Ambipar Emergency Response 20-F, filed Mar 7, 2023
Ambipar Emergency Response (AMBIQ)
About this 20-F
Ambipar Emergency Response filed this 20-F on March 7, 2023, covering the fiscal year ended March 3, 2023.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 20-F
| (Mark One) | |
| ¨ | REGISTRATION STATEMENT PURSUANT TO SECTION 12(B) OR 12(G) OF THE SECURITIES EXCHANGE ACT OF 1934 |
| OR | |
| ¨ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 |
| For the fiscal year ended | |
| OR | |
| ¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 |
| OR | |
| x | SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Date of event requiring this shell company
report: March 3, 2023
Commission File Number: 001-41638
AMBIPAR EMERGENCY RESPONSE
(Exact name of Registrant as specified in its charter)
| Not applicable | Cayman Islands |
| (Translation of Registrant’s name into English) | (Jurisdiction of incorporation or organization) |
Ambipar Emergency Response
Avenida Angélica, nº 2346, 5th
Floor
São Paulo, SP – Brazil, 01228-200
(Address of Principal Executive Offices)
Rafael Espírito Santo
Telephone: +55 (11) 3429-5000
E-mail: ir.response@ambipar.com
At the address of the Company set forth above
(Name, Telephone, Email and/or Facsimile number and Address of Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
| Class A Ordinary Shares | AMBI | NYSE American LLC |
| Warrants | AMBIWS | NYSE American LLC |
Securities registered or to be registered
pursuant to Section 12(g) of the Act:
None
(Title of Class)
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act:
None
(Title of Class)
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the shell company report: 16,175,105 Class A ordinary shares, 39,234,746 Class B ordinary shares and 16,180,000 warrants to purchase Class A ordinary shares.
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. Yes ¨ No ¨
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ¨ No x
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth company. See definition of “large accelerated filer,” “accelerated filer,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ¨ | Accelerated filer | ¨ |
| Non-accelerated filer | x | Emerging growth company | x |
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 13(a) of the Exchange Act. ¨
†The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting over Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ¨
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ¨
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ¨
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
| US GAAP ¨ | International Financial Reporting Standards as issued by the International Accounting Standards Board x | Other ¨ |
If “Other” has been checked in response to the previous question indicate by check mark which financial statement item the registrant has elected to follow. Item 17 ¨ Item 18 ¨
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ¨ No ¨
(APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS DURING THE PAST FIVE YEARS)
Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Sections 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court. Yes ¨ No ¨
TABLE OF CONTENTS
| i |
On March 3, 2023 (the “Closing Date”), Ambipar Emergency Response, an exempted company incorporated with limited liability in the Cayman Islands (“New PubCo” or the “Company”), consummated the previously announced business combination (the “Closing”) pursuant to the Business Combination Agreement, dated as of July 5, 2022 (the “Business Combination Agreement”), by and among the Company, HPX Corp., a Cayman Island exempted company (“HPX”), Ambipar Merger Sub, an exempted company incorporated with limited liability in the Cayman Islands and a wholly-owned subsidiary of the Company (“Merger Sub”), Emergência Participações S.A., a sociedade anônima organized under the laws of Brazil (“Emergencia”), and Ambipar Participações e Empreendimentos S.A., a sociedade anônima organized under the laws of Brazil (“Ambipar”).
In connection with the entry into the Business Combination Agreement, HPX, the Company, Emergencia, HPX Capital Partners LLC (the “Sponsor”), Mr. Marcos Peigo, Mr. Wolney Betiol and Ms. Salete Pinheiro (each, an “Insider,” and the Insiders collectively with the Sponsor, the “Initial Shareholders”) entered into an agreement, dated as of July 5, 2022 (the “Sponsor Letter Agreement”). Pursuant to the Sponsor Letter Agreement, on March 3, 2023, the Initial Shareholders contributed, transferred, assigned, conveyed and delivered to HPX, and HPX acquired and accepted from the Initial Shareholders, all of the Initial Shareholders’ right, title and interest in, to and under each of their (i) 6,305,000 outstanding HPX Class B ordinary shares, par value $0.0001 per share (the “Founder Shares”), 6,245,000 of which were held by the Sponsor, and (ii) 7,060,000 HPX private placement warrants each entitling the holder thereof to purchase one HPX Class A ordinary share, par value $0.0001 per share (the “HPX Class A Ordinary Shares” and the “HPX Private Warrants,” respectively), all of which were held by the Sponsor. In exchange therefore, HPX issued (i) to the Sponsor 1,836,100 HPX Class A Ordinary Shares and 676,707 HPX Private Warrants, each free and clear of liens, and (ii) to each Insider a number of HPX Class A Ordinary Shares equal to the number of Founder Shares held by such Insider as of the date of the Sponsor Letter Agreement, each free and clear of liens, such that, immediately prior to the First Effective Time (as defined below), there was no outstanding Founder Shares.
Pursuant to the Business Combination Agreement, one business day before the Closing Date, Ambipar contributed all of the issued and outstanding equity of Emergencia into Merger Sub in exchange for the newly issued ordinary shares of Merger Sub (the “Merger Sub Ordinary Shares”). On the Closing Date, (i) HPX merged with and into the Company, with the Company as the surviving entity (the “First Merger” and the effective time of the First Merger, the “First Effective Time”) and (ii) immediately following the First Merger, Merger Sub merged with and into the Company, with the Company as the surviving entity and holding all of the issued and outstanding equity of Emergencia (the “Second Merger” and the effective time of the Second Merger, the “Second Effective Time; the Second Merger together with the First Merger, the “Mergers;” and the Mergers, collectively with the other transactions contemplated by the Business Combination Agreement, the “Business Combination”).
As part of the Business Combination, at the First Effective Time: (i) each issued and outstanding HPX Class A Ordinary Share was canceled and converted into the right to receive one Class A ordinary share, par value $0.0001 per share, of the Company (the “New PubCo Class A Ordinary Shares”); (ii) each issued and outstanding whole warrant to purchase HPX Class A Ordinary Shares was converted into one warrant to purchase one New PubCo Class A Ordinary Share at an exercise price of $11.50 per share (the “New PubCo Warrants”), subject to the same terms and conditions existing prior to such conversion, and (iii) each outstanding and unvested restricted stock unit in respect of HPX Class A Ordinary Shares was converted into a restricted stock unit that is settled in New PubCo Class A Ordinary Shares, subject to the same terms and conditions as were applicable to such restricted stock units of HPX as of immediately prior to the First Effective Time (the “New PubCo Restricted Stock Units”).
Additionally, at the Second Effective Time, each issued and outstanding Merger Sub Ordinary Share was cancelled and converted into the right to receive the applicable portion of the merger consideration comprised of Class B ordinary shares of New PubCo, par value $0.0001 per share, which carry voting rights in the form of 10 votes per share of the Company (the “New PubCo Class B Ordinary Shares” and, together with the New PubCo Class A Ordinary Shares, the “New PubCo Ordinary Shares”), as determined in accordance with the per share consideration set forth in the Business Combination Agreement; provided that the number of New PubCo Class B Ordinary Shares issued to Ambipar was adjusted downwards by $3,572,446, which is the amount corresponding, at one share for every $10.00, to the transaction expenses incurred by Emergencia in excess of $9,500,000 not reimbursed by Ambipar pursuant to the terms of the Business Combination Agreement.
| 1 |
In addition, Ambipar will be issued up to an additional 11,000,000 newly issued New PubCo Class B Ordinary Shares (the “Earn-Out Shares”), as follows: (i) if at any time during the three-year period following the Closing Date, the closing share price of the New PubCo Class A Ordinary Shares is greater than or equal to $17.00 over any 20 trading days within any consecutive 30 trading day period, 50% of the Earn-Out Shares will be issued; and (ii) if at any time during the three-year period following the Closing Date, the closing share price of the New PubCo Class A Ordinary Shares is greater than or equal to $20.00 over any 20 trading days within any consecutive 30 trading day period, the remaining 50% of the Earn-Out Shares will be issued.
Concurrently with the execution of the Business Combination Agreement, Ambipar entered into a share subscription agreement (the “Ambipar Subscription Agreement”), pursuant to which Ambipar committed (the “Ambipar PIPE Financing”) to subscribe for and purchase 5,050,000 New PubCo Class B Ordinary Shares at $10.00 per share. On the Closing Date, Ambipar paid the $50.5 million subscription price through the conversion of a $50.5 million equivalent intercompany loan provided by Ambipar pursuant to an agreement, dated as of July 5, 2022, between Ambipar and Emergencia (the “Ambipar Intercompany Loan Agreement”).
In addition, in connection with the execution of the Business Combination Agreement, (i) Opportunity Agro Fundo de Investimento em Participações Multiestratégia Investimento no Exterior (“Opportunity Agro Fund”) entered into a share subscription agreement (the “Opportunity Subscription Agreement”) pursuant to which Opportunity Agro Fund committed (the “Opportunity PIPE Financing”) to subscribe for and purchase New PubCo Class A Ordinary Shares, and (ii) HPX and the Company entered into certain other subscription agreements (together with the Opportunity Subscription Agreement, the “Original Subscription Agreements”) with certain investors (together with Opportunity Agro Fund, the “Original PIPE Investors”), pursuant to which such Original PIPE Investors committed to subscribe for and purchase New PubCo Class A Ordinary Shares.
On December 8, 2022, HPX, the Company and Cygnus Fund Icon (“Cygnus” and, collectively with the Original PIPE Investors, the “PIPE Investors”), one of the Original Non-Redeeming Shareholders (as defined below), entered into an amended and restated Non-Redemption Agreement (the “Cygnus Non-Redemption Agreement”) as well as a Subscription Agreement (the “Cygnus Subscription Agreement” and, collectively with the Original Subscription Agreements, the “Subscription Agreements”) on terms and conditions substantially consistent with those included in the Non-Redemption Agreements (as defined below) and the Original Subscription Agreements; provided, however, that pursuant to the Cygnus Non-Redemption Agreement and the Cygnus Subscription Agreement, Cygnus was granted the option (the “Cygnus Option”), exercisable by Cygnus via written notice to be delivered to HPX and the Company no later than 10 calendar days prior to the HPX extraordinary general meeting of shareholders, either (i) to comply with the terms and conditions contained in the Cygnus Non-Redemption Agreement (including, among other things, to vote its 300,000 HPX Class A Ordinary Shares in favor of the transactions contemplated in the Business Combination Agreement for which the approval of HPX shareholders is required and not to redeem or exercise any right to redeem its 300,000 HPX Class A Ordinary Shares), or (ii) not to be bound by the Cygnus Non-Redemption Agreement and instead to subscribe for 300,000 New PubCo Class A Ordinary Shares pursuant to the Cygnus Subscription Agreement for aggregate gross proceeds of $3,000,000. On February 10, 2023, Cygnus sent a termination and subscription notice to HPX and the Company (the “Cygnus Notice”) whereby it elected option (ii) above.
On the Closing Date, the PIPE Investors collectively subscribed for and purchased, and the Company issued and sold to the PIPE Investors, an aggregate of 11,450,000 New PubCo Class A Ordinary Shares for aggregate gross proceeds of $114,500,000 (the “PIPE Financing”). In consideration of the agreements of such PIPE Investors set forth in the Subscription Agreements, the Company issued to the PIPE Investors, on the Closing Date, (i) an aggregate of 2,642,500 New PubCo Warrants (2,280,000 of which being issued to Opportunity Agro Fund) and (ii) an aggregate of 1,873,800 additional New PubCo Class A Ordinary Shares (1,810,000 of which being issued to Opportunity Agro Fund).
The Company also granted certain customary registration rights to Ambipar and the PIPE Investors in connection with the Ambipar PIPE Financing and the PIPE Financing, respectively.
| 2 |
Further, concurrently with the execution of the Business Combination Agreement, certain shareholders of HPX owning, in the aggregate, 600,000 HPX Class A Ordinary Shares (the “Original Non-Redeeming Shareholders”) agreed pursuant to certain Shareholder Non-Redemption Agreements (as amended from time to time, the “Non-Redemption Agreements”) to, among other things, vote those shares in favor of the transactions contemplated in the Business Combination Agreement for which the approval of HPX shareholders is required and agreed not to redeem or exercise any right to redeem any HPX Class A Ordinary Shares that such Original Non-Redeeming Shareholders hold of record or beneficially. The Cygnus Non-Redemption Agreement was terminated pursuant to the Cygnus Notice. In consideration of the agreement described above by the remaining Non-Redeeming Shareholders owning, in the aggregate, 300,000 HPX Class A Ordinary Shares (the “Non-Redeeming Shareholders”), on the Closing Date, the Company issued to such Non-Redeeming Shareholders (i) an aggregate of 75,000 New PubCo Warrants and (ii) an aggregate of 13,200 New PubCo Class A Ordinary Shares.
Similarly, concurrently with the execution of the Business Combination Agreement, Trend HPX SPAC FIA IE, represented by XP Allocation Asset Management Ltda. (the “XP Non-Redeeming Shareholder”), entered into a certain non-redemption agreement with HPX and the Company (the “XP Non-Redemption Agreement”), pursuant to which, among other things, (i) the XP Non-Redeeming Shareholder agreed to vote in favor and not to redeem or exercise any right to redeem any HPX Class A Ordinary Shares of which it was the record and beneficial owner in connection with any extension of the deadline for HPX to complete its initial business combination sought on or prior to July 15, 2022 and (ii) the Company agreed to issue to the XP Non-Redeeming Shareholder one fourth of a New PubCo Warrant and 0.044 New PubCo Class A Ordinary Share, in each case to be issued at or promptly following the Closing, in each case per HPX Class A Ordinary Share (x) held by the XP Non-Redeeming Shareholder at the HPX extraordinary general meeting of shareholders, (y) voted by the XP Non-Redeeming Shareholder in favor of the transactions contemplated in the Business Combination Agreement for which the approval of HPX shareholders was required and (z) not redeemed by the XP Non-Redeeming Shareholder at the HPX extraordinary general meeting of shareholders; provided that the number of New PubCo Warrants, if any, and additional New PubCo Class A Ordinary Shares, if any, issuable to the XP Non-Redeeming Shareholder on or promptly following the Closing Date was limited to an aggregate amount of 325,000 New PubCo Warrants and 57,200 New PubCo Class A Ordinary Shares. On the Closing Date, the Company issued 135,793 New PubCo Warrants and 23,900 New PubCo Class A Ordinary Shares to the XP Non-Redeeming Shareholder.
In addition, each of the PIPE Investors, the Non-Redeeming Shareholders and the XP Non-Redeeming Shareholder (the “DPA Beneficiaries”) has been provided with downside protection rights pursuant to the terms and conditions set forth in the applicable downside protection agreements entered into by and among each such party and the Company, Ambipar and the Sponsor (the “Downside Protection Agreements”). Subject to the terms and conditions of the Downside Protection Agreements, the DPA Beneficiaries may receive, on a pro rata basis, an aggregate of up to 1,050,000 New PubCo Class A Ordinary Shares from the Sponsor or may sell a certain number of their respective New PubCo Class A Ordinary Shares to Ambipar, the Sponsor or to a third party in a block trade, in each case to occur no earlier than 30 months following the Closing; provided that each DPA Beneficiary is only eligible to receive such downside protection if it holds, on each day beginning on the Closing Date and until the 30-month anniversary of the Closing Date (the “DPA Measurement Period”), a number of New PubCo Class A Ordinary Shares representing at least 50% of the number of New PubCo Class A Ordinary Shares held by such DPA Beneficiary immediately after Closing. For the avoidance of doubt, the Company will not issue any New PubCo Ordinary Shares in connection with the Downside Protection Agreements and the transactions contemplated in the Downside Protection Agreements will not have any dilutive effect on holders of New PubCo Ordinary Shares.
Moreover, certain other related agreements have been entered into in connection with the Business Combination, including the Voting and Support Agreement, the Contribution Agreement, the Investor Rights Agreement, the Cost Sharing Agreement and the Trademark Licensing Agreement, each as defined in the Form F-4 (as defined below) under the headings “Summary of the Proxy Statement/Prospectus” and “Proposals to be Considered by HPX’s Shareholders—Business Combination Proposal—Certain Agreements Related to the Business Combination,” which are incorporated herein by reference.
The Business Combination was unanimously approved by HPX’s board of directors and was approved at the extraordinary general meeting of HPX’s shareholders held on February 28, 2023 (the “HPX Extraordinary General Maeeting”). HPX’s shareholders also voted to approve all other proposals presented at the Extraordinary General Meeting. Prior to the Extraordinary General Meeting, HPX shareholders exercised their redemption rights in respect of 1,258,439 HPX Class A Ordinary Shares (the “Final Redemption”). As a result, immediately prior to the Closing Date, there were 2,814,205 HPX Class A Ordinary Shares outstanding.
| 3 |
As a result of the Business Combination, Emergencia has become a wholly-owned subsidiary of the Company. On March 6, 2023, New PubCo Class A Ordinary Shares and New PubCo Warrants commenced trading on the NYSE American LLC, or “NYSE American,” under the symbols “AMBI” and “AMBIWS,” respectively.
Certain amounts that appear in this Shell Company Report on Form 20-F (including information incorporated by reference herein, the “Report”) may not sum due to rounding.
Except as otherwise indicated or required by context, references in this Report to “we,” “us,” “our,” “Company” or “New PubCo” refer to Ambipar Emergency Response, an exempted company incorporated with limited liability in the Cayman Islands, and its consolidated subsidiaries.
| 4 |
Cautionary Note Regarding Forward-Looking Statements
This Report contains or may contain forward-looking statements as defined in Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that involve significant risks and uncertainties. All statements other than statements of historical facts are forward-looking statements. These forward-looking statements include information about our possible or assumed future results of operations or our performance. Words such as “anticipate,” “contemplate,” “appear,” “approximate,” “believe,” “continue,” “could,” “estimate,” “expect,” “foresee,” “intend,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “seek,” “should,” “will,” “would” and variations of such words and similar expressions (or the negative version of such words or expressions) may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. The risk factors and cautionary language referred to or incorporated by reference in this Report provide examples of risks, uncertainties and events that may cause actual results to differ materially from the expectations described in our forward-looking statements, including among other things, the matters identified in the section titled “Risk Factors” of the Company’s Amendment No. 2 of the Registration Statement on Form F-4 (333-268795) filed with the Securities and Exchange Commission (the “SEC”) on January 30, 2023 (the “Form F-4”), which section is incorporated by reference into this Report.
Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this Report. Although we believe that the expectations reflected in such forward-looking statements are reasonable, there can be no assurance that such expectations will prove to be correct. These statements involve known and unknown risks and are based upon a number of assumptions and estimates which are inherently subject to significant uncertainties and contingencies, many of which are beyond our control. Actual results may differ materially from those expressed or implied by such forward-looking statements. Accordingly, forward-looking statements should not be relied upon as representing our views as of any subsequent date, and we do not undertake any obligation to update or revise any forward-looking statements in this Report, or in the documents to which we refer readers in this Report, to reflect any change in our expectations with respect to such statements or any changes in events, conditions or circumstances after the date they were made, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.
| 5 |
Item 1. Identity of Directors, Senior Management and Advisers
| A. | Directors and Senior Management |
The directors and executive officers of the Company upon the consummation of the Business Combination are set forth in the Form F-4 under the heading “New PubCo Management Following the Business Combination,” which information is incorporated herein by reference. The business address for each of the Company’s directors and executive officers is Avenida Angélica, nº 2346, 5th Floor, São Paulo, São Paulo, Brazil, 01228-200.
| B. | Advisors |
Simpson Thacher & Bartlett LLP, Av. Presidente Juscelino Kubitschek, 1455, 12th floor, suite 121, São Paulo, São Paulo, Brazil, 04543-011, has acted as counsel for the Company with respect to New York and U.S. Federal law and will act as counsel for the Company with respect to New York and U.S. Federal law upon and following the consummation of the Business Combination.
Carey Olsen Cayman Limited, PO Box 10008, Willow House, Cricket Square, Grand Cayman KY1-1001, Cayman Islands, has acted as counsel for the Company with respect to Cayman Islands law and will act as counsel to the Company with respect to Cayman Islands law upon and following the consummation of the Business Combination.
| C. | Auditors |
BDO RCS Auditores Independentes SS, Av. José de Souza Campos, 243, 1st floor, Cambuí, Campinas, São Paulo, Brazil, 13025-320, acted as the independent registered public accounting firm for Emergencia and its subsidiaries for each of the two years in the period ended December 31, 2021, and will continue to act as the independent registered public accounting firm of the Company upon and following the consummation of the Business Combination.
Marcum LLP, 730 Third Avenue, 11th Floor, New York, New York, 10017, acted as the independent registered public accounting firm for HPX as of December 31, 2021 and 2020, and for the year ended December 31, 2021 and the period from March 20, 2020 (inception) through December 31, 2020.
Grant Thornton LLP, 1301 International Parkway, Suite 300, Fort Lauderdale, FL 33323, acted as independent certified public accountants for Witt O’Brien’s for the Successor Period April 15, 2021 through December 31, 2021 and the Predecessor Period January 1, 2021 through April 14, 2021 and the Years ended December 31, 2021 and 2020.
Item 2. Offer Statistics and Expected Timetable
Not applicable.
| B. | Capitalization and Indebtedness |
The following table sets forth the capitalization of the Company on an unaudited pro forma combined basis as of June 30, 2022, after giving effect to the Business Combination, the WOB Acquisition, the Ambipar PIPE Financing and the PIPE Financing, and the redemption of (i) 19,472,483 HPX Class A Ordinary Shares in connection with the approval by the HPX extraordinary general meeting of shareholders held on July 14, 2022 of the initial extension of the deadline by which HPX should complete its initial business combination from July 20, 2022 to November 20, 2022 (the “Initial Extension”), (ii) 3,650,973 HPX Class A Ordinary Shares in connection with the approval by the HPX extraordinary general meeting of shareholders held on November 3, 2022 of the second extension of the deadline by which HPX should complete its initial business combination from November 20, 2022 to March 31, 2023 (the “Second Extension”) and (iii) the Final Redemption (collectively, the “HPX Redemptions”).
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| As of June 30, 2022 (pro forma) | (R$ thousands) | |||
| Cash and cash equivalents | 557,943 | |||
| Equity: | ||||
| Ordinary Shares | 242,466 | |||
| Additional paid-in capital | 958,971 | |||
| Foreign currency translation reserve | (71,994 | ) | ||
| Capital Reserves | 78,666 | |||
| Accumulated loss | (148,624 | ) | ||
| Non-controlling interest | 40,173 | |||
| Total equity | 1,099,658 | |||
| Debt: | ||||
| Loans and debentures - current | 51,884 | |||
| Lease liabilities - current | 13,842 | |||
| Total short-term debt | 65,726 | |||
| Loans and debentures - noncurrent | 1,003,608 | |||
| Lease liabilities - noncurrent | 33,969 | |||
| Total long-term debt | 1,037,577 | |||
| Total debt | 1,103,303 | |||
| Total capitalization | 2,202,961 | |||
| C. | Reasons for the Offer and Use of Proceeds |
Not applicable.
| D. | Risk Factors |
The risk factors associated with the Company are described in the Form F-4 under the heading “Risk Factors,” which information is incorporated herein by reference.
Item 4. Information on the Company
| A. | History and Development of the Company |
The Company is an exempted company incorporated with limited liability under the laws of the Cayman Islands on May 3, 2022 for the purpose of effectuating the Business Combination described herein and became the parent company of the combined business following the consummation of the Business Combination. The history and development of the Company and the material terms of the Business Combination are described in the Form F-4 under the headings “Summary of the Proxy Statement/Prospectus,” “Business Combination Proposal,” “The Business Combination Agreement,” “Description of New PubCo Share Capital” and “Description of New PubCo Warrants,” which are incorporated herein by reference. For further information, see also “Explanatory Note” above.
The Company owns no material assets other than its interests in its wholly-owned subsidiary, Emergencia. In addition, the Company does not operate any business other than through Emergencia. Emergencia is a sociedade anônima organized under the laws of Brazil.
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The Company’s registered office is c/o CO Services Cayman Limited, P.O. Box 10008, Willow House, Cricket Square, Grand Cayman, KY1-1001, Cayman Islands. It is the intention that, in the longer term, the affairs of the Company will be conducted so that the central management and control of the Company is exercised in Brazil with its principal executive office located at Avenida Angélica, 2346, 5th Floor, São Paulo, São Paulo, Brazil, 01228-200 and its telephone number +55 (11) 3429-5000. The Company’s principal website address is http://www.ir.response.ambipar.com. We do not incorporate the information contained on, or accessible through, the Company’s websites into this Report, and you should not consider it a part of this Report. The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. The SEC’s website is http://www.sec.gov.
| B. | Business Overview |
Prior to the Business Combination, the Company did not conduct any material activities other than those incidental to its formation and the matters contemplated by the Business Combination Agreement, such as the making of certain required securities law filings. Following and as a result of the Business Combination, all of the Company’s business is conducted through Emergencia and its subsidiaries. A description of Emergencia’s business is included in the Form F-4 under the headings “Business of Emergencia” and “Management’s Discussion and Analysis of Financial Condition and Results of Operation of Emergencia,” which are incorporated herein by reference.
| C. | Organizational Structure |
Upon consummation of the Business Combination, Emergencia has become a wholly-owned subsidiary of the Company. The organizational chart of the Company is included in the Form F-4 under the heading “The Business Combination Agreement—Structure—Post-Business Combination Structure” and is incorporated herein by reference.
| D. | Property, Plants and Equipment |
The Company’s property, plants and equipment are held through Emergencia and its subsidiaries. Information regarding Emergencia’s property, plants and equipment is described in the Form F-4 under the heading “Business of Emergencia—Properties,” which information is incorporated herein by reference.
Item 4A. Unresolved Staff Comments
None / Not applicable.
Item 5. Operating and Financial Review and Prospects
Following and as a result of the Business Combination, all of the Company’s business is conducted through Emergencia and its subsidiaries. The discussion and analysis of the financial condition and results of operation of Emergencia is included in the Form F-4 under the heading “Management’s Discussion and Analysis of Financial Condition and Results of Operation of Emergencia,” which information is incorporated herein by reference.
Additional information about Emergencia’s preliminary results for the nine months ended September 30, 2022 is set forth in the Form F-4, in the section “Summary of the Proxy Statement/Prospectus — Recent Developments— Emergencia’s Preliminary Results for the Nine Months Ended September 30, 2022,” which is incorporated herein by reference.
Item 6. Directors, Senior Management and Employees
| A. | Directors and Senior Management |
The directors and senior management upon the consummation of the Business Combination are set forth in the Form F-4 under the heading “New PubCo Management Following the Business Combination,” which information is incorporated herein by reference.
| 8 |
| B. | Compensation |
Information pertaining to the compensation of the directors and executive officers of the Company is set forth in the Form F-4 under the heading “Executive Compensation,” which information is incorporated herein by reference.
| C. | Board Practices |
Information pertaining to the Company’s board practices is set forth in the Form F-4 under the heading “New PubCo Management Following the Business Combination,” which information is incorporated herein by reference.
| D. | Employees |
Following and as a result of the Business Combination, all of the Company’s business is conducted through Emergencia and its subsidiaries. Information pertaining to Emergencia’s employees is set forth in the Form F-4 under the heading “Business of Emergencia—Our People,” which information is incorporated herein by reference.
| E. | Share Ownership |
Ownership of the Company’s shares by its directors and executive officers upon consummation of the Business Combination is set forth in Item 7.A of this Report.
| F. | Disclosure of a registrant’s action to recover erroneously awarded compensation. |
None / Not applicable.
Item 7. Major Shareholders and Related Party Transactions
| A. | Major Shareholders |
The following table sets forth information regarding the actual beneficial ownership of New PubCo Ordinary Shares as of March 3, 2023 by:
| · | each person known by us to beneficially own more than 5% of the issued and outstanding New PubCo Ordinary Shares; |
| · | each of our directors and executive officers; and |
| · | all our directors and executive officers as a group. |
Beneficial ownership is determined according to the rules of the SEC, which generally provide that a person has beneficial ownership of a security if he, she or it possesses sole or shared voting or investment power over that security, including options and warrants that are currently exercisable or exercisable within 60 days. Such securities, however, are deemed to be outstanding only for the purpose of computing the percentage beneficial ownership of that person but are not deemed to be outstanding for the purpose of computing the percentage beneficial ownership of any other person. Under these rules, more than one person may be deemed to be a beneficial owner of the same securities.
As of the date hereof, there are 16,175,105 New PubCo Class A Ordinary Shares, 39,234,746 New PubCo Class B Ordinary Shares, 16,180,000 New PubCo Warrants and 20,000 New PubCo Restricted Stock Units issued and outstanding. Pursuant to our Amended and Restated Memorandum and Articles of Association, each holder of New PubCo Class A Ordinary Shares is entitled to one vote per share and each holder of New PubCo Class B Ordinary Shares is entitled to 10 votes per share on all matters submitted to them for a vote on all New PubCo Ordinary Shares voting together as a single class. The New PubCo Warrants, which entitle the holder to purchase one New PubCo Class A Ordinary Share at an exercise price of $11.50 per share, will become exercisable on April 2, 2023, which is 30 days after the completion of the Business Combination. The New PubCo Restricted Stock Units vested at Closing and represent 20,000 non-redeemable New PubCo Class A Ordinary Shares that will settle on a date as soon as practicable following vesting but in no event more than 30 days after vesting.
The expected beneficial ownership percentages set forth below do not take into account up to 11,000,000 Earn-Out Shares that may be issued to Ambipar, but do take into account the New PubCo Class A Ordinary shares underlying the New PubCo Warrants, which are exercisable within 30 days after the Closing Date.
Unless otherwise indicated, we believe that all persons named in the table below have sole voting and investment power with respect to all securities beneficially owned by them.
| 9 |
| Class A Ordinary Shares | Class B Ordinary Shares | Total Ordinary Shares | Total Voting Power | |||||||||||||||||||||
| Beneficial Owner | Number | Percentage | Number | Percentage | Percentage | Percentage | ||||||||||||||||||
| Principal Shareholders: | ||||||||||||||||||||||||
| Ambipar Participações e Empreendimentos S.A.(1) | — | — | 39,234,746 | 100 | % | 70.8 | % | 96.0 | % | |||||||||||||||
| Opportunity Agro Fundo de Investimento em Participações Multiestratégia Investimento no Exterior(2) | 14,090,000 | 76.3 | % | — | — | 24.4 | % | 3.4 | % | |||||||||||||||
| Directors and Executive Officers:(3) | ||||||||||||||||||||||||
| Tércio Borlenghi Junior(1) | — | — | 22,049,927 | 56.2 | % | 39.8 | % | 54.0 | % | |||||||||||||||
| Izabel Cristina Andriotti Cruz de Oliveira | — | — | — | — | — | — | ||||||||||||||||||
| Alessandra Bessa Alves de Melo | — | — | — | — | — | — | ||||||||||||||||||
| Thiago da Costa Silva | — | — | — | — | — | — | ||||||||||||||||||
| Mariana Loyola Ferreira Sgarbi | — | — | — | — | — | — | ||||||||||||||||||
| Carlos Piani(4) | 837,602 | 5.1 | % | — | — | 1.5 | % | 0.2 | % | |||||||||||||||
| Victor Almeida | — | — | — | — | — | — | ||||||||||||||||||
| Yuri Keiserman | — | — | — | — | — | — | ||||||||||||||||||
| Rafael Espírito Santo | — | — | — | — | — | — | ||||||||||||||||||
| Guilherme Patini Borlenghi | — | — | — | — | — | — | ||||||||||||||||||
| Pedro Petersen | — | — | — | — | — | — | ||||||||||||||||||
| All directors and executive officers as a group (11 individuals) | 837,602 | 5.1 | % | 22,049,927 | 56.2 | % | 41.1 | % | 54.1 | % | ||||||||||||||
___________________
| (1) | Ambipar Participações e Empreendimentos S.A. (“Ambipar”) is the record holder of the New PubCo Class B Ordinary Shares reported herein, which carry voting rights in the form of 10 votes per New PubCo Class B Ordinary Share, and is controlled by Mr. Tércio Borlenghi Junior, chairman of our board of directors, who by virtue of his control may be deemed to beneficially own shares held by Ambipar. Ambipar will be issued up to an additional 11,000,000 newly issued New PubCo Class B Ordinary Shares (the “Earn-Out Shares”), as follows: (i) if at any time during the three-year period following the Closing Date, the closing share price of the New PubCo Class A Ordinary Shares is greater than or equal to $17.00 over any 20 trading days within any consecutive 30 trading day period, 50% of the Earn-Out Shares will be issued; and (ii) if at any time during the three-year period following the Closing Date, the closing share price of the New PubCo Class A Ordinary Shares is greater than or equal to $20.00 over any 20 trading days within any consecutive 30 trading day period, the remaining 50% of the Earn-Out Shares will be issued. The business address of Ambipar is Avenida Angélica, nº 2346, 5th Floor, São Paulo — SP, Brazil, 01228-200. |
| (2) | Represents (i) 11,810,000 issued and outstanding New PubCo Class A Ordinary Shares and (ii) 2,280,000 New PubCo Class A Ordinary Shares underlying the 2,280,000 New PubCo Warrants beneficially owned by Opportunity Agro Fundo de Investimento em Participações Multiestratégia Investimento no Exterior (“Opportunity Agro Fund”). Opportunity Agro Fund is managed by Opportunity Private Equity Gestora de Recursos Ltda., a leading fund manager in Brazil, which has discretionary management and voting power over the shares held by Opportunity Agro Fund and is managed by, among other officers, Eduardo de Britto Pereira Azevedo and Leonardo Guimarães Pinto. The business address of Opportunity Private Equity Gestora de Recursos Ltda. is Rua Visconde de Pirajá, 351, 14th floor (part), Ipanema, Rio de Janeiro — RJ, Brazil, 22410-906. |
| (3) | Unless otherwise noted, the business address of the directors and executive officers of the Company is Avenida Angélica, nº 2346, 5th Floor, São Paulo — SP, Brazil, 01228-200. |
| (4) | HPX Capital Partners LLC (the “Sponsor”) is the record holder of the (i) 612,033 issued and outstanding New PubCo Class A Ordinary Shares and (ii) 225,569 New PubCo Class A Ordinary Shares underlying 225,569 New PubCo Warrants reported herein, which represent one-third of the total New PubCo Class A Ordinary Shares and New PubCo Warrants, respectively, held of record by the Sponsor. Mr. Carlos Piani, who is an independent director of our board and member of our audit committee, indirectly exercises the sole investment and voting power over his one-third interest in the securities held of record by the Sponsor and, therefore, may be deemed to have sole investment and voting power over such securities. Mr. Piani disclaims beneficial ownership of any other securities held of record by the Sponsor. |
| B. | Related Party Transactions |
Information pertaining to the Company’s related party transactions is set forth in the Form F-4, in the sections entitled “Certain HPX Relationships and Related Person Transactions” and “Certain Emergencia Relationships and Related Person Transactions,” which are incorporated herein by reference.
| C. | Interests of Experts and Counsel |
None / Not applicable.
| 10 |
| A. | Consolidated Statements and Other Financial Information |
Financial Statements
The financial statements of Emergencia, HPX and Witt O’Brien’s, LLC have been filed as part of the Form F-4 and are incorporated herein by reference. See Item 18 “Financial Statements.”
Pro Formas
The unaudited pro forma condensed combined financial information of Emergencia and HPX is attached as Exhibit 15.1 to this Report. See Item 18 “Financial Statements.”
Legal Proceedings
Legal or arbitration proceedings are described in the Form F-4 under the headings “Business of HPX—Legal Proceedings” and “Business of Emergencia—Legal and Administrative Proceedings,” which are incorporated herein by reference.
Dividend Policy
The Company has not adopted a dividend policy with respect to payments of any future dividends by it. The Company has no current plans to pay dividends. The declaration, amount and payment of any future dividends on the New PubCo Ordinary Shares will be at the sole discretion of the Company’s board of directors. The Company’s board of directors may take into account general and economic conditions, the Company’s financial condition and results of operations, its available cash and current and anticipated cash needs, capital requirements, contractual, legal, tax and regulatory restrictions and implications on the payment of dividends by the Company to its shareholders or by the Company’s subsidiaries to it and such other factors as the Company’s board of directors may deem relevant. In addition, the Company’s ability to pay dividends is limited by the deeds governing the debentures issued by Emergencia and certain financing agreements and may be limited by covenants of other indebtedness the Company or its subsidiaries incur in the future. As a result, you may not receive any return on an investment in the New PubCo Ordinary Shares unless you sell your the New PubCo Ordinary Shares for a price greater than that which you paid for it.
| B. | Significant Changes |
None / Not applicable.
| A. | Offer and Listing Details |
New PubCo Class A Ordinary Shares and New PubCo Warrants are listed on the NYSE American under the symbols “AMBI” and “AMBIWS”, respectively. Holders of New PubCo Class A Ordinary Shares and New PubCo Warrants should obtain current market quotations for their securities.
A description of the Company’s securities is set forth in the Form F-4, in the sections entitled “Description of New PubCo Share Capital” and “Description of New PubCo Warrants,” which are incorporated herein by reference.
Information regarding the lock-up restrictions applicable to the New PubCo Ordinary Shares and New PubCo Warrants held by certain Company’s shareholders is included in the Form F-4 under the heading “Shares Eligible for Future Sale—Lock-Ups” and is incorporated herein by reference.
| 11 |
| B. | Plan of Distribution |
Not applicable.
| C. | Markets |
Information related to markets is set forth in “Item 9.A. Offer and Listing Details” of this Report.
| D. | Selling Shareholders |
Not applicable.
| E. | Dilution |
Not applicable.
| F. | Expenses of the Issue |
Not applicable.
Item 10. Additional Information
| A. | Share Capital |
The Company’s authorized share capital is US$50,000, consisting of 500,000,000 shares of a nominal or par value of US$0.0001 each, which is comprised of: (i) 250,000,000 New PubCo Class A Ordinary Shares; (ii) 150,000,000 New PubCo Class B Ordinary Shares (which New PubCo Class B Ordinary Shares may be converted into New PubCo Class A Ordinary Shares in the manner contemplated in the Company’s Amended and Restated Articles of Association (the “Articles”)); and (iii) 100,000,000 shares of such class or classes (howsoever designated) and having the rights as the board may determine from time to time in accordance with the Company’s Articles.
As of the date hereof, subsequent to the closing of the Business Combination, there are 16,175,105 New PubCo Class A Ordinary Shares and 39,234,746 New PubCo Class B Ordinary Shares issued and outstanding, as well as 20,000 New PubCo Restricted Stock Units issued and outstanding. There are also 16,180,000 New PubCo Warrants outstanding, each whole warrant to become exercisable on April 2, 2023, which is 30 days after the completion of the Business Combination, at US$11.50 per one New PubCo Class A Ordinary Share, of which 12,650,000 are public warrants (the “New PubCo Public Warrants”) listed on NYSE American and 3,530,000 are private placement warrants (the “New PubCo Private Warrants”) held by the Sponsor, the PIPE Investors, the Non-Redeeming Shareholders and the XP Non-Redeeming Shareholder.
In addition to the issued and outstanding New PubCo Ordinary Shares, the Company may issue up to an additional 11,000,000 Earn-Out Shares to Ambipar. For additional information, see the section entitled “Explanatory Note” of this Report.
Additional information regarding the Company’s securities is set forth in the Form F-4 in the sections entitled “Description of New PubCo Share Capital” and “Description of New PubCo Warrants,” which are incorporated herein by reference.
| B. | Memorandum and Articles of Association |
The Company’s Articles, effective as of March 3, 2023, are filed as Exhibit 1.1 to this Report.
The description of the Articles is set forth in the Form F-4 in the section entitled “Description of New PubCo Share Capital,” which is incorporated herein by reference.
| 12 |
| C. | Material Contracts |
Material Contracts Relating to the Company’s Operations
Following and as a result of the Business Combination, all of the Company’s business is conducted through Emergencia and its subsidiaries. Information pertaining to Emergencia’s material contracts is set forth in the Form F-4 under the headings “Management’s Discussion and Analysis of Financial Condition and Results of Operations of Emergencia—Loans and financing and debenture,” “Business of Emergencia,” “Risk Factors—Risks Relating to Emergencia’s Business and Industry” and “Certain Emergencia Relationships and Related Party Transactions,” each of which is incorporated herein by reference.
Material Contracts Relating to the Business Combination
Business Combination Agreement
The description of the Business Combination Agreement is set forth in the Form F-4, in the section entitled “The Business Combination Agreement,” which information is incorporated herein by reference
Related Agreements
The description of the material provisions of certain additional agreements entered into pursuant to the Business Combination Agreement is set forth in the Form F-4 in the section entitled “Certain Agreements Related to the Business Combination,” which information is incorporated herein by reference.
| D. | Exchange Controls |
There are no governmental laws, decrees, regulations or other legislation in the Cayman Islands that may affect the import or export of capital, including the availability of cash and cash equivalents for use by the Company, or that may affect the remittance of dividends, interest, or other payments by the Company to non-resident holders of New PubCo Ordinary Shares. There is no limitation imposed by laws of Cayman Islands or in the Company’s Articles on the right of non-residents to hold or vote New PubCo Ordinary Shares.
| E. | Taxation |
Information pertaining to tax considerations is set forth in the Form F-4, in the sections entitled “U.S. Federal Income Tax Considerations” and “Cayman Islands Tax Considerations,” which are incorporated herein by reference.
| F. | Dividends and Paying Agents |
Information regarding dividend payment is set forth in the Form F-4 , in the sections entitled “Description of New PubCo Share Capital —Shares—Dividends,” “U.S. Federal Income Tax Considerations—U.S. Federal Income Tax Considerations of Owning New PubCo Class A Ordinary Shares and New PubCo Warrants—Taxation of Dividends and Other Distributions on New PubCo Class A Ordinary Shares” and “Cayman Islands Tax Considerations,” which are incorporated herein by reference. The Company has not paid any cash dividends on New PubCo Ordinary Shares since the Business Combination and currently has no plan to pay cash dividends on such securities in the foreseeable future. The Company has not identified a paying agent.
| G. | Statement by Experts |
The combined financial statements of Emergencia as of December 31, 2021, December 31, 2020 and January 1, 2020 and for each of the two years in the period ended December 31, 2021 incorporated in this Report by reference to the Form F-4 have been so incorporated in reliance on the report of BDO RCS Auditores Independentes SS, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting. BDO RCS Auditores Independentes S.S. is a member of the Brazilian Institute of Independent Accountants (Instituto dos Auditores Independentes do Brasil), or Ibracon, and the Brazilian Federal Accounting Council (Conselho Federal de Contabilidade), or the CFC.
| 13 |
The financial statements of HPX Corp. as of December 31, 2021 and 2020, and for the year ended December 31, 2021 and the period from March 20, 2020 (inception) through December 31, 2020 incorporated in this Report by reference to the Form F-4 have been so incorporated in reliance on the report of Marcum LLP, independent registered public accounting firm, as set forth in their report thereon (which contains an explanatory paragraph relating to substantial doubt about the ability of HPX Corp. to continue as a going concern as described in Note 1 to the financial statements), given upon the authority of said firm as experts in auditing and accounting.
The audited consolidated financial statements of Witt O’Brien’s, LLC for the Successor Period April 15, 2021 through December 31, 2021 and the Predecessor Period January 1, 2021 through April 14, 2021 and the Years ended December 31, 2021 and 2020 incorporated in this Report by reference to the Form F-4 have been so incorporated in reliance on the report of Grant Thornton LLP, independent certified public accountants, upon the authority of said firm as experts in accounting and auditing.
| H. | Documents on Display |
The Company is subject to certain of the informational filing requirements of the Exchange Act. As a foreign private issuer, the Company is not subject to all of the disclosure requirements applicable to public companies organized within the United States. For example, the Company is exempt from certain rules and regulations under the Exchange Act that regulate disclosure obligations and procedural requirements related to the solicitation of proxies, consents or authorizations applicable to a security registered under the Exchange Act, including the U.S. proxy rules under Section 14 of the Exchange Act. In addition, the Company’s officers, directors and principal shareholders are exempt from the reporting and “short-swing” profit recovery provisions of Section 16 of the Exchange Act and related rules with respect to their purchases and sales of the Company’s securities. Moreover, the Company is not required to file periodic reports and financial statements with the SEC as frequently or as promptly as U.S. public companies and will not be required to file quarterly reports on Form 10-Q or current reports on Form 8-K under the Exchange Act. However, the Company is required to file with the SEC an Annual Report on Form 20-F containing financial statements audited by an independent accounting firm. The Company may, but is not required, to furnish to the SEC, on Form 6-K, unaudited financial information after each of the Company’s first three fiscal quarters. The SEC maintains a website at http://www.sec.gov that contains reports and other information that the Company files with or furnishes electronically with the SEC. You may read and copy any report or document the Company files, including the exhibits, at the SEC’s public reference room located at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room.
| I. | Subsidiary Information |
Not applicable.
| J. | Annual Report to Security Holders |
Not applicable.
Item 11. Quantitative and Qualitative Disclosures About Market Risk
The information set forth in the section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operation of Emergencia—Quantitative and Qualitative Disclosure About Market Risk” in the Form F-4 is incorporated herein by reference.
Item 12. Description of Securities Other than Equity Securities
Warrants
Upon the completion of the Business Combination, there were 12,650,000 New PubCo Public Warrants outstanding. The New PubCo Public Warrants, which entitle the holder to purchase one New PubCo Ordinary Share at an exercise price of $11.50 per share, will become exercisable on April 2, 2023, which is 30 days after the completion of the Business Combination. The New PubCo Public Warrants will expire on March 3, 2028 (i.e., five years after the completion of the Business Combination) or earlier upon redemption or liquidation in accordance with their terms.
| 14 |
Upon the completion of the Business Combination, there were also 3,530,000 New PubCo Private Warrants held by the Sponsor, the PIPE Investors, the Non-Redeeming Shareholders and the XP Non-Redeeming Shareholder. The New PubCo Private Warrants are identical to the New PubCo Public Warrants in all material respects, except that the New PubCo Private Warrants, so long as they are held by the Sponsor or its permitted transferees, (i) subject to certain limited exceptions, are not redeemable by the Company, (ii) may not, subject to certain limited exceptions, be transferred, assigned or sold by the holders until April 2, 2023, which is 30 days after the completion of the Business Combination, (iii) may be exercised by the holders on a cashless basis and (iv) are entitled to registration rights.
Additional information on the New PubCo Warrants is set forth in the Form F-4, in the section entitled “Description of New PubCo Warrants,” which is incorporated herein by reference.
Not applicable.
Not applicable.
The audited financial statements of HPX Corp. as of December 31, 2021 and 2020, and for the year ended December 31, 2021 and for the period from March 20, 2020 (inception) through December 31, 2020, in the Form F-4 between pages F-3 and F-22 are incorporated herein by reference.
The unaudited condensed financial statements of HPX Corp. as of June 30, 2022 and for the three and six months ended June 30, 2022 and 2021, in the Form F-4 between pages F-23 and F-45 are incorporated herein by reference.
The unaudited condensed financial statements of HPX Corp as of September 30, 2022 and for the three and nine months ended September 30, 2022 and 2021, in the Form F-4 between pages F-46 and F-71 are incorporated herein by reference.
The audited combined financial statements of Emergência Participações S.A. as of December 31, 2021, December 31, 2020 and January 1, 2020 and for the years ended December 31, 2021 and 2020, in the Form F-4 between pages F-72 and F-151 are incorporated herein by reference.
The unaudited interim condensed consolidated financial statements of Emergência Participações S.A. as of June 30, 2022 and for the six months ended June 30, 2022 and 2021, in the Form F-4 between pages F-151 and F-223 are incorporated herein by reference.
The audited consolidated financial statements of Witt O’Brien’s, LLC for the successor period April 15, 2021 through December 31, 2021 and the predecessor period January 1, 2021 through April 14, 2021 and the year ended December 31, 2020, in the Form F-4 between pages F-224 and F-240 are incorporated herein by reference.
The unaudited condensed consolidated financial statements of Witt O’Brien’s, LLC as of June 30, 2022 and for the six months ended June 30, 2022 and 2021, in the Form F-4 between pages F-241 and F-250 are incorporated herein by reference.
| 15 |
The unaudited pro forma condensed combined financial information of Emergencia and HPX is attached as Exhibit 15.1 to this Report.
| 16 |
| 17 |
| * | Filed herewith |
| # | Certain schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company will furnish supplementally copies of omitted schedules and exhibits to the Securities and Exchange Commission or its staff upon its request. |
| 18 |
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this Report on its behalf.
| March 7, 2023 | AMBIPAR EMERGENCY RESPONSE | |
| By: | /s/ Thiago da Costa Silva | |
| Name: | Thiago da Costa Silva | |
| Title: | Director | |
| 19 |
Exhibit 1.1
THE COMPANIES ACT (AS REVISED)
EXEMPTED COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
AMBIPAR EMERGENCY RESPONSE
(adopted by Special Resolution passed on February 27, 2023 and effective on March 3, 2023)
THE COMPANIES ACT (AS REVISED)
EXEMPTED COMPANY LIMITED BY SHARES
AMENDED AND RESTATED MEMORANDUM OF ASSOCIATION
OF
AMBIPAR EMERGENCY RESPONSE
(adopted by Special Resolution passed on February 27, 2023 and effective on March 3, 2023)
| 1. | The name of the Company is Ambipar Emergency Response. |
| 2. | The Company is an exempted company limited by shares. |
| 3. | The registered office of the Company shall be at the offices of CO Services Cayman Limited, P.O. Box 10008, Willow House, Cricket Square, Grand Cayman, KY1-1001, Cayman Islands, or at such other place within the Cayman Islands as the Directors may decide. |
| 4. | Subject to the following provisions of this Memorandum, the objects for which the Company is established are unrestricted. |
| 5. | Subject to the following provisions of this Memorandum, the Company shall have and be capable of exercising all the functions of a natural person of full capacity irrespective of any question of corporate benefit, as provided by Section 27(2) of the Companies Act. |
| 6. | Nothing in this Memorandum shall permit the Company to carry on a business for which a licence is required under the laws of the Cayman Islands unless duly licensed. |
| 7. | The Company shall not trade in the Cayman Islands with any person, firm or corporation except in furtherance of the business of the Company carried on outside the Cayman Islands; provided that nothing in this clause shall be construed as to prevent the Company effecting and concluding contracts in the Cayman Islands, and exercising in the Cayman Islands all of its powers necessary for the carrying on of its business outside the Cayman Islands. |
| 8. | The liability of each Member is limited to the amount from time to time unpaid on such Member’s shares. |
| 9. | The share capital of the Company is US$50,000 divided into 500,000,000 shares of a nominal or par value of US$0.0001 each which, at the date on which this Memorandum becomes effective, comprise (i) 250,000,000 Class A Ordinary Shares; (ii) 150,000,000 Class B Ordinary Shares (which Class B Ordinary Shares may be converted into Class A Ordinary Shares in the manner contemplated in the Articles of Association of the Company); and (iii) 100,000,000 shares of such class or classes (howsoever designated) and having the rights as the Board may determine from time to time in accordance with Article 4 of the Articles of Association of the Company, PROVIDED THAT, subject to the Law and the Articles of Association, the Company shall have the power to issue all or any part of its capital, whether original, redeemed, increased or reduced, with or without any preference, priority, special privilege or other rights or subject to any postponement of rights or to any condition or restriction whatsoever and so that, unless the conditions of issue shall otherwise expressly provide, every issue of shares, whether stated to be common, preference or otherwise shall be subject to the powers on the part of the Company hereinbefore provided. |
| 10. | The Company may exercise the power contained in the Law to deregister in the Cayman Islands and be registered by way of continuation in another jurisdiction. |
| 11. | Capitalised terms that are not defined in this Memorandum of Association bear the meaning given in the Articles of Association of the Company. |
| 12. | The financial year end of the Company is 31 December or such other date as the Directors may from time to time decide and annex to this Memorandum. |
1
THE COMPANIES ACT (AS REVISED)
EXEMPTED COMPANY LIMITED BY SHARES
AMENDED AND RESTATED ARTICLES OF ASSOCIATION
OF
AMBIPAR EMERGENCY RESPONSE
(adopted by Special Resolution passed on February 27, 2023 and effective on March 3, 2023)
| 1. | Preliminary |
1.1 The regulations contained in Table A in the First Schedule of the Law shall not apply to the Company and the following regulations shall be the Articles of Association of the Company.
1.2 In these Articles:
(a) the following terms shall have the meanings set opposite if not inconsistent with the subject or context:
“Allotment” shares are taken to be allotted when a person acquires the unconditional right to be included in the Register of Members in respect of those shares;
“Affiliate” in respect of a Person, means any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person, and (i) in the case of a natural person, shall include, without limitation, such person’s spouse, parents, children, siblings, mother-in-law and father-in-law and brothers and sisters-in-law, whether by blood, marriage or adoption or anyone residing in such person’s home, a trust for the benefit of any of the foregoing, a company, partnership or any natural person or entity wholly or jointly owned by any of the foregoing, and (ii) in the case of an entity, shall include a partnership, a corporation or any natural person or entity which directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity;
“Ambipar” means Ambipar Participações e Empreendimentos S.A., a sociedade anônima organised under the laws of Brazil
“Articles” these articles of association of the Company as from time to time amended by Special Resolution;
“Audit Committee” the audit committee of the Company formed by the Board pursuant to Article 24 hereof, or any successor of the audit committee;
“Board or Board of Directors” the board of directors of the Company;
“Business Combination” a statutory amalgamation, merger, consolidation, arrangement or other reorganization requiring the approval of the members of one or more of the participating companies as well as a short-form merger or consolidation that does not require a resolution of members;
“Business Combination Agreement” means that certain business combination agreement entered into as of July 5, 2022 (as amended, modified, supplemented or waived from time to time in accordance with its terms) among the Company, Ambipar, HPX Corp., an exempted company incorporated with limited liability in the Cayman Islands and other parties named therein.
“Chairman” the chairman of the Board of Directors appointed in accordance with Article 20.2;
“Class A Ordinary Shares” class A ordinary shares of a nominal or par value of US$0.0001 each in the capital of the Company having the rights provided for in these Articles;
“Class B Ordinary Shares” class B ordinary shares of a nominal or par value of US$0.0001 each in the capital of the Company having the rights provided for in these Articles;
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“Clear days” in relation to a period of notice means that period excluding both the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect;
“Clearing House” a clearing house recognised by the laws of the jurisdiction in which shares in the capital of the Company (or depository receipts thereof) are listed or quoted on a stock exchange or interdealer quotation system in such jurisdiction;
“Company” the above named company;
“Company’s Website” the website of the Company and/or its web-address or domain name;
“Compensation Committee” the compensation committee of the Company that may be formed by the Board pursuant to Article 24 hereof, or any successor of the compensation committee;
“Control” the ownership, directly or indirectly, of shares possessing more than fifty per cent (50%) of the voting power of the corporation, partnership or other entity (other than, in the case of a corporation, shares having such power only by reason of the happening of a contingency), or having the power to control the management or elect a majority of members to the board of directors or equivalent decision-making body of such corporation, partnership or other entity;
“Designated Stock Exchange” the New York Stock Exchange and any other stock exchange or interdealer quotation system listed in Schedule 4 of the Law on which shares in the capital of the Company are listed or quoted;
“Directors” the Directors for the time being of the Company or, as the case may be, those Directors assembled as a Board or as a committee of the Board;
“Dividend” includes a distribution or interim dividend or interim distribution;
“Electronic” has the same meaning as in the Electronic Transactions Act (as revised);
“Electronic Communication” a communication sent by electronic means, including electronic posting to the Company’s Website, transmission to any number, address or internet website (including the SEC’s website) or other electronic delivery methods as otherwise decided and approved by the Board;
“Electronic Record” has the same meaning as in the Electronic Transactions Act (as revised);
“Electronic Signature” has the same meaning as in the Electronic Transactions Act (as revised);
“Exchange Act” the Securities Exchange Act of 1934, as amended of the United States of America;
“Executed” includes any mode of execution;
“Holder” in relation to any share, the Member whose name is entered in the Register of Members as the holder of the share;
“Incentive Plan” any incentive plan or scheme established or implemented by the Company pursuant to which any Person who provides services of any kind to the Company or any of its direct or indirect subsidiaries (including, without limitation, any employee, executive, officer, director, consultant, secondee or other provider of services) may receive and/or acquire newly-issued shares of the Company or any interest therein;
“Indemnified Person” every Director, alternate Director, Secretary or other officer for the time being or from time to time of the Company;
“Independent Director” a Director who is an independent director as defined in the rules of any Designated Stock Exchange or in Rule 10A-3 under the Exchange Act, as the case may be;
“Investor Rights Agreement” means that investor rights agreement entered into as of July 5, 2022 (as amended, modified, supplemented or waived from time to time in accordance with its terms) among the Company, Ambipar, Sponsor and certain other parties named therein.
“Islands” the British Overseas Territory of the Cayman Islands;
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“Law” the Companies Act (as revised);
“Member” has the same meaning as in the Law;
“Memorandum” the memorandum of association of the Company as from time to time amended;
“Month” a calendar month;
“Nominating and Corporate Governance Committee” the nominating and corporate governance committee of the Company that may be formed by the Board pursuant to Article 24 hereof, or any successor of the nominating and corporate governance committee;
“Officer” includes a Director and any Secretary;
“Opportunity” means, collectively, (i) Opportunity Agro Fundo de Investimento em Participações Multiestratégia Investimento no Exterior, and (ii) any Affiliates of such entity;
“Opportunity Director” means a Director appointed by Opportunity pursuant to and in accordance with the provisions of the Articles;
“Ordinary Resolution” a resolution (i) of a duly constituted general meeting of the Company passed by a simple majority of the votes cast by, or on behalf of, the Members entitled to vote present in person or by proxy and voting at the meeting, or (ii) approved in writing by all of the Members entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Members and the effective date of the resolution so adopted shall be the date on which the instrument, or the last of such instruments, if more than one, is executed;
“Ordinary Shares” Class A Ordinary Shares, Class B Ordinary Shares and shares of such other classes as may from time to time be designated by the Board pursuant to these Articles as being ordinary shares for the purposes of Article 5.2;
“Other Indemnitors” persons or entities other than the Company that may provide indemnification, advancement of expenses and/or insurance to the Indemnified Persons in connection with such Indemnified Persons’ involvement in the management of the Company;
“Paid up” paid up as to the par value of the shares and includes credited as paid up;
“Person” any individual, corporation, general or limited partnership, limited liability company, joint stock company, joint venture, estate, trust, association, organisation or any other entity or governmental entity;
“PIPE Subscription Agreement” means those certain subscription agreements (including any amendments, side letters or other supplements thereto), entered into on or prior to July 5, 2022, pursuant to which certain investors agreed to purchase Class A Ordinary Shares;
“Register of Members” the register of Members required to be kept pursuant to the Law;
“Seal” the common seal of the Company including every duplicate seal;
“SEC” the Securities and Exchange Commission of the United States of America or any other federal agency for the time being administering the Securities Act;
“Secretary” any person appointed by the Directors to perform any of the duties of the secretary of the Company, including a joint, assistant or deputy secretary;
“Securities Act” the Securities Act of 1933 of the United States of America, as amended, or any similar federal statute and the rules and regulations of the SEC thereunder, all as the same shall be in effect at the time;
“Share” a share in the share capital of the Company, and includes stock (except where a distinction between shares and stock is expressed or implied) and includes a fraction of a share;
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“Signed” includes an electronic signature or a representation of a signature affixed by mechanical means;
“Special Resolution” has the same meaning as in the Law (thus requiring a two-thirds majority of the votes cast by, or on behalf of, the Members entitled to vote present in person or by proxy and voting at the meeting) and includes a unanimous written resolution of all Members entitled to vote and expressed to be a special resolution;
“Sponsor” means, collectively, (i) HPX Capital Partners LLC, and (ii) any Affiliates of HPX Capital Partners LLC;
“Sponsor Director” means a Director appointed by the Sponsor pursuant to and in accordance with the provisions of the Articles;
“Subsidiary” a Person is a subsidiary of another Person if that other Person: (i) holds a majority of the voting rights in it; (ii) is a member of it and has the right to appoint or remove a majority of its board of directors or equivalent governing body; or (iii) is a member of it and controls alone, pursuant to an agreement with other members, a majority of the voting rights in it; or if it is a Subsidiary of a Person which is itself a Subsidiary of that other Person;
“Treasury Share” a share held in the name of the Company as a treasury share in accordance with the Law;
“U.S. Person” a Person who is a citizen or resident of the United States of America;
“Written and in Writing” includes all modes of representing or reproducing words in visible form including in the form of an electronic record.
(b) unless the context otherwise requires, words or expressions defined in the Law shall have the same meanings herein but excluding any statutory modification thereof not in force when these Articles become binding on the Company;
(c) unless the context otherwise requires: (i) words importing the singular number shall include the plural number and vice-versa; (ii) words importing the masculine gender only shall include the feminine gender; and (iii) words importing persons only shall include companies or associations or bodies of person whether incorporated or not, as well as any other legal or natural person;
(d) the word “may” shall be construed as permissive and the word “shall” shall be construed as imperative;
(e) the headings herein are for convenience only and shall not affect the construction of these Articles;
(f) references to statutes are, unless otherwise specified, references to statutes of the Islands and, subject to paragraph (b) above, include any statutory modification or re-enactment thereof for the time being in force; and
(g) where an Ordinary Resolution is expressed to be required for any purpose, a Special Resolution is also effective for that purpose.
| 2. | Formation Expenses |
The Directors may pay, out of the capital or any other monies of the Company, all expenses incurred in or about the formation and establishment of the Company including the expenses of registration.
| 3. | Offices of the Company |
3.1 The registered office of the Company shall be at such address in the Islands as set out in the Memorandum or as the Board shall from time to time determine.
3.2 The Company, in addition to its registered office, may establish and maintain such other offices, places of business and agencies in the Islands and elsewhere as the Board may from time to time determine.
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| 4. | Shares |
4.1 (a) Subject to the rules of any Designated Stock Exchange and to the provisions, if any, in the Memorandum and these Articles, the Board has general and unconditional authority to allot, grant options over, offer or otherwise deal with or dispose of any unissued shares in the capital of the Company without the approval of Members (whether forming part of the original or any increased share capital), either at a premium or at par, with or without preferred, deferred or other special rights or restrictions, whether in regard to dividend, voting, return of capital or otherwise and to such persons, on such terms and conditions, and at such times as the Board may determine, but so that no share shall be issued at a discount to par, except in accordance with the provisions of the Law.
