8-K
Kairous Acquisition Corp. Ltd (KACLF)
UNITEDSTATES
SECURITIESAND EXCHANGE COMMISSION
Washington,D.C. 20549
Form8-K
CurrentReport
Pursuantto Section 13 or 15(d) of the
SecuritiesExchange Act of 1934
December13, 2021
Date of Report (Date of earliest event reported)
KairousAcquisition Corp. Limited
(Exact Name of Registrant as Specified in its Charter)
| Cayman Islands | 001-41155 | n/a |
|---|---|---|
| (State or other jurisdiction<br><br> <br>of incorporation) | (Commission<br><br> <br>File<br>Number) | (I.R.S. Employer<br><br> <br>Identification No.) |
| Unit 9-3, Oval Tower @ Damansara,<br><br> <br>No. 685, Jalan Damansara,<br><br> <br>60000 Taman Tun Dr. Ismail,<br><br> <br>Kuala Lumpur, Malaysia | 60000 | |
| --- | --- | |
| (Address<br> of Principal Executive Offices) | (Zip<br> Code) |
Registrant’s telephone number, including area code: + 603 7733 9340
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written<br> communications pursuant to Rule 425 under the Securities Act |
|---|---|
| ☐ | Soliciting<br> material pursuant to Rule 14a-12 under the Exchange Act |
| ☐ | Pre-commencement<br> communications pursuant to Rule 14d-2(b) under the Exchange Act |
| ☐ | Pre-commencement<br> communications pursuant to Rule 13e-4(c) under the Exchange Act |
Securities registered pursuant to Section 12(b) of the Act:
| Title<br> of each class | Trading<br> Symbol | Name<br> of each exchange on which registered |
|---|---|---|
| Units,<br> each consisting of one ordinary share, $0.0001 par value, one-half (1/2) of one redeemable warrant and one right entitling the holder<br> to receive one-tenth of one ordinary share | KACLU | The<br> Nasdaq Stock Market LLC |
| Ordinary<br> shares, par value $0.0001 per share | KACL | The<br> Nasdaq Stock Market LLC |
| Redeemable<br> warrants, each exercisable for one ordinary share at an exercise price of $11.50 included as part of the units | KACLW | The<br> Nasdaq Stock Market LLC |
| Rights,<br> each to receive one-tenth of one ordinary share | KACLR | The<br> Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item1.01. Entry into a Material Definitive Agreement.
On December 16, 2021, Kairous Acquisition Corp. Limited (the “Company”) consummated its initial public offering (the “IPO”) of 7,500,000 units (the “Units”), each Unit consisting of one ordinary share of the Company, par value $0.0001 per share (the “Ordinary Share”), one-half of one redeemable warrant (the “Warrant”), each whole Warrant entitling the holder thereof to purchase one Ordinary Share for $11.50 per share, and one right (the “Right”) to receive one-tenth (1/10) of one Ordinary Share upon consummation of an initial business combination. The Units were sold at a price of $10.00 per Unit, generating aggregate gross proceeds to the Company of $75,000,000.
In connection with the IPO, the Company entered into the following agreements, forms of which were previously filed as exhibits to the Company’s Registration Statement on Form S-1 (File No. 333-259031) related to the IPO, originally filed with the U.S. Securities and Exchange Commission (the “Commission”) on August 24, 2021 (as amended, the “Registration Statement”):
| ● | An<br> Underwriting Agreement, dated December 13, 2021, by and between the Company and Maxim Group LLC, a copy of which is filed as Exhibit<br> 1.1 hereto and incorporated herein by reference. |
|---|---|
| ● | A<br> Warrant Agreement, dated December 13, 2021, by and between the Company and Continental Stock Transfer & Trust Company, LLC as<br> warrant agent, a copy of which is filed as Exhibit 4.1 hereto and incorporated herein by reference. |
| --- | --- |
| ● | A<br> Rights Agreement, dated December 13, 2021, by and between the Company and Continental Stock Transfer & Trust Company as rights<br> agent, a copy of which is filed as Exhibit 4.2 hereto and incorporated herein by reference. |
| ● | A<br> Unit Purchase Option dated December 16, 2021, by and between the Company and Maxim Group LLC, a copy of which is filed as Exhibit<br> 4.3 hereto and incorporated herein by reference. |
| ● | A<br> Letter Agreement, dated December 13, 2021, by and among the Company, Maxim Group LLC and Company’s officers and directors,<br> a copy of which is filed as Exhibit 10.1 hereto and incorporated herein by reference. |
| --- | --- |
| ● | A<br> Letter Agreement, dated December 13, 2021, by and between the Company, Maxim Group LLC and Kairous Asia Limited, the sponsor of the<br> Company (the “Sponsor”), a copy of which is filed as Exhibit 10.2 hereto and incorporated herein by reference. |
| ● | An<br> Investment Management Trust Agreement, dated December 13, 2021, by and between the Company and Continental Stock Transfer & Trust<br> Company as trustee, a copy of which is filed as Exhibit 10.3 hereto and incorporated herein by reference. |
| --- | --- |
| ● | A<br> Registration Rights Agreement, dated December 13, 2021, by and among the Company and certain security holders, a copy of which is<br> filed as Exhibit 10.4 hereto and incorporated herein by reference. |
| ● | A<br> Stock Escrow Agreement, dated December 13, 2021, by and among the Company and certain security holders, a copy of which is filed<br> as Exhibit 10.5 and incorporated herein by reference. |
| ● | Indemnity<br> Agreements, each dated as of December 13, 2021, by and between the Company and each of the officers and directors of the Company,<br> a form of which is filed as Exhibit 10.6 and incorporated herein by reference. |
| ● | A<br> Subscription Agreement, dated December 13, 2021, by and between the Company and the Sponsor, a copy of which is filed as Exhibit<br> 10.7 and incorporated herein by reference. |
On December 14, 2021, the underwriter of the IPO partially exercised its over-allotment option, and the closing and sale of an additional 300,000 Units (the “Over-Allotment Units”) occurred on December 16, 2021. The issuance by the Company of the Over-Allotment Units at a price of $10.00 per Unit resulted in total gross proceeds of $3,000,000.
As of December 16, 2021, a total of $78,780,000 of the net proceeds from the IPO (including the over-allotment) and the Private Placement (as defined below) were deposited in a trust account established for the benefit of the Company’s public stockholders. An audited balance sheet as of December 16, 2021 reflecting receipt of the proceeds upon consummation of the IPO and the Private Placement will be filed within 4 business days of the consummation of the IPO.
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Item3.02. Unregistered Sales of Equity Securities.
Simultaneously with the closing of the IPO, the Company consummated the private placement (the “Private Placement”) with the Sponsor of 357,143 Units (the “Private Units”) at a price of $10.00 per Private Unit, generating total proceeds of $3,571,430.
The Private Units are identical to the Units sold in the IPO except with respect to certain registration rights and transfer restrictions. The Sponsor has agreed not to transfer, assign, or sell any of the Private Units or underlying securities (except in limited circumstances, as described in the Registration Statement) until after the Company completes its initial business combination.
The Private Units were issued pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended, as the transactions did not involve a public offering.
As of December 16, 2021, a total of $78,780,000 of the net proceeds from the IPO (including the over-allotment) and the Private Placement were deposited in a trust account established for the benefit of the Company’s public shareholders. An audited balance sheet as of December 16, 2021, reflecting receipt of the proceeds upon consummation of the IPO and the Private Placement will be filed within 4 business days of the consummation of the IPO.
Item5.03. Amendments to Certificate of Incorporation or Bylaws.
On December 13, 2021, in connection with the IPO, the Company filed its Amended and Restated Memorandum and Articles of Association with the Registrar of Corporate Affairs in the Cayman Islands. The terms of the Amended and Restated Memorandum and Articles of Association are set forth in the Registration Statement and are incorporated herein by reference. A copy of the Company’s Amended and Restated Memorandum and Articles of Association is attached as Exhibit 3.1 hereto, and is incorporated by reference herein.
Item8.01. Other Events.
On December 13, 2021, the Company issued a press release announcing the pricing of the IPO, a copy of which is attached as Exhibit 99.1 to this Current Report on Form 8-K.
On December 16, 2021, the Company issued a press release announcing the closing of the IPO, a copy of which is attached as Exhibit 99.2 to this Current Report on Form 8-K.
Item9.01. Financial Statements and Exhibits.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Dated:<br> December 16, 2021 | Kairous<br> Acquisition Corp. Limited | |
|---|---|---|
| By: | /s/ Joseph Lee Moh Hon | |
| Name: | Joseph<br> Lee Moh Hon | |
| Title: | Chief<br> Executive Officer |
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Exhibit1.1
7,500,000UNITS
KAIROUSACQUISITION CORP. LIMITED
UNDERWRITINGAGREEMENT
December 13, 2021
MAXIM GROUP LLC
300 Park Avenue, 16^th^ Floor
New York, NY 10022
AsRepresentative of the Underwriters
namedon Schedule A hereto
Ladies and Gentlemen:
The undersigned, KAIROUS ACQUISITION CORP. LIMITED, a Cayman Islands company (“Company”), hereby confirms its agreement with Maxim Group LLC (hereinafter referred to as “you”, “Maxim”, or as the “Representative”) and with the other underwriters named on Schedule A hereto for which you are acting as representative (the Representative and the other Underwriters being collectively referred to herein as the “Underwriters” or, individually, an “Underwriter”), as follows:
1. Purchase and Sale of Securities.
1.1. Firm Securities.
1.1.1. Purchase of Firm Units. On the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell, severally and not jointly, to the several Underwriters, an aggregate of 7,500,000 units (the “Firm Units”) of the Company at a purchase price (net of discounts, including the Deferred Underwriting Discounts described in Section 1.3 below) of $9.45 per Firm Unit, subject to certain adjustments set forth in Section 1.3 below. The Underwriters, severally and not jointly, agree to purchase from the Company the number of Firm Units set forth opposite their respective names on Schedule A attached hereto and made a part hereof at a purchase price (net of discounts, including the Deferred Underwriting Discounts described in Section 1.3 below) of $9.45 per Firm Unit. The Firm Units (and the Option Units (as hereinafter defined), if any) are to be offered initially to the public (the “Offering”) at the offering price of $10.00 per Firm Unit. Each Firm Unit consists of one (1) ordinary share of the Company, $0.0001 par value per share (“Ordinary Share(s)”), one half (1/2) of one redeemable warrant (“Warrant(s)”) and one (1) right (“Right(s)”) to acquire one-tenth (1/10) of an Ordinary Share upon the consummation of the initial Business Combination (as defined below). The Ordinary Shares, Warrants and Rights included in the Firm Units will not be separately transferable until the 52^nd^ Business Day after the date that the Registration Statement (as defined below) becomes effective (“Effective Date”) or the announcement by the Company of the Representative’s decision to allow earlier trading, subject, however, to the Company filing a Current Report on Form 8-K (“Form 8-K”) with the Commission (as defined below) containing an audited balanced sheet reflecting the Company’s receipt of the gross proceeds of the Offering and issuing a press release announcing when such separate trading will begin. In no event will the Company allow separate trading until (i) the preparation of an audited balance sheet of the Company reflecting receipt by the Company of the proceeds of the Offering and the filing of such audited balance sheet with the Commission on a Form 8-K or similar form by the Company which includes such balance sheet and (ii) the issuance of a press release announcing when such separate trading shall begin. Each whole Warrant entitles the holder thereof to purchase one Ordinary Share at a price of $11.50 per full share. No fractional warrants will be issued upon separation of the units and only whole warrants will trade. As used herein, the term “BusinessCombination” shall mean any share exchange, share reconstruction and amalgamation, purchasing all or substantially all of the assets of, entering into contractual arrangements with, or engaging in any other similar business combination with, one or more operating businesses by the Company. The Company has the right to redeem the Warrants, with the prior consent of the Representative, upon a minimum of thirty (30) days written notice at a price of $0.01 per Warrant at any time after the Warrants become exercisable; so long as the last sales price of the Ordinary Shares has been at least $16.50 per share for any twenty (20) trading days within a thirty (30) trading day period ending on the third (3rd) Business Day prior to the day on which notice is given. As used herein, the term “BusinessDay” shall mean any day other than a Saturday, Sunday or any day on which national banks in New York, New York are not open for business.
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1.1.2. Payment and Delivery. Delivery and payment for the Firm Units shall be made at 10:00 A.M., New York time, on the second (2^nd^) Business Day following the Effective Date of the Registration Statement (or the third (3^rd^) Business Day following the Effective Date, if the Registration Statement is declared effective at or after 4:00 p.m.) or at such earlier time as shall be agreed upon by the Representative and the Company at the offices of Maxim or at such other place as shall be agreed upon by the Representative and the Company. The closing of the public offering contemplated by this Agreement is referred to herein as the “Closing” and the hour and date of delivery and payment for the Firm Units is referred to herein as the “Closing Date.” Payment for the Firm Units shall be made on the Closing Date at the Representative’s election by wire transfer in Federal (same day) funds or by certified or bank cashier’s check(s) in New York Clearing House funds. $75,750,000 ($87,112,500 if the Over-allotment Option (as defined in Section 1.2) is exercised in full), or approximately $10.10 per unit, of the proceeds received by the Company for the Firm Units and from the Private Placement (as defined in Section 1.5) shall be deposited in the trust account established by the Company for the benefit of the public shareholders as described in the Registration Statement (the “Trust Account”) pursuant to the terms of an Investment Management Trust Agreement (the “Trust Agreement”). Such amount includes an aggregate of $2,625,000 ($3,018,750 if the Over-allotment Option is exercised in full), or $0.35 per unit, payable to Maxim as Deferred Underwriting Discounts in accordance with Section 1.3 hereof, to be placed by the Underwriters in the Trust Account. The proceeds (less discounts, expense allowance and actual expense payments or other fees payable pursuant to this Agreement) shall be paid to the order of the Company upon delivery to the Representative of certificates (in form and substance satisfactory to the Underwriters) representing the Firm Units (or through the facilities of the Depository Trust Company (“DTC”)) for the account of the Underwriters. The Firm Units shall be registered in such name or names and in such authorized denominations as the Representative may request in writing at least two (2) Business Days prior to the Closing Date. The Company will permit the Representative to examine and package the Firm Units for delivery at least one (1) full Business Day prior to the Closing Date. The Company shall not be obligated to sell or deliver the Firm Units except upon tender of payment by the Representative for all the Firm Units.
1.2. Over-allotment Option.
1.2.1. Option Units. For the purpose of covering any over-allotments in connection with the distribution and sale of the Firm Units, the Underwriters are hereby granted, severally and not jointly, an option to purchase up to an additional 1,125,000 units from the Company (the “Over-allotment Option”). Such additional 1,125,000 units shall be identical in all respects to the Firm Units and are hereinafter referred to as “Option Units.” The Firm Units and the Option Units are hereinafter collectively referred to as the “Units,” and the Units, the Ordinary Shares, the Rights and the Warrants included in the Units and the Ordinary Shares issuable upon exercise of the Rights and the Warrants are hereinafter referred to collectively as the “PublicSecurities.” The purchase price to be paid for the Option Units (net of discounts), including the Deferred Underwriting Discounts described in Section 1.3 below will be $9.45 per Option Unit. The Option Units are to be offered initially to the public at the offering price of $10.00 per Option Unit.
1.2.2. Exercise of Option. The Over-allotment Option granted pursuant to Section 1.2.1 hereof may be exercised by the Representative as to all (at any time) or any part (from time to time) of the Option Units within 45 days after the Effective Date. The Underwriters will not be under any obligation to purchase any Option Units prior to the exercise of the Over-allotment Option. The Over-allotment Option granted hereby may be exercised by the giving of oral notice to the Company from the Representative, which must be confirmed in writing by e-mail transmission within 24 hours of providing oral notice, setting forth the number of Option Units to be purchased and the date and time for delivery of and payment for the Option Units, which will not be later than five (5) Business Days after the date of the written notice or such other time as shall be agreed upon by the Company and the Representative, at the offices of the Representative or at such other place or in such other manner as shall be agreed upon by the Company and the Representative. If such delivery and payment for the Option Units does not occur on the Closing Date, the date and time of the closing for such Option Units will be as set forth in the notice (hereinafter the “Option Closing Date”). Upon exercise of the Over-allotment Option, the Company will become obligated to convey to the Underwriters, and, subject to the terms and conditions set forth herein, the Underwriters will become obligated to purchase, the number of Option Units specified in such notice.
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1.2.3. Payment and Delivery. Delivery and payment for the Option Units shall be made at 10:00 AM, New York time, on the Option Closing Date or at such earlier time as shall be agreed upon by the Representative and the Company at the offices of the Representative or at such other place as shall be agreed upon by the Representative and the Company. Payment for the Option Units shall be made on the Option Closing Date (or at such earlier time as shall be agreed upon by the Representative and the Company) at the Representative’s election by wire transfer in Federal (same day) funds or by certified or bank cashier’s check(s) in New York Clearing House funds, by deposit of the sum of $9.80 per Option Unit in the Trust Account pursuant to the Trust Agreement upon delivery to the Representative of certificates (in form and substance satisfactory to the Underwriters) representing the Option Units (or through the facilities of DTC) for the account of the Underwriters. Such amount includes an aggregate of $2,625,000, or $0.35 per unit, payable to Maxim as Deferred Underwriting Discounts in accordance with Section 1.3 hereof. The certificates representing the Option Units to be delivered will be in such denominations and registered in such names as the Representative requests not less than two (2) Business Days prior to the Closing Date or the Option Closing Date, as the case may be, and will be made available to the Representative for inspection, checking and packaging at the aforesaid office of the Company’s transfer agent or correspondent not less than one (1) full Business Day prior to such Closing Date or Option Closing Date.
1.3. Deferred Underwriting Discounts. The Underwriters agree that (i) 3.5% of the gross proceeds from the sale of the Firm Units ($2,625,000) and (ii) 3.5% of the gross proceeds from the sale of the Option Units (up to $393,750) (collectively, the “Deferred UnderwritingDiscounts”) will be deposited in and held in the Trust Account and payable directly from the Trust Account, without accrued interest, to Maxim for its own account upon consummation of the Business Combination. In the event that the Company is unable to consummate a Business Combination and Continental Stock Transfer & Trust Company (“CST”), as the trustee of the Trust Account (in this context, the “Trustee”), commences liquidation of the Trust Account as provided in the Trust Agreement, the Underwriter agrees that: (i) the Underwriters hereby forfeit any rights or claims to the Deferred Underwriting Discounts; and (ii) the Deferred Underwriting Discounts, together with all other amounts on deposit in the Trust Account, shall be distributed on a pro-rata basis among the public shareholders.
1.4. Representative’s Purchase Option.
1.4.1 Purchase Option. As additional consideration, the Company hereby agrees to issue and sell to the Representative (and/or its designees) on the Effective Date an option (“Representative’s Purchase Option”) for the purchase of an aggregate of 375,000 (or 431,250 Units if the Over-allotment Option is exercised in full) Units (the “Representative’s Units”) for an aggregate purchase price of $100.00. The Representative’s Units are identical to the Firm Units, except that the Representative’s Units, if the Representative’s Purchase Option is exercised, will be purchased pursuant to an exemption from the registration requirements of the Securities Act and will become tradable only after certain conditions are met or the resale of such Representative Units is registered under the Securities Act. The Representative’s Purchase Option shall be exercisable, in whole or in part, commencing on the first anniversary of the Effective Date, and expiring on the fifth anniversary of the Effective Date, for cash or on a cashless basis, at an initial exercise price per Representative’s Unit of $11.00, which is equal to one hundred and ten percent (110%) of the initial public offering price of a Unit. The Representative’s Purchase Option and the Representative’s Units are deemed compensation by the Financial Industry Regulatory Authority (“FINRA”) and are therefore subject to a lock-up for a period of 180 days beginning on the date of commencement of sales of the Offering pursuant to FINRA Rule 5110(e)(1), during which time the Purchase Option, the Representative’s Units and the underlying securities may not be sold, transferred, assigned, pledged or hypothecated, or be subject of any hedging, short sale, derivative or put or call transaction that would result in the economic disposition of the securities.
Each Representative’s Unit consists of one (1) Ordinary Share of the Company, one-half (1/2) of one redeemable Warrant with each whole Warrant entitling the holder thereof to purchase one Ordinary Share at a price of $11.50 per full share, and one (1) Right to acquire one-tenth (1/10) of an Ordinary Share upon the consummation of a Business Combination. The Representative’s Purchase Option, the Representative’s Units, the Ordinary Shares, Warrants (the “Representative’s Warrants”) and Rights (the “Representative’s Rights”) included in the Representative’s Units and the Ordinary Shares issuable pursuant to the terms of the Representative’s Rights and the Representative’s Warrants are hereinafter referred to collectively as the “Representative’s Securities.” The Public Securities and the Representative’s Securities are hereinafter referred to collectively as the “Securities.”
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1.4.2 Delivery and Payment. Delivery and payment for the Representative’s Purchase Option shall be made on the Closing Date. The Company shall deliver to the Representative and their designees upon payment therefor, certificates for the Representative’s Purchase Option in the name or names and in such authorized denominations as the Representative may request.
1.5 Private Placement; Placement Units. Simultaneously with the consummation of the Offering, Kairous Asia Limited (the “Sponsor”) shall purchase from the Company pursuant to the Subscription Agreement (as defined in Section 2.26.2 hereof) an aggregate of 348,143 private units of the Company, which are identical to the Firm Units subject to certain exceptions at a purchase price of $10.00 per unit (the “Initial Placement Units”) in a private placement (the “Initial Unit Private Placement”), intended to be exempt from registration under the Securities Act of 1933, as amended (the “Act”), pursuant to Section 4(a)(2) of the Act. The terms of the Initial Placement Units are as described in the Prospectus (as defined in Section 2.1.1 below). Simultaneously with the Option Closing Date (if any), the Sponsor will purchase from the Company additional units on a pro rata basis (up to a maximum of 33,750 private units at a price of $10.00 per unit) (the “Additional Placement Units”) with the amount of the Over-allotment Option exercised so that at least $10.00 per share sold to the public in this Offering is held in trust regardless of whether the Over-allotment Option is exercised in full or part. The Additional Placement Units are identical to the Firm Units subject to certain exceptions and will be sold in a private placement (the “Additional Unit Private Placement”) intended to be exempt from registration under the Act pursuant to Section 4(a)(2) of the Act. The Initial Placement Units and the Additional Placement Units are hereinafter referred to collectively as the “Placement Units”. The Initial Unit Private Placement and the Additional Unit Private Placement are hereinafter referred to collectively as the “Private Placement”.
The Placement Units, the ordinary shares, warrants and rights underlying the Placement Units, and the ordinary shares issuable upon exercise of the underlying warrants and rights are hereinafter referred to collectively as the “Placement Securities”. None of the Placement Securities may be sold, assigned or transferred by the Sponsor or its transferees until after the consummation of a Business Combination. The purchase price for the Placement Units to be paid by the Sponsor has been delivered to CST or counsel to the Company or the Representative to hold in a separate escrow account at least 24 hours prior to the date hereof so that such funds are readily available to be delivered to the Trust Account on the Closing Date or the Option Closing Date, as the case may be. The Public Securities, the Insider Shares and the Placement Units are hereinafter referred to collectively as the “Securities.”
1.6 Representative Shares. Upon the Closing of the Offering, the Company shall issue to the Representative 37,500 Ordinary Shares (the “Representative Shares”) (or 43,125 Ordinary Shares if the Over-Allotment Option is exercised in full). The Representative has agreed not to transfer, assign or sell any such Representative Shares without prior consent of the Company until the completion of the initial Business Combination. In addition, the Representative has agreed (i) to waive its redemption rights (or right to participate in any tender offer) with respect to such shares in connection with the completion of the initial Business Combination and (ii) to waive its rights to liquidating distributions from the trust account with respect to such shares if the Company fails to complete the initial Business Combination within 12 months from the Closing of the Offering. The Representative Shares are deemed compensation by FINRA and are therefore subject to a lock-up for a period of 180 days beginning on the date of commencement of sales of the Offering pursuant to FINRA Rule 5110(e)(1), during which time the Representative will not sell, transfer, assign, pledge or hypothecate the Representative Shares, or cause the Representative Shares to be the subject of any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the Representative Shares by any person, except to anyone other than (i) the Representative or an underwriter or selected dealer in connection with the Offering, or (ii) a bona fide officer or partner of the Representative or of any such underwriter or selected dealer.
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1.7 Registration Rights.
1.7.1 Demand Registration.
1.7.1.1 Grant of Right. Unless all of the Registrable Securities (as defined below) are included in an effective registration statement with a current prospectus or a qualified offering statement with a current registration statement, the Company, upon written demand (a “Demand Notice”) of the Representative, agrees to register, on one occasion, all or any portion of the Representative Shares that are permitted to be registered under the Act (collectively, the “Registrable Securities”). On such occasion, the Company will file a registration statement with the Commission (a “Demand Registration Statement”) covering the Registrable Securities within sixty (60) days after receipt of a Demand Notice and use its best efforts to have the registration statement declared effective promptly thereafter, subject to compliance with review by the Commission; provided, however, that the Company shall not be required to comply with a Demand Notice if the Company has filed a registration statement with respect to which the Representative is entitled to piggyback pursuant to Section 1.7.1 hereof and either: (i) the Representative has elected to participate in the offering covered by such registration statement; or (ii) if such registration statement relates to an underwritten primary offering of securities of the Company, until the offering covered by such registration statement has been withdrawn or until thirty days after such offering is consummated. The demand for registration may be made at any time during a period of five years beginning on the date of commencement of sales of the Offering.
1.7.1.2 Terms. The Company shall bear all fees and expenses attendant to the Demand Registration Statement pursuant to Section 1.7.1.1, but the Representative shall pay any and all underwriting commissions and the expenses of any legal counsel selected by the Representative to represent the Representative in connection with the sale of the Registrable Securities. The Company agrees to use its best efforts to cause the filing of a Demand Registration Statement required herein to become effective promptly and to qualify or register the Registrable Securities in such states as are reasonably requested by the Representative; provided, however, that in no event shall the Company be required to register the Registrable Securities in a state in which such registration would cause: (i) the Company to be obligated to register or license to do business in such State or submit to general service of process in such State, or (ii) the principal shareholders of the Company to be obligated to escrow their shares of the Company. The Company shall cause any registration statement filed pursuant to the demand right granted under Section 1.7.1.1 to remain effective for a period of at least 12 consecutive months after the date that the holders of the Registrable Securities covered by such registration statement are first given the opportunity to sell all of such securities. The Representative shall only use the prospectuses provided by the Company to sell the shares covered by such registration statement, and will immediately cease to use any prospectus furnished by the Company if the Company advises the Representative that such prospectus may no longer be used due to a material misstatement or omission. Notwithstanding the provisions of this Section 1.7.1.2, the Representative shall be entitled to a Demand Registration Statement under this Section 1.7.1.2 on only one occasion and such demand registration right shall terminate on the fifth anniversary of the commencement of sales of the Offering in accordance with FINRA Rule 5110(g)(8)(B) and (C).
1.7.2 “Piggy-Back” Registration.
1.7.2.1 Grant of Right. Unless all of the Registrable Securities are included in an effective registration statement with a current prospectus or a qualified offering statement with a current offering circular, the Holder shall have the right, for a period of five years commencing on the date of commencement of sales of the Offering, to include the remaining Registrable Securities as part of any other registration of securities filed by the Company (other than in connection with a transaction contemplated by Rule 145 promulgated under the Act or pursuant to Form S-3 or any equivalent form).
1.7.2. Terms. The Company shall bear all fees and expenses attendant to registering the Registrable Securities pursuant to Section 1.7.2.1 hereof, but the Representative shall pay any and all underwriting commissions and the expenses of any legal counsel selected by the Representative to represent them in connection with the sale of the Registrable Securities. In the event of such a proposed registration, the Company shall furnish the Representative with not less than 30 days written notice prior to the proposed date of filing of such registration statement. Such notice to the Representative shall continue to be given for each registration statement filed by the Company until such time as all of the Registrable Securities have been registered under an effective registration statement. The holders of the Registrable Securities shall exercise the “piggy-back” rights provided for herein by giving written notice, within ten days of the receipt of the Company’s notice of its intention to file a registration statement. There shall be no limit on the number of times the Representative may request registration under this Section 1.7.2.2. Notwithstanding the provisions of this Section 1.7.2.2, such piggyback registration rights shall terminate on the fifth anniversary of the commencement of sales of the Offering in accordance with FINRA Rule 5110(g)(8)(D).
