Unless otherwise indicated, a reference to
any specific Cayman Islands legislation is a reference to that legislation as amended to,
and as in force at, the date of this opinion. |
We hereby consent to the filing of
this opinion as an exhibit to 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 Act or the Rules and Regulations of the Commission thereunder.
Yours faithfully
/s/ Ogier (Cayman) LLP
Ogier (Cayman) LLP
TIAN RUIXIANG Holdings Ltd
25 July 2023
Schedule
1
Documents examined
| (a) | the Certificate of Incorporation of the
Company dated 5 March 2019 issued by the Registrar of Companies of the Cayman Islands
(the Registrar); |
| (b) | the second amended and restated memorandum
and articles of association of the Company filed with the Registrar on 6 November 2022
(the Memorandum and Articles); |
| (c) | a certificate of good standing dated 19
July 2023 (the Good Standing Certificate) issued by the Registrar in respect
of the Company; |
| (d) | a certificate dated on the date hereof
as to certain matters of fact signed by a director of the Company in the form annexed hereto
(the Director's Certificate), having attached to it the written resolutions of the
directors of the Company passed on 18 January 2023 and 26 June 2023 (the Board
Resolutions); |
| (f) | the Registration Statement; and |
| (g) | The Register of Writs and Other Originating
Process maintained by the office of the Clerk of Courts in the Cayman Islands as inspected
by us on 24 July 2023 (the Register of Writs). |
TIAN RUIXIANG Holdings Ltd
25 July 2023
Schedule
2
Assumptions
Assumptions
of general application
| 1 | All original documents examined by us are
authentic and complete. |
| 2 | All copy documents examined by us (whether
in facsimile, electronic or other form) conform to the originals and those originals are
authentic and complete. |
| 3 | All signatures, seals, dates, stamps and
markings (whether on original or copy documents) are genuine. |
| 4 | The Memorandum and Articles are in full
force and effect and have not been amended, varied, supplemented or revoked in any respect. |
| 5 | Each of the Certificate of Incorporation,
the Memorandum and Articles, the Good Standing Certificate, the Director's Certificate and
the Board Resolutions is accurate and complete as at the date of this opinion and will remain
accurate and complete as at the date of the issuance of Shares. Without limiting the foregoing,
all corporate authorisations in force on the date hereof in respect of the Company will remain
in full force and effect on the date of the issuance of Shares. |
| 6 | Where a document has been provided to us
in draft or undated form, that document has been executed by all parties in materially the
form provided to us and, where we have been provided with successive drafts of a document
marked to show changes from a previous draft, all such changes have been accurately marked. |
| 7 | There will be no intervening circumstance
relevant to this opinion between the date hereof and the date upon which the Shares are issued. |
Status and Authorisation
| 8 | In authorising the issue and allotment of
Shares, each of the directors of the Company has acted in good faith with a view to the best
interests of the Company and has exercised the standard of care, diligence and skill that
is required of him or her. |
| 9 | Any individuals who sign or have signed
documents or give information on which we rely, have the legal capacity under all relevant
laws (including the laws of the Cayman Islands) to sign such documents and give such information. |
| 10 | None of the opinions expressed herein will
be adversely affected by the laws or public policies of any jurisdiction other than the Cayman
Islands. In particular, but without limitation to the previous sentence, the laws or public
policies of any jurisdiction other than the Cayman Islands will not adversely affect the
capacity or authority of the Company. |
TIAN RUIXIANG Holdings Ltd
25 July 2023
| 11 | There are no agreements, documents or arrangements
(other than the documents expressly referred to in this opinion as having been examined by
us) that materially affect or modify the Registration Statement or the Plan or the transactions
contemplated by any such document or restrict the powers and authority of the Company in
any way. |
| 12 | None of the transactions contemplated by
the Registration Statement or the Plan relate to any shares, voting rights or other rights
that are subject to a restrictions notice issued pursuant to the Companies Act (Revised)
(the Companies Act) of the Cayman Islands. |
Shares
| 13 | The issued shares of the Company have been
issued at an issue price in excess of the par value thereof and have been entered on the
register of members of the Company as fully paid, and the Shares shall be issued at an issue
price in excess of the par value thereof. |
Authorisations
| 14 | No Shares will be issued unless and until
all required approvals (including shareholder approvals) required by the rules and regulations
of the Nasdaq Stock Market LLC have been obtained. Any conditions to which such approvals
are subject have been, and will continue to be, satisfied or waived by the parties entitled
to the benefit of them. |
| 15 | The Plan has been or will be duly executed
and unconditionally delivered (to the extent applicable) by or on behalf of all relevant
parties in accordance with all relevant laws (other than, with respect to the Company, the
laws of the Cayman Islands). |
| 16 | The Plan is, or will be, legal, valid,
binding and enforceable against all relevant parties in accordance with its terms under all
relevant laws. |
| 17 | If an obligation is to be performed in
a jurisdiction outside the Cayman Islands, its performance will not be contrary to an official
directive, impossible or illegal under the laws of that jurisdiction. |
Sovereign immunity
| 18 | The Company is not a sovereign entity of
any state and does not have sovereign immunity for the purposes of the UK State Immunity
Act 1978 (which has been extended by statutory instrument to the Cayman Islands). |
TIAN RUIXIANG Holdings Ltd
25 July 2023
Schedule
3
Qualifications
Good Standing
| 1 | Under the Companies Act annual returns in
respect of the Company must be filed with the Registrar, together with payment of annual
filing fees. A failure to file annual returns and pay annual filing fees may result in the
Company being struck off the Register of Companies, following which its assets will vest
in the Financial Secretary of the Cayman Islands and will be subject to disposition or retention
for the benefit of the public of the Cayman Islands. |
| 2 | In good standing means only that as of the
date of the Good Standing Certificate the Company is up-to-date with the filing of its annual
returns and payment of annual fees with the Registrar. We have made no enquiries into the
Company's good standing with respect to any filings or payment of fees, or both, that it
may be required to make under the laws of the Cayman Islands other than the Companies Act. |
Register of Writs
| 3 | Our examination of the Register of Writs
cannot conclusively reveal whether or not there is: |
(a) any
current or pending litigation in the Cayman Islands against the Company; or
| (b) | any application for the winding up or
dissolution of the Company or the appointment of any liquidator or trustee in bankruptcy
in respect of the Company or any of its assets, |
as notice of these matters might not
be entered on the Register of Writs immediately or updated expeditiously or the court file associated with the matter or the matter itself
may not be publicly available (for example, due to sealing orders having been made). Furthermore, we have not conducted a search of the
summary court. Claims in the summary court are limited to a maximum of CI $20,000.