(b) In particular and without prejudice to the generality of paragraph (a) above, the Board is hereby empowered to authorise by resolution or resolutions from time to time and without the approval of Members:
(i) the creation of one or more classes or series of preferred shares, to cause to be issued such preferred shares and to fix the designations, powers, preferences and relative participating, optional and other rights, if any, and the qualifications, limitations and restrictions thereof, if any, including, without limitation, the number of shares constituting each such class or series, dividend rights, conversion rights, redemption privileges, voting rights and powers (including full or limited or no voting rights or powers) and liquidation preferences, and to increase or decrease the number of shares comprising any such class or series (but not below the number of shares of any class or series of preferred shares then outstanding) to the extent permitted by law. Without limiting the generality of the foregoing, the resolution or resolutions providing for the establishment of any class or series of preferred shares may, to the extent permitted by law, provide that such class or series shall be superior to, rank equally with or be junior to the preferred shares of any other class or series; provided, however, that for so long as Opportunity has the right to designate a Director to the Board pursuant to Article 21.2(c), the Company shall not issue any preferred shares to a person on any terms unless it has made an offer to Opportunity to issue to Opportunity, on the same or more favourable economic terms as those terms applying to the applicable proposed issuance of preferred shares, a number of preferred shares equal to the product of (i) the number of preferred shares to be issued and (ii) a fraction (x) the numerator of which is the Class A Shares then held by Opportunity and (y) the denominator of which is all of the then issued and outstanding Class A Shares and Class B Shares as a single class; and the period during which any such offer may be accepted has expired or the Company has received notice of the acceptance or refusal by Opportunity of the offer so made; an offer made pursuant to this proviso may be made in either hard copy or by electronic communication, must state a period during which it may be accepted, the offer shall not be withdrawn before the end of that period and the period referred to must be at least 14 days beginning with the date on which the offer is deemed to be delivered in accordance with Article 36;
(ii) to designate for issuance as Class A Ordinary Shares or Class B Ordinary Shares from time to time any or all of the authorised but unissued shares of the Company which have not at that time been designated by the Memorandum or by the Directors as being shares of a particular class;
(iii) to create one or more further classes of shares which represent ordinary shares for the purposes of Article 5.2; and
(iv) to re-designate authorised but unissued Class B Ordinary Shares from time to time as shares of another class;
(c) The Company shall not issue shares or warrants to bearer.
(d) Subject to the rules of any Designated Stock Exchange, the Board shall have general and unconditional authority to issue options, warrants or convertible securities of similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any class of shares or securities in the capital of the Company to such persons, on such terms and conditions and at such times as the Board may determine.
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4.2 Notwithstanding Article 4.1, at any time when there are Class A Ordinary Shares in issue, Class B Ordinary Shares may only be issued pursuant to:
(a) a share-split, subdivision or similar transaction or as contemplated in Articles 5.6 or 34.1(b) below;
(b) a Business Combination involving the issuance of Class B Ordinary Shares as full or partial consideration; or
(c) an issuance of Class A Ordinary Shares, whereby holders of Class B Ordinary Shares are entitled to purchase a number of Class B Ordinary Shares that would allow them to maintain their proportional ownership interest in the Company pursuant to Article 4.3.
4.3 With effect from the date on which any shares of the Company are first admitted to trading on a Designated Stock Exchange, subject to Articles 4.4, 4.5 and 4.6, the Company shall not issue Class A Ordinary Shares to a person on any terms unless:
(a) it has made an offer to each person who holds Class B Ordinary Shares in the Company to issue to him, on the same or more favourable economic terms as those terms applying to the applicable proposed issuance of Class A Ordinary Shares, such number of Class B Ordinary Shares as would ensure that the proportion in nominal value of the issued Ordinary Shares held by him as Class B Ordinary Shares after the issuance of such Class A Ordinary Shares will be as nearly as practicable equal to the proportion in nominal value of the issued Ordinary Shares held by him as Class B Ordinary Shares before the said issuance; and
(b) the period during which any such offer may be accepted has expired or the Company has received notice of the acceptance or refusal of every offer so made.
An offer made pursuant to this Article 4.3 may be made in either hard copy or by electronic communication, must state a period during which it may be accepted and the offer shall not be withdrawn before the end of that period. The period referred to must be at least 14 days beginning with the date on which the offer is deemed to be delivered in accordance with Article 36.
4.4 An offer shall not be regarded as being made contrary to the requirements of Article 4.3 by reason only that:
(a) fractional entitlements are rounded or otherwise settled or sold at the discretion of the Board;
(b) no offer of Class B Ordinary Shares is made to a shareholder where the making of such an offer would in the view of the Board pose legal or practical problems in or under the laws or securities rules of any territory or the requirements of any regulatory body or stock exchange in each case applicable to, or binding upon, the Company such that the Board considers it is necessary or expedient in the interests of the Company to exclude such shareholder from the offer; or
(c) the offer is conditional upon the said issue of Class A Ordinary Shares proceeding.
| 4.5 | The provisions of Article 4.3 do not apply in relation to the issue of: |
(a) Class A Ordinary Shares if these are, or are to be, wholly or partly paid up otherwise than in cash;
(b) Class A Ordinary Shares which would, apart from any renunciation or assignment of the right to their allotment, be held under or issued pursuant to an Incentive Plan; and
(c) Class A Ordinary Shares issued in furtherance of the Business Combination Agreement and of the PIPE Subscription Agreements.
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4.6 Holders of Class B Ordinary Shares may from time to time by consent in writing (in one or more counterparts) approved by the holder or holders of a majority of the Class B Ordinary Shares in issue, referring to this Article 4.6, authorise the Board to issue Class A Ordinary Shares for cash and, on the granting of such an authority, the Board shall have the power to issue (pursuant to that authority) Class A Ordinary Shares for cash as if Article 4.3 above did not apply to:
(a) one or more issuances of Class A Ordinary Shares to be made pursuant to that authority; and/or
(b) such issuances with such modifications as may be specified in that authority, and unless previously revoked, that authority shall expire on the date (if any) specified in the authority or, if no date is specified, 12 months after the date on which the authority is granted, but the Company may before the power expires make an offer or agreement which would or might require Class A Ordinary Shares to be issued after it expires.
4.7 Notwithstanding Article 4.1, no non-voting Ordinary Shares shall be issued without such issuance first being approved by an Ordinary Resolution of Members which resolution is also passed with the affirmative vote of a majority of the then outstanding Class A Ordinary Shares.
4.8 The Company may issue fractions of a share of any class and a fraction of a share shall be subject to and carry the corresponding fraction of liabilities (whether with respect to nominal or par value, premium, contribution, calls or otherwise howsoever), limitations, preferences, privileges, qualifications, restrictions, rights and other attributes of a whole share of that class of shares.
4.9 The Company may, in so far as the Law permits, pay a commission to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, or procuring or agreeing to procure subscriptions (whether absolute or conditional) for any shares in the capital of the Company. Such commissions may be satisfied by the payment of cash or the allotment of fully or partly paid up shares or partly in one way and partly in the other. The Company may also, on any issue of shares, pay such brokerage fees as may be lawful.
4.10 Except as required by law, no person shall be recognised by the Company as holding any share upon any trust and the Company shall not be bound by or be compelled in any way to recognise (even when having notice thereof) any equitable, contingent, future or partial interest in any share (except only as by these Articles or by law otherwise provided) or any other rights in respect of any share except an absolute right to the entirety thereof in the holder.
4.11 (a) If at any time the share capital is divided into different classes of shares, the rights attached to any class of shares (unless otherwise provided by these Articles or the terms of issue of the shares of that class) may be varied with the consent in writing of the holders of two-thirds of the issued shares of that class or with the sanction of a Special Resolution passed at a separate general meeting of the holders of the shares of that class. To every such separate general meeting, the provisions of these Articles relating to general meetings shall mutatis mutandis apply, but so that the necessary quorum shall be any one or more persons holding or representing by proxy not less than one-third of the issued shares of the class and that any holder of shares of the class present in person or by proxy may demand a poll.
(b) For the purposes of Article 4.10(a), the Directors may treat all classes of shares or any two or more classes of shares as forming one class if they consider that all such classes would be affected in the same way by the proposals under consideration.
(c) The rights conferred upon the holders of the shares of any class shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be deemed to be varied by:
| (i) | the creation or issue of further shares ranking pari passu therewith; |
| (ii) | by the redemption or purchase of any shares of any class by the Company; |
| (iii) | the cancellation of authorised but unissued shares of that class; or |
(iv) he creation or issue of shares with preferred or other rights including, without limitation, the creation of any class or issue of shares with enhanced or weighted voting rights.
(d) The rights conferred upon holders of Class A Ordinary Shares shall not be deemed to be varied by the creation or issue from time to time of further Class B Ordinary Shares and the rights conferred upon holders of Class B Ordinary Shares shall not be deemed to be varied by the creation or issue from time to time of further Class A Ordinary Shares.
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4.12 The Directors may accept contributions to the capital of the Company otherwise than in consideration of the issue of shares and the amount of any such contribution may, unless otherwise agreed at the time such contribution is made, be treated by the Company as a distributable reserve, subject to the provisions of the Law and these Articles.
| 5. | Class A Ordinary Shares and Class B Ordinary Shares |
5.1 The rights of the holders of Class A Ordinary Shares and Class B Ordinary Shares are identical, except with respect to voting, conversion and transfer restrictions applicable to the Class B Ordinary Shares as set out in these Articles.
5.2 Holders of Class A Ordinary Shares and Class B Ordinary Shares have the right to receive notice of, attend, speak and vote at general meetings of the Company. Holders of Class A Ordinary Shares and Class B Ordinary Shares shall at all times vote together as one class on all resolutions submitted to a vote by the Members in general meetings. Each Class A Ordinary Share shall entitle the holder to one (1) vote on all matters subject to a vote at general meetings of the Company, and each Class B Ordinary Share shall entitle the holder to ten (10) votes on all matters subject to a vote at general meetings of the Company.
5.3 Without prejudice to any special rights conferred thereby on the holders of any other shares or class of shares established pursuant to the Memorandum and/or these Articles from time to time, holders of Ordinary Shares shall:
| (a) | Be entitled to such dividends as the Board may from time to time declare; |
(b) In the event of a winding-up or dissolution of the Company, whether voluntary or involuntary or for the purposes of a reorganization or otherwise or upon any distribution of capital, be entitled to the surplus assets of the Company; and
| (c) | Generally be entitled to enjoy all of the rights attaching to shares. |
5.4 In no event shall Class A Ordinary Shares be convertible into Class B Ordinary Shares.
5.5 Class B Common Shares shall be convertible into Class A Ordinary Shares as follows:
(a) Right of Conversion. Class B Ordinary Shares shall be convertible into the same number of Class A Ordinary Shares, on a share-to-share basis, in the following manner:
(i) a holder of Class B Ordinary Shares has the right to call upon the Company to effect a conversion of all or any of his Class B Ordinary Shares which right shall be exercised, at any time after issue and without payment of any additional sum, by notice in writing given to the Company at its registered office (and which conversion shall be effected by the Company promptly upon delivery of the said notice);
(ii) the holder(s) of a majority of the then outstanding Class B Ordinary Shares have the right to require that all outstanding Class B Ordinary Shares be converted, which right shall be exercised, at any time after issue and without payment of any additional sum, by notice in writing (which may be in one or more counterparts) signed by each of such holders given to the Company at its registered office (and which conversion shall be effected by the Company promptly upon delivery of the said notice); and
(iii) a Class B Ordinary Share shall automatically convert into a Class A Ordinary Share immediately and without further action by the holder upon the registration of any transfer of a Class B Ordinary Share (whether or not for value and whether or not the certificate(s) (if any) evidencing such Class B Ordinary Share are surrendered to the Company) in the Register of Members, other than:
(1) a transfer to the holder of Class B Common Shares and/or to heirs and successors of the holder of Class B Ordinary Shares and/or to an Affiliate of a holder of the Class B Ordinary Share;
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(2) a transfer to one or more trustees of a trust established for the benefit of the holder or an Affiliate of the holder of the Class B Ordinary Share; or
(3) a transfer to a partnership, corporation or other entity exclusively owned or controlled by the holder or an Affiliate of the holder of the Class B Ordinary Share.
For the avoidance of doubt, the creation of any pledge, charge, encumbrance or other security interest or third-party right of whatever description on any Class B Ordinary Shares to secure a holder’s contractual or legal obligations shall not be deemed to be a transfer unless and until any such pledge, charge, encumbrance or other third-party right is enforced and results in such third party (or its nominee) holding legal title to the related Class B Ordinary Shares, in which case all the related Class B Ordinary Shares shall be automatically and immediately converted into the same number of Class A Ordinary Shares
(iv) if at any time, the total number of the issued and outstanding Class B Ordinary Shares is less than 10% of the total number of shares in the capital of the Company outstanding, the Class B Ordinary Shares then in issue shall automatically and immediately convert into Class A Ordinary Shares and no Class B Ordinary Shares shall be issued by the Company thereafter.
(b) Mechanics of Conversion. Before any holder of Class B Ordinary Shares shall be entitled to convert such Class B Ordinary Shares into Class A Ordinary Shares pursuant to sub-paragraph (a) (1) above, the holder shall, if available, surrender the certificate or certificates therefor, duly endorsed (where applicable), at the registered office of the Company.
Upon the occurrence of one of the bases of conversion provided for in paragraph (a) above, the Company shall enter or procure the entry of the name of the relevant holder of Class B Ordinary Shares as the holder of the relevant number of Class A Ordinary Shares resulting from the conversion of the Class B Ordinary Shares in, and make any other necessary and consequential changes to, the Register of Members.
Any conversion of Class B Ordinary Shares into Class A Ordinary Shares pursuant to this Article 5 shall be effected by any manner permitted by applicable law (including by means of: (i) the re-designation and re-classification of the relevant Class B Ordinary Share as a Class A Ordinary Share together with such rights and restrictions for the time being attached thereto and shall rank pari passu in all respects with the Class A Ordinary Shares then in issue; and/or (ii) the compulsory redemption without notice of Class B Ordinary Shares and the automatic application of the redemption proceeds in paying for such new Class A Ordinary Shares into which the Class B Shares have been converted, on the basis that such redemption shall take place at par). For the avoidance of doubt, following the conversion to Class A Ordinary Shares, the holder thereof shall have Class A Ordinary Share voting rights in respect of such shares and not Class B Ordinary Share voting rights. Such conversion shall become effective forthwith upon entries being made in the Register of Members to record the re-designation and re-classification of the relevant Class B Ordinary Shares as Class A Ordinary Shares.
If the proposed conversion is in connection with an underwritten public or private offering of securities, the conversion may, at the option of any holder tendering such Class B Ordinary Shares for conversion, be conditional upon the closing with the underwriters or other purchasers of the sale of securities pursuant to such offering, in which event any persons entitled to receive Class A Ordinary Shares upon conversion of such Class B Ordinary Shares shall not be deemed to have converted such Class B Ordinary Shares until immediately prior to the closing of such sale of securities.
(c) Effective upon and with effect from the conversion of a Class B Ordinary Share into a Class A Ordinary Share in accordance with this Article 5.4, the converted share shall be treated for all purposes as a Class A Ordinary Share and shall carry the rights and be subject to the restrictions attaching to Class A Ordinary Shares.
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5.6 No subdivision of Class A Ordinary Shares into shares of an amount smaller than the nominal or par value of such shares at the relevant time shall be effected unless Class B Ordinary Shares are concurrently and similarly subdivided in the same proportion and the same manner, and no subdivision of Class B Ordinary Shares into shares of an amount smaller than the nominal or par value of such shares at the relevant time shall be effected unless Class A Ordinary Shares are concurrently and similarly subdivided in the same proportion and the same manner.
5.7 No consolidation of Class A Ordinary Shares into shares of an amount larger than the nominal or par value of such shares at the relevant time shall be effected unless Class B Ordinary Shares are concurrently and similarly consolidated in the same proportion and the same manner, and no consolidation of Class B Ordinary Shares into shares of an amount larger than the nominal or par value of such shares at the relevant time may be effected unless Class A Ordinary Shares are concurrently and similarly consolidated in the same proportion and the same manner.
5.8 In the event that a dividend or other distribution is paid by the issue of Class A Ordinary Shares or Class B Ordinary Shares or rights to acquire Class A Ordinary Shares or Class B Ordinary Shares (i) holders of Class A Ordinary Shares shall receive Class A Ordinary Shares or rights to acquire Class A Ordinary Shares, as the case may be; and (ii) holders of Class B Ordinary Shares shall receive Class B Ordinary Shares or rights to acquire Class B Ordinary Shares, as the case may be.
5.9 No Business Combination (whether or not the Company is the surviving entity) shall proceed unless by the terms of such transaction: (i) the holders of Class A Ordinary Shares have the right to receive, or the right to elect to receive, the same form of consideration as the holders of Class B Ordinary Shares, and (ii) the holders of Class A Ordinary Shares have the right to receive, or the right to elect to receive, at least the same amount of consideration on a per share basis as the holders of Class B Ordinary Shares. The Directors shall not approve such a transaction unless the requirements of this Article are satisfied. For the avoidance of doubt, this Article refers to and includes only economic rights.
5.10 No tender or exchange offer to acquire any Class A Ordinary Shares or Class B Ordinary Shares by any third party pursuant to an agreement to which the Company is to be a party, nor any tender or exchange offer by the Company to acquire any Class A Ordinary Shares or Class B Ordinary Shares shall be approved by the Company unless by the terms of such transaction: (i) the holders of Class A Ordinary Shares shall have the right to receive, or the right to elect to receive, the same form of consideration as the holders of Class B Ordinary Shares, and (ii) the holders of Class A Ordinary Shares shall have the right to receive, or the right to elect to receive, at least the same amount of consideration on a per share basis as the holders of Class B Ordinary Shares. The Directors shall not approve such a transaction unless the requirements of this Article are satisfied. For the avoidance of doubt, this Article refers to and includes only economic rights.
5.11 Save and except for voting rights and conversion rights and as otherwise set out in in this Article 5, Class A Ordinary Shares and the Class B Ordinary Shares shall rank pari passu and shall have the same rights, preferences, privileges and restrictions and share ratably (including as to dividends and distributions, and upon the occurrence of any liquidation or winding up of the Company) and otherwise be identical in all respects as to all matters.
| 6. | Share Certificates |
6.1 A Member shall only be entitled to a share certificate if the Directors resolve that share certificates shall be issued. Share certificates representing Shares, if any, shall be in such form as the Directors may determine. Share certificates shall be signed by one or more Directors or other person authorised by the Directors. The Directors may authorise certificates to be issued with the authorised signature(s) affixed by mechanical process. All certificates for Shares shall be consecutively numbered or otherwise identified and shall specify the Shares to which they relate. All certificates surrendered to the Company for transfer or conversion shall be cancelled and subject to the Articles and, save as provided in Articles 6.3, 7 and 8 below and in the case of a conversion of shares pursuant to Article 5.4, no new certificate shall be issued until the former certificate representing a like number of relevant Shares shall have been surrendered and cancelled.
6.2 Every share certificate of the Company shall bear legends required under the applicable laws, including the Securities Act.
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6.3 If a share certificate is defaced, worn-out, lost or destroyed, it may be renewed on such terms (if any) as to evidence and indemnity and payment of the expenses reasonably incurred by the Company in investigating evidence as the Directors may determine but otherwise free of charge, and (in the case of defacement or wearing-out) on delivery to the Company of the old certificate.
| 7. | Lien |
7.1 The Company shall have a first and paramount lien on every share (not being a share which is fully paid as to its par value and share premium) for all moneys (whether presently payable or not) payable at a fixed time or called in respect of that share (including any premium payable). The Directors may at any time declare any share to be wholly or in part exempt from the provisions of this Article. The Company’s lien on a share shall extend to any amount in respect of it.
7.2 The Company may sell in such manner as the Directors determine any shares on which the Company has a lien if a sum in respect of which the lien exists is presently payable and is not paid within fourteen (14) clear days after notice has been given to the holder of the share or to the person entitled to it in consequence of the death or bankruptcy of the holder, demanding payment and stating that if the notice is not complied with the shares may be sold.
7.3 To give effect to a sale, the Directors may authorise some person to execute an instrument of transfer of the shares sold to, or in accordance with the directions of, the purchaser. The title of the transferee to the shares shall not be affected by any irregularity or invalidity in the proceedings in reference to the sale.
7.4 The net proceeds of the sale, after payment of the costs, shall be applied in payment of so much of the sum for which the lien exists as is presently payable, and any residue shall (upon surrender to the Company for cancellation of the certificate for the shares sold, if any, and subject to a like lien for any moneys not presently payable as existed upon the shares before the sale) be paid to the person entitled to the shares at the date of the sale.
| 8. | Calls on Shares and Forfeiture |
8.1 Subject to the terms of allotment, the Directors may make calls upon the Members in respect of any moneys unpaid on their shares (whether in respect of nominal value or premium) and each Member shall (subject to receiving at least fourteen (14) clear days’ notice specifying when and where payment is to be made) pay to the Company as required by the notice the amount called on his shares. A call may be required to be paid by instalments. A call may, before receipt by the Company of any sum due thereunder, be revoked in whole or in part and payment of a call may be postponed in whole or in part. A person upon whom a call is made shall remain liable for calls made upon him notwithstanding the subsequent transfer of the shares in respect of which the call was made.
8.2 A call shall be deemed to have been made at the time when the resolution of the Directors authorising the call was passed.
8.3 The joint holders of a share shall be jointly and severally liable to pay all calls in respect of the share.
8.4 If a call remains unpaid after it has become due and payable, the person from whom it is due and payable shall pay interest on the amount unpaid from the day it became due and payable until it is paid at the rate fixed by the terms of allotment of the share or in the notice of the call or, if no rate is fixed, at an annual rate of ten percent (10%), but the Directors may waive payment of the interest wholly or in part.
8.5 An amount payable in respect of a share on allotment or at any fixed date, whether in respect of nominal value or premium or as an instalment of a call, shall be deemed to be a call, and if it is not paid when due, all the provisions of the Articles shall apply as if that amount had become due and payable by virtue of a call.
8.6 Subject to the terms of allotment, the Directors may make arrangements on the issue of shares for a difference between the holders in the amounts and times of payment of calls on their shares.
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8.7 If a call remains unpaid after it has become due and payable, the Directors may give to the person from whom it is due not less than fourteen (14) clear days’ notice requiring payment of the amount unpaid, together with any interest which may have accrued. The notice shall name the place where payment is to be made and shall state that if the notice is not complied with the shares in respect of which the call was made will be liable to be forfeited.
8.8 If the notice is not complied with, any share in respect of which it was given may, before the payment required by the notice has been made, be forfeited by a resolution of the Directors and the forfeiture shall include all dividends or other moneys payable in respect of the forfeited shares and not paid before the forfeiture.
8.9 Subject to the provisions of the Law, a forfeited share may be sold, re-allotted or otherwise disposed of on such terms and in such manner as the Directors determine either to the person who was before the forfeiture the holder or to any other person, and at any time before a sale, re-allotment or other disposition, the forfeiture may be cancelled on such terms as the Directors think fit. Where, for the purposes of its disposal a forfeited share is to be transferred to any person, the Directors may authorise any person to execute an instrument of transfer of the share to that person.
8.10 A person any of whose shares have been forfeited shall cease to be a Member in respect of them and shall surrender to the Company for cancellation the certificate for the shares forfeited, if any, but shall remain liable to the Company for all moneys which at the date of forfeiture were presently payable by him to the Company in respect of those shares with interest at the rate at which interest was payable on those moneys before the forfeiture or, if no interest was so payable, at an annual rate of ten percent (10%), from the date of forfeiture until payment but the Directors may waive payment wholly or in part or enforce payment without any allowance for the value of the shares at the time of forfeiture or for any consideration received on their disposal.
8.11 A statutory declaration by a Director or the Secretary that a share has been forfeited on a specified date shall be conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the share and the declaration shall (subject to the execution of an instrument of transfer if necessary) constitute a good title to the share and the person to whom the share is disposed of shall not be bound to see to the application of the consideration, if any, nor shall his title to the share be affected by any irregularity in or invalidity of the proceedings in reference to the forfeiture or disposal of the share.
| 9. | Transfer of Shares |
9.1 Subject to these Articles, any Member may transfer all or any of his shares by an instrument of transfer in the usual or common form or in a form prescribed by any Designated Stock Exchange or in any other form approved by the Board and may be under hand or, if the transferor or transferee is a Clearing House, by hand or by electronic signature or by such other manner of execution as the Board may approve from time to time. Without prejudice to the generality of the foregoing, title to listed shares of the Company may be evidenced and transferred in accordance with the laws applicable to and the rules and regulations of the Designated Stock Exchange on which such shares are listed.
9.2 The instrument of transfer shall be executed by or on behalf of the transferor and the transferee provided that the Board may dispense with the execution of the instrument of transfer by the transferee in any case which it thinks fit in its discretion to do so. Without prejudice to Article 9.1, the Board may also resolve, either generally or in any particular case, upon request by either the transferor or transferee, to accept mechanically executed transfers including, where applicable, in accordance with the laws and rules applicable to the Designated Stock Exchange. The transferor shall be deemed to remain the holder of the share until the name of the transferee is entered in the Register of Members in respect thereof. Nothing in these Articles shall preclude the Board from recognizing a renunciation of the allotment or provisional allotment of any share by the allottee in favour of some other person.
9.3 The Board may in its absolute discretion and without giving any reason therefor, refuse to register a transfer of any share:
(a) that is not fully paid up (as to both par value and any premium) to a person of whom it does not approve;
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(b) issued under any share incentive scheme for employees upon which a restriction on transfer imposed thereby still subsists;
(c) to more than four joint holders; or
(d) on which the Company has a lien.
9.4 Without limiting the generality of Article 9.3, the Board may also decline to recognise any instrument of transfer unless:
(a) a fee of such maximum sum as any Designated Stock Exchange may determine to be payable or such lesser sum as the Board may from time to time require is paid to the Company in respect thereof;
(b) the instrument of transfer is in respect of only one class of shares;
(c) the Shares are fully paid (as to both par value and any premium) and free of any lien;
(d) the instrument of transfer is lodged at the registered office or such other place at which the Register of Members is kept in accordance with the Law accompanied by any relevant share certificate(s), if any, and/or such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer (and, if the instrument of transfer is executed by some other person on his behalf, the authority of that person so to do); and
(e) if applicable, the instrument of transfer is duly and properly stamped.
9.5 If the Directors refuse to register a transfer of a share, they shall within two (2) months after the date on which the transfer was lodged with the Company send to the transferee notice of the refusal.
9.6 The registration of transfers of shares or of any class of shares may, after compliance with any notice requirement of any Designated Stock Exchange, be suspended and the Register of Members be closed at such times and for such periods (not exceeding in the whole thirty (30) days in any year) as the Board may determine.
9.7 The Company shall be entitled to retain any instrument of transfer which is registered, but any instrument of transfer which the Directors refuse to register shall be returned to the person lodging it when notice of the refusal is given.
| 10. | Transmission of Shares |
10.1 If a Member dies, the survivor, or survivors where he was a joint holder, and his personal representatives where he was a sole holder or the only survivor of joint holders shall be the only persons recognised by the Company as having any title to his interest; but nothing in these Articles shall release the estate of a deceased Member from any liability in respect of any share which had been jointly held by him.
10.2 A person becoming entitled to a share in consequence of the death or bankruptcy of a Member may, upon such evidence being produced as the Directors may properly require, elect either to become the holder of the share or to have some person nominated by him registered as the transferee. If he elects to become the holder he shall give notice to the Company to that effect. If he elects to have another person registered he shall execute an instrument of transfer of the share to that person. All the Articles relating to the transfer of shares shall apply to the notice or instrument of transfer as if it were an instrument of transfer executed by the Member and the death or bankruptcy of the Member had not occurred.
10.3 A person becoming entitled to a share by reason of the death or bankruptcy of a Member shall have the rights to which he would be entitled if he were the holder of the share, except that he shall not, before being registered as the holder of the share, be entitled in respect of such share to attend or vote at any meeting of the Company or at any separate meeting of the holders of any class of shares in the Company.
| 11. | Changes of Capital |
11.1 Subject to and in so far as permitted by the provisions of the Law and these Articles, the Company may from time to time by Ordinary Resolution alter or amend the Memorandum to:
(i) increase its share capital by such sum, to be divided into shares of such amount, as the resolution shall prescribe;
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(ii) consolidate and divide all or any of its share capital into shares of larger amounts than its existing shares;
(iii) convert all or any of its paid up shares into stock and reconvert that stock into paid up shares of any denomination;
(iv) sub-divide its existing shares, or any of them, into shares of smaller amounts than is fixed by the Memorandum provided that in the subdivision, the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived; and
(v) cancel any shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so cancelled.
11.2 Subject to and in so far as permitted by the provisions of the Law and these Articles, the Directors shall have the ability to issue shares within the authorised share capital of the Company thereby changing the issued share capital of the Company and no Ordinary Resolution shall be required for such issuances
11.3 Except so far as otherwise provided by the conditions of issue, the new shares shall be subject to the same provisions with reference to the payment of calls, lien, transfer, transmission, forfeiture and otherwise as the shares in the original share capital.
11.4 Whenever as a result of a consolidation of shares any Members would become entitled to fractions of a share, the Directors may, on behalf of those Members, sell the shares representing the fractions for the best price reasonably obtainable to any person (including, subject to the provisions of the Law, the Company) and distribute the net proceeds of sale in due proportion among those Members, and the Directors may authorise some person to execute an instrument of transfer of the shares to, or in accordance with the directions of, the purchaser. The transferee shall not be bound to see to the application of the purchase money nor shall his title to the shares be affected by any irregularity in or invalidity of the proceedings in reference to the sale.
11.5 The Company may by Special Resolution reduce its share capital and any capital redemption reserve in any manner and with and subject to any incident, consent, order or other matter required by law.
| 12. | Redemption and Purchase of Own Shares |
12.1 Subject to the provisions of the Law and these Articles, the Company may:
(a) issue shares on terms that they are to be redeemed or are liable to be redeemed at the option of the Company or the Member on such terms and in such manner as the Directors may, before the issue of shares, determine;
(b) purchase its own shares (including any redeemable shares) in such manner and on such terms as the Directors may determine and agree with the relevant Member; and
(c) make a payment in respect of the redemption or purchase of its own shares in any manner authorised by the Law, including out of capital.
12.2 The Directors may, when making a payment in respect of the redemption or purchase of shares, if so authorised by the terms of issue of the shares (or otherwise by agreement with the holder of such shares) make such payment in cash or in specie (or partly in one and partly in the other).
12.3 Upon the date of redemption or purchase of a share, the holder shall cease to be entitled to any rights in respect thereof (excepting always the right to receive (i) the price therefor and (ii) any dividend which had been declared in respect thereof prior to such redemption or purchase being effected) and accordingly his name shall be removed from the Register of Members with respect thereto and the share shall be cancelled.
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| 13. | Treasury Shares |
13.1 The Directors may, prior to the purchase, redemption or surrender of any Share, determine that such Share shall be held as a Treasury Share.
13.2 The Directors may determine to cancel a Treasury Share or transfer a Treasury Share on such terms as they think proper (including, without limitation, for nil consideration).
| 14. | Register of Members |
14.1 The Company shall maintain or cause to be maintained an overseas or local Register of Members in accordance with the Law.
14.2 The Directors may determine that the Company shall maintain one or more branch registers of Members in accordance with the Law. The Directors may also determine which Register of Members shall constitute the principal register and which shall constitute the branch register or registers, and to vary such determination from time to time.
| 15. | Closing Register of Members or Fixing Record Date |
15.1 For the purpose of determining Members entitled to notice of, or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any dividend or other distribution, or in order to make a determination of Members for any other purpose, the Directors may provide that the Register of Members shall be closed for transfers for a stated period which shall not in any case exceed thirty (30) days. If the Register shall be so closed for the purpose of determining those Members that are entitled to receive notice of, attend or vote at a meeting of Members, the Register shall be so closed for at least ten (10) clear days immediately preceding such meeting and the record date for such determination shall be the date of the closure of the Register.
15.2 In lieu of, or apart from, closing the Register of Members, the Directors may fix, in advance or in arrears, a date as the record date for any such determination of Members entitled to notice of, or to vote at any meeting of the Members or any adjournment thereof, or for the purpose of determining the Members entitled to receive payment of any dividend or other distribution, or in order to make a determination of Members for any other purpose, provided that such a record date shall not exceed forty (40) clear days prior to the date where the determination will be made.
15.3 If the Register of Members is not so closed and no record date is fixed for the determination of Members entitled to notice of, or to vote at, a meeting of Members or Members entitled to receive payment of a dividend or other distribution, the date on which notice of the meeting is sent or posted or the date on which the resolution of the Directors resolving to pay such dividend or other distribution is passed, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Article, such determination shall apply to any adjournment thereof.
| 16. | General Meetings |
16.1 An annual general meeting of the Company may at the discretion of the Board be held in the year in which these Articles were adopted and shall be held in each year thereafter at such time as determined by the Board and the Company may, but shall not (unless required by the Law) be obliged to, in each year hold any other general meeting.
16.2 The agenda of the annual general meeting shall be set by the Board and shall include the presentation of the Company’s annual accounts and the report of the Directors (if any).
16.3 Annual general meetings shall be held in such place as the Directors may determine from time to time. To the extent permitted by law, annual general meetings may also be held virtually.
16.4 All general meetings other than annual general meetings shall be called extraordinary general meetings and the Company shall specify the meeting as such in the notices calling it.
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16.5 The Directors may, whenever they think fit, convene an extraordinary general meeting of the Company, and they shall on a Members’ requisition in accordance with these Articles forthwith proceed to convene an extraordinary general meeting of the Company.
16.6 A Members’ requisition is a requisition of one or more Members holding at the date of deposit of the requisition shares representing in the aggregate not less than one-third of the votes entitled to be cast at general meetings of the Company.
16.7 The Members’ requisition must state the objects of the meeting and must be signed by the requisitionists and deposited at the registered office, and may consist of several documents in like form each signed by one or more requisitionists.
16.8 If there are no Directors as at the date of the deposit of the Members’ requisition or if the Directors do not within fourteen (14) days from the date of the deposit of the Members’ requisition duly proceed to convene a general meeting to be held within a further fourteen (14) days, the requisitionists, or any of them representing more than one-half of the total voting rights of all of the requisitionists, may themselves convene a general meeting, but any meeting so convened shall be held no later than the day which falls three (3) months after the expiration of the first said fourteen (14) day period.
16.9 A general meeting convened as aforesaid by requisitionists shall be convened in as close to the same manner as possible as that in which general meetings are to be convened by Directors.
16.10 Save as set out in Articles 16.1 to 16.9, the Members have no right to propose resolutions to be considered or voted upon at annual general meetings or extraordinary general meetings of the Company.
| 17. | Notice of General Meetings |
17.1 At least ten (10) clear days’ notice specifying the place, the day and the hour of each general meeting and the general nature of such business to be transacted thereat shall be given in the manner hereinafter provided, including, but not limited to, as described in Article 36, or in such other manner (if any) as may be prescribed by Ordinary Resolution, to such persons as are entitled to vote or may otherwise be entitled under these Articles to receive such notices from the Company; provided that a general meeting of the Company shall, whether or not the notice specified in this Article has been given and whether or not the provisions of the Articles regarding general meetings have been complied with, be deemed to have been duly convened if it is so agreed:
(a) in the case of an annual general meeting, by all of the Members entitled to attend and vote thereat; and
(b) in the case of an extraordinary general meeting, by a majority in number of the Members having a right to attend and vote at the meeting, together holding not less than 95%, in par value of the Shares giving that right.
17.2 The accidental omission to give notice of a general meeting to, or the non-receipt of notice of a meeting by, any person entitled to receive notice shall not invalidate the proceedings at that general meeting.
| 18. | Proceedings at General Meetings |
18.1 No business shall be transacted at any meeting unless a quorum is present at the time when the meeting proceeds to business. One or more Members holding not less than one-third in aggregate of the voting power of all Shares in issue and entitled to vote, present in person or by proxy or, if a corporation or other non-natural person, by its duly authorised representative, shall represent a quorum.
18.2 If a quorum is not present within half an hour from the time appointed for the meeting to commence or if during such a meeting a quorum ceases to be present, the meeting, if convened upon a Members’ requisition, shall be dissolved and in any other case it shall stand adjourned and shall reconvene on the same day in the next week at the same time and/or place or to such other day, time and/or place as the Directors may determine, and if at the reconvened meeting a quorum is not present within half an hour from the time appointed for the meeting to commence, the Members present shall be a quorum.
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18.3 A person may participate in a general meeting by conference telephone or other communications equipment by means of which all the persons participating in the meeting can communicate with each other at the same time. Participation by a Member in a meeting in this manner is treated as presence in person at that meeting and is counted in a quorum and entitled to vote.
18.4 The Chairman or in his absence the vice-chairman of the Board (if any) shall preside as chairman of the meeting, but if neither the Chairman nor such vice-chairman (if any) is present within fifteen (15) minutes after the time appointed for holding the meeting and willing to act, the Directors present shall elect one of their number to be chairman and, if there is only one Director present and willing to act, he shall be chairman. If no Director is willing to act as chairman, or if no Director is present within fifteen (15) minutes after the time appointed for holding the meeting, the Members present in person or by proxy and entitled to vote shall choose one of their number to be chairman.
18.5 The order of business at each such meeting shall be as determined by the chairman of the meeting. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of the meeting, including, without limitation, the establishment of procedures for the maintenance of order and safety, limitations on the time allotted to questions or comments on the affairs of the Company, restrictions on entry to such meeting after the time prescribed for the commencement thereof, and the opening and closing of the polls. The chairman of the meeting shall announce at each such meeting the date and time of the opening and the closing of the polls for each matter upon which the Members will vote at such meeting.
18.6 A Director shall, notwithstanding that he is not a Member, be entitled to attend and speak at any general meeting and at any separate meeting of the holders of any class of shares in the Company.
18.7 The chairman of the meeting may, with the consent of any meeting at which a quorum is present (and shall if so directed by the meeting), adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than business which might properly have been transacted at the meeting had the adjournment not taken place. When a meeting is adjourned for fourteen (14) days or more, at least seven (7) clear days’ notice shall be given in the manner herein provided, including, but not limited to, as described in Article 36, specifying the time and place of the adjourned meeting and the general nature of the business to be transacted. Otherwise it shall not be necessary to give any such notice.
18.8 At each meeting of the Members, all corporate actions, including the election of Directors, to be taken by vote of the Members (except as otherwise required by applicable law and except as otherwise provided in these Articles) shall be authorised by Ordinary Resolution. Where a separate vote by a class or classes or series is required, save as provided in Article 4.10, the affirmative vote of the majority of Shares of such class or classes or series present in person or represented by proxy at the meeting and voting shall be the act of such class or series (unless provided otherwise in the resolutions providing for the issuance of such class or series).
18.9 At any general meeting a resolution put to the vote of the meeting shall be decided on a poll.
18.10 A poll shall be taken in such manner as the chairman directs and he may appoint scrutineers (who need not be Members) and fix a place and time for declaring the result of the poll. The result of the poll shall be deemed to be the resolution of the meeting at which the poll was taken.
18.11 In the case of equality of votes, the chairman of the meeting shall be entitled to a casting vote in addition to any other vote he may have.
18.12 If for so long as the Company has only one Member:
(a) the sole Member may agree that any general meeting be called by shorter notice than that provided for by the Articles; and
(b) all other provisions of the Articles apply with any necessary modification (unless the provision expressly provides otherwise).
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| 19. | Votes of Members |
19.1 Subject to any rights or restrictions attached to any shares (including without limitation the enhanced voting rights attaching to Class B Ordinary Shares provided for in Article 5), every Member who (being an individual) is present in person or by proxy or (being a corporation) is present by a duly authorised representative (not being himself a Member entitled to vote) or by proxy, shall on a poll have one vote for every share of which he is the holder (or, in the case of a Class B Ordinary Share, ten (10) votes for every Class B Ordinary Share of which he is the holder).
19.2 In the case of joint holders, the vote of the senior joint holder who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders; and seniority shall be determined by the order in which the names of the holders stand in the Register of Members.
19.3 A Member in respect of whom an order has been made by any court having jurisdiction (whether in the Islands or elsewhere) in matters concerning mental disorder may vote, by his receiver, curator bonis or other person authorised in that behalf appointed by that court, and any such receiver, curator bonis or other person may vote by proxy. Evidence to the satisfaction of the Directors of the authority of the person claiming to exercise the right to vote shall be received at the registered office of the Company, or at such other place as is specified in accordance with these Articles for the deposit or delivery of forms of appointment of a proxy, or in any other manner specified in these Articles for the appointment of a proxy, not less than forty-eight (48) hours before the time appointed for holding the meeting or adjourned meeting at which the right to vote is to be exercised and in default the right to vote shall not be exercisable.
19.4 No Member shall, unless the Directors otherwise determine, be entitled to vote at any general meeting or at any separate meeting of the holders of any class of shares in the Company, either in person or by proxy or by a corporate representative, in respect of any share held by him unless all moneys presently payable by him in respect of that share have been paid.
19.5 No objection shall be raised to the qualification of any voter except at the meeting or adjourned meeting at which the vote objected to is tendered, and every vote not disallowed at the meeting shall be valid. Any objection made in due time shall be referred to the chairman of the meeting whose decision shall be final and conclusive.
19.6 Votes may be given either personally or by proxy. Deposit or delivery of a form of appointment of a proxy does not preclude a Member from attending and voting at the meeting or at any adjournment of it, save that only the Member or his proxy may cast a vote.
19.7 A Member entitled to more than one vote need not, if he votes, use all his votes or cast all votes he uses the same way.
19.8 Subject as set out herein, an instrument appointing a proxy shall be in writing in any usual form or in any other form which the Directors may approve and shall be executed by or on behalf of the appointor save that, subject to the Law, the Directors may accept the appointment of a proxy received in an electronic communication at an address specified for such purpose, on such terms and subject to such conditions as they consider fit. The Directors may require the production of any evidence which they consider necessary to determine the validity of any appointment pursuant to this Article.
19.9 Subject to Article 19.10 below, the form of appointment of a proxy and any authority under which it is executed or a copy of such authority certified notarially or in some other way approved by the Directors may:
(a) in the case of an instrument in writing, be left at or sent by post to the registered office of the Company or such other place within the Islands or elsewhere as is specified in the notice convening the meeting or in any form of appointment of proxy sent out by the Company in relation to the meeting at any time before the time for holding the meeting or adjourned meeting at which the person named in the form of appointment of proxy proposes to vote;
(b) in the case of an appointment of a proxy contained in an electronic communication, where an address has been specified by or on behalf of the Company for the purpose of receiving electronic communications:
(i) in the notice convening the meeting;
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(ii) in any form of appointment of a proxy sent out by the Company in relation to the meeting; or
(iii) in any invitation contained in an electronic communication to appoint a proxy issued by the Company in relation to the meeting;
be received at such address at any time before the time for holding the meeting or adjourned meeting at which the person named in the form of appointment of proxy proposes to vote;
(c) in the case of a poll taken more than forty-eight (48) hours after it is demanded, be deposited or delivered as required by paragraphs (a) or (b) of this Article after the poll has been demanded and at any time before the time appointed for the taking of the poll; or
(d) where the poll is taken immediately but is taken not more than forty-eight (48) hours after it was demanded, be delivered at the meeting at which the poll was demanded to the chairman of the meeting or to the secretary or to any Director;
and a form of appointment of proxy which is not deposited or delivered in accordance with this Article or Article 19.10 is invalid.
19.10 Notwithstanding Article 19.9 above, the Directors may by way of note to or in any document accompanying the notice of a general meeting (or adjourned meeting) fix the latest time by which the appointment of a proxy must be communicated to or received by the Company (being not more than 48 hours before the relevant meeting).
19.11 A vote or poll demanded by proxy or by the duly authorised representative of a corporation shall be valid notwithstanding the previous determination of the authority of the person voting or demanding a poll unless notice of the determination was received by the Company at the registered office of the Company or, in the case of a proxy, any other place specified for delivery or receipt of the form of appointment of proxy or, where the appointment of a proxy was contained in an electronic communication, at the address at which the form of appointment was received, before the commencement of the meeting or adjourned meeting at which the vote is given or the poll demanded or (in the case of a poll taken otherwise than on the same day as the meeting or adjourned meeting) the time appointed for taking the poll.
19.12 Any corporation or other non-natural person which is a Member of the Company may in accordance with its constitutional documents, or, in the absence of such provision, by resolution of its directors or other governing body, authorise such person as it thinks fit to act as its representative at any meeting of the Company or of any class of Members, and the person so authorised shall be entitled to exercise the same powers on behalf of the corporation which he represents as the corporation could exercise if it were an individual Member.
19.13 If a Clearing House (or its nominee(s)) or depositary (or its nominee(s)) is a Member of the Company, it may, by resolution of its directors or other governing body or by power or attorney, authorise such Person(s) as it thinks fit to act as its representative(s) at any general meeting of the Company or of any class of shareholders of the Company, provided that, if more than one Person is so authorised, the authorisation shall specify the number and class of shares in respect of which such Person is so authorised. A Person so authorised pursuant to this Article shall be entitled to exercise the same powers on behalf of the recognised clearing house (or its nominee(s)) or depositary (or its nominee(s)) which he represents as that recognised clearing house (or its nominee(s)) or depositary (or its nominee(s)) could exercise if it were an individual Member holding the number and class of shares specified in such authorisation.
| 20. | Number of Directors and Chairman |
20.1 Subject to Articles 21.2, 21.4 and 21.9, the Board shall consist of such number of Directors as a majority of the Directors then in office may determine from time to time, provided that, unless otherwise determined by the Members acting by Special Resolution, with the approval by vote or written consent of the holders of a majority of the voting power of the Class A Ordinary Shares then outstanding voting exclusively and as a separate class, the Board shall consist of not less than five (5) Directors and not more than eleven (11) Directors.
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20.2 The Board of Directors shall have a chairman of the Board of Directors elected and appointed by the Directors. The Directors may also elect a vice-chairman of the Board of Directors. The period for which the Chairman and the vice-chairman shall hold office shall also be determined by the Directors. The Chairman shall preside as chairman at every meeting of the Board of Directors at which he is present. Where the Chairman is not present at a meeting of the Board of Directors, the vice-chairman of the Board of Directors (if any) shall act as chairman, or in his absence, the attending Directors may choose one Director to be the chairman of the meeting.
| 21. | Appointment, Disqualification and Removal of Directors |
21.1 Save as provided in Article 21.4 and subject to Articles 21.2 and 21.9, Directors shall be elected by an Ordinary Resolution of Members. Persons proposed by the Board for election at a general meeting of the Company shall be nominated only and after consultation with the Nominating and Corporate Governance Committee (if such committee is established).
21.2 Appointment Rights
(a) Ambipar shall be entitled to nominate a number of designees to the Board of Directors by written notice served upon the Company, as set forth below:
(i) for so long as the aggregate voting power of Class B Ordinary Shares held by Ambipar continues to be at least fifty percent (50%) of the total voting power of all shares, then Ambipar shall be entitled to nominate at least the majority of the Directors; provided that at least one (1) out of such Directors shall qualify as an Independent Director pursuant to Rule 10A-3 under the Exchange Act and shall also be appointed as a member of the Audit Committee; provided, further, that if more than one Director nominated by Ambipar shall be appointed as a member of the Audit Committee, such member shall also qualify as an Independent Director pursuant to Rule 10A-3 under the Exchange Act should the applicable rules and regulations so require; and
(ii) for so long as the aggregate voting power of Class B Ordinary Shares held by Ambipar continues to be at least twenty-five percent (25%), but less than fifty percent (50%), of the total voting power of all shares, then Ambipar shall be entitled to nominate at least one-third of the Directors to the Board of Directors.
(b) For so long as the Sponsor is subject to the transfer restrictions with respect to its Class A Ordinary Shares pursuant to the terms of the Investor Rights Agreement, the Sponsor shall be entitled to nominate one Director by written notice served upon the Company; provided that such Sponsor Director shall qualify as an Independent Director. The Sponsor Director shall also be appointed as a member of the Audit Committee, provided that the Sponsor Director shall be considered an Independent Director pursuant to Rule 10A-3 under the Exchange Act.
(c) For so long as Opportunity shall hold at least fifty percent (50%) of the Class A Ordinary Share voting power held by Opportunity immediately after Closing (as defined in the Business Combination Agreement), Opportunity shall be entitled to nominate one Director by written notice served upon the Company.
21.3 Each Director shall hold office for such term as the resolution appointing him may determine or until his vacation of office as a Director or the Director’s removal in accordance with these Articles notwithstanding any agreement between the Company and such Director. Directors are eligible for re- election.
21.4 Subject to Articles 21.2 and 21.9, any vacancies on the Board arising other than upon the removal of a Director by resolution passed at a general meeting can be filled by the remaining Director(s) (notwithstanding that the remaining Director(s) may constitute fewer than the number of Directors required by Article 20.1 or fewer than is required for a quorum pursuant to Article 28.1). Any such appointment shall be as an interim Director to fill such vacancy until the next annual general meeting of Members (and such appointment shall terminate at the commencement of the annual general meeting).
21.5 There is no age limit for Directors of the Company.
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21.6 No shareholding qualification shall be required for a Director. A Director who is not a Member shall nevertheless be entitled to receive notice of and to attend and speak at general meetings of the Company.
21.7 While any shares of the Company are admitted to trading on a Designated Stock Exchange, the Board must at all times comply with the residency and citizenship requirements of securities laws of the United States applicable to foreign private issuers and shall at no time have a majority of Directors who are U.S. Persons. Notwithstanding any other provision in these Articles, no appointment or election of a U.S. Person as a Director shall be permitted if such appointment or election would have the effect of creating a majority of Directors who are U.S. Persons, and any such appointment or election shall be disregarded for all purposes.
21.8 Subject to Articles 21.2 and 21.9, Directors may be removed (with or without cause) by Ordinary Resolution of Members. The notice of general meeting must contain a statement of the intention to remove the Director and must be served on the Director not less than ten (10) calendar days before the meeting. The director is entitled to attend the meeting and be heard on the motion for his removal.
21.9 Each of Ambipar, Sponsor and Opportunity, as applicable, shall have the exclusive right to appoint and remove the respective Director(s) appointed by it, and appoint replacement Director(s). Any such Director(s) shall be nominated, appointed and removed only by Ambipar, Sponsor or Opportunity, as the case may be, by written notice served upon the Company. Such appointment or removal by Ambipar, Sponsor or Opportunity, as applicable, shall have immediate effect when the notice is served, or take effect at such later time as may be stated in such notice.
21.10 The office of a Director shall be vacated automatically if:
| (a) | he or she becomes prohibited by law from being a Director; |
(b) he or she becomes bankrupt or makes any arrangement or composition with his creditors generally;
(c) he or she dies or is, in the opinion of all his co-Directors, incapable by reason of mental disorder of discharging his duties as Director;
(d) he or she resigns his or her office by notice to the Company; or
(e) he or she has for more than six (6) months been absent without permission of the Directors from meetings of Directors held during that period and the remaining Directors resolve that his or her office be vacated.
| 22. | Alternate Directors |
22.1 Any Director (but not an alternate Director) may by writing appoint any other Director, or any other person willing to act, to be an alternate Director and by writing may remove from office an alternate Director so appointed by him.
22.2 An alternate Director shall be entitled to receive notice of all meetings of Directors and of all meetings of committees of Directors of which his appointor is a member, to attend and vote at every such meeting at which the Director appointing him is not personally present, to sign any written resolution of the Directors (in place of his appointor) and generally to perform all the functions of his appointor as a Director in his absence.
22.3 An alternate Director shall cease to be an alternate Director if his appointor ceases to be a Director.
22.4 Any appointment or removal of an alternate Director shall be by written notice to the Company at its registered office, signed by the Director making or revoking the appointment, or in any other manner approved by the Directors.
22.5 Subject to the provisions of these Articles, an alternate Director shall be deemed for all purposes to be a Director and shall alone be responsible for his own acts and defaults and shall not be deemed to be the agent of the Director appointing him.
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| 23. | Powers of Directors |
23.1 Subject to the provisions of the Law, to the Memorandum and the Articles, to any directions given by Ordinary Resolution and to the listing rules of any Designated Stock Exchange, the business of the Company shall be managed by the Directors who may exercise all the powers of the Company. No alteration of the Memorandum or Articles and no such direction shall invalidate any prior act of the Directors which would have been valid if that alteration had not been made or that direction had not been given. The powers given by this Article shall not be limited by any special power given to the Directors by the Articles and a meeting of Directors at which a quorum is present may exercise all powers exercisable by the Directors.
23.2 The Board may exercise all the powers of the Company to raise capital or borrow money and to mortgage or charge all or any part of the undertaking, property and assets (present and future) and uncalled capital of the Company and, subject to the Law, to issue debentures, bonds and other securities, whether outright or as collateral security for any debt, liability or obligation of the Company or of any third party.
| 24. | Delegation of Directors’ Powers |
24.1 Subject to these Articles, the Directors may from time to time appoint any Person, whether or not a director of the Company, to hold such office in the Company as the Directors may think necessary for the administration of the Company, including without prejudice to the foregoing generality, the offices of chief executive officer, chief operating officer and chief financial officer, one or more vice presidents, managers or controllers, and for such term and at such remuneration (whether by way of salary or commission or participation in profits or partly in one way and partly in another) and with such powers and duties as the Directors may think fit.
24.2 Without limiting the generality of Article 24.1, the Directors may appoint one or more of their body to the office of managing Director or to any other executive office under the Company, and the Company may enter into an agreement or arrangement with any Director for his/her employment, subject to applicable law and any listing rules of the SEC or any Designated Stock Exchange, or for the provision by him of any services outside the scope of the ordinary duties of a Director. Any such appointment, agreement or arrangement may be made upon such terms as the Directors determine and they may remunerate any such Director for his services as they think fit. Any appointment of a Director to an executive office shall terminate automatically if he ceases to be a Director but without prejudice to any claim to damages for breach of the contract of service between the Director and the Company.
24.3 The Directors may, by power of attorney or otherwise, appoint any person to be the agent of the Company for such purposes and on such conditions as they determine, including authority for the agent to delegate all or any of his powers.
24.4 Subject to applicable law and the listing rules of any Designated Stock Exchange, the Directors may delegate any of their powers to any committee (including, without limitation, an Audit Committee, Compensation Committee, Nominating and Corporate Governance Committee and any other such committee as the Directors may determine), consisting of one or more Directors. They may also delegate to any executive officer or committee of executive officers such of their powers as they consider desirable to be exercised by him or them. Any such delegation may be made subject to any conditions the Directors may impose, and either collaterally with or to the exclusion of its own powers and may be revoked or altered. Subject to any such conditions, the proceedings of a committee with two or more members shall be governed by the provisions of the Articles regulating the proceedings of Directors so far as they are capable of applying. Where a provision of the Articles refers to the exercise of a power, authority or discretion by the Directors and that power, authority or discretion has been delegated by the Directors to a committee, the provision shall be construed as permitting the exercise of the power, authority or discretion by the committee.
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24.5 Without limiting the generality of Article 24.4, the Board shall establish a permanent Audit Committee and may establish a Compensation Committee and a Nominating and Corporate Governance Committee and, where such committees are established, the Board may adopt formal written charters for such committees and, if so, shall review and assess the adequacy of such formal written charters on an annual basis. Each of these committees shall be empowered to do all things necessary to exercise the rights of such committee set forth in these Articles and shall have such powers as the Board may delegate pursuant to Article 24.4 and as required by the rules of the Designated Stock Exchange or applicable law. Each of the Audit Committee, the Compensation Committee and the Nominating and Corporate Governance Committee, if established, shall consist of such number of directors as the Board shall from time to time determine (or such minimum number as may be required from time to time by any Designated Stock Exchange). For so long as any class of Shares is listed on a Designated Stock Exchange, the Audit Committee, the Compensation Committee and the Nominating and Corporate Governance Committee shall be made up of such number of Independent Directors as is required from time to time by the rules of the Designated Stock Exchange or otherwise required by applicable law.
24.6 At least one (1) member of the Audit Committee will be an audit committee financial expert as determined by the rules adopted by the Designated Stock Exchange. Such financial expert shall have a special past employment experience in finance or accounting, requisite professional certification in accounting, or any other comparable experience or background which results in the individual’s financial sophistication
| 25. | Remuneration and Expenses of Directors |
25.1 The Directors shall be entitled to such remuneration as the Board may determine and, unless otherwise determined, the remuneration shall be deemed to accrue from day to day. If established, the Compensation Committee will assist the Board in reviewing and approving compensation decisions.
25.2 Members of the Audit Committee may be paid annual compensation in the form of a fixed salary in such amount as the Board may determine.
25.3 A Director who at the request of the Directors goes or resides outside of the Islands, makes a special journey or performs a special service on behalf of the Company may be paid such reasonable additional remuneration (whether by way of salary, percentage of profits or otherwise) and expenses as the Directors may decide.
25.4 The Directors may be paid all traveling, hotel and other expenses properly incurred by them in connection with their attendance at meetings of Directors or committees of Directors or general meetings or separate meetings of the holders of any class of shares or of debentures of the Company or otherwise in connection with the discharge of their duties.
| 26. | Directors’ Gratuities and Pensions |
The Directors may cause the Company to provide benefits, whether by the payment of gratuities or pensions or by insurance or otherwise, for any existing Director or any Director who has held but no longer holds any executive office or employment with the Company or with any body corporate which is or has been a subsidiary of the Company or a predecessor in business of the Company or of any such subsidiary, and for any member of his family (including a spouse and a former spouse) or any person who is or was dependent on him, and may (as well before as after he ceases to hold such office or employment) contribute to any fund and pay premiums for the purchase or provision of any such benefit.
| 27. | Directors’ Interests |
27.1 Subject to the Law and listing rules of any Designated Stock Exchange, if a Director has disclosed to the other Directors the nature and extent of any direct or indirect interest which the Director has in any transaction or arrangement with the Company, a Director notwithstanding his office:
(a) may be a party to or otherwise interested in any transaction or arrangement with the Company or in which the Company is otherwise interested;
(b) may be a Director or other officer of, or employed by, or a party to any transaction or arrangement with, or otherwise interested in, any body corporate promoted by the Company or in which the Company is otherwise interested; and
(c) shall not by reason of his office be accountable to the Company for any benefit which he derives from any such office or employment or from any such transaction or arrangement or from any interest in any such body corporate and no such transaction or arrangement shall be liable to be avoided on the ground of any such interest or benefit.
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27.2 For the purposes of Article 27.1:
(a) a general notice given to the Directors to the effect that (1) a Director is a member or officer of a specified company or firm and is to be regarded as having an interest in any transaction or arrangement which may after the date of the notice be made with that company or firm; or (2) a Director is to be regarded as interested in any transaction or arrangement which may after the date of the notice be made with a specified person who is connected with him or her shall be deemed to be a sufficient disclosure that the Director has an interest of the nature and extent so specified; and
(b) an interest of which a Director has no knowledge and of which it is unreasonable to expect him to have knowledge shall not be treated as an interest of his.
27.3 A Director must disclose any direct or indirect interest in any transaction or arrangement with the Company, and following a declaration being made pursuant to the Articles, subject to any separate requirement for Audit Committee approval under applicable law or the listing rules of any Designated Stock Exchange or specific policies adopted by the Board, and unless disqualified by the chairman of the relevant meeting, a Director may vote in respect of any such transaction or arrangement in which such Director is interested and may be counted in the quorum at such meeting.
27.4 Notwithstanding the foregoing, no “Independent Director” (as defined herein) and with respect of whom the Board has determined constitutes an “Independent Director” for purposes of compliance with applicable law or the Company’s listing requirements, shall without the consent of the Audit Committee take any of the foregoing actions or any other action that would reasonably be likely to affect such Director’s status as an “Independent Director” of the Company.
| 28. | Proceedings of Directors |
28.1 The quorum for the transaction of the business of the Directors shall be a simple majority of the Directors then in office (subject to there being a minimum of two (2) Directors present). A person who holds office as an alternate Director shall, if his appointor is not present, be counted in the quorum. A Director who also acts as an alternate Director shall, if his appointor is not present, count twice towards the quorum, but one such Director shall not constitute a quorum on his own.
28.2 Subject to the provisions of the Articles, the Directors may regulate their proceedings as they determine is appropriate. Questions arising at any meeting shall be decided by a majority of votes. In the case of an equality of votes, the chairman of the meeting shall have a second or casting vote. A Director who is also an alternate Director shall be entitled in the absence of his appointor to a separate vote on behalf of his appointor in addition to his own vote.
28.3 A person may participate in a meeting of the Directors or any committee of Directors by conference telephone or other communications equipment by means of which all the persons participating in the meeting can communicate with each other at the same time. Participation by a person in a meeting in this manner is treated as presence in person at that meeting and is counted in a quorum and entitled to vote.
28.4 A resolution in writing (in one or more counterparts) signed by all the Directors or all the members of a committee of the Directors (an alternate Director being entitled to sign such a resolution on behalf of his appointor and if such alternate Director is also a Director, being entitled to sign such resolution both on behalf of his appointor and in his capacity as a Director) shall be as valid and effective as if it had been passed at a meeting of the Directors, or committee of Directors as the case may be, duly convened and held. Unless otherwise provided by its terms, such a resolution shall be effective from the date and time of the last signature.
28.5 A Director or alternate Director may, and another officer of the Company on the direction of a Director or alternate Director shall, call a meeting of the Directors by at least five (5) clear days’ notice in writing to every Director and alternate Director which notice shall set forth the general nature of the business to be considered unless notice is waived by all the Directors (or their alternates) either at, before or after the meeting is held. To any such notice of a meeting of the Directors all the provisions of the Articles relating to the giving of notices by the Company to the Members shall apply mutatis mutandis.
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28.6 Notwithstanding Article 28.5, if all Directors so agree to the meeting, a Director or alternate Director may, or other officer of the Company on the direction of a Director or alternate Director may, call a meeting of the Directors on shorter notice than is provided for in Article 28.5 by notice in writing to every Director and alternate Director, which notice shall set forth the general nature of the business to be considered.
28.7 The continuing Directors (or a sole continuing Director, as the case may be) may act notwithstanding any vacancy in their body, but if and so long as their number is reduced below the number fixed by or pursuant to the Articles as the necessary quorum of Directors, the continuing Directors or Director may act for the purpose of increasing the number of Directors to be equal to such fixed number, or of summoning a general meeting of the Company, but for no other purpose.
28.8 All acts done by any meeting of the Directors or of a committee of the Directors (including any person acting as an alternate Director) shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment of any Director or alternate Director, and/or that they or any of them were disqualified, and/or had vacated their office and/or were not entitled to vote, be as valid as if every such person had been duly appointed and/or not disqualified to be a Director or alternate Director and/or had not vacated their office and/or had been entitled to vote, as the case may be.
28.9 A Director who is present at a meeting of the Directors at which action on any Company matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent from such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by electronic mail to the Company immediately after the conclusion of the meeting. Such right to dissent shall not apply to a Director who voted in favour of such action.
| 29. | Secretary and Other Officers |
The Directors may by resolution appoint a Secretary and may by resolution also appoint such other officers as may from time to time be required upon such terms as to the duration of office, remuneration and otherwise as they may think fit PROVIDED THAT, the Directors may only appoint persons as directors of the Company in accordance with Article 21.3. Such Secretary or other officers need not be Directors and in the case of the other officers may be ascribed such titles as the Directors may decide. The Directors may by resolution remove from that position any Secretary or other officer appointed pursuant to this Article.
| 30. | Minutes |
The Directors shall cause minutes to be made in books kept for the purposes of recording:
(a) all appointments of officers made by the Directors; and
(b) all resolutions and proceedings of meetings of the Company, of the holders of any class of shares in the Company and of the Directors and of committees of Directors, including the names of the Directors present at each such meeting.
| 31. | Seal |
31.1 The Company may, if the Directors so determine, have a Seal. The Seal shall only be used by the authority of the Directors or of a committee of Directors authorised by the Directors. The Directors may determine who shall sign any instrument to which the Seal is affixed, and unless otherwise so determined every such instrument shall be signed by a Director or by such other person as the Directors may authorise.
31.2 The Company may have for use in any place or places outside the Islands a duplicate Seal or Seals, each of which shall be a reproduction of the Seal of the Company and, if the Directors so determine, shall have added on its face the name of every place where it is to be used.