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2. Representations and Warranties of the Company. The Company represents and warrants to the Underwriters as follows:
2.1. Filing of Registration Statement.
2.1.1. Pursuant to the Act. The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement and an amendment or amendments thereto, on Form S-1 (File No. 333-259031), including any related preliminary prospectus (the “Preliminary Prospectus”, including any prospectus that is included in the Registration Statement immediately prior to the effectiveness of the Registration Statement), for the registration of the Public Securities under the Securities Act of 1933, as amended (the “Act”), which registration statement and amendment or amendments have been prepared by the Company in conformity in all material respects with the requirements of the Act, and the rules and regulations (the “Regulations”) of the Commission under the Act. The conditions for use of Form S-1 to register the Offering under the Act, as set forth in the General Instructions to such Form, have been satisfied in all material respects. Except as the context may otherwise require, such registration statement, as amended, on file with the Commission at the time the registration statement becomes effective (including the prospectus, financial statements, schedules, exhibits and all other documents filed as a part thereof or incorporated therein and all information deemed to be a part thereof as of such time pursuant to Rule 430A of the Regulations), is hereinafter called the “RegistrationStatement,” and the form of the final prospectus dated the Effective Date included in the Registration Statement (or, if applicable, the form of final prospectus containing information permitted to be omitted at the time of effectiveness by Rule 430A of the Regulations filed with the Commission pursuant to Rule 424 of the Regulations), is hereinafter called the “Prospectus.” For purposes of this Agreement, “Time of Sale”, as used in the Act, means 5:00 p.m., New York City time, on the date of this Agreement. If the Company has filed, or is required pursuant to the terms hereof to file, a registration statement pursuant to Rule 462(b) under the Act registering the Securities (a “Rule 462(b) Registration Statement”), then, unless otherwise specified, any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462(b) Registration Statement. Other than a Rule 462(b) Registration Statement, which, if filed, becomes effective upon filing, no other document with respect to the Registration Statement has heretofore been filed with the Commission. All of the Public Securities have been registered under the Act pursuant to the Registration Statement or, if any Rule 462(b) Registration Statement is filed, will be duly registered under the Act with the filing of such Rule 462(b) Registration Statement. The Registration Statement has been declared effective by the Commission on the date hereof. If, subsequent to the date of this Agreement, the Company or the Representative has determined that at the Time of Sale the Prospectus included an untrue statement of a material fact or omitted a statement of material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and have agreed to provide an opportunity to purchasers of the Firm Units to terminate their old purchase contracts and enter into new purchase contracts, the Prospectus will be deemed to include any additional information available to purchasers at the time of entry into the first such new purchase contract.
2.1.2. Pursuant to the Exchange Act. The Company has filed with the Commission a Form 8-A (File Number 001-41155) providing for the registration under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of the Units, the Ordinary Shares, the Warrants and the Rights. The registration of the Units, Ordinary Shares, Warrants and Rights under the Exchange Act will be declared effective by the Commission on or prior to the Effective Date.
2.2. No Stop Orders, Etc. Neither the Commission nor, to the best of the Company’s knowledge, any state regulatory authority has issued any order or threatened to issue any order preventing or suspending the use of any Preliminary Prospectus or has instituted or, to the best of the Company’s knowledge, threatened to institute any proceedings with respect to such an order.
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2.3. Disclosures in Registration Statement.
2.3.1. 10b-5 Representation. At the time the Registration Statement became effective, upon the filing or first use (within the meaning of the Regulations) of the Prospectus and at the Closing Date and the Option Closing Date, if any, the Registration Statement and the Prospectus contained or will contain all material statements that are required to be stated therein in accordance with the Act and the Regulations, and did or will in all material respects conform to the requirements of the Act and the Regulations. Neither the Registration Statement nor any Preliminary Prospectus or the Prospectus, nor any amendment or supplement thereto, on their respective dates, did or will contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Preliminary Prospectus and the Prospectus, in light of the circumstances under which they were made), not misleading. When any Preliminary Prospectus was first filed with the Commission (whether filed as part of the Registration Statement for the registration of the Securities or any amendment thereto or pursuant to Rule 424(a) of the Regulations) or first used (within the meaning of the Regulations) and when any amendment thereof or supplement thereto was first filed with the Commission or first used (within the meaning of the Regulations), such Preliminary Prospectus and any amendments thereof and supplements thereto complied or will have been corrected in the Prospectus to comply in all material respects with the applicable provisions of the Act and the Regulations and did not and will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The representation and warranty made in this Section 2.3.1 does not apply to statements made or statements omitted in reliance upon and in conformity with written information furnished to the Company with respect to the Underwriters by the Representative expressly for use in the Registration Statement or Prospectus or any amendment thereof or supplement thereto. It is understood the following identified statements set forth in the Prospectus under the heading “Underwriting” constitute, for the purposes of this Agreement, information furnished by the Representative with respect to the Underwriters: (i) the names of the Underwriters; (ii) the table of underwriters in the first paragraph of the section captioned “Underwriting”, and (iii) the subsection captioned “Regulatory Restrictions on Purchase of Securities” included in the section captioned “Underwriting.”
2.3.2. Disclosure of Agreements. The agreements and documents described in the Registration Statement, the Preliminary Prospectus and the Prospectus conform to the descriptions thereof contained therein and there are no agreements or other documents required to be described in the Registration Statement, the Preliminary Prospectus or the Prospectus or to be filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed. Each agreement or other instrument (however characterized or described) to which the Company is a party or by which its property or business is or may be bound or affected and (i) that is referred to in the Registration Statement, Preliminary Prospectus or the Prospectus or attached as an exhibit thereto, or (ii) is material to the Company’s business, has been duly and validly executed by the Company, is in full force and effect in all material respects and is enforceable against the Company and, to the Company’s knowledge, the other parties thereto, in accordance with its terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought, and none of such agreements or instruments has been assigned by the Company, and neither the Company nor, to the Company’s knowledge, any other party is in breach or default thereunder and, to the best of the Company’s knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a breach or default thereunder. To the Company’s knowledge, performance by the Company of the material provisions of such agreements or instruments will not result in a material violation of any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses, including, without limitation, those relating to environmental laws and regulations.
2.3.3. Prior Securities Transactions. No securities of the Company have been sold by the Company or by or on behalf of, or for the benefit of, any person or persons controlling, controlled by, or under common control with the Company since the date of the Company’s formation, except as disclosed in the Registration Statement.
2.3.4. Regulations. The disclosures in the Registration Statement, the Preliminary Prospectus and the Prospectus concerning the effects of applicable federal, state and local regulation on the Company’s business, as currently contemplated, fairly summarize, to the best of the Company’s knowledge, such effects and do not omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading.
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2.4. Changes After Dates in Registration Statement.
2.4.1. No Material Adverse Change. Except as contemplated or disclosed in the Prospectus, since the respective dates as of which information is given in the Registration Statement, any Preliminary Prospectus and/or the Prospectus (i) there has been no material adverse change in the condition, financial or otherwise, or business prospects of the Company; (ii) there have been no material transactions entered into by the Company, other than as contemplated pursuant to this Agreement; (iii) no member of the Company’s board of directors or management has resigned from any position with the Company and (iv) no event or occurrence has taken place which materially impairs, or would likely materially impair, with the passage of time, the ability of the members of the Company’s board of directors or management to act in their capacities with the Company as described in the Registration Statement and the Prospectus.
2.4.2. Recent Securities Transactions, Etc. Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, and except as may otherwise be indicated or contemplated herein or therein, the Company has not: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other distribution on or in respect to its shares.
2.5. Independent Accountants. To the best of the Company’s knowledge, Marcum Bernstein & Pinchuk LLP (“Marcum Bernstein& Pinchuk”), whose report is filed with the Commission as part of the Registration Statement and included in the Registration Statement, the Preliminary Prospectus and the Prospectus, are independent accountants as required by the Act and the Regulations and the Public Company Accounting Oversight Board (including the rules and regulations promulgated by such entity, the “PCAOB”). To the best of the Company’s knowledge, Marcum Bernstein & Pinchuk is duly registered and in good standing with the PCAOB. Marcum Bernstein & Pinchuk has not, during the periods covered by the financial statements included in the Registration Statement and the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.
2.6. Financial Statements; Statistical Data.
2.6.1. Financial Statements. The financial statements, including the notes thereto and supporting schedules, included in the Registration Statement, the Preliminary Prospectus and the Prospectus fairly present the financial position and the results of operations of the Company at the dates and for the periods to which they apply; and such financial statements have been prepared in conformity with generally accepted accounting principles, consistently applied throughout the periods involved; and the supporting schedules included in the Registration Statement present fairly the information required to be stated therein. To the best of the Company’s knowledge, no other financial statements or supporting schedules are required to be included or incorporated by reference in the Registration Statement, the Preliminary Prospectus or the Prospectus. The Registration Statement, the Preliminary Prospectus and the Prospectus disclose all material off-balance sheet transactions, arrangements, obligations (including contingent obligations), and other relationships of the Company with unconsolidated entities or other persons that may have a material current or future effect on the Company’s financial condition, changes in financial condition, results of operations, liquidity, capital expenditures, capital resources, or significant components of revenues or expenses. To the best of the Company’s knowledge, there are no pro forma or as adjusted financial statements which are required to be included in the Registration Statement and the Prospectus in accordance with Regulation S-X which have not been included as so required.
2.6.2. Statistical Data. The statistical, industry-related and market-related data included in the Registration Statement, the Preliminary Prospectus and the Prospectus are based on or derived from sources which the Company reasonably and in good faith believes are reliable and accurate, and such data agree with the sources from which they are derived.
2.7. Authorized Capital; Options, Etc. The Company had at the date or dates indicated in the Registration Statement, the Preliminary Prospectus and the Prospectus, as the case may be, duly authorized, issued and outstanding capitalization as set forth in the Registration Statement, the Preliminary Prospectus and the Prospectus. Based on the assumptions stated in the Registration Statement, the Preliminary Prospectus and the Prospectus, the Company will have on the Closing Date the adjusted share capitalization set forth therein. Except as set forth in, or contemplated by, the Registration Statement, the Preliminary Prospectus and the Prospectus, on the Effective Date and on the Closing Date and the Option Closing Date, if any, there will be no options, warrants or other rights to purchase or otherwise acquire any authorized, but unissued Ordinary Shares of the Company or any security convertible into Ordinary Shares of the Company, or any contracts or commitments to issue or sell Ordinary Shares or any such options, warrants, rights or convertible securities.
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2.8. Valid Issuance of Securities, Etc.
2.8.1. Outstanding Securities. All issued and outstanding securities of the Company (including, without limitation, the Placement Securities) have been duly authorized and validly issued and are fully paid and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company. The Public Securities conform in all material respects to all statements relating thereto contained in the Registration Statement, the Preliminary Prospectus and the Prospectus. Subject to the disclosure contained in the Registration Statement, the Preliminary Prospectus and the Prospectus with respect to the Placement Securities, the offers and sales of the outstanding Ordinary Shares were at all relevant times either registered under the Act and the applicable state securities or Blue Sky laws or, based in part on the representations and warranties of the purchasers of such Ordinary Shares, exempt from such registration requirements.
2.8.2. Securities Sold. The Securities have been duly authorized and reserved for issuance and when issued and paid for, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders; the Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company; and all corporate actions required to be taken for the authorization, issuance and sale of the Securities have been duly and validly taken. The Securities conform in all material respects to all statements with respect thereto contained in the Registration Statement, the Preliminary Prospectus and the Prospectus, as the case may be. When issued, the Representative’s Purchase Option, the Representative’s Rights and the Representative’s Warrants will constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment of the respective exercise prices therefor, the number and type of securities of the Company called for thereby in accordance with the terms thereof and such Representative’s Purchase Option, Representative’s Rights and Representative’s Warrants are enforceable against the Company in accordance with their respective terms, except: (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (ii) as enforceability of any indemnification or contribution provision may be limited under federal and state securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The Ordinary Shares underlying the Representative’s Purchase Option, the Representative’s Rights and the Representative’s Warrants have been reserved for issuance upon the exercise of the Representative’s Purchase Option, the Representative’s Rights and the Representative’s Warrants, respectively, and, when issued in accordance with the terms of such securities, will be duly and validly authorized, validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders.
2.8.3. Placement Securities. The Placement Securities have been duly authorized and reserved for issuance and when issued and paid for, will be validly issued, fully paid and non-assessable; the Placement Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company; and all corporate actions required to be taken for the authorization, issuance and sale of the Placement Securities have been duly and validly taken. When issued, Placement Securities will constitute valid and binding obligations of the Company to issue and sell, upon exercise thereof and payment of the exercise price therefor, the number and type of securities of the Company called for thereby in accordance with the terms thereof, and such Placement Securities are enforceable against the Company in accordance with their respective terms, except: (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (ii) as enforceability of any indemnification or contribution provision may be limited under federal and state securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. The Ordinary Shares underlying the Placement Securities have been reserved for issuance upon the exercise of the Placement Securities, when issued in accordance with the terms of the Placement Securities, will be duly and validly authorized, validly issued, fully paid and non-assessable, and the holders thereof are not and will not be subject to personal liability by reason of being such holders.
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2.8.4. No Integration. Subject to the disclosure contained in the Registration Statement, the Preliminary Prospectus and/or the Prospectus with respect to the Placement Securities, neither the Company nor any of its affiliates has, prior to the date hereof, made any offer or sale of any securities which are required to be “integrated” pursuant to the Act or the Regulations with the offer and sale of the Public Securities pursuant to the Registration Statement.
2.9. Registration Rights of Third Parties. Except as set forth in the Registration Statement, the Preliminary Prospectus or the Prospectus, no holders of any securities of the Company or any rights exercisable for or convertible or exchangeable into securities of the Company have the right to require the Company to register any such securities of the Company under the Act or to include any such securities in a registration statement to be filed by the Company.
2.10. Validity and Binding Effect of Agreements. This Agreement, the Warrant Agreement (as defined in Section 2.25 hereof), the Trust Agreement (as defined in Section 1.1.2 hereof), the Rights Agreement (as defined in Section 2.24 hereof) the Registration Rights Agreement (as defined in Section 2.26.3 hereof), the Subscription Agreement (as defined in Section 2.26.2 hereof), and the Representative’s Purchase Option have been duly and validly authorized by the Company and constitute valid and binding agreements of the Company, enforceable against the Company in accordance with their respective terms, except: (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (ii) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
2.11. No Conflicts, Etc. The execution, delivery, and performance by the Company of this Agreement, the Warrant Agreement, the Trust Agreement, the Representative’s Purchase Option, the Rights Agreement, the Registration Rights Agreement, and the Subscription Agreement, the consummation by the Company of the transactions herein and therein contemplated and the compliance by the Company with the terms hereof and thereof do not and will not, with or without the giving of notice or the lapse of time or both: (i) result in a material breach of, or conflict with any of the terms and provisions of, or constitute a material default under, or result in the creation, modification, termination or imposition of any material lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any agreement or instrument to which the Company is a party; (ii) result in any violation of the provisions of the Memorandum and Articles of the Company; or (iii) violate any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its properties or business.
2.12. No Defaults; Violations. No material default exists in the due performance and observance of any term, covenant or condition of any material license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument evidencing an obligation for borrowed money, or any other material agreement or instrument to which the Company is a party or by which the Company may be bound or to which any of the properties or assets of the Company is subject. The Company is not in violation of any material agreement, license, permit, applicable law, rule, regulation, judgment or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its properties or businesses, except for such violations which would not reasonably be expected to have a material adverse effect on the Company. The Company is not in violation of any term or provision of its Memorandum and Articles of Association.
2.13. Corporate Power; Licenses; Consents.
2.13.1. Conduct of Business. The Company has all requisite corporate power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental regulatory officials and bodies that it needs as of the date hereof to conduct its business for the purposes described in the Registration Statement, the Preliminary Prospectus and the Prospectus. To the Company’s knowledge, the disclosures in the Registration Statement and the Prospectus concerning the effects of federal, state and local regulation on the Offering and the Company’s business purpose as currently contemplated are correct in all material respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein (with respect to the Prospectus, in light of the circumstances under which they were made), not misleading. Since its formation, the Company has conducted no business and has incurred no liabilities other than in connection with and in furtherance of the Offering.
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2.13.2. Transactions Contemplated Herein. The Company has all corporate power and authority to enter into this Agreement and to carry out the provisions and conditions hereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained. No consent, authorization or order of, and no filing with, any court, government agency or other body is required for the valid issuance, sale and delivery, of the Securities and the consummation of the transactions and agreements contemplated by this Agreement, the Warrant Agreement, the Trust Agreement, Representative’s Purchase Option, the Rights Agreement, the Subscription Agreement and the Registration Rights Agreement and as contemplated by the Prospectus, except with respect to applicable federal and state securities laws and the rules and regulations promulgated by FINRA.
2.14. D&O Questionnaires. All information contained in the questionnaires (the “Questionnaires”) completed by each of the Company’s shareholders immediately prior to the Offering (the “Initial Shareholders”) and each of the Company’s officers and directors and included by the Company in the Registration Statement is true and correct and the Company has not become aware of any information which would cause the information disclosed in the Questionnaires completed by each Initial Shareholder, officer or director, to become inaccurate and incorrect.
2.15. Litigation; Governmental Proceedings. There is no action, suit, proceeding, inquiry, arbitration, investigation, litigation or governmental proceeding pending or, to the Company’s knowledge, threatened against, or involving the Company or, to the Company’s knowledge, any of its officers, directors or Initial Shareholders which is required to be disclosed and has not been disclosed in the Registration Statement, the Questionnaires, the Preliminary Prospectus and the Prospectus.
2.16. Good Standing. The Company has been duly incorporated, is validly existing and is in good standing under the laws of its country of incorporation and is duly qualified to do business and is in good standing as a foreign company in each jurisdiction in which its ownership or lease of property or the conduct of business requires such qualification, except where the failure to qualify would not have a material adverse effect on the Company.
2.17. No Contemplation of a Business Combination. Prior to the date hereof, neither the Company, its officers and directors nor the Initial Shareholders had, and as of the Closing, the Company and such officers and directors and Initial Shareholders will not have had: (i) any specific Business Combination under consideration or contemplation; or (ii) any substantive interactions or discussions with any target business regarding a possible Business Combination.
2.18. Transactions Affecting Disclosure to FINRA.
2.18.1. Except as described in the Preliminary Prospectus and/or the Prospectus, there are no claims, payments, arrangements, agreements or understandings relating to the payment of a finder’s, consulting or origination fee by the Company or its officers or directors or any Initial Shareholder with respect to the sale of the Securities hereunder or any other arrangements, agreements or understandings of the Company or, to the Company’s knowledge, any of its officers, directors or Initial Shareholders that may affect the Underwriters’ compensation, as determined by FINRA.
2.18.2. The Company has not made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder’s fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who raised or provided capital to the Company; (ii) to any FINRA member; or (iii) to any person or entity that has any direct or indirect affiliation or association with any FINRA member, within the twelve (12) months prior to the Effective Date, other than payments to the Representative.
2.18.3. No officer, director, or beneficial owner of any class of the Company’s securities (whether debt or equity, registered or unregistered, regardless of the time acquired or the source from which derived) (any such individual or entity, a “Company Affiliate”) is a member, a person associated, or affiliated with a member of FINRA.
2.18.4. No Company Affiliate is an owner of stock or other securities of any member of FINRA (other than securities purchased on the open market).
2.18.5. No Company Affiliate has made a subordinated loan to any member of FINRA.
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2.18.6. No proceeds from the sale of the Public Securities (excluding underwriting compensation) or the Placement Securities will be paid to any FINRA member, or any persons associated or affiliated with a member of FINRA, except as specifically authorized herein and in the Subscription Agreement.
2.18.7. Except with respect to the Representative, the Company has not issued any warrants or other securities, or granted any options, directly or indirectly to anyone who is a potential underwriter in the Offering or a related person (as defined by FINRA rules) of such an underwriter within the 180-day period prior to the initial filing date of the Registration Statement.
2.18.8. No person to whom securities of the Company have been privately issued within the 180-day period prior to the initial filing date of the Registration Statement has any relationship or affiliation or association with any member of FINRA.
2.18.9. No FINRA member intending to participate in the Offering has a conflict of interest with the Company. For this purpose, a “conflict of interest” exists when a member of FINRA and its associated persons, parent or affiliates in the aggregate beneficially own 10% or more of the Company’s outstanding subordinated debt or common equity, or 10% or more of the Company’s preferred equity. “Members participating in the Offering” include managing agents, syndicate group members and all dealers which are members of FINRA.
2.18.10. Except with respect to the Representative in connection with the Offering, the Company has not entered into any agreement or arrangement (including, without limitation, any consulting agreement or any other type of agreement) during the 180-day period prior to the initial filing date of the Registration Statement, which arrangement or agreement provides for the receipt of any item of value and/or the transfer of any options, warrants or other securities from the Company to a FINRA member, any person associated with a member (as defined by FINRA rules), any potential underwriters in the Offering and any related persons.
2.19. Taxes.
2.19.1. There are no transfer taxes or other similar fees or charges under Cayman Islands law, U.S. federal law or the laws of any U.S. state or any political subdivision thereof, required to be paid in connection with the execution and delivery of this Agreement or the issuance or sale by the Company of the Public Securities.
2.19.2. The Company has filed all non-U.S. and U.S. federal, state and local tax returns that are required to be filed or has requested extensions thereof, except in any case in which the failure to so file would not have a Material Adverse Effect, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing in due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not have a Material Adverse Effect.
2.19.3. Assuming the Company satisfies the “start-up exception” (as described in the Registration Statement) to the “passive foreign investment company” (“PFIC”) provisions of the Internal Revenue Code of 1986, as amended, and subject to the discussion of PFICs and other Federal income tax issues set forth in the Registration Statement under the heading “TAXATION — United States Federal Income Taxation”, the Company will not be a PFIC for Federal income tax purposes for its taxable year ending June 30, 2020.
2.20. Foreign Corrupt Practices Act. Neither the Company nor, to the Company’s knowledge, any of its officers, directors or Initial Shareholders or any other person acting on behalf of the Company has, directly or indirectly, given or agreed to give any money, gift or similar benefit (other than legal price concessions to customers in the ordinary course of business) to any customer, supplier, employee or agent of a customer or supplier, or official or employee of any governmental agency or instrumentality of any government (domestic or foreign) or any political party or candidate for office (domestic or foreign) or any political party or candidate for office (domestic or foreign) or other person who was, is, or may be in a position to help or hinder the business of the Company (or assist it in connection with any actual or proposed transaction) that: (i) might subject the Company to any damage or penalty in any civil, criminal or governmental litigation or proceeding; (ii) if not given in the past, might have had a material adverse effect on the assets, business or operations of the Company as reflected in any of the financial statements contained in the Registration Statement, the Preliminary Prospectus and/or the Prospectus; or (iii) if not continued in the future, might adversely affect the assets, business, operations or prospects of the Company. The Company’s internal accounting controls and procedures are sufficient to cause the Company to comply with the Foreign Corrupt Practices Act of 1977, as amended.
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2.21. Currency and Foreign Transactions Reporting Act. The operations of the Company are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transaction Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “MoneyLaundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to the best of the Company’s knowledge, threatened.
2.22. Bank Secrecy Act; Patriot Act. Neither the Company nor, to the Company’s knowledge, any officer, director or Initial Shareholder has violated: (i) the Bank Secrecy Act of 1970, as amended; (ii) the Money Laundering Laws; or (iii) the Uniting and Strengthening of America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, and/or the rules and regulations promulgated under any such law, or any successor law.
2.23. Officers’ Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to the Representative or to the Representative’s counsel shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
2.24. Rights Agreement. The Company has entered into a rights agreement with respect to the Rights and the Placement Rights with CST substantially in the form filed as an exhibit to the Registration Statement (the “Right Agreement”).
2.25. Warrant Agreement. The Company has entered into a warrants agreement with respect to the Warrants and the warrants underlying the Placement Units with CST substantially in the form filed as an exhibit to the Registration Statement (the “Warrant Agreement”).
2.26. Agreements With Officers, Directors and Initial Shareholders.
2.26.1. Insider Letters. The Company has caused to be duly executed legally binding and enforceable agreements (except: (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally; (ii) as enforceability of any indemnification, contribution or non-compete provision may be limited under the federal and state securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought) annexed as exhibits to the Registration Statement (the “Insider Letter”), pursuant to which each of the officers, directors and Initial Shareholders of the Company agree to certain matters, including but not limited to, certain matters described as being agreed to by them under the “Proposed Business” Section of the Prospectus.
2.26.2. Subscription Agreement. The Sponsor has executed and delivered an agreement, annexed as an exhibit to the Registration Statement (the “Subscription Agreement”), pursuant to which the Sponsor, among other things, has purchased an aggregate of 348,143 Placement Units in the Private Placement and may purchase up to an addition of 33,750 units in the Private Placement if the underwriters’ over-allotment option is exercised. Pursuant to the Subscription Agreement, all of the proceeds from the sale of the Placement Units will be deposited by the Company in the Trust Account (with a portion that may be held outside of the Trust Account as described in the Prospectus) in accordance with the terms of the Trust Agreement prior to the Closing.
2.26.3. Registration Rights Agreement. The Company, the Sponsor, the Initial Shareholders and Maxim have entered into a registration rights agreement (the “Registration Rights Agreement”) substantially in the form annexed as an exhibit to the Registration Statement, whereby the parties will be entitled to certain registration rights with respect to their securities, as set forth in such Registration Rights Agreement and described more fully in the Registration Statement.
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2.27. Investment Management Trust Agreement. The Company has entered into the Trust Agreement with respect to certain proceeds of the Offering and the Private Placement substantially in the form filed as an exhibit to the Registration Statement.
2.28. Covenants Not to Compete. To the best of the Company’s knowledge, no officer, director or Initial Shareholder of the Company is subject to any non-competition agreement or non-solicitation agreement with any employer or prior employer which could materially affect his or her ability to be an Initial Shareholder, employee, officer or director of the Company.
2.29. Investments. No more than 45% of the “value” (as defined in Section 2(a)(41) of the Investment Company Act of 1940, as amended (the “Investment Company Act”)) of the Company’s total assets consist of, and no more than 45% of the Company’s net income after taxes is derived from, securities other than “Government Securities” (as defined in Section 2(a)(16) of the Investment Company Act).
2.30. Subsidiaries. The Company does not own an interest in any company, corporation, partnership, limited liability company, joint venture, trust or other business entity.
2.31. Related Party Transactions. No relationship, direct or indirect, exists between or among any of the Company or any Company Affiliate, on the one hand, and any director, officer, shareholder, customer or supplier of the Company or any Company Affiliate, on the other hand, which is required by the Act, the Exchange Act or the Regulations to be described in the Registration Statement, the Preliminary Prospectus and/or the Prospectus which is not so described and described as required. There are no outstanding loans, advances (except normal advances for business expenses in the ordinary course of business) or guarantees of indebtedness by the Company to or for the benefit of any of the officers or directors of the Company or any of their respective family members, except as disclosed in the Registration Statement, the Preliminary Prospectus and/or the Prospectus. The Company has not extended or maintained credit, arranged for the extension of credit, or renewed an extension of credit, in the form of a personal loan to or for any director or officer of the Company.
2.32. No Influence. The Company has not offered, or caused the Underwriters to offer, the Firm Units to any person or entity with the intention of unlawfully influencing: (i) a customer or supplier of the Company or any Company Affiliate to alter the customer’s or supplier’s level or type of business with the Company or such affiliate; or (ii) a journalist or publication to write or publish favorable information about the Company or any such affiliate.
2.33. Trading of the Public Securities on the Nasdaq Capital Market. As of the Effective Date and the Closing Date, the Public Securities will have been authorized for listing on the Nasdaq Capital Market and no proceedings have been instituted or threatened which would effect, and no event or circumstance has occurred as of the Effective Date which is reasonably likely to effect, the listing of the Public Securities on the Nasdaq Capital Market.
2.34. Free-Writing Prospectus and Testing-the-Waters. The Company has not made any offer relating to the Public Securities that would constitute an issuer free writing prospectus, as defined in Rule 433 under the Act, or that would otherwise constitute a “free writing prospectus” as defined in Rule 405. The Company (a) has not engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications with the consent of the Representative with entities that are qualified institutional buyers within the meaning of Rule 144A under the Act or institutions that are accredited investors within the meaning of Rule 501 under the Act and (b) has not authorized anyone to engage in Testing-the-Waters Communications other than its officers and the Representative and individuals engaged by the Representative. The Company has not distributed any Written Testing-the-Waters Communications other than those listed on Schedule B hereto. “Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Act.
2.35. Disclosure Controls and Procedures. The Company maintains effective “disclosure controls and procedures” (as defined under Rule 13a-15(e) under the Exchange Act), to the extent required by such rule.
