T-DX OTF trading admission terms and conditions
THE BELOW TERMS AND CONDITIONS ARE APPLICABLE TO ISSUERS, WHOSE DIGITAL ASSETS ARE ADMITTED FOR TRADING ON THE T-DX OTF.
These terms and conditions for admisssion to trading (the “Agreement”), together with any applicable Exhibits, between the Company and Taurus SA (“Taurus”) sets forth the terms and conditions pursuant to the admission for trading of digital assets (the “Admitted Digital Assets”), issued by the Company (the “Issuer”), and traded on the Taurus Digital Exchange (“T-DX”) Organized Trading Facility (the “OTF”).
The more specific contractual documents available on the Taurus legal website, such as the General Terms & Conditions, the T-DX OTF Rulebook, the T-DX Risk & Regulatory Disclosure, the Risks involved in tokenized securities/assets, etc. are applicable and form an integral part of this Agreement. In the event of any contradiction between the clauses of these documents and those of this Agreement, the latter shall prevail.
T-DX is an OTF in accordance with Art. 42 of FMIA for the multilateral trading of digital assets, securities and other financial instruments, whose purpose is the exchange of bids and the conclusion of contracts based on discretionary rules.
Taurus is the operator of the T-DX OTF according to Art. 43 FMIA. This means that Taurus regulates the conduct of participants and issuers, monitors trading and market activity, and maintains rules and guidance to provide a fair and transparent venue for raising capital and trading digital assets, securities and other financial instruments
- “Anti-Bribery Laws” means the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act 2010, as amended, the Swiss Criminal Code, as amended and any other anti-bribery Law
- “Business Day” refers to a day (other than a Saturday or a Sunday) on which commercial banks are open for business in Geneva, Switzerland
- “Buy Order” means an Order where a participant to the T-DX OTF instructs to buy a specific number or amount of Digital Assets
- “Closely-held shares” means shares held by persons closely related to a Company.
- “Confirmation” refers to any and all of the advice or confirmations which may be issued by Taurus as a record of the terms of any Transaction and contain sufficient details to identify such Transaction
- “Digital Asset” means a digital representation of any type of asset, security, note, right, fund share/unit or unit of account (e.g., cryptocurrencies) registered on a distributed ledger, such as a blockchain. This includes tokenized securities, ledger-based securities and/or security tokens
- “Execution of an order” means acting to conclude agreements to buy or sell one or more Digital Assets
- “Floating stock” means the total number of shares of a stock that are available for trading in open market(s). It can be calculated by subtracting the sum of closely-held shares plus restricted stock (non-transferable stock of a company) from the Company’s total outstanding shares
- “FMIA” means the Swiss Financial Market Infrastructure Act
- “Indirect participant” means any person making use of the T-DX OTF services indirectly via a Participant
- “Insider Information” means confidential information whose disclosure would significantly affect the prices of digital assets admitted to trading on the T-DX OTF
- “Issuer” means the Company
- “Law” means all civil and common law, statute, act, subordinate legislation, treaty, regulation, rule, directive, decision, by-law, ordinance, code, order, decree, injunction or judgment of any government, quasi government, statutory, administrative or regulatory and self-regulatory body, court or agency, including applicable economic sanctions laws and regulations in place from time to time, as well as applicable laws relating to anti-money laundering, financing of terrorism, organized crimes and illicit assets of any politically exposed persons or other high-risk clients as well as Anti-Bribery Laws
- “Multilateral Trading Facility (MTF)” means an institution for multilateral securities trading whose purpose is the simultaneous exchange of bids between several participants and the conclusion of contracts based on non-discretionary rules without listing securities
- “Off-exchange” means outside a Trading Venue
- “Order” means the request to buy or sell one or more digital assets submitted by a participant to the T-DX OTF
- “Organised Trading Facility (OTF)” means an establishment for: (a) multilateral trading in securities or other financial instruments whose purpose is the exchange of bids and the conclusion of contracts based on discretionary rules; (b) multilateral trading in financial instruments other than securities whose purpose is the exchange of bids and the conclusion of contracts based on non-discretionary rules; (c) bilateral trading in securities or other financial instruments whose purpose is the exchange of bid
- “OTF Rulebook” means the T-DX OTF Rulebook published by Taurus on its website and defining the principles, criteria and rules for the execution of trades on the T-DX OTF
- “(Direct) Participant” means any person making direct use of the T-DX OTF services.