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31.3 The Directors may by resolution determine (i) that any signature required by this Article need not be manual but may be affixed by some other method or system of reproduction or mechanical or electronic signature and/or (ii) that any document may bear a printed reproduction of the Seal in lieu of affixing the Seal thereto.
31.4 No document or deed otherwise duly executed and delivered by or on behalf of the Company shall be regarded as invalid merely because at the date of the delivery of the deed or document, the Director, Secretary or other officer or person who shall have executed the same or affixed the Seal thereto, as the case may be, for and on behalf of the Company shall have ceased to hold such office and authority on behalf of the Company.
| 32. | Dividends |
32.1 Subject to any rights and restrictions for the time being attached to any shares and subject to the provisions of these Articles, the Directors may from time to time declare dividends (including interim dividends) and other distributions on shares in issue and authorise payment of the same out of the funds of the Company lawfully available therefor, but no dividend shall exceed the amount recommended by the Directors.
32.2 Subject to the provisions of the Law and of these Articles, the Directors may declare dividends in accordance with the respective rights of the Members and authorise payment of the same out of the funds of the Company lawfully available therefor. If at any time the share capital is divided into different classes of shares, the Directors may pay dividends on shares which confer deferred or non-preferred rights with regard to dividends as well as on shares which confer preferential rights with regard to dividends, but no dividend shall be paid on shares carrying deferred or non-preferred rights if, at the time of payment, any preferential dividend is in arrears. The Directors may also pay at intervals settled by them any dividend payable at a fixed rate if it appears that there are sufficient funds of the Company lawfully available for distribution to justify the payment. Provided the Directors act in good faith they shall not incur any liability to the holders of shares conferring preferred rights for any loss they may suffer by the lawful payment of a dividend on any shares having deferred or non-preferred rights.
32.3 The Directors may, before recommending or declaring any dividend, set aside out of the funds legally available for distribution such sums as they think proper as a reserve or reserves which shall, at the discretion of the Directors, be applicable for meeting contingencies, or for equalising dividends or for any other purpose to which those funds may be properly applied and pending such application may, at the like discretion, either be employed in the business of the Company or be invested in such investments (other than shares in the capital of the Company) as the Directors may from time to time think fit.
32.4 Except as otherwise provided by the rights attached to shares and subject to Article 15, all dividends shall be paid in proportion to the number of shares a Member holds as of the date the dividend is declared; save that (a) if any share is issued on terms providing that it shall rank for dividend as from a particular date, that share shall rank for dividend accordingly; and (b) where the Company has shares in issue which are not fully paid up (as to par value) the Company may pay dividends in proportion to the amount paid up on each share.
32.5 The Directors may deduct from a dividend or other amounts payable to a person in respect of a share any amounts due from him to the Company on account of a call or otherwise in relation to a share.
32.6 Any Ordinary Resolution or Directors’ resolution declaring a dividend may direct that it shall be satisfied wholly or partly by the distribution of assets and, where any difficulty arises in regard to such distribution, the Directors may settle the same and in particular may issue fractional certificates and fix the value for distribution of any assets and may determine that cash shall be paid to any Member upon the footing of the value so fixed in order to adjust the rights of Members and may vest any assets in trustees.
32.7 Any dividend or other moneys payable on or in respect of a share may be paid by cheque sent by post to the registered address of the person entitled or, if two or more persons are the holders of the share or are jointly entitled to it by reason of the death or bankruptcy of the holder, to the registered address of that one of those persons who is first named in the Register of Members or to such person and to such address as the person or persons entitled may in writing direct. Subject to any applicable law or regulations, every cheque shall be made payable to the order of the person or persons entitled or to such other person as the person or persons entitled may in writing direct and payment of the cheque shall be a good discharge to the Company. Any joint holder or other person jointly entitled to a share as aforesaid may give receipts for any dividend or other moneys payable in respect of the share.
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32.8 No dividend or other moneys payable in respect of a share shall bear interest against the Company unless otherwise provided by the rights attached to the share.
32.9 Any dividend which has remained unclaimed for six years from the date when it became due for payment shall, if the Directors so resolve, be forfeited and cease to remain owing by the Company.
32.10 Notwithstanding anything to the contrary herein, for the financial years set forth below, dividends and other distributions on any shares in issue (or payments of the same out of the funds of the Company) may not exceed the following rates, in each case as calculated in accordance with the International Financial Reporting Standards, as issued by the International Accounting Standards Board:
| For the financial year of the Closing (as defined in the Business Combination Agreement) | 25% of the Company’s net income for such financial year | |
| For the first financial year following the Closing (as defined in the Business Combination Agreement) | 50% of the Company’s net income for such financial year | |
| For the second financial year following the Closing (as defined in the Business Combination Agreement) | 50% of the Company’s net income for such financial year |
| 33. | Financial Year, Accounting Records and Audit |
33.1 Unless the Directors otherwise prescribe, the financial year of the Company shall end on 31 December in each year and, following the year of incorporation, shall begin on 1 January each year.
33.2 The books of account relating to the Company’s affairs shall be kept in such manner as may be determined from time to time by the Directors. The books of account shall be kept at the registered office or at such other place or places as the Directors think fit, and shall always be open to the inspection of the Directors.
33.3 No Member shall be entitled to require discovery of or any information with respect to any detail of the Company’s trading or any matter which is or may be in the nature of a trade secret or secret process which may relate to the conduct of the business of the Company and which in the opinion of the Directors it will be inexpedient in the interests of the Members of the Company to communicate to the public.
33.4 The Directors may from time to time determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books and corporate records of the Company or any of them shall be open to the inspection of Members not being Directors, and no Member (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by applicable law, the listing rules of any Designated Stock Exchange or authorised by the Directors.
33.5 Subject to Articles 33.4, and 33.6 a printed copy of the Directors’ report, if any, accompanied by the consolidated statements of financial position, profit or loss, comprehensive income (loss), cash flows and changes in shareholders’ equity, including every document required by the Law to be annexed thereto, made up to the end of the applicable financial year, shall be sent to the Members before the date of the general meeting and laid before the Company at the annual general meeting held in accordance with Article 16.2, provided that this Article 33.5 shall not require a copy of those documents to be sent to any person whose address the Company is not aware of or to more than one of the joint holders of any shares.
33.6 The requirement to send to a person referred to in Article 33.5 the documents referred to in that Article shall be deemed satisfied where, in accordance with all applicable laws, rules and regulations, including, without limitation, the rules of any Designated Stock Exchange, the Company publishes copies of the documents referred to in Article 33.5 on the Company’s Website, transmits it to SEC’s website or in any other permitted manner (including by sending any other form of electronic communication), and that person has agreed or is deemed by the Company to have agreed to treat the publication or receipt of such documents in such manner as discharging the Company’s obligation to send to him a copy of such documents.
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33.7 Subject to applicable law and to the rules of any Designated Stock Exchange, the accounts relating to the Company’s affairs shall be audited in such manner as may be determined from time to time by the Directors.
33.8 Every auditor of the Company shall have a right of access at all times to the books and accounts of the Company and shall be entitled to require from the Directors and officers of the Company such information and explanation as may be necessary for the performance of the duties of the auditors.
| 34. | Capitalisation of Profits |
34.1 The Directors may:
(a) subject as provided in this Article, resolve to capitalize any undivided profits of the Company not required for paying any preferential dividend (whether or not they are available for distribution) or any sum standing to the credit of the Company’s share premium account or capital redemption reserve;
(b) appropriate the sum resolved to be capitalised to the Members who would have been entitled to it if it were distributed by way of dividend and in the same proportions and apply such sum on their behalf either in or towards paying up the amounts, if any, for the time being unpaid on any shares held by them respectively, or in paying up in full unissued shares or debentures of the Company of a nominal amount equal to such sum, and allot the shares or debentures credited as fully paid to those Members, or as they may direct, in those proportions, or partly in one way and partly in the other, provided that on any such capitalization holders of Class A Ordinary Shares shall receive Class A Ordinary Shares (or rights to acquire Class A Ordinary Shares, as the case may be) and holders of Class B Ordinary Shares shall receive Class B Ordinary Shares (or rights to acquire Class B Ordinary Shares, as the case may be);
(c) resolve that any shares so allotted to any Member in respect of a holding by him of any partly- paid shares rank for dividend, so long as such shares remain partly paid, only to the extent that such partly paid shares rank for dividend;
(d) make such provision by the issue of fractional certificates or by payment in cash or otherwise as they determine in the case of shares or debentures becoming distributable under this Article in fractions; and
(e) authorise any person to enter on behalf of all the Members concerned into an agreement with the Company providing for the allotment to them respectively, credited as fully paid, of any shares or debentures to which they may be entitled upon such capitalization, any agreement made under such authority being binding on all such Members.
| 35. | Share Premium Account |
35.1 The Directors shall in accordance with Section 34 of the Law establish a share premium account and shall carry to the credit of such account from time to time a sum equal to the amount or value of the premium paid on the issue of any share or capital contributed as described in Article 4.12.
35.2 There shall be debited to any share premium account:
(a) on the redemption or purchase of a share the difference between the nominal value of such share and the redemption or purchase price provided always that at the discretion of the Directors such sum may be paid out of the profits of the Company or, if permitted by Section 37 of the Law, out of capital; and
(b) any other amounts paid out of any share premium account as permitted by Section 34 of the Law.
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| 36. | Notices |
36.1 Except as otherwise provided in these Articles and subject to the rules of any Designated Stock Exchange, any notice or document may be served by the Company or by the Person entitled to give notice to any Member either personally or by posting it airmail or by air courier service in a prepaid letter addressed to such Member at his address as appearing in the Register of Members, or by electronic mail to any electronic mail address such Member may have specified in writing for the purpose of such service of notices, or by advertisement in appropriate newspapers in accordance with the requirements of any Designated Stock Exchange, or by facsimile or by placing it on the Company’s Website. In the case of joint holders of a Share, all notices shall be given to that one of the joint holders whose name stands first in the Register of Members in respect of the joint holding, and notice so given shall be sufficient notice to all the joint holders.
36.2 Notices posted to addresses outside the Cayman Islands shall be forwarded by prepaid airmail with a copy by electronic mail.
36.3 Any notice or other document, if served by:
(a) post, shall be deemed to have been served five days after the time when the letter containing the same is posted;
(b) facsimile, shall be deemed to have been served upon production by the transmitting facsimile machine of a report confirming transmission of the facsimile in full to the facsimile number of the recipient;
(c) recognised courier service, shall be deemed to have been served 48 hours after the time when the letter containing the same is delivered to the courier service;
(d) electronic mail, shall be deemed to have been served immediately upon the time of the transmission by electronic mail; or
(e) placing it on the Company’s Website, shall be deemed to have been served one (1) hour after the notice or document is placed on the Company’s Website.
In proving service by post or courier service it shall be sufficient to prove that the letter containing the notice or documents was properly addressed and duly posted or delivered to the courier service.
36.4 A Member present, either in person or by proxy, at any meeting of the Company or of the holders of any class of shares in the Company shall be deemed to have received notice of the meeting, and, where requisite, of the purpose for which it was called.
36.5 Any notice or document delivered or sent by post to or left at the registered address of any Member in accordance with the terms of these Articles shall notwithstanding that such Member be then dead or bankrupt, and whether or not the Company has notice of his death or bankruptcy, be deemed to have been duly served in respect of any Share registered in the name of such Member as sole or joint holder, unless his name shall at the time of the service of the notice or document, have been removed from the Register of Members as the holder of the Share, and such service shall for all purposes be deemed a sufficient service of such notice or document on all Persons interested (whether jointly with or as claiming through or under him) in the Share.
36.6 Notice of every general meeting of the Company shall be given to:
(a) all Members holding Shares with the right to receive notice and who have supplied to the Company an address, facsimile number or email address for the giving of notices to them; and
(b) every Person entitled to a Share in consequence of the death or bankruptcy of a Member, who but for his death or bankruptcy would be entitled to receive notice of the meeting.
No other Person shall be entitled to receive notices of general meetings
| 37. | Winding Up |
37.1 The Board shall have the power in the name and on behalf of the Company to present a petition to the court for the Company to be wound up.
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37.2 If the Company is wound up, the liquidator may, with the sanction of a Special Resolution and any other sanction required by the Law, divide among the Members in specie the whole or any part of the assets of the Company and may, for that purpose, value any assets and determine how the division shall be carried out as between the Members or different classes of Members. The liquidator may, with the like sanction, vest the whole or any part of the assets in trustees upon such trusts for the benefit of the Members as he with the like sanction determines, but no Member shall be compelled to accept any assets upon which there is a liability.
37.3 If the Company shall be wound up and the assets available for distribution amongst the Members as such shall be insufficient to repay the whole of the paid up capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the Members in proportion to the capital paid up, or which ought to have been paid up, at the commencement of the winding up, on the shares held by them respectively. If in a winding up the assets available for distribution amongst the Members shall be more than sufficient to repay the whole of the capital paid up at the commencement of the winding up, the excess shall be distributed pari passu amongst the Members in proportion to the capital paid up at the commencement of the winding up on the shares held by them respectively. This Article is to be without prejudice to the rights of the holders of shares issued upon special terms and conditions.
| 38. | Indemnity |
38.1 Every Indemnified Person for the time being and from time to time of the Company and the personal representatives of the same shall be indemnified and secured harmless out of the assets and funds of the Company against all actions, proceedings, costs, charges, expenses, losses, damages, liabilities, judgments, fines, settlements and other amounts (including reasonable attorneys’ fees and expenses and amounts paid in settlement and costs of investigation (collectively “Losses”) incurred or sustained by him otherwise than by reason of his own dishonesty, willful default or fraud in or about the conduct of the Company’s business or affairs (including as a result of any mistake of judgment) or in the execution or discharge of his duties, powers, authorities or discretions, including without prejudice to the generality of the foregoing, any Losses incurred by him in defending or investigating (whether successfully or otherwise) any civil, criminal, investigative and administrative proceedings concerning or in any way related to the Company or its affairs in any court whether in the Islands or elsewhere. Such Losses incurred in defending or investigating any such proceeding shall be paid by the Company as they are incurred upon receipt, in each case, of an undertaking by or on behalf of the Indemnified Person to repay such amounts if it is ultimately determined by a non-appealable order of a court of competent jurisdiction that such Indemnified Person is not entitled to indemnification hereunder with respect thereto.
38.2 No such Indemnified Person of the Company and the personal representatives of the same shall be liable (i) for the acts, receipts, neglects, defaults or omissions of any other Director or officer or agent of the Company or (ii) by reason of his having joined in any receipt for money not received by him personally or in any other act to which he was not a direct party for conformity or (iii) for any loss on account of defect of title to any property of the Company or (iv) on account of the insufficiency of any security in or upon which any money of the Company shall be invested or (v) for any loss incurred through any bank, broker or other agent or any other party with whom any of the Company’s property may be deposited or (vi) for any loss, damage or misfortune whatsoever which may happen in or arise from the execution or discharge of the duties, powers, authorities or discretions of his office or in relation thereto or (vii) for any loss occasioned by any negligence, default, breach of duty, breach of trust, error of judgement or oversight on such Person’s part, unless he has acted dishonestly, with willful default or through fraud.
38.3 The Company hereby acknowledges that certain Indemnified Persons may have certain rights to indemnification, advancement of expenses and/or insurance from or against (other than directors’ and officers’ or similar insurance obtained or maintained by or on behalf of the Company or any of its subsidiaries, including any such insurance obtained or maintained pursuant to Article 38.4 hereof) Other Indemnitors. The Company hereby agrees that: (i) it is the indemnitor of first resort (i.e., its obligations to an Indemnified Person are primary and any obligation of any Other Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such Indemnified Person are secondary); (ii) it shall be required to advance the full amount of expenses incurred by an Indemnified Person and shall be liable for the full amount of all Losses to the extent legally permitted and as required by the terms of these Articles (or any other agreement between the Company and an Indemnified Person) without regard to any rights an Indemnified Person may have against any Other Indemnitors; and (iii) it irrevocably waives, relinquishes and releases any Other Indemnitors from any and all claims against the Other Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by any Other Indemnitors on behalf of an Indemnified Person with respect to any claim for which such Indemnified Person has sought indemnification from the Company shall affect the foregoing, and without prejudice to Article 39 below, Other Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnified Person against the Company. For the avoidance of doubt, no Person or entity providing Directors’ or officers’ or similar insurance obtained or maintained by or on behalf of the Company or any of its subsidiaries, including any Person providing such insurance obtained or maintained pursuant to Article 38.4 hereof, shall be an Other Indemnitor.
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38.4 The Directors may exercise all the powers of the Company to purchase and maintain insurance for the benefit of a Person who is or was (whether or not the Company would have the power to indemnify such Person against such liability under the provisions of this Article 38 or under applicable law): (a) a Director, alternate Director, Secretary or auditor of the Company or of a company which is or was a subsidiary of the Company or in which the Company has or had an interest (whether direct or indirect); or (b) the trustee of a retirement benefits scheme or other trust in which a person referred to in Article 38.1 is or has been interested, indemnifying him against any liability which may lawfully be insured against by the Company.
| 39. | Claims Against the Company |
Notwithstanding Article 38.3, unless otherwise determined by a majority of the Board, in the event that (i) any Member (the “Claiming Party”) initiates or asserts any claim or counterclaim (“Claim”) or joins, offers substantial assistance to or has a direct financial interest in any Claim against the Company and (ii) the Claiming Party (or the third party that received substantial assistance from the Claiming Party or in whose Claim the Claiming Party had a direct financial interest) does not obtain a judgment on the merits in which the Claiming Party prevails, then each Claiming Party shall, to the fullest extent permissible by law, be obligated jointly and severally to reimburse the Company for all fees, costs and expenses (including, but not limited to, all reasonable attorneys’ fees and other litigation expenses) that the Company may incur in connection with such Claim.
| 40. | Untraceable Members |
40.1 Without prejudice to the rights of the Company under Article 40.2, the Company may cease sending cheques for dividend entitlements or dividend warrants by post if such cheques or warrants have been left uncashed on two (2) consecutive occasions. However, the Company may exercise the power to cease sending cheques for dividend entitlements or dividend warrants after the first occasion on which such a cheque or warrant is returned undelivered.
40.2 The Company shall have the power to sell, in such manner as the Board thinks fit, any shares of a Member who is untraceable, but no such sale shall be made unless:
(a) all cheques or warrants in respect of dividends of the shares in question, being not less than three (3) in total number, for any sum payable in cash to the holder of such shares in respect of them sent during the relevant period in the manner authorised by the Articles of the Company have remained uncashed;
(b) so far as it is aware at the end of the relevant period, the Company has not at any time during the relevant period received any indication of the existence of the Member who is the holder of such shares or of a person entitled to such shares by death, bankruptcy or operation of law; and
(c) the Company, if so required by the rules governing the listing of shares on the Designated Stock Exchange, has given notice to, and caused advertisement in newspapers to be made in accordance with the requirements of, the Designated Stock Exchange of its intention to sell such shares in the manner required by the Designated Stock Exchange, and a period of three (3) months or such shorter period as may be allowed by the Designated Stock Exchange has elapsed since the date of such advertisement.
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For the purposes of the foregoing, the “relevant period” means the period commencing twelve (12) years before the date of publication of the advertisement referred to in this Article 40.2 and ending at the expiry of the period referred to in that paragraph.
40.3 To give effect to any such sale the Board may authorise some person to transfer the said shares and an instrument of transfer signed or otherwise executed by or on behalf of such persons shall be as effective as if it had been executed by the registered holder or the person entitled by transmission to such shares, and the purchaser shall not be bound to see to the application of the purchase money nor shall his title to the shares be affected by any irregularity or invalidity in the proceedings relating to the sale. The net proceeds of the sale will belong to the Company and upon receipt by the Company of such net proceeds it shall become indebted to the former Member for an amount equal to such net proceeds. No trust shall be created in respect of such debt and no interest shall be payable in respect of it and the Company shall not be required to account for any money earned from the net proceeds which may be employed in the business of the Company or as it thinks fit. Any sale under this Article shall be valid and effective notwithstanding that the Member holding the shares sold is dead, bankruptcy or otherwise under any legal disability or incapacity.
| 41. | Amendment of Memorandum of Articles |
41.1 Subject to the Law, the Company may by Special Resolution change its name or change the provisions of the Memorandum with respect to its objects, powers or any other matter specified therein.
41.2 Subject to the Law and as provided in these Articles (including in Article 41.3), the Company may at any time and from time to time by Special Resolution, alter or amend these Articles in whole or in part.
41.3 In addition to any rights provided by Law or otherwise set forth in these Articles, the Company shall not,
(a) without the approval by vote or written consent of the holders of a majority of the voting power of the Class A Ordinary Shares then outstanding, voting exclusively and as a separate class, amend these Articles in the event such amendment would adversely affect the rights of the holders of the Class A Ordinary Shares or otherwise have an adverse effect on such rights;
(b) for so long as Sponsor has the right to designate a Director to the Board pursuant to Article 21.2(b), without the approval by vote or written consent of the Sponsor, amend Articles 21.2(b) or 21.9 to the detriment of the Sponsor, nor amend Article 41.3(a) or this Article 41.3(b);
(c) for so long as Opportunity has the right to designate a Director to the Board pursuant to Article 21.2(c), without the approval by vote or written consent of Opportunity, amend Articles 4.1(b)(i), 21.2(c) or 21.9 to the detriment of Opportunity, nor amend Article 41.3(a), this Article 41.3(c) or Article 41.3(d); and
(d) for so long as Opportunity has the right to designate a Director to the Board pursuant to Article 21.2(c), without the approval by vote or written consent of Opportunity, amend or terminate any policies with respect to related party transactions of the Company.
41.4 If the holders of the Shares vote in favour of any matter set out in Articles 41.3(a) to 41.3(d) but the requisite approvals set out in Article 41.3(a), 41.3(b), 41.3(c) and/or 41.3(d), as applicable, have not been obtained in accordance with Article 41.3(a), 41.3(b), 41.3(c) and/or 41.3(d), as applicable, the applicable holders referenced in Article 41.3(a), 41.3(b), 41.3(c) and/or 41.3(d), as applicable, shall have, in such vote, voting rights equal to the aggregate voting power of all the holders of Shares who voted in favour of such matter plus one.
| 42. | Transfer by Way of Continuation |
The Company may by Special Resolution resolve to be registered by way of continuation in a jurisdiction outside the Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing. In furtherance of a resolution adopted pursuant to this Article, the Directors may cause an application to be made to the Registrar of Companies to deregister the Company in the Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing and may cause all such further steps as they consider appropriate to be taken to effect the transfer by way of continuation of the Company.
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| 43. | Merger and Consolidation |
43.1 Subject to the Law and the rules of any Designated Stock Exchange, the Company shall, with the approval of a Special Resolution, have the power to merge or consolidate with one or more constituent companies (as defined in the Law), upon such terms as the Directors may determine.
43.2 For the avoidance of doubt: a) statutory mergers and consolidations have the specific meaning as set out in Act, b) no additional requirements are imposed by the Articles, and c) transactions which are not deemed by the Directors, in their sole discretion following due deliberations and advice, to be a merger or consolidation as set out in the Law, do not require a Special Resolution and may be carried out by the Company with the approval of Directors and shall not (unless otherwise set out in these Articles or the Law) require separate shareholder approval.
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Exhibit 4.2
The Companies Act (As Revised) of the Cayman Islands
Plan of Merger
This plan of merger (the "Plan of Merger") is made on 3 March 2023 between Ambipar Emergency Response, an exempted company incorporated with limited liability in the Cayman Islands (the "Surviving Company"), and HPX Corp., an exempted company incorporated with limited liability in the Cayman Islands (the "Merging Company").
Whereas the Merging Company is a Cayman Islands exempted company and is entering into this Plan of Merger pursuant to the provisions of Part XVI of the Companies Act (As Revised) (the "Statute").
Whereas the Surviving Company is a Cayman Islands exempted company and is entering into this Plan of Merger pursuant to the provisions of Part XVI of the Statute.
Whereas the directors of the Merging Company and the directors of the Surviving Company deem it desirable and in the commercial interests of the Merging Company and the Surviving Company, respectively, that the Merging Company be merged with and into the Surviving Company and that the undertaking, property and liabilities of the Merging Company vest in the Surviving Company (the "Merger").
Terms not otherwise defined in this Plan of Merger shall have the meanings given to them under the Business Combination Agreement, dated as of 5 July 2022 (the "Business Combination Agreement") by and among the Surviving Company, the Merging Company, Ambipar Merger Sub, an exempted company incorporated with limited liability in the Cayman Islands, Emergência Participações S.A., a sociedade anônima organized under the laws of Brazil, and Ambipar Participações e Empreendimentos S.A., a sociedade anônima organized under the laws of Brazil. A copy of the Business Combination Agreement is annexed at Annexure 1 hereto.
Now therefore this Plan of Merger provides as follows:
| 1 | The constituent companies (as defined in the Statute) to this Merger are the Surviving Company and the Merging Company. |
| 2 | The surviving company (as defined in the Statute) is the Surviving Company. |
| 3 | The registered office of the Surviving Company is CO Services Cayman Limited, P.O. Box 10008, Willow House, Cricket Square, Grand Cayman, KY1-1001, Cayman Islands, and the registered office of the Merging Company is c/o Maples Corporate Services Limited of PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands. |
| 4 | Immediately prior to the Effective Date (as defined below), the share capital of the Surviving Company will be US$50,000 divided into 500,000,000 ordinary shares of a par value of US$0.0001 each. |
| 5 | After the SPAC Sponsor Recapitalization and immediately prior to the Effective Date (as defined below), the share capital of the Merging Company will be US$55,500 divided into 500,000,000 Class A ordinary shares of a par value of US$0.0001 each, 50,000,000 Class B ordinary shares of a par value of US$0.0001 each and 5,000,000 preference shares of a par value of US$0.0001 each. |
| 6 | In accordance with section 234 of the Statute, the date on which it is intended that the Merger is to take effect (the "Effective Date") is the date specified as such in a notice to the Registrar of Companies signed by a director of each of the Surviving Company and the Merging Company. |
| 7 | The terms and conditions of the Merger, including the manner and basis of converting shares in each constituent company into shares in the Surviving Company, are set out in the Business Combination Agreement in the form annexed at Annexure 1 hereto. |
| 8 | The memorandum and articles of association of the Surviving Company shall be amended and restated by the deletion in their entirety and the substitution and adoption in their place of the Amended and Restated Memorandum and Articles of Association in the form annexed at Annexure 2 hereto upon the Merger and the authorised share capital of the Surviving Company shall, upon the Merger, be US$50,000 divided into 500,000,000 shares of a nominal or par value of US$0.0001 each, 250,000,000 of which being designated as Class A Ordinary Shares, 150,000,000 of which being designated as Class B Ordinary Shares (which Class B Ordinary Shares may be converted into Class A Ordinary Shares in the manner contemplated in the Amended and Restated Memorandum and Articles of Association annexed to the Plan of Merger), and 100,000,000 of which being designated as such class or classes (howsoever designated) and having the rights as the directors of the Company may determine from time to time in accordance with the Amended and Restated Memorandum and Articles of Association. |
| 9 | The rights and restrictions attaching to the shares in the Surviving Company on the Effective Date are set out in the Amended and Restated Memorandum and Articles of Association of the Surviving Company in the form annexed at Annexure 2 hereto. |
| 10 | There are no amounts or benefits which are or shall be paid or payable to any director of either constituent company or the Surviving Company consequent upon the Merger. |
| 11 | The Merging Company has granted no fixed or floating security interests that are outstanding as at the date of this Plan of Merger. |
| 12 | The Surviving Company has granted no fixed or floating security interests that are outstanding as at the date of this Plan of Merger. |
| 13 | The names and addresses of each director of the surviving company (as defined in the Statute) are: |
| 13.1 | Carlos Augusto Leone Piani of 1000 N. West Street, Suite 1200, Wilmington, Delaware, 19801, United States of America; |
| 13.2 | Marcos Vinícius Bernardes Peigo of 1000 N. West Street, Suite 1200, Wilmington, Delaware, 19801, United States of America; |
| 13.3 | Bernardo Vieira Hees 1000 N. West Street, Suite 1200, Wilmington, Delaware, 19801, United States of America; |
| 13.4 | Maria Salete Garcia Pinheiro 1000 N. West Street, Suite 1200, Wilmington, Delaware, 19801, United States of America; |
| 13.5 | Rodrigo Guedes Xavier 1000 N. West Street, Suite 1200, Wilmington, Delaware, 19801, United States of America; |
| 13.6 | Wolney Edirley Gonçalves Betiol of 1000 N. West Street, Suite 1200, Wilmington, Delaware, 19801, United States of America; and |
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| 13.7 | Rafael Salvador Grisolia of 1000 N. West Street, Suite 1200, Wilmington, Delaware, 19801, United States of America. |
| 14 | This Plan of Merger has been approved by the board of directors of each of the Surviving Company and the Merging Company pursuant to section 233(3) of the Statute. |
| 15 | This Plan of Merger has been authorised by the shareholder of the Surviving Company pursuant to section 233(6) of the Statute by way of unanimous written resolutions of the shareholder of the Surviving Company. This Plan of Merger has been authorised by the shareholders of the Merging Company pursuant to section 233(6) of the Statute by way of resolutions passed at an extraordinary general meeting of the Merging Company. |
| 16 | At any time prior to the Effective Date, this Plan of Merger may be: |
| 16.1 | terminated by the board of directors of either the Surviving Company or the Merging Company; |
| 16.2 | amended by the board of directors of both the Surviving Company and the Merging Company to: |
| (a) | change the Effective Date provided that such changed date shall not be a date later than the ninetieth day after the date of registration of this Plan of Merger with the Registrar of Companies; and |
| (b) | effect any other changes to this Plan of Merger which the directors of both the Surviving Company and the Merging Company deem advisable, provided that such changes do not materially adversely affect any rights of the shareholders of the Surviving Company or the Merging Company, as determined by the directors of both the Surviving Company and the Merging Company, respectively. |
| 17 | This Plan of Merger may be executed in counterparts. |
| 18 | This Plan of Merger shall be governed by and construed in accordance with the laws of the Cayman Islands. |
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In witness whereof the parties hereto have caused this Plan of Merger to be executed on the day and year first above written.
| SIGNED by | ) | ||
| Duly authorised for | ) | /s/ Thiago da Costa Silva | |
| and on behalf of | ) | Name: Thiago da Costa Silva | |
| Ambipar Emergency Response | ) | Title: Director | |
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| SIGNED by | ) | ||
| Duly authorised for | ) | /s/ Carlos Augusto Leone Piani | |
| and on behalf of | ) | Name: Carlos Augusto Leone Piani | |
| HPX Corp. | ) | Title: Director | |
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Annexure 1
Business Combination Agreement
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Annexure 2
Amended and Restated Memorandum and Articles of Association
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Exhibit 4.3
The Companies Act (As Revised) of the Cayman Islands
Plan of Merger
This plan of merger (the "Plan of Merger") is made on 3 March 2023 between Ambipar Emergency Response, an exempted company incorporated with limited liability in the Cayman Islands (the "Surviving Company") and Ambipar Merger Sub, an exempted company incorporated with limited liability in the Cayman Islands (the "Merging Company").
Whereas the Merging Company is a Cayman Islands exempted company and is entering into this Plan of Merger pursuant to the provisions of Part XVI of the Companies Act (As Revised) (the "Statute").
Whereas the Surviving Company is a Cayman Islands exempted company and is entering into this Plan of Merger pursuant to the provisions of Part XVI of the Statute.
Whereas the directors of the Merging Company and the directors of the Surviving Company deem it desirable and in the commercial interests of the Merging Company and the Surviving Company, respectively, that the Merging Company be merged with and into the Surviving Company and that the undertaking, property and liabilities of the Merging Company vest in the Surviving Company (the "Merger").
Terms not otherwise defined in this Plan of Merger shall have the meanings given to them under the Business Combination Agreement, dated as of 5 July 2022 (the "Business Combination Agreement") by and among the Surviving Company, the Merging Company, HPX Corp., an exempted company incorporated with limited liability in the Cayman Islands, Emergência Participações S.A., a sociedade anônima organized under the laws of Brazil and Ambipar Participações e Empreendimentos S.A., a sociedade anônima organized under the laws of Brazil. A copy of the Business Combination Agreement is annexed at Annexure 1 hereto.
Now therefore this Plan of Merger provides as follows:
| 1 | The constituent companies (as defined in the Statute) to this Merger are the Surviving Company and the Merging Company. |
| 2 | The surviving company (as defined in the Statute) is the Surviving Company. |
| 3 | The registered office of the Surviving Company is CO Services Cayman Limited, P.O. Box 10008, Willow House, Cricket Square, Grand Cayman, KY1-1001, Cayman Islands, and the registered office of the Merging Company is CO Services Cayman Limited, PO Box 10008, Willow House, Cricket Square, Grand Cayman, KY1-1001, Cayman Islands. |
| 4 | Immediately prior to the Effective Date (as defined below), the share capital of the Surviving Company will be US$50,000 divided into 500,000,000 shares of a nominal or par value of US$0.0001 each, 250,000,000 of which being designated as Class A Ordinary Shares, 150,000,000 of which being designated as Class B Ordinary Shares (which Class B Ordinary Shares may be converted into Class A Ordinary Shares in the manner contemplated in the Amended and Restated Memorandum and Articles of Association annexed to the Plan of Merger), and 100,000,000 of which being designated as such class or classes (howsoever designated) and having the rights as the directors of the Company may determine from time to time in accordance with the Amended and Restated Memorandum and Articles of Association. |
| 5 | Immediately prior to the Effective Date (as defined below), the share capital of the Merging Company will be US$50,000 divided into 500,000,000 ordinary shares of a par value of US$0.0001 each. |
| 6 | In accordance with section 234 of the Statute, the date on which it is intended that the Merger is to take effect (the "Effective Date") is the date specified as such in a notice to the Registrar of Companies signed by a director of each of the Surviving Company and the Merging Company. |
| 7 | The terms and conditions of the Merger, including the manner and basis of converting shares in each constituent company into shares in the Surviving Company, are set out in the Business Combination Agreement in the form annexed at Annexure 1 hereto. |
| 8 | The rights and restrictions attaching to the shares in the Surviving Company are set out in the Amended and Restated Memorandum and Articles of Association of the Surviving Company in the form annexed at Annexure 2 hereto. |
| 9 | The Amended and Restated Memorandum and Articles of Association of the Surviving Company immediately prior to the Merger shall be its Memorandum and Articles of Association after the Merger and the authorised share capital of the Surviving Company immediately prior to the Merger shall be the authorised share capital of the Surviving Company immediately after the Merger. |
| 10 | There are no amounts or benefits which are or shall be paid or payable to any director of either constituent company or the Surviving Company consequent upon the Merger. |
| 11 | The Merging Company has granted no fixed or floating security interests that are outstanding as at the date of this Plan of Merger. |
| 12 | The Surviving Company has granted no fixed or floating security interests that are outstanding as at the date of this Plan of Merger. |
| 13 | The names and addresses of each director of the surviving company (as defined in the Statute) are: |
| 13.1 | Tércio Borlenghi Junior of Avenida Angélica, 2346, 5th floor, Higienópolis, São Paulo, SP, Brazil; |
| 13.2 | Izabel Cristina Andriotti Cruz de Oliveira of Avenida Angélica, 2346, 5th floor, Higienópolis, São Paulo, SP, Brazil; |
| 13.3 | Alessandra Bessa Alves de Melo of Avenida Angélica, 2346, 5th floor, Higienópolis, São Paulo, SP, Brazil; |
| 13.4 | Thiago da Costa Silva of Avenida Angélica, 2346, 5th floor, Higienópolis, São Paulo, SP, Brazil; |
| 13.5 | Mariana Loyola of Avenida Angélica, 2346, 5th floor, Higienópolis, São Paulo, SP, Brazil; |
| 13.6 | Carlos Augusto Leone Piani of 1000 N. West Street, Suite 1200, Wilmington, Delaware, 19801, United States of America; and |
| 13.7 | Victor Almeida of Rua Visconde de Pirajá, 351, 14th floor (part), Ipanema, Rio de Janeiro, RJ, Brazil. |
| 14 | This Plan of Merger has been approved by the board of directors of each of the Surviving Company and the Merging Company pursuant to section 233(3) of the Statute. |
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| 15 | This Plan of Merger has been authorised by the shareholders of the Surviving Company pursuant to section 233(6) of the Statute by way of resolutions passed at an extraordinary general meeting of the Surviving Company. This Plan of Merger has been authorised by the shareholder of the Merging Company pursuant to section 233(6) of the Statute by way of unanimous written resolutions of the shareholder of the Merging Company. |
| 16 | At any time prior to the Effective Date, this Plan of Merger may be: |
| 16.1 | terminated by the board of directors of either the Surviving Company or the Merging Company; |
| 16.2 | amended by the board of directors of both the Surviving Company and the Merging Company to: |
| (a) | change the Effective Date provided that such changed date shall not be a date later than the ninetieth day after the date of registration of this Plan of Merger with the Registrar of Companies; and |
| (b) | effect any other changes to this Plan of Merger which the directors of both the Surviving Company and the Merging Company deem advisable, provided that such changes do not materially adversely affect any rights of the shareholders of the Surviving Company or the Merging Company, as determined by the directors of both the Surviving Company and the Merging Company, respectively. |
| 17 | This Plan of Merger may be executed in counterparts. |
| 18 | This Plan of Merger shall be governed by and construed in accordance with the laws of the Cayman Islands. |
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In witness whereof the parties hereto have caused this Plan of Merger to be executed on the day and year first above written.
| SIGNED by | ) | ||
| Duly authorised for | ) | /s/ Carlos Augusto Leone Piani | |
| and on behalf of | ) | Name: Carlos Augusto Leone Piani | |
| Ambipar Emergency Response | ) | Title: Director | |
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| SIGNED by | ) | ||
| Duly authorised for | ) | /s/ Thiago da Costa Silva | |
| and on behalf of | ) | Name: Thiago da Costa Silva | |
| Ambipar Merger Sub | ) | Title: Director | |
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Annexure 1
Business Combination Agreement
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Annexure 2
Amended and Restated Memorandum and Articles of Association
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Exhibit 4.12
Cost Sharing Agreement
This Cost Sharing Agreement (this “Agreement”), dated as of March 3, 2023 (the “Effective Date”), is by and among Ambipar Participações e Empreendimentos S.A., a Brazilian corporation enrolled with the CNPJ/ME under No. 12.648.266/0001-24, with head offices at Av. Pacaembu No. 1088, room 09, Pacaembu, at the City and State of São Paulo, Zip Code 01234-000 (“Ambipar”), Emergência Participações S.A., a company organized under the laws of Brazil, with head offices at Avenida Angélica, No. 2346, 5th floor, room 04, Consolação, in the City and State of São Paulo, Brazil, Zip Code 01.228-200, enrolled with the CNPJ/ME under No. 10.645.019/0001-49 (“Emergência”) and its subsidiaries listed in Exhibit A hereto (each a “Subsidiary” and jointly with Emergência, the “Recipients”. Ambipar and the Recipients are hereinafter referred to individually as a “Party” and, collectively, as the “Parties”, and, as intervening consenting party, Ambipar Emergency Response, an exempted company incorporated with limited liability in the Cayman Islands, with registered offices at CO Services Cayman Limited, P.O. Box 10008, Willow House, Cricket Square, Grand Cayman, KY1-1001 (“New PubCo”).
WHEREAS, Ambipar is a holding company with investments in entities that perform activities related to the collection, transport, management and recovery of waste, reverse manufacturing, prevention, training, and emergency assistance;
WHEREAS, the Recipients are Controlled by Ambipar;
WHEREAS, pursuant to the terms and subject to the conditions of that certain Business Combination Agreement dated July 5, 2022 by and among New PubCo, Ambipar, Emergência, Ambipar Merger Sub and HPX Corp. by which the parties thereto have agreed on the terms of a joint investment in Emergência (“Business Combination Agreement”);
WHEREAS, the Recipients wish that Ambipar provides certain shared administrative activities to the Recipients under and pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I
DEFINED TERMS
Section 1.1 Defined Terms. Capitalized terms used in this Agreement shall have the meanings set forth in this Agreement. In addition, for purposes of this Agreement, the following terms, when used in this Agreement, shall have the following meanings:
(a) “Activities” means organization and corporate support activities, marketing, compliance, legal, IT, treasury, controllership, human resources, invoicing, debt collection, project assessment, accounting documentation, fleet management, quality function, labor safety, investor relations and sustainability advisory services.
(b) “Actual Monthly Ambipar Response Expenses” means the Monthly Ambipar Response Expenses actually incurred by the Recipients in a calendar month.
(c) “Actual Ambipar Response Expenses” means with respect to any given calendar year, the sum of all the Actual Monthly Ambipar Response Expenses incurred in each month of such calendar year.
(d) “Additional Activities” means any additional activities not covered by the terms of this Agreement that the Parties may mutually agree in writing (by means of the execution of an amendment to this Agreement) that will be performed, managed or executed by Ambipar to support the growth and development of the Recipients.
(e) “Affiliate” means, as applied to any Person, any other Person directly or indirectly Controlling, Controlled by or under direct or indirect common Control with, such Person.
(f) “Ambipar Environmental Business” means the activities carried out by Environmental ESG Participações S.A and its subsidiaries.
(g) “Ambipar Response Business” means the activities carried out by New Pubco and its subsidiaries.
(h) “Ambipar Response Expenses” means the Expenses multiplied by the Expenses Participation. For the calendar year 2022, the Ambipar Response Expenses is equal to twelve million nine-hundred thousand Brazilian Reais (R$12,900,000.00).
(i) “Ambipar Response Expenses Adjustment Amount” means the Ambipar Response Expenses minus the Actual Ambipar Response Expenses.
(j) “Brazilian Civil Code” means Law 10,406, of January 10, 2002.
(k) “Business Day” means any day of the year other than (i) any Saturday or Sunday or (ii) any other day on which banks located in the City of São Paulo, Brazil are closed for business.
(l) “Control” means (including with correlative meanings, the terms “Controlling,” “Controlled by” and “under common Control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise, according to the Brazilian Corporate Law No . 6,404/76.
(m) “Expenses” means the aggregate amount of estimated expenses to be incurred by Ambipar for the Shared Activities in any given calendar year to be provided to the Ambipar Response Business and the Ambipar Environmental Business, as of the date hereof and updated at the end of each financial year of Ambipar thereafter.
(n) “Expenses Participation” means either the Revenue Participation or such other method to determine the allocation of Expenses between the Ambipar Environmental
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Business and the Ambipar Response Business as may be jointly determined by Ambipar and the Recipients in writing by its legal representatives, annually at the latest 60 (sixty) days before the end of the fiscal year, subject to the prior approval of New PubCo’s audit committee.
(o) “Data Protection Laws” mean any data protection or privacy Legal Requirements, whether currently in force or enacted during the Term, including from the Brazilian Federal Law No. 13,709/2018 (General Data Protection Law – LGPD), as amended, and its regulations.
(p) “Governmental Entity” means (a) any federal, provincial, state, local, municipal, foreign, national or international court, governmental commission, government or governmental authority, department, regulatory or administrative agency, board, bureau, agency or instrumentality, tribunal, arbitrator or arbitral body (public or private), or similar body; (b) any self-regulatory organization; or (c) any political subdivision of any of the foregoing.
(q) “Legal Requirement” means any federal, state, local, municipal, foreign or other law, statute, constitution, treaty, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling, injunction, judgment, order, assessment, writ or other legal requirement, administrative policy or guidance, collective bargaining agreement or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity.
(r) “Monthly Ambipar Response Expenses” means the Ambipar Response Expenses divided by twelve (12).
(s) “Order” mean any award, injunction, judgment, regulatory or supervisory mandate, order, writ, decree or ruling entered, issued, made, or rendered by any Governmental Entity that possesses competent jurisdiction.
(t) “Person” means any individual, corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any limited liability company or joint-stock company), firm or another enterprise, association, organization, entity or Governmental Entity.
(u) “Personnel” of a Person means any agents, employees, contractors or subcontractors engaged or appointed by such Person.
(v) “Representatives” means with respect to any Person, such Person’s directors, officers, managers, employees, agents, advisors and other representatives.
(w) “Revenue Participation” means the percentage of the net revenues of Ambipar generated by Ambipar Response Business as of the date hereof and updated at the end of each financial quarter of Ambipar thereafter.
(x) “Shared Activities” means the activities set forth in Exhibit B hereof and any Additional Activities that may be mutually agreed upon from time to time.
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(y) “Tax” or “Taxes” means, without duplication, (a) any and all federal, state, local and non-US taxes, including, without limitation, gross receipts, income, profits, license, sales, services use, estimated, occupation, value added, ad valorem, garancias ocasionales, transfer, franchise, withholding, payroll, social security, para-fiscal contributions, recapture, net worth, employment, escheat and unclaimed property obligations, excise and property taxes, assessments, stamp, environmental, registration, governmental charges, duties, levies, fees and other similar charges, in each case, imposed by a Governmental Entity (whether disputed or not), together with all interest, penalties and additions imposed by a Governmental Entity with respect to any such amounts; and (b) any liability for the payment of any amounts of the type described in (a) as a result of contract, transferee liability or of being a member of an affiliated, consolidated, combined, unitary or aggregate group or of any other relationship giving rise to statutory subsidiary liability (“responsabilidade tributária”), being the party legally responsible for withholding and/or collection (“responsável tributário”) and/or as tax successor (“sucessor tributário”).
(z) “Tax Authority” means any national, federal, state, local, or municipal Governmental Entity exercising authority to charge, audit, regulate or administer the imposition of Taxes (including the Brazilian Federal Revenue Service (Secretaria da Receita Federal do Brasil) and the U.S. Internal Revenue Service).
(aa) “Third Party” means any Person, other than Ambipar and the Recipients.
Section 1.2 Construction.
(a) As used in this Agreement, (i) each of the words “include,” “includes” or “including” shall be deemed to be followed by the phrase “without limitation,” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it; (ii) references to any specific Legal Requirement in this Agreement shall be deemed to refer to such as amended from time to time and to any rules or regulations and interpretations promulgated thereunder; (iii) words defined in the singular have the parallel meaning in the plural and vice versa; (iv) references to “written” or “in writing” include in electronic form; (v) the terms “hereof,” “herein,” “hereby,” “hereto,” “hereinafter,” “hereunder” and derivative or similar words shall, unless otherwise stated, be construed to refer to this entire Agreement as a whole, including the Exhibits and Schedules hereto, and not merely to any particular provision of this Agreement; (vi) references to articles, sections, clauses, exhibits and schedules are to the articles, sections and clauses of, and exhibits and schedules to, this Agreement, unless otherwise specified; (vii) terms defined in the text of this Agreement as having a particular meaning have such meaning throughout this Agreement and when used in any certificate or other document made or delivered pursuant hereto, except as otherwise indicated in this Agreement or unless otherwise defined therein; (viii) all references to “days” in this Agreement shall mean calendar days unless otherwise specified; (ix) words of any gender include each other gender; (x) the word “or” shall be disjunctive but not exclusive; (xi) reference to any Person includes such Person’s successors and permitted assigns; (xii) references to amounts of currency are references to Brazilian Reais unless otherwise indicated; and (xiii) all the agreements (including this Agreement), documents or instruments herein defined mean such agreements, documents or instruments as the same may from time to time be supplemented or amended or the terms thereof waived or modified to the extent permitted by, and in accordance with, the terms thereof.
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(b) Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, and if the last day of such period is not a Business Day, the period shall end on the immediately following Business Day, as calculated pursuant to Section 132 of Brazilian Civil Code.
(c) The Parties have participated jointly in negotiating and drafting this Agreement. If an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.
ARTICLE II
NATURE AND SCOPE OF THE SHARED ACTIVITIES
Section 2.1 Shared Activities. Subject and pursuant to this Agreement, Ambipar will provide, or cause to be provided, to the Recipients the Shared Activities, and Ambipar will perform and provide such Shared Activities in a reasonable time, efficient and professional manner, at a level of skill and care as such as the Shared Activities were being performed, executed or managed prior to the date hereof. Additional Subsidiaries of Emergência may make use of the Shared Activities by adhering to the terms of this Agreement in writing.
Section 2.2 Review. Without prejudice to the above, but subject to the Business Combination Agreement, the Parties may, at any time during the term of this Agreement, review the Shared Activities, and any changes to the Shared Activities may be mutually agreed in writing by means of the execution of an amendment to this Agreement.
Section 2.3 Additional Recipients. At any time after the date hereof, any Subsidiary of Emergência may become a Recipient by executing a joinder to this Agreement in the form attached hereto as Exhibit C.
Section 2.4 Facilitation of Shared Activities.
(a) Obligations of the Recipients. The Recipients shall (i) subject to the terms and conditions of ARTICLE V (Confidentiality), provide any information and documentation to Ambipar that is necessary for Ambipar to perform, execute or manage the Shared Activities (which shall include, but not be limited to, information related to budgeting, workforce planning (including information with respect to employee recruitment), human resources data-management systems and meal reimbursements); (ii) make available, as reasonably requested by Ambipar, sufficient resources, timely decisions, approvals and acceptances that are required by Ambipar so that Ambipar can accomplish its obligations hereunder in a timely manner, and (iii) provide reasonable access to Ambipar (or the Personnel who need to have such access) to premises, employees, contractors, systems and equipment of the Recipients to the extent required to enable Ambipar to provide and perform the Shared Activities.
(b) Additional
Obligations of the Recipients. If the use of a software/system is required by the Recipients or by Ambipar so that Ambipar can accomplish
its obligations hereunder in a timely manner, (i) the Recipients shall directly negotiate the purchase of new software/systems
licenses with vendors from time to time, provided that such vendors and licenses meet Ambipar`s criteria for its own vendors and licenses, or (ii) if Ambipar purchases such licenses directly after obtaining prior written consent of the Recipients, Ambipar shall be reimbursed by the Recipients for the purchase price for such licenses on a pro rata basis considering the portion actually used in order to accomplish obligations hereunder.
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ARTICLE III
REIMBURSEMENT AND PAYMENT
Section 3.1 Payment of Monthly Ambipar Response Expenses. Within two (2) Business Days of each calendar month, Emergência shall pay in advance, or cause each of the Recipients to pay in advance, to Ambipar, the Monthly Ambipar Response Expenses for such month in accordance with the pro-rata participation of each of the Recipients in the net revenue generated by Emergência.
Section 3.2 Report(a).
(a) Within fifteen (15) days from the first day of a subsequent month, Ambipar shall send a report to the Recipients describing the Actual Monthly Ambipar Response Expenses (the “Report”).
(b) The Recipients shall have the right to dispute any Report sent by Ambipar. Such dispute shall be made during the course of the subsequent quarter following receipt of such Report. Upon the completion of the dispute, Ambipar shall, if necessary, reissue the Report, correcting such month’s Actual Monthly Ambipar Response Expenses.
Section 3.3 Annual Expenses Reconciliation.
(a) Within ninety (90) days from the last Business Day of Ambipar’s financial year, Ambipar shall calculate the Actual Ambipar Response Expenses for such calendar year.
(b) If the Ambipar Response Expenses Adjustment Amount is a positive number, the Ambipar shall issue a note of credit to the Recipients in an amount equal to the Ambipar Response Expenses Adjustment Amount.
(c) If the Ambipar Response Expenses Adjustment Amount is a negative number, Emergência shall pay, or cause each of the Recipients to pay, to Ambipar, the Ambipar Response Expenses Adjustment Amount in accordance with the pro-rata participation of each Recipient in the Actual Ambipar Response Expenses for such calendar year.
Section 3.4 Update of Ambipar Response Expense. The Ambipar Response Expense shall be updated on a quarterly basis, based on the updated Expenses Participation at the end of each financial quarter of Ambipar. The updated Ambipar Response Expense shall be used to calculate the Monthly Ambipar Response Expense for the successive three (3) calendar months.
Section 3.5 Taxes. Each Party shall be solely responsible for the payment of all Taxes for which such Party is responsible and charges, including, without limitation, those of a
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labor and social security nature, regarding the Personnel or Third Parties retained or employed by such Party.
Section 3.6 Late Payment. In the event any of the Parties fails to timely comply with any payment obligation set forth in this Agreement, the unpaid amount shall accrue, cumulatively, from the date the payment should have been made until the date on which it is actually made: (i) monetary adjustment by IPCA or IGPM, whichever is greater; and (ii) default interest set at 1% (one percent) per month, calculated pro-rata die.
Section 3.7 Penalty. In addition to the provisions set forth in Section 3.3, if the Recipients fail to timely comply with their payment obligations set forth in this Agreement and such failure continues for thirty (30) days following written notice sent by Ambipar, the Recipients shall pay to Ambipar a fine equivalent to 10% (ten per cent) of all amounts incurred as costs and expenses for the provision of the Shared Activities in the prior six (6) months from the receipt of such notice.
Section 3.8 No Offset. Neither of the Parties nor their Affiliates’ payment obligations hereunder shall be subject to offset or reduction for any reason, including by reason of any alleged breach of any provision of this Agreement.
ARTICLE IV
BOOKS AND REGISTRIES
Section 4.1 Obligation to Maintain Records. The Parties agree to keep proper records and proofs of payments of the Expenses incurred under this Agreement by each Party.
Section 4.2 Separate Records. The books, accounts and records of each Party to this Agreement must be kept separately to clearly and accurately demonstrate the nature and details of each transaction carried out, including the respective accounting information to demonstrate that the reimbursements have been appropriately made as provided herein, and must be sufficiently detailed to satisfy the legal and regulatory requirements that may apply.
Section 4.3 Request to Review. The Parties agree that each Party may, at any time, request and receive a copy of any and all reasonable documents, materials, reports, books and records of any kind exclusively relating to the Shared Activities.
ARTICLE V
CONFIDENTIALITY
Section 5.1 Confidentiality. From time to time during the Term (as defined below), either Party or its Representatives (as the “Disclosing Party”) may disclose or make available to the other Party or its Representatives (as the “Receiving Party”), non-public, proprietary, or confidential information of the Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Section 5.1; (b) is or becomes available to the Receiving Party on a non-confidential basis from a Third-Party source (other than a Representative of a Party), provided that such Third Party is not and was not prohibited from disclosing such Confidential Information; (c) was in the Receiving Party’s possession prior to the Disclosing Party’s disclosure; or (d) was or is independently developed by the Receiving Party without using or referencing any of the Disclosing Party’s Confidential Information. The Receiving Party shall: (i) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own similar confidential information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any Person, except to Persons who reasonably need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable Law to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify the Disclosing Party of such requirements to afford the Disclosing Party the opportunity to seek, at the Disclosing Party’s sole cost and expense, a protective order or other remedy (and the Receiving Party shall reasonably cooperate with the Disclosing Party in connection therewith).
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ARTICLE VI
COMPLIANCE WITH LAW
Section 6.1 Legal Compliance.
(a) Compliance with Laws. Each Party shall comply with all Laws applicable to its activities and performance under and in connection with this Agreement. Without limiting the generality of the foregoing, each Party represents and warrants to the other Party hereto that, in connection with this Agreement (including the negotiation, execution, or performance thereof), each Party will not violate and it has not violated (a) the Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. §§78dd-1, et seq., (b) the United Kingdom Bribery Act of 2010, (c) Brazilian Federal Law No. 12,846/2013, (d) Brazilian Federal Law No. 8,429/1992, as amended including by Law No. 14,230/2021 (e) Brazilian Federal Law No. 9,613/1998, (f) Brazilian Federal Law No. 12,813/2013, (g) Brazilian Federal Law No. 8,666/1993, (h) Brazilian Federal Law No. 14,133/2021, (i) Brazilian Decree-Law No. 2,848/1940 or (j) any other applicable anti-corruption or anti-bribery Legal Requirements (collectively, the “Anti-Corruption Laws”).
(b) Anti-Corruption. Each Party further represents and warrants that it has not offered, paid, promised to pay, or authorized, requested or received the payment of money or anything of value to or from any director, officer, employee or agent of the other Party (“Party-Associated Persons”), or any other Person in violation of applicable Anti-Corruption Laws, in performing its activities or in connection with this Agreement. Each Party also represents that it did not, and will not, attempt to exert any undue influence over any Party-Associated Person, or any other Person in violation of applicable Anti-Corruption Laws, in in performing its activities or connection with this Agreement. Each Party undertakes and covenants to refrain from offering, paying, promising to pay, or authorizing the payment of money or anything of value to any Party-Associated Person, or any other Person in violation of applicable Anti-Corruption Laws, at any time, whether or not in relation to this Agreement.
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Section 6.2 Data Privacy and Cybersecurity. Each Party shall comply and shall ensure that its Personnel and other Representatives comply with, the provisions of any Data Protection Laws applicable to their conduct under or in connection with this Agreement. To the extent required under applicable Data Protection Laws with respect to the transfer of personal data, the Parties shall enter into (or to the extent required by such Data Protection Laws, cause their respective Affiliates to enter into) such other agreements as may be required by the applicable Data Protection Laws. Each Party shall implement adequate policies and commercially reasonable security measures regarding the integrity and availability of the information technology and software applications owned, operated, or outsourced by that Party, and the data and intellectual property thereon. In case one Party or its Affiliates experiences any of the following events, it shall, as soon as such Party is aware, use reasonable efforts to notify the other Party immediately or, justified under the Data Protection Laws, at least within forty-eight (48) hours of a confirmed data breach involving the unauthorized access to or accidental or illicit destruction, loss, change, communication, or dissemination of information related to an identified or identifiable natural person provided by the other Party or its Affiliates or intellectual property; or any order issued by a judicial or administrative authority regarding data exchanged between the Parties under this Agreement. Each Party shall use reasonable efforts to notify the other Party immediately or, justified under the Data Protection Laws, at least within forty-eight (48) hours of receiving data subject requests related to an identified or identifiable natural person provided by the other Party or its Affiliates, such as access, rectification and deletion requests; and any complaint regarding the processing of data related to an identified or identifiable natural person provided by the other Party or its Affiliates, including allegations that the processing operations violate data subject rights.
ARTICLE VII
TERM AND TERMINATION
Section 7.1 Term, Termination, and Survival.
(a) Term. This Agreement shall commence as of the Effective Date and shall continue thereafter until the fifth (5th) anniversary of the Effective Date, unless earlier terminated pursuant to this Agreement, and shall be renewed automatically for successive one (1) year terms for so long as Ambipar owns or controls 30% or more of the total combined voting power of all classes of voting stock of New PubCo (the “Term”) provided that prior to transferring Control and terminating this Agreement, Ambipar will notify Emergência and use its commercially best efforts to assist New PubCo to transition the Shared Activities to New PubCo, Emergência, the Recipients or any third Person, at New PubCo discretion.
(b) Termination of Agreement.
(i) Ambipar may terminate this Agreement, with sixty (60) days prior written notice to the Recipients, at its sole discretion for as long as it Controls New PubCo;
(ii) Any Party may terminate this Agreement, effective upon written notice to the other Party which provides or receives Shared Activities (the “Defaulting Party”) if the Defaulting Party:
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(1) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within ninety (90) days after receipt of written notice of such breach; or
(2) (A) becomes insolvent or admits its inability to pay its debts generally as they become due; (B) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within ten (10) Business Days or is not dismissed or vacated within sixty (60) days after filing; (C) is dissolved or liquidated or takes any corporate action for such purpose; (D) makes a general assignment for the benefit of creditors; or (E) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(iii) The Parties may terminate this Agreement by mutual written agreement of Ambipar and Emergência.
(iv) Emergência may terminate this Agreement one hundred-eighty (180) days after delivery of written notice to Ambipar and the reimbursement of all reasonable and duly documented costs and expenses incurred by Ambipar until the date of the delivery of referred written notice and all reasonable and duly documented additional costs and expenses that Ambipar reasonably incurs in order to cease and terminate the provision of the Shared Activities provided to the Recipients.
(c) Effect of Termination. Upon termination, (i) the Recipients shall remain obligated to make any outstanding payments owed to Ambiparand/or (ii) Ambipar shall remain obligated to make any outstanding payments owed to the Recipients, as applicable, under this Agreement. Notwithstanding anything to the contrary herein, upon any termination or expiration of this Agreement, this Agreement shall, upon Emergência’s written request, continue for an additional wind-down period, not to exceed three (3) months, to allow the Recipients to transition the Shared Activities then provided to a Third Party (the “Transition Period”). During the Transition Period, Ambipar shall continue to provide any ongoing Shared Activities that have not been transitioned from such Ambipar pursuant to, and on the same terms and conditions set forth in, this Agreement; provided, that the Recipients are in material compliance with this Agreement with respect thereto, mainly in relation to the payment obligations. For the avoidance of doubt, this Agreement shall terminate fully upon the completion of its transition or the end of the Transition Period, whichever is earlier. During the Transition Period, the Parties shall, at the Recipients’ cost and expense, reasonably cooperate in good faith in an effort to facilitate the transition by the Recipients from the Shared Activities hereunder.
(d) Survival. Upon any termination or expiration of this Agreement, the following rights and obligations shall survive such expiration or termination: (a) the obligations of each Party under ARTICLE V (Confidentiality) (for one (1) year after such expiration or termination), ARTICLE VII (Term and Termination) and ARTICLE IX (Governing Law &
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Dispute Resolution) and (b) each Party’s right to receive payment in accordance with ARTICLE III (Fees and Payment) hereof for those Shared Activities rendered to such Party prior to, or in connection with (in accordance with the terms and conditions of this Agreement), the termination or expiration of this Agreement.
ARTICLE VIII
FORCE MAJEURE.
Section 8.1 Force Majeure. No Party or its Representatives shall be liable or responsible to the other Party or its Representatives, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Recipients to make payments of Monthly Ambipar Response Expenses or Ambipar Response Expenses Adjustment Amount and any charges to Ambipar hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including the following events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, volcano eruption, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) order of a Governmental Entity, Legal Requirement, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) epidemics and pandemics; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; (i) shortage of adequate power or transportation facilities; (j) failure, delay or inadequacy of Third Parties in delivering or otherwise providing products, parts, components or services; and (k) other similar events beyond the reasonable control of the Impacted Party.
Section 8.2 Resumption of Performance. The Impacted Party shall give notice as soon as reasonably practicable of the Force Majeure Event to the other Party that it either provides Shared Activities to or receives Shared Activities from stating the period of time the occurrence is expected to continue. The Impacted Party shall use commercially reasonable efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized, and shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. For the avoidance of doubt, the Recipients shall not be obligated to pay Ambipar for such Shared Activities during such period when Ambipar is not itself providing or procuring such Shared Activities.
ARTICLE X.
REPRESENTATIONS AND WARRANTIES.
Section 10.1 Representations and Warranties. The Parties hereto each, individually and not jointly, represent and warrant to any such other Party that it either provides Shared Activities to or receives Shared Activities from that (a) it is duly incorporated, organized or formed, validly existing, and in good standing as a corporation or other legal entity, as applicable, under the Legal Requirements of its jurisdiction of incorporation, organization or formation; (b) it has all rights, power and authority required to enter into this Agreement and to perform its obligations hereunder; (c) it has taken all requisite corporate and other action to approve and authorize the execution, delivery and performance of this Agreement; (d) such Party’s execution, delivery and performance of this Agreement will not violate any other agreement, restriction, or applicable Legal
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Requirement to which such Party is a party or by which such Party is bound; (e) when executed and delivered by such Party, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Legal Requirements affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity; and (f) no action, consent or approval by, or filing with, any Governmental Entity, or any other Person, is required in connection with the execution, delivery or performance by either Party of this Agreement or the consummation by either Party of the transactions contemplated by this Agreement.