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2.36. Definition of “Knowledge”. As used in herein, the term “knowledge of the Company” (or similar language) shall mean the knowledge of the officers and directors of the Company who are named in the Prospectus, with the assumption that such officers and directors shall have made reasonable and diligent inquiry of the matters presented.
3. Covenants of the Company. The Company covenants and agrees as follows:
3.1. Amendments to Registration Statement. The Company will deliver to the Representative, prior to filing, any amendment or supplement to the Registration Statement or Prospectus proposed to be filed after the Effective Date and will not file any such amendment or supplement to which the Representative shall reasonably object in writing.
3.2. Federal Securities Laws.
3.2.1. Compliance. During the time when a Prospectus is required to be delivered under the Act, the Company will use its best efforts to comply with all requirements imposed upon it by the Act, the Regulations and the Exchange Act and by the regulations under the Exchange Act, as from time to time in force, so far as necessary to permit the continuance of sales of or dealings in the Public Securities in accordance with the provisions hereof and the Prospectus. If at any time when a Prospectus relating to the Public Securities is required to be delivered under the Act, any event shall have occurred as a result of which, in the opinion of counsel for the Company or counsel for the Underwriters, the Prospectus, as then amended or supplemented, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is necessary during such period to amend the Registration Statement or amend or supplement the Prospectus to comply with the Act, the Company will notify the Representative promptly and prepare and file with the Commission, subject to Section 3.1 hereof, an appropriate amendment to the Registration Statement or amendment or supplement to the Prospectus (at the expense of the Company) so as to correct such statement or omission or effect such compliance.
3.2.2. Filing of Final Prospectus. The Company will file the Prospectus (in form and substance satisfactory to the Representative) with the Commission pursuant to the requirements of Rule 424 of the Regulations.
3.2.3. Exchange Act Registration. For a period of five (5) years from the Effective Date, or until such earlier time upon which the Company is required to be liquidated, the Company will use its best efforts to maintain the registration of the Units, Ordinary Shares, Warrants and Rights under the provisions of the Exchange Act. The Company will not deregister the Units, Ordinary Shares, Warrants and Rights under the Exchange Act without the prior written consent of the Representative.
3.2.4. Free Writing Prospectuses. The Company will not make any offer relating to the Public Securities that would constitute an issuer free writing prospectus, as defined in Rule 433 under the Act.
3.2.5. Sarbanes-Oxley Compliance. As soon as it is legally required to do so, the Company shall take all actions necessary to obtain and thereafter maintain material compliance with each applicable provision of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated thereunder and related or similar rules and regulations promulgated by any other governmental or self-regulatory entity or agency with jurisdiction over the Company.
3.3. Blue Sky Filing. Unless the Public Securities are listed on the Nasdaq Capital Market or another national securities exchange, the Company at its expense will endeavor in good faith, in cooperation with the Representative, at or prior to the time the Registration Statement becomes effective, to qualify the Public Securities for offering and sale under the securities laws of such jurisdictions as the Representative may reasonably designate, provided that no such qualification shall be required in any jurisdiction where, as a result thereof, the Company would be subject to service of general process or to taxation as a foreign company doing business in such jurisdiction. In each jurisdiction where such qualification shall be effected, the Company will, unless the Representative agrees that such action is not at the time necessary or advisable, use its best efforts to file and make such statements or reports at such times as are or may be required by the laws of such jurisdiction.
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3.4. Delivery to Underwriters of Prospectuses. The Company will deliver to each of the several Underwriters, without charge, from time to time during the period when the Prospectus is required to be delivered under the Act or the Exchange Act such number of copies of each Preliminary Prospectus and Prospectus and all amendments and supplements to such documents as such Underwriters may reasonably request and, as soon as the Registration Statement or any amendment or supplement thereto becomes effective, deliver to the Representative two (2) original executed Registration Statements, including exhibits, and all post-effective amendments thereto and copies of all exhibits filed therewith or incorporated therein by reference and all original executed consents of certified experts.
3.5. Effectiveness and Events Requiring Notice to the Representative. The Company will use its best efforts to cause the Registration Statement to remain effective and will notify the Representative immediately and confirm the notice in writing: (i) of the effectiveness of the Registration Statement and any amendment thereto; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, or any post-effective amendment thereto or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or of the initiation, or the threatening, of any proceeding for that purpose; (iii) of the issuance by any state securities commission of any proceedings for the suspension of the qualification of the Public Securities for offering or sale in any jurisdiction or of the initiation, or the threatening, of any proceeding for that purpose; (iv) of the mailing and delivery to the Commission for filing of any amendment or supplement to the Registration Statement or Prospectus; (v) of the receipt of any comments or request for any additional information from the Commission; and (vi) of the happening of any event during the period described in Section 3.4 hereof that, in the judgment of the Company, makes any statement of a material fact made in the Registration Statement, the Preliminary Prospectus and/or the Prospectus untrue or that requires the making of any changes in the Registration Statement, the Preliminary Prospectus and/or the Prospectus in order to make the statements therein (with respect to the Prospectus in light of the circumstances under which they were made), not misleading. If the Commission or any state securities commission shall enter a stop order or suspend such qualification at any time, the Company will make every reasonable effort to obtain promptly the lifting of such order.
3.6. Review of Financial Statements. Until the earlier of five (5) years from the Effective Date, or until such earlier date upon which the Company is required to be liquidated, the Company, at its expense, shall cause its regularly engaged independent certified public accountants to review (but not audit) the Company’s financial statements for each of the first three fiscal quarters prior to the announcement or filing of quarterly financial information, if any.
3.7. Affiliated Transactions.
3.7.1. Business Combinations. The Company will not consummate a Business Combination with any entity which
is affiliated with any of its officers, directors or Initial Shareholders unless the Company obtains an opinion from an independent investment banking firm regulated by FINRA stating the Business Combination is fair to the Company’s shareholders from a financial perspective.
3.7.2. Compensation. Except as disclosed in the Prospectus, the Company shall not pay any of its officers, directors or Initial Shareholders or any of their affiliates any fees or compensation from the Company, for services rendered to the Company prior to, or in connection with, this Offering or the consummation of a Business Combination; provided that the officers, directors and the Initial Shareholders shall be entitled to reimbursement from the Company for their out-of-pocket expenses incurred on the Company’s behalf, which includes any loans and advances made to the Company prior to the Closing.
3.7.3 Administrative Services. The Company has entered into an administrative services agreement (the “Services Agreement”) with the Sponsor, pursuant to which such affiliate will make available to the Company general and administrative services including office space, utilities, secretarial and administrative support for the Company’s use for $5,000 per month for up to twenty-one (21) months.
3.8. Secondary Market Trading. In the event the Public Securities are not listed on the Nasdaq Capital Market or such other national securities exchange, the Company will apply to be included in Mergent, Inc. Manual for a period of five (5) years from the consummation of a Business Combination. Promptly after the consummation of the Offering, the Company shall take such commercially reasonable steps as may be necessary to obtain a secondary market trading exemption for the Company’s securities in all applicable jurisdictions. The Company shall also take such other action as may be reasonably requested by the Representative to obtain a secondary market trading exemption in such other states as may be requested by the Representative; provided that no qualification shall be required in any jurisdiction where, as a result thereof, the Company would be subject to service of general process or to taxation as a foreign entity doing business in such jurisdiction.
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3.9. Financial Public Relations Firm. Promptly after the execution of a definitive agreement for a Business Combination, the Company shall retain a financial public relations firm reasonably acceptable to the Representative for a term to be agreed upon by the Company and the Representative.
3.10. Reports to the Representative.
3.10.1. Periodic Reports, Etc. For a period of five (5) years from the Effective Date or until such earlier time upon which the Company is dissolved, the Company will furnish to the Representative and its counsel copies of such financial statements and other periodic and special reports as the Company from time to time furnishes generally to holders of any class of its securities, and promptly furnish to the Representative: (i) a copy of each periodic report the Company shall be required to file with the Commission; (ii) a copy of every press release and every news item and article with respect to the Company or its affairs which was released by the Company; (iii) a copy of each Form 8-K or Schedules 13D, 13G, 14D-1 or 13E-4 received or prepared by the Company; (iv) five (5) copies of each Registration Statement; and (v) such additional documents and information with respect to the Company and the affairs of any future subsidiaries of the Company as the Representative may from time to time reasonably request; provided that the Representative shall sign, if requested by the Company, a Regulation FD compliant confidentiality agreement which is reasonably acceptable to the Representative and its counsel in connection with the Representative’s receipt of such information. Documents filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”) shall be deemed to have been delivered to the Representative pursuant to this section.
3.10.2. Transfer Sheets. For a period of five (5) years following the Effective Date or until such earlier time upon which the Company is dissolved, the Company shall retain a transfer and warrant agent acceptable to the Representative (the “Transfer Agent”). In the event the Public Securities are not listed on the Nasdaq Capital Market or such other national securities exchange, the Company will furnish to the Underwriters at the Company’s sole cost and expense such transfer sheets of the Company’s securities as the Representative may request, including the daily and monthly consolidated transfer sheets of the Transfer Agent and DTC. CST is an acceptable Transfer Agent to the Representative.
3.10.3. Trading Reports. If the Public Securities are quoted on the OTC Bulletin Board (or any successor trading market) or a market operated by the OTC Market Group Inc. (or similar publisher of quotations), then during such time the Company shall provide to the Representative, at its expense, such reports published by the OTC Bulletin Board or the OTC Market Group Inc. relating to price trading of the Public Securities, as the Representative shall reasonably request. In addition to the requirements of the preceding sentence, if the Public Securities are not listed on a national securities exchange, for a period of two (2) years from the Closing Date, the Company, at its expense, shall provide Maxim a subscription to the Company’s weekly Depository Transfer Company Security Position Reports.
3.11. Disqualification of Form S-1. For a period of seven (7) years from the date hereof, the Company will not take any action or actions which may prevent or disqualify the Company’s use of Form S-1 (or other appropriate form) for the registration of the Representative’s Warrants and the Representative’s Purchase Option and the securities underlying the Representative’s Purchase Option under the Act.
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3.12. Payment of Expenses.
3.12.1. General Expenses Related to the Offering. The Company hereby agrees to pay on each of the Closing Date and the Option Closing Date, if any, to the extent not paid at Closing Date, all expenses incident to the performance of the obligations of the Company under this Agreement, including, but not limited to: (i) the preparation, printing, filing and mailing (including the payment of postage with respect to such mailing) of the Registration Statement, the Preliminary Prospectus and/or the final Prospectus and the printing and mailing of this Agreement and related documents, including the cost of all copies thereof and any amendments thereof or supplements thereto supplied to the Underwriters in quantities as may be required by the Underwriters; (ii) the printing, engraving, issuance and delivery of the Units, Ordinary Shares, Rights and the Warrants included in the Units and the Representative’s Purchase Option, including any transfer or other taxes payable thereon; (iii) if the public securities are not listed on a national securities exchange, the qualification of the Public Securities under state or foreign securities or Blue Sky laws, including the costs of printing and mailing the “Preliminary Blue Sky Memorandum,” and all amendments and supplements thereto, fees and disbursements for counsel of Maxim’s choice retained for such purpose; (iv) filing fees incurred in registering the Offering with FINRA (including all Public Offering System filing fees); (v) fees and disbursements of the transfer and warrant agent; (vi) the Company’s expenses associated with “road show” marketing “due diligence” meetings arranged by the Representative (none of which will be received or paid on behalf of an underwriter and related person); (vii) the preparation of leather bound volumes and Lucite cube or similar commemorative items in a style as reasonably requested by Maxim; (viii) background checks on the Company’s directors, director nominees and executive officers as requested by the Representative; (ix) transfer taxes, all fees and any expenses and fees incurred by Maxim’s counsel, transfer and warrant agent and registrar fees; and (x) all other reasonable costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section 3.12.1. The Company paid the Representative $25,000 upon the execution of the engagement letter, and an additional $25,000 upon filing of the Registration Statement (collectively, with the initial $25,000 payment, the “Advance”) as an advance against out-of-pocket accountable expenses actually anticipated to be incurred by the underwriters. The Representative may deduct from the net proceeds of the Offering payable to the Company on the Closing Date, or the Option Closing Date, if any, the expenses set forth above to be paid by the Company to the Representative and others, as agreed to by the Company in writing; provided, however, that such fees and expenses deducted from the net proceeds of the Offering payable to the Company shall not exceed $125,000 in the aggregate (less the Advance and any other amounts previously paid).
3.12.2 Fee on Termination of Offering. Notwithstanding anything contained herein to the contrary, upon termination of the Offering the Company shall: (A) reimburse the Representative for, or otherwise pay and bear, the expenses and fees to be paid and borne by the Company as provided for in Section 3.12.1 above, as applicable, and (B) reimburse the Representative for the full amount of its accountable out-of-pocket expenses actually incurred to such date (which shall include, but shall not be limited to, all fees and disbursements of the Representative’s counsel, travel, lodging and other “road show” expenses, mailing, printing and reproduction expenses, and any expenses incurred by the Representative in conducting its due diligence, including background checks of the Company’s officers and directors), up to an aggregate amount of $50,000, less the amounts previously paid and any amounts previously paid to the Representative in reimbursement for such expenses. If applicable, and solely in the event of a termination of this Offering, the Representative shall refund to the Company any portion of the Advance previously received by the Representative which is in excess of the accountable out-of-pocket expenses actually incurred to such date by the Representative.
3.13. Application of Net Proceeds. The Company will apply the net proceeds from the Offering received by it in a manner consistent with the application described under the caption “Use of Proceeds” in the Prospectus.
3.14. Delivery of Earnings Statements to Security Holders. The Company will make generally available to its security holders as soon as practicable, but not later than the first day of the fifteenth (15th) full calendar month following the Effective Date, an earnings statement (which need not be certified by independent public or independent certified public accountants unless required by the Act or the Regulations, but which shall satisfy the provisions of Rule 158(a) under Section 11(a) of the Act) covering a period of at least twelve (12) consecutive months beginning after the Effective Date.
3.15. Notice to FINRA.
3.15.1. Business Combination. In the event any person or entity (regardless of any FINRA affiliation or association) is engaged to assist the Company in its search for a merger candidate or to provide any other merger and acquisition services, the Company will provide the following to the FINRA and the Representative prior to the consummation of the Business Combination: (i) complete details of all services and copies of agreements governing such services; and (ii) justification as to why the person or entity providing the merger and acquisition services should not be considered an “participating member” (as such term is defined in FINRA Rule 5110) with respect to the Offering. The Company also agrees that proper disclosure of such arrangement or potential arrangement will be made in any proxy or tender offer statement which the Company files in connection with the Business Combination.
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3.15.2. Broker/Dealer. In the event the Company intends to register as a broker/dealer, merge with or acquire a registered broker/dealer, or otherwise become a member of FINRA, it shall promptly notify FINRA.
3.16. Stabilization. Neither the Company, nor, to its knowledge, any of its employees, directors or shareholders (without the consent of the Representative) has taken or will take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause or result in, under the Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Units.
3.17. Internal Controls. The Company will maintain a system of internal accounting controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary in order to permit preparation of financial statements in accordance with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
3.18. Accountants. For a period of five (5) years from the Effective Date or until such earlier time upon which the Company is required to be liquidated, the Company shall retain Marcum Bernstein & Pinchuk LLP or other independent public accountants reasonably acceptable to the Representative.
3.19. Form 8-K. The Company shall, on the date hereof, retain its independent public accountants to audit the financial statements of the Company as of the Closing Date (the “Audited Financial Statements”) reflecting the receipt by the Company of the proceeds of the Offering and the Private Placement, as well as the proceeds from the exercise of the Over-allotment Option if such exercise has occurred on the date of the Prospectus. Within four (4) Business Days of the Closing Date, the Company will file a Current Report on Form 8-K with the Commission, which Report shall contain the Audited Financial Statements.
3.20. FINRA. The Company shall advise FINRA if it is aware that any 10% or greater shareholder of the Company becomes an affiliate or associated person of a FINRA member participating in the distribution of the Company’s Public Securities.
3.21. Corporate Proceedings. All corporate proceedings and other legal matters necessary to carry out the provisions of this Agreement and the transactions contemplated hereby shall have been done to the reasonable satisfaction of counsel for the Underwriters.
3.22. Investment Company. The Company shall cause the proceeds of the Offering to be held in the Trust Account to be invested only in “government securities” with specific maturity dates or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act as set forth in the Trust Agreement and disclosed in the Prospectus. The Company will otherwise conduct its business in a manner so that it will not become subject to the Investment Company Act. Furthermore, once the Company consummates a Business Combination, it will be engaged in a business other than that of investing, reinvesting, owning, holding or trading securities.
3.23. Business Combination Announcement. Within four (4) Business Days following the consummation by the Company of a Business Combination, the Company shall cause an announcement (“Business Combination Announcement”) to be issued by a press release service announcing the consummation of the Business Combination and indicating that the Representative was one of the co-managing underwriters in the Offering and also indicating the name and location of any other financial advisors engaged by the Company as its merger and acquisitions advisor. The Company shall supply the Representative with a draft of the Business Combination Announcement and provide the Representative with a reasonable advance opportunity to comment thereon. The Company will not issue the Business Combination Announcement without the final approval of the Representative, which approval shall not be unreasonably withheld.
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3.24. Press Releases. The Company agrees that it will not issue press releases or engage in any other publicity, without Maxim’s prior written consent (not to be unreasonably withheld), for a period of forty five (45) days from the Effective Date.
3.25. Electronic Prospectus. The Company shall cause to be prepared and delivered to the Representative, at its expense, within one (1) Business Day from the Effective Date, an Electronic Prospectus to be used by the Underwriters in connection with the Offering. As used herein, the term “Electronic Prospectus” means a form of prospectus, and any amendment or supplement thereto, that meets each of the following conditions: (i) it shall be encoded in an electronic format, satisfactory to the Representative, that may be transmitted electronically by the other Underwriters to offerees and purchasers of the Units for at least the period during which a Prospectus relating to the Units is required to be delivered under the Act; (ii) it shall disclose the same information as the paper prospectus and prospectus filed pursuant to EDGAR, except to the extent that graphic and image material cannot be disseminated electronically, in which case such graphic and image material shall be replaced in the electronic prospectus with a fair and accurate narrative description or tabular representation of such material, as appropriate; and (iii) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Representative, that will allow recipients thereof to store and have continuously ready access to the prospectus at any future time, without charge to such recipients (other than any fee charged for subscription to the Internet as a whole and for on-line time). The Company hereby confirms that it has included or will include in the Prospectus filed pursuant to EDGAR or otherwise with the Commission and in the Registration Statement at the time it was declared effective an undertaking that, upon receipt of a request by an investor or his or her representative within the period when a prospectus relating to the Units is required to be delivered under the Act, the Company shall transmit or cause to be transmitted promptly, without charge, a paper copy of the Prospectus.
3.26. Reservation of Shares. The Company will reserve and keep available that maximum number of its authorized but unissued securities which are issuable upon exercise of the Rights, the Warrants, the Representative’s Securities, and the Placement Securities outstanding from time to time.
3.27. Private Placement Proceeds. Immediately upon establishment of the Trust Account and prior to the Closing, the Company shall deposit all of the proceeds from the Private Placement in the Trust Account and shall provide the Representative with evidence of the same.
3.28. No Amendment to Memorandum and Articles of Association.
(i) Prior to the closing of a Business Combination, the Company covenants and agrees it will not amend or modify its Memorandum and Articles of Association without the prior approval of its Board of Directors and the affirmative vote of a majority of the voting power of the Ordinary Shares.
(ii) The Company acknowledges that the purchasers of the Units in this Offering shall be deemed to be third party beneficiaries of this Section 3.28.
(iii) The Representative and the Company specifically agree that this Section 3.28 shall not be modified or amended in any way without the approval of at least 65% of the voting power of the Ordinary Shares that were issued in the Offering.
3.29. Financial Printer. The Company shall retain a financial printer, reasonably acceptable to the Representative, for the purpose of facilitating the Company’s EDGAR filings and the printing of the Preliminary Prospectus and Prospectus.
3.30. Listing on the Nasdaq Capital Market. The Company will use its best efforts to maintain the listing of the Public Securities on the Nasdaq Capital Market or such other national securities exchange until the earlier of five (5) years from the Effective Date or until the Public Securities are no longer registered under the Exchange Act.
3.31. Payment of Deferred Underwriting Discounts on Business Combination. Upon the consummation of a Business Combination, the Company agrees that it will cause the Trustee to pay the Deferred Underwriting Discounts directly from the Trust Account to Maxim, in accordance with Section 1.3.
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3.32. Right of First Refusal. The Company agrees that if the Firm Units are sold in accordance with the terms of this Underwriting Agreement, the Company shall grant Representative the right of first refusal to act as a lead left book-running managing underwriter with at least 75% of the economics; or, in the case of a three-handed deal 50% of the economics, for any and all future public and private equity, equity linked and debt offerings of the Company, or any successor to or any subsidiary of the Company. The right of first refusal shall terminate on the earlier of the twelve (12) month anniversary of the closing of a Business Combination or the three year anniversary of the Effective Date. The Company and any such subsidiary or successor will use their best efforts to offer the Representative the opportunity to purchase or sell any securities in such a proposed financing on terms not more favorable to the Company or any such subsidiary or successor, as the case may be, than it or they can secure elsewhere. If the Representative fails to accept such offer within ten (10) Business Days after the mailing of a notice containing the material terms of the proposed financing by registered mail or overnight courier service addressed to the Representative, then the Representative shall have no further claim or right with respect to the financing proposal contained in such notice. If, however, the terms of such financing proposal are subsequently modified in any material respect, the preferential right referred to herein shall apply to such modified proposal as if the original proposal had not been made. The Representative’s failure to exercise its preferential right with respect to any particular proposal shall not affect its preferential rights relative to future proposals.
3.33 D&O Insurance. The Company will use its best efforts to have in place directors and officers liability insurance from an insurer and in amounts reasonably acceptable to the Representative within thirty (30) Business Days of the date of this Agreement.
4. Conditions of Underwriters’ Obligations. The obligations of the several Underwriters to purchase and pay for the Units, as provided herein, shall be subject to the continuing accuracy of the representations and warranties of the Company as of the date hereof and as of each of the Closing Date and the Option Closing Date, if any, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof and to the performance by the Company of its obligations hereunder and to the following conditions:
4.1 Regulatory Matters.
4.1.1. Effectiveness of Registration Statement. The Registration Statement shall have become effective not later than 5:00 P.M., New York time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representative, and, at each of the Closing Date and the Option Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for the purpose shall have been instituted or shall be pending or contemplated by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of Hunter Taubman Fischer & Li LLC (“HTFL”).
4.1.2. FINRA Clearance. By the Effective Date, the Representative shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Registration Statement.
4.1.3. No Commission Stop Order. At each of the Closing Date and the Option Closing Date, the Commission has not issued any order or threatened to issue any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any part thereof, and has not instituted or threatened to institute any proceedings with respect to such an order.
4.1.4. No Blue Sky Stop Orders. No order suspending the sale of the Units in any jurisdiction designated by the Representative pursuant to Section 3.3 hereof, if any, shall have been issued on either the Closing Date or the Option Closing Date, and no proceedings for that purpose shall have been instituted or shall be contemplated.
4.1.5. The Nasdaq Capital Market. By the Effective Date, the Securities shall have been approved for trading on the Nasdaq Capital Market.
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4.2. Company Counsel Matters.
4.2.1. Closing Date Opinion of Counsel. On the Closing Date, the Representative shall have received the favorable opinion of Loeb & Loeb LLP (“Loeb”), U.S. counsel to the Company, and Ogier (“Ogier”), Cayman Islands counsel to the Company, dated as of the Closing Date, addressed to the Representative and the other Underwriters and in form and substance reasonably satisfactory to the Representative.
The opinion of Loeb and Ogier shall further include a statement to the effect that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company and representatives of the Underwriters at which the contents of the Registration Statement, final Preliminary Prospectus, the Prospectus and related matters were discussed and although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, final Preliminary Prospectus and the Prospectus (except as otherwise set forth in such opinion), no facts have come to the attention of such counsel which lead them to believe that either the Registration Statement, final Preliminary Prospectus or the Prospectus or any amendment or supplement thereto, as of the date of such opinion contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and related notes and schedules and other financial and statistical data included in the Registration Statement, final Preliminary Prospectus or the Prospectus or matters relating to the sale of securities in any jurisdiction outside the U.S.). The opinion of counsel shall state that such counsel is not opining as to the Placement Securities with respect to any rights to rescind or the effect any exercise of such rights will have on any other securities of the Company or on the Offering.
4.2.2. Option Closing Date Opinion of Counsel. On each Option Closing Date, if any, the Representative shall have received the favorable opinions of Loeb and Ogier, dated as of each Option Closing Date, addressed to the Representative and in form and substance reasonably satisfactory to counsel to the Representative, confirming as of each Option Closing Date, the statements made by Loeb and Ogier, as applicable, in its opinion delivered on the Closing Date.
4.2.3. Reliance. In rendering such opinion, such counsel may rely: (i) as to matters involving the application of laws other than the laws of the United States and jurisdictions in which they are admitted, to the extent such counsel deems proper and to the extent specified in such opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to the Representative) of other counsel reasonably acceptable to the Representative, familiar with the applicable laws; and (ii) as to matters of fact, to the extent they deem proper, on certificates or other written statements of officers of the Company and officers of departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company, provided that copies of any such statements or certificates shall be delivered to the Underwriters’ counsel if requested. The opinion of Loeb and Ogier and any opinion relied upon by such counsel for the Company shall include a statement to the effect that it may be relied upon by counsel for the Underwriters in its opinion delivered to the Underwriters.
4.3. Cold Comfort Letter. At the time this Agreement is executed, and at each of the Closing Date and the Option Closing Date, if any, the Representative shall have received a letter, addressed to the Representative and in form and substance satisfactory in all respects (including the nature of the changes or decreases, if any, referred to in clause (iii) below) to the Representative from Marcum Bernstein & Pinchuk dated, respectively, as of the date of this Agreement and as of the Closing Date and the Option Closing Date, if any:
(i) Confirming that they are an independent registered public accounting firm with respect to the Company within the meaning of the Act and the applicable Regulations;
(ii) Stating that in their opinion the financial statements of the Company included in the Registration Statement, the Preliminary Prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the Regulations thereunder;
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(iii) Stating that, on the basis of limited procedures which included a reading of the latest available minutes of the shareholders and board of directors and the various committees of the board of directors, consultations with officers and other employees of the Company responsible for financial and accounting matters and other specified procedures and inquiries, nothing has come to their attention which would lead them to believe that: (a) at a date not later than five (5) days prior to the Effective Date, Closing Date or Option Closing Date, as the case may be, there was any change in the share capital or long-term debt of the Company, other than as set forth in or contemplated by the Registration Statement, the Preliminary Prospectus and the Prospectus, or, if there was any decrease, setting forth the amount of such decrease; and (c) during the period from May 13, 2021 (balance sheet date) to a specified date not later than five (5) days prior to the Effective Date, Closing Date or Option Closing Date, as the case may be, there was any decrease in net earnings or net earnings per Ordinary Shares, in each case as compared with Statement of Operations for the period from March 24, 2021 (inception) through May 13, 2021 other than as set forth in or contemplated by the Registration Statement, the Preliminary Prospectus and the Prospectus, or, if there was any such decrease, setting forth the amount of such decrease;
(iv) Stating they have compared specific dollar amounts, numbers of shares, percentages of earnings, statements and other financial information pertaining to the Company set forth in the Registration Statement, the Preliminary Prospectus and the Prospectus in each case to the extent that such amounts, numbers, percentages, statements and information may be derived from the general accounting records, including work sheets, of the Company and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures do not constitute an examination in accordance with the standards of the PCAOB) set forth in the letter and found them to be in agreement; and
(v) Statements as to such other matters incident to the transaction contemplated hereby as the Representative may reasonably request.
4.4. Officers’ Certificates.
4.4.1. Officers’ Certificate. At each of the Closing Date and the Option Closing Date, if any, the Representative shall have received a certificate of the Company signed by the Chief Executive Officer or the President and the Secretary or Assistant Secretary of the Company, dated the Closing Date or the Option Closing Date, as the case may be, to the effect that the Company has performed all covenants and complied with all conditions required by this Agreement to be performed or complied with by the Company prior to and as of the Closing Date, or the Option Closing Date, as the case may be, and that the conditions set forth in Section 4.5 hereof have been satisfied as of such date and that, as of Closing Date and the Option Closing Date, as the case may be, the representations and warranties of the Company set forth in Section 2 hereof are true and correct. In addition, the Representative will have received such other and further certificates of officers of the Company as the Representative may reasonably request.