- “Sanctions” means any law, regulation, decree or order, rule or requirement relating to economic or trade sanctions, embargoes or export controls and similar laws in force from time to time of: (i) the United Nations; (ii) the European Union; (iii) Switzerland; (iv) the United States of America; (v) the United Kingdom, (vi), Singapore, (vii) Hong Kong, or (viii) any other country, authority or regional or supranational body which imposes the aforementioned measures affecting any Party and/or any of the activities envisaged under this Agreement or the Confirmation
- “Sanctioned Countries” means any country which is directly or indirectly the subject of any Sanctions
- “Sanctions Targets” means any legal or natural person which is directly or indirectly the subject of any Sanctions (whether by virtue of being named on any list of persons or entities subject to Sanctions, by being ultimately beneficially owned or controlled by or acting on behalf or at the direction of such a person or by being a national of, or ordinarily resident or located in, a Sanctioned Country)
- “Sell Order” means an Order where a participant to the T-DX OTF instructs to sell a specific number or amount of Digital Assets
- “Settlement Date” means, in respect of a Transaction, the date on which the delivery of Digital Assets and/or currencies takes place
- “Stock Exchange” means an institution for multilateral securities trading where securities are listed, whose purpose is the simultaneous exchange of bids between several participants and the conclusion of contracts based on non-discretionary rules
- “Taurus” means Taurus SA, a FINMA-regulated securities firm acting as the operator of the T-DX OTF
- “T-DX” means the Taurus Digital Exchange OTF operated by Taurus
- “Trading Hours” means the hours of trading offered by Taurus for a particular Digital Asset
- “Trading Venue” means a stock exchange or a multilateral trading facility
- “Transaction” means any transaction concluded by a participant on the T-DX OTF pursuant to the terms of the T-DX OTF Rulebook.
3. Scope of the Service
Taurus will admit to trading on the T-DX OTF, at its own discretion, the Digital Assets issued by the Company. Once done, it will allow direct and/or indirect Participants to buy/sell the Admitted Digital Assets (the “Trading Service” or the “Service”).
4. Description of the Service and Taurus’ responsibilities
Taurus operates the T-DX OTF and agrees to admit to trading the Admitted Digital Assets. It will handle orders to buy or sell according to rules set in the T-DX OTF Rulebook. The T-DX OTF will process the execution of related trades should there be a match between the orders of sellers and buyers according to the applicable “Market Schedule” as indicated on T-DX.
The Admitted Digital Assets may only be purchased and/or sold against a limited number of “Trading Currencies” which may be legal tenders (e.g., U.S. dollars, Swiss francs, Euros) and/or crypto-currencies (e.g., bitcoins, ethers), as determined by Taurus at its own discretion. Taurus reserves the right to change, unilaterally, at any time, Trading Currencies.
The Trading Service will be provided by means of an electronic trading platform (the “System”) operated by Taurus.
The admission to trading on the T-DX OTF is governed exclusively by the “Rules for the admission of digital assets to trading on T-DX” and by any other implementing provisions defined and issued by Taurus.
The settlement of Transactions executed on the T-DX OTF will happen in accordance with the post-trade and settlement rules defined in the T-DX OTF Rulebook.
Taurus will not provide sell-side research, nor underwriting services under this Agreement.
Taurus is not responsible for any Transactions executed outside the T-DX OTF.
5. Access to the Service
The trading of Admitted Digital Assets on the T-DX OTF is only permitted to Taurus’ clients or to direct and/or indirect Participants to the T-DX OTF.
The Service is only available in selected jurisdictions, decided unilaterally by Taurus, in accordance with its own rules and regulations, and in particular its cross-border policy. Taurus may at any time decide to (i) ban investors from selected jurisdictions to trade on the T-DX OTF, (ii) add access to new jurisdictions or (iii) terminate/close access to existing jurisdictions. Consequently, the Company agrees and understands that investors from all the above selected jurisdictions may become holders of the Admitted Digital Assets on the T-DX OTF.
Taurus only provides financial services on an “execution-only” basis to the following client segments as defined in the Swiss Federal Act on Financial Services (“FinSA”): (a) professional clients, (b) institutional clients and/or (c) high-net-worth retail clients (and private investment structures created for them) declaring that they wish to be treated as professional clients (opting out). The Service is not directed nor available for retail clients at this time. Retail clients may potentially access the services indirectly (as indirect Participants) via some of the professional clients (e.g., Banks) registered as direct Participants on the T-DX OTF.
By default, before submitting an order on the T-DX OTF, a client or a participant must pre-fund its account in full (i.e. 100% pre-funding rate).
The admission to trading cannot start before the Company (a) has provided Taurus with all necessary documents and (b) successfully passed the Taurus’ onboarding and know-your-customer (“KYC”) process to open an account with Taurus.
6. Availability of the Service
The Company acknowledges that Taurus is making the Service available through the Internet and that access to the Internet and the Service is dependent on numerous factors, technologies and systems, all of which are beyond the authority and control of Taurus.
The Company acknowledges and agrees that Taurus shall not be liable or responsible for any inability of the Company and/or investors to access the Service due to IT, blockchain, computer network and/or regulatory issues. Taurus will strive to provide the Service or repair any fault under its full control, as the case may be, in an appropriate and generally accepted manner using the resources available during Swiss banking hours and days.