Limited liability
| 4 | We are not aware of any Cayman Islands authority
as to when the courts would set aside the limited liability of a shareholder in a Cayman
Islands company. Our opinion on the subject is based on the Companies Act and English common
law authorities, the latter of which are persuasive but not binding in the courts of the
Cayman Islands. Under English authorities, circumstances in which a court would attribute
personal liability to a shareholder are very limited, and include: (a) such shareholder
expressly assuming direct liability (such as a guarantee); (b) the company acting as
the agent of such shareholder; (c) the company being incorporated by or at the behest
of such shareholder for the purpose of committing or furthering such shareholder’s
fraud, or for a sham transaction otherwise carried out by such shareholder. In the absence
of these circumstances, we are of the opinion that a Cayman Islands’ court would have
no grounds to set aside the limited liability of a shareholder. |
Non-assessable
| 5 | In this opinion the phrase “non-assessable”
means, with respect to Shares, that a member of the Company shall not, solely by virtue of
its status as a member of the Company, be liable for additional assessments or calls on the
Shares by the Company or its creditors (except in exceptional circumstances, such as involving
fraud, the establishment of an agency relationship or an illegal or improper purpose or other
circumstance in which a court may be prepared to pierce or lift the corporate veil). |
Public offering in the Cayman Islands
| 6 | The Company is prohibited by section 175
of the Companies Act from making any invitation to the public in the Cayman Islands to subscribe
for any of its securities. |
Exhibit 10.1
TIAN
RUIXIANG Holdings Ltd
2023 PERFORMANCE INCENTIVE PLAN
1.
PURPOSE OF PLAN
The purpose of this
2023 Performance Incentive Plan (this “Plan”) of TIAN RUIXIANG Holdings Ltd, an exempted company organized under the
Companies Act (As Revised) of the Cayman Islands, and its successors (the “Company”), is to promote the success of
the Company and to increase shareholder value by providing an additional means through the grant of awards to attract, motivate, retain
and reward selected employees and other eligible persons and to enhance the alignment of the interests of the selected participants with
the interests of the Company’s shareholders.
2.
ELIGIBILITY
The Administrator
(as such term is defined in Section 3.1) may grant awards under this Plan only to those persons that the Administrator determines to
be Eligible Persons. An “Eligible Person” is any person who is either: (a) an officer (whether or not a director)
or employee of the Company or one of its Subsidiaries; (b) a director of the Company or one of its Subsidiaries; or (c) an individual
consultant or advisor who renders or has rendered bona fide services (other than services in connection with the offering or sale of
securities of the Company or one of its Subsidiaries in a capital-raising transaction or as a market maker or promoter of securities
of the Company or one of its Subsidiaries) to the Company or one of its Subsidiaries and who is selected to participate in this Plan
by the Administrator; provided, however, that a person who is otherwise an Eligible Person under clause (c) above may participate in
this Plan only if such participation would not adversely affect either the Company’s eligibility to use Form S-8 to register under
the Securities Act of 1933, as amended (the “Securities Act”), the offering and sale of shares issuable under this
Plan by the Company or the Company’s compliance with any applicable laws. An Eligible Person who has been granted an award (a “participant”)
may, if otherwise eligible, be granted additional awards if the Administrator shall so determine. As used herein, “Subsidiary”
means any corporation or other entity a majority of whose outstanding voting shares or voting power is beneficially owned directly or
indirectly by the Company; and “Board” means the board of directors of the Company.
3.
PLAN ADMINISTRATION
| 3.1 | The
Administrator. This Plan shall be administered by and all awards under this Plan
shall be authorized by the Administrator. The “Administrator” means the
Board or one or more committees (or subcommittees, as the case may be) appointed by the Board
or another committee (within its delegated authority) to administer all or certain aspects
of this Plan. Any such committee shall be comprised solely of one or more directors or such
number of directors as may be required under applicable law. A committee may delegate some
or all of its authority to another committee so constituted. The Board or a committee comprised
solely of directors may also delegate, to the extent permitted by applicable law, to one
or more officers of the Company, its authority under this Plan. The Board may delegate different
levels of authority to different committees with administrative and grant authority under
this Plan. Unless otherwise provided in the organizing documents of the Company or applicable
charter of any Administrator: (a) a majority of the members of the acting Administrator shall
constitute a quorum, and (b) the vote of a majority of the members present, assuming the
presence of a quorum or the unanimous written consent of the members of the Administrator,
shall constitute action by the acting Administrator. |
Award grants, and transactions
in or involving awards, intended to be exempt under Rule 16b-3 under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), must be duly and timely authorized by the Board or a committee consisting solely of two or more non-employee directors
(as this requirement is applied under Rule 16b-3 promulgated under the Exchange Act). To the extent required by any applicable listing
agency, this Plan shall be administered by a committee composed entirely of independent directors (within the meaning of the applicable
listing agency).