4.4.2. Secretary’s Certificate. At each of the Closing Date and the Option Closing Date, if any, the Representative shall have received a certificate of the Company signed by the Chief Financial Officer or Secretary or Assistant Secretary of the Company, dated the Closing Date or the Option Closing Date, as the case may be, respectively, certifying: (i) that the Memorandum and Articles of Association of the Company are true and complete, have not been modified and are in full force and effect; (ii) that the board resolutions relating to the Offering are in full force and effect and have not been modified; (iii) all correspondence between the Company or its counsel and the Commission; (iv) all correspondence between the Company or its counsel and the Nasdaq Stock Market; and (v) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
4.5. No Material Changes. Prior to and on each of the Closing Date and the Option Closing Date, if any: (i) there shall have been no material adverse change or development that is likely to result in a material adverse change in the condition or prospects or the business activities, financial or otherwise, of the Company from the latest dates as of which such condition is set forth in the Registration Statement and Prospectus; (ii) no action suit or proceeding, at law or in equity, shall have been pending or threatened against the Company or any Initial Shareholder before or by any court or federal or state commission, board or other administrative agency wherein an unfavorable decision, ruling or finding may materially adversely affect the business, operations, prospects or financial condition or income of the Company, except as set forth in the Registration Statement, the Preliminary Prospectus and Prospectus; (iii) no stop order shall have been issued under the Act and no proceedings therefor shall have been initiated or threatened by the Commission; and (iv) the Registration Statement, the Preliminary Prospectus and the Prospectus and any amendments or supplements thereto shall contain all material statements which are required to be stated therein in accordance with the Act and the Regulations and shall conform in all material respects to the requirements of the Act and the Regulations, and neither the Registration Statement, the Preliminary Prospectus nor the Prospectus nor any amendment or supplement thereto shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made), not misleading.
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4.6. Delivery of Agreements and Securities.
4.6.1. Effective Date Deliveries. On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Rights Agreement, the Registration Rights Agreement, all of the Insider Letters, the Representative’s Option, the Representative Shares and the Subscription Agreement.
5. Indemnification.
5.1. Indemnification of Underwriters.
5.1.1. General. Subject to the conditions set forth below, the Company agrees to indemnify and hold harmless each of the Underwriters and each dealer selected by the Representative that participates in the offer and sale of the Units (each a “Selected Dealer”) and each of their respective directors, officers and employees and each person, if any, who controls any such Underwriter (“ControllingPerson”) within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against any and all loss, liability, claim, damage and expense whatsoever (including but not limited to any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever, whether arising out of any action between any of the Underwriters and the Company or between any of the Underwriters and any third party or otherwise) to which they or any of them may become subject under the Act, the Exchange Act or any other federal, state or local statute, law, rule, regulation or ordinance or at common law or otherwise or under the laws, rules and regulation of foreign countries, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in: (i) any Preliminary Prospectus, the Registration Statement, or the Prospectus (as from time to time each may be amended and supplemented); (ii) in any post-effective amendment or amendments or any new registration statement and prospectus in which is included securities of the Company issued or issuable upon exercise of the Representative’s Purchase Option; or (iii) any application or other document or written communication (in this Section 5, collectively called “Application”) executed by the Company or based upon written information furnished by the Company in any jurisdiction in order to qualify the Units under the securities laws thereof or filed with the Commission, any state securities commission or agency, the Nasdaq Stock Market or any securities exchange; or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, unless such statement or omission was made in reliance upon and in conformity with written information furnished to the Company with respect to an Underwriter by or on behalf of such Underwriter expressly for use in any Preliminary Prospectus, the Registration Statement, or the Prospectus, or any amendment or supplement thereof. With respect to any untrue statement or omission or alleged untrue statement or omission made in the Preliminary Prospectus, the indemnity agreement contained in this paragraph shall not inure to the benefit of any Underwriter to the extent that any loss, liability, claim, damage or expense of such Underwriter results from the fact that a copy of the Prospectus was not given or sent to the person asserting any such loss, liability, claim or damage at or prior to the written confirmation of sale of the Securities to such person as required by the Act and the Regulations, and if the untrue statement or omission has been corrected in the Prospectus, unless such failure to deliver the Prospectus was a result of non-compliance by the Company with its obligations under Section 3.4 hereof. The Company agrees to promptly notify the Representative of the commencement of any litigation or proceedings against the Company or any of its officers, directors or Controlling Persons in connection with the issue and sale of the Securities or in connection with the Preliminary Prospectus, the Registration Statement, or the Prospectus. For purposes of this Section 5, the term Underwriter or Underwriters shall refer to each Underwriter whether acting as an underwriter or as a qualified independent underwriter.
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5.1.2. Procedure. If any action is brought against an Underwriter or Controlling Person in respect of which indemnity may be sought against the Company pursuant to Section 5.1.1, such Underwriter shall promptly notify the Company in writing of the institution of such action and the Company shall assume the defense of such action, including the employment and fees of counsel (subject to the reasonable approval of such Underwriter) and payment of actual expenses. Such Underwriter or Controlling Person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such Underwriter or such Controlling Person unless: (i) the employment of such counsel at the expense of the Company shall have been authorized in writing by the Company in connection with the defense of such action within reasonable time under the circumstances; (ii) the Company shall not have employed counsel to have charge of the defense of such action; or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the reasonable fees and expenses of not more than one (1) additional firm of attorneys selected by the Underwriter and/or Controlling Person shall be borne by the Company. Notwithstanding anything to the contrary contained herein, if the Underwriter or Controlling Person shall assume the defense of such action as provided above, the Company shall have the right to approve the terms of any settlement of such action which approval shall not be unreasonably withheld.
5.2. Indemnification of the Company. Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company, its directors, officers and employees and agents who control the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the foregoing indemnity from the Company to the several Underwriters, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions made in any Preliminary Prospectus, the Registration Statement, or the Prospectus, or any amendment or supplement thereto, or in any Application, in reliance upon, and in strict conformity with, written information furnished to the Company with respect to such Underwriter by or on behalf of the Underwriter expressly for use in such Preliminary Prospectus, the Registration Statement, or the Prospectus, or any amendment or supplement thereto or in any such Application, which furnished written information, it is expressly agreed, consists solely of the information described in the last sentence of Section 2.3.1. In case any action shall be brought against the Company or any other person so indemnified based on any Preliminary Prospectus, the Registration Statement, or the Prospectus, or any amendment or supplement thereto or any Application, and in respect of which indemnity may be sought against any Underwriter, such Underwriter shall have the rights and duties given to the Company, and the Company and each other person so indemnified shall have the rights and duties given to the several Underwriters by the provisions of Section 5.1.2.
5.3. Contribution.
5.3.1. Contribution Rights. In order to provide for just and equitable contribution under the Act in any case in which: (i) any person entitled to indemnification under this Section 5 makes a claim for indemnification pursuant hereto but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 5 provides for indemnification in such case; or (ii) contribution under the Act, the Exchange Act or otherwise may be required on the part of any such person in circumstances for which indemnification is provided under this Section 5, then, and in each such case, the Company and the Underwriters shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement incurred by the Company and the Underwriters, as incurred, in such proportions that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount appearing on the cover page of the Prospectus bears to the initial offering price appearing thereon and the Company is responsible for the balance; provided, that, no person guilty of a fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding the provisions of this Section 5.3.1, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Public Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay in respect of such losses, liabilities, claims, damages and expenses. For purposes of this Section 5, each director, officer and employee of an Underwriter or the Company, as applicable, and each person, if any, who controls an Underwriter or the Company, as applicable, within the meaning of Section 15 of the Act shall have the same rights to contribution as the Underwriters or the Company, as applicable.
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5.3.2. Contribution Procedure. Within fifteen (15) days after receipt by any party to this Agreement (or its representative) of notice of the commencement of any action, suit or proceeding, such party will, if a claim for contribution in respect thereof is to be made against another party (“Contributing Party”), notify the Contributing Party of the commencement thereof, but the omission to so notify the Contributing Party will not relieve it from any liability which it may have to any other party other than for contribution hereunder. In case any such action, suit or proceeding is brought against any party, and such party notifies a Contributing Party or its representative of the commencement thereof within the aforesaid fifteen (15) days, the Contributing Party will be entitled to participate therein with the notifying party and any other Contributing Party similarly notified. Any such Contributing Party shall not be liable to any party seeking contribution on account of any settlement of any claim, action or proceeding effected by such party seeking contribution on account of any settlement of any claim, action or proceeding effected by such party seeking contribution without the written consent of such Contributing Party. The contribution provisions contained in this Section 5 are intended to supersede, to the extent permitted by law, any right to contribution under the Act, the Exchange Act or otherwise available. The Underwriters’ obligations to contribute pursuant to this Section 5.3 are several and not joint.
6. Default by an Underwriter.
6.1. Default Not Exceeding 10% of Firm Units or Option Units. If any Underwriter or Underwriters shall default in its or their obligations to purchase the Firm Units or the Option Units, if the Over-allotment Option is exercised, hereunder, and if the number of the Firm Units or Option Units with respect to which such default relates does not exceed in the aggregate 10% of the number of Firm Units or Option Units that all Underwriters have agreed to purchase hereunder, then such Firm Units or Option Units to which the default relates shall be purchased by the non-defaulting Underwriters in proportion to their respective commitments hereunder.
6.2. Default Exceeding 10% of Firm Units or Option Units. In the event that the default addressed in Section 6.1 above relates to more than 10% of the Firm Units or Option Units, the Representative may in its discretion arrange for itself or for another party or parties to purchase such Firm Units or Option Units to which such default relates on the terms contained herein. If, within one (1) Business Day after such default relating to more than 10% of the Firm Units or Option Units, the Representative does not arrange for the purchase of such Firm Units or Option Units, then the Company shall be entitled to a further period of one (1) Business Day within which to procure another party or parties satisfactory to the Company and the Representative to purchase said Firm Units or Option Units on such terms. In the event the Representative does not arrange for the purchase of the Firm Units or Option Units to which a default relates as provided in this Section 6, this Agreement may be terminated by the Company without liability on the part of the Company (except as provided in Sections 3.12 and 5 hereof) or the several Underwriters (except as provided in Section 5 hereof); provided, however, that if such default occurs with respect to the Option Units, this Agreement will not terminate as to the Firm Units; and provided further that nothing herein shall relieve a defaulting Underwriter of its liability, if any, to the other several Underwriters and to the Company for damages occasioned by its default hereunder.
6.3. Postponement of Closing Date. In the event the Firm Units or Option Units to which the default relates are to be purchased by the non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, the Representative or the Company shall have the right to postpone the Closing Date or Option Closing Date for a reasonable period, but not in any event exceeding five (5) Business Days, in order to effect whatever changes may thereby be made necessary in the Registration Statement, the Preliminary Prospectus and/or the Prospectus, as the case may be, or in any other documents and arrangements, and the Company agrees to file promptly any amendment to, or to supplement, the Registration Statement, the Preliminary Prospectus and/or the Prospectus, as the case may be, that in the opinion of counsel for the Underwriters may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any party substituted under this Section 6 with like effect as if it had originally been a party to this Agreement with respect to such Securities.
7. Additional Covenants.
7.1. Additional Shares or Options. The Company hereby agrees that until the Company consummates a Business Combination, it shall not issue any Ordinary Shares or any options or other securities convertible into Ordinary Shares, or any class of shares which participate in any manner in the Trust Account or which vote as a class with the Ordinary Shares on a Business Combination.
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7.2. Trust Account Waiver Acknowledgments. The Company hereby agrees that it will not commence its due diligence investigation of any operating business or businesses which the Company seeks to acquire (each, a “Target Business”) unless and until such Target Business acknowledges in writing, whether through a letter of intent, memorandum of understanding or other similar document (and subsequently acknowledges the same in any definitive document replacing any of the foregoing), that: (i) it has read the Prospectus and understands that the Company has established the Trust Account, initially in an amount of $75,750,000 for the benefit of the public shareholders, and that (ii) for and in consideration of the Company agreeing to evaluate such Target Business for purposes of consummating a Business Combination with it, such Target Business agrees that it does not have any right, title, interest or claim of any kind in or to any monies of the Trust Account (“Claim”) and waives any Claim it may have in the future as a result of, or arising out of, any negotiations, contracts or agreements with the Company and will not seek recourse against the Trust Account for any reason whatsoever. The Company further agrees that it will use commercially reasonable efforts, prior to obtaining the services of any vendor, to obtain a written acknowledgment from such vendor, whether through a letter of intent, memorandum of understanding or other similar document (and subsequently acknowledges the same in any definitive document replacing any of the foregoing), that: (i) such vendor has read the Prospectus and understands that the Company has established the Trust Account, initially in an amount of $75,750,000 for the benefit of the public shareholders, and that (ii) for and in consideration of the Company agreeing to engage the services of the vendor, such vendor agrees that it does not have any Claim and waives any Claim it may have in the future as a result of, or arising out of, any negotiations, contracts or agreements with the Company and will not seek recourse against the Trust Account for any reason whatsoever. The foregoing letters shall substantially be in the form attached hereto as Exhibit A and B, respectively. Furthermore, each officer and director of the Company shall execute a waiver letter in the form attached hereto as Exhibit C.
7.3. Insider Letters. The Company shall not take any action or omit to take any action which would cause a breach of any of the Insider Letters executed between each of the Company’s officers, directors and Initial Shareholders or the Subscription Agreement and will not allow any amendments to, or waivers of, such Insider Letters or the Subscription Agreement without the prior written consent of the Representative.
7.4. Memorandum and Articles of Association. The Company shall not take any action or omit to take any action that would cause the Company to be in material breach or violation of its Memorandum and Articles of Association. Except as provided in Section 3.28, prior to the consummation of a Business Combination, the Company will not amend its Memorandum and Articles of Association, without the prior written consent of the Representative.
7.5. Tender Offer Documents, Proxy Materials and Other Information. The Company shall provide counsel to the Representative with copies of all tender offer documents or proxy information and all related material filed with the Commission in connection with a Business Combination concurrently with such filing with the Commission. In addition, the Company shall furnish any other state in which the Offering was registered, such information as may be requested by such state.
7.6. Acquisition/Liquidation Procedure. The Company agrees that it will comply with Article 37.8 of its Amended and Restated Articles of Association in connection with the consummation of a Business Combination or the failure to consummate a Business Combination within 12 months from the Effective Date (subject to extension to up to 21 months as described in the Prospectus).
7.7. Rule 419. The Company agrees that it will use its best efforts to prevent the Company from becoming subject to Rule 419 under the Act prior to the consummation of any Business Combination, including, but not limited to, using its best efforts to prevent any of the Company’s outstanding securities from being deemed to be a “penny stock” as defined in Rule 3a-51-1 under the Exchange Act during such period.
7.8. Presentation of Potential Target Businesses. The Company shall cause each of the Initial Shareholders to agree that, in order to minimize potential conflicts of interest which may arise from multiple affiliations, the Initial Shareholders will present to the Company for its consideration, prior to presentation to any other person or company, any suitable opportunity to acquire an operating business, until the earlier of the consummation by the Company of a Business Combination or the liquidation of the Company, subject to any pre-existing fiduciary obligations the Initial Shareholders might have.
8. Representations and Agreements to Survive Delivery. Except as the context otherwise requires, all representations, warranties and agreements contained in this Agreement shall be deemed to be representations, warranties and agreements at the Closing Date or the Option Closing Date, if any, and such representations, warranties and agreements of the Underwriters and the Company, including the indemnity agreements contained in Section 5 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter, the Company or any Controlling Person, and shall survive termination of this Agreement or the issuance and delivery of the Securities to the several Underwriters until the earlier of the expiration of any applicable statute of limitations and the seventh (7^th^) anniversary of the later of the Closing Date or the Option Closing Date, if any, at which time the representations, warranties and agreements shall terminate and be of no further force and effect.
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9. Effective Date of This Agreement and Termination Thereof.
9.1. Effective Date. This Agreement shall become effective on the Effective Date at the time the Registration Statement is declared effective by the Commission.
9.2. Termination. The Representative shall have the right to terminate this Agreement at any time prior to any Closing Date: (i) if any domestic or international event or act or occurrence has materially disrupted, or in the Representative’s opinion will in the immediate future materially disrupt, general securities markets in the United States; or (ii) if trading on the New York Stock Exchange, the NYSE American or the Nasdaq Stock Market shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, or maximum ranges for prices for securities shall have been required on the over the counter markets or by order of the Commission or any other government authority having jurisdiction; or (iii) if the United States shall have become involved in a war or an initiation or increase in major hostilities, or (iv) if a banking moratorium has been declared by a New York State or federal authority, or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities markets; or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in the Representative’s opinion, make it inadvisable to proceed with the delivery of the Units; or (vii) if any of the Company’s representations, warranties or covenants hereunder are breached; or (viii) if the Representative shall have become aware after the date hereof of such a material adverse change in the conditions or prospects of the Company, or such material adverse change in general market conditions, including, without limitation, as a result of terrorist activities after the date hereof, as in the Representative’s judgment would make it impracticable to proceed with the offering, sale and/or delivery of the Units or to enforce contracts made by the Underwriters for the sale of the Units.
9.3. Expenses. In the event this Agreement shall not be carried out for any reason whatsoever, except as a result of the Representative’s or any Underwriters’ breach or default with respect to any of its material obligations pursuant to this Agreement, within the time specified herein or any extensions thereof pursuant to the terms herein, the obligations of the Company to pay the out-of-pocket expenses actually incurred by the Representative related to the transactions contemplated herein shall be governed by Section 3.12 hereof.
9.4. Indemnification. Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall not be in any way affected by such election or termination or failure to carry out the terms of this Agreement or any part hereof.
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10. Miscellaneous.
10.1. Notices. All communications hereunder, except as herein otherwise specifically provided, shall be in writing and shall be mailed, delivered by hand or reputable overnight courier or delivered by facsimile transmission (with printed confirmation of receipt) and confirmed, or by electronic transmission via PDF, and shall be deemed given when so mailed, delivered or faxed or transmitted (or if mailed, three (3) days after such mailing):
If to the Representative:
Maxim Group LLC
300 Park Avenue, 16^th^ Floor
New York, NY 10022
Attn.: Clifford A. Teller, Executive Managing Director, Investment Banking
Fax: 212-895-3783
Email: cteller@maximgrp.com
Copy to (which copy shall not be deemed to constitute notice to the Representative):
Hunter Taubman Fischer & Li LLC
800 Third Avenue Suite 2800
New York, NY 10022
Attn.: Louis Taubman, Esq.
Fax: (212) 202-6380
Email: ltaubman@htflawyers.com
If to the Company:
Kairous Acquisition Corp. Limited
Unit 9-3, Oval Tower @ Damansara
No. 685, Jalan Damansara
60000 Taman Tun Dr. Ismail
Kuala Lumpur, Malaysia
Attn.: Joseph Lee Moh Hon, Chief Executive Officer
Email: joseph@kairous.com
Copy to (which copy shall not be deemed to constitute notice to the Company):
Loeb & Loeb LLP
2206-19 Jardine House
1 Connaught Place
Central Hong Kong SAR
Attn.: Lawrence S. Venick, Esq.
Fax: 852-3923-1100
Email: lvenick@loeb.com
10.2. Headings. The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Agreement.
10.3. Amendment. This Agreement may only be amended by a written instrument executed by each of the parties hereto.
10.4. Entire Agreement. This Agreement (together with the other agreements and documents being delivered pursuant to or in connection with this Agreement) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof (and thereof), and supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
10.5. Binding Effect. This Agreement shall inure solely to the benefit of and shall be binding upon the Representative, the Underwriters, the Company and the Controlling Persons, directors and officers referred to in Section 5 hereof, and their respective successors, legal representatives and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim under or in respect of or by virtue of this Agreement or any provisions herein contained.
10.6. Governing Law, Venue, etc.
10.6.1. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without giving effect to the conflict of laws principles thereof. Each of the Representative and the Company (and any individual signatory hereto): (i) agrees that any legal suit, action or proceeding arising out of or relating to this Agreement and/or the transactions contemplated hereby shall be instituted exclusively in New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York; (ii) waives any objection which such party may have or hereafter have to the venue of any such suit, action or proceeding; and (iii) irrevocably and exclusively consents to the jurisdiction of the New York Supreme Court, County of New York, and the United States District Court for the Southern District of New York in any such suit, action or proceeding.
| 29 |
| --- |
10.6.2. Each of the Representative and the Company (and any individual signatory hereto) further agrees to accept and acknowledge service of any and all process which may be served in any such suit, action or proceeding in the New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York and agrees that service of process upon the Company or any such individual mailed by certified mail to the Company’s address shall be deemed in every respect effective service of process upon the Company or any such individual in any such suit, action or proceeding, and service of process upon the Representative mailed by certified mail to the Representative’s addresses shall be deemed in every respect effective service process upon the Representative, in any such suit, action or proceeding.
10.6.3. THE COMPANY (ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ON BEHALF OF ITS EQUITY HOLDERS AND CREDITORS) HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE REGISTRATION STATEMENT AND THE PROSPECTUS.
10.6.4. The Company agrees that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies) all of its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection with the preparation therefor.
10.7. Execution in Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered to each of the other parties hereto. Delivery of a signed counterpart of this Agreement by fax or email/.pdf transmission shall constitute valid and sufficient delivery thereof.
10.8. Waiver, Etc. The failure of any of the parties hereto to at any time enforce any of the provisions of this Agreement shall not be deemed or construed to be a waiver of any such provision, nor to in any way effect the validity of this Agreement or any provision hereof or the right of any of the parties hereto to thereafter enforce each and every provision of this Agreement. No waiver of any breach, non-compliance or non-fulfillment of any of the provisions of this Agreement shall be effective unless set forth in a written instrument executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.
10.9. No Fiduciary Relationship. The Company hereby acknowledges that the Underwriters are acting solely as underwriters in connection with the Offering. The Company further acknowledges that the Underwriters are acting pursuant to a contractual relationship created solely by this Agreement entered into on an arm’s length basis and in no event do the parties intend that the Underwriters act or be responsible as a fiduciary to the Company, its management, shareholders, creditors or any other person in connection with any activity that the Underwriters may undertake or have undertaken in furtherance of the Offering, either before or after the date hereof. The Underwriters hereby expressly disclaim any fiduciary or similar obligations to the Company, either in connection with the transactions contemplated by this Agreement or any matters leading up to such transactions, and the Company hereby confirms its understanding and agreement to that effect. The Company and the Underwriters agree that they are each responsible for making their own independent judgments with respect to any such transactions, and that any opinions or views expressed by the Underwriters to the Company regarding such transactions, including but not limited to any opinions or views with respect to the price or market for the Company’s securities, do not constitute advice or recommendations to the Company. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Underwriters with respect to any breach or alleged breach of any fiduciary or similar duty to the Company in connection with the transactions contemplated by this Agreement or any matters leading up to such transactions.
[REMAINDEROF PAGE INTENTIONALLY LEFT BLANK]
| 30 |
| --- |
If the foregoing correctly sets forth the understanding between the Underwriters and the Company, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between us.
| Very<br> truly yours, | |
|---|---|
| KAIROUS ACQUISITION CORP. LIMITED | |
| By: | /s/<br> Joseph Lee Moh Hon |
| Name: | Joseph<br> Lee Moh Hon |
| Title: | Chief<br> Executive Officer |
| Agreed to and accepted on the date first above written. | |
| --- | --- |
| MAXIM GROUP LLC, as Representative of the several Underwriters | |
| By: | /s/<br> Clifford A. Teller |
| Name: | Clifford<br> A. Teller |
| Title: | Executive<br> Managing Director, Head of Investment Banking |
| 31 |
| --- |
SCHEDULEA
KAIROUSACQUISITION CORP. LIMITED
7,500,000Units
| Underwriter | Number of Firm Units<br> <br>to be Purchased | |
|---|---|---|
| Maxim<br> Group LLC | 7,500,000 | |
| TOTAL | 7,500,000 |
| 32 |
| --- |
SCHEDULEB
KAIROUSACQUISITION CORP. LIMITED
Written Communications
None.
| 33 |
| --- |
EXHIBITA
Formof Target Business Letter
Joseph Lee Moh Hon
Chief Executive Officer
KAIROUS ACQUISITION CORP. LIMITED
Unit 9-3, Oval Tower @ Damansara
No. 685, Jalan Damansara
60000 Taman Tun Dr. Ismail
Kuala Lumpur, Malaysia
Ladies and Gentlemen:
Reference is made to the Final Prospectus of KAIROUS ACQUISITION CORP. LIMITED (the “Company”), dated December 13, 2021 (the “Prospectus”). Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in Prospectus.
We have read the Prospectus and understand that the Company has established a “trust account”, initially in an amount of at least $75,750,000 for the benefit of the “public shareholders” and the underwriters of the Company’s initial public offering (the “Underwriters”) and that, except for (i) interest earned on the trust account that may be released to the Company to pay any taxes it incurs, and (ii) interest earned by the trust account that may be released to the Company from time to time to fund the Company’s working capital and general corporate requirements, proceeds in the trust account will not be released until (a) the consummation of a Business Combination, or (b) the dissolution and liquidation of the Company if it is unable to consummate a Business Combination within the allotted time.
For and in consideration of the Company agreeing to evaluate the undersigned for purposes of consummating a business combination or other form of acquisition with it, the undersigned hereby agrees that it does not have any right, title, interest or claim of any kind in or to any monies in the trust account (the “Claim”) and hereby waives any Claim it may have in the future as a result of, or arising out of, any negotiations, contracts or agreements with the Company and will not seek recourse against the trust account for any reason whatsoever.
| Print<br> Name of Target Business |
|---|
| Authorized<br> Signature of Target Business |
| 34 |
| --- |
EXHIBITB
Formof Vendor Letter
Joseph Lee Moh Hon
Chief Executive Officer
KAIROUS ACQUISITION CORP. LIMITED
Unit 9-3, Oval Tower @ Damansara
No. 685, Jalan Damansara
60000 Taman Tun Dr. Ismail
Kuala Lumpur, Malaysia
Ladies and Gentlemen:
Reference is made to the Final Prospectus of KAIROUS ACQUISITION CORP. LIMITED (the “Company”), dated December 13, 2021 (the “Prospectus”). Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in Prospectus.
We have read the Prospectus and understand that the Company has established a “trust account”, initially in an amount of at least $75,750,000 for the benefit of the “public shareholders” and the underwriters of the Company’s initial public offering (the “Underwriters”) and that, except for (i) interest earned on the trust account that may be released to the Company to pay any taxes it incurs, and (ii) interest earned by the trust account that may be released to the Company from time to time to fund the Company’s working capital and general corporate requirements, proceeds in the trust account will not be released until (a) the consummation of a Business Combination, or (b) the dissolution and liquidation of the Company if it is unable to consummate a Business Combination within the allotted time.
For and in consideration of the Company agreeing to use the products or services of the undersigned, the undersigned hereby agrees that it does not have any right, title, interest or claim of any kind in or to any monies in the trust account (the “Claim”) and hereby waives any Claim it may have in the future as a result of, or arising out of, any negotiations, contracts or agreements with the Company and will not seek recourse against the trust account for any reason whatsoever.
| Print<br> Name of Vendor |
|---|
| Authorized<br> Signature of Vendor |
| 35 |
| --- |
EXHIBITC
Formof Director/Officer Letter
Joseph Lee Moh Hon
Chief Executive Officer
KAIROUS ACQUISITION CORP. LIMITED
Unit 9-3, Oval Tower @ Damansara
No. 685, Jalan Damansara
60000 Taman Tun Dr. Ismail
Kuala Lumpur, Malaysia
Ladies and Gentlemen:
The undersigned officer or director of KAIROUS ACQUISITION CORP. LIMITED (the “Company”) hereby acknowledges that the Company has established the “trust account”, initially in an amount of at least $75,750,000 for the benefit of the “public shareholders” and the underwriters of the Company’s initial public offering (the “Underwriters”) and that, except for (i) interest earned on the trust account that may be released to the Company to pay any taxes it incurs, and (ii) interest earned by the trust account that may be released to the Company from time to time to fund the Company’s working capital and general corporate requirements, proceeds in the trust account will not be released until (a) the consummation of a Business Combination, or (b) the dissolution and liquidation of the Company if it is unable to consummate a Business Combination within the allotted time.
The undersigned hereby agrees that, except for its liquidation rights with respect to any Units and/or Ordinary Shares acquired in the Offering or in the aftermarket, it does not have any right, title, interest or claim of any kind in or to any monies in the trust account (the “Claim”) and hereby waives any Claim it may have in the future as a result of, or arising out of, any contracts or agreements with the Company and will not seek recourse against the trust account for any reason whatsoever.