The Company acknowledges and agrees that Taurus may employ, delegate, engage, associate or contract with one or more affiliates, agents or service providers as Taurus may deem necessary or desirable to assist it in providing the Service or discharging its other obligations under this Agreement; provided, however, that Taurus shall be as responsible to the Company for the acts and omissions of any such affiliates, agents or service providers as it is for its own acts and omissions under this Agreement.
7. Prices and liquidity
The admission to trading on the T-DX OTF leads to the publication to the public of the T-DX price history, order book and trade history of the Admitted Digital Assets.
Taurus has no obligation to make prices, and bids/asks available for Admitted Digital Assets, in particular in situations of illiquidity where no bids/asks are available.
The T-DX price may be highly volatile. THE COMPANY UNDERSTANDS IN PARTICULAR THAT THE T-DX PRICE IS A PUBLIC PRICE THAT MAY DIFFER MATERIALLY FROM THE FAIR VALUE, ECONOMIC VALUE, BOOK, VALUE, TAX VALUE OR NET ASSET VALUE (“NAV”) OF THE COMPANY.
T-DX is not a stock exchange according to Art. 26.b FMIA, but an OTF according to Art. 42 FMIA. This means that Transactions concluded on the T-DX OTF are “OTC/off-exchange”.
Most of the market segments available for trading on T-DX are NOT regarded as being liquid: the market for a financial instrument that is not admitted to trading on any Trading Venue is not regarded as being liquid within the meaning of Article 42 FMIO. Moreover, the market for a financial instrument is regarded as being liquid within the meaning of Article 42 FMIO if the instrument was traded at least 100 times per trading day on average in the previous year (from January to December) on the trading venue to which it was first admitted.
TAURUS MAY USE THE T-DX OTF TO TRADE THE ADMITTED DIGITAL ASSETS AGAINST ITS OWN BOOK, in particular for the purpose of providing liquidity and/or acting as a market maker in accordance with Cm. 22 of FINMA Circular 2018/1 “Organised trading facilities”.
8. Taurus’ power and discretion
Taurus may, at any time, and at its full and sole discretion, amend the scope of the Service and/or define/change the terms and conditions for the use of, or access to, the Service, such as the digital assets tradable, the market schedules, the trading days and hours, the opening days and hours, the auction opening and closing/uncrossing schedules, the minimum and maximum amounts for the transaction in digital assets, the price bands, etc. The Company understands that Taurus, in its capacity as operator of the T-DX OTF, is entitled to exercise full discretion unilaterally according to the rules defined in the T-DX OTF Rulebook.
Taurus may, at any time, and at its full and sole discretion, remove, halt or suspend digital assets from trading on the T-DX OTF without notice; in particular if Taurus deems it necessary in order to maintain a fair and orderly market on the T-DX OTF, to comply with Applicable Laws or in response to a request from a regulator, or for any other reason at its sole discretion.
Taurus has full discretion also on the acceptance or not of clients and/or Participants.
Taurus’ decision to trade the Admitted Digital Assets on its T-DX OTF is subject to conditions and may be reversed at any time by Taurus. There is no guarantee that Taurus will continue to trade the Digital Assets on the T-DX OTF in the future. Hence the Company understands and agrees that current Digital Asset holders may face a total lack of liquidity if the T-DX OTF is the only trading facility accepting to trading the Digital Assets, and then Taurus decides to stop trading.
Notwithstanding that Taurus exercises discretion in relation to T-DX, to the fullest extent permitted by applicable laws, Taurus owes no legal duty or obligation (including in negligence) to the Company, a client, a direct or indirect participant, in relation to the placement, modification, retraction, negotiation, terms or execution of Instructions on T-DX.
9. Non-application of the Swiss rules applicable to “listed” companies
The digital assets admitted to trading on the T-DX OTF will be, generally, traded exclusively off-exchange. As a result, the Swiss regulations that apply to issuers that have securities listed on a stock exchange in Switzerland will not apply. In particular:
- The provisions of FMIA regarding the mandatory disclosure of large interests in listed companies (Article 120 et seq. FMIA) or public takeovers (Article 125 et seq. FMIA) will not apply. This means, among other things, (i) that the beneficial owners of large interests in the Company will not be under any duty, subject to limited exceptions, to make the nature of their interest in the Company public, (ii) that the provisions of the FMIA designed to guarantee equal treatment and undistorted choice of shareholders in the event of a public takeover offer will not apply if a public takeover offer is made for the shares of the Company and (iii) that the provisions of the FMIA that require any person who acquires more than one third of the voting rights of a company to make a cash offer at a minimum price for all the listed shares of the company will not apply.
- The provisions of the FMIA prohibiting insider trading and market manipulation will not strictly apply. Swiss authorities will therefore have less legal means to sanction market abuses relating to the Digital Assets than they would have had the Digital Assets been listed on a stock exchange in Switzerland.
10. Responsibilities of the Company
The Company undertakes as follows to:
- provide information in respect of the Company and its operations to the extent and in the manner set forth in Exhibit 1 to this Agreement;
- comply with the laws and rules incorporated in Exhibit 2 to this Agreement;
- comply with amendments or supplements agreed with Taurus.