| 3.2 | Powers
of the Administrator. Subject to the express provisions of this Plan, the Administrator
is authorized and empowered to do all things necessary or desirable in connection with the
authorization of awards and the administration of this Plan (in the case of a committee or
delegation to one or more officers, within any express limits on the authority delegated
to that committee or person(s)), including, without limitation, the authority to: |
| (a) | determine eligibility and, from among those
persons determined to be eligible, determine the particular Eligible Persons who will receive
an award under this Plan; |
| (b) | grant awards to Eligible Persons, determine
the price (if any) at which securities will be offered or awarded and the number of securities
to be offered or awarded to any of such persons (in the case of securities-based awards),
determine the other specific terms and conditions of awards consistent with the express limits
of this Plan, establish the installment(s) (if any) in which such awards shall become exercisable
or shall vest (which may include, without limitation, performance and/or time-based schedules),
or determine that no delayed exercisability or vesting is required, establish any applicable
performance-based exercisability or vesting requirements, determine the circumstances in
which any performance-based goals (or the applicable measure of performance) will be adjusted
and the nature and impact of any such adjustment, determine the extent (if any) to which
any applicable exercise and vesting requirements have been satisfied, establish the events
(if any) on which exercisability or vesting may accelerate (which may include, without limitation,
retirement and other specified terminations of employment or services, or other circumstances),
and establish the events (if any) of termination, expiration or reversion of such awards; |
| (c) | approve the forms of any award agreements
(which need not be identical either as to type of award or among participants); |
| (d) | construe and interpret this Plan and any
agreements defining the rights and obligations of the Company, its Subsidiaries, and participants
under this Plan, make any and all determinations under this Plan and any such agreements,
further define the terms used in this Plan, and prescribe, amend and rescind rules and regulations
relating to the administration of this Plan or the awards granted under this Plan; |
| (e) | cancel, modify, or waive the Company’s
rights with respect to, or modify, discontinue, suspend, or terminate any or all outstanding
awards, subject to any required consent under Section 8.6.5; |
| (f) | accelerate, waive or extend the vesting
or exercisability, or modify or extend the term of any or all such outstanding awards (in
the case of options or share appreciation rights, within the maximum ten-year term of such
awards) in such circumstances as the Administrator may deem appropriate (including, without
limitation, in connection with a retirement or other termination of employment or services,
or other circumstances) subject to any required consent under Section 8.6.5; |
| (g) | adjust the number of Ordinary Shares (as
defined below) subject to any award, adjust the price of any or all outstanding awards or
otherwise waive or change previously imposed terms and conditions, in such circumstances
as the Administrator may deem appropriate, in each case subject to Sections 4 and 8.6; |
| (h) | determine the date of grant of an award, which may be a designated
date after but not before the date of the Administrator’s action to approve the award (unless otherwise designated by the Administrator,
the date of grant of an award shall be the date upon which the Administrator took the action approving the award); |
| (i) | determine whether, and the extent to which,
adjustments are required pursuant to Section 7.1 hereof and take any other actions contemplated
by Section 7 in connection with the occurrence of an event of the type described in Section
7; |
| (j) | acquire or settle (subject to Sections
7 and 8.6) rights under awards in cash, shares of equivalent value, or other consideration; |
| (k) | determine the fair market value of the Ordinary
Shares (as defined below) or awards under this Plan from time to time and/or the manner in
which such value will be determined; and |
| (l) | implement any procedures, steps or additional
or different requirements as may be necessary to comply with any laws of the People’s
Republic of China (the “PRC”) that may be applicable to this Plan, any
Option or any related documents, including, but not limited to, foreign exchange laws, tax
laws and securities laws of the PRC. |
| 3.3 | Binding
Determinations. Any determination or other action taken by, or inaction of, the Company,
any Subsidiary, or the Administrator relating or pursuant to this Plan (or any award made
under this Plan) and within its authority hereunder or under applicable law shall be within
the absolute discretion of that entity or body and shall be conclusive and binding upon all
persons. Neither the Board nor any Board committee, nor any member thereof or person acting
at the direction thereof, shall be liable for any act, omission, interpretation, construction
or determination made in good faith in connection with this Plan (or any award made under
this Plan), and all such persons shall be entitled to indemnification and reimbursement by
the Company in respect of any claim, loss, damage or expense (including, without limitation,
attorneys’ fees) arising or resulting therefrom to the fullest extent permitted by
law and/or under any directors and officers liability insurance coverage that may be in effect
from time to time. |
| 3.4 | Reliance
on Experts. In making any determination or in taking or not taking any action under
this Plan, the Administrator may obtain and may rely upon the advice of experts, including
employees and professional advisors to the Company. No director, officer or agent of the
Company or any of its Subsidiaries shall be liable for any such action or determination taken
or made or omitted in good faith. |
| 3.5 | Delegation.
The Administrator may delegate ministerial, non-discretionary functions to individuals who
are officers or employees of the Company or of any of its Subsidiaries or to third parties. |
| 3.6 | Option
and SAR (“Share Appreciation Rights”) Repricing. Subject to Section 4
and Section 8.6.5, the Administrator, from time to time and in its sole discretion,
may provide for (1) the amendment of any outstanding share option, or SAR, to reduce the
exercise price or base price of the award, (2) the cancellation, exchange, or surrender of
an outstanding share option or SAR in exchange for cash or other awards (for the purpose
of repricing the award or otherwise), or (3) the cancellation, exchange, or surrender of
an outstanding share option or SAR in exchange for an option or SAR with an exercise or base
price that is less than the exercise or base price of the original award. For avoidance of
doubt, the Administrator may take any or all of the foregoing actions under this Section
3.6 without shareholder approval. |
4.
ORDINARY SHARES SUBJECT TO THE PLAN; SHARE LIMITS
| 4.1 | Shares
Available. Subject to the provisions of Section 7.1, the shares that may be delivered
under this Plan shall be shares of the Company’s authorized but unissued Ordinary Shares
and any Ordinary Shares held as treasury shares. For purposes of this Plan, “Ordinary
Shares” shall mean the Class A Ordinary Shares, par value US$0.005 per share, of
the Company, and such other securities or property as may become the subject of awards under
this Plan, or may become subject to such awards, pursuant to an adjustment made under Section
7.1. |
| 4.2 | Share
Limits. The maximum number of Ordinary Shares that may be delivered pursuant to awards
granted to each Eligible Persons under this Plan (the “Share Limit”) is
equal to 1,000,000 Ordinary Shares. |
The following limits also apply
with respect to awards granted under this Plan.
The maximum number
of Ordinary Shares that may be delivered under this Plan is 5,000,000 Ordinary Shares.
Each of the foregoing
numerical limits is subject to adjustment as contemplated by Section 4.3, Section 7.1, and Section 8.10.
| 4.3 | Awards
Settled in Cash, Reissue of Awards and Shares. To the extent that an award granted
under this Plan is settled in cash or a form other than Ordinary Shares, the shares that
would have been delivered had there been no such cash or other settlement shall not be counted
against the shares available for issuance under this Plan. In the event that Ordinary Shares
are delivered in respect of a dividend equivalent right granted under this Plan, the number
of shares delivered with respect to the award shall be counted against the share limits of
this Plan (including, for purposes of clarity, the limits of Section 4.2 of this Plan). (For
purposes of clarity, if 1,000 dividend equivalent rights are granted and outstanding when
the Company pays a dividend, and 50 shares are delivered in payment of those rights with
respect to that dividend, 50 shares shall be counted against the share limits of this Plan).
Shares that are subject to or underlie awards granted under this Plan which expire or for
any reason are cancelled or terminated, are forfeited, fail to vest, or for any other reason
are not paid or delivered under this Plan, shall not be counted against the share limit and
shall be available for subsequent awards under this Plan. Shares that are exchanged by a
participant or withheld by the Company as full or partial payment in connection with any
award under this Plan, as well as any shares exchanged by a participant or withheld by the
Company or one of its Subsidiaries to satisfy the tax withholding obligations related to
any award, shall not be available for subsequent awards under this Plan. |
| 4.4 | Reservation
of Shares; No Fractional Shares; Minimum Issue. Unless otherwise expressly provided
by the Administrator, no fractional shares shall be delivered under this Plan. The Administrator
may pay cash in lieu of any fractional shares in settlements of awards under this Plan. The
Administrator may from time to time impose a limit (of not greater than 100 shares) on the
minimum number of shares that may be purchased or exercised as to awards (or any particular
award) granted under this Plan unless (as to any particular award) the total number purchased
or exercised is the total number at the time available for purchase or exercise under the
award. |
5.