Notwithstanding the foregoing, such waiver shall not apply to any shares acquired by the undersigned in the public market.
| Print<br> Name of Officer/Director |
|---|
| Authorized<br> Signature of Officer/Director |
| 36 |
| --- |
Exhibit 3.1
CompaniesAct (revised)
CompanyLimited by Shares
AMENDEDAND RESTATED
MEMORANDUMAND ARTICLES OF ASSOCIATION
OF
****KAIROUS ACQUISITION CORP. LIMITED
Adoptedby special resolution dated 13 December 2021
[182233.00001]
CompaniesAct (Revised)
CompanyLimited by Shares
Amendedand Restated
Memorandumof Association
of
KairousAcquisition Corp. Limited
Adoptedby special resolution on 13 December 2021
| 1 | The<br> name of the Company is Kairous Acquisition Corp. Limited. | |
|---|---|---|
| 2 | The<br> Company’s registered office will be situated at the office of Ogier Global (Cayman) Limited, 89 Nexus Way, Camana Bay, Grand<br> Cayman, KY1-9009,, Cayman Islands, or at such other place in the Cayman Islands as the directors may at any time decide. | |
| 3 | The<br> Company’s objects are unrestricted. As provided by section 7(4) of the Companies Act (Revised), the Company has full power<br> and authority to carry out any object not prohibited by any law of the Cayman Islands. | |
| 4 | The<br> Company has unrestricted corporate capacity. Without limitation to the foregoing, as provided by section 27 (2) of the Companies<br> Act (Revised), the Company has and is capable of exercising all the functions of a natural person of full capacity irrespective of<br> any question of corporate benefit. | |
| 5 | Nothing<br> in any of the preceding paragraphs permits the Company to carry on any of the following businesses without being duly licensed, namely: | |
| (a) | the<br> business of a bank or trust company without being licensed in that behalf under the Banks and Trust Companies Act (Revised); or | |
| (b) | insurance<br> business from within the Cayman Islands or the business of an insurance manager, agent, sub-agent or broker without being licensed<br> in that behalf under the Insurance Act (Revised);or | |
| (c) | the<br> business of company management without being licensed in that behalf under the Companies Management Act (Revised). | |
| 6 | The<br> Company will not trade in the Cayman Islands with any person, firm or corporation except in furtherance of its business carried on<br> outside the Cayman Islands. Despite this, the Company may effect and conclude contracts in the Cayman Islands and exercise in the<br> Cayman Islands any of its powers necessary for the carrying on of its business outside the Cayman Islands. | |
| 7 | The<br> Company is a company limited by shares and accordingly the liability of each member is limited to the amount (if any) unpaid on that<br> member’s shares. |
| 8 | The<br> share capital of the Company is US50,000 divided into 500,000,000 ordinary shares of par value US0.0001 each. Subject to the Companies<br> Act (Revised) and the Company’s articles of association, the Company has power to do any one or more of the following: |
|---|---|
| (a) | |
| (b) | |
| (c) | |
| (i) | |
| (ii) | |
| (d) | |
| 9 | The<br> Company has power to register by way of continuation as a body corporate limited by shares under the laws of any jurisdiction outside<br> the Cayman Islands and to be deregistered in the Cayman Islands. |
All values are in US Dollars.
CompaniesAct (revised)
CompanyLimited by ShareS
Amendedand Restated
articlesof Association
of
KAIROUSACQUISITION CORP. LIMITED
Adoptedby special resolution on 13 December 2021
| CONTENTS | ||
|---|---|---|
| 1. | Definitions,<br> interpretation and exclusion of Table A | 1 |
| Definitions | 1 | |
| Interpretation | 4 | |
| Exclusion<br> of Table A Articles | 5 | |
| 2. | Commencement<br> of Business | 5 |
| 3. | Shares | 5 |
| Power<br> to issue Shares and options, with or without special rights | 5 | |
| Power<br> to issue fractions of a Share | 6 | |
| Power<br> to pay commissions and brokerage fees | 6 | |
| Trusts<br> not recognised | 6 | |
| Power<br> to vary class rights | 6 | |
| Effect<br> of new Share issue on existing class rights | 7 | |
| No<br> bearer Shares or warrants | 7 | |
| Treasury<br> Shares | 7 | |
| Rights<br> attaching to Treasury Shares and related matters | 7 | |
| 4. | Register<br> of Members | 8 |
| 5. | Share<br> certificates | 8 |
| Issue<br> of share certificates | 8 | |
| Renewal<br> of lost or damaged share certificates | 8 | |
| 6. | Lien<br> on Shares | 9 |
| Nature<br> and scope of lien | 9 | |
| Company<br> may sell Shares to satisfy lien | 9 | |
| Authority<br> to execute instrument of transfer | 9 | |
| Consequences<br> of sale of Shares to satisfy lien | 9 | |
| Application<br> of proceeds of sale | 10 | |
| 7. | Calls<br> on Shares and forfeiture | 10 |
| Power<br> to make calls and effect of calls | 10 | |
| Time<br> when call made | 10 | |
| Liability<br> of joint holders | 10 | |
| Interest<br> on unpaid calls | 10 | |
| Deemed<br> calls | 11 | |
| Power<br> to accept early payment | 11 | |
| Power<br> to make different arrangements at time of issue of Shares | 11 | |
| Notice<br> of default | 11 |
| i |
| --- | | | Forfeiture<br> or surrender of Shares | 11 | | --- | --- | --- | | | Disposal<br> of forfeited or surrendered Share and power to cancel forfeiture or surrender | 11 | | | Effect<br> of forfeiture or surrender on former Member | 12 | | | Evidence<br> of forfeiture or surrender | 12 | | | Sale<br> of forfeited or surrendered Shares | 12 | | 8. | Transfer<br> of Shares | 12 | | | Form<br> of transfer | 13 | | | Power<br> to refuse registration | 13 | | | Power<br> to suspend registration | 13 | | | Company<br> may retain instrument of transfer | 13 | | 9. | Transmission<br> of Shares | 13 | | | Persons<br> entitled on death of a Member | 13 | | | Registration<br> of transfer of a Share following death or bankruptcy | 13 | | | Indemnity | 14 | | | Rights<br> of person entitled to a Share following death or bankruptcy | 14 | | 10. | Alteration<br> of capital | 14 | | | Increasing,<br> consolidating, converting, dividing and cancelling share capital | 14 | | | Dealing<br> with fractions resulting from consolidation of Shares | 15 | | | Reducing<br> share capital | 15 | | 11. | Redemption<br> and purchase of own Shares | 15 | | | Power<br> to issue redeemable Shares and to purchase own Shares | 15 | | | Power<br> to pay for redemption or purchase in cash or in specie | 16 | | | Effect<br> of redemption or purchase of a Share | 16 | | 12. | Meetings<br> of Members | 16 | | | Power<br> to call meetings | 16 | | | Content<br> of notice | 17 | | | Period<br> of notice | 18 | | | Persons<br> entitled to receive notice | 18 | | | Publication<br> of notice on a website | 18 | | | Time<br> a website notice is deemed to be given | 18 | | | Required<br> duration of publication on a website | 18 | | | Accidental<br> omission to give notice or non-receipt of notice | 19 | | 13. | Proceedings<br> at meetings of Members | 19 | | | Quorum | 19 | | | Lack<br> of quorum | 19 |
| ii |
| --- | | | Use<br> of technology | 19 | | --- | --- | --- | | | Chairman | 19 | | | Right<br> of a director to attend and speak | 20 | | | Adjournment<br> and Postponement | 20 | | | Method<br> of voting | 20 | | | Taking<br> of a poll | 20 | | | Chairman’s<br> casting vote | 21 | | | Amendments<br> to resolutions | 21 | | | Written<br> resolutions | 21 | | | Sole-member<br> company | 22 | | 14. | Voting<br> rights of Members | 22 | | | Right<br> to vote | 22 | | | Rights<br> of joint holders | 22 | | | Representation<br> of corporate Members | 22 | | | Member<br> with mental disorder | 23 | | | Objections<br> to admissibility of votes | 23 | | | Form<br> of proxy | 23 | | | How<br> and when proxy is to be delivered | 24 | | | Voting<br> by proxy | 24 | | 15. | Number<br> of directors | 24 | | 16. | Appointment,<br> disqualification and removal of directors | 25 | | | No<br> age limit | 25 | | | Corporate<br> directors | 25 | | | No<br> shareholding qualification | 25 | | | Appointment<br> and removal of directors | 25 | | | Resignation<br> of directors | 26 | | | Termination<br> of the office of director | 26 | | 17. | Alternate<br> directors | 26 | | | Appointment<br> and removal | 26 | | | Notices | 27 | | | Rights<br> of alternate director | 27 | | | Appointment<br> ceases when the appointor ceases to be a director | 28 | | | Status<br> of alternate director | 28 | | | Status<br> of the director making the appointment | 28 | | 18. | Powers<br> of directors | 28 |
| iii |
| --- | | | Powers<br> of directors | 28 | | --- | --- | --- | | | Appointments<br> to office | 28 | | | Remuneration | 29 | | | Disclosure<br> of information | 29 | | 19. | Delegation<br> of powers | 29 | | | Power<br> to delegate any of the directors’ powers to a committee | 30 | | | Power<br> to appoint an agent of the Company | 30 | | | Power<br> to appoint an attorney or authorised signatory of the Company | 30 | | | Power<br> to appoint a proxy | 31 | | 20. | Meetings<br> of directors | 31 | | | Regulation<br> of directors’ meetings | 31 | | | Calling<br> meetings | 31 | | | Notice<br> of meetings | 31 | | | Period<br> of notice | 31 | | | Use<br> of technology | 31 | | | Place<br> of meetings | 32 | | | Quorum | 32 | | | Voting | 32 | | | Validity | 32 | | | Recording<br> of dissent | 32 | | | Written<br> resolutions | 32 | | | Sole<br> director’s minute | 32 | | 21. | Permissible<br> directors’ interests and disclosure | 32 | | | Permissible<br> interests subject to disclosure | 33 | | | Notification<br> of interests | 33 | | | Voting<br> where a director is interested in a matter | 33 | | 22. | Minutes | 33 | | 23. | Accounts<br> and audit | 34 | | | No<br> automatic right of inspection | 34 | | | Sending<br> of accounts and reports | 34 | | | Validity<br> despite accidental error in publication on website | 34 | | | Audit | 35 | | 24. | Financial<br> year | 35 | | 25. | Record<br> dates | 35 | | 26. | Dividends | 36 | | | Declaration<br> of dividends by Members | 36 |
| iv |
| --- | | | Payment<br> of interim dividends and declaration of final dividends by directors | 36 | | --- | --- | --- | | | Apportionment<br> of dividends | 37 | | | Right<br> of set off | 37 | | | Power<br> to pay other than in cash | 37 | | | How<br> payments may be made | 37 | | | Dividends<br> or other moneys not to bear interest in absence of special rights | 38 | | | Dividends<br> unable to be paid or unclaimed | 38 | | 27. | Capitalisation<br> of profits | 38 | | | Capitalisation<br> of profits or of any share premium account or capital redemption reserve | 38 | | | Applying<br> an amount for the benefit of members | 38 | | 28. | Share<br> premium account | 39 | | | directors<br> to maintain share premium account | 39 | | | Debits<br> to share premium account | 39 | | 29. | Seal | 39 | | | Company<br> seal | 39 | | | Duplicate<br> seal | 39 | | | When<br> and how seal is to be used | 39 | | | If<br> no seal is adopted or used | 39 | | | Power<br> to allow non-manual signatures and facsimile printing of seal | 40 | | | Validity<br> of execution | 40 | | 30. | Indemnity | 40 | | | Indemnity | 40 | | | Release | 41 | | | Insurance | 41 | | 31. | Notices | 41 | | | Form<br> of notices | 41 | | | Electronic<br> communications | 41 | | | Persons<br> authorised to give notices | 42 | | | Delivery<br> of written notices | 42 | | | Joint<br> holders | 42 | | | Signatures | 42 | | | Evidence<br> of transmission | 42 | | | Giving<br> notice to a deceased or bankrupt Member | 42 | | | Date<br> of giving notices | 43 | | | Saving<br> provision | 43 |
| v |
| --- | | 32. | Authentication<br> of Electronic Records | 43 | | --- | --- | --- | | | Application<br> of Articles | 43 | | | Authentication<br> of documents sent by Members by Electronic means | 43 | | | Authentication<br> of document sent by the Secretary or Officers of the Company by Electronic means | 44 | | | Manner<br> of signing | 44 | | | Saving<br> provision | 44 | | 33. | Transfer<br> by way of continuation | 45 | | 34. | Winding<br> up | 45 | | | Distribution<br> of assets in specie | 45 | | | No<br> obligation to accept liability | 45 | | | The<br> directors are authorised to present a winding up petition | 45 | | 35. | Amendment<br> of Memorandum and Articles | 45 | | | Power<br> to change name or amend Memorandum | 45 | | | Power<br> to amend these Articles | 45 | | 36. | Mergers<br> and Consolidations | 46 | | 37. | Business<br> Combination | 46 | | 38. | Certain<br> Tax Filings | 49 | | 39. | Business<br> Opportunities | 49 |
| vi |
| --- |
CompaniesAct (Revised)
CompanyLimited by Shares
Amendedand Restated
Articlesof Association
of
KairousAcquisition Corp. Limited
Adoptedby special resolution on 13 December 2021
| 1. | Definitions,<br> interpretation and exclusion of Table A |
|---|
Definitions
| 1.1 | In<br> these Articles, the following definitions apply: |
|---|
Actmeans the Companies Act (Revised) of the Cayman Islands.
Affiliatein 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 (a) 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 (b) 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.
ApplicableLaw means, with respect to any person, all provisions of laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees or orders of any governmental authority applicable to such person.
Articlesmeans, as appropriate:
| (a) | these<br> Amended and Restated Articles of Association as amended, restated, supplemented and/or otherwise<br> modified from time to time: or |
|---|---|
| (b) | two<br> or more particular Articles of these Articles; |
and Article refers to a particular Article of these Articles.
AuditCommittee means the audit committee of the board of directors of the Company established pursuant to Article 23.8 hereof, or any successor audit committee.
Auditormeans the person for the time being performing the duties of auditor of the Company.
| 1 |
| --- |
BusinessCombination means a merger, share exchange, asset acquisition, share purchase, reorganisation or similar business combination involving the Company, with one or more businesses or entities (each a target business), which Business Combination: (a) must be with one or more operating businesses or assets with a fair market value equal to at least 80% of the net assets held in the trust account (net of amounts disbursed to management for working capital purposes, if permitted, and excluding the amount of any deferred underwriting discount and taxes payable on the interest earned on the trust account); and (b) must not be effectuated solely with another blank cheque company or a similar company with nominal operations.
BusinessDay means a day other than a day on which banking institutions or trust companies are authorised or obligated by law to close in New York City, a Saturday or a Sunday.
ClearDays, in relation to a period of notice, means that period excluding:
| (a) | the<br> day when the notice is given or deemed to be given; and |
|---|---|
| (b) | the<br> day for which it is given or on which it is to take effect. |
ClearingHouse means a clearing house recognised by the laws of the jurisdiction in which the Shares (or depositary receipts therefor) are listed or quoted on a stock exchange or interdealer quotation system in such jurisdiction.
Companymeans the above-named company.
CompensationCommittee means the compensation committee of the board of directors of the Company established pursuant to the Articles, or any successor committee.
DefaultRate means 10% (ten per cent) per annum.
DesignatedStock Exchange means any United States national securities exchange, including the Nasdaq Stock Market LLC, the NYSE American LLC or The New York Stock Exchange LLC or any OTC market on which the Shares are listed for trading.
Electronichas the meaning given to that term in the Electronic Transactions Act (Revised).
ElectronicRecord has the meaning given to that term in the Electronic Transactions Act (Revised).
ElectronicSignature has the meaning given to that term in the Electronic Transactions Act (Revised).
ExchangeAct means the United States Securities Exchange Act of 1934, as amended.
Foundersmeans all Members immediately prior to the consummation of the IPO.
FullyPaid and Paid Up:
| (a) | in<br> relation to a Share with par value, means that the par value for that Share and any premium<br> payable in respect of the issue of that Share, has been fully paid or credited as paid in<br> money or money’s worth; |
|---|---|
| (b) | in<br> relation to a Share without par value, means that the agreed issue price for that Share has<br> been fully paid or credited as paid in money or money’s worth. |
IndependentDirector means a director who is an independent director as defined in the rules and regulations of the Designated Stock Exchange as determined by the directors.
| 2 |
| --- |
InvestorGroup means the Sponsor and its Affiliates, successors and assigns.
IPOmeans the Company’s initial public offering of securities.
IPORedemption has the meaning given to it in Article 37.6.
Islandsmeans the British Overseas Territory of the Cayman Islands.
Membermeans any person or persons entered on the Register of Members from time to time as the holder of a Share.
Memorandummeans the Amended and Restated Memorandum of Association of the Company as amended, restated, supplemented and/or otherwise modified from time to time.
NominatingCommittee means the nominating committee of the board of directors of the Company established pursuant to the Articles, or any successor committee.
Officermeans a person then appointed to hold an office in the Company; and the expression includes a director, alternate director or liquidator.
OrdinaryResolution means a resolution 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 thereon. The expression also includes a unanimous written resolution.
Over-AllotmentOption means the option of the Underwriters to purchase up to an additional 15% of the firm units (as described at Article 3.4) issued in the IPO at a price equal to US$10.00 per unit, less underwriting discount and commissions.
PublicShare means a Share issued as part of the units (as described in Article 3.4) issued in the IPO.
RedemptionPrice has the meaning given to it in Article 37.6.
Registerof Members means the register of Members maintained in accordance with the Act and includes (except where otherwise stated) any branch or duplicate register of Members.
Representativemeans a representative of the Underwriters.
SECmeans the United States Securities and Exchange Commission.
Secretarymeans a person appointed to perform the duties of the secretary of the Company, including a joint, assistant or deputy secretary.
Sharemeans a share in the share capital of the Company; and the expression:
| (a) | includes<br> stock (except where a distinction between shares and stock is expressed or implied); and |
|---|---|
| (b) | where<br> the context permits, also includes a fraction of a share. |
SpecialResolution has the meaning given to that term in the Act; and the expression includes a unanimous written resolution.
| 3 |
| --- |
Sponsormeans Kairous Asia Limited, a limited liability company incorporated under the laws of the British Virgin Islands.
TaxFiling Authorised Person means such person as any director shall designate from time to time, acting severally.
TreasuryShares means Shares of the Company held in treasury pursuant to the Act and Article 3.14.
TrustAccount means the trust account established by the Company upon the consummation of its IPO and into which a certain amount of the net proceeds of the IPO, together with a certain amount of the proceeds of a private placement of warrants simultaneously with the closing date of the IPO, will be deposited.
Underwritermeans an underwriter of the IPO from time to time, and any successor underwriter.
Interpretation
| 1.2 | In<br> the interpretation of these Articles, the following provisions apply unless the context otherwise<br> requires: |
|---|---|
| (a) | A<br> reference in these Articles to a statute is a reference to a statute of the Islands as known<br> by its short title, and includes: |
| --- | --- |
| (i) | any<br> statutory modification, amendment or re-enactment; and |
| --- | --- |
| (ii) | any<br> subordinate legislation or regulations issued under that statute. |
Without limitation to the preceding sentence, a reference to a revised Act of the Cayman Islands is taken to be a reference to the revision of that Act in force from time to time as amended from time to time.
| (b) | Headings<br> are inserted for convenience only and do not affect the interpretation of these Articles,<br> unless there is ambiguity. |
|---|---|
| (c) | If<br> a day on which any act, matter or thing is to be done under these Articles is not a Business<br> Day, the act, matter or thing must be done on the next Business Day. |
| (d) | A<br> word which denotes the singular also denotes the plural, a word which denotes the plural<br> also denotes the singular, and a reference to any gender also denotes the other genders. |
| (e) | A<br> reference to a person includes, as appropriate, a company, trust, partnership, joint venture,<br> association, body corporate or government agency. |
| (f) | Where<br> a word or phrase is given a defined meaning another part of speech or grammatical form in<br> respect to that word or phrase has a corresponding meaning. |
| (g) | All<br> references to time are to be calculated by reference to time in the place where the Company’s<br> registered office is located. |
| (h) | The<br> words written and in writing include all modes of representing or reproducing words in a<br> visible form, but do not include an Electronic Record where the distinction between a document<br> in writing and an Electronic Record is expressed or implied. |
| (i) | The<br> words including, include and in particular or any similar expression are to be construed<br> without limitation. |
| 4 |
| --- | | (j) | Any<br> requirements as to execution or signature under the Articles including the execution of the<br> Articles themselves can be satisfied in the form of an Electronic Signature. | | --- | --- | | (k) | Sections<br> 8 and 19(3) of the Electronic Transactions Act shall not apply. | | (l) | The<br> term “holder” in relation to a Share means a person whose name is entered in<br> the Register of Members as the holder of such Share. |
Exclusion of Table A Articles
| 1.3 | The<br> regulations contained in Table A in the First Schedule of the Act and any other regulations<br> contained in any statute or subordinate legislation are expressly excluded and do not apply<br> to the Company. |
|---|---|
| 2. | Commencement of Business |
| 2.1 | The<br> business of the Company may be commenced as soon after incorporation of the Company as the<br> directors see fit. |
| 2.2 | The<br> directors may pay, out of the capital or any other monies of the Company, all expenses incurred<br> in or about the formation and establishment of the Company, including the expenses of registration. |
| 3. | Shares |
Power to issue Shares and options, with or without special rights
| 3.1 | Subject<br> to the provisions, if any, in the Act the Memorandum (and to any direction that may be given<br> by the Company in general meeting), these Articles and, where applicable, the rules and regulations<br> of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority<br> or otherwise under Applicable Law, and without prejudice to any rights attached to any existing<br> Shares, the directors have general and unconditional authority to allot (with or without<br> confirming rights of renunciation), issue, grant options over or otherwise deal with any<br> unissued Shares of the Company to such persons, at such times and on such terms and conditions<br> as they may decide. No Share may be issued at a discount except in accordance with the provisions<br> of the Act. |
|---|---|
| 3.2 | Without<br> limitation to the preceding Article, the directors may so deal with the unissued Shares of<br> the Company: |
| (a) | either<br> at a premium or at par; |
| --- | --- |
| (b) | with<br> or without preferred, deferred or other special rights or restrictions whether in regard<br> to dividend, voting, return of capital or otherwise. |
| 3.3 | The<br> Company may issue rights, options, warrants or convertible securities or securities of similar<br> nature conferring the right upon the holders thereof to subscribe for, purchase or receive<br> any class of Shares or other securities in the Company at such times and on such terms and<br> conditions as the directors may decide. |
| --- | --- |
| 3.4 | The<br> Company may issue units of securities in the Company, which may be comprised of Shares, rights,<br> options, warrants or convertible securities or securities of similar nature conferring the<br> right upon the holders thereof to subscribe for, purchase or receive any class of Shares<br> or other securities in the Company, on such terms and conditions as the directors may decide.<br> The securities comprising any such units which are issued pursuant to the IPO can only be<br> traded separately from one another on the 52nd day following the date of the prospectus relating<br> to the IPO unless the Representative(s) determines that an earlier date is acceptable, subject<br> to the Company having filed a current report on Form 8-K containing an audited balance sheet<br> reflecting the Company’s receipt of the gross proceeds of the IPO with the SEC and<br> a press release announcing when such separate trading will begin. |
| 5 |
| --- | | Prior<br> to such date, the units can be traded, but the securities comprising such units cannot be traded separately from one<br> another. | | --- |
Power to issue fractions of a Share
| 3.5 | Subject<br> to the Act, the Company may issue fractions of a Share of any class. A fraction of a Share<br> shall be subject to and carry the corresponding fraction of liabilities (whether with respect<br> to calls or otherwise), limitations, preferences, privileges, qualifications, restrictions,<br> rights and other attributes of a Share of that class of Shares. |
|---|
Power to pay commissions and brokerage fees
| 3.6 | The<br> Company may, in so far as the Act permits, pay a commission to any person in consideration<br> of that person: |
|---|---|
| (a) | subscribing<br> or agreeing to subscribe, whether absolutely or conditionally; or |
| --- | --- |
| (b) | procuring<br> or agreeing to procure subscriptions, whether absolute or conditional |
for any Shares in the Company. That commission may be satisfied by the payment of cash or the allotment of Fully Paid or partly-paid Shares or partly in one way and partly in another.
| 3.7 | The<br> Company may employ a broker in the issue of its capital and pay him any proper commission<br> or brokerage. |
|---|
Trusts not recognised
| 3.8 | Except<br> as required by Applicable Law: |
|---|---|
| (a) | the<br> Company shall not be bound by or compelled to recognise in any way (even when notified) any<br> equitable, contingent, future or partial interest in any Share, or (except only as is otherwise<br> provided by these Articles or the Act) any other rights in respect of any Share other than<br> an absolute right to the entirety thereof in the holder; and |
| --- | --- |
| (b) | no<br> person other than the Member shall be recognised by the Company as having any right in a<br> Share. |
Power to vary class rights
| 3.9 | If<br> the share capital is divided into different classes of Shares then, unless the terms on which<br> a class of Shares was issued state otherwise, the rights attaching to a class of Shares may<br> only be varied if one of the following applies: |
|---|---|
| (a) | the<br> Members holding two thirds of the issued Shares of that class consent in writing to the variation;<br> or |
| --- | --- |
| (b) | the<br> variation is made with the sanction of a Special Resolution passed at a separate general<br> meeting of the Members holding the issued Shares of that class. |
| 3.10 | For<br> the purpose of paragraph (b) of the preceding Article, all the provisions of these Articles<br> relating to general meetings apply, mutatis mutandis, to every such separate meeting except<br> that: |
| --- | --- |
| (a) | the<br> necessary quorum shall be one or more persons holding, or representing by proxy, not less<br> than one third of the issued Shares of the class; and |
| --- | --- |
| (b) | any<br> Member holding issued Shares of the class, present in person or by proxy or, in the case<br> of a corporate Member, by its duly authorised representative, may demand a poll. |
| 6 |
| --- |
Effect of new Share issue on existing class rights
| 3.11 | Unless<br> the terms on which a class of Shares was issued state otherwise, the rights conferred on<br> the Member holding Shares of any class shall not be deemed to be varied by the creation or<br> issue of further Shares ranking pari passu with the existing Shares of that class. |
|---|
Capital contributions without issue of further Shares
| 3.12 | With<br> the consent of a Member, the directors may accept a voluntary contribution to the capital<br> of the Company from that Member without issuing Shares in consideration for that contribution.<br> In that event, the contribution shall be dealt with in the following manner: |
|---|---|
| (a) | It<br> shall be treated as if it were a share premium. |
| --- | --- |
| (b) | Unless<br> the Member agrees otherwise: |
| (i) | if<br> the Member holds Shares in a single class of Shares, it shall be credited to the share premium<br> account for that class of Shares; |
| --- | --- |
| (ii) | if<br> the Member holds Shares of more than one class, it shall be credited rateably to the share<br> premium accounts for those classes of Shares (in the proportion that the sum of the issue<br> prices for each class of Shares that the Member holds bears to the total issue prices for<br> all classes of Shares that the Member holds). |
| (c) | It<br> shall be subject to the provisions of the Act and these Articles applicable to share premiums. |
| --- | --- |
No bearer Shares or warrants
| 3.13 | The<br> Company shall not issue Shares or warrants to bearers. |
|---|
Treasury Shares
| 3.14 | Shares<br> that the Company purchases, redeems or acquires by way of surrender in accordance with the<br> Act shall be held as Treasury Shares and not treated as cancelled if: |
|---|---|
| (a) | the<br> directors so determine prior to the purchase, redemption or surrender of those shares; and |
| --- | --- |
| (b) | the<br> relevant provisions of the Memorandum and Articles and the Act are otherwise complied with. |
Rights attaching to Treasury Shares and related matters
| 3.15 | No<br> dividend may be declared or paid, and no other distribution (whether in cash or otherwise)<br> of the Company’s assets (including any distribution of assets to members on a winding<br> up) may be made to the Company in respect of a Treasury Share. |
|---|---|
| 3.16 | The<br> Company shall be entered in the Register as the holder of the Treasury Shares. However: |
| --- | --- |
| (a) | the<br> Company shall not be treated as a member for any purpose and shall not exercise any right<br> in respect of the Treasury Shares, and any purported exercise of such a right shall be void; |
| --- | --- |
| 7 |
| --- | | (b) | a<br> Treasury Share shall not be voted, directly or indirectly, at any meeting of the Company<br> and shall not be counted in determining the total number of issued shares at any given time,<br> whether for the purposes of these Articles or the Act. | | --- | --- | | 3.17 | Nothing<br> in the preceding Article prevents an allotment of Shares as fully paid bonus shares in respect<br> of a Treasury Share and Shares allotted as fully paid bonus shares in respect of a Treasury<br> Share shall be treated as Treasury Shares. | | --- | --- | | 3.18 | Treasury<br> Shares may be disposed of by the Company in accordance with the Act and otherwise on such<br> terms and conditions as the directors determine. | | 4. | Register of Members | | 4.1 | The<br> Company shall maintain or cause to be maintained the Register of Members in accordance with<br> the Act. | | 4.2 | The<br> directors may determine that the Company shall maintain one or more branch registers of Members<br> in accordance with the Act. The directors may also determine which Register of Members shall<br> constitute the principal register and which shall constitute the branch register or registers,<br> and to vary such determination from time to time. | | 5. | Share certificates |
Issue of share certificates
| 5.1 | Upon<br> being entered in the Register of Members as the holder of a Share, a Member shall be entitled: |
|---|---|
| (a) | without<br> payment, to one certificate for all the Shares of each class held by that Member (and, upon<br> transferring a part of the Member’s holding of Shares of any class, to a certificate<br> for the balance of that holding); and |
| --- | --- |
| (b) | upon<br> payment of such reasonable sum as the directors may determine for every certificate after<br> the first, to several certificates each for one or more of that Member’s Shares. |
| 5.2 | Every<br> certificate shall specify the number, class and distinguishing numbers (if any) of the Shares<br> to which it relates and whether they are Fully Paid or partly paid up. A certificate may<br> be executed under seal or executed in such other manner as the directors determine. |
| --- | --- |
| 5.3 | The<br> Company shall not be bound to issue more than one certificate for Shares held jointly by<br> several persons and delivery of a certificate for a Share to one joint holder shall be a<br> sufficient delivery to all of them. |
Renewal of lost or damaged share certificates
| 5.4 | If<br> a share certificate is defaced, worn-out, lost or destroyed, it may be renewed on such terms<br> (if any) as to: |
|---|---|
| (a) | evidence; |
| --- | --- |
| (b) | indemnity; |
| (c) | payment<br> of the expenses reasonably incurred by the Company in investigating the evidence; and |
| (d) | payment<br> of a reasonable fee, if any, for issuing a replacement share certificate as the directors<br> may determine, and (in the case of defacement or wearing-out) on delivery to the Company<br> of the old certificate. |
| 8 |
| --- | |
|---|---|
| --- | --- |
Nature and scope of lien
| 6.1 | The<br> Company has a first and paramount lien on all Shares (whether Fully Paid or not) registered<br> in the name of a Member (whether solely or jointly with others). The lien is for all moneys<br> payable to the Company by the Member or the Member’s estate: |
|---|---|
| (a) | either<br> alone or jointly with any other person, whether or not that other person is a Member; and |
| --- | --- |
| (b) | whether<br> or not those moneys are presently payable. |
| 6.2 | At<br> any time the directors may declare any Share to be wholly or partly exempt from the provisions<br> of this Article. |
| --- | --- |
Company may sell Shares to satisfy lien
| 6.3 | The<br> Company may sell any Shares over which it has a lien if all of the following conditions are<br> met: |
|---|---|
| (a) | the<br> sum in respect of which the lien exists is presently payable; |
| --- | --- |
| (b) | the<br> Company gives notice to the Member holding the Share (or to the person entitled to it in<br> consequence of the death or bankruptcy of that Member) demanding payment and stating that<br> if the notice is not complied with the Shares may be sold; and |
| (c) | that<br> sum is not paid within 14 Clear Days after that notice is deemed to be given under these<br> Articles. |
| 6.4 | The<br> Shares may be sold in such manner as the directors determine. |
| --- | --- |
| 6.5 | To<br> the maximum extent permitted by Applicable Law, the directors shall incur no personal liability<br> to the Member concerned in respect of the sale. |
| --- | --- |
Authority to execute instrument of transfer
| 6.6 | To<br> give effect to a sale, the directors may authorise any person to execute an instrument of<br> transfer of the Shares sold to, or in accordance with the directions of, the purchaser. The<br> title of the transferee of the Shares shall not be affected by any irregularity or invalidity<br> in the proceedings in respect of the sale. |
|---|
Consequences of sale of Shares to satisfy lien
| 6.7 | On<br> sale pursuant to the preceding Articles: |
|---|---|
| (a) | the<br> name of the Member concerned shall be removed from the Register of Members as the holder<br> of those Shares; and |
| --- | --- |
| (b) | that<br> person shall deliver to the Company for cancellation the certificate for those Shares. |
Despite this, that person shall remain liable to the Company for all monies which, at the date of sale, were presently payable by him to the Company in respect of those Shares. That person shall also be liable to pay interest on those monies from the date of sale until payment at the rate at which interest was payable before that sale or, failing that, at the Default Rate. 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 sale or for any consideration received on their disposal.