In addition, the Company shall, upon Taurus’ request, provide information required by Taurus in order to fulfil its obligations in accordance with laws and other regulations.
The Company undertakes to specifically not use the word “listing” (or “cotation” in French) in its communications, taking into account that the T-DX OTF is not a stock exchange nor a MTF or equivalent.
The Company is solely responsible for the timely and correct publication of statutory and required information to its investors on its corporate website and necessary news/channels (e.g., convene shareholder meetings).
11. Trading of own digital assets by the Company
If the Company wishes to trade its own digital assets on the T-DX OTF, it must open a trading account with Taurus and comply in particular with FINMA Newsletter 52 (2013), 18 November 2013, regarding “Trading own equity securities with the purpose of ensuring liquidity under the new provisions on market manipulation”.
The Company is allowed to trade its own digital assets (or appoint a duly regulated third party) as long as it makes available liquidity (or tradable volume) that moves with the market trend and for the sole purpose of ensuring liquidity. The Company and/or its appointed third party is not allowed to artificially support the digital asset price or fix the price against the market trend. Employees of issuers or third party companies mandated to provide such liquidity must comply with the aforementioned requirements at all times.
The Company must ask Taurus’ prior approval before starting such activities.
If the Company buys back its own shares or other equity instruments, it confirms that it will comply with applicable limits under corporate law (e.g., article 659 seq. CO under Swiss law for a Swiss company).
The Company expressly authorises Taurus or any other Participants to act as a Liquidity Provider and/or Market-maker on the Admitted Digital assets on the T-DX OTF with no guarantee from Taurus.
12. Paying agent, registrar and administrator
The admission to trading on the T-DX OTF requires that the payment of dividends, interests, principals, etc. and the conduct of corporate actions be handled by the Company with a paying agent in Switzerland, Liechtenstein or in an OECD country (i.e. an account opened in the name of the Company with a bank or a securities dealer).
The responsibility for (a) the payment of dividends, interests, principals, etc., (b) management of corporate actions and (c) maintenance of the share registry remains in any case the sole responsibility of the Company or its appointed agents.
The admission to trading on the T-DX OTF does not require the appointment of a registrar or shareholder service provider.
The Company understands that Taurus is not a paying agent, nor a registrar, nor an administrator (e.g., UCITS ManCo for a fund, AIFM for an AIF), and does not provide such services.
By default, Taurus assumes no responsibility for the registration of any new shareholder into the share register of the Company, unless agreed differently with the Company (and in such a case only for digital assets custodied by Taurus). For the avoidance of doubt, the registration of shareholders whose shares are not custodied by Taurus will never be the responsibility of Taurus. When receiving personal data about a shareholder or bondholder, the Company commits to process, store and protect those private and confidential data with appropriate level of care and security in full compliance with the Swiss Federal Data Protection law, the European General Data Protection Regulation (“EU GDPR”) and any other personal data law applicable to the Company.
13. Insider information and market manipulation
The Company acknowledges and understands that its board members, executive members, employees, advisors and suppliers may (a) be in possession and exploit insider information and/or (b) perform market manipulation.
The Company confirms that it has defined and implemented insider trading rules and undertakes to enforce it and be compliant with any applicable laws, regulations and good practices.
The Company acknowledges and understands that Taurus may perform market manipulation and market integrity controls and that suspicious behaviour may be reported to the financial market authorities or any other competent authorities.
14. Warranties and liabilities
Each party represents and warrants to the other party: (a) it is duly organized and validly existing under the laws of the jurisdiction in which it was formed or incorporated; (b) it has full power and authority to enter into and perform its obligations hereunder; and (c) this Agreement has been duly authorized, executed and delivered on its behalf by persons empowered to do so.
Taurus warrants to the Company that:
- It is authorized by FINMA as a securities firm and it is duly authorized to act as the operator of the T-DX OTF.
- It can admit the Digital Assets for trading on the T-DX OTF.
The Company warrants to Taurus that:
- It is duly authorized to have its Digital Assets admitted to trading on the T-DX OTF (a Swiss OTF) in accordance with its own articles of association and under the laws of the jurisdiction in which it was formed or incorporated.
- It has not requested the listing or admission to trading of the Admitted Digital Assets on any stock exchange or multilateral trading facility in Switzerland and/or abroad, and does not currently intend to make any such request.
- If it qualifies as a fund or collective investment scheme, it confirms that it is duly registered and that it complies with all applicable laws and regulations (e.g., Swiss CISA, EU UCITS, EU AIFM).
- No member of the Company’s board of directors or executive committee (i) has been convicted for business-related crimes or other criminal offences other than misdemeanours (contraventions / Übertretungen) committed over the last five years and (ii) is a party to on-going proceedings or was imposed sanctions by governmental or regulatory authorities (including professional bodies having jurisdiction).