AWARDS
| 5.1 | Type
and Form of Awards. The Administrator shall determine the type or types of award(s)
to be made to each selected Eligible Person. Awards may be granted individually, in combination
or in tandem. Awards also may be made in combination or in tandem with, in replacement of,
as alternatives to, or as the payment form for grants or rights under any other employee
or compensation plan of the Company or one of its Subsidiaries. The types of awards that
may be granted under this Plan are: |
5.1.1
Share Options. A share option is the grant of a right to purchase a specified number of Ordinary Shares
during a specified period as determined by the Administrator. An option may be intended as an incentive stock option within the meaning
of Section 422 of Code (an “ISO”) or a nonqualified stock option (an option not intended to be an ISO). The agreement
evidencing the grant of an option will indicate if the option is intended as an ISO; otherwise it will be deemed to be a nonqualified
stock option. The maximum term of each option (ISO or nonqualified) shall be ten (10) years. The per share exercise price for each option
shall be determined by the Administrator and set forth in the applicable award agreement. When an option is exercised, the exercise price
for the shares to be purchased shall be paid in full in cash or such other method permitted by the Administrator consistent with Section
5.5.
5.1.2
Additional Rules Applicable to ISOs. To the extent that the aggregate fair market value (determined at
the time of grant of the applicable option) of shares with respect to which ISOs first become exercisable by a participant in any calendar
year exceeds $100,000, taking into account both Ordinary Shares subject to ISOs under this Plan and shares subject to ISOs under all
other plans of the Company or one of its Subsidiaries (or any parent or predecessor corporation to the extent required by and within
the meaning of Section 422 of the Code and the regulations promulgated thereunder), such options shall be treated as nonqualified stock
options. In reducing the number of options treated as ISOs to meet the $100,000 limit, the most recently granted options shall be reduced
first. To the extent a reduction of simultaneously granted options is necessary to meet the $100,000 limit, the Administrator may, in
the manner and to the extent permitted by law, designate which Ordinary Shares are to be treated as shares acquired pursuant to the exercise
of an ISO. ISOs may only be granted to employees of the Company or one of its subsidiaries (for this purpose, the term “subsidiary”
is used as defined in Section 424(f) of the Code, which generally requires an unbroken chain of ownership of at least 50% of the total
combined voting power of all classes of shares of each subsidiary in the chain beginning with the Company and ending with the subsidiary
in question). There shall be imposed in any award agreement relating to ISOs such other terms and conditions as from time to time are
required in order that the option be an “incentive stock option” as that term is defined in Section 422 of the Code. The
per share exercise price for each ISO shall be not less than 100% of the fair market value of an Ordinary Share on the date of grant
of the option. Furthermore, no ISO may be granted to any person who, at the time the option is granted, owns (or is deemed to own under
Section 424(d) of the Code) outstanding Ordinary Shares possessing more than 10% of the total combined voting power of all classes of
shares of the Company, unless the exercise price of such option is at least 110% of the fair market value of the shares subject to the
option and such option by its terms is not exercisable after the expiration of five years from the date such option is granted. If an
otherwise-intended ISO fails to meet the applicable requirements of Section 422 of the Code, the option shall be a nonqualified stock
option.
5.1.3
Share Appreciation Rights. A share appreciation right or “SAR” is a right to receive
a payment, in cash and/or Ordinary Shares, equal to the excess of the fair market value of a specified number of Ordinary Shares on the
date the SAR is exercised over the “base price” of the award, which base price shall be determined by the Administrator
and set forth in the applicable award agreement. The maximum term of a SAR shall be ten (10) years.
5.1.4
Other Awards. The other types of awards that may be granted under this Plan include: (a) stock bonuses,
restricted stock, performance stock, stock units, phantom stock or similar rights to purchase or acquire shares, whether at a fixed or
variable price (or no price) or fixed or variable ratio related to the Common Stock, and any of which may (but need not) be fully vested
at grant or vest upon the passage of time, the occurrence of one or more events, the satisfaction of performance criteria or other conditions,
or any combination thereof; (b) any similar securities with a value derived from the value of or related to the Ordinary Shares
and/or returns thereon; or (c) cash awards. Dividend equivalent rights may be granted as a separate award or in connection with another
award under the Plan.
| 5.3 | Award
Agreements. Each award shall be evidenced by a written or electronic award agreement
or notice in a form approved by the Administrator (an “award agreement”), and,
in each case and if required by the Administrator, executed or otherwise electronically accepted
by the recipient of the award in such form and manner as the Administrator may require. |
| 5.4 | Deferrals
and Settlements. Payment of awards may be in the form of cash, Ordinary Shares, other
awards or combinations thereof as the Administrator shall determine, and with such restrictions
as it may impose. The Administrator may also require or permit participants to elect to defer
the issuance of shares or the settlement of awards in cash under such rules and procedures
as it may establish under this Plan. The Administrator may also provide that deferred settlements
include the payment or crediting of interest or other earnings on the deferral amounts, or
the payment or crediting of dividend equivalents where the deferred amounts are denominated
in shares. |
| 5.5 | Consideration
for Ordinary Shares or Awards. The purchase price for any award granted under this
Plan or the Ordinary Shares to be delivered pursuant to an award, as applicable, may be paid
by means of any lawful consideration as determined by the Administrator, including, without
limitation, one or a combination of the following methods: |
| · | services
rendered by the recipient of such award; |
| · | cash,
check payable to the order of the Company, or electronic funds transfer; |
| · | notice
and third party payment in such manner as may be authorized by the Administrator; |
| · | the
delivery of previously owned Ordinary Shares; |
| · | by
a reduction in the number of shares otherwise deliverable pursuant to the award; or |
| · | subject
to such procedures as the Administrator may adopt, pursuant to a “cashless exercise”
with a third party who provides financing for the purposes of (or who otherwise facilitates)
the purchase or exercise of awards. |
In no event shall any
shares newly-issued by the Company be issued for less than the minimum lawful consideration for such shares or for consideration other
than consideration permitted by applicable law. Ordinary Shares used to satisfy the exercise price of an option shall be valued at their
fair market value on the date of exercise. The Company will not be obligated to deliver any shares unless and until it receives full
payment of the exercise or purchase price therefor and any related withholding obligations under Section 8.5 and any other conditions
to exercise or purchase have been satisfied. Unless otherwise expressly provided in the applicable award agreement, the Administrator
may at any time eliminate or limit a participant’s ability to pay the purchase or exercise price of any award or shares by any
method other than cash payment to the Company. The Administrator may take all actions necessary to alter the method of Option exercise
and the exchange and transmittal of proceeds with respect to participants resident in the PRC not having permanent residence in a country
other than the PRC in order to comply with applicable PRC laws and regulations, including, without limitation, PRC foreign exchange,
securities and tax laws and regulations.