Section 10.2 No Other Representations or Warranties. The Parties make no representations or warranties except for those provided in Section 10.1. All other representations and warranties, express and implied, are expressly disclaimed.
ARTICLE XI
INDEMNIFICATION.
Section 11.1 Indemnification.
(a) Recipients’ Obligations. From and after the date of this Agreement, the Recipients shall indemnify, defend and hold harmless Ambipar and its Representatives on a pro rata basis considering the Expenses Participation from and against any and all proven losses, liabilities, claims, damages, costs (including attorneys’ fees), expenses, interests, awards, judgments, suits, disbursements, penalties (“Losses”) arising from any claim, action, suit or proceeding brought by any Third Party (“Third Party Claim”) to the extent it demonstrably relates to the Shared Activities provided to the Recipients (including the presence of Representatives of Ambipar on the property or premises of the Recipients or their Representatives in connection with the provision of Shared Activities), except if caused by Force Majeure or caused by fraud, gross negligence or willful misconduct of the Recipients. Nothing in this section shall be interpreted as to limit any right of recourse available to Recipients against such Third Party.
(b) Ambipar’s Obligations. From and after the date of this Agreement, Ambipar shall indemnify, defend and hold harmless the Recipients and their respective Representatives on a pro rata basis considering the Expenses Participation from and against any and all proven Losses arising from any Third Party Claims to the extent it demonstrably relates to the Shared Activities provided to the Recipients or caused by fraud, gross negligence or willful misconduct of Ambipar. Nothing in this section shall be interpreted as to limit any right of recourse available to Ambipar against such Third Party.
(c) Indemnification Procedures.
(i) The party making a claim under this Section 11.1 is referred to as the “Indemnified Party” and the party against whom such claims are asserted under this Section is referred to as the “Indemnifying Party”. The Indemnified Party shall promptly notify the Indemnifying Party in writing of any pending or threatened Third Party Claim that the Indemnified Party has determined, has given or would reasonably be expected to give rise to a right of indemnification under
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this Agreement, describing in reasonable detail the facts and circumstances with respect to the subject matter of such Third Party Claim and, to the extent known, a good faith, non-binding, estimate of the aggregate Brazilian Reais amount of Losses to which such Indemnified Party might be entitled; provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Section 11.1 except to the extent the Indemnifying Party is actually and materially prejudiced by such failure.
(ii) Upon receipt of a notice of a claim for indemnity from an Indemnified Party pursuant to Section 11.1(c)(i), the Indemnifying Party will be entitled to assume the defense and control of any Third Party Claim with counsel reasonably acceptable to the Indemnified Party (acting reasonably), but shall allow the Indemnified Party a reasonable opportunity to participate in the defense of such Third Party Claim with the Indemnified Party’s own counsel and at the Indemnified Party’s own expense. If the Indemnifying Party does not assume the defense and control of any Third Party Claim, it may nonetheless participate in the defense of such Third Party Claim with its own counsel and at its own expense. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in the defense of any Third Party Claim. If the Indemnifying Party shall have assumed the defense and control of a Third Party Claim, it shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim; provided that the Indemnifying Party shall (i) subject to any right of appeal, pay or cause to be paid all amounts in such settlement or judgment, (ii) not encumber any of the assets of any Indemnified Party or agree to any restriction or condition that would apply to or adversely affect any Indemnified Party or the conduct of any Indemnified Party’s business and (iii) obtain, as a condition of any settlement or other resolution, a complete release of any Indemnified Party potentially affected by such Third Party Claim. The Indemnified Party will not consent to the entry of any judgment or enter into any settlement or compromise with respect to a Third Party Claim without the prior written consent of the Indemnifying Party, such consent not to be unreasonably, withheld, conditioned or delayed.
Section 11.2 Mitigation. Notwithstanding anything to the contrary contained in this Agreement, nothing in this ARTICLE XI (Indemnification), regarding indemnification rights and indemnification obligations shall be deemed to override any obligations with respect to mitigation of Losses existing under applicable Legal Requirements.
ARTICLE XII
GOVERNING LAW & DISPUTE RESOLUTION
Section 12.1 Governing Law. This Agreement and all actions contemplated hereby shall be governed by, construed, interpreted, and enforced in accordance with the laws of Brazil.
Section 12.2 Dispute Resolution. Any and all disputes and controversies arising out of or in relation to this Agreement shall be notified to the other party and both parties shall endeavor its best efforts to solve them in an amicable way by means of direct negotiations held in good faith, for a period no longer than fifteen (15) business days counting from the date of the notice receipt.
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Section 12.3 Arbitration. Any dispute arising out of or in connection with this Agreement that is not amicably settled shall be submitted to arbitration, pursuant to Law 9.307/96, to be administered by the International Court of Arbitration of the International Chamber of Commerce (“ICC”) in accordance with its arbitration rules (“Rules”).
Section 12.4 Place and Language. The arbitration shall have its seat in the city and state of São Paulo, Brazil and shall be conducted in Portuguese.
Section 12.5 Constitution of the Arbitral Tribunal. The arbitral tribunal shall be composed of three (3) arbitrators. The claimant(s) shall appoint one (1) co-arbitrator and the respondent(s) shall appoint one (1) co-arbitrator, as per the Rules. The two (2) co-arbitrators, after consultations with the parties to the arbitration, shall jointly appoint the third arbitrator, who will act as president of the arbitral tribunal. If any of the parties to the arbitration fail to appoint the respective co-arbitrator, or if the two (2) co-arbitrators fail to agree on the appointment of the president of the arbitral tribunal within the time limits established by the ICC, the ICC shall make the missing appointments, as per the Rules.
Section 12.6 Urgent Measures. Prior to the constitution of the arbitral tribunal, any request for urgent measure may be addressed to the courts or to the emergency arbitrator, as per the Rules. After the constitution of the arbitral tribunal, any request for urgent measures shall be addressed directly to the arbitral tribunal, which may grant, uphold, modify or revoke any measure previously requested to the courts or to the emergency arbitrator, as the case may be.
Section 12.7 Venue for Judicial Measures. Without prejudice to this arbitration agreement, the Courts of São Paulo, State of São Paulo, Brazil shall have exclusive jurisdiction for any judicial request related to (i) the commencement of the arbitration, as per art. 7 of Law 9.307/96; (ii) provisional or urgent measures, as per art. 22-A of Law 9.307/96; (iii) the enforcement of extrajudicial enforcement title, without prejudice to the creditor’s prerogative pursuant to art. 516, sole paragraph, of Law 13.105/2015; (iv) the enforcement of arbitral awards, without prejudice to the creditor’s prerogative pursuant to art. 516, sole paragraph, of Law 13.105/2015; and (v) the annulment of or request for a supplemental arbitral award, as per arts. 32 and 33, §4, of Law 9.307/96; and (vi) any other disputes that are not subject to arbitration pursuant to Brazilian law. The filing of any judicial request admitted by or compatible with Law 9.307/96 shall not be construed as a waiver to arbitration.
Section 12.8 Confidentiality. The parties agree that the arbitration shall be confidential and that its elements (including, without limitation, the parties allegations, the evidences, awards and any Third Parties’ pronouncements as well as any other documentation exhibited or exchanged during the arbitral procedure), shall only be revealed to the Arbitral Tribunal, to the parties, to the parties’ attorneys and to any person necessary to the development of the arbitration, exception made to the cases where the disclosure of the material is required to fulfill obligations imposed by law or by any other competent authority.
Section 12.9 Costs and Expenses. During the arbitration, the costs of the proceedings, including the administrative costs of the ICC, arbitrator’s fees and independent expert’s fees, when applicable, shall be borne by the parties to the arbitration as per the Rules. The arbitral award shall order the losing party to reimburse the winning party, according to the outcome of their respective
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claims and taking into account other circumstances that the arbitral tribunal may deem relevant, for the costs of the arbitration as well as other reasonable expenses incurred by the parties to the arbitration, including contractual attorney’s fees, expert’s fees and other expenses that may be necessary or useful for the arbitral proceedings. The arbitral tribunal shall not order payment of legal attorney’s fees (honorários de sucumbência).
ARTICLE XIII
MISCELLANEOUS
Section 13.1 Entire Agreement. This Agreement, including the exhibits, annexes and schedules hereto and any other documents and instruments and agreements among the Parties or their respective Affiliates as contemplated by or referred to herein constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof, except for the related provisions as set forth in the Business Combination Agreement.
Section 13.2 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given: (a) on the date established by the sender as having been delivered personally; (b) one (1) Business Day after being sent by a nationally recognized overnight courier guaranteeing overnight delivery; (c) on the date delivered, if delivered on a Business Day, otherwise on the next Business Day, if delivered by email; or (d) on the fifth (5th) Business Day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications, to be valid, must be addressed as follows:
| Notice to Ambipar: |
Ambipar Participações e Empreendimentos S.A. Avenida Pacaembu, nº 1088 Room 09, Pacaembu, 01234-000, São Paulo - SP Brazil | |
| Attention: | Luciana Freire Barca Nascimento; | |
| Alessandra Bessa Alves de Melo | ||
| Email: | luciana.barca@tbj.com.br; | |
| alessandra.bessa@ambipar.com | ||
| Notice to Recipients: |
Emergência Participações S.A. Avenida Angélica, nº 2346 5th floor, room 4, Consolação, 01228-200, São Paulo - SP Brazil | |
| Attention: | Luciana Freire Barca Nascimento; | |
| Alessandra Bessa Alves de Melo | ||
| Email: | luciana.barca@tbj.com.br; | |
| alessandra.bessa@ambipar.com | ||
Section 13.3 Severability. In the event that any term, provision, covenant or restriction of this Agreement, or the application thereof, is held to be illegal, invalid or unenforceable under any present or future Legal Requirement: (a) such provision will be fully severable; (b) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision
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had never comprised a part hereof; (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom; and (d) in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms of such illegal, invalid or unenforceable provision as may be possible.
Section 13.4 Amendments. Subject to the terms of the Business Combination Agreement, this Agreement may be amended by the Parties at any time by execution of an instrument in writing signed on behalf of each of the Parties.
Section 13.5 Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Section 13.6 Assignment. No Party may assign, directly or indirectly, including by operation of law, either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other Parties. Subject to the first sentence of this Section 13.6, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
Section 13.7 Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors, permitted assigns and permitted transferees.
Section 13.8 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party nor its Affiliates shall have authority to contract for or bind the other Party or its Affiliates in any manner whatsoever.
Section 13.9 No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement, and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 13.10 Counterparts; Electronic Delivery. This Agreement and the consummation thereof, may be executed in counterparts, all of which shall be considered one and the same document and shall become effective when such counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart. Delivery by electronic transmission to counsel for the other Parties of a counterpart executed by a Party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the Parties to the terms and conditions of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the Effective Date by their respective duly authorized officers.
| AMBIPAR PARTICIPAÇÕES E EMPREENDIMENTOS S.A. | |||
| By: | /s/ Luciana Freire Barca Nascimento | ||
| Name: | Luciana Freire Barca Nascimento | ||
| Title: | Officer | ||
| By: | /s/ Thiago da Costa Silva | ||
| Name: | Thiago da Costa Silva | ||
| Title: | Officer | ||
| EMERGÊNCIA PARTICIPAÇÕES S.A. | |||
| By: | /s/ Luciana Freire Barca Nascimento | ||
| Name: | Luciana Freire Barca Nascimento | ||
| Title: | Officer | ||
| By: | /s/ Thiago da Costa Silva | ||
| Name: | Thiago da Costa Silva | ||
| Title: | Officer | ||
| As intervening party | |||
| AMBIPAR EMERGENCY RESPONSE | |||
| By: | /s/ Thiago da Costa Silva | ||
| Name: | Thiago da Costa Silva | ||
| Title: | Officer | ||
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Exhibit A
Ambipar Insurance Corretora de Seguros Ltda., a company organized under the laws of Brazil, with head offices at Avenida Pacaembu, n. 1088, Room 03, Pacaembu, São Paulo/SP, Zip Code: 01.234-000, enrolled with the CNPJ/ME under No. 12.696.314/0001-50.
Ambipar Response Geoweb Ltda., a company organized under the laws of Brazil, with head offices at Rua Manoel Fel Subtil, n. 60, Room 201, Enseada do Suá, Vitória/ES, Zip Code: 29.050-400, enrolled with the CNPJ/ME under No. . 27.852.561/0001-75.
Ambipar Response Control Environmental Consulting S.A., a company organized under the laws of Brazil, with head offices at Rua Manoel Fel Subtil, n. 60, Room 201, Enseada do Suá, Vitória/ES, Zip Code: 29.050-400, enrolled with the CNPJ/ME under No. 10.550.896/0001-36..
Ambipar Dracares Apoio Marítimo e Portuário S.A., a company organized under the laws of Brazil, with head offices at Rua Fernandes Dias, n. 456, Room 301, Centro, São Francisco do Sul/SC, Zip Code: 89.240-000, enrolled with the CNPJ/ME under No. 07.049.258/0001-21.
Ambipar Response ES S.A., a company organized under the laws of Brazil, with head offices at Rua Manoel Fel Subtil, n. 60, Room 201, Enseada do Suá, Vitória/ES, Zip Code: 29.050-400 , enrolled with the CNPJ/ME under No. 27.853.153/0001-38 .
Ambipar Response Flyone Servico Aereo Especializado, Comercio e Servicos S.A., a company organized under the laws of Brazil, with head offices at Avenida Ayrton Senna, n. 2541, Rua D2, Hangar 06, CTR 2017.0011, Barra da Tijuca, Rio de Janeiro/RJ, Zip Code: 22.775-002 , enrolled with the CNPJ/ME under No. 03.945.337/0001-60.
Ambipar Response Gás LTDA., a company organized under the laws of Brazil, with head offices at Rodovia Anhanguera, Km 120, Room 04, Distrito Industrial, Nova Odessa/SP, Zip Code: 13.388-220, enrolled with the CNPJ/ME under No. 28.906.435/0001-19.
Ambipar Response Geociências Ltda., a company organized under the laws of Brazil, with head offices at Rua Manoel Fel Subtil, n. 60, Room 201, Enseada do Suá, Vitória/ES, Zip Code: 29.050-400, enrolled with the CNPJ/ME under No. 17.732.383/0001-95.
Ambipar Insurance – Atendimento a Seguros Ltda., a company organized under the laws of Brazil, with head offices at Acesso Arnaldo Júlio Mauerberg, n. 1949, Portal dos Nobres, Americana/SP, Zip Code: 13.479-770, enrolled with the CNPJ/ME under No. 05.316.350/0001-85
Ambipar Response OGTEC Facilities Ltda., a company organized under the laws of Brazil, with head offices at Rua Manoel Feu Subtil, n. 60, Room 201, Enseada do Suá, Vitória/ES, Zip Code: 29.050-400, enrolled with the CNPJ/ME under No. 24.792.315/0001-87.
Ambipar Response ORBITGEO Ltda., a company organized under the laws of Brazil, with head offices at Rua Manoel Fel Subtil, n. 60, Room 201, Enseada do Suá, Vitória/ES, Zip Code: 29.050-400, enrolled with the CNPJ/ME under No. 34.350.410/0001-84.
Ambipar Response S.A., a company organized under the laws of Brazil, with head offices at Avenida Pacaembu, n. 1088, Room 01, Pacaembu, São Paulo/SP, Zip Code: 01.234-000, enrolled with the CNPJ/ME under No. 11.414.555/0001-04.
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APW Ambiental e Transportes Ltda., a company organized under the laws of Brazil, with head offices at Estrada do Contorno, n. 11553, Galpão, Xerém, Duque de Caxias/RJ, Zip Code: 25.010-000 , enrolled with the CNPJ/ME under No. 03.912.776/0001-76..
Fênix Emergências Ambientais Ltda., a company organized under the laws of Brazil, with head offices at Rua André Pinto, n. 46, Parte, Ramos, Rio de Janeiro/RJ, Zip Code: 21.031-790, enrolled with the CNPJ/ME under No. 20.487.433/0001-20.
Jm Serviços e Locações S.A., a company organized under the laws of Brazil, with head offices at Rua Dionísio Gonçalves do Nascimento, n. 102, Sede, Raia Velha, Morretes/PR, Zip Code: 83.350-000, enrolled with the CNPJ/ME under No. 21.396.339/0001-29.
Jm Serviços Integrados S.A., a company organized under the laws of Brazil, with head offices at Rua Dionísio Gonçalves do Nascimento, n. 102, Raia Velha, Morretes/PR, Zip Code: 83.350-000, enrolled with the CNPJ/ME under No. 05.120.343/0001-03.
Lacerda & Lacerda Serviços de Transportes E Emergências Ambientais Ltda., a company organized under the laws of Brazil, with head offices at Rua Professor José Renault, n. 470, Room A, Santa Lúcia, Belo Horizonte/MG, Zip Code: 30.350-342, enrolled with the CNPJ/ME under No. 03.422.588/0001-60.
Ambipar Atendimento Médico Hospitalar Ltda., a company organized under the laws of Brazil, with head offices at Rodovia Anhanguera, km 120, room 02, Distrito Industrial I, Zip Code 13.388-220, at the city of Nova Odessa, State of São Paulo, Brazil, enrolled with the CNPJ/ME under No. 41.000.384/0001-20.
Ambipar Response Waste Water Control Ltda., a company organized under the laws of Brazil, with head offices at Rua Comendador Alcides Simão Helou, No. 708, Galpão G, Civit II, at the city of Serra, State of Espírito Santo, Zip Code 29.168-090, Brazil, enrolled with the CNPJ/ME under No. 28.688.286/0001-69.
RG Consultoria Técnica Ambiental S.A., a company organized under the laws of Brazil, with head offices at Avenida Professora Edna Maria de Albuquerque AFFI (Jd. Imperial 2A 4, Lt 27, Quadra 07, Jardim Imperial, Cuiabá/MT, Zip Code 78.076-001 enrolled with the CNPJ/ME under No. 14.113.259/0001-53.
RG Consultoria Técnica Ambiental Brasil Ltda., a company organized under the laws of Brazil, with head offices at Avenida Osvaldo Pucci, n. 685, Jardim Nossa Senhora do Carmo, São Paulo/SP, Zip Code: 08.270-700, enrolled with the CNPJ/ME under No. 34.717.458/0001-88.
BIOENV Analises e Monitoramento Ambiental Ltda., a company organized under the laws of Brazil, with head offices at Rua Perobas, n. 190, Bairro Coqueiral, Aracruz/ES, Zip Code: 29.199-117, enrolled with the CNPJ/ME under No. 10.335.931/0001-02.
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Exhibit B
Accounting documentation: ensuring consolidation of financial statements; external audit support; verification of accounting closings; validation and support to external accounting; definition of accounting parameters for payment allocation.
Archive: management and safekeeping of strategic documents.
Compliance: monitoring compliance with the code of conduct and policies; conducting training; evaluating and addressing with any communications involving non-compliance with any company policy; monitoring the compliance channels; issuing reports and opinions; contributing to the improvement of corporate governance.
Controllership: responsible for managing the inflow and outflow of financial resources, contributing to managerial and strategic decision making obtained by working alongside managers from all areas in the gathering of data and information for the execution of Budget Planning.
Debt collection: monitoring liabilities and outstanding amounts; debt collection services; issuing reports; liaising with legal team in cases of default
Facilities: maintenance; cleaning services, security services (including security guards and CCTV monitoring); concierge services and access control; facilities management.
Fleet management: managing the vehicles of the group (own and rented fleet), including maintenance, replacement, and compliance with regulatory requirements. Purchase and sale of vehicles and equipment, planning and verification of the costs involved.
Human Resources: managing human capital; recruitment and hiring services; execution of payroll and benefits; mediating the needs of employees and the organization.
Investor relations: holding meetings; direct assistance to investors; guided tours; compliance with company regulation; completing regulatory filing; relationship with internal audits.
Invoicing: processing the invoicing of all operations in compliance with applicable legislation, monitoring applicable legislation and obligations.
IT: ensures information security, creates and improves new processes in order to increase the company’s performance; prevents and solves information technology related problems; develops systems to serve internal customers; installs and manages information technology infrastructure.
Labor safety: support to customers, emergencies, and business units; document preparation; accident investigation and analysis; scheduling of periodic examinations; preparation of accident indicators (frequency and severity rate); health and safety campaigns; follow-up of expert examinations; management and application of training; documentation control (health and safety, PPE records, and work order); inspection and firefighting equipment.
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Legal: legal strategy; contentious and non-contentious legal support; contract management; providing training to internal clients; site visits to the business units and participating in strategic meetings.
Marketing: elaborating and carrying out internal and external campaigns; monitoring and managing social networks; carrying out market and client portfolio studies; elaborating strategies to strengthen the brand.
Organization and corporate support activities: management of internal corporate document; assisting with client registration forms; corporate assistance to directors and officers.
Project assessment: monitoring of mobilizations of new contracts and projects; improving processes and procedures; implementing existing procedures for acquired companies, including training, testing, and configurations in all areas; implementing and updating of systems (acquired and new).
Quality assurance: supplier approvals; updating procedures related to industrial activities and processes; visits to customers’ plants; legal documentation; fulfilling requirements in legal systems; full implementation of specific systems; training; integration of group companies in ERP; planning audits and certifications.
Sustainability advisory services: implementation and management of sustainability indicators; addressing sustainability queries from customers, suppliers, investors, creditors; manage and consolidate data related to the sustainability report; participation and presentation of sustainability forums; ESG training/integration; sponsorship support; integration of mergers/acquired companies in the internal culture; monitoring and development of actions for sustainability indexes in stock exchange.
Treasury: performs the budgetary and administrative control of the companies, with the objective of reaching its goals and improving the results.
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Exhibit C
Joinder Agreement
[ADDRESS]
Ladies and Gentlemen,
Reference is made to the Cost Sharing Agreement, dated as of [•], 2022 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), by and among Ambipar Participações e Empreendimentos S.A., a Brazilian corporation enrolled with the CNPJ/ME under No. 12.648.266/0001-24, with head offices at Av. Pacaembu No. 1088, room 09, Pacaembu, at the City and State of São Paulo, Zip Code 01234-000 (“Ambipar”), Emergência Participações S.A., a company organized under the laws of Brazil, with head offices at Avenida Angélica, No. 2346, 5th floor, room 04, , Consolação, in the City and State of São Paulo, Brazil, Zip Code 01.228-200, enrolled with the CNPJ/ME under No. 10.645.019/0001-49 (“Emergência”) and its subsidiaries listed in Exhibit A to the Agreement, a copy of which is attached hereto as Annex A. Capitalized terms not defined herein shall have the meaning ascribed to them in the Agreement.
[ ] (the “Additional Recipient”) desires to receive certain Shared Activities pursuant to the terms and conditions set forth in the Agreement.
The Additional Recipient hereby (i) acknowledges that it has received and reviewed a complete and correct copy of the Agreement and all exhibits, schedules and annexes thereto (ii) agrees that by executing this Joinder Agreement it becomes a Party to the Agreement as of the date hereof, (iii) assumes all of the obligations of a Recipient under the Agreement, and (iv) agrees that it shall be fully bound by, and subject to, all of the covenants, terms, obligations and conditions of the Agreement as if it were a Recipient.
This Joinder Agreement may be executed in any number of counterparts, all of which, taken together, shall constitute one and the same agreement and any party may enter into this Joinder Agreement by executing a counterpart.
This Joinder Agreement shall be governed by and construed in accordance with the laws of Brazil.
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Exhibit 4.16
Ambipar Emergency Response
2023 Omnibus Incentive Plan
1. Purpose. The purpose of the Ambipar Emergency Response 2023 Omnibus Incentive Plan is to provide a means through which the Company and the other members of the Company Group may attract and retain key personnel, and to provide a means whereby directors, officers, employees, consultants, and advisors of the Company and the other members of the Company Group can acquire and maintain an equity interest in the Company, or be paid incentive compensation, including incentive compensation measured by reference to the value of Class A Ordinary Shares, thereby strengthening their commitment to the welfare of the Company Group and aligning their interests with those of the Company’s shareholders.
2. Definitions. The following definitions shall be applicable throughout the Plan.
(a) “Absolute Share Limit” has the meaning given to such term in Section 5(b) of the Plan.
(b) “Adjustment Event” has the meaning given to such term in Section 10(a) of the Plan.
(c) “Affiliate” means any Person that directly or indirectly controls, is controlled by, or is under common control with the Company. The term “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting or other securities, appointing a majority of the board of directors, by contract, or otherwise.
(d) “Applicable Law” means each law, rule, regulation and requirement, applicable to the Company including, but not limited to, each applicable U.S. federal, state or local law, any rule or regulation of the applicable securities exchange or inter-dealer quotation system on which the securities of the Company may be listed or quoted and each applicable law, rule or regulation of any other country or jurisdiction where Awards are granted under the Plan or Participants reside or provide services, as each such laws, rules and regulations shall be in effect from time to time.
(e) “Award” means, individually or collectively, any Incentive Share Option, Nonqualified Share Option, Share Appreciation Right, Restricted Share, Restricted Share Unit, Other Equity-Based Award, and Other Cash-Based Award granted under the Plan.
(f) “Award Agreement” means the document or documents by which each Award (other than an Other Cash-Based Award) is evidenced, which may be in written or electronic form.
(g) “Board” means the Board of Directors of the Company.
2
(h) “Cause” means, as to any Participant, unless the applicable Award Agreement states otherwise, (i) “Cause”, as defined in any employment, severance, consulting or other similar agreement between the Participant and the Service Recipient in effect at the time of such Termination, or (ii) in the absence of any such employment, severance, consulting or other similar agreement (or the absence of any definition of “Cause” contained therein), the Participant’s (A) willful neglect in the performance of the Participant’s duties for the Service Recipient or willful or repeated failure or refusal to perform such duties; (B) engagement in conduct in connection with the Participant’s employment or service with the Service Recipient, which results in, or could reasonably be expected to result in, material harm to the business or reputation of the Service Recipient or any other member of the Company Group; (C) conviction of, or plea of guilty or no contest to (I) any felony or (II) any other crime that results in, or could reasonably be expected to result in, material harm to the business or reputation of the Service Recipient or any other member of the Company Group; (D) material violation of the written policies of the Service Recipient, including, but not limited to, those relating to sexual harassment or the disclosure or misuse of confidential information, or those set forth in the manuals or statements of policy of the Service Recipient; (E) fraud or misappropriation, embezzlement, or misuse of funds or property belonging to the Service Recipient or any other member of the Company Group; or (F) act of personal dishonesty that involves personal profit in connection with the Participant’s employment or service to the Service Recipient; provided, in any case, that a Participant’s resignation after an event that would be grounds for a Termination for Cause will be treated as a Termination for Cause hereunder.
(i) “Change in Control” means:
(i) the acquisition (whether by purchase, merger, consolidation, combination, or other similar transaction) by any Person of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 50% (on a fully diluted basis) of either (A) the then-outstanding Class A Ordinary Shares, taking into account as outstanding for this purpose such Class A Ordinary Shares issuable upon the exercise of options or warrants, the conversion of convertible shares or debt and the exercise of any similar right to acquire such Class A Ordinary Shares; or (B) the combined voting power of the then-outstanding voting securities of the Company entitled to vote generally in the election of directors; provided, however, that for purposes of the Plan, the following acquisitions shall not constitute a Change in Control: (I) any acquisition by any employee benefit plan sponsored or maintained by the Company or any Affiliate; or (II) in respect of an Award held by a particular Participant, any acquisition by the Participant or any group of Persons including the Participant (or any entity controlled by the Participant or any group of Persons including the Participant);
(ii) during any period of 12 months, individuals who, at the beginning of such period, constitute the Board (the “Incumbent Directors”) cease for any reason to constitute at least a majority of the Board; provided, that any Person becoming a director subsequent to the Effective Date, whose election or nomination for election was approved by a vote of at least two-thirds of the Incumbent Directors then on the Board (either by a specific vote or by approval of the proxy statement of the Company in which such Person is named as a nominee for director, without written objection to such nomination) shall be an Incumbent Director; provided, however, that no individual initially elected or nominated as a director of the Company as a result of an actual or threatened election contest, as such terms are used in Rule 14a-12 of Regulation 14A promulgated under the Exchange Act, with respect to directors or as a result of any other actual or threatened solicitation of proxies or consents by or on behalf of any Person other than the Board shall be deemed to be an Incumbent Director; or
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(iii) the sale, transfer, or other disposition of all or substantially all of the assets of the Company Group (taken as a whole) to any Person that is not an Affiliate of the Company, other than (A) a sale, transfer or disposition of all or substantially all of the Company Group’s assets to an entity, more than fifty percent (50%) of the combined voting power of the voting securities of which are owned by shareholders of the Company following the completion of such transaction in substantially the same proportions as their ownership of the Company immediately prior to such sale or (B) a sale, transfer or disposition of all or substantially all of the Company Group’s assets immediately following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors of the entity to which such assets are sold, transferred or disposed or, if such entity is a subsidiary, the ultimate parent thereof; or
(iv) there is consummated a merger or consolidation of the Company or any direct or indirect Subsidiary with any other corporation or other entity, other than (I) a merger or consolidation (A) which results in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof), in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary, more than fifty percent (50%) of the combined voting power of the securities of the Company or such surviving entity or any parent thereof outstanding immediately after such merger or consolidation and (B) immediately following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors of the Company, the entity surviving such merger or consolidation or, if the Company or the entity surviving such merger or consolidation is then a subsidiary, the ultimate parent thereof, or (II) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its Affiliates) representing fifty percent (50%) or more of the combined voting power of the Company’s then outstanding securities.
(v) Notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred as a result of any transaction or series of integrated transactions following which the Company or any of its Affiliates possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the Company (or any successor thereto), whether through the ownership of voting securities, as trustee or executor, by contract or otherwise, including, without limitation, the ownership, directly or indirectly, of securities having the power to elect a majority of the Board or the board of directors or similar body governing the affairs of any successor to the Company..
(j) “Code” means the Internal Revenue Code of 1986, as amended, and any successor thereto. Reference in the Plan to any section of the Code shall be deemed to include any regulations or other interpretative guidance under such section, and any amendments or successor provisions to such section, regulations, or guidance.
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(k) “Committee” means the Compensation Committee of the Board or any properly delegated subcommittee thereof or, if no such Compensation Committee or subcommittee thereof exists, the Board.
(l) “Class A Ordinary Share” means the class A ordinary shares of the Company, par value $0.0001 per share.
(m) “Company” means Ambipar Emergency Response, and any successor thereto.
(n) “Company Group” means, collectively, the Company and its Subsidiaries.
(o) “Date of Grant” means the date on which the granting of an Award is authorized, or such other date as may be specified in such authorization.
(p) “Designated Foreign Subsidiaries” means all members of the Company Group that are organized under the laws of any jurisdiction other than the United States of America that may be designated by the Board or the Committee from time to time.
(q) “Detrimental Activity” means any of the following: (i) unauthorized disclosure or use of any confidential or proprietary information of any member of the Company Group; (ii) any activity that would be grounds to terminate the Participant’s employment or service with the Service Recipient for Cause; (iii) a breach by the Participant of any restrictive covenant by which such Participant is bound, including, without limitation, any covenant not to compete or not to solicit, in any agreement with any member of the Company Group, or (iv) fraud or conduct contributing to any financial restatements or irregularities, in each case, as determined by the Committee in its sole discretion.
(r) “Disability” means, as to any Participant, unless the applicable Award Agreement states otherwise, (i) “Disability”, as defined in any employment, severance, consulting or other similar agreement between the Participant and the Service Recipient in effect at the time of such Termination; or (ii) in the absence of any such employment, severance, consulting or other similar agreement (or the absence of any definition of “Disability” contained therein), a condition entitling the Participant to receive benefits under a long-term disability plan of the Service Recipient or other member of the Company Group in which such Participant is eligible to participate, or, in the absence of such a plan, the complete and permanent inability of the Participant by reason of illness or accident to perform the duties of the position at which the Participant was employed or served when such disability commenced. Any determination of whether Disability exists in the absence of a long-term disability plan shall be made by the Company (or its designee) in its sole and absolute discretion.
(s) “Effective Date” means March 3, 2023.
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(t) “Eligible Person” means any: (i) individual employed by any member of the Company Group; provided, however, that no such employee covered by a collective bargaining agreement shall be an Eligible Person unless and to the extent that such eligibility is set forth in such collective bargaining agreement or in an agreement or instrument relating thereto; (ii) director or officer of any member of the Company Group; or (iii) consultant or advisor to any member of the Company Group who may be offered securities registrable pursuant to a registration statement on Form S-8 under the Securities Act, who, in the case of each of clauses (i) through (iii) above, has entered into an Award Agreement or who has received written notification from the Committee or its designee that they have been selected to participate in the Plan.
(u) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor thereto. Reference in the Plan to any section of (or rule promulgated under) the Exchange Act shall be deemed to include any rules, regulations, or other interpretative guidance under such section or rule, and any amendments or successor provisions to such section, rules, regulations, or guidance.
(v) “Exercise Price” has the meaning given to such term in Section 6(b) of the Plan.
(w) “Fair Market Value” means, on a given date: (i) if the Class A Ordinary Shares are listed on a national securities exchange, the closing sales price of the Class A Ordinary Shares reported on the primary exchange on which the Class A Ordinary Shares are listed and traded on such date, or, if there are no such sales on that date, then on the last preceding date on which such sales were reported; (ii) if the Class A Ordinary Shares are not listed on any national securities exchange but is quoted in an inter-dealer quotation system on a last-sale basis, the average between the closing bid price and ask price reported on such date, or, if there is no such sale on that date, then on the last preceding date on which a sale was reported; or (iii) if the Class A Ordinary Shares are not listed on a national securities exchange or quoted in an inter-dealer quotation system on a last-sale basis, the amount determined by the Committee in good faith to be the fair market value of the Class A Ordinary Shares.
(x) “GAAP” has the meaning given to such term in Section 6(d) of the Plan.
(y) “Immediate Family Members” has the meaning given to such term in Section 12(b) of the Plan.
(z) “Incentive Share Option” means an Option which is designated by the Committee as an incentive share option as described in Section 422 of the Code and otherwise meets the requirements set forth in the Plan.
(aa) “Indemnifiable Person” has the meaning given to such term in Section 4(e) of the Plan.
(bb) “Non-Employee Director” means a member of the Board who is not an employee of any member of the Company Group.
(cc) “Nonqualified Share Option” means an Option which is not designated by the Committee as an Incentive Share Option.
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(dd) “Option” means an Award granted under Section 6 of the Plan.
(ee) “Option Period” has the meaning given to such term in Section 6(c) of the Plan.
(ff) “Other Cash-Based Award” means an Award that is granted under Section 9 of the Plan that is denominated and/or payable in cash.
(gg) “Other Equity-Based Award” means an Award that is not an Option, Share Appreciation Right, Restricted Share, or Restricted Share Unit that is granted under Section 9 of the Plan and is (i) payable by delivery of Class A Ordinary Shares and/or (ii) measured by reference to the value of a Common Share.
(hh) “Participant” means an Eligible Person who has been selected by the Committee to participate in the Plan and to receive an Award pursuant to the Plan.
(ii) “Performance Conditions” means specific levels of performance of the Company (and/or one or more members of the Company Group, divisions or operational and/or business units, product lines, brands, business segments, administrative departments, or any combination of the foregoing), which may be determined in accordance with GAAP or on a non-GAAP basis on, without limitation, the following measures: (i) net earnings, net income (before or after taxes), adjusted net income after capital charges or consolidated net income; (ii) basic or diluted earnings per share (before or after taxes); (iii) net revenue or net revenue growth; (iv) gross revenue or gross revenue growth, gross profit or gross profit growth; (v) operating income or net operating profit (before or after taxes); (vi) return measures (including, but not limited to, return on investment, assets, capital, employed capital, invested capital, equity, or sales); (vii) cash flow measures (including, but not limited to, operating cash flow, free cash flow, or cash flow return on capital), which may be, but are not required to be, measured on a per share basis; (viii) actual or adjusted earnings before or after interest, taxes, depreciation, and/or amortization (including EBIT and EBITDA) or earnings before interest, taxes, depreciation, amortization and restructuring costs (EBITDAR); (ix) gross or net operating margins; (x) productivity ratios; (xi) share price (including, but not limited to, growth measures and total shareholder return); (xii) expense targets or cost reduction goals, general and administrative expense savings; (xiii) operating efficiency; (xiv) objective measures of customer/client satisfaction; (xv) working capital targets; (xvi) measures of economic value added or other ‘value creation’ metrics; (xvii) enterprise value; (xviii) sales; (xix) shareholder return; (xx) customer/client retention; (xxi) competitive market metrics; (xxii) employee satisfaction, employment practices and employee benefits or employee retention; (xxiii) supervision of litigation and information technology; (xxiv) objective measures of personal targets, goals, or completion of projects (including, but not limited to, succession and hiring projects, completion of specific acquisitions, dispositions, reorganizations, divestitures of subsidiaries and/or other affiliates or joint ventures, other monetization or liquidity events relating to subsidiaries, or other corporate transactions or capital-raising transactions, expansions of specific business operations, and meeting divisional or project budgets); (xxv) comparisons of continuing operations to other operations; (xxvi) market share; (xxvii) cost of capital, debt leverage, year-end cash position, book value, book value per share, tangible book value, tangible book value per share, cash book value or cash book value per share; (xxviii) strategic objectives; or (xxix) any combination of the foregoing. Any one or more of the aforementioned performance criteria may be stated as a percentage of another performance criteria, or used on an absolute or relative basis to measure the performance of one or more members of the Company Group as a whole or any divisions or operational and/or business units, product lines, brands, business segments, or administrative departments of the Company and/or one or more members of the Company Group or any combination thereof, as the Committee may deem appropriate, or any of the above performance criteria may be compared to the performance of a selected group of comparison companies, or a published or special index that the Committee, in its sole discretion, deems appropriate, or as compared to various stock market indices.
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(jj) “Permitted Transferee” has the meaning given to such term in Section 12(b) of the Plan.
(kk) “Person” means any individual, entity, or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act).
(ll) “Plan” means this Ambipar Emergency Response 2023 Omnibus Incentive Plan, as it may be amended and/or restated from time to time.
(mm) “Qualifying Director” means a Person who is, with respect to actions intended to obtain an exemption from Section 16(b) of the Exchange Act pursuant to Rule 16b-3 under the Exchange Act, a “non-employee director” within the meaning of Rule 16b-3 under the Exchange Act.
(nn) “Restricted Period” means the period of time determined by the Committee during which an Award is subject to restrictions, including vesting conditions.
(oo) “Restricted Share” means Class A Ordinary Shares, subject to certain specified restrictions (which may include, without limitation, a requirement that the Participant remain continuously employed or provide continuous services for a specified period of time), granted under Section 8 of the Plan.
(pp) “Restricted Share Unit” means an unfunded and unsecured promise to deliver Class A Ordinary Shares, cash, other securities, or other property, subject to certain restrictions (which may include, without limitation, a requirement that the Participant remain continuously employed or provide continuous services for a specified period of time), granted under Section 8 of the Plan.
(qq) “SAR Period” has the meaning given to such term in Section 7(c) of the Plan.
(rr) “Securities Act” means the Securities Act of 1933, as amended, and any successor thereto. Reference in the Plan to any section of (or rule promulgated under) the Securities Act shall be deemed to include any rules, regulations, or other interpretative guidance under such section or rule, and any amendments or successor provisions to such section, rules, regulations, or guidance.
(ss) “Service Recipient” means, with respect to a Participant holding a given Award, the member of the Company Group by which the original recipient of such Award is, or following a Termination was most recently, principally employed or to which such original recipient provides, or following a Termination was most recently providing, services, as applicable.
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(tt) “Share Appreciation Right” or “SAR” means an Award granted under Section 7 of the Plan.
(uu) “Strike Price” has the meaning given to such term in Section 7(b) of the Plan.
(vv) “Sub-Plans” means any sub-plan to the Plan that has been adopted by the Board or the Committee for the purpose of permitting or facilitating the offering of Awards to employees of certain Designated Foreign Subsidiaries or otherwise outside the jurisdiction of the United States of America, with each such Sub-Plan designed to comply with Applicable Law in such foreign jurisdictions. Although any Sub-Plan may be designated a separate and independent plan from the Plan in order to comply with Applicable Law, the Absolute Share Limit and the other limits specified in Section 5(b) of the Plan shall apply in the aggregate to the Plan and any Sub-Plan adopted hereunder.
(ww) “Subsidiary” means, with respect to any specified Person:
(i) any corporation, association, or other business entity of which more than 50% of the total voting power of shares of such entity’s voting securities (without regard to the occurrence of any contingency and after giving effect to any voting agreement or shareholders’ agreement that effectively transfers voting power) is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and
(ii) any partnership (or any comparable foreign entity) (A) the sole general partner (or functional equivalent thereof) or the managing general partner of which is such Person or Subsidiary of such Person or (B) the only general partners (or functional equivalents thereof) of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).
(xx) “Substitute Awards” has the meaning given to such term in Section 5(e) of the Plan.
(yy) “Termination” means the termination of a Participant’s employment or service, as applicable, with the Service Recipient for any reason (including death or Disability).
3. Effective Date; Duration. The Plan shall be effective as of the Effective Date. The expiration date of the Plan, on and after which date no Awards may be granted hereunder, shall be the tenth anniversary of the Effective Date; provided, however, that such expiration shall not affect Awards then outstanding, and the terms and conditions of the Plan shall continue to apply to such Awards.
4. Administration.
(a) General. The Committee shall administer the Plan. To the extent required to comply with the provisions of Rule 16b-3 promulgated under the Exchange Act (if the Board is not acting as the Committee under the Plan), it is intended that each member of the Committee shall, at the time such member takes any action with respect to an Award under the Plan that is intended to qualify for the exemptions provided by Rule 16b-3 promulgated under the Exchange Act, be a Qualifying Director. However, the fact that a Committee member shall fail to qualify as a Qualifying Director shall not invalidate any Award granted by the Committee that is otherwise validly granted under the Plan.
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(b) Committee Authority. Subject to the provisions of the Plan and Applicable Law, the Committee shall have the sole and plenary authority, in addition to other express powers and authorizations conferred on the Committee by the Plan, to: (i) designate Participants; (ii) determine the type or types of Awards to be granted to a Participant; (iii) determine the number of Class A Ordinary Shares to be covered by, or with respect to which payments, rights, or other matters are to be calculated in connection with, Awards; (iv) determine the terms and conditions of any Award, including any Performance Conditions; (v) determine whether, to what extent, and under what circumstances Awards may be settled in, or exercised for, cash, Class A Ordinary Shares, other securities, other Awards, or other property, or canceled, forfeited, or suspended and the method or methods by which Awards may be settled, exercised, canceled, forfeited, or suspended; (vi) determine whether, to what extent, and under what circumstances the delivery of cash, Class A Ordinary Shares, other securities, other Awards, or other property and other amounts payable with respect to an Award shall be deferred either automatically or at the election of the Participant or of the Committee; (vii) interpret, administer, reconcile any inconsistency in, correct any defect in, and/or supply any omission in the Plan and any instrument or agreement relating to, or Award granted under, the Plan; (viii) establish, amend, suspend, or waive any rules and regulations and appoint such agents as the Committee shall deem appropriate for the proper administration of the Plan; (ix) adopt Sub-Plans; and (x) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan.
(c) Delegation. Except to the extent prohibited by Applicable Law, the Committee may allocate all or any portion of its responsibilities and powers to any one or more of its members and may delegate all or any part of its responsibilities and powers to any Person or Persons selected by it. Any such allocation or delegation may be revoked by the Committee at any time. Without limiting the generality of the foregoing, the Committee may delegate to one or more officers of any member of the Company Group the authority to act on behalf of the Committee with respect to any matter, right, obligation, or election which is the responsibility of, or which is allocated to, the Committee herein, and which may be so delegated in accordance with Applicable Law, except for grants of Awards to Non-Employee Directors. Notwithstanding the foregoing in this Section 4(c), it is intended that any action under the Plan intended to qualify for an exemption provided by Rule 16b-3 promulgated under the Exchange Act related to Persons who are subject to Section 16 of the Exchange Act will be taken only by the Board or by a committee or subcommittee of two or more Qualifying Directors. However, the fact that any member of such committee or subcommittee shall fail to qualify as a Qualifying Director shall not invalidate any action that is otherwise valid under the Plan.
(d) Finality of Decisions. Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan, any Award or any Award Agreement shall be within the sole discretion of the Committee, may be made at any time, and shall be final, conclusive, and binding upon all Persons, including, without limitation, any member of the Company Group, any Participant, any holder or beneficiary of any Award, and any shareholder of the Company.
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(e) Indemnification. No member of the Board, the Committee, or any employee or agent of any member of the Company Group (each such Person, an “Indemnifiable Person”) shall be liable for any action taken or omitted to be taken or any determination made with respect to the Plan or any Award hereunder (unless constituting fraud, dishonesty, or a willful criminal act or omission). Each Indemnifiable Person shall be indemnified and held harmless by the Company to the maximum extent permitted by Applicable Law against and from any loss, cost, liability, or expense (including attorneys’ fees) that may be imposed upon or incurred by such Indemnifiable Person in connection with or resulting from any action, suit, or proceeding to which such Indemnifiable Person may be a party or in which such Indemnifiable Person may be involved by reason of any action taken or omitted to be taken or determination made with respect to the Plan or any Award hereunder and against and from any and all amounts paid by such Indemnifiable Person with the Company’s approval, in settlement thereof, or paid by such Indemnifiable Person in satisfaction of any judgment in any such action, suit, or proceeding against such Indemnifiable Person, and the Company shall advance to such Indemnifiable Person any such expenses promptly upon written request (which request shall include an undertaking by the Indemnifiable Person to repay the amount of such advance if it shall ultimately be determined, as provided below, that the Indemnifiable Person is not entitled to be indemnified); provided, that the Company shall have the right, at its own expense, to assume and defend any such action, suit, or proceeding and once the Company gives notice of its intent to assume the defense, the Company shall have sole control over such defense with counsel of the Company’s choice. The foregoing right of indemnification shall not be available to an Indemnifiable Person to the extent that a final judgment or other final adjudication (in either case not subject to further appeal) binding upon such Indemnifiable Person determines that the acts, omissions, or determinations of such Indemnifiable Person giving rise to the indemnification claim resulted from such Indemnifiable Person’s fraud, dishonesty, or willful criminal act or omission or that such right of indemnification is otherwise prohibited by Applicable Law or by the organizational documents of any member of the Company Group. The foregoing right of indemnification shall not be exclusive of or otherwise supersede any other rights of indemnification to which such Indemnifiable Persons may be entitled under (i) the organizational documents of any member of the Company Group, (ii) pursuant to Applicable Law, (iii) an individual indemnification agreement or contract, or otherwise, or (iv) any other power that the Company may have to indemnify such Indemnifiable Persons or hold such Indemnifiable Persons harmless.
(f) Board Authority. Notwithstanding anything to the contrary contained in the Plan, the Board may, in its sole discretion, at any time and from time to time, grant Awards and administer the Plan with respect to such Awards. Any such actions by the Board shall be subject to Applicable Law. In any such case, the Board shall have all the authority granted to the Committee under the Plan.
5. Grant of Awards; Shares Subject to the Plan; Limitations.
(a) Grants. The Committee may, from time to time, grant Awards to one or more Eligible Persons. All Awards granted under the Plan shall vest and become exercisable in such manner and on such date or dates or upon such event or events as determined by the Committee, including, without limitation, attainment of Performance Conditions.
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(b) Share Reserve and Limits. Awards granted under the Plan shall be subject to the following limitations: (i) subject to Section 10 of the Plan, no more than 1,108,597 Class A Ordinary Shares (the “Absolute Share Limit”) shall be available for Awards under the Plan; and (ii) subject to Section 10 of the Plan, no more than the number of Class A Ordinary Shares equal to the Absolute Share Limit may be issued in the aggregate pursuant to the exercise of Incentive Share Options granted under the Plan.
(c) Share Counting. Other than with respect to Substitute Awards, to the extent that an Award expires or is canceled, forfeited, terminated, settled in cash, or otherwise is settled without issuance to the Participant of the full number of Class A Ordinary Shares to which the Award related, the unissued Class A Ordinary Shares will again be available for grant under the Plan. Class A Ordinary Shares withheld in payment of the Exercise Price, or taxes relating to an Award, and shares equal to the number of shares surrendered in payment of any Exercise Price, or taxes relating to an Award, shall be deemed to constitute shares not issued to the Participant and shall be deemed to again be available for Awards under the Plan; provided, however, that such shares shall not become available for issuance hereunder if either: (i) the applicable shares are withheld or surrendered following the termination of the Plan; or (ii) at the time the applicable shares are withheld or surrendered, it would constitute a material revision of the Plan subject to shareholder approval under any then-applicable rules of the national securities exchange on which the Class A Ordinary Shares are listed.
(d) Source of Shares. Class A Ordinary Shares issued by the Company in settlement of Awards may be authorized and unissued shares, Class A Ordinary Shares held in the treasury of the Company, Class A Ordinary Shares purchased on the open market or by private purchase, or a combination of the foregoing.
(e) Substitute Awards. Awards may, in the sole discretion of the Committee, be granted under the Plan in assumption of, or in substitution for, outstanding Awards previously granted by an entity directly or indirectly acquired by the Company or with which the Company combines (“Substitute Awards”). Substitute Awards shall not be counted against the Absolute Share Limit; provided, that Substitute Awards issued in connection with the assumption of, or in substitution for, outstanding Options intended to qualify as “incentive stock options” within the meaning of Section 422 of the Code shall be counted against the aggregate number of Class A Ordinary Shares available for Awards of Incentive Share Options under the Plan. Subject to applicable stock exchange requirements, available Class A Ordinary Shares under a shareholder-approved plan of an entity directly or indirectly acquired by the Company or with which the Company combines (as appropriately adjusted to reflect the acquisition or combination transaction) may be used for Awards under the Plan and shall not reduce the number of Class A Ordinary Shares available for issuance under the Plan.
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6. Options.
(a) General. Each Option granted under the Plan shall be evidenced by an Award Agreement, which agreement need not be the same for each Participant. Each Option so granted shall be subject to the conditions set forth in this Section 6, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement. All Options granted under the Plan shall be Nonqualified Share Options unless the applicable Award Agreement expressly states that the Option is intended to be an Incentive Share Option. Incentive Share Options shall be granted only to Eligible Persons who are employees of a member of the Company Group, and no Incentive Share Option shall be granted to any Eligible Person who is ineligible to receive an Incentive Share Option under the Code. No Option shall be treated as an Incentive Share Option unless the Plan has been approved by the shareholders of the Company in a manner intended to comply with the shareholder approval requirements of Section 422(b)(1) of the Code; provided, that any Option intended to be an Incentive Share Option shall not fail to be effective solely on account of a failure to obtain such approval, but rather such Option shall be treated as a Nonqualified Share Option unless and until such approval is obtained. In the case of an Incentive Share Option, the terms and conditions of such grant shall be subject to, and comply with, such rules as may be prescribed by Section 422 of the Code. If for any reason an Option intended to be an Incentive Share Option (or any portion thereof) shall not qualify as an Incentive Share Option, then, to the extent of such nonqualification, such Option or portion thereof shall be regarded as a Nonqualified Share Option appropriately granted under the Plan.
(b) Exercise Price. Except as otherwise provided by the Committee in the case of Substitute Awards, the exercise price (“Exercise Price”) per Common Share for each Option shall not be less than 100% of the Fair Market Value of such share (determined as of the Date of Grant); provided, however, that in the case of an Incentive Share Option granted to an employee who, at the time of the grant of such Option, owns shares representing more than 10% of the voting power of all classes of shares of any member of the Company Group, the Exercise Price per share shall be no less than 110% of the Fair Market Value per share on the Date of Grant.
(c) Vesting and Expiration; Termination.
(i) Options shall vest and become exercisable in such manner and on such date or dates or upon such event or events as determined by the Committee including, without limitation, those set forth in Section 5(a) of the Plan; provided, however, that notwithstanding any such vesting dates or events, the Committee may in its sole discretion accelerate the vesting of any Options at any time and for any reason. Options shall expire upon a date determined by the Committee, not to exceed ten years from the Date of Grant (the “Option Period”); provided, that if the Option Period (other than in the case of an Incentive Share Option) would expire at a time when trading in the Class A Ordinary Shares is prohibited by the Company’s insider trading policy (or Company-imposed “blackout period”), then the Option Period shall be automatically extended until the 30th day following the expiration of such prohibition. Notwithstanding the foregoing, in no event shall the Option Period exceed five years from the Date of Grant in the case of an Incentive Share Option granted to a Participant who on the Date of Grant owns shares representing more than 10% of the voting power of all classes of shares of any member of the Company Group.
(ii) Unless otherwise determined by the Committee, whether in an Award Agreement or otherwise, in the event of: (A) a Participant’s Termination by the Service Recipient for Cause, all outstanding Options granted to such Participant shall immediately terminate and expire; (B) a Participant’s Termination due to death or Disability, each outstanding unvested Option granted to such Participant shall immediately terminate and expire, and each outstanding vested Option shall remain exercisable for one year thereafter (but in no event beyond the expiration of the Option Period); and (C) a Participant’s Termination for any other reason, each outstanding unvested Option granted to such Participant shall immediately terminate and expire, and each outstanding vested Option shall remain exercisable for 90 days thereafter (but in no event beyond the expiration of the Option Period).
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(d) Method of Exercise and Form of Payment. No Class A Ordinary Shares shall be issued pursuant to any exercise of an Option until payment in full of the Exercise Price therefor is received by the Company and the Participant has paid to the Company an amount equal to any Federal, state, local, and non-U.S. income, employment, and any other applicable taxes that are statutorily required to be withheld in accordance with Section 12(d) of the Plan. Options which have become exercisable may be exercised by delivery of written or electronic notice of exercise to the Company (or telephonic instructions to the extent provided by the Committee) in accordance with the terms of the Option accompanied by payment of the Exercise Price. The Exercise Price shall be payable: (i) in cash, check, cash equivalent, and/or Class A Ordinary Shares valued at the Fair Market Value at the time the Option is exercised (including, pursuant to procedures approved by the Committee, by means of attestation of ownership of a sufficient number of Class A Ordinary Shares in lieu of actual issuance of such shares to the Company); provided, that such Class A Ordinary Shares are not subject to any pledge or other security interest and have been held by the Participant for at least six months (or such other period as established from time to time by the Committee in order to avoid adverse accounting treatment applying generally accepted accounting principles (“GAAP”)); or (ii) by such other method as the Committee may permit in its sole discretion, including, without limitation (A) in other property having a fair market value on the date of exercise equal to the Exercise Price; (B) if there is a public market for the Class A Ordinary Shares at such time, by means of a broker-assisted “cashless exercise” pursuant to which the Company is delivered (including telephonically to the extent permitted by the Committee) a copy of irrevocable instructions to a stockbroker to sell the Class A Ordinary Shares otherwise issuable upon the exercise of the Option and to deliver promptly to the Company an amount equal to the Exercise Price; or (C) a “net exercise” procedure effected by withholding the minimum number of Class A Ordinary Shares otherwise issuable in respect of an Option that are needed to pay the Exercise Price and any Federal, state, local, and non-U.S. income, employment, and any other applicable taxes that are statutorily required to be withheld in accordance with Section 12(d) of the Plan. Any fractional Class A Ordinary Shares shall be settled in cash.
(e) Notification upon Disqualifying Disposition of an Incentive Share Option. Each Participant awarded an Incentive Share Option under the Plan shall notify the Company in writing immediately after the date the Participant makes a disqualifying disposition of any Class A Ordinary Shares acquired pursuant to the exercise of such Incentive Share Option. A disqualifying disposition is any disposition (including, without limitation, any sale) of such Class A Ordinary Shares before the later of (i) the date that is two years after the Date of Grant of the Incentive Share Option, or (ii) the date that is one year after the date of exercise of the Incentive Share Option.
(f) Compliance With Applicable Laws, etc. Notwithstanding the foregoing, in no event shall a Participant be permitted to exercise an Option in a manner which the Committee determines would violate the Sarbanes-Oxley Act of 2002, as it may be amended from time to time, or any other Applicable Law.
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7. Share Appreciation Rights.
(a) General. Each SAR granted under the Plan shall be evidenced by an Award Agreement. Each SAR so granted shall be subject to the conditions set forth in this Section 7, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement. Any Option granted under the Plan may include tandem SARs. The Committee also may award SARs to Eligible Persons independent of any Option.
(b) Strike Price. Except as otherwise provided by the Committee in the case of Substitute Awards, the strike price (“Strike Price”) per Common Share for each SAR shall not be less than 100% of the Fair Market Value of such share (determined as of the Date of Grant). Notwithstanding the foregoing, a SAR granted in tandem with (or in substitution for) an Option previously granted shall have a Strike Price equal to the Exercise Price of the corresponding Option.
(c) Vesting and Expiration; Termination.
(i) A SAR granted in connection with an Option shall become exercisable and shall expire according to the same vesting schedule and expiration provisions as the corresponding Option. A SAR granted independent of an Option shall vest and become exercisable in such manner and on such date or dates or upon such event or events as determined by the Committee including, without limitation, those set forth in Section 5(a) of the Plan; provided, however, that notwithstanding any such vesting dates or events, the Committee may, in its sole discretion, accelerate the vesting of any SAR at any time and for any reason. SARs shall expire upon a date determined by the Committee, not to exceed ten years from the Date of Grant (the “SAR Period”); provided, that if the SAR Period would expire at a time when trading in the Class A Ordinary Shares is prohibited by the Company’s insider trading policy (or Company-imposed “blackout period”), then the SAR Period shall be automatically extended until the 30th day following the expiration of such prohibition.
(ii) Unless otherwise determined by the Committee, whether in an Award Agreement or otherwise, in the event of: (A) a Participant’s Termination by the Service Recipient for Cause, all outstanding SARs granted to such Participant shall immediately terminate and expire; (B) a Participant’s Termination due to death or Disability, each outstanding unvested SAR granted to such Participant shall immediately terminate and expire, and each outstanding vested SAR shall remain exercisable for one year thereafter (but in no event beyond the expiration of the SAR Period); and (C) a Participant’s Termination for any other reason, each outstanding unvested SAR granted to such Participant shall immediately terminate and expire, and each outstanding vested SAR shall remain exercisable for 90 days thereafter (but in no event beyond the expiration of the SAR Period).
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(d) Method of Exercise. SARs which have become exercisable may be exercised by delivery of written or electronic notice of exercise to the Company in accordance with the terms of the Award, specifying the number of SARs to be exercised and the date on which such SARs were awarded.
(e) Payment. Upon the exercise of a SAR, the Company shall pay to the Participant an amount equal to the number of shares subject to the SAR that is being exercised multiplied by the excess of the Fair Market Value of one Common Share on the exercise date over the Strike Price, less an amount equal to any Federal, state, local, and non-U.S. income, employment, and any other applicable taxes that are statutorily required to be withheld in accordance with Section 12(d) of the Plan. The Company shall pay such amount in cash, in Class A Ordinary Shares valued at Fair Market Value, or any combination thereof, as determined by the Committee. Any fractional Class A Ordinary Shares shall be settled in cash.
8. Restricted Share and Restricted Share Units.
(a) General. Each grant of Restricted Share and Restricted Share Units shall be evidenced by an Award Agreement. Each Restricted Share and Restricted Share Unit so granted shall be subject to the conditions set forth in this Section 8, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement.
(b) Share Certificates and Book-Entry Notation; Escrow or Similar Arrangement. Upon the grant of Restricted Share, the Committee shall, at its discretion, cause a share certificate registered in the name of the Participant to be issued or shall cause Common Share(s) to be registered in the name of the Participant and held in book-entry form subject to the Company’s directions and, if the Committee determines that the Restricted Share shall be held by the Company or in escrow rather than issued to the Participant pending the release of the applicable restrictions, the Committee may require the Participant to additionally execute and deliver to the Company (i) an escrow agreement satisfactory to the Committee, if applicable, and (ii) the appropriate share power (endorsed in blank) with respect to the Restricted Share covered by such agreement. If a Participant shall fail to execute and deliver (in a manner permitted under Section 12(a) of the Plan or as otherwise determined by the Committee) an agreement evidencing an Award of Restricted Share and, if applicable, an escrow agreement and blank share power within the amount of time specified by the Committee, the Award shall be null and void. Subject to the restrictions set forth in this Section 8, Section 12(b) of the Plan, and the applicable Award Agreement, a Participant generally shall have the rights and privileges of a shareholder as to Restricted Shares, including, without limitation, the right to vote such Restricted Shares. To the extent Restricted Shares are forfeited, any share certificates issued to the Participant evidencing such shares shall be returned to the Company without undue delay, and all rights of the Participant to such shares and as a shareholder with respect thereto shall terminate automatically without further obligation on the part of the Company. A Participant shall have no rights or privileges as a shareholder as to Restricted Share Units.
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(c) Vesting; Termination.
(i) Restricted Share and Restricted Share Units shall vest, and any applicable Restricted Period shall lapse, in such manner and on such date or dates or upon such event or events as determined by the Committee including, without limitation, those set forth in Section 5(a) of the Plan; provided, however, that notwithstanding any such dates or events, the Committee may, in its sole discretion, accelerate the vesting of any Restricted Share or Restricted Share Unit or the lapsing of any applicable Restricted Period at any time and for any reason.
(ii) Unless otherwise determined by the Committee, whether in an Award Agreement or otherwise, in the event of a Participant’s Termination for any reason prior to the time that such Participant’s Restricted Shares or Restricted Share Units, as applicable, have vested, (A) all vesting with respect to such Participant’s Restricted Shares or Restricted Share Units, as applicable, shall cease and (B) unvested shares of Restricted Share and unvested Restricted Share Units, as applicable, shall be forfeited to the Company by the Participant for no consideration as of the date of such Termination.
(d) Issuance of Restricted Share and Settlement of Restricted Share Units.
(i) Upon the expiration of the Restricted Period with respect to any Restricted Shares, the restrictions set forth in the applicable Award Agreement shall be of no further force or effect with respect to such shares, except as set forth in the applicable Award Agreement. If an escrow arrangement is used, upon such expiration the Company shall issue to the Participant or the Participant’s beneficiary, without charge, the share certificate (or, if applicable, a notice evidencing a book-entry notation) evidencing the Restricted Shares which have not then been forfeited and with respect to which the Restricted Period has expired (rounded down to the nearest full share).
(ii) Unless otherwise determined by the Committee in an Award Agreement or otherwise, upon the expiration of the Restricted Period with respect to any outstanding Restricted Share Units, the Company shall issue to the Participant or the Participant’s beneficiary, without charge, one Common Share (or other securities or other property, as applicable) for each such outstanding Restricted Share Unit; provided, however, that the Committee may, in its sole discretion, elect to (A) pay cash or part cash and part Class A Ordinary Shares in lieu of issuing only Class A Ordinary Shares in respect of such Restricted Share Units or (B) defer the issuance of Class A Ordinary Shares (or cash or part cash and part Class A Ordinary Shares, as the case may be) beyond the expiration of the Restricted Period if such extension would not cause adverse tax consequences under Section 409A of the Code. If a cash payment is made in lieu of issuing Class A Ordinary Shares in respect of such Restricted Share Units, the amount of such payment shall be equal to the Fair Market Value per Common Share as of the date on which the Restricted Period lapsed with respect to such Restricted Share Units.