- It is currently not involved in any pending or threatened court, arbitral or administrative proceedings or other legal matter which the Company expects, if decided against it, to have a material adverse impact on its financial condition or results of operations.
- The Digital Assets have duly and validly been paid-up and issued by the Company according to applicable laws, corporate status and regulations.
- It has not taken any actions nor entered into or conducted business activities or other dealings that would be subject to Sanctions, including, without limitation, any transactions, business dealings or contracts with or involving any Sanctioned Country or any Sanctions Target.
- It has not and it will not do business with, nor accept any shareholders or investors in a Sanctioned Target list or coming from any Sanctioned Countries.
- It has not taken any action or entered into or conducted any business activities that could constitute a violation of any Anti-Bribery Laws and has taken all reasonable measures to ensure that none of its employees, officers, directors, shareholders, independent contractors, consultants or any other person acting for or on behalf of any of the foregoing violate any Anti-Bribery Laws.
- It understands that it is a private company subject to traditional private companies rules and regulations (i.e. not a listed company).
- It has sought for proper legal advice on its statutory duty and on the information to be published on its corporate website to its investors and if it needs or not to publish a prospectus and/or additional legal documentation.
- It has conducted its operations in compliance with all applicable Laws, including, without limiting the generality of the foregoing, maintaining their Books and Records, and in accordance with the Articles. It is currently under no obligation to remedy any unlawful situation in respect of any of its assets or activities.
- It understands that an offer to buy/sell securities, or any solicitation to such effect is subject to strict legal and regulatory rules and requirements and it will, at all times, comply with those rules and requirements, in particular when making public communication.
- It will immediately inform Taurus if any of the conditions set out in this Article was no longer met.
THE COMPANY UNDERSTANDS ALL THE LEGAL AND TAX IMPLICATIONS (BOTH FOR THE COMPANY ITSELF AND FOR ITS SHAREHOLDERS/BONDHOLDERS/DIGITAL ASSET HOLDERS) OF HAVING ITS SHARES/SECURITIES TOKENIZED, ADMITTED FOR TRADING, EXCHANGED AND/OR FREELY TRANSFERABLE ON THE T-DX OTF (“THE TRANSACTION”). IT UNDERSTANDS THAT TAURUS IS NOT A LEGAL/TAX ADVISOR AND IT CONFIRMS THAT IT HAS SOUGHT FOR PROPER INDEPENDENT AND ADEQUATE LEGAL AND TAX ADVICES IN RELATION TO THE SERVICE. AS A CONSEQUENCE, THE COMPANY AGREES THAT TAURUS SHALL NOT BE LIABLE, TO THE FULLEST EXTEND, FOR ANY DIRECT OR INDIRECT DAMAGES IN RELATION TO THE SERVICE. THE COMPANY WILL BEAR ALONE THE FULL COSTS OF ANY LEGAL/TAX WORK REQUIRED TO SOLVE ANY CORPORATE ISSUES, INCLUDING FOR REVERTING TOKENIZATION OR WITHDRAWING THE ADMISSION TO TRADING OF ITS SHARES/TOKENIZED SECURITIES/DIGITAL ASSETS.
The Company will indemnify, defend and hold Taurus, and each of its officers, directors, employees and agents, harmless from and against any and all damages, liabilities, losses, costs and reasonable out-of-pocket costs and expenses (including, but not limited to, reasonable attorneys’ fees) to the extent arising out of any claim, action or allegation brought under the laws of Switzerland by any third party relating to, resulting from, in connection with or arising out of (i) any breach of this Agreement by the Company, (ii) the use of the Service by the Company, (iii) any failure on the part of the Company to comply with any applicable law, rule and regulation, with respect to the use of the Service, except, in each case, to the extent that such damages, liabilities, losses, costs and expenses are incurred as a result of the fraud or wilful misconduct of Taurus.
16. Limitation of liability
The Company acknowledges and agrees that Taurus shall not have any liability in or be responsible for any damages, liabilities, losses, costs, out of pocket costs or expenses (including attorneys’ fees), whether direct, indirect, special, incidental, consequential, punitive or otherwise of any kind (including, without limitation, any loss of revenue, loss of actual or anticipated profits, loss of contracts, loss of the use of money, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation or loss of, damage to or corruption of data), in each case arising under or related to claims of breach of contract, tort, including negligence, strict liability, negligent misrepresentation, restitution, breach of statutory duty or any other cause of action whatsoever with respect to this Agreement, the Service, or any other matters or services contemplated hereby.
Notwithstanding anything to the contrary herein and without limiting the foregoing, the Company acknowledges and agrees, that Taurus shall not be liable in any manner to the Company for (i) any Service failure on the T-DX OTF, (ii) Company’s breaches or failure to comply with its statutory obligations and information duty, (iii) the withdrawal, suspension, halt or termination of the admission to trading of the Digital Assets, and/or (iv) the absence of liquidity for the Admitted Digital Assets.