| 5.6 | Definition
of Fair Market Value. For purposes of this Plan, if the Ordinary Shares are listed
and actively traded on an internationally recognized securities exchange (the “Exchange”),
then unless otherwise determined or provided by the Administrator in the circumstances, “fair
market value” shall mean the closing price (in regular trading) for an Ordinary Share
as reported on the Exchange on which the Ordinary Shares are listed for the date in question
or, if no sales of Ordinary Shares were reported on the Exchange on that date, the closing
price for an Ordinary Share as reported by the Exchange on which the Ordinary Shares are
listed for the next preceding day on which sales of Ordinary Shares were reported. The Administrator
may, however, provide with respect to one or more awards that the fair market value shall
equal the closing price (in regular trading) for an Ordinary Share as reported by the Exchange
on the last day preceding the date in question or the average of high and low trading prices
of an Ordinary Share as reported by the Exchange for the date in question or the most recent
trading day. If the Ordinary Shares are no longer listed or actively traded on the Exchange
as of the applicable date, the fair market value of the Ordinary Shares shall be the value
as reasonably determined by the Administrator for purposes of the award in the circumstances.
The Administrator also may adopt a different methodology for determining fair market value
with respect to one or more awards if a different methodology is necessary or advisable to
secure any intended favorable tax, legal or other treatment for the particular award(s) (for
example, and without limitation, the Administrator may provide that fair market value for
purposes of one or more awards will be based on an average of closing prices (or the average
of high and low daily trading prices) for a specified period preceding the relevant date). |
| 5.7 | Transfer Restrictions. |
5.7.1
Limitations on Exercise and Transfer. Unless otherwise expressly provided in (or pursuant to) this Section
5.7 or required by applicable law: (a) all awards are non-transferable and shall not be subject in any manner to sale, transfer, anticipation,
alienation, assignment, pledge, encumbrance or charge; (b) awards shall be exercised only by the participant; and (c) amounts payable
or shares issuable pursuant to any award shall be delivered only to (or for the account of) the participant.
5.7.2
Exceptions. The Administrator may permit awards to be exercised by and paid to, or otherwise transferred
to, other persons or entities pursuant to such conditions and procedures, including limitations on subsequent transfers, as the Administrator
may, in its sole discretion, establish in writing. Any permitted transfer shall be subject to compliance with applicable federal and
state securities laws and shall not be for value (other than nominal consideration, settlement of marital property rights, or for interests
in an entity in which more than 50% of the voting interests are held by the Eligible Person or by the Eligible Person’s family
members).
5.7.3
Further Exceptions to Limits on Transfer. The exercise and transfer restrictions in Section 5.7.1 shall
not apply to:
| (a) | transfers to the Company (for example,
in connection with the expiration or termination of the award), |
| (b) | the designation of a beneficiary to receive
benefits in the event of the participant’s death or, if the participant has died, transfers
to or exercise by the participant’s beneficiary, or, in the absence of a validly designated
beneficiary, transfers by will or the laws of descent and distribution, |
| (c) | subject to any applicable limitations
on ISOs, transfers to a family member (or former family member) pursuant to a domestic relations
order if approved or ratified by the Administrator, |
| (d) | if the participant has suffered a disability,
permitted transfers or exercises on behalf of the participant by his or her legal representative,
or |
| (e) | the authorization by the Administrator
of “cashless exercise” procedures with third parties who provide financing for
the purpose of (or who otherwise facilitate) the exercise of awards consistent with applicable
laws and any limitations imposed by the Administrator. |
6.
EFFECT OF TERMINATION OF EMPLOYMENT OR SERVICE ON AWARDS
| 6.1 | General.
The Administrator shall establish the effect (if any) of a termination of employment or service
on the rights and benefits under each award under this Plan and in so doing may make distinctions
based upon, inter alia, the cause of termination and type of award. If the participant is
not an employee of the Company or one of its Subsidiaries, is not a member of the Board,
and provides other services to the Company or one of its Subsidiaries, the Administrator
shall be the sole judge for purposes of this Plan (unless a contract or the award otherwise
provides) of whether the participant continues to render services to the Company or one of
its Subsidiaries and the date, if any, upon which such services shall be deemed to have terminated. |
| 6.2 | Events
Not Deemed Terminations of Service. Unless the express policy of the Company or one
of its Subsidiaries, or the Administrator, otherwise provides, or except as otherwise required
by applicable law, the employment relationship shall not be considered terminated in the
case of (a) sick leave, (b) military leave, or (c) any other leave of absence authorized
by the Company or one of its Subsidiaries, or the Administrator; provided that, unless reemployment
upon the expiration of such leave is guaranteed by contract or law or the Administrator otherwise
provides, such leave is for a period of not more than three months. In the case of any employee
of the Company or one of its Subsidiaries on an approved leave of absence, continued vesting
of the award while on leave from the employ of the Company or one of its Subsidiaries may
be suspended until the employee returns to service, unless the Administrator otherwise provides
or applicable law otherwise requires. In no event shall an award be exercised after the expiration
of any applicable maximum term of the award. |
| 6.3 | Effect
of Change of Subsidiary Status. For purposes of this Plan and any award, if an entity
ceases to be a Subsidiary of the Company a termination of employment or service shall be
deemed to have occurred with respect to each Eligible Person in respect of such Subsidiary
who does not continue as an Eligible Person in respect of the Company or another Subsidiary
that continues as such after giving effect to the transaction or other event giving rise
to the change in status unless the Subsidiary that is sold, spun-off or otherwise divested
(or its successor or a direct or indirect parent of such Subsidiary or successor) assumes
the Eligible Person’s award(s) in connection with such transaction. |
7.
ADJUSTMENTS; ACCELERATION
| 7.1 | Adjustments.