| 9 |
| --- |
Application of proceeds of sale
| 6.8 | The<br> net proceeds of the sale, after payment of the costs, shall be applied in payment of so much<br> of the sum for which the lien exists as is presently payable. Any residue shall be paid to<br> the person whose Shares have been sold: |
|---|---|
| (a) | if<br> no certificate for the Shares was issued, at the date of the sale; or |
| --- | --- |
| (b) | if<br> a certificate for the Shares was issued, upon surrender to the Company of that certificate<br> for cancellation |
but, in either case, subject to the Company retaining a like lien for all sums not presently payable as existed on the Shares before the sale.
| 7. | Calls on Shares and forfeiture |
|---|
Power to make calls and effect of calls
| 7.1 | Subject<br> to the terms of allotment, the directors may make calls on the Members in respect of any<br> moneys unpaid on their Shares including any premium. The call may provide for payment to<br> be by instalments. Subject to receiving at least 14 Clear Days’ notice specifying when<br> and where payment is to be made, each Member shall pay to the Company the amount called on<br> his Shares as required by the notice. |
|---|---|
| 7.2 | Before<br> receipt by the Company of any sum due under a call, that call may be revoked in whole or<br> in part and payment of a call may be postponed in whole or in part. Where a call is to be<br> paid in instalments, the Company may revoke the call in respect of all or any remaining instalments<br> in whole or in part and may postpone payment of all or any of the remaining instalments in<br> whole or in part. |
| 7.3 | A<br> Member on whom a call is made shall remain liable for that call notwithstanding the subsequent<br> transfer of the Shares in respect of which the call was made. A<br> person shall not be liable for calls made after such person is no longer registered as Member<br> in respect of those Shares. |
Time when call made
| 7.4 | A<br> call shall be deemed to have been made at the time when the resolution of the directors authorising<br> the call was passed. |
|---|
Liability of joint holders
| 7.5 | Members<br> registered as the joint holders of a Share shall be jointly and severally liable to pay all<br> calls in respect of the Share. |
|---|
Interest on unpaid calls
| 7.6 | If<br> a call remains unpaid after it has become due and payable the person from whom it is due<br> and payable shall pay interest on the amount unpaid from the day it became due and payable<br> until it is paid: |
|---|---|
| (a) | at<br> the rate fixed by the terms of allotment of the Share or in the notice of the call; or |
| --- | --- |
| (b) | if<br> no rate is fixed, at the Default Rate. |
| 10 |
| --- |
The directors may waive payment of the interest wholly or in part.
Deemed calls
| 7.7 | Any<br> amount payable in respect of a Share, whether on allotment or on a fixed date or otherwise,<br> shall be deemed to be payable as a call. If the amount is not paid when due the provisions<br> of these Articles shall apply as if the amount had become due and payable by virtue of a<br> call. |
|---|
Power to accept early payment
| 7.8 | The<br> Company may accept from a Member the whole or a part of the amount remaining unpaid on Shares<br> held by him although no part of that amount has been called up. |
|---|
Power to make different arrangements at time of issue of Shares
| 7.9 | Subject<br> to the terms of allotment, the directors may make arrangements on the issue of Shares to<br> distinguish between Members in the amounts and times of payment of calls on their Shares. |
|---|
Notice of default
| 7.10 | If<br> a call remains unpaid after it has become due and payable the directors may give to the person<br> from whom it is due not less than 14 Clear Days’ notice requiring payment of: |
|---|---|
| (a) | the<br> amount unpaid; |
| --- | --- |
| (b) | any<br> interest which may have accrued; |
| (c) | any<br> expenses which have been incurred by the Company due to that person’s default. |
| 7.11 | The<br> notice shall state the following: |
| --- | --- |
| (a) | the<br> place where payment is to be made; and |
| --- | --- |
| (b) | a<br> warning that if the notice is not complied with the Shares in respect of which the call is<br> made will be liable to be forfeited. |
Forfeiture or surrender of Shares
| 7.12 | If<br> the notice under the preceding Article is not complied with, the directors may, before the<br> payment required by the notice has been received, resolve that any Share the subject of that<br> notice be forfeited. The forfeiture shall include all dividends or other moneys payable in<br> respect of the forfeited Share and not paid before the forfeiture. Despite the foregoing,<br> the directors may determine that any Share the subject of that notice be accepted by the<br> Company as surrendered by the Member holding that Share in lieu of forfeiture. |
|---|---|
| 7.13 | The<br> directors may accept the surrender for no consideration of any Fully Paid Share. |
Disposal of forfeited or surrendered Share and power to cancel forfeiture or surrender
| 7.14 | A<br> forfeited or surrendered Share may be sold, re-allotted or otherwise disposed of on such<br> terms and in such manner as the directors determine either to the former Member who held<br> that Share or to any other person. The forfeiture or surrender may be cancelled on such terms<br> as the directors think fit at any time before a sale, re-allotment or other disposition.<br> Where, for the purposes of its disposal, a forfeited or surrendered Share is to be transferred<br> to any person, the directors may authorise some person to execute an instrument of transfer<br> of the Share to the transferee. |
|---|
| 11 |
| --- |
Effect of forfeiture or surrender on former Member
| 7.15 | On<br> forfeiture or surrender: |
|---|---|
| (a) | the<br> name of the Member concerned shall be removed from the Register of Members as the holder<br> of those Shares and that person shall cease to be a Member in respect of those Shares; and |
| --- | --- |
| (b) | that<br> person shall surrender to the Company for cancellation the certificate (if any) for the forfeited<br> or surrendered Shares. |
| 7.16 | Despite<br> the forfeiture or surrender of his Shares, that person shall remain liable to the Company<br> for all moneys which at the date of forfeiture or surrender were presently payable by him<br> to the Company in respect of those Shares together with: |
| --- | --- |
| (a) | all<br> expenses; and |
| --- | --- |
| (b) | interest<br> from the date of forfeiture or surrender until payment: |
| (i) | at<br> the rate of which interest was payable on those moneys before forfeiture; or |
| --- | --- |
| (ii) | if<br> no interest was so payable, at the Default Rate. |
The directors, however, may waive payment wholly or in part.
Evidence of forfeiture or surrender
| 7.17 | A<br> declaration, whether statutory or under oath, made by a director or the Secretary shall be<br> conclusive evidence of the following matters stated in it as against all persons claiming<br> to be entitled to forfeited Shares: |
|---|---|
| (a) | that<br> the person making the declaration is a director or Secretary of the Company, and |
| --- | --- |
| (b) | that<br> the particular Shares have been forfeited or surrendered on a particular date. |
Subject to the execution of an instrument of transfer, if necessary, the declaration shall constitute good title to the Shares.
Sale of forfeited or surrendered Shares
| 7.18 | Any<br> person to whom the forfeited or surrendered Shares are disposed of shall not be bound to<br> see to the application of the consideration, if any, of those Shares nor shall his title<br> to the Shares be affected by any irregularity in, or invalidity of the proceedings in respect<br> of, the forfeiture, surrender or disposal of those Shares. |
|---|---|
| 8. | Transfer of Shares |
| --- | --- |
| 12 |
| --- |
Form of transfer
| 8.1 | Subject<br> to the following Articles about the transfer of Shares, and provided that such transfer complies<br> with the rules and regulations of the Designated Stock Exchange, the SEC and/or any other<br> competent regulatory authority or otherwise under Applicable Law, a Member may transfer Shares<br> to another person by completing an instrument of transfer in a common form or in a form prescribed<br> by the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent<br> regulatory authority or otherwise under Applicable Law or in any other form approved by the<br> directors, executed: |
|---|---|
| (a) | where<br> the Shares are Fully Paid, by or on behalf of that Member; and |
| --- | --- |
| (b) | where<br> the Shares are partly paid, by or on behalf of that Member and the transferee. |
| 8.2 | The<br> transferor shall be deemed to remain the holder of a Share until the name of the transferee<br> is entered into the Register of Members. |
| --- | --- |
Power to refuse registration
| 8.3 | If<br> the Shares in question were issued in conjunction with rights, options or warrants issued<br> pursuant to Article 3.4 on terms that one cannot be transferred without the other, the directors<br> shall refuse to register the transfer of any such Share without evidence satisfactory to<br> them of the like transfer of such option or warrant. |
|---|
Power to suspend registration
| 8.4 | The<br> directors may suspend registration of the transfer of Shares at such times and for such periods,<br> not exceeding 30 days in any calendar year, as they determine. |
|---|
Company may retain instrument of transfer
| 8.5 | The<br> Company shall be entitled to retain any instrument of transfer which is registered; but an<br> instrument of transfer which the directors refuse to register shall be returned to the person<br> lodging it when notice of the refusal is given. |
|---|---|
| 9. | Transmission of Shares |
| --- | --- |
Persons entitled on death of a Member
| 9.1 | If<br> a Member dies, the only persons recognised by the Company as having any title to the deceased<br> Members’ interest are the following: |
|---|---|
| (a) | where<br> the deceased Member was a joint holder, the survivor or survivors; and |
| --- | --- |
| (b) | where<br> the deceased Member was a sole holder, that Member’s personal representative or representatives. |
| 9.2 | Nothing<br> in these Articles shall release the deceased Member’s estate from any liability in<br> respect of any Share, whether the deceased was a sole holder or a joint holder. |
| --- | --- |
Registration of transfer of a Share following death or bankruptcy
| 9.3 | A<br> person becoming entitled to a Share in consequence of the death or bankruptcy of a Member<br> may elect to do either of the following: |
|---|---|
| (a) | to<br> become the holder of the Share; or |
| --- | --- |
| (b) | to<br> transfer the Share to another person. |
| 9.4 | That<br> person must produce such evidence of his entitlement as the directors may properly require. |
| --- | --- |
| 13 |
| --- | | 9.5 | If<br> the person elects to become the holder of the Share, he must give notice to the Company to<br> that effect. For the purposes of these Articles, that notice shall be treated as though it<br> were an executed instrument of transfer. | | --- | --- | | 9.6 | If<br> the person elects to transfer the Share to another person then: | | (a) | if<br> the Share is Fully Paid, the transferor must execute an instrument of transfer; and | | --- | --- | | (b) | if<br> the Share is partly paid, the transferor and the transferee must execute an instrument of<br> transfer. | | 9.7 | All<br> these Articles relating to the transfer of Shares shall apply to the notice or, as appropriate,<br> the instrument of transfer. | | --- | --- |
Indemnity
| 9.8 | A<br> person registered as a Member by reason of the death or bankruptcy of another Member shall<br> indemnify the Company and the directors against any loss or damage suffered by the Company<br> or the directors as a result of that registration. |
|---|
Rights of person entitled to a Share following death or bankruptcy
| 9.9 | A<br> person becoming entitled to a Share by reason of the death or bankruptcy of a Member shall<br> have the rights to which he would be entitled if he were registered as the holder of the<br> Share. However, until he is registered as Member in respect of the Share, he shall not be<br> entitled to attend or vote at any meeting of the Company or at any separate meeting of the<br> holders of that class of Shares in the Company. |
|---|---|
| 10. | Alteration of capital |
Increasing, consolidating, converting, dividing and cancelling share capital
| 10.1 | To<br> the fullest extent permitted by the Act, the Company may by Ordinary Resolution do any of<br> the following and amend its Memorandum for that purpose: |
|---|---|
| (a) | increase<br> its share capital by new Shares of the amount fixed by that Ordinary Resolution and with<br> the attached rights, priorities and privileges set out in that Ordinary Resolution; |
| --- | --- |
| (b) | consolidate<br> and divide all or any of its share capital into Shares of larger amount than its existing<br> Shares; |
| (c) | convert<br> all or any of its Paid Up Shares into stock, and reconvert that stock into Paid Up Shares<br> of any denomination; |
| (d) | sub-divide<br> its Shares or any of them into Shares of an amount smaller than that fixed by the Memorandum,<br> so, however, that in the sub-division, the proportion between the amount paid and the amount,<br> if any, unpaid on each reduced Share shall be the same as it was in case of the Share from<br> which the reduced Share is derived; and |
| (e) | cancel<br> Shares which, at the date of the passing of that Ordinary Resolution, have not been taken<br> or agreed to be taken by any person, and diminish the amount of its share capital by the<br> amount of the Shares so cancelled or, in the case of Shares without nominal par value, diminish<br> the number of Shares into which its capital is divided. |
| 14 |
| --- |
Dealing with fractions resulting from consolidation of Shares
| 10.2 | Whenever,<br> as a result of a consolidation of Shares, any Members would become entitled to fractions<br> of a Share the directors may on behalf of those Members: |
|---|---|
| (a) | sell<br> the Shares representing the fractions for the best price reasonably obtainable to any person<br> (including, subject to the provisions of the Act, the Company); and |
| --- | --- |
| (b) | distribute<br> the net proceeds in due proportion among those Members. |
For that purpose, 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 the transferee’s title to the Shares be affected by any irregularity in, or invalidity of, the proceedings in respect of the sale.
Reducing share capital
| 10.3 | Subject<br> to the Act and to any rights for the time being conferred on the Members holding a particular<br> class of Shares, the Company may, by Special Resolution, reduce its share capital in any<br> way. |
|---|---|
| 11. | Redemption and purchase of own Shares |
Power to issue redeemable Shares and to purchase own Shares
| 11.1 | Subject<br> to the Act and Article 37, and to any rights for the time being conferred on the Members<br> holding a particular class of Shares, and, where applicable, the rules and regulations of<br> the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or<br> otherwise under Applicable Law, the Company may by its directors: |
|---|---|
| (a) | issue<br> Shares that are to be redeemed or liable to be redeemed, at the option of the Company or<br> the Member holding those redeemable Shares, on the terms and in the manner its directors<br> determine before the issue of those Shares; |
| --- | --- |
| (b) | with<br> the consent by Special Resolution of the Members holding Shares of a particular class, vary<br> the rights attaching to that class of Shares so as to provide that those Shares are to be<br> redeemed or are liable to be redeemed at the option of the Company on the terms and in the<br> manner which the directors determine at the time of such variation; and |
| (c) | purchase<br> all or any of its own Shares of any class including any redeemable Shares on the terms and<br> in the manner which the directors determine at the time of such purchase. |
The Company may make a payment in respect of the redemption or purchase of its own Shares in any manner authorised by the Act, including out of any combination of the following: capital, its profits and the proceeds of a fresh issue of Shares.
| 11.2 | With<br> respect to redeeming, repurchasing or surrendering of Shares: |
|---|---|
| (a) | Members<br> who hold Public Shares are entitled to request the redemption of such Shares in the circumstances<br> described in Article 37.3; |
| --- | --- |
| (b) | Shares<br> held by the Sponsor shall be surrendered by the Sponsor for no consideration to the extent<br> that the Over-Allotment Option is not exercised in full so that such shares will represent<br> 20% of the Company’s issued Shares after the IPO (exclusive of any securities purchased<br> in a private placement simultaneously with the IPO); and |
| 15 |
| --- | | (c) | Public<br> Shares shall be repurchased by way of Tender Offer in the circumstances set out in Article<br> 37.2(b). | | --- | --- |
Power to pay for redemption or purchase in cash or in specie
| 11.3 | When<br> making a payment in respect of the redemption or purchase of Shares, the directors may make<br> the payment in cash or in specie (or partly in one and partly in the other) if so authorised<br> by the terms of the allotment of those Shares, or by the terms applying to those Shares in<br> accordance with Article 11.1, or otherwise by agreement with the Member holding those Shares. |
|---|
Effect of redemption or purchase of a Share
| 11.4 | Upon<br> the date of redemption or purchase of a Share: |
|---|---|
| (a) | the<br> Member holding that Share shall cease to be entitled to any rights in respect of the Share<br> other than the right to receive: |
| --- | --- |
| (i) | the<br> price for the Share; and |
| --- | --- |
| (ii) | any<br> dividend declared in respect of the Share prior to the date of redemption or purchase; |
| (b) | the<br> Member’s name shall be removed from the Register of Members with respect to the Share;<br> and |
| --- | --- |
| (c) | the<br> Share shall be cancelled or held as a Treasury Shares, as the directors may determine. |
For the purpose of this Article, the date of redemption or purchase is the date when the redemption or purchase falls due.
| 11.5 | For<br> the avoidance of doubt, redemptions and repurchases of Shares in the circumstances described<br> in Articles 11.2(a), 11.2(b) and 11.2(c) above shall not require further approval of the<br> Members. |
|---|---|
| 12. | Meetings of Members |
Power to call meetings
| 12.1 | To<br> the extent required by the rules and regulations of the Designated Stock Exchange, the SEC<br> and/or any other competent regulatory authority or otherwise under Applicable Law, an annual<br> general meeting of the Company shall be held no later than one year after the first financial<br> year end occurring after the IPO, and shall be held in each year thereafter at such time<br> as determined by the directors and the Company may, but shall not (unless required by the<br> Act or the rules and regulations of the Designated Stock Exchange, the SEC and/or any other<br> competent regulatory authority or otherwise under Applicable Law) be obliged to, in each<br> year hold any other general meeting. |
|---|---|
| 12.2 | The<br> agenda of the annual general meeting shall be set by the directors and shall include the<br> presentation of the Company’s annual accounts and the report of the directors (if any). |
| 12.3 | Annual<br> general meetings shall be held in New York, USA or in such other places as the directors<br> may determine. |
| 12.4 | All<br> general meetings other than annual general meetings shall be called extraordinary general<br> meetings and the Company shall specify the meeting as such in the notices calling it. |
| 16 |
| --- | | 12.5 | The<br> directors may call a general meeting at any time. | | --- | --- | | 12.6 | If<br> there are insufficient directors to constitute a quorum and the remaining directors are unable<br> to agree on the appointment of additional directors, the directors must call a general meeting<br> for the purpose of appointing additional directors. | | 12.7 | The<br> directors must also call a general meeting if requisitioned in the manner set out in the<br> next two Articles. | | 12.8 | The<br> requisition must be in writing and given by one or more Members who together hold not less<br> than 10% of the rights to vote at such general meeting. | | 12.9 | The<br> requisition must also: | | (a) | specify<br> the purpose of the meeting. | | --- | --- | | (b) | be<br> signed by or on behalf of each requisitioner (and for this purpose each joint holder shall<br> be obliged to sign). The requisition may consist of several documents in like form signed<br> by one or more of the requisitioners. | | (c) | be<br> delivered in accordance with the notice provisions. | | 12.10 | Should<br> the directors fail to call a general meeting within 21 Clear Days from the date of receipt<br> of a requisition, the requisitioners or any of them may call a general meeting within three<br> months after the end of that period. | | --- | --- | | 12.11 | Without<br> limitation to the foregoing, if there are insufficient directors to constitute a quorum and<br> the remaining directors are unable to agree on the appointment of additional directors, any<br> one or more Members who together hold at least 40% of the rights to vote at a general meeting<br> may call a general meeting for the purpose of considering the business specified in the notice<br> of meeting which shall include as an item of business the appointment of additional directors. | | 12.12 | Members<br> seeking to bring business before the annual general meeting or to nominate candidates for<br> election as directors at the annual general meeting must deliver notice to the principal<br> executive offices of the Company not later than the close of business on the 90th day nor<br> earlier than the close of business on the 120th day prior to the scheduled date of the annual<br> general meeting. |
Content of notice
| 12.13 | Notice<br> of a general meeting shall specify each of the following: |
|---|---|
| (a) | the<br> place, the date and the hour of the meeting; |
| --- | --- |
| (b) | if<br> the meeting is to be held in two or more places, the technology that will be used to facilitate<br> the meeting; |
| (c) | subject<br> to paragraph (d), the general nature of the business to be transacted; and |
| (d) | if<br> a resolution is proposed as a Special Resolution, the text of that resolution. |
| 12.14 | In<br> each notice there shall appear with reasonable prominence the following statements: |
| --- | --- |
| (a) | that<br> a Member who is entitled to attend and vote is entitled to appoint one or more proxies to<br> attend and vote instead of that Member; and |
| --- | --- |
| 17 |
| --- | | (b) | that<br> a proxyholder need not be a Member. | | --- | --- |
Period of notice
| 12.15 | At<br> least ten days’ notice of a general meeting must be given to Members, provided that<br> a general meeting of the Company shall, whether or not the notice specified in this Article<br> has been given and whether or not the provisions of these Articles regarding general meetings<br> have been complied with, be deemed to have been duly convened if it is so agreed: |
|---|---|
| (a) | in<br> the case of an annual general meeting, by all of the Members entitled to attend and vote<br> thereat; and |
| --- | --- |
| (b) | in<br> the case of an extraordinary general meeting, by a majority in number of the Members having<br> a right to attend and vote at the meeting, together holding not less than 95% in par value<br> of the Shares giving that right. |
Persons entitled to receive notice
| 12.16 | Subject<br> to the provisions of these Articles and to any restrictions imposed on any Shares, the notice<br> shall be given to the following people: |
|---|---|
| (a) | the<br> Members; |
| --- | --- |
| (b) | persons<br> entitled to a Share in consequence of the death or bankruptcy of a Member; and |
| (c) | the<br> directors. |
Publication of notice on a website
| 12.17 | Subject<br> to the Act or the rules and regulations of the Designated Stock Exchange, the SEC and/or<br> any other competent regulatory authority or otherwise under Applicable Law, a notice of a<br> general meeting may be published on a website providing the recipient is given separate notice<br> of: |
|---|---|
| (a) | the<br> publication of the notice on the website; |
| --- | --- |
| (b) | the<br> place on the website where the notice may be accessed; |
| (c) | how<br> it may be accessed; and |
| (d) | the<br> place, date and time of the general meeting. |
| 12.18 | If<br> a Member notifies the Company that he is unable for any reason to access the website, the<br> Company must as soon as practicable give notice of the meeting to that Member by any other<br> means permitted by these Articles. This will not affect when that Member is deemed to have<br> received notice of the meeting. |
| --- | --- |
Time a website notice is deemed to be given
| 12.19 | A<br> website notice is deemed to be given when the Member is given notice of its publication. |
|---|
Required duration of publication on a website
| 12.20 | Where<br> the notice of meeting is published on a website, it shall continue to be published in the<br> same place on that website from the date of the notification until at least the conclusion<br> of the meeting to which the notice relates. |
|---|
| 18 |
| --- |
Accidental omission to give notice or non-receipt of notice
| 12.21 | Proceedings<br> at a meeting shall not be invalidated by the following: |
|---|---|
| (a) | an<br> accidental failure to give notice of the meeting to any person entitled to notice; or |
| --- | --- |
| (b) | non-receipt<br> of notice of the meeting by any person entitled to notice. |
| 12.22 | In<br> addition, where a notice of meeting is published on a website, proceedings at the meeting<br> shall not be invalidated merely because it is accidentally published: |
| --- | --- |
| (a) | in<br> a different place on the website; or |
| --- | --- |
| (b) | for<br> part only of the period from the date of the notification until the conclusion of the meeting<br> to which the notice relates. |
| 13. | Proceedings at meetings of Members |
| --- | --- |
Quorum
| 13.1 | Save<br> as provided in the following Article, no business shall be transacted at any meeting unless<br> a quorum is present in person or by proxy. One or more Members who together hold not less<br> than one-third of the Shares entitled to vote at such meeting being individuals present in<br> person or by proxy or if a corporation or other non-natural person by its duly authorised<br> representative or proxy shall be a quorum; provided that a quorum in connection with any<br> meeting that is convened to vote on a Business Combination or any meeting convened with regards<br> to an amendment described in Article 37.9 shall be a majority of the Shares entitled to vote<br> at such meeting being individuals present in person or by proxy or if a corporation or other<br> non-natural person by its duly authorised representative or proxy. |
|---|
Lack of quorum
| 13.2 | If<br> a quorum is not present within 15 minutes of the time appointed for the meeting, or if at<br> any time during the meeting it becomes inquorate, then the following provisions apply: |
|---|---|
| (a) | If<br> the meeting was requisitioned by Members, it shall be cancelled. |
| --- | --- |
| (b) | In<br> any other case, the meeting shall stand adjourned to the same time and place seven days hence,<br> or to such other time or place as is determined by the directors. If a quorum is not present<br> within 15 minutes of the time appointed for the adjourned meeting, then the meeting shall<br> be dissolved. |
Use of technology
| 13.3 | A<br> person may participate in a general meeting through the medium of conference telephone, video<br> or any other form of communications equipment providing all persons participating in the<br> meeting are able to hear and speak to each other throughout the meeting. A person participating<br> in this way is deemed to be present in person at the meeting. |
|---|
Chairman
| 13.4 | The<br> chairman of a general meeting shall be the chairman of the board or such other director as<br> the directors have nominated to chair board meetings in the absence of the chairman of the<br> board. Absent any such person being present within 15 minutes of the time appointed for the<br> meeting, the directors present shall elect one of their number to chair the meeting. |
|---|
| 19 |
| --- | | 13.5 | If<br> no director is present within 15 minutes of the time appointed for the meeting, or if no<br> director is willing to act as chairman, the Members present in person or by proxy and entitled<br> to vote shall choose one of their number to chair the meeting. | | --- | --- |
Right of a director to attend and speak
| 13.6 | Even<br> if a director is not a Member, he shall be entitled to attend and speak at any general meeting<br> and at any separate meeting of Members holding a particular class of Shares in the Company. |
|---|
Adjournment and Postponement
| 13.7 | The<br> chairman may at any time adjourn a meeting. The chairman must adjourn the meeting if so directed<br> by the meeting. No business, however, can be transacted at an adjourned meeting other than<br> business which might properly have been transacted at the original meeting. |
|---|---|
| 13.8 | Should<br> a meeting be adjourned for more than twenty Clear Days, whether because of a lack of quorum<br> or otherwise, Members shall be given at least five Clear Days’ notice of the date,<br> time and place of the adjourned meeting and the general nature of the business to be transacted.<br> Otherwise it shall not be necessary to give any notice of the adjournment. |
| 13.9 | If,<br> prior to a Business Combination, a notice is issued in respect of a general meeting and the<br> directors, in their absolute discretion, consider that it is impractical or undesirable for<br> any reason to hold that general meeting at the place, the day and the hour specified in the<br> notice calling such general meeting, the directors may postpone the general meeting to another<br> place, day and/or hour provided that notice of the place, the day and the hour of the rearranged<br> general meeting is promptly given to all Members. No business shall be transacted at any<br> postponed meeting other than the business specified in the notice of the original meeting. |
| 13.10 | When<br> a general meeting is postponed for thirty days or more, notice of the postponed meeting shall<br> be given as in the case of an original meeting. Otherwise it shall not be necessary to give<br> any such notice of a postponed meeting. All proxy forms submitted for the original general<br> meeting shall remain valid for the postponed meeting. The directors may postpone a general<br> meeting which has already been postponed. |
Method of voting
| 13.11 | A<br> resolution put to the vote of the meeting shall be decided on a poll. |
|---|
Taking of a poll
| 13.12 | A<br> poll demanded on the question of adjournment shall be taken immediately. |
|---|---|
| 13.13 | A<br> poll demanded on any other question shall be taken either immediately or at an adjourned<br> meeting at such time and place as the chairman directs, not being more than 30 Clear Days<br> after the poll was demanded. |
| 13.14 | The<br> demand for a poll shall not prevent the meeting continuing to transact any business other<br> than the question on which the poll was demanded. |
| 13.15 | A<br> poll shall be taken in such manner as the chairman directs. He may appoint scrutineers (who<br> need not be Members) and fix a place and time for declaring the result of the poll. If, through<br> the aid of technology, the meeting is held in more than place, the chairman may appoint scrutineers<br> in more than place; but if he considers that the poll cannot be effectively monitored at<br> that meeting, the chairman shall adjourn the holding of the poll to a date, place and time<br> when that can occur. |
| 20 |
| --- |
Chairman’s casting vote
| 13.16 | If<br> the votes on a resolution are equal, the chairman may if he wishes exercise a casting vote. |
|---|
Amendments to resolutions
| 13.17 | An<br> Ordinary Resolution to be proposed at a general meeting may be amended by Ordinary Resolution<br> if: |
|---|---|
| (a) | not<br> less than 48 hours before the meeting is to take place (or such later time as the chairman<br> of the meeting may determine), notice of the proposed amendment is given to the Company in<br> writing by a Member entitled to vote at that meeting; and |
| --- | --- |
| (b) | the<br> proposed amendment does not, in the reasonable opinion of the chairman of the meeting, materially<br> alter the scope of the resolution. |
| --- | --- |
| 13.18 | A<br> Special Resolution to be proposed at a general meeting may be amended by Ordinary Resolution,<br> if: |
| --- | --- |
| (a) | the<br> chairman of the meeting proposes the amendment at the general meeting at which the resolution<br> is to be proposed, and |
| --- | --- |
| (b) | the<br> amendment does not go beyond what the chairman considers is necessary to correct a grammatical<br> or other non-substantive error in the resolution. |
| --- | --- |
| 13.19 | If<br> the chairman of the meeting, acting in good faith, wrongly decides that an amendment to a<br> resolution is out of order, the chairman’s error does not invalidate the vote on that<br> resolution. |
| --- | --- |
Written resolutions
| 13.20 | Members<br> may pass a resolution in writing without holding a meeting if the following conditions are<br> met: |
|---|---|
| (a) | all<br> Members entitled so to vote are given notice of the resolution as if the same were being<br> proposed at a meeting of Members; |
| --- | --- |
| (b) | all<br> Members entitled so to vote : |
| --- | --- |
| (i) | sign<br> a document; or |
| --- | --- |
| (ii) | sign<br> several documents in the like form each signed by one or more of those Members; and |
| --- | --- |
| (c) | the<br> signed document or documents is or are delivered to the Company, including, if the Company<br> so nominates, by delivery of an Electronic Record by Electronic means to the address specified<br> for that purpose. |
| --- | --- |
Such written resolution shall be as effective as if it had been passed at a meeting of the Members entitled to vote duly convened and held.