In particular, in any case cannot be considered as damage the fact that Taurus (among others):
- changes Trading Currencies
- bans or adds investors/participants from selected jurisdictions to trade on the T-DX OTF
- amends the scope of the Service and/or defines the terms and conditions for the use of, or access to, the Service
- removes, halts or suspends digital assets from trading on the T-DX OTF for any reasons
- reverses its decision to trade the Admitted Digital Assets on its OTF
- reports suspicious behaviour to the financial market authorities.
THE COMPANY CONFIRMS THAT IT HAS READ AND THAT IT UNDERSTANDS AND ACCEPTS TO BEAR SOLELY ALL THE SPECIFIC RISKS ASSOCIATED WITH TOKENIZED SECURITIES, SECURITY TOKENS AND/OR LEDGER-BASED SECURITIES AS DESCRIBED IN THE RISKS INVOLVED IN TOKENIZED SECURITIES/ASSETS DISCLAIMER.
IF THE COMPANY HAS NOT PUT IN PLACE A SHAREHOLDER/PARTICIPATION HOLDER AGREEMENT, IT UNDERSTANDS AND ACCEPTS THAT THE RELATIONSHIP AMONG SHAREHOLDERS/PARTICIPATION CERTIFICATE HOLDERS SHALL BE SOLELY GOVERNED BY ITS ARTICLES OF ASSOCIATION AND APPLICABLE STATUTORY CORPORATE LAW (E.G., SWISS CODE OF OBLIGATIONS FOR SWISS ISSUERS). IT MEANS, IN PARTICULAR, THAT NO DRAG-ALONG, TAG-ALONG OR EQUIVALENT MECHANISM(S) WILL BE AVAILABLE TO THE COMPANY OR ITS SHAREHOLDERS AFTER THE DIGITAL ASSETS HAVE BEEN EXCHANGED: THE COMPANY AND ITS CURRENT SHAREHOLDERS UNDERSTANDS AND ACCEPTS THIS RISK IN FULL. IF THE COMPANY HAS PUT IN PLACE A SHAREHOLDER/PARTICIPATION HOLDER AGREEMENT, IT UNDERSTANDS AND ACCEPTS THAT T-DX PARTICIPANTS PURCHASING DIGITAL ASSETS VIA T-DX WILL NOT SIGN IN WRITING NOR ELECTRONICALLY THE SHAREHOLDER/PARTICIPATION HOLDER AGREEMENT. THE COMPANY AGREES TO HOLD TAURUS HARMELESS AND THAT TAURUS SHALL NOT BE LIABLE, TO THE FULLEST EXTEND, FOR ANY DIRECT OR INDIRECT DAMAGES IN RELATION TO THE SERVICE.
EXCEPT AS EXPLICITLY STATED IN THIS AGREEMENT OR REQUIRED BY MANDATORY PROVISIONS OF SWISS LAW THAT ARE NOT WAIVABLE BY AGREEMENT (I.E. ONLY IN CASE OF UNLAWFUL INTENT OR GROSS NEGLIGENCE), TAURUS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. THIS IMPLIES THAT TAURUS WILL NEVER BE HELD RESPONSIBLE IN ANY OTHER CASE (INCLUDING, BUT NOT LIMITED TO HANDLING MISTAKE BY THE COMPANY, TRADING ERRORS, MISLEADING INFORMATION PUBLISHED BY THE COMPANY, TRADING SUSPENSION, FRAUDS BY THE COMPANY, MARKET MANIPULATION BY THE COMPANY, LOSSES DUE TO A CYBER-ATTACK OF THE COMPANY’S IT ENVIRONMENT, FRAUD, ETC.).
In the event that the Company materially fails to fulfil the applicable requirements for admission to trading, Taurus may resolve to withdraw the admission to trading of the Company’s digital assets at its own discretion.
In the event of a failure by the Company to comply with law, other regulations, this Agreement, or the T-DX OTF Rulebook in general, Taurus may, where such violation is serious, resolve to remove the Company’s traded digital assets or, in other cases, impose on the Company a conditional fine corresponding to not more than two times the annual fee last paid by the Company to Taurus. Where the non-compliance is of a less serious nature or is excusable, Taurus may issue a warning to the Company in lieu of imposing a conditional fine.
Taurus reserves the right to report to the financial market authorities and/or to any other competent authorities.
18. Data and confidentiality
The Company authorizes Taurus to publish on the T-DX website all necessary information to registered users, in particular the following documents provided to Taurus: annual reports, semi-annual reports, financial statements, news, prospectus, shareholder notices, articles of associations, regulations, etc.
The Company allows Taurus to mention publicly that the Company is a client of Taurus. The Company allows Taurus to use its logo on the T-DX website and its corporate presentations and documentation.
Taurus allows the Company to mention publicly that its Digital Assets are admitted to trading on the T-DX OTF.