Subject to Section 7.2, upon (or, as may be necessary to effect the adjustment, immediately
prior to): any reclassification, recapitalization, share split (including a share split in
the form of a share dividend) or reverse share split; any merger, combination, consolidation,
conversion or other reorganization; any spin-off, split-up, or similar extraordinary dividend
distribution in respect of the Ordinary Shares; or any exchange of Ordinary Shares or other
securities of the Company, or any similar, unusual or extraordinary corporate transaction
in respect of the Ordinary Shares; then the Administrator shall equitably and proportionately
adjust (1) the number and type of Ordinary Shares (or other securities) that thereafter may
be made the subject of awards (including the specific share limits, maximums and numbers
of shares set forth elsewhere in this Plan), (2) the number, amount and type of Ordinary
Shares (or other securities or property) subject to any outstanding awards, (3) the grant,
purchase, or exercise price (which term includes the base price of any SAR or similar right)
of any outstanding awards, and/or (4) the securities, cash or other property deliverable
upon exercise or payment of any outstanding awards, in each case to the extent necessary
to preserve (but not increase) the level of incentives intended by this Plan and the then-outstanding
awards. |
Without limiting the
generality of Section 3.3, any good faith determination by the Administrator as to whether an adjustment is required in the circumstances
pursuant to this Section 7.1, and the extent and nature of any such adjustment, shall be conclusive and binding on all persons.
| 7.2 | Corporate
Transactions - Assumption and Termination of Awards. |
Upon any event in which
the Company does not survive, or does not survive as a public company in respect of its Ordinary Shares (including, without limitation,
a dissolution, merger, combination, consolidation, conversion, exchange of securities or other reorganization, or a sale of all of the
business, shares or assets of the Company, in any case in connection with which the Company does not survive or does not survive as a
public company in respect of its Ordinary Shares), then the Administrator may make provision for a cash payment in settlement of, or
for the termination, assumption, substitution or exchange of any or all outstanding awards or the cash, securities or property deliverable
to the holder of any or all outstanding awards, based upon, to the extent relevant under the circumstances, the distribution or consideration
payable to holders of the Ordinary Shares upon or in respect of such event. Upon the occurrence of any event described in the preceding
sentence in connection with which the Administrator has made provision for the award to be terminated (and the Administrator has not
made a provision for the substitution, assumption, exchange or other continuation or settlement of the award): (1) unless otherwise provided
in the applicable award agreement, each then-outstanding option and SAR shall become fully vested, all restricted shares then outstanding
shall fully vest free of restrictions, and each other award granted under this Plan that is then outstanding shall become payable to
the holder of such award (with any performance goals applicable to the award in each case being deemed met, unless otherwise provided
in the award agreement, at the “target” performance level); and (2) each award shall terminate upon the related event; provided
that the holder of an option or SAR shall be given reasonable advance notice of the impending termination and a reasonable opportunity
to exercise his or her outstanding vested options and SARs (after giving effect to any accelerated vesting required in the circumstances)
in accordance with their terms before the termination of such awards (except that in no case shall more than ten days’ notice of
the impending termination be required and any acceleration of vesting and any exercise of any portion of an award that is so accelerated
may be made contingent upon the actual occurrence of the event).
Without limiting the
preceding paragraph, in connection with any event referred to in the preceding paragraph or any change in control event defined in any
applicable award agreement, the Administrator may, in its discretion, provide for the accelerated vesting of any award or awards as and
to the extent determined by the Administrator in the circumstances.
For purposes of this Section 7.2, an
award shall be deemed to have been “assumed” if (without limiting other circumstances in which an award is assumed) the award
continues after an event referred to above in this Section 7.2, and/or is assumed and continued by the surviving entity following such
event (including, without limitation, an entity that, as a result of such event, owns the Company or all or substantially all of the
Company’s assets directly or through one or more subsidiaries (a “Parent”)), and confers the right to purchase
or receive, as applicable and subject to vesting and the other terms and conditions of the award, for each Ordinary Share subject to
the award immediately prior to the event, the consideration (whether cash, shares, or other securities or property) received in the event
by the shareholders of the Company for each Ordinary Share sold or exchanged in such event (or the consideration received by a majority
of the shareholders participating in such event if the shareholders were offered a choice of consideration); provided, however, that
if the consideration offered for an Ordinary Share in the event is not solely the ordinary common stock of a successor corporation or
a Parent, the Administrator may provide for the consideration to be received upon exercise or payment of the award, for each share subject
to the award, to be solely ordinary common stock of the successor corporation or a Parent equal in fair market value to the per share
consideration received by the shareholders participating in the event.
The Administrator may adopt such valuation
methodologies for outstanding awards as it deems reasonable in the event of a cash or property settlement and, in the case of options,
SARs or similar rights, but without limitation on other methodologies, may base such settlement solely upon the excess if any of the
per share amount payable upon or in respect of such event over the exercise or base price of the award. In the case of an option, SAR
or similar right as to which the per share amount payable upon or in respect of such event is less than or equal to the exercise or base
price of the award, the Administrator may terminate such award in connection with an event referred to in this Section 7.2 without any
payment in respect of such award.
In any of the events referred to in this
Section 7.2, the Administrator may take such action contemplated by this Section 7.2 prior to such event (as opposed to on the occurrence
of such event) to the extent that the Administrator deems the action necessary to permit the participant to realize the benefits intended
to be conveyed with respect to the underlying shares. Without limiting the generality of the foregoing, the Administrator may deem an
acceleration to occur immediately prior to the applicable event and, in such circumstances, will reinstate the original terms of the
award if an event giving rise to an acceleration and/or termination does not occur.
Without limiting the generality of Section
3.3, any good faith determination by the Administrator pursuant to its authority under this Section 7.2 shall be conclusive and binding
on all persons.
| 7.3 | Other
Acceleration Rules. The Administrator may override the provisions of Section 7.2
by express provision in the award agreement and may accord any Eligible Person a right to
refuse any acceleration, whether pursuant to the award agreement or otherwise, in such circumstances
as the Administrator may approve. The portion of any ISO accelerated in connection with an
event referred to in Section 7.2 (or such other circumstances as may trigger accelerated
vesting of the award) shall remain exercisable as an ISO only to the extent the applicable
$100,000 limitation on ISOs is not exceeded. To the extent exceeded, the accelerated portion
of the option shall be exercisable as a nonqualified stock option under the Code. |
8.