(e) Legends on Restricted Share. Each certificate, if any, or book entry representing Restricted Shares awarded under the Plan, if any, shall bear a legend or book-entry notation substantially in the form of the following, in addition to any other information the Company deems appropriate, until the lapse of all restrictions with respect to such Class A Ordinary Shares:
TRANSFER OF THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY IS RESTRICTED PURSUANT TO THE TERMS OF THE Ambipar EMERGENCY RESPONSE 2023 OMNIBUS INCENTIVE PLAN AND A RESTRICTED SHARE AWARD AGREEMENT BETWEEN AMBIPAR EMERGENCY RESPONSE AND THE PARTICIPANT. A COPY OF SUCH PLAN AND AWARD AGREEMENT IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF AMBIPAR EMERGENCY RESPONSE.
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9. Other Equity-Based Awards and Other Cash-Based Awards. The Committee may grant Other Equity-Based Awards and Other Cash-Based Awards under the Plan to Eligible Persons, alone or in tandem with other Awards, in such amounts and dependent on such conditions as the Committee shall from time to time in its sole discretion determine including, without limitation, those set forth in Section 5(a) of the Plan. Each Other Equity-Based Award granted under the Plan shall be evidenced by an Award Agreement and each Other Cash-Based Award granted under the Plan shall be evidenced in such form as the Committee may determine from time to time. Each Other Equity-Based Award or Other Cash-Based Award, as applicable, so granted shall be subject to such conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement or other form evidencing such Award, including, without limitation, those set forth in Section 12(c) of the Plan.
10. Changes in Capital Structure and Similar Events. Notwithstanding any other provision in this Plan to the contrary, the following provisions shall apply to all Awards granted hereunder (other than Other Cash-Based Awards):
(a) General. In the event of (i) any dividend (other than regular cash dividends) or other distribution (whether in the form of cash, Class A Ordinary Shares, other securities, or other property), recapitalization, share split, reverse share split, reorganization, merger, consolidation, split-up, split-off, spin-off, combination, repurchase, or exchange of Class A Ordinary Shares or other securities of the Company, issuance of warrants or other rights to acquire Class A Ordinary Shares or other securities of the Company, or other similar corporate transaction or event that affects the Class A Ordinary Shares (including a Change in Control), or (ii) unusual or nonrecurring events affecting the Company, including changes in applicable rules, rulings, regulations, or other requirements, that the Committee determines, in its sole discretion, could result in substantial dilution or enlargement of the rights intended to be granted to, or available for, Participants (any event in (i) or (ii), an “Adjustment Event”), the Committee shall, in respect of any such Adjustment Event, make such proportionate substitution or adjustment, if any, as it, in its sole discretion, deems equitable, to any or all of: (A) the Absolute Share Limit, or any other limit applicable under the Plan with respect to the number of Awards which may be granted hereunder; (B) the number of Class A Ordinary Shares or other securities of the Company (or number and kind of other securities or other property) which may be issued in respect of Awards or with respect to which Awards may be granted under the Plan or any Sub-Plan; and (C) the terms of any outstanding Award, including, without limitation, (I) the number of Class A Ordinary Shares or other securities of the Company (or number and kind of other securities or other property) subject to outstanding Awards or to which outstanding Awards relate; (II) the Exercise Price or Strike Price with respect to any Award; or (III) any applicable performance measures; provided, that in the case of any “equity restructuring” (within the meaning of the Financial Accounting Standards Board Accounting Standards Codification Topic 718 (or any successor pronouncement thereto)), the Committee shall make an equitable or proportionate adjustment to outstanding Awards to reflect such equity restructuring. Any adjustment under this Section 10 shall be conclusive and binding for all purposes.
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(b) Adjustment Events. Without limiting the foregoing, except as may otherwise be provided in an Award Agreement, in connection with any Adjustment Event, the Committee may, in its sole discretion, provide for any one or more of the following:
(i) substitution or assumption of Awards (or awards of an acquiring company), acceleration of the exercisability of, lapse of restrictions on, or termination of Awards, or a period of time (which shall not be required to be more than ten days) for Participants to exercise outstanding Awards prior to the occurrence of such event (and any such Award not so exercised shall terminate upon the occurrence of such event); and
(ii) subject to any limitations or reductions as may be necessary to comply with Section 409A of the Code, cancellation of any one or more outstanding Awards and payment to the holders of such Awards that are vested as of such cancellation (including, without limitation, any Awards that would vest as a result of the occurrence of such event but for such cancellation or for which vesting is accelerated by the Committee in connection with such event) the value of such Awards, if any, as determined by the Committee (which value, if applicable, may be based upon the price per Common Share received or to be received by other shareholders of the Company in such event), including, without limitation, in the case of an outstanding Option or SAR, a cash payment in an amount equal to the excess, if any, of the Fair Market Value (as of a date specified by the Committee) of the Class A Ordinary Shares subject to such Option or SAR over the aggregate Exercise Price or Strike Price of such Option or SAR (it being understood that, in such event, any Option or SAR having a per share Exercise Price or Strike Price equal to, or in excess of, the Fair Market Value of a Common Share subject thereto may be canceled and terminated without any payment or consideration therefor), or, in the case of Restricted Shares, Restricted Share Units, or Other Equity-Based Awards that are not vested as of such cancellation, a cash payment or equity subject to deferred vesting and delivery consistent with the vesting restrictions applicable to such Restricted Shares, Restricted Share Units, or Other Equity-Based Awards prior to cancellation, or the underlying shares in respect thereof.
Payments to holders pursuant to clause (ii) above shall be made in cash or, in the sole discretion of the Committee, in the form of such other consideration necessary for a Participant to receive property, cash, or securities (or combination thereof) as such Participant would have been entitled to receive upon the occurrence of the transaction if the Participant had been, immediately prior to such transaction, the holder of the number of Class A Ordinary Shares covered by the Award at such time (less any applicable Exercise Price or Strike Price).
(c) Other Requirements. Prior to any payment or adjustment contemplated under this Section 10, the Committee may require a Participant to (i) represent and warrant as to the unencumbered title to the Participant’s Awards; (ii) bear such Participant’s pro rata share of any post-closing indemnity obligations, and be subject to the same post-closing purchase price adjustments, escrow terms, offset rights, holdback terms, and similar conditions as the other holders of Class A Ordinary Shares, subject to any limitations or reductions as may be necessary to comply with Section 409A of the Code; and (iii) deliver customary transfer documentation as reasonably determined by the Committee.
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(d) Fractional Shares. Any adjustment provided under this Section 10 may provide for the elimination of any fractional share that might otherwise become subject to an Award.
(e) Binding Effect. Any adjustment, substitution, determination of value or other action taken by the Committee under this Section 10 shall be conclusive and binding for all purposes.
11. Amendments and Termination.
(a) Amendment and Termination of the Plan. The Board may amend, alter, suspend, discontinue, or terminate the Plan or any portion thereof at any time; provided, that no such amendment, alteration, suspension, discontinuance, or termination shall be made without shareholder approval if: (i) such approval is required under Applicable Law; (ii) it would materially increase the number of securities which may be issued under the Plan (except for increases pursuant to Section 5 or 10 of the Plan), or (iii) it would materially modify the requirements for participation in the Plan; provided, further, that any such amendment, alteration, suspension, discontinuance, or termination that would materially and adversely affect the rights of any Participant or any holder or beneficiary of any Award theretofore granted shall not to that extent be effective without the consent of the affected Participant, holder, or beneficiary. Notwithstanding the foregoing, no amendment shall be made to the last proviso of Section 11(b) of the Plan without shareholder approval.
(b) Amendment of Award Agreements. The Committee may, to the extent consistent with the terms of the Plan and any applicable Award Agreement, in its sole discretion, waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel, or terminate, any Award theretofore granted or the associated Award Agreement, prospectively or retroactively (including after a Participant’s Termination); provided, that, other than pursuant to Section 10, any such waiver, amendment, alteration, suspension, discontinuance, cancellation, or termination that would materially and adversely affect the rights of any Participant with respect to any Award theretofore granted shall not to that extent be effective without the consent of the affected Participant; provided, further, that without shareholder approval, except as otherwise permitted under Section 10 of the Plan, (i) no amendment or modification may reduce the Exercise Price of any Option or the Strike Price of any SAR; (ii) the Committee may not cancel any outstanding Option or SAR and replace it with a new Option or SAR (with a lower Exercise Price or Strike Price, as the case may be) or other Award or cash payment that is greater than the intrinsic value (if any) of the canceled Option or SAR; and (iii) the Committee may not take any other action which is considered a “repricing” for purposes of the shareholder approval rules of any securities exchange or inter-dealer quotation system on which the securities of the Company are listed or quoted.
12. General.
(a) Award Agreements. Each Award (other than an Other Cash-Based Award) under the Plan shall be evidenced by an Award Agreement, which shall be delivered to the Participant to whom such Award was granted and shall specify the terms and conditions of the Award and any rules applicable thereto, including, without limitation, any Performance Conditions, the effect on such Award of the death, Disability, or Termination of a Participant, or of such other events as may be determined by the Committee. For purposes of the Plan, an Award Agreement may be in any such form (written or electronic) as determined by the Committee (including, without limitation, a Board or Committee resolution, an employment agreement, a notice, a certificate, or a letter) evidencing the Award. The Committee need not require an Award Agreement to be signed by the Participant or a duly authorized representative of the Company.
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(b) Nontransferability.
(i) Each Award shall be exercisable only by such Participant to whom such Award was granted during the Participant’s lifetime, or, if permissible under Applicable Law, by the Participant’s legal guardian or representative. No Award may be assigned, alienated, pledged, attached, sold, or otherwise transferred or encumbered by a Participant (unless such transfer is specifically required pursuant to a domestic relations order or by Applicable Law) other than by will or by the laws of descent and distribution and any such purported assignment, alienation, pledge, attachment, sale, transfer, or encumbrance shall be void and unenforceable against any member of the Company Group; provided, that the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer, or encumbrance.
(ii) Notwithstanding the foregoing, the Committee may, in its sole discretion, permit Awards (other than Incentive Share Options) to be transferred by a Participant, without consideration, subject to such rules as the Committee may adopt consistent with any applicable Award Agreement to preserve the purposes of the Plan, to: (A) any Person who is a “family member” of the Participant, as such term is used in the instructions to Form S-8 under the Securities Act or any successor form of registration statement promulgated by the Securities and Exchange Commission (collectively, the “Immediate Family Members”); (B) a trust solely for the benefit of the Participant and the Participant’s Immediate Family Members; (C) a partnership or limited liability company whose only partners or shareholders are the Participant and the Participant’s Immediate Family Members; or (D) a beneficiary to whom donations are eligible to be treated as “charitable contributions” for federal income tax purposes (each transferee described in clauses (A), (B), (C), and (D) above is hereinafter referred to as a “Permitted Transferee”); provided, that the Participant gives the Committee advance written notice describing the terms and conditions of the proposed transfer and the Committee notifies the Participant in writing that such a transfer would comply with the requirements of the Plan.
(iii) The terms of any Award transferred in accordance with clause (ii) above shall apply to the Permitted Transferee and any reference in the Plan or in any applicable Award Agreement to a Participant shall be deemed to refer to the Permitted Transferee, except that: (A) Permitted Transferees shall not be entitled to transfer any Award, other than by will or the laws of descent and distribution; (B) Permitted Transferees shall not be entitled to exercise any transferred Option unless there shall be in effect a registration statement on an appropriate form covering the Class A Ordinary Shares to be acquired pursuant to the exercise of such Option if the Committee determines, consistent with any applicable Award Agreement, that such a registration statement is necessary or appropriate; (C) neither the Committee nor the Company shall be required to provide any notice to a Permitted Transferee, whether or not such notice is or would otherwise have been required to be given to the Participant under the Plan or otherwise; and (D) the consequences of a Participant’s Termination under the terms of the Plan and the applicable Award Agreement shall continue to be applied with respect to the Participant, including, without limitation, that an Option shall be exercisable by the Permitted Transferee only to the extent, and for the periods, specified in the Plan and the applicable Award Agreement.
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(c) Dividends and Dividend Equivalents.
(i) The Committee may, in its sole discretion, provide a Participant as part of an Award with dividends, dividend equivalents, or similar payments in respect of Awards, payable in cash, Class A Ordinary Shares, other securities, other Awards or other property, on a current or deferred basis, on such terms and conditions as may be determined by the Committee in its sole discretion, including, without limitation, payment directly to the Participant, withholding of such amounts by the Company subject to vesting of the Award or reinvestment in additional Class A Ordinary Shares, Restricted Shares or other Awards.
(ii) Without limiting the foregoing, unless otherwise provided in the Award Agreement, any dividend otherwise payable in respect of any Restricted Shares that remains subject to vesting conditions at the time of payment of such dividend shall be retained by the Company, remain subject to the same vesting conditions as the Restricted Shares to which the dividend relates and shall be delivered (without interest) to the Participant within 15 days following the date on which such restrictions on such Restricted Shares lapse (and the right to any such accumulated dividends shall be forfeited upon the forfeiture of the Restricted Shares to which such dividends relate).
(iii) To the extent provided in an Award Agreement, the holder of outstanding Restricted Share Units shall be entitled to be credited with dividend equivalent payments (upon the payment by the Company of dividends on Class A Ordinary Shares) either in cash or, in the sole discretion of the Committee, in Class A Ordinary Shares having a Fair Market Value equal to the amount of such dividends (and interest may, in the sole discretion of the Committee, be credited on the amount of cash dividend equivalents at a rate and subject to such terms as determined by the Committee), which accumulated dividend equivalents (and interest thereon, if applicable) shall be payable at the same time as the underlying Restricted Share Units are settled following the date on which the Restricted Period lapses with respect to such Restricted Share Units, and if such Restricted Share Units are forfeited, the Participant shall have no right to such dividend equivalent payments (or interest thereon, if applicable).
(d) Tax Withholding.
(i) A Participant shall be required to pay to the Company or one or more of its Subsidiaries, as applicable, an amount in cash (by check or wire transfer) equal to the aggregate amount of any income, employment, and/or other applicable taxes that are statutorily required to be withheld in respect of an Award. Alternatively, the Company or any of its Subsidiaries may elect, in its sole discretion, to satisfy this requirement by withholding such amount from any cash compensation or other cash amounts owing to a Participant.
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(ii) Without limiting the foregoing, the Committee may (but is not obligated to), in its sole discretion, permit or require a Participant to satisfy all or any portion of the minimum income, employment, and/or other applicable taxes that are statutorily required to be withheld with respect to an Award by: (A) the delivery of Class A Ordinary Shares (which are not subject to any pledge or other security interest) that have been both held by the Participant and vested for at least six months (or such other period as established from time to time by the Committee in order to avoid adverse accounting treatment under applicable accounting standards) having an aggregate Fair Market Value equal to such minimum statutorily required withholding liability (or portion thereof); or (B) having the Company withhold from the Class A Ordinary Shares otherwise issuable or deliverable to, or that would otherwise be retained by, the Participant upon the grant, exercise, vesting, or settlement of the Award, as applicable, a number of Class A Ordinary Shares with an aggregate Fair Market Value equal to an amount, subject to clause (iii) below, not in excess of such minimum statutorily required withholding liability (or portion thereof).
(iii) The Committee, subject to its having considered the applicable accounting impact of any such determination, has full discretion to allow Participants to satisfy, in whole or in part, any additional income, employment, and/or other applicable taxes payable by them with respect to an Award by electing to have the Company withhold from the Class A Ordinary Shares otherwise issuable or deliverable to, or that would otherwise be retained by, a Participant upon the grant, exercise, vesting, or settlement of the Award, as applicable, Class A Ordinary Shares having an aggregate Fair Market Value that is greater than the applicable minimum required statutory withholding liability (but such withholding may in no event be in excess of the maximum statutory withholding amount(s) in a Participant’s relevant tax jurisdictions).
(e) No Claim to Awards; No Rights to Continued Employment; Waiver. No employee of any member of the Company Group, or other Person, shall have any claim or right to be granted an Award under the Plan or, having been selected for the grant of an Award, to be selected for a grant of any other Award. There is no obligation for uniformity of treatment of Participants or holders or beneficiaries of Awards. The terms and conditions of Awards and the Committee’s determinations and interpretations with respect thereto need not be the same with respect to each Participant and may be made selectively among Participants, whether or not such Participants are similarly situated. Neither the Plan nor any action taken hereunder shall be construed as giving any Participant any right to be retained in the employ or service of the Service Recipient or any other member of the Company Group, nor shall it be construed as giving any Participant any rights to continued service on the Board. The Service Recipient or any other member of the Company Group may at any time dismiss a Participant from employment or discontinue any consulting relationship, free from any liability or any claim under the Plan, unless otherwise expressly provided in the Plan or any Award Agreement. By accepting an Award under the Plan, a Participant shall thereby be deemed to have waived any claim to continued exercise or vesting of an Award or to damages or severance entitlement related to non-continuation of the Award beyond the period provided under the Plan or any Award Agreement, except to the extent of any provision to the contrary in any written employment contract or other agreement between the Service Recipient and/or any member of the Company Group and the Participant, whether any such agreement is executed before, on, or after the Date of Grant.
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(f) International Participants. With respect to Participants who reside or work outside of the United States of America, the Committee may, in its sole discretion, amend the terms of the Plan and create or amend Sub-Plans or amend outstanding Awards with respect to such Participants in order to permit or facilitate participation in the Plan by such Participants, conform such terms with the requirements of Applicable Law or to obtain more favorable tax or other treatment for a Participant or any member of the Company Group.
(g) Designation and Change of Beneficiary. Each Participant may file with the Committee a written designation of one or more Persons as the beneficiary or beneficiaries, as applicable, who shall be entitled to receive the amounts payable with respect to an Award, if any, due under the Plan upon the Participant’s death. A Participant may, from time to time, revoke or change the Participant’s beneficiary designation without the consent of any prior beneficiary by filing a new designation with the Committee. The last such designation received by the Committee shall be controlling; provided, however, that no designation, or change or revocation thereof, shall be effective unless received by the Committee prior to the Participant’s death, and in no event shall it be effective as of a date prior to such receipt. If no beneficiary designation is filed by a Participant, the beneficiary shall be deemed to be the Participant’s spouse or, if the Participant is unmarried at the time of death, the Participant’s estate.
(h) Termination. Except as otherwise provided in an Award Agreement, unless determined otherwise by the Committee at any point following such event: (i) neither a temporary absence from employment or service due to illness, vacation, or leave of absence (including, without limitation, a call to active duty for military service through a Reserve or National Guard unit) nor a transfer from employment or service with one Service Recipient to employment or service with another Service Recipient (or vice-versa) shall be considered a Termination; and (ii) if a Participant undergoes a Termination, but such Participant continues to provide services to the Company Group in a non-employee capacity, including as a consultant, such change in status shall not be considered a Termination for purposes of the Plan. Further, unless otherwise determined by the Committee, in the event that any Service Recipient ceases to be a member of the Company Group (by reason of sale, divestiture, spin-off, or other similar transaction), unless a Participant’s employment or service is transferred to another entity that would constitute a Service Recipient immediately following such transaction, such Participant shall be deemed to have suffered a Termination hereunder as of the date of the consummation of such transaction.
(i) No Rights as a Shareholder. Except as otherwise specifically provided in the Plan or any Award Agreement, no Person shall be entitled to the privileges of ownership in respect of Class A Ordinary Shares which are subject to Awards hereunder until such shares have been issued or delivered to such Person.
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(j) Government and Other Regulations.
(i) The obligation of the Company to settle Awards in Class A Ordinary Shares or other consideration shall be subject to compliance with Applicable Law. Notwithstanding any terms or conditions of any Award to the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be prohibited from offering to sell or selling, any Class A Ordinary Shares pursuant to an Award unless such shares have been properly registered for sale pursuant to the Securities Act with the Securities and Exchange Commission or unless the Company has received an opinion of counsel (if the Company has requested such an opinion), satisfactory to the Company, that such shares may be offered or sold without such registration pursuant to an available exemption therefrom and the terms and conditions of such exemption have been fully complied with. The Company shall be under no obligation to register for sale under the Securities Act any of the Class A Ordinary Shares to be offered or sold under the Plan. The Committee shall have the authority to provide that all Class A Ordinary Shares or other securities of any member of the Company Group issued under the Plan shall be subject to such stop-transfer orders and other restrictions as the Committee may deem advisable under the Plan, the applicable Award Agreement and Applicable Law, and, without limiting the generality of Section 8 of the Plan, the Committee may cause a legend or legends to be put on certificates representing Class A Ordinary Shares or other securities of any member of the Company Group issued under the Plan to make appropriate reference to such restrictions or may cause such Class A Ordinary Shares or other securities of any member of the Company Group issued under the Plan in book-entry form to be held subject to the Company’s instructions or subject to appropriate stop-transfer orders. Notwithstanding any provision in the Plan to the contrary, the Committee reserves the right to add, at any time, any additional terms or provisions to any Award granted under the Plan that the Committee, in its sole discretion, deems necessary or advisable in order that such Award complies with the legal requirements of any governmental entity to whose jurisdiction the Award is subject.
(ii) The Committee may cancel an Award or any portion thereof if it determines, in its sole discretion, that legal or contractual restrictions and/or blockage and/or other market considerations would make the Company’s acquisition of Class A Ordinary Shares from the public markets, the Company’s issuance of Class A Ordinary Shares to the Participant, the Participant’s acquisition of Class A Ordinary Shares from the Company, and/or the Participant’s sale of Class A Ordinary Shares to the public markets, illegal, impracticable, or inadvisable. If the Committee determines to cancel all or any portion of an Award in accordance with the foregoing, the Company shall, subject to any limitations or reductions as may be necessary to comply with Section 409A of the Code: (A) pay to the Participant an amount equal to the excess of (I) the aggregate Fair Market Value of the Class A Ordinary Shares subject to such Award or portion thereof canceled (determined as of the applicable exercise date, or the date that the shares would have been vested or issued, as applicable), over (II) the aggregate Exercise Price or Strike Price (in the case of an Option or SAR, respectively) or any amount payable as a condition of issuance of Class A Ordinary Shares (in the case of any other Award), with such amount being delivered to the Participant as soon as practicable following the cancellation of such Award or portion thereof or (B) in the case of Restricted Shares, Restricted Share Units, or Other Equity-Based Awards, provide the Participant with a cash payment or equity subject to deferred vesting and delivery consistent with the vesting restrictions applicable to such Restricted Shares, Restricted Share Units, or Other Equity-Based Awards, or the underlying shares in respect thereof.
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(k) No Section 83(b) Elections Without Consent of Company. No election under Section 83(b) of the Code or under a similar provision of law may be made unless expressly permitted by the terms of the applicable Award Agreement or by action of the Committee (or its designee in accordance with Section 4(c) of the Plan) in writing prior to the making of such election. If a Participant, in connection with the acquisition of Class A Ordinary Shares under the Plan or otherwise, is expressly permitted to make such election and the Participant makes the election, the Participant shall notify the Company of such election within ten days of filing notice of the election with the Internal Revenue Service or other governmental authority, in addition to any filing and notification required pursuant to Section 83(b) of the Code or other applicable provision.
(l) Payments to Persons Other Than Participants. If the Committee shall find that any Person to whom any amount is payable under the Plan is unable to care for the Participant’s affairs because of illness or accident, or is a minor, or has died, then any payment due to such Person or the Participant’s estate (unless a prior claim therefor has been made by a duly appointed legal representative) may, if the Committee so directs the Company, be paid to the Participant’s spouse, child, relative, an institution maintaining or having custody of such Person, or any other Person deemed by the Committee to be a proper recipient on behalf of such Person otherwise entitled to payment. Any such payment shall be a complete discharge of the liability of the Committee and the Company therefor.
(m) Nonexclusivity of the Plan. Neither the adoption of the Plan by the Board nor the submission of the Plan to the shareholders of the Company for approval shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including, without limitation, the granting of equity-based awards otherwise than under the Plan, and such arrangements may be either applicable generally or only in specific cases.
(n) No Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between any member of the Company Group, on the one hand, and a Participant or other Person, on the other hand. No provision of the Plan or any Award shall require the Company, for the purpose of satisfying any obligations under the Plan, to purchase assets or place any assets in a trust or other entity to which contributions are made or otherwise to segregate any assets, nor shall the Company be obligated to maintain separate bank accounts, books, records, or other evidence of the existence of a segregated or separately maintained or administered fund for such purposes. Participants shall have no rights under the Plan other than as unsecured general creditors of the Company, except that insofar as they may have become entitled to payment of additional compensation by performance of services, they shall have the same rights as other service providers under general law.
(o) Reliance on Reports. Each member of the Committee and each member of the Board shall be fully justified in acting or failing to act, as the case may be, and shall not be liable for having so acted or failed to act in good faith, in reliance upon any report made by the independent public accountant of any member of the Company Group and/or any other information furnished in connection with the Plan by any agent of the Company or the Committee or the Board, other than himself or herself.
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(p) Relationship to Other Benefits. No payment under the Plan shall be taken into account in determining any benefits under any pension, retirement, profit sharing, group insurance, or other benefit plan of the Company except as otherwise specifically provided in such other plan or as required by Applicable Law.
(q) Governing Law. THIS PLAN AND ITS ENFORCEMENT AND ANY CONTROVERSY ARISING OUT OF OR RELATING TO ANY RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE CAYMAN ISLANDS. Each Participant who accepts an Award hereby (i) agrees that any action, directly or indirectly, arising out of, under or relating to the Plan or any Award hereunder shall exclusively be brought in and shall exclusively be heard and determined by either the Supreme Court of the State of New York sitting in Manhattan or the United States District Court for the Southern District of New York, and (ii) solely in connection with the action(s) contemplated by subsection (i) hereof, (A) irrevocably and unconditionally consents and submits to the exclusive jurisdiction of the courts identified in subsection (i) hereof, (B) irrevocably and unconditionally waives any objection to the laying of venue in any of the courts identified in clause (i) of this Section 12(q), (C) irrevocably and unconditionally waives and agrees not to plead or claim that any of the courts identified in such clause (i) is an inconvenient forum or does not have personal jurisdiction over such Participant or any member of the Company Group, and (D) agrees that mailing of process or other papers in connection with any such action in the manner provided herein or in such other manner as may be permitted by Applicable Law shall be valid and sufficient service thereof. EACH PARTICIPANT WHO ACCEPTS AN AWARD IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY SUIT, ACTION, OR OTHER PROCEEDING INSTITUTED BY OR AGAINST SUCH PARTICIPANT IN RESPECT OF THE PARTICIPANT’S RIGHTS OR OBLIGATIONS HEREUNDER.
(r) Severability. If any provision of the Plan or any Award or Award Agreement is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any Person or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to Applicable Law, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Award, such provision shall be construed or deemed stricken as to such jurisdiction, Person, or Award and the remainder of the Plan and any such Award shall remain in full force and effect.
(s) Obligations Binding on Successors. The obligations of the Company under the Plan shall be binding upon any successor corporation or organization resulting from the merger, consolidation, or other reorganization of the Company, or upon any successor corporation or organization succeeding to substantially all of the assets and business of the Company.
(t) Section 409A of the Code.
(i) Notwithstanding any provision of the Plan to the contrary, it is intended that the provisions of the Plan comply with Section 409A of the Code, and all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A of the Code. Each Participant is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on or in respect of such Participant in connection with the Plan (including any taxes and penalties under Section 409A of the Code), and neither the Service Recipient nor any other member of the Company Group shall have any obligation to indemnify or otherwise hold such Participant (or any beneficiary) harmless from any or all of such taxes or penalties. With respect to any Award that is considered “deferred compensation” subject to Section 409A of the Code, references in the Plan to “termination of employment” (and substantially similar phrases) shall mean “separation from service” within the meaning of Section 409A of the Code. For purposes of Section 409A of the Code, each of the payments that may be made in respect of any Award granted under the Plan is designated as a separate payment.
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(ii) Notwithstanding anything in the Plan to the contrary, if a Participant is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, no payments in respect of any Awards that are “deferred compensation” subject to Section 409A of the Code and which would otherwise be payable upon the Participant’s “separation from service” (as defined in Section 409A of the Code) shall be made to such Participant prior to the date that is six months after the date of such Participant’s “separation from service” or, if earlier, the date of the Participant’s death. Following any applicable six-month delay, all such delayed payments will be paid in a single lump sum on the earliest date permitted under Section 409A of the Code that is also a business day.
(iii) Unless otherwise provided by the Committee in an Award Agreement or otherwise, in the event that the timing of payments in respect of any Award (that would otherwise be considered “deferred compensation” subject to Section 409A of the Code) are accelerated upon the occurrence of (A) a Change in Control, no such acceleration shall be permitted unless the event giving rise to the Change in Control satisfies the definition of a change in the ownership or effective control of a corporation, or a change in the ownership of a substantial portion of the assets of a corporation pursuant to Section 409A of the Code or (B) a Disability, no such acceleration shall be permitted unless the Disability also satisfies the definition of “Disability” pursuant to Section 409A of the Code.
(u) Clawback/Repayment. All Awards shall be subject to reduction, cancellation, forfeiture or recoupment to the extent necessary to comply with (i) any clawback, forfeiture or other similar policy adopted by the Board or the Committee and as in effect from time to time; and (ii) Applicable Law. Further, unless otherwise determined by the Committee, to the extent that the Participant receives any amount in excess of the amount that the Participant should otherwise have received under the terms of the Award for any reason (including, without limitation, by reason of a financial restatement, mistake in calculations or other administrative error), the Participant shall be required to repay any such excess amount to the Company.
(v) Detrimental Activity. Notwithstanding anything to the contrary contained herein, if a Participant has engaged in any Detrimental Activity, as determined by the Committee, the Committee may, in its sole discretion and to the extent permitted by Applicable Law, provide for one or more of the following:
(i) cancellation of any or all of such Participant’s outstanding Awards; or
(ii) forfeiture by the Participant of any gain realized on the vesting or exercise of Awards, and repayment of any such gain promptly to the Company.
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(w) Right of Offset. The Company will have the right to offset against its obligation to deliver Class A Ordinary Shares (or other property or cash) under the Plan or any Award Agreement any outstanding amounts (including, without limitation, travel and entertainment or advance account balances, loans, repayment obligations under any Awards, or amounts repayable to the Company pursuant to tax equalization, housing, automobile, or other employee programs) that the Participant then owes to any member of the Company Group and any amounts the Committee otherwise deems appropriate pursuant to any tax equalization policy or agreement. Notwithstanding the foregoing, if an Award is “deferred compensation” subject to Section 409A of the Code, the Committee will have no right to offset against its obligation to deliver Class A Ordinary Shares (or other property or cash) under the Plan or any Award Agreement if such offset could subject the Participant to the additional tax imposed under Section 409A of the Code in respect of an outstanding Award.
(x) Expenses; Titles and Headings. The expenses of administering the Plan shall be borne by the Company Group. The titles and headings of the sections in the Plan are for convenience of reference only, and in the event of any conflict, the text of the Plan, rather than such titles or headings, shall control.
Exhibit 4.17
TRADEMARK LICENSE AGREEMENT AND OTHER COVENANTS
This Trademark License Agreement and Other Covenants (“Agreement”), dated as of March 3, 2023, is executed by and between:
| (I) | AMBIPAR PARTICIPAÇÕES E EMPREENDIMENTOS S.A., a Brazilian corporation enrolled with the Brazilian Taxpayer’s Registry (CNPJ) under No. 12.648.266/0001-24, with head offices at Av. Pacaembu No. 1088, room 09, Pacaembu, at the City and State of São Paulo, Zip Code 01234-000, herein represented in accordance with its Bylaws, (“Licensor”); and |
| (II) | EMERGÊNCIA PARTICIPAÇÕES S.A., a company organized under the laws of Brazil enrolled with the Brazilian Taxpayer’s Registry (CNPJ) under No. 10.645.019/0001-49, with head office at Avenida Angélica, No. 2346, 5th floor, room 04, Consolação, in the City and State of São Paulo, Zip Code 01.228-200, herein represented in accordance with its corporate documents, (“Licensee”). |
Licensor and Licensee are herein jointly referred to as “Parties” and individually referred to as a “Party”.
RECITALS
(a) WHEREAS Licensor is a holding company with investments in entities that perform activities related to the collection, transport, management and recovery of waste, reverse manufacturing, prevention, training and emergency assistance;
(b) WHEREAS, on July 5, 2022, Licensor and Licensee, among others, have entered into a certain business combination agreement by which the Parties have agreed on the terms of a joint investment in Licensee (“Transaction”) and, on the date hereof, Licensor is the direct controlling shareholder of Licensee;
(c) WHEREAS, the Licensee and the Beneficiaries will be granted a temporary license to use the Licensed Trademarks (as defined below);
(d) WHEREAS, Licensor is the sole and legitimate owner of the Licensed Trademarks (as defined below) and is willing to grant to Licensee and the Beneficiaries a license to use the Licensed Trademarks in connection with the provision of environmental-related services within the terms and provisions of this Agreement.
NOW, THEREFORE, the Parties hereto agree to execute this Agreement, according to the terms and conditions below:
1. DEFINITIONS
1.1 For the purpose of this Agreement, the following capitalized terms have the meanings specified or referred in this Section 1:
“Affiliate” shall mean, with respect to Licensee or Licensor, any other entity that is directly or indirectly controlled by, or is under common control with, Licensee or Licensor, as applicable. The term “control” (including its correlative meanings “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“Agreement” shall have the meaning set forth in the Preamble hereto.
“Beneficiaries” shall mean the Licensee’s Subsidiaries and its controlling shareholder.
“Goodwill” shall mean all the goodwill associated with, corresponding to, symbolized by and/or embodied in the business in which the Licensed Trademarks is used by Licensor and/or any of its Affiliates.
“Licensed Trademarks” shall mean all the trademarks owned and to be owned by the Licensee related to the names: “Grupo Ambipar”, “Ambipar” and “Ambipar Response”.
“Licensee” shall have the meaning set forth in the Preamble hereto.
“Licensor” shall have the meaning set forth in the Preamble hereto.
“Parties” shall have the meaning set forth in the Preamble hereto.
“Person” shall mean any individual, corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any limited liability company or joint stock company), firm or other enterprise, association, organization, entity or governmental entity.
“Services” means the emergency response services provided by the Licensor’s Affiliates, in Brazil or abroad.
“Subsidiaries” shall mean any controlled entity by Licensee.
“Territory” shall mean any country or territory where Licensee’s Affiliates operates or have business.
“Third Party” shall mean any Person, company, or any other entity other than the Parties;
“Transaction” shall have the meaning set forth in the Recitals hereto.
| 2. | LICENSE |
| 2.1. | Beginning on the date hereof, the Licensor hereby grants to the Licensee and the Beneficiaries a non-exclusive, non-assignable, non-sublicensable and non-transferable license to use the Licensed Trademarks, in the Territory, in connection with the provision of the Services during the term of this Agreement, as set forth in Section 7. For clarification purposes, the Parties agree hereby that the Licensor shall not license, assign nor transfer, the Licensed Trademarks to any Third Party, except any license, assign or transfer to any Licensor’s Affiliates, provided that with prior written consent from Licensee in case: (i) such Licensor’s Affiliates is deemed a competitor of the Licensee or (ii) of license, assignment or transfer of trademarks related to Ambipar Response. |
| 2 |
2.1.1. Notwithstanding the terms of this Agreement, the Parties may use their own trademarks (including the Licensed Trademarks) on their sole purpose, observing the provisions of Section 2.1 above, and nothing in this Agreement may be interpreted in a way that refrain the Parties to use their own trademarks and any pre-existing intellectual property rights. The Licensor and the Licensee shall prevent from using the Licensed Trademarks in anyway that may harm and impair the image and reputation of the other Party, and the breach of such provision shall subject to the indemnifiction set forth in Section 9 herein.
| 3. | PAYMENT |
| 3.1. | Licensee shall, during the term of the Agreement, pay to Licensor a royalty equivalent to thirty thousand Dollars (USD 30,000.00) per year (“Royalties”). The annual payment shall be made in each anniversary of the date of this Agreement. |
| 3.3. | All payments to be made from Licensee to Licensor shall be paid net of any discounts, deductions, and withholdings for or because of tax, set-offs or counterclaims, so that Licensee shall gross-up any such remittances, so that Licensor shall receive the Royalties as if no discounts, deductions, and withholdings, set-offs or counterclaims would have been imposed. |
| 4. | USE OF LICENSED TRADEMARKS AND QUALITY CONTROL |
| 4.1. | Licensee acknowledges the Goodwill and reputation associated with the Licensed Trademarks and shall use the Licensed Trademarks in a manner that maintains and promotes such valuable Goodwill and reputation and shall refrain from taking any action that is reasonably likely to impair the Goodwill and/or reputation of the Licensed Trademarks. Licensee shall fully cooperate with Licensor to protect the Licensed Trademarks and the Goodwill it represents. |
| 4.2. | Licensee and the Beneficiaires shall use the Licensed Trademarks in accordance with the specific instructions provided by Licensor, and only in connection with the Services. Licensee and the Beneficiaires shall not modify or alter, in any way or manner, the Licensed Trademarks without Licensor’s prior written consent. |
| 4.3. | Licensee and the Beneficiaires shall use the Licensed Trademarks within the limits of layout, presentation, and protection of the activities/Services identified by the processes before the Brazilian Patents and Trademarks Office (“INPI”). |
| 4.4. | Licensee undertakes not to (a) contest, impair or challenge in any way Licensor’s ownership of the Licensed Trademarks; (b) interfere in any use of the Licensed Trademarks by Licensor, observing the provisions of Section 2.1 above; or (c) diminish or in any way dilute the value, distinctiveness, fame, enforceability, validity or Goodwill associated with the Licensed Trademarks. |
| 3 |
| 4.5. | If and when requested, Licensee shall within five (5) business-days of the receipt of Licensor’s writen request supply Licensor with samples of the advertising materials, or any other material issued or employed by Licensee in connection with the Services as the Licensor reasonably deems necessary to ensure that Licensee is complying with the use standards provide by Licensor. |
| 4.6. | Licensor or its agents or representatives may, at its own expense and upon giving a five (5) business-day prior written notice to Licensee, dispatch personnel to the premises of Licensee or its sublicenses during Licensee’s regular business hours, as previously scheduled with Licensee, in order to check the compliance with the quality standards and the service specifications. |
| 4.7. | As soon as Licensor becomes aware of that the Services do not meet the service specifications and/or the quality standards, Licensor shall give written notice of the same to Licensee and Licensee shall comply with all the relevant instructions received from Licensor. |
| 4.8. | Licensee undertakes to render and provide the Services in accordance with the legislation and rules applicable in the Territory, including, but not limited to, laws and rules related to health, consumers, safety and sanitary regulation, making its best efforts to render and provide the Services in accordance with high prestige and standards detailed in this Agreement. |
| 5. | OWNERSHIP AND PROTECTION OF THE LICENSED TRADEMARKS |
| 5.1. | Licensee acknowledges that Licensor is the exclusive owner of all possible rights, titles and interests in and to the Licensed Trademarks in any form or embodiment thereof, and that Licensor is the exclusive owner of any possible Goodwill attached, or which shall become attached, to the same in connection with the business, goods, products or services in relation to which the same have been, are or shall be used. Licensee’s use of the Licensed Trademarks under this Agreement shall inure to the exclusive benefit of Licensor. Licensee acknowledges that Licensor owns all due powers to execute the present Agreement, and that nothing in this Agreement may harm Third Party’s rights. |
| 5.2. | Licensee undertakes not to perform or permit the Beneficiaries to perform any act that jeopardizes or invalidates the Licensed Trademarks or prejudices the right, title or interest of Licensor in the same or in the attached Goodwill. Licensee shall indemnify Licensor over any proven violation or misconduct performed by Beneficiaries, as set forth in Section 9 below. |
| 5.3. | Licensee and the Beneficiaires shall not challenge the ownership, validity or enforceability of the Licensed Trademarks. |
| 5.4. | Licensee hereby (a) undertakes not to seek to register the Licensed Trademarks or any variation thereof; (b) acknowledges that the use of the Licensed Trademarks shall not create any right, title or interest therein and that any and all use shall inure to the benefit of Licensor; and (c) undertakes to safeguard the rights, titles and interests of Licensor and keep a record and dated evidence of the use of the Licensed Trademarks. |
| 4 |
| 5.5. | Licensee shall, upon Licensor’s request, and at Licensor's expense, give to Licensor or its authorized representative any information as to its use of the Licensed Trademarks which Licensor reasonably requires, and shall endeavour its best efforts to render the assistance reasonably required by Licensor in maintaining the registration of the Licensed Trademarks. |
| 5.6. | Licensee shall not make any representation or perform any act which may be taken to indicate that it has any right, title or interest in or to the ownership or use of the Licensed Trademarks, or the Goodwill except under the terms of this Agreement and acknowledges that nothing contained in this Agreement shall give Licensee any right, title or interest in or to the Licensed Trademarks or the Goodwill other than those specifically and expressly granted hereby. |
| 5.7. | The use of the Licensed Trademarks by Licensee shall be at all times carried out so as to maintain its distinctiveness and reputation as determined by Licensor in this Agreement, and Licensee shall forthwith cease any use of the Licensed Trademarks not consistent therewith as Licensor reasonably requires in accordance with this Agreement. |
| 5.8. | Licensor shall endeavour its best efforts to maintain the registration of all the Licensed Trademarks before the competent authorities as reasonably required by applicable Law, and shall pay all necessary costs and fees required thereto. |
| 6. | INFRINGEMENT |
| 6.1. | Should the Licensee, its Beneficiaries, or the Licensor become aware of any infringement or potential infringement by or against any Licensed Trademarks, the Parties shall promptly provide written notice thereof to the affected Party, including all known or ascertainable facts, as well as copies of written correspondence, relating thereto. For clarification purposes, the wording of this Section shall not, by any means, imply that Licensee shall make any inquires, searches or hire any profesional services to track any infringement or potencial infrigiment in connection with the Licensed Trademarks. |
| 6.2. | Licensee will give Licensor, within ten (10) business-days as of the date that the Licensee becomes aware of such claim, written notice of any threat, warning or notice of any claim related to the Licensed Trademarks. |
| 6.3. | Licensee shall, as soon as it becomes aware thereof, and at its own expense, give Licensor written notice of any use or proposed use in the Territory by any Third Party of any trade names, trademarks, service marks, domain names, designs, logos, designations of origin or any other distinctive signs, and/or any advertising or promotional materials or any other materials or information which constitute or could reasonably be expected to constitute infringement of the Licensed Trademarks or which might constitute an act of unfair competition with respect thereto. For clarification purposes, the wording of this Section shall not, by any means, imply that Licensee shall make any inquires, searches or hire any profesional services to track any infringement or potencial infrigiment in connection with the Licensed Trademarks. If the Parties become aware of the fact that any Third Party alleges that the Licensed Trademarks is invalid or that the use of the |
| 5 |
Licensed Trademarks infringes any rights of such Third Party and/or any other Third Party, and/or if the Parties become aware of the fact that the Licensed Trademarks have been challenged or are threatened to be challenged, the Parties shall immediately give the other Party written notice thereof and shall make no comment or admission to any Third Party in respect thereof without aligning strategies..
| 6.4. | Notwithstanding the foregoing, Licensor shall have the right to initiate and control, at its sole discretion and cost, any infringement, opposition, cancellation or other proceedings to enforce the Licensed Trademarks, as the case may be, in the Territory. |
| 6.5. | At the request of Licensor, and, at Licensor’s expense if applicable according to the aligned strategy provided on Section 6.3, Licensee shall reasonably cooperate with Licensor in any action brought or threatened in respect of the Licensed Trademarks. |
| 6.6. | Licensee shall, upon Licensor’s reasonable request, take all such steps as Licensor may require in order to assist the Licensor in maintaining the validity and enforceability of the Licensed Trademarks. |
| 7. | TERM AND TERMINATION |
| 7.1. | This Agreement will become effective on the date hereof and shall remain in force for indefinite period of time and may be terminated (i) by mutual agreement of the Parties, (ii) in case of a material breach, as provided for in Section 7.2, and (iii) by any of the Parties through written notice delivered with at least ninety (90) calendar days in advance. |
| 7.2. | Licensor shall provide Licensee with written notice of any of the aforementioned material breach of this Agreement. After receiving such notice, Licensee shall remedy such breach to the reasonable satisfaction of Licensor within 30 (thirty) calendar days of the delivery of notice of such breach by Licensor to Licensee. If Licensee does not cure such breach within such 30 (thirty) calendar days period, Licensor may terminate this Agreement in its entirety without prejudice, however, to any other right or remedy Licensor may have against Licensee hereunder or by law. |
| 7.3. | Similarly, each Party maintains the right to terminate this Agreement, upon written notice to the other Party, in the event Licensee becomes unable to pay its debts or enters into any arrangement or composition with its creditors or is adjudicated bankrupt or enters into liquidation whether voluntarily or compulsorily (except for the purpose of amalgamation or reconstruction) or has a receiver, manager, custodian or administrator (or any equivalent), whether permanent or temporary, appointed to overlook its assets, or such Party has its business taken over, nationalized or closed down (in whole or in part) by the executive or judicial authorities in the Territory. |
| 7.4. | Licensee shall terminate this Agreement upon written notice to Licensor in the event: (i) Licensor ceases, for any reason, to be the owner of all possible rights, titles and interests in and to the Licensed Trademarks in any form or embodiment thereof; or (ii) Licensor uses the Licensed Trademarks in anyway that may harm and impair the Licensee’s image and reputation. |
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| 7.5. | Upon termination of this Agreement for whatever reason, Licensee shall immediately (i) cease to use in any manner and for any purpose the Licensed Trademarks in its new materials; (ii) not make any reference to Licensor, the services, trade or business of Licensor in its printed materials, in order not to generate any confusion between the Licensor's and Licensee’s products and (iii) not exercise, directly or indirectly, any rights granted to Licensee pursuant to this Agreement. |
| 7.6. | Furthermore, any Party may, without prejudice to its other remedies, terminate this Agreement forthwith by notice in writing to the other Parties if either or both of such other Parties: |
| (a) | commits a breach of this Agreement, provided that if the breach is capable of remedy the termination notice will only be given if the Party in breach will not have remedied the same within 30 (thirty) days of having been given notice in writing specifying the breach and requiring it to be remedied; |
| (b) | enters into compulsory or voluntary liquidation, or has a receiver, manager or administrator appointed to control any of its assets, subject always to any mandatory provisions of the applicable local law; or |
| (c) | is unable to pay its debts as they fall due or is otherwise insolvent, enters into any general compromise or similar arrangement with its creditors or any class of creditors, or ceases to carry on business, subject always to any mandatory provisions of applicable local law. |
| 7.7. | Termination of this Agreement will not affect any obligations which are expressed to continue after termination or any provisions which, in order to give effect to their meaning, need to survive termination, nor the respective rights and liabilities of the Parties accrued prior to such termination, all of which will remain in full force and effect thereafter. |
| 8. | REPRESENTATIONS AND WARRANTIES |
| 8.1. | Licensor represents and warrants that (i) it owns all right, title and interest in and to the Licensed Trademarks, (ii) such ownership is not subject to any lien or other encumbrance, and (iii) it has all rights and authority necessary to grant the license to Licensee hereunder and execute this Agreement. |
| 8.2. | Licensor represents and warrants that, to the best of its knowledge, as of the date hereof, (i) no Third Party is infringing or otherwise violating the Licensed Trademarks, and (ii) no action, suit or other proceeding involving the Licensed Trademarks has been brought or, to Licensor's knowledge, threatened. |
| 8.3. | Without prejudice to other representations and warranties contained in this Agreement, each party hereby represents and warrants to the other party that: |
| (a) | It is duly organized, validly existing and in conformity with their local laws; |
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| (b) | It has the powers and authority necessary to enter into this Agreement, comply with the obligations assumed by it hereby and consummate the transactions herein contemplated, and no other action is necessary to authorize the execution, delivery, and performance of this Agreement. |
| 9. | INDEMNITY |
| 9.1. | Each Party shall indemnify the other Party and its Affiliates and hold them fully harmless from and against any and all direct damages, claims, liabilities, losses, and expenses arising out of or based upon any breach of any representation or warranty made by it under this Agreement. |
| 9.2. | Each Party shall be liable for, and will indemnify the other Party against any and all liabilities, losses (excluding loss of profits or loss of business opportunity), direct damages, costs, legal costs, professional and any other expenses of any nature whatsoever incurred or suffered by the innocent Party arising out of any breach of any obligation hereunder, as well as of any dispute or contractual, tortious or other claims or proceedings brought against the innocent Party by a Third Party claiming relief by reason of the use by the Party in breach, the Beneficiaires or by its sublicensees of the Licensed Trademarks, exempting the innocent Party from any responsibility in this regard. |
| 10. | MISCELLANEOUS |
| 10.1. | Governing Law; Dispute Resolution. This Agreement and all actions contemplated hereby shall be governed by, construed, interpreted and enforced in accordance with the laws of Brazil. The Parties and their successors shall exert their best efforts to solve on an amicable basis any disputes, differences or claims related to this Agreement. Any and all dispute arising out of or in connection with this Agreement, including without limitation, any issue related to its existence, validity, enforceability, formation, interpretation, performance and/or termination, which may not be solved on an amicable basis by the Parties shall be finally settled in the courts of the city of São Paulo, State of São Paulo, Brazil. |
| 10.2. | Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns and shall be enforceable by the Parties hereto and their respective successors and permitted assigns. Neither Party may assign its rights and obligations under this Agreement without the prior written consent of the other Party. |
| 10.3. | Confidentiality. This Agreement is executed under absolute confidentiality and the Parties undertake to keep absolute secrecy on the negotiations and understandings among the Parties concerning the terms, intentions and information herein contained or exchanged in view of the negotiations object of this Agreement, except as expressly authorized in writing by the Parties herein or, unless in the view of a Party’s counsel, disclosure is required by law, rule, regulation or order or required by a court, regulatory body, administrative agency, security regulators or other governmental or self-regulatory body with jurisdiction over such disclosing Party. |
| 10.4. | Severability. If any provision of this Agreement is determined to be invalid, illegal or unenforceable in any way, the validity, legality or enforceability of the other provisions will not be affected or, in any way, impaired, remaining in full force and effect, and the Parties shall negotiate in good faith the replacement of the provision declared void, annulled, illegal or unenforceable by another valid, legal and enforceable provision that, as much as possible and effectively, maintains the economic effects and other relevant implications of the provision declared void, annulled, illegal or unenforceable. |
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| 10.5. | Entire Agreement. This Agreement constitutes the entire agreement among the Parties on the matters referred to herein and supersede any and all previous agreements and understandings, oral or written, among the Parties relating to the subject matter hereof. |
| 10.6. | Amendments. This Agreement may be amended by the Parties at any time by execution of an instrument in writing signed on behalf of each of the Parties. |
| 10.7. | Invalid Provisions. Should any provision herein be deemed invalid, illegal or unenforceable in any aspect, the validity, legality or enforceability of the other provisions contained herein shall not be affected or hindered in any way as a result of such fact. The Parties shall negotiate, in good faith, the replacement of the invalid, illegal or unenforceable provision for valid, legal and enforceable provisions the economic effect and other relevant implications of which are as close as possible to the economic effect and other relevant implications of the invalid, illegal or unenforceable provision. |
| 10.8. | Waiver and Tolerance. Each of the Parties acknowledge that, except if otherwise provided for herein in writing: (i) the partial exercise, the non-exercise, the granting of a term, the forbearance or the delay in regard to any right granted to them by this Agreement and/or by Law shall not constitute renewal or waiver of such right, nor shall it impair its exercise in the future; (ii) the waiver of any right shall be interpreted in a restrict manner, and shall not be considered to be a waiver of any other right granted by this Agreement or by Law to any of the Parties; and (iii) any waivers shall only be considered as such if granted in writing. |
| 10.9. | Notices. All notices under this Agreement shall be made in writing and shall be delivered personally, by e-mail or by registered post (always with receipt confirmation) at the addresses indicated below, to the attention of the persons indicated below, or as otherwise specified by the relevant Party by written notice: |
| (i) | If to Licensor: | |
| Ambipar Participações e Empreendimentos S.A. | ||
| Avenida Angélica, nº 2346 | ||
| 5th floor, room 4, Consolação, | ||
| 01228-200, São Paulo - SP Brazil | ||
| Attention: Luciana Freire Barca Nascimento; | ||
| Alessandra Bessa Alves de Melo | ||
| Email: luciana.barca@tbj.com.br; | ||
| alessandra.bessa@ambipar.com | ||
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| (ii) | If to the Licensee: | |
| Emergência Participações S.A. | ||
| Avenida Angélica, nº 2346 | ||
| 5th floor, room 4, Consolação, | ||
| 01228-200, São Paulo - SP Brazil | ||
| Attention: Luciana Freire Barca Nascimento; | ||
| Alessandra Bessa Alves de Melo | ||
| Email: luciana.barca@tbj.com.br; | ||
| alessandra.bessa@ambipar.com | ||
10.9.1. All notices sent in accordance with this section shall be deemed as having been delivered on the date of receipt thereof by the addressee at the correct address, except in case of notifications received outside of normal business hours, which shall be deemed to be received on the immediately subsequent Business Day.
| 10.10. | Electronic Execution. For all legal purposes, the Parties hereby covenant and agree that the execution of this Agreement (i) may occur electronically, pursuant to the terms of Medida Provisória No. 2.200, from August 24, 2001; (ii) even if one or more Parties execute this Agreement electronically on other location, the execution of this Agreement is carried out, for all purposes, in the City of São Paulo, State of São Paulo; and (iii) the execution date of this Agreement, for all purposes and effects, shall be the date stated in the first page of this Agreement. The Parties acknowledge that this Agreement, signed electronically, has full validity being equivalent to a physical document for all legal purposes, recognizing and stating all signatories hereto, pursuant to Article 10, paragraph 2 of Medida Provisória No. 2,200-2 of August 24, 2001, that the signature of this Agreement electronically through the Docusign platform is the signature method mutually chosen by all signatories as suitable to evidence the authorship and integrity of this instrument and grant it full legal effect, as if it was a physical document. All electronic signatures contained herein, as provided for in this Section, have full validity and are sufficient to confer authenticity, integrity, existence, validity and effectiveness to this Agreement. |
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IN WITNESS WHEREOF, the Parties hereto have duly caused this Agreement to be executed.
AMBIPAR PARTICIPAÇÕES E EMPREENDIMENTOS S.A.
| By: | /s/ Thiago da Costa Silva | By: | /s/ Luciana Freire Barca Nascimento | |
| Name: Thiago da Costa Silva | Name: Luciana Freire Barca Nascimento | |||
| Title: Officer | Title: Officer | |||
EMERGÊNCIA PARTICIPAÇÕES S.A.
| By: | /s/ Thiago da Costa Silva | By: | /s/ Luciana Freire Barca Nascimento | |
| Name: Thiago da Costa Silva | Name: Luciana Freire Barca Nascimento | |||
| Title: Officer | Title: Officer | |||
WITNESSES:
| By: | /s/ Ana Paula Gomes | By: | /s/ Camila Martins Chiquim Sena de Oliveira | |
| Name: Ana Paula Gomes | Name: Camila Martins Chiquim Sena de Oliveira | |||
| ID: 416.648.378-17 | ID: 224.849.918-35 | |||
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Exhibit 4.19
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made as of March 3, 2023, by and between Tércio Borlenghi Junior and Ambipar Emergency Response, a Cayman Islands exempted company incorporated with limited liability (the “Company”), and (the “Indemnitee”), a director of the Company.
WHEREAS, the Indemnitee has agreed to serve as a director of the Company and in such capacity will render valuable services to the Company; and
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its Subsidiaries (as defined below) from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among publicly traded corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The amended and restated memorandum and articles of association of the company (the “Articles”) provide for the indemnification of the officers and directors of the Company. The Articles expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, while the Articles provide for the indemnification of the officers and directors of the Company and the Articles provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve, or continue to serve, as a director of the Company, the Company and the Indemnitee hereby agree as follows:
| 1 | Definitions. As used in this Agreement: |
| (a) | A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events: |
| (i) | Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors; |
| (ii) | Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board; |
| (iii) | Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; |
| (iv) | Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and |
| (v) | Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. |
| (vi) | For purposes of this Section 2(b), the following terms have the following meanings: |
| (1) | “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. |
| (2) | “Person” has the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company. |
| (3) | “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company with another entity. |
| (b) | The term “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee. |
| (c) | The term “Expenses” shall mean any expense, liability or loss, including, without limitation, damages, judgments, fines, penalties, settlements (if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, conditioned or delayed) and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations, liabilities, losses, taxes, any expense paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any taxes, interests, assessments or other charges imposed as a result of the actual or deemed receipt of any payment under this Agreement. |
| (d) | The term “Independent Legal Counsel” shall mean any attorney or firm of attorneys that is reasonably selected by the Board and approved by the Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed), so long as such firm is not presently representing and has not in the preceding five (5) years represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company in any matter material to any such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Articles, which became effective immediately after the Company’s initial public offering, applicable law or otherwise. |
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| (e) | The term “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, hearing or any other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), in which the Indemnitee was, is or will be involved as a party or otherwise, by reason of (i) the fact that the Indemnitee is or was a director (or a director appointee) or an executive officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, (ii) any actual or alleged act or omission or neglect or breach of duty, including, without limitation, any actual or alleged error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in any such capacity, or (iii) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Articles, applicable law or otherwise, in each case whether or not the Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. |
| (f) | The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director or an executive officer of the Company which imposes duties on, or involves services by, such director or executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company. |
| (g) | Sections 8 and 19(3) of the Electronic Transactions Act (As Revised) shall not apply. |
| 2 | Indemnification. Subject to Section 6 below, the Company hereby agrees to hold harmless and indemnify the Indemnitee to the fullest extent permitted by Cayman Islands law in effect on the date hereof and as amended from time to time (“Law”). In furtherance of the foregoing indemnification and without limiting the generality thereof: |
| (a) | Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (b) | Proceedings Other than Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other than a Proceeding by or in the right of the Company) against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
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| (c) | Indemnification for Expenses of Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee, has prepared to serve or has served as a witness or is made to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith, in each case, to the maximum extent permitted by Law. |
| (d) | Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Proceedings, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled, in each case, to the maximum extent permitted by Law. |
| 3 | Contribution. If the indemnification provided in Section 2 above is unavailable to Indemnitee for any reason (other than those set forth in Section 6 below) in connection with a Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company, in lieu of indemnifying Indemnitee thereunder, shall, to the maximum extent permitted by Law, contribute to the amount of Expenses which are actually and reasonably incurred and paid or payable by the Indemnitee in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and the Indemnitee and/or (ii) the relative fault of the Company and such Indemnitee in connection with the transaction or events from which such Proceeding arose. The relative fault of the Company and the Indemnitee shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. |
| 4 | Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee (but in any event no later than thirty (30) days after such request) to the fullest extent permitted by Law; provided, however, that the Indemnitee shall set forth in such request reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding and an undertaking (which shall not require any security) in writing to repay any advances if it is ultimately determined as provided in subsection 5(b) of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement, the Articles, applicable law or otherwise. |
| 5 | Indemnification Procedure; Determination of Right to Indemnification. |
| (a) | Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify. |
| (b) | The Indemnitee shall be conclusively presumed to be entitled to indemnification under this Agreement unless a determination is made that the Indemnitee is not entitled to indemnification under Law by one of the following two methods, which shall be at the election of the Indemnitee: (i) by a majority vote of the Board of a quorum consisting of Disinterested Directors or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, the Indemnitee so directs, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. |
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| (c) | If (i) a determination is made that the Indemnitee is not entitled to indemnification under this Agreement or (ii) a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the Indemnitee is entitled to an adjudication in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct shall be a defense to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein. |
| (d) | If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall to the maximum extent permitted by Law pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings). |
| (e) | With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Indemnitee shall have the right to employ his own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of a Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a proceeding, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be advanced by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded in his/her sole discretion that there may be a conflict of interest between the Company and the Indemnitee. |
| (f) | Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power. Subject to Section 3, the Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial action if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense, conduct and/or settlement of such action. |
| 6 | Limitations on Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee: |
| (a) | in connection with any Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, unless (i) the Board authorized the Proceeding prior to its initiation or (ii) the Proceeding is to enforce indemnification rights under this Agreement, the Articles, applicable law or otherwise and either (A) Indemnitee is successful in such Proceeding in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of Expenses hereunder (in which case such indemnification or advancement shall be to the fullest extent permitted by this Agreement) or (B) the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his or her right to indemnification, Indemnitee is entitled to indemnity for such expenses (in which case such indemnification or advancement shall be to the extent provided by such court); |
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| (b) | in connection with the Indemnitee preparing to serve or serving, prior to a Change in Control, as a witness in voluntary cooperation with any non-governmental or non-regulatory party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification may be provided by the Company if the Board finds it to be appropriate; |
| (c) | for which payment has actually been made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance policy; |
| (d) | for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Act or similar provisions of any foreign or United States federal, state or local statute or regulation; |
| (e) | for which the Indemnitee is indemnified and actually paid other than pursuant to this Agreement; |
| (f) | for conduct that is finally adjudged (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to have been caused by the Indemnitee’s dishonesty, willful default or fraud, including, without limitation, breach of the duty of loyalty, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper; |
| (g) | if a court of competent jurisdiction finally determines that such indemnification is unlawful (as to which all rights of appeal therefrom have been exhausted or lapsed). In this respect, the Company and the Indemnitee have been advised that the Securities and Exchange Commission (the “SEC”) takes the position that indemnification for liabilities arising under securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication; |
| (h) | in connection with the Indemnitee’s personal tax matters; |
| (i) | subject to the proviso in Section 6(a) hereof, in connection with any dispute or breach arising under any contract or similar obligation between the Company or any of its subsidiaries or affiliates and such Indemnitee; or |
| (j) | in connection with any reimbursement made by Indemnitee to the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), Section 306 of the Sarbanes-Oxley Act or Section 954 of the Dodd–Frank Wall Street Reform and Consumer Protection Act and the rules promulgated by the SEC thereunder. |
| 7 | Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’ insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
| 8 | No Employment Rights. Nothing in this Agreement is intended to create in the Indemnitee any right to continued employment with the Company. |
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| 9 | Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is a director of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee is or was a director of the Company or is or was serving in any other capacity referred to in this Section 9. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as a director of the Company or as an agent of another enterprise at the Company’s request. |
| 10 | Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Articles, any agreement, vote of shareholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office. |
| 11 | Other Indemnity Agreement. Other than this Agreement, the Company has not entered into as of the date hereof, and shall not enter into following the date hereof, any indemnification agreement or side letter or other similar agreement or arrangement (collectively, an “Indemnity Agreement”), or amend any existing Indemnity Agreement, with any existing or future director/executive officer of the Company that has the effect of establishing rights or otherwise benefiting such director/executive officer in a manner more favorable in any respect than the rights and benefits established in favor of the Indemnitee by this Agreement, unless, in each such case, the Indemnitee is offered the opportunity to receive the rights and benefits of such Indemnity Agreement. All Indemnity Agreements shall be in writing. |
| 12 | Assignment; Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party thereto without the prior written consent of the other party, except that the Company may, without such consent, assign all such rights and obligations to a successor in interest to the Company which assumes all obligations of the Company under this Agreement in a written agreement in form and substance satisfactory to the Indemnitee. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the parties hereto and the Company’s successors (including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, as well as the Indemnitee’s spouses, heirs, and personal and legal representatives. |
| 13 | Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights. |
| 14 | Severability. Each and every section, sentence, term and provision of this Agreement is separate and distinct so that if any section, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, lawfulness or enforceability of any other section, sentence, term or provision hereof. To the extent required, any section, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. |
| 15 | Savings Clause. If this Agreement or any section, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable section, sentence, term or provision of this Agreement that has not been invalidated or (b) applicable law. |
| 16 | Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with Cayman Islands laws without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. |
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| 17 | Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles, or by other agreements, including directors’ and officers’ liability insurance policies, of the Company. |
| 18 | Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. Delivery by electronic transmission to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. |
| 19 | Notices. Any notice required to be given under this Agreement shall be directed to the Company at c/o Ambipar Emergency Response, Avenida Angélica, nº 2346, 5th floor, room 4, Consolação, 01228-200, São Paulo - SP Brazil (Attention of Luciana Freire Barca Nascimento and Alessandra Bessa Alves de Melo), and to the Indemnitee at or to such other address as the Indemnitee shall designate to the Company in writing. |
| 20 | Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern. |
| 21 | Additional Acts. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement. |
| 22 | Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. |
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IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as a deed on the date first written above.
| Executed and delivered as a deed | ||
| AMBIPAR EMERGENCY RESPONSE | ||
| By: | /s/ Thiago da Costa Silva | |
| Name: Thiago da Costa Silva | ||
| Office: Director | ||
| Executed and delivered as a deed | ||
| INDEMNITEE | ||
| /s/ Tércio Borlenghi Junior | ||
| Name: Tércio Borlenghi Junior | ||
| WITNESSED BY: | ||
| /s/ Ana Paula Gomes | ||
| Name: Ana Paula Gomes | ||
| Title: Lawyer | ||
[Signature Page to Indemnity Agreement]
Exhibit 4.20
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made as of March 3, 2023, by and between Izabel Cristina Andriotti Cruz de Oliveira and Ambipar Emergency Response, a Cayman Islands exempted company incorporated with limited liability (the “Company”), and (the “Indemnitee”), a director of the Company.