Taurus may collect and store information regarding the Company and share it with its affiliates, agents and service providers in order to: (i) provide the Service; and (ii) manage Taurus’ business, including, but not limited to, client on-boarding, financial and operational management and reporting, risk management, legal and regulatory compliance and client service management. Taurus shall require any affiliate, agent or service provider to which it has disclosed data pursuant to this section to comply with the Agreement’s confidentiality and Swiss data protection obligations.
Information received by Taurus from the Company pursuant to a confidentiality undertaking may not be disclosed by Taurus to any third party without the Company’s consent prior to such information being made public, except to the Swiss Financial Market Supervisory Authority (“FINMA”) in its capacity as the supervisory authority for Taurus and/or to the Taurus’ internal and external auditors.
All the trading data and time series about the Admitted Digital Assets (e.g., price, NAV, volume, bid/ask prices, order books, transactions and trades) are the sole and exclusive property of Taurus. Taurus owns all rights and interests regarding this data, including the rights to resell those data to third parties.
The Company understands that detailed trading and transaction data (in particular the names of Taurus’ clients and participants trading the Digital Assets) are strictly confidential and cannot be shared with the Company. The Company understands that Taurus is a FINMA securities firm that is subject to professional secrecy. As a general rule, Taurus will not share with the Company more market information than what is available to other investors and clients of Taurus.
While processing personal data, Taurus warrants the Company to be compliant with the Swiss Data Protection Act.
While processing personal data provided by Taurus to the Company (e.g., shareholder information, share registry), the Company warrants Taurus to be compliant with the Swiss Data Protection Act.
19. Proprietary information
The Company acknowledges and agrees that Taurus owns and shall retain all right, title and interest in and to the Service, all components thereof, including without limitation all related applications, all application programming interfaces, user interface designs, software and source code and any and all intellectual property rights therein, including, without limitation all registered or unregistered (a) copyright, (b) trade mark, (c) service mark, (d) trade secret, (e) trade name, (f) data or database rights, (g) design rights, (h) moral rights, (i) inventions, whether or not capable of protection by patent or registration, (j) rights in commercial information or technical information, including know-how, research and development data and manufacturing methods, (k) patent and (l) other intellectual property and ownership rights, including applications for the grant of any of the same, in or to the Service and all other related proprietary rights of Taurus (together, with any and all enhancements, corrections, bug fixes, updates and other modifications to any of the foregoing and any and all data or information of any kind transmitted by means of any of the foregoing, the “Proprietary Information”).
The Company further acknowledges and agrees that the Proprietary Information is the exclusive, valuable and confidential property of Taurus. The Company acknowledges and agrees that it shall not reverse engineer, copy, bug fix, correct, update, transfer, reproduce, republish, broadcast, create derivative works based on or otherwise modify, in any manner, all or any part of the Service or the Proprietary Information. The Company further agrees to keep the Proprietary Information confidential and not to transfer, rent, lease, loan, sell or distribute, directly or indirectly, all or any portion of the Service or any Proprietary Information to any third party without the prior written consent of Taurus.
In compensation for the Service, The Company agrees to pay Taurus the fees defined in a dedicated Exhibit.
All fees are due and payable in Swiss Francs within thirty (30) calendar days after the invoice date. The Client will pay on top any value added taxes (VAT), any tax in the nature of a withholding tax and any duties payable in respect of the fees due hereunder or otherwise arising in respect of this Agreement.
Taurus may increase fees at any time. The Company will be notified in advance of the intention by Taurus to increase such fees.
The Company understands and agrees that Taurus will also charge fees directly to (direct and indirect) Participants at its own discretion: trading fees, deposit and withdrawal fees, custody fees and administration fees. Taurus will also charge and levy Swiss stamp duty for securities transfers.
21. Term and termination
This Agreement shall remain in force for an indefinite period of time.
Either Party may terminate this Agreement at any time with a sixty (60) calendar days notice for the end of a month.
Taurus has the right to suspend or terminate the Agreement or Service with immediate effect if, in its sole discretion, the continuation of the Agreement, Service or any other element of the relationship constitutes an unacceptable financial, reputational or regulatory risk for Taurus or if this measure prevents imminent damage.
22. Amendments and modifications
The version of this Agreement currently in force, as amended from time to time, can be accessed on the Taurus legal website. Taurus shall inform the Company in case of any change to the Agreeemnt. If the Company does not agree with the revised Agreement/amendments, it has the right to terminate the Agreement in accordance with Art. 21.
Any notice required or permitted to be given in connection with this Agreement will be deemed to be delivered if it is available in the Taurus electronic account of the Company, personally delivered (incl. at the email address provided by the Company) or sent by certified or registered mail or overnight courier, postage prepaid with return receipt requested, and addressed to the relevant party thereto at the address provided by the Company.
Except as otherwise provided below, neither party may assign, transfer or otherwise dispose of this Agreement or any rights or obligations hereunder without the prior written consent of the other party.