OTHER PROVISIONS
| 8.1 | Compliance
with Laws. This Plan, the granting and vesting of awards under this Plan, the offer,
issuance and delivery of Ordinary Shares, and/or the payment of money under this Plan or
under awards are subject to compliance with all applicable federal, state, local and foreign
laws, rules and regulations (including but not limited to state and federal securities law
and federal margin requirements) and to such approvals by any listing, regulatory or governmental
authority as may, in the opinion of counsel for the Company, be necessary or advisable in
connection therewith. The person acquiring any securities under this Plan will, if requested
by the Company or one of its Subsidiaries, provide such assurances and representations to
the Company or one of its Subsidiaries as the Administrator may deem necessary or desirable
to assure compliance with all applicable legal and accounting requirements. |
| 8.2 | No
Rights to Award. No person shall have any claim or rights to be granted an award
(or additional awards, as the case may be) under this Plan, subject to any express contractual
rights (set forth in a document other than this Plan) to the contrary. |
| 8.3 | No
Employment/Service Contract. Nothing contained in this Plan (or in any other documents
under this Plan or in any award) shall confer upon any Eligible Person or other participant
any right to continue in the employ or other service of the Company or one of its Subsidiaries,
constitute any contract or agreement of employment or other service or affect an employee’s
status as an employee at will, nor shall interfere in any way with the right of the Company
or one of its Subsidiaries to change a person’s compensation or other benefits, or
to terminate his or her employment or other service, with or without cause. Nothing in this
Section 8.3, however, is intended to adversely affect any express independent right of such
person under a separate employment or service contract other than an award agreement. |
| 8.4 | Plan
Not Funded. Awards payable under this Plan shall be payable in shares or from the
general assets of the Company, and no special or separate reserve, fund or deposit shall
be made to assure payment of such awards. No participant, beneficiary or other person shall
have any right, title or interest in any fund or in any specific asset (including Ordinary
Shares, except as expressly otherwise provided) of the Company or one of its Subsidiaries
by reason of any award hereunder. Neither the provisions of this Plan (or of any related
documents), nor the creation or adoption of this Plan, nor any action taken pursuant to the
provisions of this Plan shall create, or be construed to create, a trust of any kind or a
fiduciary relationship between the Company or one of its Subsidiaries and any participant,
beneficiary or other person. To the extent that a participant, beneficiary or other person
acquires a right to receive payment pursuant to any award hereunder, such right shall be
no greater than the right of any unsecured general creditor of the Company. |
| 8.5 | Tax
Withholding. Upon any exercise, vesting, or payment of any award, or upon the disposition
of Ordinary Shares acquired pursuant to the exercise of an ISO prior to satisfaction of the
holding period requirements of Section 422 of the Code, or upon any other tax withholding
event with respect to any award, arrangements satisfactory to the Company shall be made to
provide for any taxes the Company or any of its Subsidiaries may be required to withhold
with respect to such award event or payment. Such arrangements may include (but are not limited
to) any one of (or a combination of) the following: |
| (a) | The Company or one of its Subsidiaries
shall have the right to require the participant (or the participant’s personal
representative or beneficiary, as the case may be) to pay or provide for payment of at least
the minimum amount of any taxes which the Company or one of its Subsidiaries may be required
to withhold with respect to such award event or payment. |
| (b) | The Company or one of its Subsidiaries
shall have the right to deduct from any amount otherwise payable in cash (whether related
to the award or otherwise) to the participant (or the participant’s personal representative
or beneficiary, as the case may be) the minimum amount of any taxes which the Company or
one of its Subsidiaries may be required to withhold with respect to such award event or payment. |
| (c) | In any case where a tax is required to be
withheld in connection with the delivery of Ordinary Shares under this Plan, the Administrator
may in its sole discretion (subject to Section 8.1) require or grant (either at the time
of the award or thereafter) to the participant the right to elect, pursuant to such rules
and subject to such conditions as the Administrator may establish, that the Company reduce
the number of shares to be delivered by (or otherwise reacquire) the appropriate number of
shares, valued in a consistent manner at their fair market value or at the sales price in
accordance with authorized procedures for cashless exercises, necessary to satisfy the minimum
applicable withholding obligation on exercise, vesting or payment. Unless otherwise provided
by the Administrator, in no event shall the shares withheld exceed the minimum whole number
of shares required for tax withholding under applicable law to the extent the Company determines
that withholding at any greater level would result in an award otherwise classified as an
equity award under ASC Topic 718 (or any successor thereto) being classified as a liability
award under ASC Topic 718 (or such successor). |
| 8.6 | Effective Date, Termination and Suspension, Amendments. |
8.6.1
Effective Date. This Plan is effective as of June 26, 2023, the date of its approval by the Board (the
“Effective Date”). Unless earlier terminated by the Board, this Plan shall terminate at the close of business on the
day before the tenth anniversary of the Effective Date. After the termination of this Plan either upon such stated termination date or
its earlier termination by the Board, no additional awards may be granted under this Plan, but previously granted awards (and the authority
of the Administrator with respect thereto, including the authority to amend such awards) shall remain outstanding in accordance with
their applicable terms and conditions and the terms and conditions of this Plan.
8.6.2
Board Authorization. The Board may, at any time, terminate or, from time to time, amend, modify or suspend
this Plan, in whole or in part. No awards may be granted during any period that the Board suspends this Plan.
8.6.3
Shareholder Approval. To the extent then required by applicable law or deemed necessary or advisable
by the Board, any amendment to this Plan shall be subject to shareholder approval.
8.6.4
Amendments to Awards. Without limiting any other express authority of the Administrator under (but subject
to) the express limits of this Plan, the Administrator by agreement or resolution may waive conditions of or limitations on awards to
participants that the Administrator in the prior exercise of its discretion has imposed, without the consent of a participant, and (subject
to the requirements of Sections 3.2 and 8.6.5) may make other changes to the terms and conditions of awards.
8.6.5
Limitations on Amendments to Plan and Awards. No amendment, suspension or termination of this Plan or
amendment of any outstanding award agreement shall, without written consent of the participant, affect in any manner materially adverse
to the participant any rights or benefits of the participant or obligations of the Company under any award granted under this Plan prior
to the effective date of such change. Changes, settlements and other actions contemplated by Section 7 shall not be deemed to constitute
changes or amendments for purposes of this Section 8.6.
| 8.7 | Privileges
of Share Ownership. Except as otherwise expressly authorized by the Administrator,
a participant shall not be entitled to any privilege of share ownership as to any Ordinary
Shares not actually delivered to and held of record by the participant. Except as expressly
required by Section 7.1 or otherwise expressly provided by the Administrator, no adjustment
will be made for dividends or other rights as a shareholder for which a record date is prior
to such date of delivery. |
| 8.8 | Governing Law; Construction; Severability. |
8.8.1
Choice of Law. This Plan, the awards, all documents evidencing awards and all other related documents
shall be governed by, and construed in accordance with the laws of the Cayman Islands.
8.8.2
Severability. If a court of competent jurisdiction holds any provision invalid and unenforceable, the
remaining provisions of this Plan shall continue in effect.
| (a) | It is the intent of the Company that the
awards and transactions permitted by awards be interpreted in a manner that, in the case
of participants who are or may be subject to Section 16 of the Exchange Act, qualify, to
the maximum extent compatible with the express terms of the award, for exemption from matching
liability under Rule 16b-3 promulgated under the Exchange Act. Notwithstanding the foregoing,
the Company shall have no liability to any participant for Section 16 consequences of awards
or events under awards if an award or event does not so qualify. |
| 8.9 | Captions.