WHEREAS, the Indemnitee has agreed to serve as a director of the Company and in such capacity will render valuable services to the Company; and
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its Subsidiaries (as defined below) from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among publicly traded corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The amended and restated memorandum and articles of association of the company (the “Articles”) provide for the indemnification of the officers and directors of the Company. The Articles expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, while the Articles provide for the indemnification of the officers and directors of the Company and the Articles provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve, or continue to serve, as a director of the Company, the Company and the Indemnitee hereby agree as follows:
| 1 | Definitions. As used in this Agreement: |
| (a) | A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events: |
| (i) | Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors; |
| (ii) | Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board; |
| (iii) | Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; |
| (iv) | Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and |
| (v) | Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. |
| (vi) | For purposes of this Section 2(b), the following terms have the following meanings: |
| (1) | “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. |
| (2) | “Person” has the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company. |
| (3) | “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company with another entity. |
| (b) | The term “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee. |
| (c) | The term “Expenses” shall mean any expense, liability or loss, including, without limitation, damages, judgments, fines, penalties, settlements (if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, conditioned or delayed) and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations, liabilities, losses, taxes, any expense paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any taxes, interests, assessments or other charges imposed as a result of the actual or deemed receipt of any payment under this Agreement. |
| (d) | The term “Independent Legal Counsel” shall mean any attorney or firm of attorneys that is reasonably selected by the Board and approved by the Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed), so long as such firm is not presently representing and has not in the preceding five (5) years represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company in any matter material to any such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Articles, which became effective immediately after the Company’s initial public offering, applicable law or otherwise. |
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| (e) | The term “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, hearing or any other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), in which the Indemnitee was, is or will be involved as a party or otherwise, by reason of (i) the fact that the Indemnitee is or was a director (or a director appointee) or an executive officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, (ii) any actual or alleged act or omission or neglect or breach of duty, including, without limitation, any actual or alleged error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in any such capacity, or (iii) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Articles, applicable law or otherwise, in each case whether or not the Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. |
| (f) | The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director or an executive officer of the Company which imposes duties on, or involves services by, such director or executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company. |
| (g) | Sections 8 and 19(3) of the Electronic Transactions Act (As Revised) shall not apply. |
| 2 | Indemnification. Subject to Section 6 below, the Company hereby agrees to hold harmless and indemnify the Indemnitee to the fullest extent permitted by Cayman Islands law in effect on the date hereof and as amended from time to time (“Law”). In furtherance of the foregoing indemnification and without limiting the generality thereof: |
| (a) | Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (b) | Proceedings Other than Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other than a Proceeding by or in the right of the Company) against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
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| (c) | Indemnification for Expenses of Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee, has prepared to serve or has served as a witness or is made to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith, in each case, to the maximum extent permitted by Law. |
| (d) | Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Proceedings, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled, in each case, to the maximum extent permitted by Law. |
| 3 | Contribution. If the indemnification provided in Section 2 above is unavailable to Indemnitee for any reason (other than those set forth in Section 6 below) in connection with a Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company, in lieu of indemnifying Indemnitee thereunder, shall, to the maximum extent permitted by Law, contribute to the amount of Expenses which are actually and reasonably incurred and paid or payable by the Indemnitee in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and the Indemnitee and/or (ii) the relative fault of the Company and such Indemnitee in connection with the transaction or events from which such Proceeding arose. The relative fault of the Company and the Indemnitee shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. |
| 4 | Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee (but in any event no later than thirty (30) days after such request) to the fullest extent permitted by Law; provided, however, that the Indemnitee shall set forth in such request reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding and an undertaking (which shall not require any security) in writing to repay any advances if it is ultimately determined as provided in subsection 5(b) of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement, the Articles, applicable law or otherwise. |
| 5 | Indemnification Procedure; Determination of Right to Indemnification. |
| (a) | Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify. |
| (b) | The Indemnitee shall be conclusively presumed to be entitled to indemnification under this Agreement unless a determination is made that the Indemnitee is not entitled to indemnification under Law by one of the following two methods, which shall be at the election of the Indemnitee: (i) by a majority vote of the Board of a quorum consisting of Disinterested Directors or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, the Indemnitee so directs, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. |
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| (c) | If (i) a determination is made that the Indemnitee is not entitled to indemnification under this Agreement or (ii) a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the Indemnitee is entitled to an adjudication in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct shall be a defense to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein. |
| (d) | If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall to the maximum extent permitted by Law pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings). |
| (e) | With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Indemnitee shall have the right to employ his own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of a Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a proceeding, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be advanced by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded in his/her sole discretion that there may be a conflict of interest between the Company and the Indemnitee. |
| (f) | Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power. Subject to Section 3, the Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial action if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense, conduct and/or settlement of such action. |
| 6 | Limitations on Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee: |
| (a) | in connection with any Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, unless (i) the Board authorized the Proceeding prior to its initiation or (ii) the Proceeding is to enforce indemnification rights under this Agreement, the Articles, applicable law or otherwise and either (A) Indemnitee is successful in such Proceeding in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of Expenses hereunder (in which case such indemnification or advancement shall be to the fullest extent permitted by this Agreement) or (B) the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his or her right to indemnification, Indemnitee is entitled to indemnity for such expenses (in which case such indemnification or advancement shall be to the extent provided by such court); |
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| (b) | in connection with the Indemnitee preparing to serve or serving, prior to a Change in Control, as a witness in voluntary cooperation with any non-governmental or non-regulatory party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification may be provided by the Company if the Board finds it to be appropriate; |
| (c) | for which payment has actually been made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance policy; |
| (d) | for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Act or similar provisions of any foreign or United States federal, state or local statute or regulation; |
| (e) | for which the Indemnitee is indemnified and actually paid other than pursuant to this Agreement; |
| (f) | for conduct that is finally adjudged (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to have been caused by the Indemnitee’s dishonesty, willful default or fraud, including, without limitation, breach of the duty of loyalty, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper; |
| (g) | if a court of competent jurisdiction finally determines that such indemnification is unlawful (as to which all rights of appeal therefrom have been exhausted or lapsed). In this respect, the Company and the Indemnitee have been advised that the Securities and Exchange Commission (the “SEC”) takes the position that indemnification for liabilities arising under securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication; |
| (h) | in connection with the Indemnitee’s personal tax matters; |
| (i) | subject to the proviso in Section 6(a) hereof, in connection with any dispute or breach arising under any contract or similar obligation between the Company or any of its subsidiaries or affiliates and such Indemnitee; or |
| (j) | in connection with any reimbursement made by Indemnitee to the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), Section 306 of the Sarbanes-Oxley Act or Section 954 of the Dodd–Frank Wall Street Reform and Consumer Protection Act and the rules promulgated by the SEC thereunder. |
| 7 | Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’ insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
| 8 | No Employment Rights. Nothing in this Agreement is intended to create in the Indemnitee any right to continued employment with the Company. |
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| 9 | Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is a director of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee is or was a director of the Company or is or was serving in any other capacity referred to in this Section 9. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as a director of the Company or as an agent of another enterprise at the Company’s request. |
| 10 | Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Articles, any agreement, vote of shareholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office. |
| 11 | Other Indemnity Agreement. Other than this Agreement, the Company has not entered into as of the date hereof, and shall not enter into following the date hereof, any indemnification agreement or side letter or other similar agreement or arrangement (collectively, an “Indemnity Agreement”), or amend any existing Indemnity Agreement, with any existing or future director/executive officer of the Company that has the effect of establishing rights or otherwise benefiting such director/executive officer in a manner more favorable in any respect than the rights and benefits established in favor of the Indemnitee by this Agreement, unless, in each such case, the Indemnitee is offered the opportunity to receive the rights and benefits of such Indemnity Agreement. All Indemnity Agreements shall be in writing. |
| 12 | Assignment; Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party thereto without the prior written consent of the other party, except that the Company may, without such consent, assign all such rights and obligations to a successor in interest to the Company which assumes all obligations of the Company under this Agreement in a written agreement in form and substance satisfactory to the Indemnitee. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the parties hereto and the Company’s successors (including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, as well as the Indemnitee’s spouses, heirs, and personal and legal representatives. |
| 13 | Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights. |
| 14 | Severability. Each and every section, sentence, term and provision of this Agreement is separate and distinct so that if any section, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, lawfulness or enforceability of any other section, sentence, term or provision hereof. To the extent required, any section, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. |
| 15 | Savings Clause. If this Agreement or any section, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable section, sentence, term or provision of this Agreement that has not been invalidated or (b) applicable law. |
| 16 | Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with Cayman Islands laws without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. |
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| 17 | Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles, or by other agreements, including directors’ and officers’ liability insurance policies, of the Company. |
| 18 | Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. Delivery by electronic transmission to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. |
| 19 | Notices. Any notice required to be given under this Agreement shall be directed to the Company at c/o Ambipar Emergency Response, Avenida Angélica, nº 2346, 5th floor, room 4, Consolação, 01228-200, São Paulo - SP Brazil (Attention of Luciana Freire Barca Nascimento and Alessandra Bessa Alves de Melo), and to the Indemnitee at or to such other address as the Indemnitee shall designate to the Company in writing. |
| 20 | Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern. |
| 21 | Additional Acts. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement. |
| 22 | Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. |
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IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as a deed on the date first written above.
| Executed and delivered as a deed | ||
| AMBIPAR EMERGENCY RESPONSE | ||
| By: | /s/ Thiago da Costa Silva | |
| Name: Thiago da Costa Silva | ||
| Office: Director | ||
| Executed and delivered as a deed | ||
| INDEMNITEE | ||
| /s/ Izabel Cristina Andriotti Cruz de Oliveira | ||
| Name: Izabel Cristina Andriotti Cruz de Oliveira | ||
| WITNESSED BY: | ||
| /s/ Ana Paula Gomes | ||
| Name: Ana Paula Gomes | ||
| Title: Lawyer | ||
[Signature Page to Indemnity Agreement]
Exhibit 4.21
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made as of March 3, 2023, by and between Alessandra Bessa Alves de Melo and Ambipar Emergency Response, a Cayman Islands exempted company incorporated with limited liability (the “Company”), and (the “Indemnitee”), a director of the Company.
WHEREAS, the Indemnitee has agreed to serve as a director of the Company and in such capacity will render valuable services to the Company; and
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its Subsidiaries (as defined below) from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among publicly traded corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The amended and restated memorandum and articles of association of the company (the “Articles”) provide for the indemnification of the officers and directors of the Company. The Articles expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, while the Articles provide for the indemnification of the officers and directors of the Company and the Articles provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve, or continue to serve, as a director of the Company, the Company and the Indemnitee hereby agree as follows:
| 1 | Definitions. As used in this Agreement: |
| (a) | A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events: |
| (i) | Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors; |
| (ii) | Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board; |
| (iii) | Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; |
| (iv) | Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and |
| (v) | Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. |
| (vi) | For purposes of this Section 2(b), the following terms have the following meanings: |
| (1) | “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. |
| (2) | “Person” has the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company. |
| (3) | “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company with another entity. |
| (b) | The term “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee. |
| (c) | The term “Expenses” shall mean any expense, liability or loss, including, without limitation, damages, judgments, fines, penalties, settlements (if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, conditioned or delayed) and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations, liabilities, losses, taxes, any expense paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any taxes, interests, assessments or other charges imposed as a result of the actual or deemed receipt of any payment under this Agreement. |
| (d) | The term “Independent Legal Counsel” shall mean any attorney or firm of attorneys that is reasonably selected by the Board and approved by the Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed), so long as such firm is not presently representing and has not in the preceding five (5) years represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company in any matter material to any such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Articles, which became effective immediately after the Company’s initial public offering, applicable law or otherwise. |
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| (e) | The term “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, hearing or any other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), in which the Indemnitee was, is or will be involved as a party or otherwise, by reason of (i) the fact that the Indemnitee is or was a director (or a director appointee) or an executive officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, (ii) any actual or alleged act or omission or neglect or breach of duty, including, without limitation, any actual or alleged error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in any such capacity, or (iii) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Articles, applicable law or otherwise, in each case whether or not the Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. |
| (f) | The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director or an executive officer of the Company which imposes duties on, or involves services by, such director or executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company. |
| (g) | Sections 8 and 19(3) of the Electronic Transactions Act (As Revised) shall not apply. |
| 2 | Indemnification. Subject to Section 6 below, the Company hereby agrees to hold harmless and indemnify the Indemnitee to the fullest extent permitted by Cayman Islands law in effect on the date hereof and as amended from time to time (“Law”). In furtherance of the foregoing indemnification and without limiting the generality thereof: |
| (a) | Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (b) | Proceedings Other than Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other than a Proceeding by or in the right of the Company) against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
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| (c) | Indemnification for Expenses of Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee, has prepared to serve or has served as a witness or is made to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith, in each case, to the maximum extent permitted by Law. |
| (d) | Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Proceedings, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled, in each case, to the maximum extent permitted by Law. |
| 3 | Contribution. If the indemnification provided in Section 2 above is unavailable to Indemnitee for any reason (other than those set forth in Section 6 below) in connection with a Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company, in lieu of indemnifying Indemnitee thereunder, shall, to the maximum extent permitted by Law, contribute to the amount of Expenses which are actually and reasonably incurred and paid or payable by the Indemnitee in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and the Indemnitee and/or (ii) the relative fault of the Company and such Indemnitee in connection with the transaction or events from which such Proceeding arose. The relative fault of the Company and the Indemnitee shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. |
| 4 | Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee (but in any event no later than thirty (30) days after such request) to the fullest extent permitted by Law; provided, however, that the Indemnitee shall set forth in such request reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding and an undertaking (which shall not require any security) in writing to repay any advances if it is ultimately determined as provided in subsection 5(b) of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement, the Articles, applicable law or otherwise. |
| 5 | Indemnification Procedure; Determination of Right to Indemnification. |
| (a) | Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify. |
| (b) | The Indemnitee shall be conclusively presumed to be entitled to indemnification under this Agreement unless a determination is made that the Indemnitee is not entitled to indemnification under Law by one of the following two methods, which shall be at the election of the Indemnitee: (i) by a majority vote of the Board of a quorum consisting of Disinterested Directors or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, the Indemnitee so directs, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. |
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| (c) | If (i) a determination is made that the Indemnitee is not entitled to indemnification under this Agreement or (ii) a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the Indemnitee is entitled to an adjudication in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct shall be a defense to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein. |
| (d) | If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall to the maximum extent permitted by Law pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings). |
| (e) | With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Indemnitee shall have the right to employ his own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of a Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a proceeding, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be advanced by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded in his/her sole discretion that there may be a conflict of interest between the Company and the Indemnitee. |
| (f) | Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power. Subject to Section 3, the Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial action if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense, conduct and/or settlement of such action. |
| 6 | Limitations on Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee: |
| (a) | in connection with any Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, unless (i) the Board authorized the Proceeding prior to its initiation or (ii) the Proceeding is to enforce indemnification rights under this Agreement, the Articles, applicable law or otherwise and either (A) Indemnitee is successful in such Proceeding in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of Expenses hereunder (in which case such indemnification or advancement shall be to the fullest extent permitted by this Agreement) or (B) the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his or her right to indemnification, Indemnitee is entitled to indemnity for such expenses (in which case such indemnification or advancement shall be to the extent provided by such court); |
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| (b) | in connection with the Indemnitee preparing to serve or serving, prior to a Change in Control, as a witness in voluntary cooperation with any non-governmental or non-regulatory party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification may be provided by the Company if the Board finds it to be appropriate; |
| (c) | for which payment has actually been made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance policy; |
| (d) | for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Act or similar provisions of any foreign or United States federal, state or local statute or regulation; |
| (e) | for which the Indemnitee is indemnified and actually paid other than pursuant to this Agreement; |
| (f) | for conduct that is finally adjudged (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to have been caused by the Indemnitee’s dishonesty, willful default or fraud, including, without limitation, breach of the duty of loyalty, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper; |
| (g) | if a court of competent jurisdiction finally determines that such indemnification is unlawful (as to which all rights of appeal therefrom have been exhausted or lapsed). In this respect, the Company and the Indemnitee have been advised that the Securities and Exchange Commission (the “SEC”) takes the position that indemnification for liabilities arising under securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication; |
| (h) | in connection with the Indemnitee’s personal tax matters; |
| (i) | subject to the proviso in Section 6(a) hereof, in connection with any dispute or breach arising under any contract or similar obligation between the Company or any of its subsidiaries or affiliates and such Indemnitee; or |
| (j) | in connection with any reimbursement made by Indemnitee to the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), Section 306 of the Sarbanes-Oxley Act or Section 954 of the Dodd–Frank Wall Street Reform and Consumer Protection Act and the rules promulgated by the SEC thereunder. |
| 7 | Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’ insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
| 8 | No Employment Rights. Nothing in this Agreement is intended to create in the Indemnitee any right to continued employment with the Company. |
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| 9 | Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is a director of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee is or was a director of the Company or is or was serving in any other capacity referred to in this Section 9. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as a director of the Company or as an agent of another enterprise at the Company’s request. |
| 10 | Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Articles, any agreement, vote of shareholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office. |
| 11 | Other Indemnity Agreement. Other than this Agreement, the Company has not entered into as of the date hereof, and shall not enter into following the date hereof, any indemnification agreement or side letter or other similar agreement or arrangement (collectively, an “Indemnity Agreement”), or amend any existing Indemnity Agreement, with any existing or future director/executive officer of the Company that has the effect of establishing rights or otherwise benefiting such director/executive officer in a manner more favorable in any respect than the rights and benefits established in favor of the Indemnitee by this Agreement, unless, in each such case, the Indemnitee is offered the opportunity to receive the rights and benefits of such Indemnity Agreement. All Indemnity Agreements shall be in writing. |
| 12 | Assignment; Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party thereto without the prior written consent of the other party, except that the Company may, without such consent, assign all such rights and obligations to a successor in interest to the Company which assumes all obligations of the Company under this Agreement in a written agreement in form and substance satisfactory to the Indemnitee. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the parties hereto and the Company’s successors (including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, as well as the Indemnitee’s spouses, heirs, and personal and legal representatives. |
| 13 | Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights. |
| 14 | Severability. Each and every section, sentence, term and provision of this Agreement is separate and distinct so that if any section, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, lawfulness or enforceability of any other section, sentence, term or provision hereof. To the extent required, any section, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. |
| 15 | Savings Clause. If this Agreement or any section, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable section, sentence, term or provision of this Agreement that has not been invalidated or (b) applicable law. |
| 16 | Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with Cayman Islands laws without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. |
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| 17 | Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles, or by other agreements, including directors’ and officers’ liability insurance policies, of the Company. |
| 18 | Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. Delivery by electronic transmission to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. |
| 19 | Notices. Any notice required to be given under this Agreement shall be directed to the Company at c/o Ambipar Emergency Response, Avenida Angélica, nº 2346, 5th floor, room 4, Consolação, 01228-200, São Paulo - SP Brazil (Attention of Luciana Freire Barca Nascimento and Alessandra Bessa Alves de Melo), and to the Indemnitee at or to such other address as the Indemnitee shall designate to the Company in writing. |
| 20 | Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern. |
| 21 | Additional Acts. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement. |
| 22 | Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. |
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IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as a deed on the date first written above.
| Executed and delivered as a deed | ||
| AMBIPAR EMERGENCY RESPONSE | ||
| By: | /s/ Thiago da Costa Silva | |
| Name: Thiago da Costa Silva | ||
| Office: Director | ||
| Executed and delivered as a deed | ||
| INDEMNITEE | ||
| /s/ Alessandra Bessa Alves de Melo | ||
| Name: Alessandra Bessa Alves de Melo | ||
| WITNESSED BY: | ||
| /s/ Ana Paula Gomes | ||
| Name: Ana Paula Gomes | ||
| Title: Lawyer | ||
[Signature Page to Indemnity Agreement]
Exhibit 4.22
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made as of March 3, 2023, by and between Thiago da Costa Silva and Ambipar Emergency Response, a Cayman Islands exempted company incorporated with limited liability (the “Company”), and (the “Indemnitee”), a director of the Company.
WHEREAS, the Indemnitee has agreed to serve as a director of the Company and in such capacity will render valuable services to the Company; and
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its Subsidiaries (as defined below) from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among publicly traded corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The amended and restated memorandum and articles of association of the company (the “Articles”) provide for the indemnification of the officers and directors of the Company. The Articles expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, while the Articles provide for the indemnification of the officers and directors of the Company and the Articles provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve, or continue to serve, as a director of the Company, the Company and the Indemnitee hereby agree as follows:
| 1 | Definitions. As used in this Agreement: |
| (a) | A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events: |
| (i) | Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors; |
| (ii) | Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board; |
| (iii) | Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; |
| (iv) | Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and |
| (v) | Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. |
| (vi) | For purposes of this Section 2(b), the following terms have the following meanings: |
| (1) | “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. |
| (2) | “Person” has the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company. |
| (3) | “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company with another entity. |
| (b) | The term “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee. |
| (c) | The term “Expenses” shall mean any expense, liability or loss, including, without limitation, damages, judgments, fines, penalties, settlements (if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, conditioned or delayed) and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations, liabilities, losses, taxes, any expense paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any taxes, interests, assessments or other charges imposed as a result of the actual or deemed receipt of any payment under this Agreement. |
| (d) | The term “Independent Legal Counsel” shall mean any attorney or firm of attorneys that is reasonably selected by the Board and approved by the Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed), so long as such firm is not presently representing and has not in the preceding five (5) years represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company in any matter material to any such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Articles, which became effective immediately after the Company’s initial public offering, applicable law or otherwise. |
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| (e) | The term “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, hearing or any other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), in which the Indemnitee was, is or will be involved as a party or otherwise, by reason of (i) the fact that the Indemnitee is or was a director (or a director appointee) or an executive officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, (ii) any actual or alleged act or omission or neglect or breach of duty, including, without limitation, any actual or alleged error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in any such capacity, or (iii) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Articles, applicable law or otherwise, in each case whether or not the Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. |
| (f) | The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director or an executive officer of the Company which imposes duties on, or involves services by, such director or executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company. |
| (g) | Sections 8 and 19(3) of the Electronic Transactions Act (As Revised) shall not apply. |
| 2 | Indemnification. Subject to Section 6 below, the Company hereby agrees to hold harmless and indemnify the Indemnitee to the fullest extent permitted by Cayman Islands law in effect on the date hereof and as amended from time to time (“Law”). In furtherance of the foregoing indemnification and without limiting the generality thereof: |
| (a) | Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (b) | Proceedings Other than Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other than a Proceeding by or in the right of the Company) against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
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| (c) | Indemnification for Expenses of Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee, has prepared to serve or has served as a witness or is made to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith, in each case, to the maximum extent permitted by Law. |
| (d) | Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Proceedings, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled, in each case, to the maximum extent permitted by Law. |
| 3 | Contribution. If the indemnification provided in Section 2 above is unavailable to Indemnitee for any reason (other than those set forth in Section 6 below) in connection with a Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company, in lieu of indemnifying Indemnitee thereunder, shall, to the maximum extent permitted by Law, contribute to the amount of Expenses which are actually and reasonably incurred and paid or payable by the Indemnitee in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and the Indemnitee and/or (ii) the relative fault of the Company and such Indemnitee in connection with the transaction or events from which such Proceeding arose. The relative fault of the Company and the Indemnitee shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. |
| 4 | Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee (but in any event no later than thirty (30) days after such request) to the fullest extent permitted by Law; provided, however, that the Indemnitee shall set forth in such request reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding and an undertaking (which shall not require any security) in writing to repay any advances if it is ultimately determined as provided in subsection 5(b) of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement, the Articles, applicable law or otherwise. |
| 5 | Indemnification Procedure; Determination of Right to Indemnification. |
| (a) | Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify. |
| (b) | The Indemnitee shall be conclusively presumed to be entitled to indemnification under this Agreement unless a determination is made that the Indemnitee is not entitled to indemnification under Law by one of the following two methods, which shall be at the election of the Indemnitee: (i) by a majority vote of the Board of a quorum consisting of Disinterested Directors or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, the Indemnitee so directs, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. |
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| (c) | If (i) a determination is made that the Indemnitee is not entitled to indemnification under this Agreement or (ii) a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the Indemnitee is entitled to an adjudication in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct shall be a defense to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein. |
| (d) | If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall to the maximum extent permitted by Law pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings). |
| (e) | With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Indemnitee shall have the right to employ his own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of a Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a proceeding, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be advanced by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded in his/her sole discretion that there may be a conflict of interest between the Company and the Indemnitee. |
| (f) | Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power. Subject to Section 3, the Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial action if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense, conduct and/or settlement of such action. |
| 6 | Limitations on Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee: |
| (a) | in connection with any Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, unless (i) the Board authorized the Proceeding prior to its initiation or (ii) the Proceeding is to enforce indemnification rights under this Agreement, the Articles, applicable law or otherwise and either (A) Indemnitee is successful in such Proceeding in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of Expenses hereunder (in which case such indemnification or advancement shall be to the fullest extent permitted by this Agreement) or (B) the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his or her right to indemnification, Indemnitee is entitled to indemnity for such expenses (in which case such indemnification or advancement shall be to the extent provided by such court); |
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| (b) | in connection with the Indemnitee preparing to serve or serving, prior to a Change in Control, as a witness in voluntary cooperation with any non-governmental or non-regulatory party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification may be provided by the Company if the Board finds it to be appropriate; |
| (c) | for which payment has actually been made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance policy; |
| (d) | for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Act or similar provisions of any foreign or United States federal, state or local statute or regulation; |
| (e) | for which the Indemnitee is indemnified and actually paid other than pursuant to this Agreement; |
| (f) | for conduct that is finally adjudged (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to have been caused by the Indemnitee’s dishonesty, willful default or fraud, including, without limitation, breach of the duty of loyalty, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper; |
| (g) | if a court of competent jurisdiction finally determines that such indemnification is unlawful (as to which all rights of appeal therefrom have been exhausted or lapsed). In this respect, the Company and the Indemnitee have been advised that the Securities and Exchange Commission (the “SEC”) takes the position that indemnification for liabilities arising under securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication; |
| (h) | in connection with the Indemnitee’s personal tax matters; |
| (i) | subject to the proviso in Section 6(a) hereof, in connection with any dispute or breach arising under any contract or similar obligation between the Company or any of its subsidiaries or affiliates and such Indemnitee; or |
| (j) | in connection with any reimbursement made by Indemnitee to the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), Section 306 of the Sarbanes-Oxley Act or Section 954 of the Dodd–Frank Wall Street Reform and Consumer Protection Act and the rules promulgated by the SEC thereunder. |
| 7 | Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’ insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
| 8 | No Employment Rights. Nothing in this Agreement is intended to create in the Indemnitee any right to continued employment with the Company. |
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| 9 | Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is a director of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee is or was a director of the Company or is or was serving in any other capacity referred to in this Section 9. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as a director of the Company or as an agent of another enterprise at the Company’s request. |
| 10 | Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Articles, any agreement, vote of shareholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office. |
| 11 | Other Indemnity Agreement. Other than this Agreement, the Company has not entered into as of the date hereof, and shall not enter into following the date hereof, any indemnification agreement or side letter or other similar agreement or arrangement (collectively, an “Indemnity Agreement”), or amend any existing Indemnity Agreement, with any existing or future director/executive officer of the Company that has the effect of establishing rights or otherwise benefiting such director/executive officer in a manner more favorable in any respect than the rights and benefits established in favor of the Indemnitee by this Agreement, unless, in each such case, the Indemnitee is offered the opportunity to receive the rights and benefits of such Indemnity Agreement. All Indemnity Agreements shall be in writing. |
| 12 | Assignment; Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party thereto without the prior written consent of the other party, except that the Company may, without such consent, assign all such rights and obligations to a successor in interest to the Company which assumes all obligations of the Company under this Agreement in a written agreement in form and substance satisfactory to the Indemnitee. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the parties hereto and the Company’s successors (including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, as well as the Indemnitee’s spouses, heirs, and personal and legal representatives. |
| 13 | Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights. |
| 14 | Severability. Each and every section, sentence, term and provision of this Agreement is separate and distinct so that if any section, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, lawfulness or enforceability of any other section, sentence, term or provision hereof. To the extent required, any section, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. |
| 15 | Savings Clause. If this Agreement or any section, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable section, sentence, term or provision of this Agreement that has not been invalidated or (b) applicable law. |
| 16 | Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with Cayman Islands laws without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. |
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| 17 | Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles, or by other agreements, including directors’ and officers’ liability insurance policies, of the Company. |
| 18 | Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. Delivery by electronic transmission to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. |
| 19 | Notices. Any notice required to be given under this Agreement shall be directed to the Company at c/o Ambipar Emergency Response, Avenida Angélica, nº 2346, 5th floor, room 4, Consolação, 01228-200, São Paulo - SP Brazil (Attention of Luciana Freire Barca Nascimento and Alessandra Bessa Alves de Melo), and to the Indemnitee at or to such other address as the Indemnitee shall designate to the Company in writing. |
| 20 | Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern. |
| 21 | Additional Acts. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement. |
| 22 | Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. |
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IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as a deed on the date first written above.
| Executed and delivered as a deed | ||
| AMBIPAR EMERGENCY RESPONSE | ||
| By: | /s/ Guilherme Patini Borlenghi | |
| Name: Guilherme Patini Borlenghi | ||
| Office: Director | ||
| Executed and delivered as a deed | ||
| INDEMNITEE | ||
| /s/ Thiago da Costa Silva | ||
| Name: Thiago da Costa Silva | ||
| WITNESSED BY: | ||
| /s/ Ana Paula Gomes | ||
| Name: Ana Paula Gomes | ||
| Title: Lawyer | ||
[Signature Page to Indemnity Agreement]
Exhibit 4.23
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made as of March 3, 2023, by and between Mariana Loyola Ferreira Sgarbi and Ambipar Emergency Response, a Cayman Islands exempted company incorporated with limited liability (the “Company”), and (the “Indemnitee”), a director of the Company.
WHEREAS, the Indemnitee has agreed to serve as a director of the Company and in such capacity will render valuable services to the Company; and
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its Subsidiaries (as defined below) from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among publicly traded corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The amended and restated memorandum and articles of association of the company (the “Articles”) provide for the indemnification of the officers and directors of the Company. The Articles expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, while the Articles provide for the indemnification of the officers and directors of the Company and the Articles provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve, or continue to serve, as a director of the Company, the Company and the Indemnitee hereby agree as follows:
| 1 | Definitions. As used in this Agreement: |
| (a) | A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events: |
| (i) | Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors; |
| (ii) | Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board; |
| (iii) | Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; |
| (iv) | Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and |
| (v) | Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. |
| (vi) | For purposes of this Section 2(b), the following terms have the following meanings: |
| (1) | “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. |
| (2) | “Person” has the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company. |
| (3) | “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company with another entity. |
| (b) | The term “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee. |
| (c) | The term “Expenses” shall mean any expense, liability or loss, including, without limitation, damages, judgments, fines, penalties, settlements (if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, conditioned or delayed) and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations, liabilities, losses, taxes, any expense paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any taxes, interests, assessments or other charges imposed as a result of the actual or deemed receipt of any payment under this Agreement. |
| (d) | The term “Independent Legal Counsel” shall mean any attorney or firm of attorneys that is reasonably selected by the Board and approved by the Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed), so long as such firm is not presently representing and has not in the preceding five (5) years represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company in any matter material to any such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Articles, which became effective immediately after the Company’s initial public offering, applicable law or otherwise. |
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| (e) | The term “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, hearing or any other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), in which the Indemnitee was, is or will be involved as a party or otherwise, by reason of (i) the fact that the Indemnitee is or was a director (or a director appointee) or an executive officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, (ii) any actual or alleged act or omission or neglect or breach of duty, including, without limitation, any actual or alleged error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in any such capacity, or (iii) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Articles, applicable law or otherwise, in each case whether or not the Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. |
| (f) | The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director or an executive officer of the Company which imposes duties on, or involves services by, such director or executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company. |
| (g) | Sections 8 and 19(3) of the Electronic Transactions Act (As Revised) shall not apply. |
| 2 | Indemnification. Subject to Section 6 below, the Company hereby agrees to hold harmless and indemnify the Indemnitee to the fullest extent permitted by Cayman Islands law in effect on the date hereof and as amended from time to time (“Law”). In furtherance of the foregoing indemnification and without limiting the generality thereof: |
| (a) | Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (b) | Proceedings Other than Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other than a Proceeding by or in the right of the Company) against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
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| (c) | Indemnification for Expenses of Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee, has prepared to serve or has served as a witness or is made to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith, in each case, to the maximum extent permitted by Law. |
| (d) | Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Proceedings, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled, in each case, to the maximum extent permitted by Law. |
| 3 | Contribution. If the indemnification provided in Section 2 above is unavailable to Indemnitee for any reason (other than those set forth in Section 6 below) in connection with a Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company, in lieu of indemnifying Indemnitee thereunder, shall, to the maximum extent permitted by Law, contribute to the amount of Expenses which are actually and reasonably incurred and paid or payable by the Indemnitee in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and the Indemnitee and/or (ii) the relative fault of the Company and such Indemnitee in connection with the transaction or events from which such Proceeding arose. The relative fault of the Company and the Indemnitee shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. |
| 4 | Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee (but in any event no later than thirty (30) days after such request) to the fullest extent permitted by Law; provided, however, that the Indemnitee shall set forth in such request reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding and an undertaking (which shall not require any security) in writing to repay any advances if it is ultimately determined as provided in subsection 5(b) of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement, the Articles, applicable law or otherwise. |
| 5 | Indemnification Procedure; Determination of Right to Indemnification. |
| (a) | Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify. |
| (b) | The Indemnitee shall be conclusively presumed to be entitled to indemnification under this Agreement unless a determination is made that the Indemnitee is not entitled to indemnification under Law by one of the following two methods, which shall be at the election of the Indemnitee: (i) by a majority vote of the Board of a quorum consisting of Disinterested Directors or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, the Indemnitee so directs, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. |
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| (c) | If (i) a determination is made that the Indemnitee is not entitled to indemnification under this Agreement or (ii) a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the Indemnitee is entitled to an adjudication in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct shall be a defense to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein. |
| (d) | If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall to the maximum extent permitted by Law pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings). |
| (e) | With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Indemnitee shall have the right to employ his own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of a Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a proceeding, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be advanced by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded in his/her sole discretion that there may be a conflict of interest between the Company and the Indemnitee. |
| (f) | Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power. Subject to Section 3, the Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial action if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense, conduct and/or settlement of such action. |
| 6 | Limitations on Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee: |
| (a) | in connection with any Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, unless (i) the Board authorized the Proceeding prior to its initiation or (ii) the Proceeding is to enforce indemnification rights under this Agreement, the Articles, applicable law or otherwise and either (A) Indemnitee is successful in such Proceeding in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of Expenses hereunder (in which case such indemnification or advancement shall be to the fullest extent permitted by this Agreement) or (B) the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his or her right to indemnification, Indemnitee is entitled to indemnity for such expenses (in which case such indemnification or advancement shall be to the extent provided by such court); |
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| (b) | in connection with the Indemnitee preparing to serve or serving, prior to a Change in Control, as a witness in voluntary cooperation with any non-governmental or non-regulatory party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification may be provided by the Company if the Board finds it to be appropriate; |
| (c) | for which payment has actually been made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance policy; |
| (d) | for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Act or similar provisions of any foreign or United States federal, state or local statute or regulation; |
| (e) | for which the Indemnitee is indemnified and actually paid other than pursuant to this Agreement; |
| (f) | for conduct that is finally adjudged (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to have been caused by the Indemnitee’s dishonesty, willful default or fraud, including, without limitation, breach of the duty of loyalty, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper; |
| (g) | if a court of competent jurisdiction finally determines that such indemnification is unlawful (as to which all rights of appeal therefrom have been exhausted or lapsed). In this respect, the Company and the Indemnitee have been advised that the Securities and Exchange Commission (the “SEC”) takes the position that indemnification for liabilities arising under securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication; |
| (h) | in connection with the Indemnitee’s personal tax matters; |
| (i) | subject to the proviso in Section 6(a) hereof, in connection with any dispute or breach arising under any contract or similar obligation between the Company or any of its subsidiaries or affiliates and such Indemnitee; or |
| (j) | in connection with any reimbursement made by Indemnitee to the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), Section 306 of the Sarbanes-Oxley Act or Section 954 of the Dodd–Frank Wall Street Reform and Consumer Protection Act and the rules promulgated by the SEC thereunder. |
| 7 | Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’ insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
| 8 | No Employment Rights. Nothing in this Agreement is intended to create in the Indemnitee any right to continued employment with the Company. |
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| 9 | Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is a director of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee is or was a director of the Company or is or was serving in any other capacity referred to in this Section 9. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as a director of the Company or as an agent of another enterprise at the Company’s request. |
| 10 | Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Articles, any agreement, vote of shareholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office. |
| 11 | Other Indemnity Agreement. Other than this Agreement, the Company has not entered into as of the date hereof, and shall not enter into following the date hereof, any indemnification agreement or side letter or other similar agreement or arrangement (collectively, an “Indemnity Agreement”), or amend any existing Indemnity Agreement, with any existing or future director/executive officer of the Company that has the effect of establishing rights or otherwise benefiting such director/executive officer in a manner more favorable in any respect than the rights and benefits established in favor of the Indemnitee by this Agreement, unless, in each such case, the Indemnitee is offered the opportunity to receive the rights and benefits of such Indemnity Agreement. All Indemnity Agreements shall be in writing. |
| 12 | Assignment; Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party thereto without the prior written consent of the other party, except that the Company may, without such consent, assign all such rights and obligations to a successor in interest to the Company which assumes all obligations of the Company under this Agreement in a written agreement in form and substance satisfactory to the Indemnitee. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the parties hereto and the Company’s successors (including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, as well as the Indemnitee’s spouses, heirs, and personal and legal representatives. |
| 13 | Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights. |
| 14 | Severability. Each and every section, sentence, term and provision of this Agreement is separate and distinct so that if any section, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, lawfulness or enforceability of any other section, sentence, term or provision hereof. To the extent required, any section, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. |
| 15 | Savings Clause. If this Agreement or any section, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable section, sentence, term or provision of this Agreement that has not been invalidated or (b) applicable law. |
| 16 | Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with Cayman Islands laws without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. |
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| 17 | Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles, or by other agreements, including directors’ and officers’ liability insurance policies, of the Company. |
| 18 | Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. Delivery by electronic transmission to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. |
| 19 | Notices. Any notice required to be given under this Agreement shall be directed to the Company at c/o Ambipar Emergency Response, Avenida Angélica, nº 2346, 5th floor, room 4, Consolação, 01228-200, São Paulo - SP Brazil (Attention of Luciana Freire Barca Nascimento and Alessandra Bessa Alves de Melo), and to the Indemnitee at or to such other address as the Indemnitee shall designate to the Company in writing. |
| 20 | Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern. |
| 21 | Additional Acts. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement. |
| 22 | Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. |
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IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as a deed on the date first written above.
| Executed and delivered as a deed | ||
| AMBIPAR EMERGENCY RESPONSE | ||
| By: | /s/ Thiago da Costa Silva | |
| Name: Thiago da Costa Silva | ||
| Office: Director | ||
| Executed and delivered as a deed | ||
| INDEMNITEE | ||
| /s/ Mariana Loyola Ferreira Sgarbi | ||
| Name: Mariana Loyola Ferreira Sgarbi | ||
| WITNESSED BY: | ||
| /s/ Ana Paula Gomes | ||
| Name: Ana Paula Gomes | ||
| Title: Lawyer | ||
[Signature Page to Indemnity Agreement]
Exhibit 4.24
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made as of March 3, 2023, by Carlos Augusto Leone Piani and between Ambipar Emergency Response, a Cayman Islands exempted company incorporated with limited liability (the “Company”), and (the “Indemnitee”), a director of the Company.
WHEREAS, the Indemnitee has agreed to serve as a director of the Company and in such capacity will render valuable services to the Company; and
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its Subsidiaries (as defined below) from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among publicly traded corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The amended and restated memorandum and articles of association of the company (the “Articles”) provide for the indemnification of the officers and directors of the Company. The Articles expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, while the Articles provide for the indemnification of the officers and directors of the Company and the Articles provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve, or continue to serve, as a director of the Company, the Company and the Indemnitee hereby agree as follows:
| 1 | Definitions. As used in this Agreement: |
| (a) | A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events: |
| (i) | Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors; |
| (ii) | Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board; |
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| (iii) | Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; |
| (iv) | Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and |
| (v) | Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. |
| (vi) | For purposes of this Section 2(b), the following terms have the following meanings: |
| (1) | “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. |
| (2) | “Person” has the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company. |
| (3) | “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company with another entity. |
| (b) | The term “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee. |
| (c) | The term “Expenses” shall mean any expense, liability or loss, including, without limitation, damages, judgments, fines, penalties, settlements (if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, conditioned or delayed) and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations, liabilities, losses, taxes, any expense paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any taxes, interests, assessments or other charges imposed as a result of the actual or deemed receipt of any payment under this Agreement. |
| (d) | The term “Independent Legal Counsel” shall mean any attorney or firm of attorneys that is reasonably selected by the Board and approved by the Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed), so long as such firm is not presently representing and has not in the preceding five (5) years represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company in any matter material to any such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Articles, which became effective immediately after the Company’s initial public offering, applicable law or otherwise. |
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| (e) | The term “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, hearing or any other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), in which the Indemnitee was, is or will be involved as a party or otherwise, by reason of (i) the fact that the Indemnitee is or was a director (or a director appointee) or an executive officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, (ii) any actual or alleged act or omission or neglect or breach of duty, including, without limitation, any actual or alleged error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in any such capacity, or (iii) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Articles, applicable law or otherwise, in each case whether or not the Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. |
| (f) | The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director or an executive officer of the Company which imposes duties on, or involves services by, such director or executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company. |
| (g) | Sections 8 and 19(3) of the Electronic Transactions Act (As Revised) shall not apply. |
| 2 | Indemnification. Subject to Section 6 below, the Company hereby agrees to hold harmless and indemnify the Indemnitee to the fullest extent permitted by Cayman Islands law in effect on the date hereof and as amended from time to time (“Law”). In furtherance of the foregoing indemnification and without limiting the generality thereof: |
| (a) | Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (b) | Proceedings Other than Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other than a Proceeding by or in the right of the Company) against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
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| (c) | Indemnification for Expenses of Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee, has prepared to serve or has served as a witness or is made to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith, in each case, to the maximum extent permitted by Law. |
| (d) | Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Proceedings, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled, in each case, to the maximum extent permitted by Law. |
| 3 | Contribution. If the indemnification provided in Section 2 above is unavailable to Indemnitee for any reason (other than those set forth in Section 6 below) in connection with a Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company, in lieu of indemnifying Indemnitee thereunder, shall, to the maximum extent permitted by Law, contribute to the amount of Expenses which are actually and reasonably incurred and paid or payable by the Indemnitee in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and the Indemnitee and/or (ii) the relative fault of the Company and such Indemnitee in connection with the transaction or events from which such Proceeding arose. The relative fault of the Company and the Indemnitee shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. |
| 4 | Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee (but in any event no later than thirty (30) days after such request) to the fullest extent permitted by Law; provided, however, that the Indemnitee shall set forth in such request reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding and an undertaking (which shall not require any security) in writing to repay any advances if it is ultimately determined as provided in subsection 5(b) of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement, the Articles, applicable law or otherwise. |
| 5 | Indemnification Procedure; Determination of Right to Indemnification. |
| (a) | Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify. |
| (b) | The Indemnitee shall be conclusively presumed to be entitled to indemnification under this Agreement unless a determination is made that the Indemnitee is not entitled to indemnification under Law by one of the following two methods, which shall be at the election of the Indemnitee: (i) by a majority vote of the Board of a quorum consisting of Disinterested Directors or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, the Indemnitee so directs, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. |
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| (c) | If (i) a determination is made that the Indemnitee is not entitled to indemnification under this Agreement or (ii) a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the Indemnitee is entitled to an adjudication in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct shall be a defense to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein. |
| (d) | If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall to the maximum extent permitted by Law pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings). |
| (e) | With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Indemnitee shall have the right to employ his own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of a Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a proceeding, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be advanced by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded in his/her sole discretion that there may be a conflict of interest between the Company and the Indemnitee. |
| (f) | Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power. Subject to Section 3, the Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial action if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense, conduct and/or settlement of such action. |
| 6 | Limitations on Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee: |
| (a) | in connection with any Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, unless (i) the Board authorized the Proceeding prior to its initiation or (ii) the Proceeding is to enforce indemnification rights under this Agreement, the Articles, applicable law or otherwise and either (A) Indemnitee is successful in such Proceeding in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of Expenses hereunder (in which case such indemnification or advancement shall be to the fullest extent permitted by this Agreement) or (B) the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his or her right to indemnification, Indemnitee is entitled to indemnity for such expenses (in which case such indemnification or advancement shall be to the extent provided by such court); |
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| (b) | in connection with the Indemnitee preparing to serve or serving, prior to a Change in Control, as a witness in voluntary cooperation with any non-governmental or non-regulatory party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification may be provided by the Company if the Board finds it to be appropriate; |
| (c) | for which payment has actually been made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance policy; |
| (d) | for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Act or similar provisions of any foreign or United States federal, state or local statute or regulation; |
| (e) | for which the Indemnitee is indemnified and actually paid other than pursuant to this Agreement; |
| (f) | for conduct that is finally adjudged (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to have been caused by the Indemnitee’s dishonesty, willful default or fraud, including, without limitation, breach of the duty of loyalty, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper; |
| (g) | if a court of competent jurisdiction finally determines that such indemnification is unlawful (as to which all rights of appeal therefrom have been exhausted or lapsed). In this respect, the Company and the Indemnitee have been advised that the Securities and Exchange Commission (the “SEC”) takes the position that indemnification for liabilities arising under securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication; |
| (h) | in connection with the Indemnitee’s personal tax matters; |
| (i) | subject to the proviso in Section 6(a) hereof, in connection with any dispute or breach arising under any contract or similar obligation between the Company or any of its subsidiaries or affiliates and such Indemnitee; or |
| (j) | in connection with any reimbursement made by Indemnitee to the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), Section 306 of the Sarbanes-Oxley Act or Section 954 of the Dodd–Frank Wall Street Reform and Consumer Protection Act and the rules promulgated by the SEC thereunder. |
| 7 | Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’ insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
| 8 | No Employment Rights. Nothing in this Agreement is intended to create in the Indemnitee any right to continued employment with the Company. |
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| 9 | Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is a director of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee is or was a director of the Company or is or was serving in any other capacity referred to in this Section 9. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as a director of the Company or as an agent of another enterprise at the Company’s request. |
| 10 | Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Articles, any agreement, vote of shareholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office. |
| 11 | Other Indemnity Agreement. Other than this Agreement, the Company has not entered into as of the date hereof, and shall not enter into following the date hereof, any indemnification agreement or side letter or other similar agreement or arrangement (collectively, an “Indemnity Agreement”), or amend any existing Indemnity Agreement, with any existing or future director/executive officer of the Company that has the effect of establishing rights or otherwise benefiting such director/executive officer in a manner more favorable in any respect than the rights and benefits established in favor of the Indemnitee by this Agreement, unless, in each such case, the Indemnitee is offered the opportunity to receive the rights and benefits of such Indemnity Agreement. All Indemnity Agreements shall be in writing. |
| 12 | Assignment; Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party thereto without the prior written consent of the other party, except that the Company may, without such consent, assign all such rights and obligations to a successor in interest to the Company which assumes all obligations of the Company under this Agreement in a written agreement in form and substance satisfactory to the Indemnitee. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the parties hereto and the Company’s successors (including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, as well as the Indemnitee’s spouses, heirs, and personal and legal representatives. |
| 13 | Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights. |
| 14 | Assumption of Liabilities. The Company and the Indemnitee hereby acknowledge and agree that the Company has assumed and is subject to all of the obligations, liabilities and duties of HPX Corp., all as provided under the Companies Act (As Revised) of the Cayman Islands, including but not limited to any indemnity obligations of HPX Corp. under its Amended and Restated Memorandum and Articles of Association as well as under certain indemnity agreements entered into by HPX Corp. with its directors and officers, including Carlos Augusto Leone Piani, among others. |
| 15 | Severability. Each and every section, sentence, term and provision of this Agreement is separate and distinct so that if any section, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, lawfulness or enforceability of any other section, sentence, term or provision hereof. To the extent required, any section, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. |
| 16 | Savings Clause. If this Agreement or any section, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable section, sentence, term or provision of this Agreement that has not been invalidated or (b) applicable law. |
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| 17 | Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with Cayman Islands laws without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. |
| 18 | Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles, or by other agreements, including directors’ and officers’ liability insurance policies, of the Company. |
| 19 | Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. Delivery by electronic transmission to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. |
| 20 | Notices. Any notice required to be given under this Agreement shall be directed to the Company at c/o Ambipar Emergency Response, Avenida Angélica, nº 2346, 5th floor, room 4, Consolação, 01228-200, São Paulo - SP Brazil (Attention of Luciana Freire Barca Nascimento and Alessandra Bessa Alves de Melo), and to the Indemnitee at or to such other address as the Indemnitee shall designate to the Company in writing. |
| 21 | Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern. |
| 22 | Additional Acts. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement. |
| 23 | Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. |
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IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as a deed on the date first written above.
| Executed and delivered as a deed | ||
| AMBIPAR EMERGENCY RESPONSE | ||
| By: | /s/ Thiago da Costa Silva | |
| Name: Thiago da Costa Silva | ||
| Office: Director | ||
| Executed and delivered as a deed | ||
| INDEMNITEE | ||
| /s/ Carlos Augusto Leone Piani | ||
| Name: Carlos Augusto Leone Piani | ||
| WITNESSED BY: | ||
| /s/ Rafael Santo | ||
| Name: Rafael Santo | ||
| Title: Chief Financial Officer | ||
[Signature Page to Indemnity Agreement]
Exhibit 4.25
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made as of March 3, 2023, by and between Victor Almeida and Ambipar Emergency Response, a Cayman Islands exempted company incorporated with limited liability (the “Company”), and (the “Indemnitee”), a director of the Company.
WHEREAS, the Indemnitee has agreed to serve as a director of the Company and in such capacity will render valuable services to the Company; and
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its Subsidiaries (as defined below) from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among publicly traded corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The amended and restated memorandum and articles of association of the company (the “Articles”) provide for the indemnification of the officers and directors of the Company. The Articles expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, while the Articles provide for the indemnification of the officers and directors of the Company and the Articles provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve, or continue to serve, as a director of the Company, the Company and the Indemnitee hereby agree as follows:
| 1 | Definitions. As used in this Agreement: |
| (a) | A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events: |
| (i) | Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors; |
| (ii) | Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board; |
| (iii) | Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; |
| (iv) | Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and |
| (v) | Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. |
| (vi) | For purposes of this Section 2(b), the following terms have the following meanings: |
| (1) | “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. |
| (2) | “Person” has the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company. |
| (3) | “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company with another entity. |
| (b) | The term “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee. |
| (c) | The term “Expenses” shall mean any expense, liability or loss, including, without limitation, damages, judgments, fines, penalties, settlements (if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, conditioned or delayed) and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations, liabilities, losses, taxes, any expense paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any taxes, interests, assessments or other charges imposed as a result of the actual or deemed receipt of any payment under this Agreement. |
| (d) | The term “Independent Legal Counsel” shall mean any attorney or firm of attorneys that is reasonably selected by the Board and approved by the Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed), so long as such firm is not presently representing and has not in the preceding five (5) years represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company in any matter material to any such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Articles, which became effective immediately after the Company’s initial public offering, applicable law or otherwise. |
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| (e) | The term “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, hearing or any other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), in which the Indemnitee was, is or will be involved as a party or otherwise, by reason of (i) the fact that the Indemnitee is or was a director (or a director appointee) or an executive officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, (ii) any actual or alleged act or omission or neglect or breach of duty, including, without limitation, any actual or alleged error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in any such capacity, or (iii) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Articles, applicable law or otherwise, in each case whether or not the Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. |
| (f) | The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director or an executive officer of the Company which imposes duties on, or involves services by, such director or executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company. |
| (g) | Sections 8 and 19(3) of the Electronic Transactions Act (As Revised) shall not apply. |
| 2 | Indemnification. Subject to Section 6 below, the Company hereby agrees to hold harmless and indemnify the Indemnitee to the fullest extent permitted by Cayman Islands law in effect on the date hereof and as amended from time to time (“Law”). In furtherance of the foregoing indemnification and without limiting the generality thereof: |
| (a) | Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (b) | Proceedings Other than Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other than a Proceeding by or in the right of the Company) against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
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| (c) | Indemnification for Expenses of Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee, has prepared to serve or has served as a witness or is made to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith, in each case, to the maximum extent permitted by Law. |
| (d) | Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Proceedings, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled, in each case, to the maximum extent permitted by Law. |
| 3 | Contribution. If the indemnification provided in Section 2 above is unavailable to Indemnitee for any reason (other than those set forth in Section 6 below) in connection with a Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company, in lieu of indemnifying Indemnitee thereunder, shall, to the maximum extent permitted by Law, contribute to the amount of Expenses which are actually and reasonably incurred and paid or payable by the Indemnitee in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and the Indemnitee and/or (ii) the relative fault of the Company and such Indemnitee in connection with the transaction or events from which such Proceeding arose. The relative fault of the Company and the Indemnitee shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. |
| 4 | Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee (but in any event no later than thirty (30) days after such request) to the fullest extent permitted by Law; provided, however, that the Indemnitee shall set forth in such request reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding and an undertaking (which shall not require any security) in writing to repay any advances if it is ultimately determined as provided in subsection 5(b) of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement, the Articles, applicable law or otherwise. |
| 5 | Indemnification Procedure; Determination of Right to Indemnification. |
| (a) | Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify. |
| (b) | The Indemnitee shall be conclusively presumed to be entitled to indemnification under this Agreement unless a determination is made that the Indemnitee is not entitled to indemnification under Law by one of the following two methods, which shall be at the election of the Indemnitee: (i) by a majority vote of the Board of a quorum consisting of Disinterested Directors or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, the Indemnitee so directs, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. |
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| (c) | If (i) a determination is made that the Indemnitee is not entitled to indemnification under this Agreement or (ii) a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the Indemnitee is entitled to an adjudication in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct shall be a defense to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein. |
| (d) | If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall to the maximum extent permitted by Law pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings). |
| (e) | With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Indemnitee shall have the right to employ his own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of a Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a proceeding, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be advanced by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded in his/her sole discretion that there may be a conflict of interest between the Company and the Indemnitee. |
| (f) | Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power. Subject to Section 3, the Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial action if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense, conduct and/or settlement of such action. |
| 6 | Limitations on Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee: |
| (a) | in connection with any Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, unless (i) the Board authorized the Proceeding prior to its initiation or (ii) the Proceeding is to enforce indemnification rights under this Agreement, the Articles, applicable law or otherwise and either (A) Indemnitee is successful in such Proceeding in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of Expenses hereunder (in which case such indemnification or advancement shall be to the fullest extent permitted by this Agreement) or (B) the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his or her right to indemnification, Indemnitee is entitled to indemnity for such expenses (in which case such indemnification or advancement shall be to the extent provided by such court); |
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| (b) | in connection with the Indemnitee preparing to serve or serving, prior to a Change in Control, as a witness in voluntary cooperation with any non-governmental or non-regulatory party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification may be provided by the Company if the Board finds it to be appropriate; |
| (c) | for which payment has actually been made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance policy; |
| (d) | for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Act or similar provisions of any foreign or United States federal, state or local statute or regulation; |
| (e) | for which the Indemnitee is indemnified and actually paid other than pursuant to this Agreement; |
| (f) | for conduct that is finally adjudged (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to have been caused by the Indemnitee’s dishonesty, willful default or fraud, including, without limitation, breach of the duty of loyalty, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper; |
| (g) | if a court of competent jurisdiction finally determines that such indemnification is unlawful (as to which all rights of appeal therefrom have been exhausted or lapsed). In this respect, the Company and the Indemnitee have been advised that the Securities and Exchange Commission (the “SEC”) takes the position that indemnification for liabilities arising under securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication; |
| (h) | in connection with the Indemnitee’s personal tax matters; |
| (i) | subject to the proviso in Section 6(a) hereof, in connection with any dispute or breach arising under any contract or similar obligation between the Company or any of its subsidiaries or affiliates and such Indemnitee; or |
| (j) | in connection with any reimbursement made by Indemnitee to the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), Section 306 of the Sarbanes-Oxley Act or Section 954 of the Dodd–Frank Wall Street Reform and Consumer Protection Act and the rules promulgated by the SEC thereunder. |
| 7 | Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’ insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
| 8 | No Employment Rights. Nothing in this Agreement is intended to create in the Indemnitee any right to continued employment with the Company. |
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| 9 | Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is a director of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee is or was a director of the Company or is or was serving in any other capacity referred to in this Section 9. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as a director of the Company or as an agent of another enterprise at the Company’s request. |
| 10 | Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Articles, any agreement, vote of shareholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office. |
| 11 | Other Indemnity Agreement. Other than this Agreement, the Company has not entered into as of the date hereof, and shall not enter into following the date hereof, any indemnification agreement or side letter or other similar agreement or arrangement (collectively, an “Indemnity Agreement”), or amend any existing Indemnity Agreement, with any existing or future director/executive officer of the Company that has the effect of establishing rights or otherwise benefiting such director/executive officer in a manner more favorable in any respect than the rights and benefits established in favor of the Indemnitee by this Agreement, unless, in each such case, the Indemnitee is offered the opportunity to receive the rights and benefits of such Indemnity Agreement. All Indemnity Agreements shall be in writing. |
| 12 | Assignment; Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party thereto without the prior written consent of the other party, except that the Company may, without such consent, assign all such rights and obligations to a successor in interest to the Company which assumes all obligations of the Company under this Agreement in a written agreement in form and substance satisfactory to the Indemnitee. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the parties hereto and the Company’s successors (including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, as well as the Indemnitee’s spouses, heirs, and personal and legal representatives. |
| 13 | Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights. |
| 14 | Severability. Each and every section, sentence, term and provision of this Agreement is separate and distinct so that if any section, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, lawfulness or enforceability of any other section, sentence, term or provision hereof. To the extent required, any section, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. |
| 15 | Savings Clause. If this Agreement or any section, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable section, sentence, term or provision of this Agreement that has not been invalidated or (b) applicable law. |
| 16 | Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with Cayman Islands laws without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. |
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| 17 | Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles, or by other agreements, including directors’ and officers’ liability insurance policies, of the Company. |
| 18 | Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. Delivery by electronic transmission to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. |
| 19 | Notices. Any notice required to be given under this Agreement shall be directed to the Company at c/o Ambipar Emergency Response, Avenida Angélica, nº 2346, 5th floor, room 4, Consolação, 01228-200, São Paulo - SP Brazil (Attention of Luciana Freire Barca Nascimento and Alessandra Bessa Alves de Melo), and to the Indemnitee at or to such other address as the Indemnitee shall designate to the Company in writing. |
| 20 | Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern. |
| 21 | Additional Acts. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement. |
| 22 | Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. |
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IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as a deed on the date first written above.
| Executed and delivered as a deed | ||
| AMBIPAR EMERGENCY RESPONSE | ||
| By: | /s/ Thiago da Costa Silva | |
| Name: Thiago da Costa Silva | ||
| Office: Director | ||
| Executed and delivered as a deed | ||
| INDEMNITEE | ||
| /s/ Victor Almeida | ||
| Name: Victor Almeida | ||
| WITNESSED BY: | ||
| /s/ Patricia Marina Martins Rodrigues | ||
| Name: Patricia Marina Martins Rodrigues | ||
| Title: Legal Counsel | ||
[Signature Page to Indemnity Agreement]
Exhibit 4.26
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made as of March 3, 2023, by and between Yuri Keiserman and Ambipar Emergency Response, a Cayman Islands exempted company incorporated with limited liability (the “Company”), and (the “Indemnitee”), an executive officer of the Company.