| 13.21 | If<br> a written resolution is described as a Special Resolution or as an Ordinary Resolution, it<br> has effect accordingly. |
|---|
| 21 |
| --- | | 13.22 | The<br> directors may determine the manner in which written resolutions shall be put to Members.<br> In particular, they may provide, in the form of any written resolution, for each Member to<br> indicate, out of the number of votes the Member would have been entitled to cast at a meeting<br> to consider the resolution, how many votes he wishes to cast in favour of the resolution<br> and how many against the resolution or to be treated as abstentions. The result of any such<br> written resolution shall be determined on the same basis as on a poll. | | --- | --- |
Sole-member company
| 13.23 | If<br> the Company has only one Member, and the Member records in writing his decision on a question,<br> that record shall constitute both the passing of a resolution and the minute of it. |
|---|---|
| 14. | Voting<br> rights of Members |
| --- | --- |
Right to vote
| 14.1 | Subject<br> to any rights or restrictions attached to any Member’s Shares, or unless a call or<br> other amount presently payable has not been paid, all Members are entitled to vote at a general<br> meeting, and all Members holding Shares of a particular class of Shares are entitled to vote<br> at a meeting of the holders of that class of Shares. |
|---|
14.2 Members may vote in person or by proxy.
| 14.3 | Every<br> Member shall have one vote for each Share he holds, unless any Share carries special voting<br> rights. |
|---|---|
| 14.4 | A<br> fraction of a Share shall entitle its holder to an equivalent fraction of one vote. |
| --- | --- |
| 14.5 | No<br> Member is bound to vote on his Shares or any of them; nor is he bound to vote each of his<br> Shares in the same way. |
| --- | --- |
Rights of joint holders
| 14.6 | If<br> Shares are held jointly, only one of the joint holders may vote. If more than one of the<br> joint holders tenders a vote, the vote of the holder whose name in respect of those Shares<br> appears first in the Register of Members shall be accepted to the exclusion of the votes<br> of the other joint holder. |
|---|
Representation of corporate Members
| 14.7 | Save<br> where otherwise provided, a corporate Member must act by a duly authorised representative. |
|---|---|
| 14.8 | A<br> corporate Member wishing to act by a duly authorised representative must identify that person<br> to the Company by notice in writing. |
| --- | --- |
| 14.9 | The<br> authorisation may be for any period of time, and must be delivered to the Company not less<br> than two hours before the commencement of the meeting at which it is first used. |
| --- | --- |
| 14.10 | The<br> directors of the Company may require the production of any evidence which they consider necessary<br> to determine the validity of the notice. |
| --- | --- |
| 14.11 | Where<br> a duly authorised representative is present at a meeting that Member is deemed to be present<br> in person; and the acts of the duly authorised representative are personal acts of that Member. |
| --- | --- |
| 22 |
| --- | | 14.12 | A<br> corporate Member may revoke the appointment of a duly authorised representative at any time<br> by notice to the Company; but such revocation will not affect the validity of any acts carried<br> out by the duly authorised representative before the directors of the Company had actual<br> notice of the revocation. | | --- | --- | | 14.13 | If<br> a clearing house (or its nominee(s)), being a corporation, is a Member, it may authorise<br> such persons as it sees fit to act as its representative at any meeting of the Company or<br> at any meeting of any class of Members provided that the authorisation shall specify the<br> number and class of Shares in respect of which each such representative is so authorised.<br> Each person so authorised under the provisions of this Article shall be deemed to have been<br> duly authorised without further evidence of the facts and be entitled to exercise the same<br> rights and powers on behalf of the clearing house (or its nominee(s)) as if such person was<br> the registered holder of such Shares held by the clearing house (or its nominee(s)). | | --- | --- |
Member with mental disorder
| 14.14 | A<br> Member in respect of whom an order has been made by any court having jurisdiction (whether<br> in the Islands or elsewhere) in matters concerning mental disorder may vote, by that Member’s<br> receiver, curator bonis or other person authorised in that behalf appointed by that court. |
|---|---|
| 14.15 | For<br> the purpose of the preceding Article, evidence to the satisfaction of the directors of the<br> authority of the person claiming to exercise the right to vote must be received not less<br> than 24 hours before holding the relevant meeting or the adjourned meeting in any manner<br> specified for the delivery of forms of appointment of a proxy, whether in writing or by Electronic<br> means. In default, the right to vote shall not be exercisable. |
| --- | --- |
Objections to admissibility of votes
| 14.16 | An<br> objection to the validity of a person’s vote may only be raised at the meeting or at<br> the adjourned meeting at which the vote is sought to be tendered. Any objection duly made<br> shall be referred to the chairman whose decision shall be final and conclusive. |
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Form of proxy
| 14.17 | An<br> instrument appointing a proxy shall be in any common form or in any other form approved by<br> the directors. |
|---|---|
| 14.18 | The<br> instrument must be in writing and signed in one of the following ways: |
| --- | --- |
| (a) | by<br> the Member; or |
| --- | --- |
| (b) | by<br> the Member’s authorised attorney; or |
| --- | --- |
| (c) | if<br> the Member is a corporation or other body corporate, under seal or signed by an authorised<br> officer, secretary or attorney. |
| --- | --- |
If the directors so resolve, the Company may accept an Electronic Record of that instrument delivered in the manner specified below and otherwise satisfying these Articles about authentication of Electronic Records.
| 14.19 | The<br> directors may require the production of any evidence which they consider necessary to determine<br> the validity of any appointment of a proxy. |
|---|---|
| 14.20 | A<br> Member may revoke the appointment of a proxy at any time by notice to the Company duly signed<br> in accordance with the Article above about signing proxies; but such revocation will not<br> affect the validity of any acts carried out by the proxy before the directors of the Company<br> had actual notice of the revocation. |
| --- | --- |
| 23 |
| --- |
How and when proxy is to be delivered
| 14.21 | Subject<br> to the following Articles, the form of appointment of a proxy and any authority under which<br> it is signed (or a copy of the authority certified notarially or in any other way approved<br> by the directors) must be delivered so that it is received by the Company not less than 48<br> hours before the time for holding the meeting or adjourned meeting at which the person named<br> in the form of appointment of proxy proposes to vote. They must be delivered in either of<br> the following ways: |
|---|---|
| (a) | In<br> the case of an instrument in writing, it must be left at or sent by post: |
| --- | --- |
| (i) | to<br> the registered office of the Company; or |
| --- | --- |
| (ii) | to<br> such other place specified in the notice convening the meeting or in any form of appointment<br> of proxy sent out by the Company in relation to the meeting. |
| --- | --- |
| (b) | If,<br> pursuant to the notice provisions, a notice may be given to the Company in an Electronic<br> Record, an Electronic Record of an appointment of a proxy must be sent to the address specified<br> pursuant to those provisions unless another address for that purpose is specified: |
| --- | --- |
| (i) | in<br> the notice convening the meeting; or |
| --- | --- |
| (ii) | in<br> any form of appointment of a proxy sent out by the Company in relation to the meeting; or |
| --- | --- |
| (iii) | in<br> any invitation to appoint a proxy issued by the Company in relation to the meeting. |
| --- | --- |
| 14.22 | Where<br> a poll is taken: |
| --- | --- |
| (a) | if<br> it is taken more than seven Clear Days after it is demanded, the form of appointment of a<br> proxy and any accompanying authority (or an Electronic Record of the same) must be delivered<br> as required under the preceding Article not less than 24 hours before the time appointed<br> for the taking of the poll; |
| --- | --- |
| (b) | but<br> if it to be taken within seven Clear Days after it was demanded, the form of appointment<br> of a proxy and any accompanying authority (or an Electronic Record of the same) must be e<br> delivered as required under the preceding Article not less than two hours before the time<br> appointed for the taking of the poll. |
| --- | --- |
| 14.23 | If<br> the form of appointment of proxy is not delivered on time, it is invalid. |
| --- | --- |
Voting by proxy
| 14.24 | A<br> proxy shall have the same voting rights at a meeting or adjourned meeting as the Member would<br> have had except to the extent that the instrument appointing him limits those rights. Notwithstanding<br> the appointment of a proxy, a Member may attend and vote at a meeting or adjourned meeting.<br> If a Member votes on any resolution a vote by his proxy on the same resolution, unless in<br> respect of different Shares, shall be invalid. |
|---|---|
| 15. | Number of directors |
| --- | --- |
Unless otherwise determined by Ordinary Resolution, the minimum number of directors shall be one and the maximum shall be ten.
| 24 |
| --- | |
|---|---|
| --- | --- |
No age limit
| 16.1 | There<br> is no age limit for directors save that they must be aged at least 18 years. |
|---|
Corporate directors
| 16.2 | Unless<br> prohibited by law, a body corporate may be a director. If a body corporate is a director,<br> these Articles about representation of corporate Members at general meetings apply, mutatis<br> mutandis, to these Articles about directors’ meetings. |
|---|
No shareholding qualification
| 16.3 | Unless<br> a shareholding qualification for directors is fixed by Ordinary Resolution, no director shall<br> be required to own Shares as a condition of his appointment. |
|---|
Appointment and removal of directors
| 16.4 | All<br> directors shall hold office for a term of two years or until their successors shall have<br> been elected and qualified. A director elected to fill a vacancy resulting from the death,<br> resignation or removal of a director shall serve for the remainder of the full term of the<br> director whose death, resignation or removal shall have created such vacancy and until his<br> successor shall have been elected and qualified. |
|---|---|
| 16.5 | After<br> the closing of a Business Combination, the Company may by Ordinary Resolution appoint any<br> person to be a director or may by Ordinary Resolution remove any director. |
| --- | --- |
| 16.6 | Without<br> prejudice to the Company’s power to appoint a person to be a director pursuant to these<br> Articles, the directors shall have power at any time to appoint any person who is willing<br> to act as a director, either to fill a vacancy or as an additional director. A director elected<br> to fill a vacancy resulting from the death, resignation or removal of a director shall serve<br> for the remainder of the full term of the director whose death, resignation or removal shall<br> have created such vacancy and until his successor shall have been elected and qualified. |
| --- | --- |
| 16.7 | Notwithstanding<br> the other provisions of these Articles, in any case where, as a result of death, the Company<br> has no directors and no shareholders, the personal representatives of the last shareholder<br> to have died have the power, by notice in writing to the Company, to appoint a person to<br> be a director. For<br> the purpose of this Article: |
| --- | --- |
| (a) | where<br> two or more shareholders die in circumstances rendering it uncertain who was the last to<br> die, a younger shareholder is deemed to have survived an older shareholder; |
| --- | --- |
| (b) | if<br> the last shareholder died leaving a will which disposes of that shareholder’s shares<br> in the Company (whether by way of specific gift, as part of the residuary estate, or otherwise): |
| --- | --- |
| (i) | the<br> expression personal representatives of the last shareholder means: |
| --- | --- |
| (A) | until<br> a grant of probate in respect of that will has been obtained from the Grand Court of the<br> Cayman Islands, all of the executors named in that will who are living at the time the power<br> of appointment under this Article is exercised; and |
| --- | --- |
| (B) | after<br> such grant of probate has been obtained, only such of those executors who have proved that<br> will; |
| --- | --- |
| 25 |
| --- | | (ii) | without<br> derogating from section 3(1) of the Succession Act (Revised), the executors named in that<br> will may exercise the power of appointment under this Article without first obtaining a grant<br> of probate. | | --- | --- | | 16.8 | A<br> remaining director may appoint a director even though there is not a quorum of directors. | | --- | --- | | 16.9 | No<br> appointment can cause the number of directors to exceed the maximum; and any such appointment<br> shall be invalid. | | --- | --- | | 16.10 | For<br> so long as Shares are listed on a Designated Stock Exchange, the directors shall include<br> at least such number of Independent Directors as Applicable Law or the rules and regulations<br> of the Designated Stock Exchange require, subject to applicable phase-in rules of the Designated<br> Stock Exchange. | | --- | --- |
Resignation of directors
| 16.11 | A<br> director may at any time resign office by giving to the Company notice in writing or, if<br> permitted pursuant to the notice provisions, in an Electronic Record delivered in either<br> case in accordance with those provisions. |
|---|---|
| 16.12 | Unless<br> the notice specifies a different date, the director shall be deemed to have resigned on the<br> date that the notice is delivered to the Company. |
| --- | --- |
Termination of the office of director
| 16.13 | A<br> director’s office shall be terminated forthwith if: |
|---|---|
| (a) | he<br> is prohibited by the law of the Islands from acting as a director; or |
| --- | --- |
| (b) | he<br> is made bankrupt or makes an arrangement or composition with his creditors generally; or |
| --- | --- |
| (c) | in<br> the opinion of a registered medical practitioner by whom he is being treated he becomes physically<br> or mentally incapable of acting as a director; or |
| --- | --- |
| (d) | he<br> is made subject to any law relating to mental health or incompetence, whether by court order<br> or otherwise; |
| --- | --- |
| (e) | without<br> the consent of the other directors, he is absent from meetings of directors for a continuous<br> period of six months; or |
| --- | --- |
| (f) | all<br> of the other directors (being not less than two in number) determine that he should be removed<br> as a director, either by a resolution passed by all of the other directors at a meeting of<br> the directors duly convened and held in accordance with these Articles or by a resolution<br> in writing signed by all of the other directors. |
| --- | --- |
| 17. | Alternate<br> directors |
| --- | --- |
Appointment and removal
| 17.1 | Any<br> director may appoint any other person, including another director, to act in his place as<br> an alternate director. No appointment shall take effect until the director has given notice<br> of the appointment to the other directors. Such notice must be given to each other director<br> by either of the following methods: |
|---|---|
| (a) | by<br> notice in writing in accordance with the notice provisions; |
| --- | --- |
| 26 |
| --- | | (b) | if<br> the other director has an email address, by emailing to that address a scanned copy of the<br> notice as a PDF attachment (the PDF version being deemed to be the notice unless Article<br> 32.7 applies), in which event notice shall be taken to be given on the date of receipt by<br> the recipient in readable form. For the avoidance of doubt, the same email may be sent to<br> the email address of more than one director (and to the email address of the Company pursuant<br> to Article 17.4(c)). | | --- | --- | | 17.2 | Without<br> limitation to the preceding Article, a director may appoint an alternate for a particular<br> meeting by sending an email to his fellow directors informing them that they are to take<br> such email as notice of such appointment for such meeting. Such appointment shall be effective<br> without the need for a signed notice of appointment or the giving of notice to the Company<br> in accordance with Article 17.4. | | --- | --- | | 17.3 | A<br> director may revoke his appointment of an alternate at any time. No revocation shall take<br> effect until the director has given notice of the revocation to the other directors. Such<br> notice must be given by either of the methods specified in Article 17.1. | | --- | --- | | 17.4 | A<br> notice of appointment or removal of an alternate director must also be given to the Company<br> by any of the following methods: | | --- | --- | | (a) | by<br> notice in writing in accordance with the notice provisions; | | --- | --- | | (b) | if<br> the Company has a facsimile address for the time being, by sending by facsimile transmission<br> to that facsimile address a facsimile copy or, otherwise, by sending by facsimile transmission<br> to the facsimile address of the Company’s registered office a facsimile copy (in either<br> case, the facsimile copy being deemed to be the notice unless Article 32.7 applies), in which<br> event notice shall be taken to be given on the date of an error-free transmission report<br> from the sender’s fax machine; | | --- | --- | | (c) | if<br> the Company has an email address for the time being, by emailing to that email address a<br> scanned copy of the notice as a PDF attachment or, otherwise, by emailing to the email address<br> provided by the Company’s registered office a scanned copy of the notice as a PDF attachment<br> (in either case, the PDF version being deemed to be the notice unless Article 32.7 applies),<br> in which event notice shall be taken to be given on the date of receipt by the Company or<br> the Company’s registered office (as appropriate) in readable form; or | | --- | --- | | (d) | if<br> permitted pursuant to the notice provisions, in some other form of approved Electronic Record<br> delivered in accordance with those provisions in writing. | | --- | --- |
Notices
| 17.5 | All<br> notices of meetings of directors shall continue to be given to the appointing director and<br> not to the alternate. |
|---|
Rights of alternate director
| 17.6 | An<br> alternate director shall be entitled to attend and vote at any board meeting or meeting of<br> a committee of the directors at which the appointing director is not personally present,<br> and generally to perform all the functions of the appointing director in his absence. |
|---|---|
| 17.7 | For<br> the avoidance of doubt: |
| --- | --- |
| (a) | if<br> another director has been appointed an alternate director for one or more directors, he shall<br> be entitled to a separate vote in his own right as a director and in right of each other<br> director for whom he has been appointed an alternate; and |
| --- | --- |
| 27 |
| --- | | (b) | if<br> a person other than a director has been appointed an alternate director for more than one<br> director, he shall be entitled to a separate vote in right of each director for whom he has<br> been appointed an alternate. | | --- | --- | | 17.8 | An<br> alternate director, however, is not entitled to receive any remuneration from the Company<br> for services rendered as an alternate director. | | --- | --- |
Appointment ceases when the appointor ceases to be a director
| 17.9 | An<br> alternate director shall cease to be an alternate director if the director who appointed<br> him ceases to be a director. |
|---|
Status of alternate director
| 17.10 | An<br> alternate director shall carry out all functions of the director who made the appointment. |
|---|---|
| 17.11 | Save<br> where otherwise expressed, an alternate director shall be treated as a director under these<br> Articles. |
| --- | --- |
| 17.12 | An<br> alternate director is not the agent of the director appointing him. |
| --- | --- |
| 17.13 | An<br> alternate director is not entitled to any remuneration for acting as alternate director. |
| --- | --- |
Status of the director making the appointment
| 17.14 | A<br> director who has appointed an alternate is not thereby relieved from the duties which he<br> owes the Company. |
|---|---|
| 18. | Powers<br> of directors |
| --- | --- |
Powers of directors
| 18.1 | Subject<br> to the provisions of the Act, the Memorandum and these Articles, the business of the Company<br> shall be managed by the directors who may for that purpose exercise all the powers of the<br> Company. |
|---|---|
| 18.2 | No<br> prior act of the directors shall be invalidated by any subsequent alteration of the Memorandum<br> or these Articles. However, to the extent allowed by the Act, following the consummation<br> of the IPO Members may by Special Resolution validate any prior or future act of the directors<br> which would otherwise be in breach of their duties. |
| --- | --- |
Appointments to office
| 18.3 | The<br> directors may appoint a director: |
|---|---|
| (a) | as<br> chairman of the board of directors; |
| --- | --- |
| (b) | as<br> vice-chairman of the board of directors; |
| --- | --- |
| (c) | as<br> managing director; |
| --- | --- |
| (d) | to<br> any other executive office |
| --- | --- |
for such period and on such terms, including as to remuneration, as they think fit.
| 18.4 | The<br> appointee must consent in writing to holding that office. |
|---|---|
| 18.5 | Where<br> a chairman is appointed he shall, unless unable to do so, preside at every meeting of directors. |
| --- | --- |
| 28 |
| --- | | 18.6 | If<br> there is no chairman, or if the chairman is unable to preside at a meeting, that meeting<br> may select its own chairman; or the directors may nominate one of their number to act in<br> place of the chairman should he ever not be available. | | --- | --- | | 18.7 | Subject<br> to the provisions of the Act, the directors may also appoint any person, who need not be<br> a director: | | --- | --- | | (a) | as<br> Secretary; and | | --- | --- | | (b) | to<br> any office that may be required (including, for the avoidance of doubt, one or more chief<br> executive officers, presidents, a chief financial officer, a treasurer, vice-presidents,<br> one or more assistant vice-presidents, one or more assistant treasurers and one or more assistant<br> secretaries), | | --- | --- |
for such period and on such terms, including as to remuneration, as they think fit. In the case of an Officer, that Officer may be given any title the directors decide.
| 18.8 | The<br> Secretary or Officer must consent in writing to holding that office. |
|---|---|
| 18.9 | A<br> director, Secretary or other Officer of the Company may not hold the office, or perform the<br> services, of Auditor. |
| --- | --- |
Remuneration
| 18.10 | The<br> remuneration to be paid to the directors, if any, shall be such remuneration as the directors<br> shall determine, provided that no cash remuneration shall be paid to any director prior to<br> the consummation of a Business Combination. The directors shall also, whether prior to or<br> after the consummation of a Business Combination, be entitled to be paid all out of pocket<br> expenses properly incurred by them in connection with activities on behalf of the Company,<br> including identifying and consummating a Business Combination. |
|---|---|
| 18.11 | Remuneration<br> may take any form and may include arrangements to pay pensions, health insurance, death or<br> sickness benefits, whether to the director or to any other person connected to or related<br> to him. |
| --- | --- |
| 18.12 | Unless<br> his fellow directors determine otherwise, a director is not accountable to the Company for<br> remuneration or other benefits received from any other company which is in the same group<br> as the Company or which has common shareholdings. |
| --- | --- |
Disclosure of information
| 18.13 | The<br> directors may release or disclose to a third party any information regarding the affairs<br> of the Company, including any information contained in the Register of Members relating to<br> a Member, (and they may authorise any director, Officer or other authorised agent of the<br> Company to release or disclose to a third party any such information in his possession) if: |
|---|---|
| (a) | the<br> Company or that person, as the case may be, is lawfully required to do so under the laws<br> of any jurisdiction to which the Company is subject; or |
| --- | --- |
| (b) | such<br> disclosure is in compliance with the rules of any stock exchange upon which the Company’s<br> shares are listed; or |
| --- | --- |
| (c) | such<br> disclosure is in accordance with any contract entered into by the Company; or |
| --- | --- |
| (d) | the<br> directors are of the opinion such disclosure would assist or facilitate the Company’s<br> operations. |
| --- | --- |
| 29 |
| --- |
| 19. | Delegation of powers |
|---|
Power to delegate any of the directors’ powers to a committee
| 19.1 | The<br> directors may delegate any of their powers to any committee consisting of one or more persons<br> who need not be Members (including, without limitation, the Audit Committee, the Compensation<br> Committee and the Nominating Committee). Persons on the committee may include non-directors<br> so long as the majority of those persons are directors. |
|---|---|
| 19.2 | The<br> delegation may be collateral with, or to the exclusion of, the directors’ own powers. |
| --- | --- |
| 19.3 | The<br> delegation may be on such terms as the directors think fit, including provision for the committee<br> itself to delegate to a sub-committee; save that any delegation must be capable of being<br> revoked or altered by the directors at will. |
| --- | --- |
| 19.4 | Unless<br> otherwise permitted by the directors, a committee must follow the procedures prescribed for<br> the taking of decisions by directors. |
| --- | --- |
| 19.5 | The<br> directors may adopt formal written charters for committees and, if so adopted, shall review<br> and assess the adequacy of such formal written charters on an annual basis. Each of these<br> committees shall be empowered to do all things necessary to exercise the rights of such committee<br> set forth in the Articles and shall have such powers as the directors may delegate pursuant<br> to the Articles and as required by the rules and regulations of the Designated Stock Exchange,<br> the SEC and/or any other competent regulatory authority or otherwise under Applicable Law.<br> Each of the Audit Committee, the Compensation Committee and the Nominating Committee, if<br> established, shall consist of such number of directors as the directors shall from time to<br> time determine (or such minimum number as may be required from time to time by the rules<br> and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory<br> authority or otherwise under Applicable Law). For so long as any class of Shares is listed<br> on the Designated Stock Exchange, the Audit Committee, the Compensation Committee and the<br> Nominating and Corporate Governance Committee shall be made up of such number of Independent<br> Directors as is required from time to time by the rules and regulations of the rules and<br> regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory<br> authority or otherwise under Applicable Law. |
| --- | --- |
Power to appoint an agent of the Company
| 19.6 | The<br> directors may appoint any person, either generally or in respect of any specific matter,<br> to be the agent of the Company with or without authority for that person to delegate all<br> or any of that person’s powers. The directors may make that appointment: |
|---|---|
| (a) | by<br> causing the Company to enter into a power of attorney or agreement; or |
| --- | --- |
| (b) | in<br> any other manner they determine. |
| --- | --- |
Power to appoint an attorney or authorised signatory of the Company
| 19.7 | The<br> directors may appoint any person, whether nominated directly or indirectly by the directors,<br> to be the attorney or the authorised signatory of the Company. The appointment may be: |
|---|---|
| (a) | for<br> any purpose; |
| --- | --- |
| (b) | with<br> the powers, authorities and discretions; |
| --- | --- |
| (c) | for<br> the period; and |
| --- | --- |
| (d) | subject<br> to such conditions |
| --- | --- |
as they think fit. The powers, authorities and discretions, however, must not exceed those vested in, or exercisable, by the directors under these Articles. The directors may do so by power of attorney or any other manner they think fit.