Captions and headings are given to the sections and subsections of this Plan solely as a
convenience to facilitate reference. Such headings shall not be deemed in any way material
or relevant to the construction or interpretation of this Plan or any provision thereof. |
| 8.10 | Share-Based
Awards in Substitution for Share Options or Awards Granted by Other Company. Awards
may be granted to Eligible Persons in substitution for or in connection with an assumption
of employee share options, SARs, restricted shares or other share-based awards granted by
other entities to persons who are or who will become Eligible Persons in respect of the Company
or one of its Subsidiaries, in connection with a distribution, merger or other reorganization
by or with the granting entity or an affiliated entity, or the acquisition by the Company
or one of its Subsidiaries, directly or indirectly, of all or a substantial part of the shares
or assets of the employing entity. The awards so granted need not comply with other specific
terms of this Plan, provided the awards reflect adjustments giving effect to the assumption
or substitution consistent with any conversion applicable to the Ordinary Shares (or the
securities otherwise subject to the award) in the transaction and any change in the issuer
of the security. Any shares that are delivered and any awards that are granted by, or become
obligations of, the Company, as a result of the assumption by the Company of, or in substitution
for, outstanding awards previously granted or assumed by an acquired company (or previously
granted or assumed by a predecessor employer (or direct or indirect parent thereof) in the
case of persons that become employed by the Company or one of its Subsidiaries in connection
with a business or asset acquisition or similar transaction) shall not be counted against
the Share Limit or other limits on the number of shares available for issuance under this
Plan. |
| 8.11 | Non-Exclusivity
of Plan. Nothing in this Plan shall limit or be deemed to limit the authority of
the Board or the Administrator to grant awards or authorize any other compensation, with
or without reference to the Ordinary Shares, under any other plan or authority. |
| 8.12 | No
Corporate Action Restriction. The existence of this Plan, the award agreements and
the awards granted hereunder shall not limit, affect or restrict in any way the right or
power of the Company or any Subsidiary (or any of their respective shareholders, boards of
directors or committees thereof (or any subcommittee), as the case may be) to make or authorize:
(a) any adjustment, recapitalization, reorganization or other change in the capital structure
or business of the Company or any Subsidiary, (b) any merger, amalgamation, consolidation
or change in the ownership of the Company or any Subsidiary, (c) any issue of bonds, debentures,
capital, preferred or prior preference shares ahead of or affecting the capital shares (or
the rights thereof) of the Company or any Subsidiary, (d) any dissolution or liquidation
of the Company or any Subsidiary, (e) any sale or transfer of all or any part of the assets
or business of the Company or any Subsidiary, (f) any other award, grant, or payment of incentives
or other compensation under any other plan or authority (or any other action with respect
to any benefit, incentive or compensation) or (g) any other corporate act or proceeding by
the Company or any Subsidiary. No participant, beneficiary or any other person shall have
any claim under any award or award agreement against any member of the Board or the Administrator,
or the Company or any employees, officers or agents of the Company or any Subsidiary, as
a result of any such action. Awards need not be structured so as to be deductible for tax
purposes. |
| 8.13 | Other
Company Benefit and Compensation Programs. Payments and other benefits received by
a participant under an award made pursuant to this Plan shall not be deemed a part of a participant’s
compensation for purposes of the determination of benefits under any other employee welfare
or benefit plans or arrangements, if any, provided by the Company or any Subsidiary, except
where the Administrator expressly otherwise provides or authorizes in writing. Awards under
this Plan may be made in addition to, in combination with, as alternatives to or in payment
of grants, awards or commitments under any other plans or arrangements or authority of the
Company or its Subsidiaries. |
| 8.14 | Clawback
Policy. The awards granted under this Plan are subject to the terms of the Company’s
recoupment, clawback or similar policy as it may be in effect from time to time, as well
as any similar provisions of applicable law, any of which could in certain circumstances
require repayment or forfeiture of awards or any Ordinary Shares or other cash or property
received with respect to the awards (including any value received from a disposition of the
shares acquired upon payment of the awards). |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM |
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 15, 2023 with respect to our audits of the consolidated financial statements of Tian Ruixiang
Holdings Ltd and Subsidiaries as of October 31, 2022 and 2021, and for each of the three years in the period ended October 31, 2022, and
the related notes, appearing in the Annual Report of Tian Ruixiang Holdings Ltd for the year ended October 31, 2022, filed with the Securities
and Exchange Commission.
We also consent to the reference to our Firm under the caption “Experts”
appearing in such Registration Statement.
/s/ RBSM LLP
New York, NY
July 25, 2023
Exhibit 107
CALCULATION OF REGISTRATION FEE
Security
Type |
Security
Class
Title |
Fee
Calculation Rule |
Amount
Registered(1) |
Proposed
Maximum
Offering Price
Per Unit |
Maximum
Aggregate
Offering
Price(2) |
Fee
Rate |
Amount
of
Registration
Fee |
Equity |
Class A Ordinary Shares, par value $0.005 per share |
Rule 457(c) and Rule 457(h) |
5,000,000 |
$1.14 |
$5,700,000 |
0.00011020 |
$628.14 |
|
|
|
|
|
|
|
|
Total Offering Amounts |
|
$5,700,000 |
|
|
Total Fee Offsets |
|
|
|
$0 |
Net Fee Due |
|
|
|
$628.14 |
(1) This registration statement on Form S-8 (this
“Registration Statement”) registers 5,000,000 Class A ordinary shares, of the Registrant issuable pursuant to the 2023 Employee
Stock Incentive Plan (the “2023 Plan”). In accordance with Rule 416(a) under the Securities Act of 1933, as amended (the “Securities
Act”), this Registration Statement also covers an indeterminate number of additional securities which may be offered and issued
under the 2023 Plan to prevent dilution from stock splits, stock dividends or similar transactions as provided in the 2023 Plan.
(2) Estimated solely for the purpose of calculating
the registration fee pursuant to Rule 457(c) and Rule 457(h)(3) of the Securities Act. The proposed maximum offering price per share is
estimated to be $1.14, based on the average of the high sales price ($1.24) and the low sales price ($1.04) for the Registrant’s
Class A ordinary shares as reported by The Nasdaq Stock Market LLC on July 24, 2023.
Tian Ruixiang (NASDAQ:TIRX)
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Tian Ruixiang (NASDAQ:TIRX)
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