WHEREAS, the Indemnitee has agreed to serve as an executive officer of the Company and in such capacity will render valuable services to the Company; and
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its Subsidiaries (as defined below) from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among publicly traded corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The amended and restated memorandum and articles of association of the company (the “Articles”) provide for the indemnification of the officers and directors of the Company. The Articles expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, while the Articles provide for the indemnification of the officers and directors of the Company and the Articles provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve, or continue to serve, as an executive officer of the Company, the Company and the Indemnitee hereby agree as follows:
| 1 | Definitions. As used in this Agreement: |
| (a) | A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events: |
| (i) | Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors; |
| (ii) | Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board; |
| (iii) | Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; |
| (iv) | Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and |
| (v) | Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. |
| (vi) | For purposes of this Section 2(b), the following terms have the following meanings: |
| (1) | “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. |
| (2) | “Person” has the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company. |
| (3) | “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company with another entity. |
| (b) | The term “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee. |
| (c) | The term “Expenses” shall mean any expense, liability or loss, including, without limitation, damages, judgments, fines, penalties, settlements (if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, conditioned or delayed) and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations, liabilities, losses, taxes, any expense paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any taxes, interests, assessments or other charges imposed as a result of the actual or deemed receipt of any payment under this Agreement. |
| (d) | The term “Independent Legal Counsel” shall mean any attorney or firm of attorneys that is reasonably selected by the Board and approved by the Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed), so long as such firm is not presently representing and has not in the preceding five (5) years represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company in any matter material to any such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Articles, which became effective immediately after the Company’s initial public offering, applicable law or otherwise. |
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| (e) | The term “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, hearing or any other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), in which the Indemnitee was, is or will be involved as a party or otherwise, by reason of (i) the fact that the Indemnitee is or was a director (or a director appointee) or an executive officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, (ii) any actual or alleged act or omission or neglect or breach of duty, including, without limitation, any actual or alleged error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in any such capacity, or (iii) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Articles, applicable law or otherwise, in each case whether or not the Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. |
| (f) | The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director or an executive officer of the Company which imposes duties on, or involves services by, such director or executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company. |
| (g) | Sections 8 and 19(3) of the Electronic Transactions Act (As Revised) shall not apply. |
| 2 | Indemnification. Subject to Section 6 below, the Company hereby agrees to hold harmless and indemnify the Indemnitee to the fullest extent permitted by Cayman Islands law in effect on the date hereof and as amended from time to time (“Law”). In furtherance of the foregoing indemnification and without limiting the generality thereof: |
| (a) | Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (b) | Proceedings Other than Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other than a Proceeding by or in the right of the Company) against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
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| (c) | Indemnification for Expenses of Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee, has prepared to serve or has served as a witness or is made to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith, in each case, to the maximum extent permitted by Law. |
| (d) | Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Proceedings, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled, in each case, to the maximum extent permitted by Law. |
| 3 | Contribution. If the indemnification provided in Section 2 above is unavailable to Indemnitee for any reason (other than those set forth in Section 6 below) in connection with a Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company, in lieu of indemnifying Indemnitee thereunder, shall, to the maximum extent permitted by Law, contribute to the amount of Expenses which are actually and reasonably incurred and paid or payable by the Indemnitee in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and the Indemnitee and/or (ii) the relative fault of the Company and such Indemnitee in connection with the transaction or events from which such Proceeding arose. The relative fault of the Company and the Indemnitee shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. |
| 4 | Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee (but in any event no later than thirty (30) days after such request) to the fullest extent permitted by Law; provided, however, that the Indemnitee shall set forth in such request reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding and an undertaking (which shall not require any security) in writing to repay any advances if it is ultimately determined as provided in subsection 5(b) of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement, the Articles, applicable law or otherwise. |
| 5 | Indemnification Procedure; Determination of Right to Indemnification. |
| (a) | Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify. |
| (b) | The Indemnitee shall be conclusively presumed to be entitled to indemnification under this Agreement unless a determination is made that the Indemnitee is not entitled to indemnification under Law by one of the following two methods, which shall be at the election of the Indemnitee: (i) by a majority vote of the Board of a quorum consisting of Disinterested Directors or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, the Indemnitee so directs, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. |
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| (c) | If (i) a determination is made that the Indemnitee is not entitled to indemnification under this Agreement or (ii) a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the Indemnitee is entitled to an adjudication in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct shall be a defense to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein. |
| (d) | If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall to the maximum extent permitted by Law pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings). |
| (e) | With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Indemnitee shall have the right to employ his own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of a Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a proceeding, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be advanced by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded in his/her sole discretion that there may be a conflict of interest between the Company and the Indemnitee. |
| (f) | Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power. Subject to Section 3, the Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial action if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense, conduct and/or settlement of such action. |
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| 6 | Limitations on Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee: |
| (a) | in connection with any Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, unless (i) the Board authorized the Proceeding prior to its initiation or (ii) the Proceeding is to enforce indemnification rights under this Agreement, the Articles, applicable law or otherwise and either (A) Indemnitee is successful in such Proceeding in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of Expenses hereunder (in which case such indemnification or advancement shall be to the fullest extent permitted by this Agreement) or (B) the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his or her right to indemnification, Indemnitee is entitled to indemnity for such expenses (in which case such indemnification or advancement shall be to the extent provided by such court); |
| (b) | in connection with the Indemnitee preparing to serve or serving, prior to a Change in Control, as a witness in voluntary cooperation with any non-governmental or non-regulatory party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification may be provided by the Company if the Board finds it to be appropriate; |
| (c) | for which payment has actually been made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance policy; |
| (d) | for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Act or similar provisions of any foreign or United States federal, state or local statute or regulation; |
| (e) | for which the Indemnitee is indemnified and actually paid other than pursuant to this Agreement; |
| (f) | for conduct that is finally adjudged (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to have been caused by the Indemnitee’s dishonesty, willful default or fraud, including, without limitation, breach of the duty of loyalty, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper; |
| (g) | if a court of competent jurisdiction finally determines that such indemnification is unlawful (as to which all rights of appeal therefrom have been exhausted or lapsed). In this respect, the Company and the Indemnitee have been advised that the Securities and Exchange Commission (the “SEC”) takes the position that indemnification for liabilities arising under securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication; |
| (h) | in connection with the Indemnitee’s personal tax matters; |
| (i) | subject to the proviso in Section 6(a) hereof, in connection with any dispute or breach arising under any contract or similar obligation between the Company or any of its subsidiaries or affiliates and such Indemnitee; or |
| (j) | in connection with any reimbursement made by Indemnitee to the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), Section 306 of the Sarbanes-Oxley Act or Section 954 of the Dodd–Frank Wall Street Reform and Consumer Protection Act and the rules promulgated by the SEC thereunder. |
| 7 | Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’ insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
| 8 | No Employment Rights. Nothing in this Agreement is intended to create in the Indemnitee any right to continued employment with the Company. |
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| 9 | Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is an executive officer of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee is or was an executive officer of the Company or is or was serving in any other capacity referred to in this Section 9. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as an executive officer of the Company or as an agent of another enterprise at the Company’s request. |
| 10 | Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Articles, any agreement, vote of shareholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office. |
| 11 | Other Indemnity Agreement. Other than this Agreement, the Company has not entered into as of the date hereof, and shall not enter into following the date hereof, any indemnification agreement or side letter or other similar agreement or arrangement (collectively, an “Indemnity Agreement”), or amend any existing Indemnity Agreement, with any existing or future director/executive officer of the Company that has the effect of establishing rights or otherwise benefiting such director/executive officer in a manner more favorable in any respect than the rights and benefits established in favor of the Indemnitee by this Agreement, unless, in each such case, the Indemnitee is offered the opportunity to receive the rights and benefits of such Indemnity Agreement. All Indemnity Agreements shall be in writing. |
| 12 | Assignment; Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party thereto without the prior written consent of the other party, except that the Company may, without such consent, assign all such rights and obligations to a successor in interest to the Company which assumes all obligations of the Company under this Agreement in a written agreement in form and substance satisfactory to the Indemnitee. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the parties hereto and the Company’s successors (including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, as well as the Indemnitee’s spouses, heirs, and personal and legal representatives. |
| 13 | Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights. |
| 14 | Severability. Each and every section, sentence, term and provision of this Agreement is separate and distinct so that if any section, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, lawfulness or enforceability of any other section, sentence, term or provision hereof. To the extent required, any section, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. |
| 15 | Savings Clause. If this Agreement or any section, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable section, sentence, term or provision of this Agreement that has not been invalidated or (b) applicable law. |
| 16 | Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with Cayman Islands laws without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. |
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| 17 | Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles, or by other agreements, including directors’ and officers’ liability insurance policies, of the Company. |
| 18 | Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. Delivery by electronic transmission to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. |
| 19 | Notices. Any notice required to be given under this Agreement shall be directed to the Company at c/o Ambipar Emergency Response, Avenida Angélica, nº 2346, 5th floor, room 4, Consolação, 01228-200, São Paulo - SP Brazil (Attention of Luciana Freire Barca Nascimento and Alessandra Bessa Alves de Melo), and to the Indemnitee at or to such other address as the Indemnitee shall designate to the Company in writing. |
| 20 | Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern. |
| 21 | Additional Acts. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement. |
| 22 | Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. |
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IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as a deed on the date first written above.
| Executed and delivered as a deed | ||
| AMBIPAR EMERGENCY RESPONSE | ||
| By: | /s/ Thiago da Costa Silva | |
| Name: Thiago da Costa Silva | ||
| Office: Director | ||
| Executed and delivered as a deed | ||
| INDEMNITEE | ||
| /s/ Yuri Keiserman | ||
| Name: Yuri Keiserman | ||
| WITNESSED BY: | ||
| /s/ Ana Paula Gomes | ||
| Name: Ana Paula Gomes | ||
| Title: Lawyer | ||
[Signature Page to Indemnity Agreement]
Exhibit 4.27
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made as of March 3, 2023, by Rafael Espírito Santo and between Ambipar Emergency Response, a Cayman Islands exempted company incorporated with limited liability (the “Company”), and (the “Indemnitee”), an executive officer of the Company.
WHEREAS, the Indemnitee has agreed to serve as an executive officer of the Company and in such capacity will render valuable services to the Company; and
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its Subsidiaries (as defined below) from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among publicly traded corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The amended and restated memorandum and articles of association of the company (the “Articles”) provide for the indemnification of the officers and directors of the Company. The Articles expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, while the Articles provide for the indemnification of the officers and directors of the Company and the Articles provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve, or continue to serve, as an executive officer of the Company, the Company and the Indemnitee hereby agree as follows:
| 1 | Definitions. As used in this Agreement: |
| (a) | A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events: |
| (i) | Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors; |
| (ii) | Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board; |
| (iii) | Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; |
| (iv) | Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and |
| (v) | Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. |
| (vi) | For purposes of this Section 2(b), the following terms have the following meanings: |
| (1) | “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. |
| (2) | “Person” has the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company. |
| (3) | “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company with another entity. |
| (b) | The term “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee. |
| (c) | The term “Expenses” shall mean any expense, liability or loss, including, without limitation, damages, judgments, fines, penalties, settlements (if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, conditioned or delayed) and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations, liabilities, losses, taxes, any expense paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any taxes, interests, assessments or other charges imposed as a result of the actual or deemed receipt of any payment under this Agreement. |
| (d) | The term “Independent Legal Counsel” shall mean any attorney or firm of attorneys that is reasonably selected by the Board and approved by the Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed), so long as such firm is not presently representing and has not in the preceding five (5) years represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company in any matter material to any such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Articles, which became effective immediately after the Company’s initial public offering, applicable law or otherwise. |
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| (e) | The term “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, hearing or any other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), in which the Indemnitee was, is or will be involved as a party or otherwise, by reason of (i) the fact that the Indemnitee is or was a director (or a director appointee) or an executive officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, (ii) any actual or alleged act or omission or neglect or breach of duty, including, without limitation, any actual or alleged error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in any such capacity, or (iii) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Articles, applicable law or otherwise, in each case whether or not the Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. |
| (f) | The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director or an executive officer of the Company which imposes duties on, or involves services by, such director or executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company. |
| (g) | Sections 8 and 19(3) of the Electronic Transactions Act (As Revised) shall not apply. |
| 2 | Indemnification. Subject to Section 6 below, the Company hereby agrees to hold harmless and indemnify the Indemnitee to the fullest extent permitted by Cayman Islands law in effect on the date hereof and as amended from time to time (“Law”). In furtherance of the foregoing indemnification and without limiting the generality thereof: |
| (a) | Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (b) | Proceedings Other than Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other than a Proceeding by or in the right of the Company) against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
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| (c) | Indemnification for Expenses of Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee, has prepared to serve or has served as a witness or is made to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith, in each case, to the maximum extent permitted by Law. |
| (d) | Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Proceedings, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled, in each case, to the maximum extent permitted by Law. |
| 3 | Contribution. If the indemnification provided in Section 2 above is unavailable to Indemnitee for any reason (other than those set forth in Section 6 below) in connection with a Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company, in lieu of indemnifying Indemnitee thereunder, shall, to the maximum extent permitted by Law, contribute to the amount of Expenses which are actually and reasonably incurred and paid or payable by the Indemnitee in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and the Indemnitee and/or (ii) the relative fault of the Company and such Indemnitee in connection with the transaction or events from which such Proceeding arose. The relative fault of the Company and the Indemnitee shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. |
| 4 | Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee (but in any event no later than thirty (30) days after such request) to the fullest extent permitted by Law; provided, however, that the Indemnitee shall set forth in such request reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding and an undertaking (which shall not require any security) in writing to repay any advances if it is ultimately determined as provided in subsection 5(b) of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement, the Articles, applicable law or otherwise. |
| 5 | Indemnification Procedure; Determination of Right to Indemnification. |
| (a) | Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify. |
| (b) | The Indemnitee shall be conclusively presumed to be entitled to indemnification under this Agreement unless a determination is made that the Indemnitee is not entitled to indemnification under Law by one of the following two methods, which shall be at the election of the Indemnitee: (i) by a majority vote of the Board of a quorum consisting of Disinterested Directors or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, the Indemnitee so directs, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. |
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| (c) | If (i) a determination is made that the Indemnitee is not entitled to indemnification under this Agreement or (ii) a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the Indemnitee is entitled to an adjudication in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct shall be a defense to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein. |
| (d) | If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall to the maximum extent permitted by Law pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings). |
| (e) | With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Indemnitee shall have the right to employ his own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of a Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a proceeding, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be advanced by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded in his/her sole discretion that there may be a conflict of interest between the Company and the Indemnitee. |
| (f) | Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power. Subject to Section 3, the Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial action if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense, conduct and/or settlement of such action. |
| 6 | Limitations on Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee: |
| (a) | in connection with any Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, unless (i) the Board authorized the Proceeding prior to its initiation or (ii) the Proceeding is to enforce indemnification rights under this Agreement, the Articles, applicable law or otherwise and either (A) Indemnitee is successful in such Proceeding in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of Expenses hereunder (in which case such indemnification or advancement shall be to the fullest extent permitted by this Agreement) or (B) the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his or her right to indemnification, Indemnitee is entitled to indemnity for such expenses (in which case such indemnification or advancement shall be to the extent provided by such court); |
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| (b) | in connection with the Indemnitee preparing to serve or serving, prior to a Change in Control, as a witness in voluntary cooperation with any non-governmental or non-regulatory party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification may be provided by the Company if the Board finds it to be appropriate; |
| (c) | for which payment has actually been made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance policy; |
| (d) | for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Act or similar provisions of any foreign or United States federal, state or local statute or regulation; |
| (e) | for which the Indemnitee is indemnified and actually paid other than pursuant to this Agreement; |
| (f) | for conduct that is finally adjudged (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to have been caused by the Indemnitee’s dishonesty, willful default or fraud, including, without limitation, breach of the duty of loyalty, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper; |
| (g) | if a court of competent jurisdiction finally determines that such indemnification is unlawful (as to which all rights of appeal therefrom have been exhausted or lapsed). In this respect, the Company and the Indemnitee have been advised that the Securities and Exchange Commission (the “SEC”) takes the position that indemnification for liabilities arising under securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication; |
| (h) | in connection with the Indemnitee’s personal tax matters; |
| (i) | subject to the proviso in Section 6(a) hereof, in connection with any dispute or breach arising under any contract or similar obligation between the Company or any of its subsidiaries or affiliates and such Indemnitee; or |
| (j) | in connection with any reimbursement made by Indemnitee to the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), Section 306 of the Sarbanes-Oxley Act or Section 954 of the Dodd–Frank Wall Street Reform and Consumer Protection Act and the rules promulgated by the SEC thereunder. |
| 7 | Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’ insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
| 8 | No Employment Rights. Nothing in this Agreement is intended to create in the Indemnitee any right to continued employment with the Company. |
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| 9 | Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is an executive officer of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee is or was an executive officer of the Company or is or was serving in any other capacity referred to in this Section 9. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as an executive officer of the Company or as an agent of another enterprise at the Company’s request. |
| 10 | Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Articles, any agreement, vote of shareholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office. |
| 11 | Other Indemnity Agreement. Other than this Agreement, the Company has not entered into as of the date hereof, and shall not enter into following the date hereof, any indemnification agreement or side letter or other similar agreement or arrangement (collectively, an “Indemnity Agreement”), or amend any existing Indemnity Agreement, with any existing or future director/executive officer of the Company that has the effect of establishing rights or otherwise benefiting such director/executive officer in a manner more favorable in any respect than the rights and benefits established in favor of the Indemnitee by this Agreement, unless, in each such case, the Indemnitee is offered the opportunity to receive the rights and benefits of such Indemnity Agreement. All Indemnity Agreements shall be in writing. |
| 12 | Assignment; Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party thereto without the prior written consent of the other party, except that the Company may, without such consent, assign all such rights and obligations to a successor in interest to the Company which assumes all obligations of the Company under this Agreement in a written agreement in form and substance satisfactory to the Indemnitee. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the parties hereto and the Company’s successors (including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, as well as the Indemnitee’s spouses, heirs, and personal and legal representatives. |
| 13 | Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights. |
| 14 | Severability. Each and every section, sentence, term and provision of this Agreement is separate and distinct so that if any section, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, lawfulness or enforceability of any other section, sentence, term or provision hereof. To the extent required, any section, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. |
| 15 | Savings Clause. If this Agreement or any section, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable section, sentence, term or provision of this Agreement that has not been invalidated or (b) applicable law. |
| 16 | Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with Cayman Islands laws without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. |
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| 17 | Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles, or by other agreements, including directors’ and officers’ liability insurance policies, of the Company. |
| 18 | Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. Delivery by electronic transmission to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. |
| 19 | Notices. Any notice required to be given under this Agreement shall be directed to the Company at c/o Ambipar Emergency Response, Avenida Angélica, nº 2346, 5th floor, room 4, Consolação, 01228-200, São Paulo - SP Brazil (Attention of Luciana Freire Barca Nascimento and Alessandra Bessa Alves de Melo), and to the Indemnitee at or to such other address as the Indemnitee shall designate to the Company in writing. |
| 20 | Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern. |
| 21 | Additional Acts. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement. |
| 22 | Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. |
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IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as a deed on the date first written above.
| Executed and delivered as a deed | ||
| AMBIPAR EMERGENCY RESPONSE | ||
| By: | /s/ Thiago da Costa Silva | |
| Name: Thiago da Costa Silva | ||
| Office: Director | ||
| Executed and delivered as a deed | ||
| INDEMNITEE | ||
| /s/ Rafael Espírito Santo | ||
| Name: Rafael Espírito Santo | ||
| WITNESSED BY: | ||
| /s/ Pedro Petersen | ||
| Name: Pedro Petersen | ||
| Title: Officer | ||
[Signature Page to Indemnity Agreement]
Exhibit 4.28
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made as of March 3, 2023, by and between Guilherme Patini Borlenghi and Ambipar Emergency Response, a Cayman Islands exempted company incorporated with limited liability (the “Company”), and (the “Indemnitee”), an executive officer of the Company.
WHEREAS, the Indemnitee has agreed to serve as an executive officer of the Company and in such capacity will render valuable services to the Company; and
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its Subsidiaries (as defined below) from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among publicly traded corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The amended and restated memorandum and articles of association of the company (the “Articles”) provide for the indemnification of the officers and directors of the Company. The Articles expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, while the Articles provide for the indemnification of the officers and directors of the Company and the Articles provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve, or continue to serve, as an executive officer of the Company, the Company and the Indemnitee hereby agree as follows:
| 1 | Definitions. As used in this Agreement: |
| (a) | A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events: |
| (i) | Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors; |
| (ii) | Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board; |
| (iii) | Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; |
| (iv) | Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and |
| (v) | Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. |
| (vi) | For purposes of this Section 2(b), the following terms have the following meanings: |
| (1) | “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. |
| (2) | “Person” has the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company. |
| (3) | “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company with another entity. |
| (b) | The term “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee. |
| (c) | The term “Expenses” shall mean any expense, liability or loss, including, without limitation, damages, judgments, fines, penalties, settlements (if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, conditioned or delayed) and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations, liabilities, losses, taxes, any expense paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any taxes, interests, assessments or other charges imposed as a result of the actual or deemed receipt of any payment under this Agreement. |
| (d) | The term “Independent Legal Counsel” shall mean any attorney or firm of attorneys that is reasonably selected by the Board and approved by the Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed), so long as such firm is not presently representing and has not in the preceding five (5) years represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company in any matter material to any such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Articles, which became effective immediately after the Company’s initial public offering, applicable law or otherwise. |
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| (e) | The term “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, hearing or any other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), in which the Indemnitee was, is or will be involved as a party or otherwise, by reason of (i) the fact that the Indemnitee is or was a director (or a director appointee) or an executive officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, (ii) any actual or alleged act or omission or neglect or breach of duty, including, without limitation, any actual or alleged error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in any such capacity, or (iii) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Articles, applicable law or otherwise, in each case whether or not the Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. |
| (f) | The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director or an executive officer of the Company which imposes duties on, or involves services by, such director or executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company. |
| (g) | Sections 8 and 19(3) of the Electronic Transactions Act (As Revised) shall not apply. |
| 2 | Indemnification. Subject to Section 6 below, the Company hereby agrees to hold harmless and indemnify the Indemnitee to the fullest extent permitted by Cayman Islands law in effect on the date hereof and as amended from time to time (“Law”). In furtherance of the foregoing indemnification and without limiting the generality thereof: |
| (a) | Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (b) | Proceedings Other than Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other than a Proceeding by or in the right of the Company) against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
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| (c) | Indemnification for Expenses of Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee, has prepared to serve or has served as a witness or is made to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith, in each case, to the maximum extent permitted by Law. |
| (d) | Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Proceedings, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled, in each case, to the maximum extent permitted by Law. |
| 3 | Contribution. If the indemnification provided in Section 2 above is unavailable to Indemnitee for any reason (other than those set forth in Section 6 below) in connection with a Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company, in lieu of indemnifying Indemnitee thereunder, shall, to the maximum extent permitted by Law, contribute to the amount of Expenses which are actually and reasonably incurred and paid or payable by the Indemnitee in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and the Indemnitee and/or (ii) the relative fault of the Company and such Indemnitee in connection with the transaction or events from which such Proceeding arose. The relative fault of the Company and the Indemnitee shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. |
| 4 | Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee (but in any event no later than thirty (30) days after such request) to the fullest extent permitted by Law; provided, however, that the Indemnitee shall set forth in such request reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding and an undertaking (which shall not require any security) in writing to repay any advances if it is ultimately determined as provided in subsection 5(b) of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement, the Articles, applicable law or otherwise. |
| 5 | Indemnification Procedure; Determination of Right to Indemnification. |
| (a) | Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify. |
| (b) | The Indemnitee shall be conclusively presumed to be entitled to indemnification under this Agreement unless a determination is made that the Indemnitee is not entitled to indemnification under Law by one of the following two methods, which shall be at the election of the Indemnitee: (i) by a majority vote of the Board of a quorum consisting of Disinterested Directors or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, the Indemnitee so directs, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. |
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| (c) | If (i) a determination is made that the Indemnitee is not entitled to indemnification under this Agreement or (ii) a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the Indemnitee is entitled to an adjudication in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct shall be a defense to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein. |
| (d) | If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall to the maximum extent permitted by Law pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings). |
| (e) | With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Indemnitee shall have the right to employ his own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of a Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a proceeding, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be advanced by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded in his/her sole discretion that there may be a conflict of interest between the Company and the Indemnitee. |
| (f) | Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power. Subject to Section 3, the Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial action if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense, conduct and/or settlement of such action. |
| 6 | Limitations on Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee: |
| (a) | in connection with any Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, unless (i) the Board authorized the Proceeding prior to its initiation or (ii) the Proceeding is to enforce indemnification rights under this Agreement, the Articles, applicable law or otherwise and either (A) Indemnitee is successful in such Proceeding in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of Expenses hereunder (in which case such indemnification or advancement shall be to the fullest extent permitted by this Agreement) or (B) the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his or her right to indemnification, Indemnitee is entitled to indemnity for such expenses (in which case such indemnification or advancement shall be to the extent provided by such court); |
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| (b) | in connection with the Indemnitee preparing to serve or serving, prior to a Change in Control, as a witness in voluntary cooperation with any non-governmental or non-regulatory party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification may be provided by the Company if the Board finds it to be appropriate; |
| (c) | for which payment has actually been made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance policy; |
| (d) | for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Act or similar provisions of any foreign or United States federal, state or local statute or regulation; |
| (e) | for which the Indemnitee is indemnified and actually paid other than pursuant to this Agreement; |
| (f) | for conduct that is finally adjudged (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to have been caused by the Indemnitee’s dishonesty, willful default or fraud, including, without limitation, breach of the duty of loyalty, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper; |
| (g) | if a court of competent jurisdiction finally determines that such indemnification is unlawful (as to which all rights of appeal therefrom have been exhausted or lapsed). In this respect, the Company and the Indemnitee have been advised that the Securities and Exchange Commission (the “SEC”) takes the position that indemnification for liabilities arising under securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication; |
| (h) | in connection with the Indemnitee’s personal tax matters; |
| (i) | subject to the proviso in Section 6(a) hereof, in connection with any dispute or breach arising under any contract or similar obligation between the Company or any of its subsidiaries or affiliates and such Indemnitee; or |
| (j) | in connection with any reimbursement made by Indemnitee to the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), Section 306 of the Sarbanes-Oxley Act or Section 954 of the Dodd–Frank Wall Street Reform and Consumer Protection Act and the rules promulgated by the SEC thereunder. |
| 7 | Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’ insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
| 8 | No Employment Rights. Nothing in this Agreement is intended to create in the Indemnitee any right to continued employment with the Company. |
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| 9 | Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is an executive officer of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee is or was an executive officer of the Company or is or was serving in any other capacity referred to in this Section 9. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as an executive officer of the Company or as an agent of another enterprise at the Company’s request. |
| 10 | Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Articles, any agreement, vote of shareholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office. |
| 11 | Other Indemnity Agreement. Other than this Agreement, the Company has not entered into as of the date hereof, and shall not enter into following the date hereof, any indemnification agreement or side letter or other similar agreement or arrangement (collectively, an “Indemnity Agreement”), or amend any existing Indemnity Agreement, with any existing or future director/executive officer of the Company that has the effect of establishing rights or otherwise benefiting such director/executive officer in a manner more favorable in any respect than the rights and benefits established in favor of the Indemnitee by this Agreement, unless, in each such case, the Indemnitee is offered the opportunity to receive the rights and benefits of such Indemnity Agreement. All Indemnity Agreements shall be in writing. |
| 12 | Assignment; Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party thereto without the prior written consent of the other party, except that the Company may, without such consent, assign all such rights and obligations to a successor in interest to the Company which assumes all obligations of the Company under this Agreement in a written agreement in form and substance satisfactory to the Indemnitee. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the parties hereto and the Company’s successors (including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, as well as the Indemnitee’s spouses, heirs, and personal and legal representatives. |
| 13 | Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights. |
| 14 | Severability. Each and every section, sentence, term and provision of this Agreement is separate and distinct so that if any section, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, lawfulness or enforceability of any other section, sentence, term or provision hereof. To the extent required, any section, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. |
| 15 | Savings Clause. If this Agreement or any section, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable section, sentence, term or provision of this Agreement that has not been invalidated or (b) applicable law. |
| 16 | Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with Cayman Islands laws without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. |
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| 17 | Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles, or by other agreements, including directors’ and officers’ liability insurance policies, of the Company. |
| 18 | Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. Delivery by electronic transmission to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. |
| 19 | Notices. Any notice required to be given under this Agreement shall be directed to the Company at c/o Ambipar Emergency Response, Avenida Angélica, nº 2346, 5th floor, room 4, Consolação, 01228-200, São Paulo - SP Brazil (Attention of Luciana Freire Barca Nascimento and Alessandra Bessa Alves de Melo), and to the Indemnitee at or to such other address as the Indemnitee shall designate to the Company in writing. |
| 20 | Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern. |
| 21 | Additional Acts. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement. |
| 22 | Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. |
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IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as a deed on the date first written above.
| Executed and delivered as a deed | ||
| AMBIPAR EMERGENCY RESPONSE | ||
| By: | /s/ Thiago da Costa Silva | |
| Name: Thiago da Costa Silva | ||
| Office: Director | ||
| Executed and delivered as a deed | ||
| INDEMNITEE | ||
| /s/ Guilherme Patini Borlenghi | ||
| Name: Guilherme Patini Borlenghi | ||
| WITNESSED BY: | ||
| /s/ Ana Paula Gomes | ||
| Name: Ana Paula Gomes | ||
| Title: Lawyer | ||
[Signature Page to Indemnity Agreement]
Exhibit 4.29
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made as of March 3, 2023, by Pedro Petersen and between Ambipar Emergency Response, a Cayman Islands exempted company incorporated with limited liability (the “Company”), and (the “Indemnitee”), an executive officer of the Company.
WHEREAS, the Indemnitee has agreed to serve as an executive officer of the Company and in such capacity will render valuable services to the Company; and
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its Subsidiaries (as defined below) from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among publicly traded corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The amended and restated memorandum and articles of association of the company (the “Articles”) provide for the indemnification of the officers and directors of the Company. The Articles expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, while the Articles provide for the indemnification of the officers and directors of the Company and the Articles provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve, or continue to serve, as an executive officer of the Company, the Company and the Indemnitee hereby agree as follows:
| 1 | Definitions. As used in this Agreement: |
| (a) | A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events: |
| (i) | Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors; |
| (ii) | Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board; |
| (iii) | Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; |
| (iv) | Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and |
| (v) | Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. |
| (vi) | For purposes of this Section 2(b), the following terms have the following meanings: |
| (1) | “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. |
| (2) | “Person” has the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company. |
| (3) | “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company with another entity. |
| (b) | The term “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee. |
| (c) | The term “Expenses” shall mean any expense, liability or loss, including, without limitation, damages, judgments, fines, penalties, settlements (if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, conditioned or delayed) and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations, liabilities, losses, taxes, any expense paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any taxes, interests, assessments or other charges imposed as a result of the actual or deemed receipt of any payment under this Agreement. |
| (d) | The term “Independent Legal Counsel” shall mean any attorney or firm of attorneys that is reasonably selected by the Board and approved by the Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed), so long as such firm is not presently representing and has not in the preceding five (5) years represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company in any matter material to any such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Articles, which became effective immediately after the Company’s initial public offering, applicable law or otherwise. |
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| (e) | The term “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, hearing or any other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), in which the Indemnitee was, is or will be involved as a party or otherwise, by reason of (i) the fact that the Indemnitee is or was a director (or a director appointee) or an executive officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, (ii) any actual or alleged act or omission or neglect or breach of duty, including, without limitation, any actual or alleged error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in any such capacity, or (iii) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Articles, applicable law or otherwise, in each case whether or not the Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. |
| (f) | The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director or an executive officer of the Company which imposes duties on, or involves services by, such director or executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company. |
| (g) | Sections 8 and 19(3) of the Electronic Transactions Act (As Revised) shall not apply. |
| 2 | Indemnification. Subject to Section 6 below, the Company hereby agrees to hold harmless and indemnify the Indemnitee to the fullest extent permitted by Cayman Islands law in effect on the date hereof and as amended from time to time (“Law”). In furtherance of the foregoing indemnification and without limiting the generality thereof: |
| (a) | Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (b) | Proceedings Other than Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other than a Proceeding by or in the right of the Company) against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
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| (c) | Indemnification for Expenses of Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee, has prepared to serve or has served as a witness or is made to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith, in each case, to the maximum extent permitted by Law. |
| (d) | Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Proceedings, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled, in each case, to the maximum extent permitted by Law. |
| 3 | Contribution. If the indemnification provided in Section 2 above is unavailable to Indemnitee for any reason (other than those set forth in Section 6 below) in connection with a Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company, in lieu of indemnifying Indemnitee thereunder, shall, to the maximum extent permitted by Law, contribute to the amount of Expenses which are actually and reasonably incurred and paid or payable by the Indemnitee in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and the Indemnitee and/or (ii) the relative fault of the Company and such Indemnitee in connection with the transaction or events from which such Proceeding arose. The relative fault of the Company and the Indemnitee shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. |
| 4 | Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee (but in any event no later than thirty (30) days after such request) to the fullest extent permitted by Law; provided, however, that the Indemnitee shall set forth in such request reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding and an undertaking (which shall not require any security) in writing to repay any advances if it is ultimately determined as provided in subsection 5(b) of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement, the Articles, applicable law or otherwise. |
| 5 | Indemnification Procedure; Determination of Right to Indemnification. |
| (a) | Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify. |
| (b) | The Indemnitee shall be conclusively presumed to be entitled to indemnification under this Agreement unless a determination is made that the Indemnitee is not entitled to indemnification under Law by one of the following two methods, which shall be at the election of the Indemnitee: (i) by a majority vote of the Board of a quorum consisting of Disinterested Directors or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, the Indemnitee so directs, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. |
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| (c) | If (i) a determination is made that the Indemnitee is not entitled to indemnification under this Agreement or (ii) a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the Indemnitee is entitled to an adjudication in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct shall be a defense to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein. |
| (d) | If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall to the maximum extent permitted by Law pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings). |
| (e) | With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Indemnitee shall have the right to employ his own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of a Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a proceeding, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be advanced by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded in his/her sole discretion that there may be a conflict of interest between the Company and the Indemnitee. |
| (f) | Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power. Subject to Section 3, the Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial action if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense, conduct and/or settlement of such action. |
| 6 | Limitations on Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee: |
| (a) | in connection with any Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, unless (i) the Board authorized the Proceeding prior to its initiation or (ii) the Proceeding is to enforce indemnification rights under this Agreement, the Articles, applicable law or otherwise and either (A) Indemnitee is successful in such Proceeding in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of Expenses hereunder (in which case such indemnification or advancement shall be to the fullest extent permitted by this Agreement) or (B) the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his or her right to indemnification, Indemnitee is entitled to indemnity for such expenses (in which case such indemnification or advancement shall be to the extent provided by such court); |
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| (b) | in connection with the Indemnitee preparing to serve or serving, prior to a Change in Control, as a witness in voluntary cooperation with any non-governmental or non-regulatory party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification may be provided by the Company if the Board finds it to be appropriate; |
| (c) | for which payment has actually been made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance policy; |
| (d) | for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Act or similar provisions of any foreign or United States federal, state or local statute or regulation; |
| (e) | for which the Indemnitee is indemnified and actually paid other than pursuant to this Agreement; |
| (f) | for conduct that is finally adjudged (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to have been caused by the Indemnitee’s dishonesty, willful default or fraud, including, without limitation, breach of the duty of loyalty, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper; |
| (g) | if a court of competent jurisdiction finally determines that such indemnification is unlawful (as to which all rights of appeal therefrom have been exhausted or lapsed). In this respect, the Company and the Indemnitee have been advised that the Securities and Exchange Commission (the “SEC”) takes the position that indemnification for liabilities arising under securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication; |
| (h) | in connection with the Indemnitee’s personal tax matters; |
| (i) | subject to the proviso in Section 6(a) hereof, in connection with any dispute or breach arising under any contract or similar obligation between the Company or any of its subsidiaries or affiliates and such Indemnitee; or |
| (j) | in connection with any reimbursement made by Indemnitee to the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), Section 306 of the Sarbanes-Oxley Act or Section 954 of the Dodd–Frank Wall Street Reform and Consumer Protection Act and the rules promulgated by the SEC thereunder. |
| 7 | Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’ insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
| 8 | No Employment Rights. Nothing in this Agreement is intended to create in the Indemnitee any right to continued employment with the Company. |
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| 9 | Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is an executive officer of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee is or was an executive officer of the Company or is or was serving in any other capacity referred to in this Section 9. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as an executive officer of the Company or as an agent of another enterprise at the Company’s request. |
| 10 | Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Articles, any agreement, vote of shareholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office. |
| 11 | Other Indemnity Agreement. Other than this Agreement, the Company has not entered into as of the date hereof, and shall not enter into following the date hereof, any indemnification agreement or side letter or other similar agreement or arrangement (collectively, an “Indemnity Agreement”), or amend any existing Indemnity Agreement, with any existing or future director/executive officer of the Company that has the effect of establishing rights or otherwise benefiting such director/executive officer in a manner more favorable in any respect than the rights and benefits established in favor of the Indemnitee by this Agreement, unless, in each such case, the Indemnitee is offered the opportunity to receive the rights and benefits of such Indemnity Agreement. All Indemnity Agreements shall be in writing. |
| 12 | Assignment; Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party thereto without the prior written consent of the other party, except that the Company may, without such consent, assign all such rights and obligations to a successor in interest to the Company which assumes all obligations of the Company under this Agreement in a written agreement in form and substance satisfactory to the Indemnitee. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the parties hereto and the Company’s successors (including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, as well as the Indemnitee’s spouses, heirs, and personal and legal representatives. |
| 13 | Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights. |
| 14 | Severability. Each and every section, sentence, term and provision of this Agreement is separate and distinct so that if any section, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, lawfulness or enforceability of any other section, sentence, term or provision hereof. To the extent required, any section, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. |
| 15 | Savings Clause. If this Agreement or any section, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable section, sentence, term or provision of this Agreement that has not been invalidated or (b) applicable law. |
| 16 | Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with Cayman Islands laws without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. |
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| 17 | Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles, or by other agreements, including directors’ and officers’ liability insurance policies, of the Company. |
| 18 | Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. Delivery by electronic transmission to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. |
| 19 | Notices. Any notice required to be given under this Agreement shall be directed to the Company at c/o Ambipar Emergency Response, Avenida Angélica, nº 2346, 5th floor, room 4, Consolação, 01228-200, São Paulo - SP Brazil (Attention of Luciana Freire Barca Nascimento and Alessandra Bessa Alves de Melo), and to the Indemnitee at or to such other address as the Indemnitee shall designate to the Company in writing. |
| 20 | Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern. |
| 21 | Additional Acts. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement. |
| 22 | Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. |
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IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as a deed on the date first written above.
| Executed and delivered as a deed | ||
| AMBIPAR EMERGENCY RESPONSE | ||
| By: | /s/ Thiago da Costa Silva | |
| Name: Thiago da Costa Silva | ||
| Office: Director | ||
| Executed and delivered as a deed | ||
| INDEMNITEE | ||
| /s/ Pedro Petersen | ||
| Name: Pedro Petersen | ||
| WITNESSED BY: | ||
| /s/ Rafael Santo | ||
| Name: Rafael Santo | ||
| Title: Chief Financial Officer | ||
[Signature Page to Indemnity Agreement]
Exhibit 15.1
Unaudited Pro Forma Condensed Combined Financial Information
Capitalized terms used but not defined herein shall have the meanings as terms defined and included elsewhere in the Report and, if not defined in the Report, in the proxy statement/prospectus dated February 3, 2023 (the “Proxy Statement/Prospectus”) filed by New PubCo with the SEC as part of its Registration Statement on Form F-4 (File. No. 333-268795), filed on January 30, 2023.
Introduction
The following unaudited pro forma condensed combined financial information provides additional information regarding the financial aspects of the Business Combination of Emergencia and HPX including the related transactions that fall within the scope of the Business Combination. For additional information about the Business Combination, see the section entitled “Explanatory Note” of the Report. The following unaudited pro forma condensed combined financial information has been prepared in accordance with Article 11 of Regulation S-X as amended by the final rule, Release 33-10786, “Amendments to Financial Disclosures about Acquired and Disposed Businesses.” The unaudited pro forma condensed combined financial information presents the pro forma effects of:
| • | the Business Combination; and |
| • | the WOB Acquisition. |
Description of the Business Combination
On July 5, 2022, Emergencia, Ambipar, New PubCo, Merger Sub and HPX entered into the Business Combination Agreement, which contains customary representations and warranties, covenants, closing conditions, termination provisions and other terms relating to the transactions contemplated thereby.
As contemplated by the Business Combination Agreement and the Contribution Agreement, immediately prior to the First Effective Time, Ambipar contributed all the issued and outstanding equity of Emergencia, in the context of the Pre-Closing Exchange, to Merger Sub, in exchange for the issuance of a certain number of Merger Sub shares. As a result, Emergencia became a wholly owned subsidiary of Merger Sub.
Following the transaction, receipt of HPX shareholder approval and the satisfaction or waiver of certain other closing conditions set forth in the Business Combination Agreement, at the Closing, HPX merged with and into New PubCo, with New PubCo as the surviving entity. Immediately thereafter, Merger Sub merged with and into New PubCo, with New PubCo as the final surviving entity and a “foreign private issuer.”
As a result of the above transactions, Emergencia became a wholly owned subsidiary of New PubCo, and New PubCo became controlled by Ambipar.
For more information about the Business Combination, please see the section entitled “Explanatory Note” of the Report.
Description of the WOB Acquisition
On September 13, 2022, Ambipar USA, Emergencia’s wholly owned subsidiary, entered into a purchase and sale agreement with the WOB Sellers and Seacor to acquire all of the issued and outstanding membership interests in Witt O’Brien’s, LLC for cash, which closed on October 24, 2022. After the consummation of the WOB Acquisition, Witt O’Brien’s, LLC became an indirect wholly owned subsidiary of Emergencia. For further information on the WOB Acquisition and the risks related thereto, see the sections titled “Risk Factors — Risks relating to the WOB Acquisition” and “Business of Emergencia — The WOB Acquisition” included in the Proxy Statement/Prospectus.
Accounting Treatment of the Business Combination
HPX did not meet the definition of a “business” pursuant to IFRS 3 Business Combinations, and therefore the Business Combination was considered as a capital reorganization and accounted for as a share-based payment transaction under IFRS 2 Share-Based Payments. As a result, the difference between the fair value of the equity instruments issued to acquire HPX and the fair value of the identifiable net assets acquired represents a stock exchange listing service of New PubCo, as further discussed in Note 1 to the unaudited pro forma condensed combined financial information. The cost of this service was recognized as an expense immediately upon the consummation of the Business Combination.
Accordingly, the combined financial statements of Emergencia have become the historical financial statements of New PubCo; the assets, liabilities, and results of operations of HPX have been consolidated with New PubCo beginning on the Closing Date. For accounting purposes, the financial statements of New PubCo represent a continuation of the financial statements of Emergencia. The net assets of HPX were stated at historical costs, with no goodwill or other intangible assets recorded. Operations prior to the transaction will be presented as those of Emergencia in future periodic reports of New PubCo.
Accounting Treatment of the WOB Acquisition
The WOB Acquisition was accounted for as a business combination using the acquisition method of accounting in accordance with IFRS 3 Business Combinations. Under this method, New PubCo recorded the fair value of assets acquired and liabilities assumed from Witt O’Brien’s using preliminary estimates. The WOB Acquisition has been consummated as of the date of the preparation of the unaudited pro forma condensed combined financial information.
Prior to the WOB Acquisition, Seacor applied the acquisition method of accounting and elected to pushdown purchase accounting adjustments to Witt O’Brien’s, which is allowed under U.S. GAAP. As part of Witt O’Brien’s conversion from U.S. GAAP to IFRS, these purchase accounting adjustments were reversed. See Note 5 in “— Notes to Unaudited Pro Forma Condensed Combined Financial Information” below for additional information on pro forma adjustments.
Basis of Pro Forma Presentation
The unaudited pro forma condensed combined statement of financial position as of June 30, 2022 gives pro forma effect to the Business Combination and the WOB Acquisition as if they had been consummated as of June 30, 2022. The unaudited pro forma interim condensed combined statements of income for the six months ended June 30, 2022 and unaudited pro forma condensed combined statements of income for the year ended December 31, 2021 give pro forma effect to the Business Combination and the WOB Acquisition as if they had been consummated as of January 1, 2021, the first day of New PubCo’s 2021 fiscal year. This information should be read together with the audited and unaudited historical financial statements of each of Emergencia, HPX, and Witt O’Brien’s, including the notes thereto, as well as the disclosures contained in the sections titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations of Emergencia,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations of HPX,” “Merger Proposals,” and other financial information included in the Proxy Statement/Prospectus.
The unaudited pro forma condensed combined financial information has been prepared to illustrate the estimated effects of the Business Combination, the WOB Acquisition and the related transactions. It sets forth and is derived from the following:
| • | Emergencia’s historical unaudited interim condensed consolidated financial statements as of June 30, 2022 and for the six months ended June 30, 2022 and 2021, included in the Proxy Statement/Prospectus; |
| • | Emergencia’s historical audited combined financial statements as of December 31, 2021, December 31, 2020 and January 1, 2020 and for the years ended December 31, 2021 and 2020, included in the Proxy Statement/Prospectus; |
| • | HPX’s historical unaudited interim condensed financial statements as of June 30, 2022 and for the three and six months ended June 30, 2022 and 2021, included in the Proxy Statement/Prospectus; |
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| • | HPX’s historical financial statements as of December 31, 2021 and 2020 and for the year ended December 31, 2021 and for the period from March 20, 2020 (inception) through December 31, 2020, included in the Proxy Statement/Prospectus; |
| • | Witt O’Brien’s historical unaudited interim condensed consolidated financial statements as of June 30, 2022 and for the six months ended June 30, 2022 and 2021, included elsewhere in the Proxy Statement/Prospectus; |
| • | Witt O’Brien’s historical consolidated financial statements as of December 31, 2021 and 2020, and for the Successor Period April 15, 2021 through December 31, 2021 and the Predecessor Period January 1, 2021 through April 14, 2021 and the year ended December 31, 2020, included in the Proxy Statement/Prospectus; |
| • | Pro forma transaction accounting and financing adjustments to give effect to the Business Combination, the WOB Acquisition and the issuance of New PubCo’s shares contemplated at Closing on New PubCo’s combined statement of financial position as of June 30, 2022, as if the Business Combination and the WOB Acquisition had closed on June 30, 2022; and |
| • | Pro forma adjustments to give effect to the Business Combination, the WOB Acquisition and the issuance of shares contemplated at Closing on New PubCo’s combined statement of income for the six months ended June 30, 2022 and for the year ended December 31, 2021 as if the Business Combination and the WOB Acquisition had closed on January 1, 2021, the first day of New PubCo’s 2021 fiscal year. | |
| • | Pro forma adjustments to give effect to all HPX Redemptions. |
Transaction costs related to the Business Combination include all fees, costs, and expenses, paid or payable, by (a) any of the Group Companies, New PubCo or Merger Sub and (b) HPX or any of its affiliates, prior to and through the Closing Date. New PubCo paid all transaction costs that remain unpaid as of the Closing Date, up to the amount of the expenses cap of R$53.0 million (US$9.5 million) for the Group Companies, New PubCo and Merger Sub and R$47.4 million (US$8.5 million) for HPX and its affiliates. Transaction expenses paid or payable by the Group Companies, New PubCo or Merger Sub exceeded their expenses cap and Ambipar’s shares were adjusted as a result of the excess. The amount of New PubCo Class B Ordinary Shares issued to Ambipar was adjusted downwards by $3,572,446, which is the amount corresponding, at one share for every $10.00, to the transaction expenses incurred by Emergencia in excess of $9,500,000 not reimbursed by Ambipar pursuant to the terms of the Business Combination Agreement. Transaction costs of an equity transaction were accounted for as a deduction from equity. Further, any transaction costs incurred jointly in relation to a concurrent offering of shares and a stock exchange listing were allocated to these transactions using a rational basis of allocation, which is consistent with similar transactions. For pro forma purposes, such costs were recorded as a reduction in cash with a corresponding reduction from equity.
This unaudited pro forma condensed combined financial information has been prepared for illustrative purposes only and is based on assumptions and estimates made and considered appropriate by Emergencia’s and HPX’s management; however, it is not necessarily indicative of what Emergencia’s consolidated financial condition or results of operations would have been assuming the Business Combination and the WOB Acquisition had been consummated as of the dates indicated, nor does it purport to represent the consolidated financial position or results of operations of the combined company for future periods. The audited and unaudited combined financial statements of Emergencia have been derived from Ambipar’s historical accounting records and reflect certain allocation of expenses. All the allocations and estimates in such financial statements are based on assumptions that Emergencia’s management believes are reasonable.
The unaudited pro forma condensed combined financial information may not be useful in predicting the future financial condition and results of operations of New PubCo following the Closing. The adjustments included in this unaudited pro forma condensed combined financial information are preliminary and are subject to change. This unaudited pro forma condensed combined financial information does not contemplate any impacts of any synergies for New PubCo following the Business Combination and the closing of the WOB Acquisition. Future results may vary significantly from the results reflected due to various factors, including those discussed in the section entitled “Risk Factors” of the Proxy Statement/Prospectus.
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The historical financial statements of Emergencia have been prepared in accordance with IFRS and in its presentation currency of the Brazilian reais (R$). The historical financial statements of HPX have been prepared in accordance with U.S. GAAP and in its presentation currency of the U.S. dollar (US$). The condensed combined pro forma financial information reflects IFRS, the basis of accounting to be used by New PubCo, and no material accounting policy difference is identified in converting HPX’s historical financial statements to IFRS. The historical financial statements of Witt O’Brien’s have been prepared in accordance with U.S. GAAP and in its presentation currency of the U.S. dollar (US$). The condensed combined pro forma financial information reflects IFRS, the basis of accounting to be used by New PubCo, and accounting policy differences identified in converting Witt O’Brien’s historical financial statements to IFRS are included at note 4 to the unaudited pro forma condensed combined financial information. The adjustments presented in the pro forma condensed combined financial information have been identified and presented to provide relevant information necessary for an accurate understanding of the combined company after giving effect to the Business Combination and the WOB Acquisition. HPX, Emergencia and Witt O’Brien’s did not have any historical relationship prior to the Business Combination and the WOB Acquisition. Accordingly, no pro forma adjustments were required to eliminate activities between the entities.
The unaudited pro forma condensed combined financial information has been prepared to give effect to the redemption of 19,472,483 HPX Class A Ordinary Shares in connection with the Initial Extension, the redemption of 3,650,973 HPX Class A Ordinary Shares in connection with the Second Extension, and the redemption of 1,258,439 HPX Class A Ordinary Shares in connection with the redemption by HPX shareholders who exercised their redemption rights prior to the the HPX Extraordinary General Meeting (the “Final Redemption”).
The following table summarizes the New PubCo Ordinary Shares and New PubCo Restricted Stock Units issued and outstanding immediately after the Business Combination, exclusive of the exercise of any New PubCo Warrants that will become exercisable on April 2, 2023, which is 30 days after Closing:
Pro Forma Equity Capitalization at Closing(1) | Class A and Class B Ordinary Shares | % | ||||||
| (in millions) | ||||||||
| Ambipar(2) | 39.23 | 70.8 | % | |||||
| HPX public shareholders (other than the Sponsor and its affiliates (consisting of the Insiders and Rafael Grisolia)(3) | 0.96 | 1.7 | % | |||||
| Sponsor and its affiliates (consisting of the Insiders and Rafael Grisolia)(4) | 1.92 | 3.5 | % | |||||
| PIPE Investors(5)(6) | 13.32 | 24.0 | % | |||||
| Total shares of New PubCo common stock outstanding at closing of the Transaction | 55.43 | 100 | % | |||||
| (1) | Excludes New PubCo Warrants. For additional information with respect to the dilutive effects of the New PubCo Warrants, see “Summary of the Proxy Statement/Prospectus — Ownership of New PubCo Upon Completion of the Business Combination” included in the Proxy Statement/Prospectus. |
| (2) | Includes the 34,184,746 New PubCo Class B Ordinary Shares issued to Ambipar at Closing pursuant to the Business Combination Agreement as well as 5,050,000 New PubCo Class B Ordinary Shares subscribed for and purchased by Ambipar as part of the Ambipar PIPE Financing at a purchase price of $10.00 (R$52.38) per share, pursuant to the Ambipar Subscription Agreement. Excludes the Earn-Out Shares. |
| (3) | Includes 37,100 New PubCo Class A Ordinary Shares issued to the Non-Redeeming Shareholders and the XP Non-Redeeming Shareholder in a private placement, on the Closing Date, in consideration of the agreements of such Non-Redeeming Shareholders and XP Non-Redeeming Shareholder under their respective Non-Redemption Agreements and XP Non-Redemption Agreement. |
| (4) | Includes (i) 1,836,100 New PubCo Class A Ordinary Shares held by the Sponsor, (ii) 20,000 New PubCo Class A Ordinary Shares held by each of the three Insiders and (iii) 20,000 fully vested New PubCo Restricted Stock Units that represent 20,000 non-redeemable New PubCo Class A Ordinary Shares that will settle on a date as soon as practicable following Closing but in no event more than 30 days after the Closing Date. |
| (5) | On February 10, 2023, Cygnus sent the Cygnus Notice to HPX and New PubCo whereby, pursuant to the Cygnus Option, it elected not to be bound by the Cygnus Non-Redemption Agreement and instead to subscribe for 300,000 New PubCo Class A Ordinary Shares pursuant to the Cygnus Subscription Agreement for aggregate gross proceeds of $3,000,000. For more information, about the agreement, see the section titled “Explanatory Note” in the Report. |
| (6) | Includes 11,450,000 New PubCo Class A Ordinary Shares issued to the PIPE Investors, including Cygnus, under the PIPE Financing pursuant to the Subscription Agreements, and an additional 1,873,800 New PubCo Class A Ordinary Shares issued to the PIPE Investors, including Cygnus, in consideration of their subscription commitments under their respective Subscription Agreements (1,810,000 of which being issued to Opportunity Agro Fund). |
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The unaudited pro forma condensed combined financial information does not purport to project the future financial position or operating results of New PubCo following the Business Combination and the WOB Acquisition. The unaudited pro forma adjustments represent management’s estimates based on information currently available as of the date of these unaudited pro forma condensed combined financial statements and are subject to change as additional information becomes available and analyses are performed. The assumptions and estimates underlying the unaudited pro forma adjustments are described in the accompanying notes. Actual results may differ materially from the assumptions used, including in respect of the matters further described in Notes 1 and 2, to present the unaudited pro forma condensed combined financial information.
5
UNAUDITED PRO FORMA CONDENSED COMBINED
STATEMENT OF FINANCIAL POSITION
AS OF JUNE 30, 2022
(In thousands of Brazilian reais, except when indicated otherwise)
| Emergencia Historical (IFRS) | HPX Historical (IFRS, See Note 2 for U.S. GAAP to IFRS Conversion) | Witt O’Brien’s Historical (IFRS, See Note 4 for U.S. GAAP to IFRS Conversion) | Transaction Accounting Adjustments | Financing |
Witt O’Brien’s Transaction Accounting Adjustments (See Note 5) | Witt O’Brien’s Financing Adjustments | Pro Forma Combined | Proforma | |||||||||||||||||||||||||||||
| Cash and cash equivalents | R$ | 157,230 | R$ | 4,078 | R$ | 9,046 | R$ | (70,270 | ) | a, b, c (i), c (ii), d, i | R$ | 864,270 | n | R$ | (877,831 | ) | A | R$ | 471,420 | o | R$ | 557,943 | $ | 106,519 | |||||||||||||
| Trade and other receivables | 326,072 | — | 604,900 | — | — | (273,199 | ) | D | — | 657,774 | 125,577 | ||||||||||||||||||||||||||
| Advances to suppliers | 26,561 | — | — | — | — | — | — | 26,561 | 5,071 | ||||||||||||||||||||||||||||
| Prepaid expenses | 18,086 | 302 | 5,458 | — | — | — | — | 23,846 | 4,552 | ||||||||||||||||||||||||||||
| Inventories | 13,408 | — | — | — | — | — | — | 13,408 | 2,560 | ||||||||||||||||||||||||||||
| Other accounts equivalents | 25,539 | — | 1,031 | — | — | — | — | 26,570 | 5,073 | ||||||||||||||||||||||||||||
| Other tax assets | 11,685 | — | — | — | — | — | — | 11,685 | 2,231 | ||||||||||||||||||||||||||||
| Current tax assets | 6,747 | — | — | — | — | — | — | 6,747 | 1,288 | ||||||||||||||||||||||||||||
| Total current assets | 585,328 | 4,380 | 620,436 | (70,270 | ) | 864,270 | (1,151,030 | ) | 471,420 | 1,324,534 | 252,871 | ||||||||||||||||||||||||||
| Marketable securities held in Trust Account | — | 1,327,212 | — | (1,327,212 | ) | a | — | — | — | — | — | ||||||||||||||||||||||||||
| Related party loans | 41,041 | — | — | — | — | — | — | 41,041 | 7,835 | ||||||||||||||||||||||||||||
| Deferred taxes | 6,308 | — | 8,826 | — | — | — | — | 15,134 | 2,889 | ||||||||||||||||||||||||||||
| Judicial deposits | 116 | — | — | — | — | — | — | 116 | 22 | ||||||||||||||||||||||||||||
| Other
accounts receivable | 21,521 | — | — | — | — | — | — | 21,521 | 4,109 | ||||||||||||||||||||||||||||
| Other long term assets | — | — | 10,282 | — | — | — | — | 10,282 | 1,963 | ||||||||||||||||||||||||||||
| Property, plant and equipment | 421,510 | — | 19,637 | — | — | — | — | 441,147 | 84,221 | ||||||||||||||||||||||||||||
| Goodwill | 720,300 | — | 149,314 | — | — | 240,917 | C | — | 1,110,531 | 212,014 | |||||||||||||||||||||||||||
| Intangible assets | 9,945 | — | 30,338 | — | — | 332,132 | C | — | 372,415 | 71,099 | |||||||||||||||||||||||||||
| Total noncurrent assets | 1,220,741 | 1,327,212 | 218,397 | (1,327,212 | ) | — | 573,049 | — | 2,012,187 | 384,152 | |||||||||||||||||||||||||||
| Total assets | R$ | 1,806,069 | R$ | 1,331,592 | R$ | 838,833 | R$ | (1,397,482 | ) | R$ | 864,270 | R$ | (577,981 | ) | R$ | 471,420 | R$ | 3,336,721 | $ | 637,023 | |||||||||||||||||
| Loans and financing | R$ | 38,475 | R$ | — | R$ | — | R$ | — | R$ | — | R$ | — | R$ | — | R$ | 38,475 | $ | 7,345 | |||||||||||||||||||
| Debentures | 13,409 | — | — | — | — | — | — | 13,409 | 2,560 | ||||||||||||||||||||||||||||
| Promissory note – related party | — | 3,667 | — | (3,667 | ) | b | — | — | — | — | — | ||||||||||||||||||||||||||
| Accounts payable and accrued expenses | 51,701 | 3,576 | 120,532 | — | — | — | — | 175,809 | 33,564 | ||||||||||||||||||||||||||||
| Accrued offering costs | — | 837 | — | (837 | ) | c (i) | — | — | — | — | — | ||||||||||||||||||||||||||
| Labor obligations | 32,198 | — | 23,309 | — | — | — | — | 55,507 | 10,597 | ||||||||||||||||||||||||||||
| Dividends payable | 31,469 | — | — | — | — | — | — | 31,469 | 6,008 | ||||||||||||||||||||||||||||
| Current income tax and social contribution payable | 7,369 | — | 4,054 | — | — | — | — | 11,423 | 2,181 | ||||||||||||||||||||||||||||
6
UNAUDITED PRO FORMA CONDENSED COMBINED
STATEMENT OF FINANCIAL POSITION
(continued)
AS OF JUNE 30, 2022
(In thousands of Brazilian reais, except when indicated otherwise)
| Emergencia Historical (IFRS) | HPX Historical (IFRS, See Note 2 for U.S. GAAP to IFRS Conversion) | Witt O’Brien’s Historical (IFRS, See Note 4 for U.S. GAAP to IFRS Conversion) | Transaction Accounting Adjustments | Financing Adjustments(1) | Witt O’Brien’s Transaction Accounting Adjustments (See Note 5) | Witt O’Brien’s Financing Adjustments | Pro Forma Combined | Proforma Combined In US$ Thousands(2) |
||||||||||||||||||||||||||||
| Other tax payable | 22,273 | — | — | — | — | — | — | 22,273 | 4,252 | |||||||||||||||||||||||||||
| Obligations from acquisition of investment | 129,481 | — | — | — | — | — | — | 129,481 | 24,720 | |||||||||||||||||||||||||||
| Other bills to pay | 35,765 | — | 32,062 | — | — | — | — | 67,827 | 12,949 | |||||||||||||||||||||||||||
| Lease liabilities | 11,244 | — | 2,598 | — | — | — | — | 13,842 | 2,643 | |||||||||||||||||||||||||||
| Total current liabilities | 373,384 | 8,080 | 182,555 | (4,504 | ) | — | — | — | 559,515 | 106,819 | ||||||||||||||||||||||||||
| Noncurrent Liabilities: | ||||||||||||||||||||||||||||||||||||
| Warrant liability | — | 8,249 | — | — | — | — | — | 8,249 | 1,575 | |||||||||||||||||||||||||||
| Deferred underwriting fee payable | — | 46,382 | — | (46,382 | ) | e | — | — | — | — | - | |||||||||||||||||||||||||
| Loans and financing | 130,997 | 1,327,212 | 70,990 | (1,327,212 | ) | d, f | — | — | 471,420 | 673,407 | 128,562 | |||||||||||||||||||||||||
| Debentures | 330,201 | — | — | — | — | — | — | 330,201 | 63,040 | |||||||||||||||||||||||||||
| Deferred legal fees | — | 16,198 | — | — | — | — | — | 16,198 | 3,092 | |||||||||||||||||||||||||||
| Other tax expenses | 7,626 | — | — | — | — | — | — | 7,626 | 1,456 | |||||||||||||||||||||||||||
| Related party loans | 365,111 | — | — | — | — | — | — | 365,111 | 69,704 | |||||||||||||||||||||||||||
| Deferred income tax and social contribution | 35,832 | — | — | — | — | — | — | 35,832 | 6,841 | |||||||||||||||||||||||||||
| Obligations from acquisition of investment | 134,482 | — | — | — | — | — | — | 134,482 | 25,674 | |||||||||||||||||||||||||||
| Provisions for contingencies | 129 | — | — | 44,654 | g, h | — | — | — | 44,783 | 8,550 | ||||||||||||||||||||||||||
| Other bills to pay | 19,157 | — | 8,533 | — | — | — | — | 27,690 | 5,286 | |||||||||||||||||||||||||||
| Lease liabilities | 22,100 | — | 11,869 | — | — | — | — | 33,969 | 6,485 | |||||||||||||||||||||||||||
| Total noncurrent liabilities | 1,045,635 | 1,398,041 | 91,392 | (1,328,940 | ) | — | — | 471,420 | 1,677,548 | 320,265 | ||||||||||||||||||||||||||
| Total liabilities | R$ | 1,419,019 | R$ | 1,406,121 | R$ | 273,947 | R$ | (1,333,444 | ) | R$ | — | R$ | — | R$ | 471,420 | R$ | 2,237,063 | $ | 427,084 | |||||||||||||||||
| Shareholders’ Equity (Deficit) | ||||||||||||||||||||||||||||||||||||
| Share Capital (historical) | 261,920 | — | 5 | (261,920 | ) | i | — | (5 | ) | B | — | — | — | |||||||||||||||||||||||
| Preference shares, $0.0001 par value (converted equivalent par value being R$0.0005); 5,000,000 shares authorized; none issued and outstanding | — | — | — | — | — | — | — | — | — | |||||||||||||||||||||||||||
| Class A ordinary shares, $0.0001 par value (converted equivalent par value being R$0.0005); 500,000,000 shares authorized; none issued and outstanding (excluding 25,300,000 shares subject to possible redemption) as of June 30, 2022(3) | — | — | — | 26 | f, j, k | 314 | n | — | — | 340 | 65 | |||||||||||||||||||||||||
7
UNAUDITED PRO FORMA CONDENSED COMBINED
STATEMENT OF FINANCIAL POSITION
(continued)
AS OF JUNE 30, 2022
(In thousands of Brazilian reais, except when indicated otherwise)
Emergencia | HPX | Witt | Transaction | Financing | Witt O’Brien’s | Witt | Pro Forma | Pro Forma | ||||||||||||||||||||||||||||
| Class B ordinary shares, $0.0001 par value (converted equivalent par value being R$0.0005); 50,000,000 shares authorized; 6,305,000 shares issued and outstanding as of June 30, 2022 | — | 3 | — | 241,984 | i, j | 139 | n | — | — | 242,126 | 46,225 | |||||||||||||||||||||||||
| Additional paid-in capital | — | — | 256,416 | 108,249 | c (i), c(ii), e, f, g, k, l, m | 863,817 | n | (269,511 | ) | B | — | 958,971 | 183,080 | |||||||||||||||||||||||
| Advance for future capital increase | — | — | — | — | — | — | — | — | — | |||||||||||||||||||||||||||
| Profit reserves | 179,679 | — | — | — | — | — | — | 179,679 | 34,303 | |||||||||||||||||||||||||||
| Capital transactions | (101,997 | ) | — | — | — | — | — | — | (101,997 | ) | (19,473 | ) | ||||||||||||||||||||||||
| Equity valuation adjustment | 984 | — | — | — | — | — | — | 984 | 188 | |||||||||||||||||||||||||||
| Accumulated translation adjustment | (71,994 | ) | — | (3,222 | ) | — | — | 3,222 | B | — | (71,994 | ) | (13,745 | ) | ||||||||||||||||||||||
| Retained earnings (losses) | 78,285 | (74,532 | ) | 311,687 | (152,377 | ) | k, l, m | — | (311,687 | ) | — | (148,624 | ) | (28,374 | ) | |||||||||||||||||||||
| Non-controlling interest | 40,173 | — | — | — | — | — | B | 40,173 | 7,670 | |||||||||||||||||||||||||||
| Total Shareholders’ Equity (Deficit) | 387,050 | (74,529 | ) | 564,886 | (64,038 | ) | 864,270 | (577,981 | ) | — | 1,099,658 | 209,939 | ||||||||||||||||||||||||
| Total liabilities, Redeemable Common Stock and Shareholders’ Equity (Deficit) | R$ | 1,806,069 | R$ | 1,331,592 | R$ | 838,833 | R$ | (1,397,482 | ) | R$ | 864,270 | R$ | (577,981 | ) | R$ | 471,420 | R$ | 3,336,721 | $ | 637,023 | ||||||||||||||||
| (1) | This column represents additional transaction accounting adjustments related to financing adjustments. |
| (2) | Solely for the convenience of the reader, we have translated certain amounts included herein from reais into U.S. dollars using the exchange rate as reported by the Central Bank as of June 30, 2022, for reais into U.S. dollars of R$5.238 per US$1.00. The U.S. dollar equivalent information presented herein is provided solely for the convenience of investors and should not be construed as implying that the amounts in reais represent, or could have been or could be converted into, U.S. dollars at such rates or any other rate. |
| (3) | See Capitalization Table for share information subsequent to the Initial Extension, Second Extension, and Final Redemption. |
See Accompanying NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION.