Notwithstanding the foregoing, (a) Taurus may assign or transfer this Agreement or any rights or obligations hereunder to any affiliate of Taurus without the prior written consent of the Company and (b) Taurus has the right to assign or transfer this Agreement in connection with the merger or acquisition or the sale of all or substantially all of its assets, without such consent. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective successors and permitted assigns.
25. Electronic signature consent
The Company and Taurus agree to use electronic records and signatures. The Company and Taurus expressly agree that any contracts and any transaction documents between both parties may be validly concluded by means of any electronic signature process (even not qualified within the meaning of Swiss law) (such as DocuSign, HelloSign, Adobe Sign or other similar electronic signature process) then stored in electronic form exclusively.
26. Applicable law and jurisdiction
This Agreement and the rights and obligations of the Parties hereunder shall be governed by and interpreted, construed and enforced in accordance with the laws of Switzerland without giving effect to principles of conflicts of law.
Subject to each party’s right to appeal to the Swiss federal Supreme Court in Lausanne, the courts of the then registered office of Taurus shall have exclusive jurisdiction over any dispute concerning this Agreement or related agreement, in particular as to their existence, validity, interpretation, performance or non-performance, whether arising before or after the expiration of the Agreement.
27. Force majeure
Any delay in or failure of performance by either party under this Agreement will not be considered a breach and will be excused to the extent such delay in or failure is caused by any event beyond the reasonable control of such party, including, but not limited to, acts of God, acts of civil or military authorities, strikes or other labor disputes, fires, interruptions in telecommunications or Internet or network service providers, acts or omissions of a third party hardware or software supplier or a third party communications provider, power outages and governmental restrictions.
If any provision of this Agreement shall be held or made invalid by a court decision, statute, rule of law or otherwise, the remainder of this Agreement will not be affected and to that extent the provisions of this Agreement will be deemed to be severable.
29. Entire agreement
This Agreement, together with all related Exhibits and schedules, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and supersedes all prior agreements, understandings, representations, and warranties, both written and oral, with respect to such subject matter.
30. No waiver
No failure on the part of any party to exercise, and no delay on its part in exercising, any right or remedy under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further or future exercise thereof or the exercise of any other right or remedy.
Exhibit 1 – Information and disclosure requirements
The Company shall have its own website on the Internet on which all information from the Company published in accordance with this Exhibit shall, unless special cause exists, be available for at least the most recent two years.
The current articles of association shall also be available on the website, unless they are freely available on the trade register (e.g. Zefix in Switzerland) or equivalent freely-available recognized public source.
Information in accordance with this Agreement shall be correct, relevant, and reliable. It must be worded in French, English or German.
Articles of associations, annual reports, fact sheets, prospectuses, and other information provided for distribution to, or kept available for, investors and shareholders shall be sent simultaneously to Taurus ([email protected]).
Financial statements and accounts of the Company shall be prepared in accordance with the Swiss Code of Obligations (“CO”), Swiss GAAP FER, US GAAP, IFRS or a recognized accounting standard.
Financial statements must be audited by a reputable audit firm (ordinary audit or limited statutory audit).
The Company must provide the following information on its corporate website: (1) it is admitted for trading on T-DX with a reference to www.t-dx.com, (2) the T-DX ticker and (3) contact details for investor relations.
In case of digital assets (tokenized securities/assets, security tokens or ledger-based securities), the Company must also provide the following additional information on its corporate website (whenever applicable): (1) DLT and smart contract address, (2) issuer disclosure information relating to the tokenization, (3) registration regulations, and (4) the list of countries subject to a ban for the purchase and ownership.
Shareholders’ meetings must be held in accordance with the deadline set in the articles of association.
Notices to attend shareholders’ meetings shall be published by the Company in accordance with the articles of associations, unless a special cause exists for not doing so. The Company shall provide Taurus ([email protected]) with a copy of the notices to attend shareholders’ meetings.
Issues of securities
Where the Company has adopted a resolution in respect of the issuance of securities/digital assets, or where the board of directors decides to propose such a resolution to the shareholders’ meeting, the board of directors shall disclose the number of shares/digital assets and describe the transaction.
Listing and/or admission to trading on a trading trading venue or another OTF
Where the Company’s board of directors adopts a resolution to apply for listing and/or admission to trading on a Trading Venue (stock exchange or MTF) or another OTF or where such Trading Venue or OTF adopts a decision as a result of such application from the Company, the Company shall immediately inform Taurus and publish the decision.
Exhibit 2 – Main laws, regulations, rules and policies applicable to the Company
The Company understands and undertakes to comply in full, at all times, with the following laws, regulations, rules and policies:
- The Swiss Financial Market Infrastructure Act (“FMIA”) and its implementing ordinances;
- The relevant Articles of the Swiss Code of Obligations in the context of the admission to trading;
- Taurus’ terms and conditions (in particular the T-DX OTF Rulebook) published on https://legal.taurushq.com.