8
UNAUDITED PRO FORMA CONDENSED COMBINED
STATEMENT OF INCOME (LOSS) FOR THE SIX MONTHS ENDED
JUNE 30, 2022
(In thousands of Brazilian reais, except when indicated otherwise, and except share and per share amounts)
| Emergencia Historical (IFRS) |
HPX Historical (IFRS, See Note2 for U.S. GAAP to IFRS Conversion) |
Witt O’Brien’s Historical (IFRS, See Note2 for U.S. GAAP to IFRS Conversion) |
Transaction Accounting Adjustments |
Financial Adjustments(1) | Witt O’Brien’s Accounting Adjustments (See Note 5) |
Witt O’Brien’s Financing Adjustments |
Pro Forma Combined |
Proforma Combined In US Thousands(2) |
||||||||||||||||||||||||||||
| Revenue | R$ | 654,526 | R$ | — | R$ | 455,646 | R$ | — | R$ | — | R$ | — | R$ | — | R$ | 1,110,172 | $ | 218,613 | ||||||||||||||||||
| Cost of services rendered | (520,041 | ) | — | (305,512 | ) | — | — | — | — | (825,553 | ) | (162,567) | ||||||||||||||||||||||||
| Gross profit | 134,485 | — | 150,134 | — | — | — | — | 284,619 | 56,046 | |||||||||||||||||||||||||||
| Operating expenses | ||||||||||||||||||||||||||||||||||||
| Selling, general and administrative expenses | (14,043 | ) | (18,952 | ) | (68,059 | ) | — | aa | — | (7,059 | ) | C | — | (108,113 | ) | (21,289) | ||||||||||||||||||||
| Other income, net of expenses | 5,163 | — | (4,982 | ) | (225,893 | ) | bb | — | — | — | (225,712 | ) | (44,447) | |||||||||||||||||||||||
| Operating profit | 125,605 | (18,952 | ) | 77,093 | (225,893 | ) | — | (7,059 | ) | — | (49,206 | ) | (9,691) | |||||||||||||||||||||||
| Finance costs | (28,847 | ) | 47,359 | (3,880 | ) | (1,747 | ) | cc | — | — | (14,534 | ) | ee | (1,649 | ) | (325) | ||||||||||||||||||||
| Interest income from operating bank account | 5,535 | — | — | — | — | — | — | 5,535 | 1,090 | |||||||||||||||||||||||||||
| Profit (loss) before tax | 102,293 | 28,407 | 73,213 | (227,640 | ) | — | (7,059 | ) | (14,534 | ) | (45,320 | ) | (8,926) | |||||||||||||||||||||||
| Current income tax and social contribution | (14,685 | ) | — | (6,333 | ) | — | — | 1,482 | C | 4,942 | ee | (14,594 | ) | (2,874) | ||||||||||||||||||||||
| Deferred income tax and social contribution | (5,227 | ) | — | 1,183 | — | — | — | — | (4,044 | ) | (796) | |||||||||||||||||||||||||
| Profit (loss) for the period | R$ | 82,381 | R$ | 28,407 | R$ | 68,063 | R$ | (227,640 | ) | R$ | — | R$ | (5,577 | ) | R$ | (9,592 | ) | R$ | (63,958 | ) | $ | (12,596) | ||||||||||||||
| Profit (loss) attributable to: | ||||||||||||||||||||||||||||||||||||
| Owners of the group | R$ | 78,285 | R$ | 28,407 | R$ | 68,063 | R$ | (227,640 | ) | dd | R$ | — | R$ | (5,577 | ) | R$ | (9,592 | ) | R$ | (68,054 | ) | $ | (13,401) | |||||||||||||
| Non-controlling interests | R$ | 4,096 | R$ | — | R$ | — | R$ | — | dd | R$ | — | R$ | — | R$ | — | R$ | 4,096 | $ | 805 | |||||||||||||||||
| Basic and diluted weighted average shares outstanding, Class A ordinary shares | 25,300,000 | 16,195,105 | 16,195,105 | |||||||||||||||||||||||||||||||||
| Basic and diluted profit (loss) per ordinary share, Class A ordinary shares | R$ | 0.91 | R$ | (1.15 | ) | $ | (0.23) | |||||||||||||||||||||||||||||
| Basic and diluted weighted average shares outstanding, Class B ordinary shares | 6,305,000 | 39,234,746 | 39,234,746 | |||||||||||||||||||||||||||||||||
| Basic and diluted profit (loss) per ordinary share, Class B ordinary shares | R$ | 0.91 | R$ | (1.15 | ) | $ | (0.23 | ) | ||||||||||||||||||||||||||||
| (1) | This column represents additional transaction accounting adjustments related to financing adjustments. |
| (2) | Solely for the convenience of the reader, we have translated certain amounts included herein from reais into U.S. dollars using the exchange rate as reported by the Central Bank using the average exchange rate for the six months ended June 30, 2022, for reais into U.S. dollars of R$5.0782 per US$1.00. The U.S. dollar equivalent information presented herein is provided solely for the convenience of investors and should not be construed as implying that the amounts in reais represent, or could have been or could be converted into, U.S. dollars at such rates or any other rate. |
See Accompanying NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION.
9
UNAUDITED PRO FORMA CONDENSED COMBINED
STATEMENT OF INCOME (LOSS) FOR THE YEAR ENDED
DECEMBER 31, 2021
(In thousands of Brazilian reais, except when
indicated otherwise, and except share and per share amounts)
Emergencia | HPX | Witt | Transaction | Financial Adjustments(1) | Witt | Witt | Pro Forma | Pro Forma |
||||||||||||||||||||||||||||
| Revenue | R$ | 822,203 | R$ | — | R$ | 1,046,658 | R$ | — | R$ | — | R$ | — | R$ | — | R$ | 1,868,861 | $ | 346,370 | ||||||||||||||||||
| Cost of services rendered | (618,691 | ) | — | (632,295 | ) | — | — | — | — | (1,250,986 | ) | (231,855) |
||||||||||||||||||||||||
| Gross profit | 203,512 | — | 414,363 | — | — | — | — | 617,875 | 114,515 | |||||||||||||||||||||||||||
| Operating expenses | ||||||||||||||||||||||||||||||||||||
| Selling, general and administrative expenses | (26,837 | ) | (6,279 | ) | (154,081 | ) | (1,079 | ) | aa | — | (14,929 | ) | C | — | (203,205 | ) | (37,662) | |||||||||||||||||||
| Other income, net of expenses | 1,355 | — | (55,364 | ) | (269,318 | ) | bb | — | — | — | (323,327 | ) | (59,925) |
|||||||||||||||||||||||
| Operating profit | 178,030 | (6,279 | ) | 204,918 | (270,397 | ) | — | (14,929 | ) | — | 91,343 | 16,928 | ||||||||||||||||||||||||
| Finance costs | (12,804 | ) | 56,969 | (19,581 | ) | (137 | ) | cc | — | — | (30,884 | ) | ee | (6,437 | ) | (1,193) | ||||||||||||||||||||
| Interest income from operating bank account | 10,776 | — | — | — | — | — | — | 10,776 | 1,997 | |||||||||||||||||||||||||||
| Profit before tax | 176,002 | 50,690 | 185,337 | (270,534 | ) | — | (14,929 | ) | (30,884 | ) | 95,682 | 17,732 |
||||||||||||||||||||||||
| Income tax and social contribution | (37,860 | ) | — | (11,843 | ) | — | — | 3,135 | C | 10,501 | ee | (36,067 | ) | (6,685) | ||||||||||||||||||||||
| Deferred income tax and social contribution | — | — | 1,937 | — | — | — | — | 1,937 | 359 |
|||||||||||||||||||||||||||
| Profit for the year | R$ | 138,142 | R$ | 50,690 | R$ | 175,431 | R$ | (270,534 | ) | R$ | — | R$ | (11,794 | ) | R$ | (20,383 | ) | R$ | 61,552 | $ | 11,406 | |||||||||||||||
| Profit Attributable to: | ||||||||||||||||||||||||||||||||||||
| Owners of the group | R$ | 131,117 | R$ | 50,690 | R$ | 175,431 | R$ | (266,896 | ) | dd | — | R$ | (11,794 | ) | R$ | (20,383 | ) | R$ | 58,165 | $ | 10,780 | |||||||||||||||
| Non-controlling interests | R$ | 7,025 | R$ | — | R$ | — | R$ | (3,638 | ) | dd | R$ | — | R$ | — | R$ | — | R$ | 3,387 | $ | 626 | ||||||||||||||||
| Basic and diluted weighted average shares outstanding, Class A ordinary shares | 25,300,000 | 16,195,105 | 16,195,105 | |||||||||||||||||||||||||||||||||
| Basic and diluted profit (loss) per ordinary share, Class A ordinary shares | R$ | 1.62 | R$ | 1.11 | $ | 0.21 | ||||||||||||||||||||||||||||||
| Basic and diluted weighted average shares outstanding, Class B ordinary shares | 6,305,055 | 39,234,746 | 39,234,746 | |||||||||||||||||||||||||||||||||
| Basic and diluted profit (loss) per ordinary share, Class B ordinary shares | R$ | 1.62 | R$ | 1.11 | $ | 0.21 | ||||||||||||||||||||||||||||||
| (1) | This column represents additional transaction accounting adjustments related to financing adjustments. | |
| (2) | Solely for the convenience of the reader, we have translated certain amounts included herein from reais into U.S. dollars using the exchange rate as reported by the Central Bank using the average exchange rate for the year ended December 31, 2021, for reais into U.S. dollars of R$5.396 per US$1.00. The U.S. dollar equivalent information presented herein is provided solely for the convenience of investors and should not be construed as implying that the amounts in reais represent, or could have been or could be converted into, U.S. dollars at such rates or any other rate. |
See Accompanying NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION.
10
Notes to Unaudited Pro Forma Condensed Combined Financial Information
| 1. | Adjustments to Unaudited Pro Forma Condensed Combined Financial Information |
The unaudited pro forma condensed combined financial information has been presented for illustrative purposes only and is not necessarily indicative of the operating results and financial position that would have been achieved had the Business Combination and the WOB Acquisition occurred on the dates indicated.
The unaudited pro forma condensed combined financial information has been prepared in accordance with Article 11 of Regulation S-X. Emergencia has elected not to present autonomous entity adjustments and will only be presenting transaction accounting adjustments and financing adjustments in the unaudited pro forma condensed combined financial information.
Management has concluded that no autonomous entity adjustments are required in accordance with Regulation S-X, as the historical financial statements of Emergencia, HPX and Witt O’Brien’s include all activity for the New PubCo to operate an autonomous, or standalone entity, and hence, no such adjustments have been made in the pro forma financials. This includes all Emergencia attributable shared service costs from Ambipar recorded in Emergencia’s historical financial statements that reflect an arm’s length transaction for an autonomous, or standalone entity.
The pro forma combined provision for income taxes does not necessarily reflect the amounts that would have resulted had New PubCo filed consolidated income tax returns during the periods presented. The pro forma basic and diluted earnings per share amounts presented in the unaudited pro forma condensed combined statement of income (loss) are based upon the weighted average number of Emergencia’s shares outstanding for the six months ended June 30, 2022 and the year ended December 31, 2021, assuming the Business Combination and the WOB Acquisition occurred on January 1, 2021.
As a result of the Business Combination, the New PubCo Warrants remain classified as a liability, and continue to be recognized at fair value, with subsequent changes in fair value recognized in the statement of income (loss). As such, no pro forma adjustment has been made.
In connection with the Business Combination, New PubCo implemented the New PubCo Equity Plan which became effective as of Closing. The financial statement impact of the New PubCo Equity Plan is not yet known and cannot be readily estimated at this stage, therefore its impact has not been included in the unaudited pro forma condensed combined financial statements.
Adjustments to Unaudited Pro Forma Condensed Combined Statement of Financial Position
The adjustments included in the unaudited pro forma condensed combined statement of financial position as of June 30, 2022 are as follows (using the June 30, 2022 translation rate of R$5.238 into US$1.00):
Transaction Accounting Adjustments:
| (a) | Reflects the reclassification of R$1,327.2 million of cash and cash equivalents held in the Trust Account that became available following the Business Combination. |
| (b) | Reflects the repayment of the working capital loan taken out by HPX of R$3.7 million that was payable upon a business combination. Subsequent to June 30, 2022, HPX took an additional working capital draw of R$1.0 million ($205,000) under the promissory note dated June 24, 2022, and an additional working capital draw of R$2.1 million ($410,000) under an additional promissory note, and the aggregate amounts outstanding under such promissory notes were forgiven prior to the consummation of the Business Combination. Such borrowings and debt forgiveness, net have an immaterial effect on the pro forma statement of financial position. For more information, see “Summary of the Proxy Statement/Prospectus — Recent Developments — Additional Loans Under the Unsecured Promissory Notes” included in the Proxy Statement/Prospectus. |
11
| (c) | Transaction costs: |
| (i) | Reflects the additional HPX non-recurring transaction costs in the amount of R$44.5 million including the payment of accrued transaction costs in the amount of R$0.8 million (R$43.7 million, net), that were all paid at Closing. |
| (ii) | Reflects the additional Ambipar and New PubCo non-recurring transaction costs in the amount of R$49.8 million, that were paid at Closing. |
| (d) | Reflects the payment in cash of R$1,021.7 million due to the redemption of 19,472,483 HPX Shares in connection with the Initial Extension and R$191.6 million due to the redemption of 3,650,973 HPX Shares in connection with the Second Extension, pursuant to the respective Extension Amendments after the announcement of the Business Combination, and R$66.3 million due to the redemption of 1,258,439 shares in connection with the Final Redemption. |
| (e) | Reflects the termination of the agreement with Credit Suisse to pay R$46.4 million of deferred underwriters’ fees incurred in connection with HPX’s IPO that were due upon completion of the Business Combination. |
| (f) | Reflects the reclassification of non-redeemed shares from liability to permanent equity of R$47.6 million upon the Closing of the Business Combination. The reclassification of non-redeemed shares from liability to permanent equity is calculated as R$1,327.2 million of HPX loans and financing (before extension votes) less R$1,021.7 million of shares redeemed in connection with the Initial Extension at a redemption price of approximately $10.018 per share, R$191.6 million of shares redeemed in connection with the Second Extension at a redemption price of approximately $10.064 per share as of June 30, 2022, and R$66.3 million of shares redeemed in connection with the Final Redemption at a price of $10.060 per share, and foreign exchange rate of $1.00 to R$5.238 as of June 30, 2022. |
| (g) | Reflects the issuance of 11,000,000 Earn-Out Shares in accordance with the Business Combination Agreement in the amount of R$44.7 million. The Earn-Out Shares have, in accordance with the requirements of IAS 32, been recognized as a financial liability measured at fair value in the unaudited pro forma condensed combined statement of financial position. The fair value of the Earn-Out Shares is measured using a Monte Carlo simulation model at each measurement date. The key assumptions used were initial stock price of $10.00/share and a volatility rate of 21.29%. |
| (h) | Subsequent to June 30, 2022, the Sponsor entered into the Downside Protection Agreements with the PIPE Investors, the Non-Redeeming Shareholders and the XP Non-Redeeming Shareholder, pursuant to which such DPA Beneficiaries are provided with certain downside protection rights subsequent to the Closing Date. Subject to the terms and conditions of the Downside Protection Agreements, the DPA Beneficiaries may receive, on a pro-rata basis, an aggregate of up to 1,050,000 New PubCo Class A Ordinary Shares directly from the Sponsor. While such liability to transfer the DPA Pro Rata Downside Protection Shares is the Sponsor’s responsibility, HPX, as an entity being controlled by the Sponsor, recognized a liability of $3.1 million (R$16.2 million) in its unaudited condensed financial statements as of September 30, 2022 and for the three and nine months ended September 30, 2022 and 2021. Upon completion of the Business Combination, HPX ceased to be controlled by the Sponsor, as the Sponsor became a minority shareholder in New PubCo, and HPX merged with and into New PubCo. The net effect of recording and reversing the liability have an immaterial effect on the pro forma statement of financial position. For more information, see “Certain Agreements Related to the Business Combination — Downside Protection Agreements” of the Proxy Statement/Prospectus. |
| (i) | Reflects the issuance of New PubCo Class B Ordinary Shares in the amount of R$242.0 million to Ambipar. The amount includes a downward adjustment of New PubCo Class B Ordinary Shares issued to Ambipar for $3.6 million (R$19.9 million) related to transaction expenses incurred by Emergencia in excess of $9,500,000 not reimbursed by Ambipar pursuant to the terms of the Business Combination Agreement. |
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| (j) | Reflects the recapitalization of HPX under the Sponsor Recapitalization, whereby HPX Class B Ordinary Shares were exchanged for and converted into HPX Class A Ordinary Shares. The effect of this reclassification is an immaterial adjustment on the pro forma statement of financial position. |
| (k) | Reflects the compensation expense of R$1.0 million for HPX Restricted Stock Units converted to New PubCo Restricted Stock Units upon vesting using par value R$0.0005 per share at a redemption price of R$52.38 per share as of June 30, 2022. The New PubCo Restricted Stock Units vested in full at Closing and represent 20,000 non-redeemable New PubCo Class A Ordinary Shares that will settle on a date as soon as practicable following vesting but in no event more than 30 days after vesting. |
| (l) | Reflects the reclassification of R$74.5 million of HPX’s historical accumulated deficit to additional paid-in capital upon consummation of the Business Combination. |
| (m) | Reflects the difference in the amount of R$225.9 million between the fair value of the equity instruments issued to acquire HPX and the fair value of the identifiable net assets acquired. This represents a stock exchange listing service of New PubCo under IFRS 2 Share-Based Payments. The listing expense is calculated as follows, in thousands of reais: |
| (in thousands of reais) | Six Months ended June 30, 2022 | |||
| Fair value of public and sponsor equity instruments to acquire HPX(1) | R$ | 149,352 | ||
| Less: Fair value of Earn-Out Shares | 44,654 | |||
| Fair value of equity instruments issued to acquire HPX(2) | 104,698 | |||
| Net Liabilities of HPX as of June 30, 2022(3)(4)(5) | (26,912 | ) | ||
| Less: HPX’s transaction costs | 94,284 | |||
| Adjusted net assets/(liabilities) of HPX as of June 30, 2022 | (121,196 | ) | ||
| IFRS 2 charge for listing services | R$ | 225,894 | ||
| (1) | Estimated fair value determined based on reference price denoted in the Business Combination Agreement of $10.00/share as of June 30, 2022 and foreign exchange rate of $1.00 to R$5.238. |
| (2) | The deemed fair value of equity instruments issued to acquire HPX was estimated based on the fair value of public and sponsor shares to acquire HPX, less the adjustment in respect of Earn-Out Shares (see note (g) above). |
| (3) | Calculated based on exchange rate as of June 30, 2022 of $1.00 to R$5.238. Based on this exchange rate, the net liabilities of HPX as of June 30, 2022 were approximately R$26,912 million. |
| (4) | Net assets of HPX have been adjusted to reflect the redemption of 19,472,483 shares for R$1,021.7 million, in connection with the Initial Extension, 3,650,973 shares for R$191.6 million in connection with the Second Extension, and 1,258,439 shares for R$66.3 million in connection with the Final Redemption. |
| (5) | Adjusted net assets (liabilities) of HPX as of June 30, 2022 is calculated as follows: |
| Total Assets of HPX | R$ | 1,331,592 | ||
| Less: Redeemed Shares | 1,279,595 | |||
| Adjusted Total Assets | 51,997 | |||
| Total Liabilities of HPX | 78,909 | |||
| Net liabilities of HPX | R$ | (26,912 | ) |
Summary of Transacting Accounting Adjustments impacting Additional paid in capital:
| Description | Reference | Amount (in thousands of reais) | ||||
| Non-recurring transaction costs | (c)(i) | R$ | (43,686 | ) | ||
| Non-recurring transaction costs | (c)(ii) | (49,761 | ) | |||
| Settlement of deferred underwriting fee | (e) | 46,382 | ||||
| Liability to permanent equity | (f) | 47,592 | ||||
| Earnout Shares | (g) | (44,654 | ) | |||
| RSU compensation | (k) | 1,015 | ||||
| Removal of historical accumulated deficit | (l) | (74,532 | ) | |||
| IFRS 2 listing expense | (m) | 225,893 | ||||
| Additional paid-in capital adjustments | R$ | 108,249 | ||||
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Financing Adjustments:
| (n) | Reflects gross proceeds of R$864.3 million from the issuance and sale of 16,500,000 New PubCo Ordinary Shares and additional paid-in capital using par value of R$0.0005 per share at a redemption price of R$52.38 per share, including 11,450,000 New PubCo Class A Ordinary Shares issued to PIPE Investors and 5,050,000 New PubCo Class B Ordinary Shares issued in connection with the Ambipar PIPE Financing. |
Witt O’Brien’s Financing Adjustments:
| (o) | Represents cash proceeds of R$471.4 million borrowed by Emergencia pursuant to the WOB Acquisition. There were minimal direct issuance costs incurred to execute the loan agreement. Interest on the credit facility accrues at 6.36% per annum for purposes of this pro forma financial information. |
Reconciliation of Class A and Class B pro forma shares:
| Redemption | Reference | Shares | Class A Par Value (in thousands of reais) | Class B Par Value (in thousands of reais) | ||||||||||
| Historical Balance | — | R$ | — | R$ | 3 | |||||||||
| Liability to permanent equity | (f) | 918,105 | 25 | — | ||||||||||
| Issuance of New PubCo Class B Ordinary Shares | (i) | 34,184,746 | — | 241,984 | ||||||||||
| Conversion of New PubCo Class B Ordinary Shares to New PubCo Class A Ordinary Shares | (j) | — | — | — | ||||||||||
| RSU compensation | (k) | 20,000 | 1 | — | ||||||||||
| Financing adjustments | (n) | 16,500,000 | 314 | 139 | ||||||||||
| Non-redeeming shares | 3,807,000 | — | — | |||||||||||
| Totals | 55,429,851 | R$ | 340 | R$ | 242,126 | |||||||||
Adjustments to Unaudited Pro Forma Condensed Combined Statement of Income (Loss) for the Six Months Ended June 30, 2022 and Unaudited Pro Forma Condensed Combined Statement of Income (Loss) for the Year Ended December 31, 2021
The adjustments included in the unaudited pro forma condensed combined statements of income for the six-month period ended June 30, 2022 and the year ended December 31, 2021 are as follows (using the average annual translation rate of R$5.0782 into US$1.00 for the six-month period ended June 30, 2022, and of R$5.396 into US$1.00 for the year ended December 31, 2021):
Transaction Accounting Adjustments:
| (aa) | Reflects the compensation expense for HPX Restricted Stock Units converted to New PubCo Restricted Stock Units, fully vested at Closing, for the period ended. |
| Restricted Stock Units | 20,000 | |||
| Reference Price | $ | 10.00 | ||
| 2021 Average Spot Rate | 5.3956 | |||
| RSU Compensation Expense | R$ | 1,079,112 |
| (bb) | Reflects the IFRS 2 stock-based compensation expenses for the deemed stock exchange listing of New PubCo, which is the difference between the fair value of the equity instruments issued to acquire HPX and the fair value of the identifiable net assets acquired. |
| For the six months ended June 30, 2022 | For the year ended December 31, 2021 | |||||||
| Net liabilities of HPX | R$ | (26,912 | ) | R$ | (59,688 | ) | ||
| Less: HPX’s transaction costs | 94,284 | 100,449 | ||||||
| Adjusted net liabilities of HPX | (121,196 | ) | (160,137 | ) | ||||
| IFRS 2 charge for listing services | R$ | 225,894 | R$ | 269,318 | ||||
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| (cc) | Reflects the elimination of the interest earned on investments held in the Trust Account. Please note that in order to align with the historical Emergencia statement of income, the HPX interest earned on marketable securities held in the Trust Account was moved to the finance costs caption of the pro forma statement of income (loss). This amount represents Interest income of R$1.7 million for the six months ended June 30, 2022 and R$0.1 million for the year ended December 31, 2021. |
| (dd) | Reflects the adjustment of income attributable to non-controlling interest in Inversiones Disal Emergencia S.A. to income attributable to controlling interest for the year ended December 31, 2021 as if the acquisition had occurred as of January 1, 2021. Refer to pages F-102 and F-103 of the Proxy Statement/Prospectus for the calculation of the Income attributable to non-controlling interests. |
| (ee) | Represents the recognition of interest expense on the anticipated loan agreement to fund the WOB Acquisition (refer to adjustment (o) above), as if the draw was executed on January 1, 2021, consisting of R$14.5 million of interest expense for the six months ended June 30, 2022 and R$30.9 million for the year ended December 31, 2021, calculated using the anticipated 6.36% rate of interest and the associated recognition of a tax benefit of R$4.9 million for the six months ended June 30, 2022 and R$10.5 million for the year ended December 31, 2021. |
Earnings (loss) per share
Net earnings (loss) per share is calculated using the weighted average New PubCo Class A Ordinary Shares and New PubCo Class B Ordinary Shares outstanding and the issuance of additional New PubCo Class A Ordinary Shares and New PubCo Class B Ordinary Shares in connection with the Business Combination and other related events, assuming the shares were outstanding since January 1, 2021. As the Business Combination is being reflected as if it had occurred as of January 1, 2021, the calculation of weighted average shares outstanding for basic and diluted net earnings (loss) per share assumes the New PubCo Class A Ordinary Shares and New PubCo Class B Ordinary Shares issued in connection with the Business Combination have been outstanding for the entire period presented. Management notes that the below pro forma earnings (loss) per share calculation excludes Earn-Out Shares as they are not considered to be outstanding as of the Business Combination date.
| (in thousands of reais, except share data) | Six Months ended June 30, 2022 | Year Ended December 31, 2021 | ||||||
| Pro forma net income (loss) | R$ | (63,958 | ) | R$ | 61,552 | |||
| Basic and diluted weighted average shares outstanding, Class A and Class B ordinary shares | 55,429,851 | 55,429,851 | ||||||
| Pro forma net income (loss) per share – basic and diluted, Class A and Class B ordinary shares | R$ | (1.15 | ) | R$ | 1.11 | |||
| Weighted average shares outstanding – basic and diluted, Class A and Class B ordinary shares(1) | ||||||||
| Ambipar(2) | 39,234,746 | 39,234,746 | ||||||
| HPX public shareholders (other than the Sponsor and its affiliates (consisting of the Insiders and Rafael Grisolia)(3) | 955,205 | 955,205 | ||||||
| Sponsor and its affiliates (consisting of the Insiders and Rafael Grisolia)(4) | 1,916,100 | 1,916,100 | ||||||
| PIPE Investors(5)(6) | 13,323,800 | 13,323,800 | ||||||
| Total | 55,429,851 | 55,429,851 | ||||||
| (1) | Outstanding New PubCo Public Warrants and New PubCo Private Warrants are anti-dilutive and are not included in the calculation of diluted net loss per share. New PubCo currently has 12,650,000 New PubCo Public Warrants and 3,530,000 New PubCo Private Warrants outstanding. Each New PubCo Warrant entitles the holder to purchase one New PubCo Class A Ordinary Share at $11.50 (R$60.24) per share. Subject to the terms of the Warrant Agreement, these warrants are not exercisable until 30 days after the consummation of the Business Combination. |
| (2) | Includes the 34,184,746 New PubCo Class B Ordinary Shares issued to Ambipar at Closing pursuant to the Business Combination Agreement as well as 5,050,000 New PubCo Class B Ordinary Shares subscribed for and purchased by Ambipar as part of the Ambipar PIPE Financing at a purchase price of $10.00 (R$52.38) per share, pursuant to the Ambipar Subscription Agreement. Excludes the Earn-Out Shares. |
| (3) | Includes 37,100 New PubCo Class A Ordinary Shares issued to the Non-Redeeming Shareholders and the XP Non-Redeeming Shareholder in a private placement, on the Closing Date, in consideration of the agreements of such Non-Redeeming Shareholders and XP Non-Redeeming Shareholder under their respective Non-Redemption Agreements and XP Non-Redemption Agreement. |
| (4) | Includes (i) 1,836,100 New PubCo Class A Ordinary Shares held by the Sponsor, (ii) 20,000 New PubCo Class A Ordinary Shares held by each of the three Insiders and (iii) 20,000 fully vested New PubCo Restricted Stock Units that represent 20,000 non-redeemable New PubCo Class A Ordinary Shares that will settle on a date as soon as practicable following Closing but in no event more than 30 days after the Closing Date. |
| (5) | On February 10, 2023, Cygnus sent the Cygnus Notice to HPX and New PubCo whereby, pursuant to the Cygnus Option, it elected not to be bound by the Cygnus Non-Redemption Agreement and instead to subscribe for 300,000 New PubCo Class A Ordinary Shares pursuant to the Cygnus Subscription Agreement for aggregate gross proceeds of $3,000,000. For more information, about the agreement, see the section titles “Explanatory Note” in the Report. |
| (6) | Includes 11,450,000 New PubCo Class A Ordinary Shares issued to the PIPE Investors, including Cygnus, under the PIPE Financing pursuant to the Subscription Agreements, and an additional 1,873,800 New PubCo Class A Ordinary Shares issued to the PIPE Investors, including Cygnus, in consideration of their subscription commitments under their respective Subscription Agreements (1,810,000 of which being issued to Opportunity Agro Fund). |
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| 2. | U.S. GAAP to IFRS conversion of HPX’s Statement of Financial Position as of June 30, 2022 and Statements of Income for the six months ended June 30, 2022 and the year ended December 31, 2021 |
HPX’s financial statements have been presented in accordance with U.S. GAAP and are converted to IFRS as follows.
HPX’s management notes there were no U.S. GAAP to IFRS differences after analysis of the HPX statement of income, however presentation adjustments were made to reclassify the captions of change in fair value of warrants, and interest earned on marketable securities held in trust account in the historical HPX statement of income to the finance costs caption of the pro forma statement of income (loss). Thus, to align with the historical Emergencia statement of income, an IFRS to U.S. GAAP conversion footnote is not needed.
A conversion of HPX statement of financial position from U.S. dollars to Brazilian reais, and from U.S. GAAP to IFRS is as follows:
| Before conversion | Before conversion | IFRS | Footnote | After conversion | |||||||||||||||
| As of June 30, 2022 | (In ‘000 of US$) | (In ‘000 of reais)(a) | conversion | reference | (In ‘000 of reais) | ||||||||||||||
| ASSETS | |||||||||||||||||||
| Non-Current Assets | |||||||||||||||||||
| Marketable securities held in Trust Account | $ | 253,381 | R$ | 1,327,212 | R$ | — | R$ | 1,327,212 | |||||||||||
| Total Non-Current Assets | 253,381 | 1,327,212 | — | 1,327,212 | |||||||||||||||
| Current Assets | |||||||||||||||||||
| Prepaid expenses | 58 | 302 | — | 302 | |||||||||||||||
| Cash and cash equivalents | 779 | 4,078 | — | 4,078 | |||||||||||||||
| Total Current Assets | 836 | 4,380 | — | 4,380 | |||||||||||||||
| Total Assets | $ | 254,218 | R$ | 1,331,592 | R$ | — | R$ | 1,331,592 | |||||||||||
| LIABILITIES AND SHAREHOLDER’S DEFICIT | |||||||||||||||||||
| Shareholders’ Deficit | |||||||||||||||||||
| Class B ordinary shares, $0.0001 par value (converted equivalent par value being R$0.0005); 50,000,000 shares authorized; 6,305,000 shares issued and outstanding as of June 30, 2022 | 1 | 3 | — | 3 | |||||||||||||||
| Accumulated deficit | (14,229 | ) | (74,532 | ) | — | (74,532 | ) | ||||||||||||
| Total Shareholders’ Deficit | (14,229 | ) | (74,529 | ) | — | (74,529 | ) | ||||||||||||
| Commitments and Contingencies | |||||||||||||||||||
| Class A ordinary shares subject to possible redemption, 25,300,000 shares at redemption value as of June 30, 2022 | 253,381 | 1,327,212 | (1,327,212 | ) | b | — | |||||||||||||
| Non-Current liabilities | |||||||||||||||||||
| Loans and borrowings | — | — | 1,327,212 | b | 1,327,212 | ||||||||||||||
| Deferred legal fees | 3,092 | 16,198 | — | 16,198 | |||||||||||||||
| Warrant liabilities | 1,575 | 8,249 | — | 8,249 | |||||||||||||||
| Deferred underwriting fee payable | 8,855 | 46,382 | — | 46,382 | |||||||||||||||
| Total Non-Current Liabilities | 13,522 | 70,829 | 1,327,212 | 1,398,041 | |||||||||||||||
| Current liabilities | |||||||||||||||||||
| Promissory note – related party | 700 | 3,667 | — | 3,667 | |||||||||||||||
| Accounts payable and accrued expenses | 682 | 3,576 | — | 3,576 | |||||||||||||||
| Accrued offering costs | 160 | 837 | — | 837 | |||||||||||||||
| Total Current liabilities | 1,542 | 8,080 | — | 8,080 | |||||||||||||||
| Total Liabilities | $ | 15,065 | R$ | 78,909 | R$ | 1,327,212 | R$ | 1,406,121 | |||||||||||
| Total Liabilities and Shareholders’ Deficit | $ | 254,218 | R$ | 1,331,592 | R$ | — | R$ | 1,331,592 | |||||||||||
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| For the six months ended of June 30, 2022 | Before conversion (In ‘000 of US$) | Before conversion (In ‘000 of reais)(aa) | IFRS conversion | Footnote reference |
After conversion (In ‘000 of reais) | ||||||||||||||
| Operating and formation costs | $ | 3,732 | R$ | 18,952 | R$ | — | R$ | 18,952 | |||||||||||
| Loss from operations | (3,732 | ) | (18,952 | ) | — | (18,952 | ) | ||||||||||||
| Other income (expense): | |||||||||||||||||||
| Finance income | — | — | 47,359 | bb | 47,359 | ||||||||||||||
| Change in fair value of warrant liabilities | 8,982 | 45,612 | (45,612 | ) | bb | — | |||||||||||||
| Interest earned on marketable securities held in Trust Account | 344 | 1,747 | (1,747 | ) | bb | — | |||||||||||||
| Net income (loss) | $ | 5,594 | R$ | 28,407 | R$ | — | R$ | 28,407 | |||||||||||
| For the twelve months ended of December 31, 2021 | Before conversion (In ‘000 of US$) | Before conversion (In ‘000 of reais)(aa) | IFRS conversion | Footnote reference |
After conversion (In ‘000 of reais) | ||||||||||||||
| Operating and formation costs | $ | 1,164 | R$ | 6,279 | R$ | — | R$ | 6,279 | |||||||||||
| Gross profit | (1,164 | ) | (6,279 | ) | — | (6,279 | ) | ||||||||||||
| Other income (expense): | |||||||||||||||||||
| Finance income | — | — | 56,969 | bb | 56,969 | ||||||||||||||
| Change in fair value of warrant liabilities | 10,533 | 56,832 | (56,832 | ) | bb | — | |||||||||||||
| Interest earned on marketable securities held in Trust Account | 25 | 137 | (137 | ) | bb | — | |||||||||||||
| Net income (loss) | $ | 9,395 | R$ | 50,690 | R$ | — | R$ | 50,690 | |||||||||||
References — IFRS Adjustments and Reclassifications
The historical financial information of HPX has been adjusted to give effect to the differences between U.S. GAAP and IFRS for the purposes of the unaudited condensed combined pro forma financial information.
| (a) | The historical financial information of HPX was prepared in accordance with U.S. GAAP and presented in U.S. dollars. The historical financial information was translated from U.S. dollars to Brazilian reais using the historical closing exchange rate, as of June 30, 2022, of $1.00 to R$5.238. |
| (b) | Reflects the U.S. GAAP to IFRS conversion adjustment related to the reclassification of HPX’s historical mezzanine equity (HPX Class A Ordinary Shares subject to possible redemption) into Non-Current Liabilities (Loans and borrowings). |
The historical statements of income of HPX have been adjusted to give effect to the differences between U.S. GAAP and IFRS for the purposes of the unaudited condensed combined pro forma financial information.
| (aa) | The historical financial information of HPX was prepared in accordance with U.S. GAAP and presented in U.S. dollars. The historical financial information was translated from U.S. dollars to reais using the average exchange rate of $1.00 to R$5.078 for the six months ended June 30, 2022 and $1.00 to R$5.396 for the twelve months ended December 31, 2021. |
| (bb) | Reflects the U.S. GAAP to IFRS conversion adjustment for reclassification of the change in fair value of warrant liabilities and Interest earned on marketable securities held in Trust Account to Finance income. |
17
| 3. | Acquisition of non-controlling interest |
On June 28, 2021, Emergencia acquired Inversiones Disal Emergencias S.A (“Inversiones”) wherein the non-controlling interest component of the business was acquired by Emergencia. Inversiones is the holding company that owns 50% of Suatrans Chile. Until June 2021, Suatrans Chile was 100% consolidated with Inversiones and 50% was being disclosed as non-controlling interest by Inversiones. As Inversiones got acquired by Emergencia, Emergencia formally owned, directly and indirectly, 100% of Suatrans Chile from June 28, 2021. As a result, the non-controlling interest held by Inversiones in Suatrans Chile for the period from January 2021 to June 2021 of R$3.6 million will require an adjustment to be made to the pro forma statement of income (loss) as per Regulation S-X. Refer to adjustment (dd) for this adjustment. As the pro forma statement of financial position assumes the transaction occurred as of June 30, 2022, this acquisition is already included in the statement of financial position of Emergencia, and, therefore, no pro forma adjustment is required.
| 4. | U.S. GAAP to IFRS conversion of Witt O’Brien’s Statement of Financial Position as of June 30, 2022 and Statements of Income for the six months ended June 30, 2022 and the year ended December 31, 2021 |
Witt O’Brien’s financial statements have been presented in accordance with U.S. GAAP and are converted to IFRS as follows.
A conversion of Witt O’Brien’s statement of financial position and statements of income from U.S. GAAP to IFRS is as follows:
Successor June 30, 2022 | ||||||||||||||||||||||||
| Assets | Total before presentation alignment & conversion (In ‘000 of US$) | Total before presentation alignment & conversion (In ‘000 of reais) | Presentation Alignment | Total before conversion (In ‘000 of reais) | IFRS conversion | After conversion (In ‘000 of reais) | ||||||||||||||||||
| Current Assets | ||||||||||||||||||||||||
| Cash | $ | 1,727 | R$ | 9,046 | R$ | — | R$ | 9,046 | R$ | — | R$ | 9,046 | ||||||||||||
| Receivables | — | — | — | — | — | — | ||||||||||||||||||
| Trade, net of allowance for doubtful accounts of $5,515 and $5,641 in 2022 and 2021, respectively | 115,483 | 604,900 | (604,900 | ) | — | — | — | |||||||||||||||||
| Other | 466 | 2,441 | (2,441 | ) | — | — | — | |||||||||||||||||
| Trade and other receivables | — | — | 607,341 | 607,341 | (2,441 | ) | (b) | 604,901 | ||||||||||||||||
| Prepaid expenses | 443 | 2,320 | — | 2,320 | (1,289 | ) | (b) | 1,031 | ||||||||||||||||
| Other accounts receivable | — | — | 1,729 | 1,729 | 3,729 | (b) | 5,458 | |||||||||||||||||
| Other Assets | 330 | 1,729 | (1,729 | ) | — | — | — | |||||||||||||||||
| Total current assets | 118,449 | 620,436 | — | 620,436 | — | 620,436 | ||||||||||||||||||
| Property and Equipment | — | — | — | — | — | — | ||||||||||||||||||
| Historical Cost | 1,619 | 8,480 | (8,480 | ) | — | — | — | |||||||||||||||||
| Accumulated depreciation | (643 | ) | (3,368 | ) | 3,368 | — | — | — | ||||||||||||||||
| Net property and equipment | 976 | 5,112 | (5,112 | ) | — | — | — | |||||||||||||||||
| Property, plant and equipment | — | — | 5,112 | 5,112 | 14,525 | (b), (c) | 19,637 | |||||||||||||||||
| Operating Lease Right-of-Use Assets | 2,749 | 14,399 | — | 14,399 | (14,399 | ) | (b) | — | ||||||||||||||||
| Investments, at Equity, in 50% or Less Owned Companies | 1,736 | 9,093 | (9,093 | ) | — | — | — | |||||||||||||||||
| Intangible Assets, net of accumulated amortization of $1,438 and $843 in 2022 and 2021, respectively | 9,762 | 51,133 | — | 51,133 | (20,795 | ) | (e) | 30,338 | ||||||||||||||||
| Deferred Income Taxes | 1,685 | 8,826 | — | 8,826 | — | 8,826 | ||||||||||||||||||
| Other Assets | 227 | 1,189 | (1,189 | ) | — | — | — | |||||||||||||||||
| Other long term assets | — | — | — | — | 10,282 | (b) | 10,282 | |||||||||||||||||
| Goodwill | — | — | — | — | 149,314 | (d) | 149,314 | |||||||||||||||||
| Other Accounts Receivable | — | — | 10,282 | 10,282 | (10,282 | ) | (b) | — | ||||||||||||||||
| $ | 135,584 | R$ | 710,188 | R$ | — | R$ | 710,188 | R$ | 128,645 | R$ | 838,833 | |||||||||||||
| Liabilities and Members Equity | ||||||||||||||||||||||||
| Current Liabilities | ||||||||||||||||||||||||
| Current portion of long-term operating lease liabilities | $ | 496 | R$ | 2,598 | R$ | — | R$ | 2,598 | R$ | — | R$ | 2,598 | ||||||||||||
| Accounts payable and accrued expenses | 23,011 | 120,532 | — | 120,532 | — | 120,532 | ||||||||||||||||||
| Contract liabilities | 5,650 | 29,595 | (29,595 | ) | — | — | — | |||||||||||||||||
| Other current liabilities | 5,695 | 29,830 | (29,830 | ) | — | — | — | |||||||||||||||||
| Employee benefits | — | — | 23,309 | 23,309 | — | 23,309 | ||||||||||||||||||
| Current income tax and social contribution payable | — | — | 4,054 | 4,054 | — | 4,054 | ||||||||||||||||||
| Other bills to pay | — | — | 32,062 | 32,062 | — | 32,062 | ||||||||||||||||||
| Total current liabilities | 34,852 | 182,555 | — | 182,555 | — | 182,555 | ||||||||||||||||||
| Long-Term Operating Lease Liabilities | 2,266 | 11,869 | — | 11,869 | — | 11,869 | ||||||||||||||||||
| Advances from SEACOR | 19,397 | 101,601 | (101,601 | ) | — | — | — | |||||||||||||||||
| Loans and borrowings | — | — | 101,601 | 101,601 | (30,611 | ) | (f) | 70,990 | ||||||||||||||||
| Other bills to pay | — | — | 8,533 | 8,533 | — | 8,533 | ||||||||||||||||||
| Other Liabilities | 1,629 | 8,533 | (8,533 | ) | — | — | — | |||||||||||||||||
| Total liabilities | 58,144 | 304,558 | — | 304,558 | (30,611 | ) | 273,947 | |||||||||||||||||
| Members’ Equity: | ||||||||||||||||||||||||
| Common stock | 1 | 5 | (5 | ) | — | — | — | |||||||||||||||||
| Share Capital | — | — | 5 | 5 | — | 5 | ||||||||||||||||||
| Additional paid-in capital | 32,601 | 170,764 | — | 170,764 | 85,652 | (g) | 256,416 | |||||||||||||||||
| Retained earnings | 44,883 | 235,097 | — | 235,097 | 76,590 | (i) | 311,687 | |||||||||||||||||
| Other comprehensive loss | (45 | ) | (236 | ) | — | (236 | ) | (2,986 | ) | (h) | (3,222 | ) | ||||||||||||
| Total members’ equity | 77,440 | 405,630 | — | 405,630 | 159,256 | 564,886 | ||||||||||||||||||
| Total Liabilities and Members Equity | $ | 135,584 | R$ | 710,188 | R$ | — | R$ | 710,188 | R$ | 128,645 | R$ | 838,833 | ||||||||||||
18
Successor January 1, 2022 through June 30, 2022 | Total before presentation alignment & conversion (In ‘000 of US$) | Total before presentation alignment & conversion (In ‘000 of reais) | Presentation Alignment | Total before conversion (In ‘000 of reais) | IFRS conversion | After conversion (In ‘000 of reais) | ||||||||||||||||||||||
| Operating Revenues | $ | 89,725 | $ | 89,725 | R$ | 455,646 | R$ | — | R$ | 455,646 | R$ | — | R$ | 455,646 | ||||||||||||||
| Cost of services rendered | — | — | — | 305,512 | 305,512 | — | 305,512 | |||||||||||||||||||||
| Gross Profit | 89,725 | 89,725 | 455,646 | (305,512 | ) | 150,134 | — | 150,134 | ||||||||||||||||||||
| Costs and Expenses | ||||||||||||||||||||||||||||
| Operating | 60,161 | 60,161 | 305,512 | (305,512 | ) | — | — | — | ||||||||||||||||||||
| Administrative and general | 12,484 | 12,484 | 63,397 | (63,397 | ) | — | — | — | ||||||||||||||||||||
| Depreciation and amortization | 892 | 892 | 4,530 | (4,530 | ) | — | — | — | ||||||||||||||||||||
| Selling, general and administrative expenses | — | — | — | 67,927 | 67,927 | 132 | bb | 68,059 | ||||||||||||||||||||
| Other income, net expenses | — | — | — | 4,982 | 4,982 | — | 4,982 | |||||||||||||||||||||
| Operating Income | 16,188 | 16,188 | 82,207 | (4,982 | ) | 77,225 | (132 | ) | 77,093 | |||||||||||||||||||
| Other Income (Expense): | ||||||||||||||||||||||||||||
| Interest expense on advances from SEACOR | (711 | ) | (711 | ) | (3,611 | ) | 3,611 | — | — | — | ||||||||||||||||||
| Finance costs | — | — | — | (3,611 | ) | (3,611 | ) | (269 | ) | bb | (3,880 | ) | ||||||||||||||||
| SEACOR management fees | (1,465 | ) | (1,465 | ) | (7,440 | ) | 7,440 | — | — | — | ||||||||||||||||||
| Foreign currency losses, net | 89 | 89 | 452 | (452 | ) | — | — | — | ||||||||||||||||||||
| Other, net | 15 | 15 | 76 | (76 | ) | — | — | — | ||||||||||||||||||||
| Income before Income Tax Expense and Equity in Earnings of 50% or Less Owned Companies | 14,116 | 14,116 | 71,684 | 1,930 | 73,614 | (401 | ) | 73,213 | ||||||||||||||||||||
| Income Tax Expense (Benefit): | ||||||||||||||||||||||||||||
| Current | 1,014 | 1,014 | 5,150 | (5,150 | ) | — | — | — | ||||||||||||||||||||
| Current income tax and social contribution | — | — | — | 6,333 | 6,333 | — | 6,333 | |||||||||||||||||||||
| Deferred | — | — | — | (1,183 | ) | (1,183 | ) | — | (1,183 | ) | ||||||||||||||||||
| Deferred income tax and social contribution | — | — | — | — | — | — | — | |||||||||||||||||||||
| Income Before Equity in Earnings of 50% or Less Owned Companies | 13,102 | 13,102 | 66,534 | 1,930 | 68,464 | (401 | ) | 68,063 | ||||||||||||||||||||
| Equity in Earnings of 50% or Less Owned Companies, Net of Tax | 380 | 380 | 1,930 | (1,930 | ) | — | — | — | ||||||||||||||||||||
| Net Income | 13,482 | 13,482 | 68,464 | — | 68,464 | (401 | ) | 68,063 | ||||||||||||||||||||
| Foreign currency translation losses, net of tax | (19 | ) | (19 | ) | (96 | ) | — | (96 | ) | — | (96 | ) | ||||||||||||||||
| Comprehensive Income | $ | 13,463 | $ | 13,463 | R$ | 68,368 | R$ | — | R$ | 68,368 | R$ | (401 | ) | R$ | 67,967 | |||||||||||||
| Successor | Predecessor | |||||||||||||||||||||||||||||||
April 15, 2021 through December 31, 2021 | January 1, 2021 through April 14, 2021 | Total before presentation alignment & conversion (In ‘000 of US$) | Total before presentation alignment & conversion (In ‘000 of reais) | Presentation Alignment | Total before conversion (In ‘000 of reais) | IFRS conversion | After conversion (In ‘000 of reais) | |||||||||||||||||||||||||
| Operating Revenues | $ | 165,696 | $ | 28,289 | $ | 193,985 | R$ | 1,046,658 | R$ | — | R$ | 1,046,658 | R$ | — | R$ | 1,046,658 | ||||||||||||||||
| Cost of services rendered | — | — | — | — | 632,295 | 632,295 | — | 632,295 | ||||||||||||||||||||||||
| Gross Profit | 165,696 | 28,289 | 193,985 | 1,046,658 | (632,295 | ) | 414,363 | — | 414,363 | |||||||||||||||||||||||
| Costs and Expenses Operating | 98,641 | 18,547 | 117,188 | 632,295 | (632,295 | ) | — | — | — | |||||||||||||||||||||||
| Administrative and general | 20,408 | 6,487 | 26,895 | 145,114 | (145,114 | ) | — | — | — | |||||||||||||||||||||||
| Depreciation and amortization | 1,170 | 426 | 1,596 | 8,611 | (8,611 | ) | — | — | — | |||||||||||||||||||||||
| Selling, general and administrative expenses | — | — | — | — | 153,725 | 153,725 | 356 | bb | 154,081 | |||||||||||||||||||||||
| Other income, net expenses | — | — | — | — | 55,364 | 55,364 | — | 55,364 | ||||||||||||||||||||||||
| Operating Income | 45,477 | 2,829 | 48,306 | 260,638 | (55,364 | ) | 205,274 | (356 | ) | 204,918 | ||||||||||||||||||||||
| Other Income (Expense): | ||||||||||||||||||||||||||||||||
| Interest expense on advances from SEACOR | (2,815 | ) | (767 | ) | (3,582 | ) | (19,327 | ) | 19,327 | — | — | — | ||||||||||||||||||||
| Finance costs | — | — | — | — | (19,327 | ) | (19,327 | ) | (254 | ) | bb | (19,581 | ) | |||||||||||||||||||
| SEACOR management fees | (10,501 | ) | (707 | ) | (11,208 | ) | (60,473 | ) | 60,473 | — | — | — | ||||||||||||||||||||
| Foreign currency losses, net | (17 | ) | (1 | ) | (18 | ) | (97 | ) | 97 | — | — | — | ||||||||||||||||||||
| Other, net | 13 | 13 | 26 | 140 | (140 | ) | — | — | — | |||||||||||||||||||||||
| Income before Income Tax Expense and Equity in Earnings of 50% or Less Owned Companies | 32,157 | 1,367 | 33,524 | 180,881 | 5,066 | 185,947 | (610 | ) | 185,337 | |||||||||||||||||||||||
| Income Tax Expense (Benefit): | ||||||||||||||||||||||||||||||||
| Current | 1,856 | 339 | 2,195 | 11,843 | (11,843 | ) | — | — | — | |||||||||||||||||||||||
| Current income tax and social contribution | — | — | — | — | 11,843 | 11,843 | — | 11,843 | ||||||||||||||||||||||||
| Deferred | (292 | ) | (67 | ) | (359 | ) | (1,937 | ) | 1,937 | — | — | — | ||||||||||||||||||||
| Deferred income tax and social contribution | — | — | — | — | (1,937 | ) | (1,937 | ) | — | (1,937 | ) | |||||||||||||||||||||
| Income Before Equity in Earnings of 50% or Less Owned Companies | 30,593 | 1,095 | 31,688 | 170,975 | 5,066 | 176,041 | (610 | ) | 175,431 | |||||||||||||||||||||||
| Equity in Earnings of 50% or Less Owned Companies, Net of Tax | 962 | 57 | 1,019 | 5,498 | (5,498 | ) | — | — | — | |||||||||||||||||||||||
| Net Income | 31,555 | 1,152 | 32,707 | 176,473 | (432 | ) | 176,041 | (610 | ) | 175,431 | ||||||||||||||||||||||
| Foreign currency translation losses, net of tax | (26 | ) | (54 | ) | (80 | ) | (432 | ) | 432 | — | — | — | ||||||||||||||||||||
| Comprehensive Income | $ | 31,529 | $ | 1,098 | $ | 32,627 | R$ | 176,041 | R$ | — | R$ | 176,041 | R$ | (610 | ) | R$ | 175,431 | |||||||||||||||
19
References — IFRS Adjustments and Reclassifications
The historical statement of financial position of Witt O’Brien’s has been adjusted to give effect to the differences between U.S. GAAP and IFRS for the purposes of the unaudited condensed combined pro forma financial information.
| (a) | The historical financial information of Witt O’Brien’s was prepared in accordance with U.S. GAAP and presented in U.S. dollars. The historical financial information was translated from U.S. dollars to Brazilian reais using the historical closing exchange rate, as of June 30, 2022, of $1.00 to R$5.238. |
| (b) | This adjustment was made to reclassify right of use assets as property, plant and equipment (“PP&E”), trade and other receivables and other accounts equivalents to prepaid expenses, and other accounts receivable to other long-term assets to be consistent with presentation of lease assets within the Emergencia historical financial statements. |
| (c) | Reflects the U.S. GAAP to IFRS conversion adjustment for the unwinding of historical pushdown accounting. PP&E was increased to unwind the acquisition fair value adjustment and restore the PP&E to its prior carrying amount. |
| (d) | Reflects the U.S. GAAP to IFRS conversion adjustment for the unwinding of historical pushdown accounting. Goodwill was added back to unwind the effect of pushdown accounting and reflect goodwill from Witt O’Brien’s prior acquisitions. |
| (e) | Reflects the U.S. GAAP to IFRS conversion adjustment for the unwinding of historical pushdown accounting. Intangible assets were decreased to remove intangible assets acquired in the 2021 business combination and to reflect Witt O’Brien’s intangible assets from its prior acquisitions. Amortization of intangible assets was recalculated to reflect the change on the balance sheet. |
| (f) | Reflects the U.S. GAAP to IFRS conversion adjustment for the unwinding of historical pushdown accounting. RLP Loans (advances from Seacor) was decreased to reflect unwinding of pushdown accounting and such amount was reclassed to loans and borrowings as Seacor is no longer a related party for the unaudited condensed combined pro forma financial information. |
| (g) | Reflects the U.S. GAAP to IFRS conversion adjustment for the unwinding of historical pushdown accounting. The additional paid-in capital account was adjusted to reflect the unwinding of pushdown accounting. |
| (h) | Reflects the U.S. GAAP to IFRS conversion adjustment for the unwinding of historical pushdown accounting. The accumulated translation adjustment account was adjusted to reflect the unwinding of pushdown accounting. |
| (i) | Reflects the U.S. GAAP to IFRS conversion adjustment for the unwinding of historical pushdown accounting. The retained earnings account was adjusted to reflect the unwinding of pushdown accounting. |
20
The historical statements of income of Witt O’Brien’s has been adjusted to give effect to the differences between U.S. GAAP and IFRS for the purposes of the unaudited condensed combined pro forma financial information.
| (aa) | The historical financial information of Witt O’Brien’s was prepared in accordance with U.S. GAAP and presented in U.S. dollars. The historical financial information was translated from U.S. dollars to Brazilian reais using the average exchange rate of $1.00 to R$5.078 for the six months ended June 30, 2022 and $1.00 to R$5.396 for the twelve months ended December 31, 2021. |
| (bb) | Reflects the U.S. GAAP to IFRS conversion adjustment for the unwinding of historical pushdown accounting. Selling, general and administrative expenses was increased to reflect the additional amortization charge of Witt O’Brien’s’ intangible assets recognized from prior acquisitions. Selling, general and administrative expenses was also reduced to reclassify the interest expense on lease liabilities to Finance costs. |
| 5. | Preliminary Allocation of Purchase Price |
On October 24, 2022, Emergencia acquired all of the issued and outstanding membership interests in Witt O’Brien’s, a provider of crisis and emergency management services for both the public and private sectors located in the United States. As such, the historical financial information has been adjusted to provide the pro forma effect to the WOB Acquisition. The pro forma statement of financial position assumes that the WOB Acquisition occurred as of June 30, 2022 and the pro forma statement of income (loss) assumes that the WOB Acquisition occurred on January 1, 2021.
The transaction has been accounted for as a business combination using the acquisition method of accounting in accordance with IFRS. The following table summarizes the preliminary fair value of the consideration transferred and the preliminary estimated fair values of the major classes of assets acquired and liabilities assumed at the acquisition date. The preliminary fair value of the intangible assets acquired has been determined using prior acquisitions as a benchmark for the purposes of a preliminary purchase price allocation.
| Preliminary Purchase Price Allocation (in 000s in reais) | ||||
| Cash consideration transferred | R$ | 855,690 | ||
| Trade and other receivables | 331,702 | |||
| Prepaid expenses | 5,458 | |||
| Other accounts receivable, current and noncurrent | 1,031 | |||
| Property, plant, and equipment | 19,637 | |||
| Deferred taxes | 8,826 | |||
| Other long-term assets | 10,282 | |||
| Intangible assets | 362,470 | |||
| Accounts payable and accrued expenses | (120,532 | ) | ||
| Income taxes payable | (4,054 | ) | ||
| Other liabilities | (78,371 | ) | ||
| Loans and financing | (70,990 | ) | ||
| Net Assets Acquired | 465,459 | |||
| Amount Allocated to Goodwill | R$ | 390,231 | ||
The goodwill allocation of R$390.2 million reflects expectations of favorable future growth opportunities and the assembled workforce.
The preliminary purchase price allocation has been translated from U.S. dollars to Brazilian reais using the historical closing exchange rate, as of June 30, 2022, of $1.00 to R$5.238, as reported by the Central Bank.
21
Pro Forma Adjustments
The following pro forma adjustments were added to give effect to the WOB Acquisition as if it occurred on June 30, 2022 for adjustments to the unaudited condensed combined pro forma statement of financial position, and as of January 1, 2021 for adjustments to the unaudited condensed combined pro forma statement of income (loss).
| A. | To reflect the consideration payment in the form of R$855.7 million in cash. This cash consideration is reflective of the price adjustment for net cash received of R$9.0 million and transaction expenses of R$13.1 million for total cash outflow of R$877.8 million. |
| B. | To reflect the elimination of Witt O’Brien’s historical equity. |
| C. | To reflect the elimination of historical intangible assets of R$30.3 million along with the fair value of the intangible assets acquired of R$362.5 million. This results in a reduction of the addition to goodwill by R$332.2 million. Our preliminary estimate of the weighted average useful lives of the acquired intangible assets was determined to be 13.0 years for customer relationships and 6 years for trademarks. The difference between the amortization of the historical intangible assets and intangible assets acquired resulted in an increased expense of R$14.9 million and R$7.1 million for the year ended December 31, 2021 and the six months ended June 30, 2022, respectively. The adjustment also reflects the income tax benefit of R$1.5 million for the six months ended June 30, 2022 and R$3.1 million for the year ended December 31, 2021. |
| D. | To reflect the removal of certain receivables of Witt O’Brien’s not acquired by Ambipar USA in accordance with the WOB SPA. |
22
Exhibit 15.2
Independent Registered Public Accounting Firm’s Consent
We consent to the incorporation by reference in this Shell Company Report of Ambipar Emergency Response on Form 20-F of our report dated April 14, 2022, which includes an explanatory paragraph as to the ability of HPX Corp. to continue as a going concern, with respect to our audits of the financial statements of HPX Corp. as of December 31, 2021 and 2020 and for the year ended December 31, 2021 and for the period from March 20, 2020 (inception) through December 31, 2020, appearing in Amendment No. 2 to the Form F-4 Registration Statement of Ambipar Emergency Response (File No. 333-268795) filed with the Securities and Exchange Commission on January 30, 2023. We also consent to the reference to our firm under the heading “Statement by Experts” in this Shell Company Report on Form 20-F.
/s/ Marcum llp
Marcum llp
New York, NY
March 7, 2023
Exhibit 15.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form 20-F of Ambipar Emergency Response of our report dated August 31, 2022, except for Note 1.2, Note 1.3, Note 3.1.15, Note 7, Note 9 and Note 23 as to which the date is December 12, 2022, relating to the combined financial statements of Emergência Participações S.A., which appears in the Registration Statement on Form F-4 (No. 333-268795) of Ambipar Emergency Response. We also consent to the reference to our firm under the heading “Statement by Experts” in this Registration Statement on Form 20-F.
/s/ BDO RCS Auditores Independentes S.S.
BDO RCS Auditores Independentes S.S.
Campinas, Brazil
March 7, 2023
Exhibit 15.4
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTING FIRM
We have issued our report dated May 19, 2022, with respect to the consolidated financial statements of Witt O’Brien’s, LLC. as of December 31, 2021 and 2020 and for the Successor period April 15, 2021, through December 31, 2021, and the Predecessor periods January 1, 2021, through April 14, 2021, and year ended December 31, 2020, which are incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned reports in this Registration Statement and to the use of our name as it appears under the caption “Statement by Experts”.
/s/ Grant Thornton LLP
Fort Lauderdale, Florida
March 7, 2023