| 30 |
| --- | | 19.8 | Any<br> power of attorney or other appointment may contain such provision for the protection and<br> convenience for persons dealing with the attorney or authorised signatory as the directors<br> think fit. Any power of attorney or other appointment may also authorise the attorney or<br> authorised signatory to delegate all or any of the powers, authorities and discretions vested<br> in that person. | | --- | --- |
Power to appoint a proxy
| 19.9 | Any<br> director may appoint any other person, including another director, to represent him at any<br> meeting of the directors. If a director appoints a proxy, then for all purposes the presence<br> or vote of the proxy shall be deemed to be that of the appointing director. |
|---|---|
| 19.10 | Articles<br> 17.1 to 17.4 inclusive (relating to the appointment by directors of alternate directors)<br> apply, mutatis mutandis, to the appointment of proxies by directors. |
| --- | --- |
| 19.11 | A<br> proxy is an agent of the director appointing him and is not an Officer. |
| --- | --- |
| 20. | Meetings<br> of directors |
| --- | --- |
Regulation of directors’ meetings
| 20.1 | Subject<br> to the provisions of these Articles, the directors may regulate their proceedings as they<br> think fit. |
|---|
Calling meetings
| 20.2 | Any<br> director may call a meeting of directors at any time. The Secretary, if any, must call a<br> meeting of the directors if requested to do so by a director. |
|---|
Notice of meetings
| 20.3 | Every<br> director shall be given notice of a meeting, although a director may waive retrospectively<br> the requirement to be given notice. Notice may be oral. Attendance at a meeting without written<br> objection shall be deemed to be a waiver of such notice requirement. |
|---|
Period of notice
| 20.4 | At<br> least five Clear Days’ notice of a meeting of directors must be given to directors.<br> A meeting may be convened on shorter notice with the consent of all directors. |
|---|
Use of technology
| 20.5 | A<br> director may participate in a meeting of directors through the medium of conference telephone,<br> video or any other form of communications equipment providing all persons participating in<br> the meeting are able to hear and speak to each other throughout the meeting. |
|---|---|
| 20.6 | A<br> director participating in this way is deemed to be present in person at the meeting. |
| --- | --- |
| 31 |
| --- |
Place of meetings
| 20.7 | If<br> all the directors participating in a meeting are not in the same place, they may decide that<br> the meeting is to be treated as taking place wherever any of them is. |
|---|
Quorum
| 20.8 | The<br> quorum for the transaction of business at a meeting of directors shall be two unless the<br> directors fix some other number or unless the Company has only one director. |
|---|
Voting
| 20.9 | A<br> question which arises at a board meeting shall be decided by a majority of votes. If votes<br> are equal the chairman may, if he wishes, exercise a casting vote. |
|---|
Validity
| 20.10 | Anything<br> done at a meeting of directors is unaffected by the fact that it is later discovered that<br> any person was not properly appointed, or had ceased to be a director, or was otherwise not<br> entitled to vote. |
|---|
Recording of dissent
| 20.11 | A<br> director present at a meeting of directors shall be presumed to have assented to any action<br> taken at that meeting unless: |
|---|---|
| (a) | his<br> dissent is entered in the minutes of the meeting; or |
| --- | --- |
| (b) | he<br> has filed with the meeting before it is concluded signed dissent from that action; or |
| --- | --- |
| (c) | he<br> has forwarded to the Company as soon as practical following the conclusion of that meeting<br> signed dissent. |
| --- | --- |
A director who votes in favour of an action is not entitled to record his dissent to it.
Written resolutions
| 20.12 | The<br> directors may pass a resolution in writing without holding a meeting if all directors sign<br> a document or sign several documents in the like form each signed by one or more of those<br> directors. |
|---|---|
| 20.13 | Despite<br> the foregoing, a resolution in writing signed by a validly appointed alternate director or<br> by a validly appointed proxy need not also be signed by the appointing director. If a written<br> resolution is signed personally by the appointing director, it need not also be signed by<br> his alternate or proxy. |
| --- | --- |
| 20.14 | Such<br> written resolution shall be as effective as if it had been passed at a meeting of the directors<br> duly convened and held; and it shall be treated as having been passed on the day and at the<br> time that the last director signs. |
| --- | --- |
Sole director’s minute
| 20.15 | Where<br> a sole director signs a minute recording his decision on a question, that record shall constitute<br> the passing of a resolution in those terms. |
|---|---|
| 21. | Permissible<br> directors’ interests and disclosure |
| --- | --- |
| 32 |
| --- |
Permissible interests subject to disclosure
| 21.1 | Save<br> as expressly permitted by these Articles or as set out below, a director may not have a direct<br> or indirect interest or duty which conflicts or may possibly conflict with the interests<br> of the Company. |
|---|---|
| 21.2 | If,<br> notwithstanding the prohibition in the preceding Article, a director discloses to his fellow<br> directors the nature and extent of any material interest or duty in accordance with the next<br> Article, he may: |
| --- | --- |
| (a) | be<br> a party to, or otherwise interested in, any transaction or arrangement with the Company or<br> in which the Company is or may otherwise be interested; or |
| --- | --- |
| (b) | be<br> interested in another body corporate promoted by the Company or in which the Company is otherwise<br> interested. In particular, the director may be a director, secretary or officer of, or employed<br> by, or be a party to any transaction or arrangement with, or otherwise interested in, that<br> other body corporate. |
| --- | --- |
| 21.3 | Such<br> disclosure may be made at a meeting of the board or otherwise (and, if otherwise, it must<br> be made in writing). The director must disclose the nature and extent of his direct or indirect<br> interest in or duty in relation to a transaction or arrangement or series of transactions<br> or arrangements with the Company or in which the Company has any material interest. |
| --- | --- |
| 21.4 | If<br> a director has made disclosure in accordance with the preceding Article, then he shall not,<br> by reason only of his office, be accountable to the Company for any benefit that he derives<br> from any such transaction or arrangement or from any such office or employment or from any<br> interest in any such body corporate, and no such transaction or arrangement shall be liable<br> to be avoided on the ground of any such interest or benefit. |
| --- | --- |
Notification of interests
| 21.5 | For<br> the purposes of the preceding Articles: |
|---|---|
| (a) | a<br> general notice that a director gives to the other directors that he is to be regarded as<br> having an interest of the nature and extent specified in the notice in any transaction or<br> arrangement in which a specified person or class of persons is interested shall be deemed<br> to be a disclosure that he has an interest in or duty in relation to any such transaction<br> of the nature and extent so specified; and |
| --- | --- |
| (b) | an<br> interest of which a director has no knowledge and of which it is unreasonable to expect him<br> to have knowledge shall not be treated as an interest of his. |
| --- | --- |
Voting where a director is interested in a matter
| 21.6 | A<br> director may vote at a meeting of directors on any resolution concerning a matter in which<br> that director has an interest or duty, whether directly or indirectly, so long as that director<br> discloses any material interest pursuant to these Articles. The director shall be counted<br> towards a quorum of those present at the meeting. If the director votes on the resolution,<br> his vote shall be counted. |
|---|---|
| 21.7 | Where<br> proposals are under consideration concerning the appointment of two or more directors to<br> offices or employment with the Company or any body corporate in which the Company is interested,<br> the proposals may be divided and considered in relation to each director separately and each<br> of the directors concerned shall be entitled to vote and be counted in the quorum in respect<br> of each resolution except that concerning his or her own appointment. |
| --- | --- |
| 33 |
| --- |
| 22. | Minutes |
|---|
The Company shall cause minutes to be made in books kept for the purpose in accordance with the Act.
| 23. | Accounts and audit |
|---|
Accounting and other records
| 23.1 | The<br> directors must ensure that proper accounting and other records are kept, and that accounts<br> and associated reports are distributed in accordance with the requirements of the Act. |
|---|
No automatic right of inspection
| 23.2 | Members<br> are only entitled to inspect the Company’s records if they are expressly entitled to<br> do so by law, or by resolution made by the directors or passed by Ordinary Resolution. |
|---|
Sending of accounts and reports
| 23.3 | The<br> Company’s accounts and associated directors’ report or auditor’s report<br> that are required or permitted to be sent to any person pursuant to any law shall be treated<br> as properly sent to that person if: |
|---|---|
| (a) | they<br> are sent to that person in accordance with the notice provisions: or |
| --- | --- |
| (b) | they<br> are published on a website providing that person is given separate notice of: |
| --- | --- |
| (i) | the<br> fact that publication of the documents has been published on the website; |
| --- | --- |
| (ii) | the<br> address of the website; and |
| --- | --- |
| (iii) | the<br> place on the website where the documents may be accessed; and |
| --- | --- |
| (iv) | how<br> they may be accessed. |
| --- | --- |
| 23.4 | If,<br> for any reason, a person notifies the Company that he is unable to access the website, the<br> Company must, as soon as practicable, send the documents to that person by any other means<br> permitted by these Articles. This, however, will not affect when that person is taken to<br> have received the documents under the next Article. |
| --- | --- |
Time of receipt if documents are published on a website
| 23.5 | Documents<br> sent by being published on a website in accordance with the preceding two Articles are only<br> treated as sent at least five Clear Days before the date of the meeting at which they are<br> to be laid if: |
|---|---|
| (a) | the<br> documents are published on the website throughout a period beginning at least five Clear<br> Days before the date of the meeting and ending with the conclusion of the meeting; and |
| --- | --- |
| (b) | the<br> person is given at least five Clear Days’ notice of the hearing. |
| --- | --- |
Validity despite accidental error in publication on website
| 23.6 | If,<br> for the purpose of a meeting, documents are sent by being published on a website in accordance<br> with the preceding Articles, the proceedings at that meeting are not invalidated merely because: |
|---|---|
| (a) | those<br> documents are, by accident, published in a different place on the website to the place notified;<br> or |
| --- | --- |
| 34 |
| --- | | (b) | they<br> are published for part only of the period from the date of notification until the conclusion<br> of that meeting. | | --- | --- |
Audit
| 23.7 | The<br> directors may appoint an Auditor of the Company who shall hold office on such terms as the<br> directors determine. |
|---|---|
| 23.8 | Without<br> prejudice to the freedom of the directors to establish any other committee, if the Shares<br> (or depositary receipts therefor) are listed or quoted on the Designated Stock Exchange,<br> and if required by the Designated Stock Exchange, the directors shall establish and maintain<br> an Audit Committee as a committee of the directors and shall adopt a formal written Audit<br> Committee charter and review and assess the adequacy of the formal written charter on an<br> annual basis. The composition and responsibilities of the Audit Committee shall comply with<br> the rules and regulations of the SEC and the Designated Stock Exchange. The Audit Committee<br> shall meet at least once every financial quarter, or more frequently as circumstances dictate. |
| --- | --- |
| 23.9 | If<br> the Shares are listed or quoted on the Designated Stock Exchange, the Company shall conduct<br> an appropriate review of all related party transactions on an ongoing basis and shall utilise<br> the Audit Committee for the review and approval of potential conflicts of interest. |
| --- | --- |
| 23.10 | The<br> remuneration of the Auditor shall be fixed by the Audit Committee (if one exists). |
| --- | --- |
| 23.11 | If<br> the office of Auditor becomes vacant by resignation or death of the Auditor, or by his becoming<br> incapable of acting by reason of illness or other disability at a time when his services<br> are required, the directors shall fill the vacancy and determine the remuneration of such<br> Auditor. |
| --- | --- |
| 23.12 | Every<br> Auditor of the Company shall have a right of access at all times to the books and accounts<br> and vouchers of the Company and shall be entitled to require from the directors and officers<br> of the Company such information and explanation as may be necessary for the performance of<br> the duties of the Auditor. |
| --- | --- |
| 23.13 | Auditors<br> shall, if so required by the directors, make a report on the accounts of the Company during<br> their tenure of office at the next annual general meeting following their appointment in<br> the case of a company which is registered with the Registrar of Companies as an ordinary<br> company, and at the next extraordinary general meeting following their appointment in the<br> case of a company which is registered with the Registrar of Companies as an exempted company,<br> and at any other time during their term of office, upon request of the directors or any general<br> meeting of the Members. |
| --- | --- |
| 24.14 | Any<br> payment made to members of the Audit Committee (if one exists) shall require the review and<br> approval of the directors, with any director interested in such payment abstaining from such<br> review and approval. |
| --- | --- |
| 24.15 | The<br> Audit Committee shall monitor compliance with the terms of the IPO and, if any non-compliance<br> is identified, the Audit Committee shall be charged with the responsibility to take all action<br> necessary to rectify such non-compliance or otherwise cause compliance with the terms of<br> the IPO. |
| --- | --- |
| 24. | Financial year |
| --- | --- |
Unless the directors otherwise specify, the financial year of the Company:
| (a) | shall<br> end on 31st December in the year of its incorporation and each following year; and |
|---|---|
| (b) | shall<br> begin when it was incorporated and on 1st January each following year. |
| --- | --- |
| 35 |
| --- |
| 25. | Record dates |
|---|
Except to the extent of any conflicting rights attached to Shares, the directors may fix any time and date as the record date for:
| (a) | calling<br> a general meeting; |
|---|---|
| (b) | declaring<br> or paying a dividend; |
| --- | --- |
| (c) | making<br> or issuing an allotment of Shares; or |
| --- | --- |
| (d) | conducting<br> any other business required pursuant to these Articles. |
| --- | --- |
The record date may be before or after the date on which a dividend, allotment or issue is declared, paid or made.
| 26. | Dividends |
|---|
Declaration of dividends by Members
| 26.1 | Subject<br> to the provisions of the Act, the Company may by Ordinary Resolution declare dividends in<br> accordance with the respective rights of the Members but no dividend shall exceed the amount<br> recommended by the directors. |
|---|
Payment of interim dividends and declaration of final dividends by directors
| 26.2 | The<br> directors may pay interim dividends or declare final dividends in accordance with the respective<br> rights of the Members if it appears to them that they are justified by the financial position<br> of the Company and that such dividends may lawfully be paid. |
|---|---|
| 26.3 | Subject<br> to the provisions of the Act, in relation to the distinction between interim dividends and<br> final dividends, the following applies: |
| --- | --- |
| (a) | Upon<br> determination to pay a dividend or dividends described as interim by the directors in the<br> dividend resolution, no debt shall be created by the declaration until such time as payment<br> is made. |
| --- | --- |
| (b) | Upon<br> declaration of a dividend or dividends described as final by the directors in the dividend<br> resolution, a debt shall be created immediately following the declaration, the due date to<br> be the date the dividend is stated to be payable in the resolution. |
| --- | --- |
If the resolution fails to specify whether a dividend is final or interim, it shall be assumed to be interim.
| 26.4 | In<br> relation to Shares carrying differing rights to dividends or rights to dividends at a fixed<br> rate, the following applies: |
|---|---|
| (a) | If<br> the share capital is divided into different classes, the directors may pay dividends on Shares<br> which confer deferred or non- preferred rights with regard to dividends as well as on Shares<br> which confer preferential rights with regard to dividends but no dividend shall be paid on<br> Shares carrying deferred or non-preferred rights if, at the time of payment, any preferential<br> dividend is in arrears. |
| --- | --- |
| (b) | The<br> directors may also pay, at intervals settled by them, any dividend payable at a fixed rate<br> if it appears to them that there are sufficient funds of the Company lawfully available for<br> distribution to justify the payment. |
| --- | --- |
| 36 |
| --- | | (c) | If<br> the directors act in good faith, they shall not incur any liability to the Members holding<br> Shares conferring preferred rights for any loss those Members may suffer by the lawful payment<br> of the dividend on any Shares having deferred or non-preferred rights. | | --- | --- |
Apportionment of dividends
| 26.5 | Except<br> as otherwise provided by the rights attached to Shares, all dividends shall be declared and<br> paid according to the amounts paid up on the Shares on which the dividend is paid. All dividends<br> shall be apportioned and paid proportionately to the amount paid up on the Shares during<br> the time or part of the time in respect of which the dividend is paid. If a Share is issued<br> on terms providing that it shall rank for dividend as from a particular date, that Share<br> shall rank for dividend accordingly. |
|---|
Right of set off
| 26.6 | The<br> directors may deduct from a dividend or any other amount payable to a person in respect of<br> a Share any amount due by that person to the Company on a call or otherwise in relation to<br> a Share. |
|---|
Power to pay other than in cash
| 26.7 | If<br> the directors so determine, any resolution declaring a dividend may direct that it shall<br> be satisfied wholly or partly by the distribution of assets. If a difficulty arises in relation<br> to the distribution, the directors may settle that difficulty in any way they consider appropriate.<br> For example, they may do any one or more of the following: |
|---|---|
| (a) | issue<br> fractional Shares; |
| --- | --- |
| (b) | fix<br> the value of assets for distribution and make cash payments to some Members on the footing<br> of the value so fixed in order to adjust the rights of Members; and |
| --- | --- |
| (c) | vest<br> some assets in trustees. |
| --- | --- |
How payments may be made
| 26.8 | A<br> dividend or other monies payable on or in respect of a Share may be paid in any of the following<br> ways: |
|---|---|
| (a) | if<br> the Member holding that Share or other person entitled to that Share nominates a bank account<br> for that purpose - by wire transfer to that bank account; or |
| --- | --- |
| (b) | by<br> cheque or warrant sent by post to the registered address of the Member holding that Share<br> or other person entitled to that Share. |
| --- | --- |
| 26.9 | For<br> the purpose of paragraph (a) of the preceding Article, the nomination may be in writing or<br> in an Electronic Record and the bank account nominated may be the bank account of another<br> person. For the purpose of paragraph (b) of the preceding Article, subject to any Applicable<br> Law or regulation, the cheque or warrant shall be made to the order of the Member holding<br> that Share or other person entitled to the Share or to his nominee, whether nominated in<br> writing or in an Electronic Record, and payment of the cheque or warrant shall be a good<br> discharge to the Company. |
| --- | --- |
| 37 |
| --- | | 26.10 | If<br> two or more persons are registered as the holders of the Share or are jointly entitled to<br> it by reason of the death or bankruptcy of the registered holder (Joint Holders), a dividend<br> (or other amount) payable on or in respect of that Share may be paid as follows: | | --- | --- | | (a) | to<br> the registered address of the Joint Holder of the Share who is named first on the Register<br> of Members or to the registered address of the deceased or bankrupt holder, as the case may<br> be; or | | --- | --- | | (b) | to<br> the address or bank account of another person nominated by the Joint Holders, whether that<br> nomination is in writing or in an Electronic Record. | | --- | --- | | 26.11 | Any<br> Joint Holder of a Share may give a valid receipt for a dividend (or other amount) payable<br> in respect of that Share. | | --- | --- |
Dividends or other moneys not to bear interest in absence of special rights
| 26.12 | Unless<br> provided for by the rights attached to a Share, no dividend or other monies payable by the<br> Company in respect of a Share shall bear interest. |
|---|
Dividends unable to be paid or unclaimed
| 26.13 | If<br> a dividend cannot be paid to a Member or remains unclaimed within six weeks after it was<br> declared or both, the directors may pay it into a separate account in the Company’s<br> name. If a dividend is paid into a separate account, the Company shall not be constituted<br> trustee in respect of that account and the dividend shall remain a debt due to the Member. |
|---|---|
| 26.14 | A<br> dividend that remains unclaimed for a period of six years after it became due for payment<br> shall be forfeited to, and shall cease to remain owing by, the Company. |
| --- | --- |
| 27. | Capitalisation<br> of profits |
| --- | --- |
Capitalisation of profits or of any share premium account or capital redemption reserve
| 27.1 | The<br> directors may resolve to capitalise: |
|---|---|
| (a) | any<br> part of the Company’s profits not required for paying any preferential dividend (whether<br> or not those profits are available for distribution); or |
| --- | --- |
| (b) | any<br> sum standing to the credit of the Company’s share premium account or capital redemption<br> reserve, if any. |
| --- | --- |
The amount resolved to be capitalised must be appropriated to the Members who would have been entitled to it had it been distributed by way of dividend and in the same proportions. The benefit to each Member so entitled must be given in either or both of the following ways:
| (a) | by<br> paying up the amounts unpaid on that Member’s Shares; |
|---|---|
| (b) | by<br> issuing Fully Paid Shares, debentures or other securities of the Company to that Member or<br> as that Member directs. The directors may resolve that any Shares issued to the Member in<br> respect of partly paid Shares (Original Shares) rank for dividend only to the extent that<br> the Original Shares rank for dividend while those Original Shares remain partly paid. |
| --- | --- |
Applying an amount for the benefit of members
| 27.2 | The<br> amount capitalised must be applied to the benefit of Members in the proportions to which<br> the Members would have been entitled to dividends if the amount capitalised had been distributed<br> as a dividend. |
|---|
| 38 |
| --- | | 27.3 | Subject<br> to the Act, if a fraction of a Share, a debenture, or other security is allocated to a Member,<br> the directors may issue a fractional certificate to that Member or pay him the cash equivalent<br> of the fraction. | | --- | --- | | 28. | Share<br> premium account | | --- | --- |
directors to maintain share premium account
| 28.1 | The<br> directors shall establish a share premium account in accordance with the Act. They shall<br> carry to the credit of that account from time to time an amount equal to the amount or value<br> of the premium paid on the issue of any Share or capital contributed or such other amounts<br> required by the Act. |
|---|
Debits to share premium account
| 28.2 | The<br> following amounts shall be debited to any share premium account: |
|---|---|
| (a) | on<br> the redemption or purchase of a Share, the difference between the nominal value of that Share<br> and the redemption or purchase price; and |
| --- | --- |
| (b) | any<br> other amount paid out of a share premium account as permitted by the Act. |
| --- | --- |
| 28.3 | Notwithstanding<br> the preceding Article, on the redemption or purchase of a Share, the directors may pay the<br> difference between the nominal value of that Share and the redemption purchase price out<br> of the profits of the Company or, as permitted by the Act, out of capital. |
| --- | --- |
| 29. | Seal |
| --- | --- |
Company seal
| 29.1 | The<br> Company may have a seal if the directors so determine. |
|---|
Duplicate seal
| 29.2 | Subject<br> to the provisions of the Act, the Company may also have a duplicate seal or seals for use<br> in any place or places outside the Islands. Each duplicate seal shall be a facsimile of the<br> original seal of the Company. However, if the directors so determine, a duplicate seal shall<br> have added on its face the name of the place where it is to be used. |
|---|
When and how seal is to be used
| 29.3 | A<br> seal may only be used by the authority of the directors. Unless the directors otherwise determine,<br> a document to which a seal is affixed must be signed in one of the following ways: |
|---|---|
| (a) | by<br> a director (or his alternate) and the Secretary; or |
| --- | --- |
| (b) | by<br> a single director (or his alternate). |
| --- | --- |
If no seal is adopted or used
| 29.4 | If<br> the directors do not adopt a seal, or a seal is not used, a document may be executed in the<br> following manner: |
|---|---|
| (a) | by<br> a director (or his alternate) or any Officer to which authority has been delegated by resolution<br> duly adopted by the directors; or |
| --- | --- |
| 39 |
| --- | | (b) | by<br> a single director (or his alternate); or | | --- | --- | | (c) | in<br> any other manner permitted by the Act. | | --- | --- |
Power to allow non-manual signatures and facsimile printing of seal
| 29.5 | The<br> directors may determine that either or both of the following applies: |
|---|---|
| (a) | that<br> the seal or a duplicate seal need not be affixed manually but may be affixed by some other<br> method or system of reproduction; |
| --- | --- |
| (b) | that<br> a signature required by these Articles need not be manual but may be a mechanical or Electronic<br> Signature. |
| --- | --- |
Validity of execution
| 29.6 | If<br> a document is duly executed and delivered by or on behalf of the Company, it shall not be<br> regarded as invalid merely because, at the date of the delivery, the Secretary, or the director,<br> or other Officer or person who signed the document or affixed the seal for and on behalf<br> of the Company ceased to be the Secretary or hold that office and authority on behalf of<br> the Company. |
|---|---|
| 30. | Indemnity |
| --- | --- |
Indemnity
| 30.1 | To<br> the extent permitted by Applicable Law, the Company shall indemnify each existing or former<br> Secretary, director (including alternate director), and other Officer of the Company (including<br> an investment adviser or an administrator or liquidator) and their personal representatives<br> against: |
|---|---|
| (a) | all<br> actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred or<br> sustained by the existing or former Secretary, director or Officer in or about the conduct<br> of the Company’s business or affairs or in the execution or discharge of the existing<br> or former Secretary’s, director’s or Officer’s duties, powers, authorities<br> or discretions; and |
| --- | --- |
| (b) | without<br> limitation to paragraph (a), all costs, expenses, losses or liabilities incurred by the existing<br> or former Secretary, director or Officer in defending (whether successfully or otherwise)<br> any civil, criminal, administrative or investigative proceedings (whether threatened, pending<br> or completed) concerning the Company or its affairs in any court or tribunal, whether in<br> the Islands or elsewhere. |
| --- | --- |
Such indemnity only applies if the directors are of the view that, in the absence of fraud, wilful default or wilful neglect, such existing or former Secretary, director or Officer acted honestly and in good faith with a view to what the person believes is in the best interests of the Company and, in the case of criminal proceedings, such person had no reasonable cause to believe that their conduct was unlawful. No such existing or former Secretary, director or Officer, however, shall be indemnified in respect of any matter arising out of his own actual fraud, wilful default or wilful neglect.
| 30.2 | To<br> the extent permitted by Applicable Law, the Company may make a payment, or agree to make<br> a payment, whether by way of advance, loan or otherwise, for any legal costs incurred by<br> an existing or former Secretary, director or Officer of the Company in respect of any matter<br> identified in paragraph (a) or paragraph (b) of the preceding Article on condition that the<br> Secretary, director or Officer must repay the amount paid by the Company to the extent that<br> it is ultimately found not liable to indemnify the Secretary, director or that Officer for<br> those legal costs. |
|---|
| 40 |
| --- |
Release
| 30.3 | To<br> the extent permitted by Applicable Law, the Company may by Special Resolution release any<br> existing or former director (including alternate director), Secretary or other Officer of<br> the Company from liability for any loss or damage or right to compensation which may arise<br> out of or in connection with the execution or discharge of the duties, powers, authorities<br> or discretions of his office; but there may be no release from liability arising out of or<br> in connection with that person’s own actual fraud, wilful default or wilful neglect. |
|---|
Insurance
| 30.4 | To<br> the extent permitted by Applicable Law, the Company may pay, or agree to pay, a premium in<br> respect of a contract insuring each of the following persons against risks determined by<br> the directors, other than liability arising out of that person’s own dishonesty: |
|---|---|
| (a) | an<br> existing or former director (including alternate director), Secretary or Officer or auditor<br> of: |
| --- | --- |
| (i) | the<br> Company; |
| --- | --- |
| (ii) | a<br> company which is or was a subsidiary of the Company; |
| --- | --- |
| (iii) | a<br> company in which the Company has or had an interest (whether direct or indirect); and |
| --- | --- |
| (b) | a<br> trustee of an employee or retirement benefits scheme or other trust in which any of the persons<br> referred to in paragraph (a) is or was interested. |
| --- | --- |
| 31. | Notices |
| --- | --- |
Form of notices
| 31.1 | Save<br> where these Articles provide otherwise, any notice to be given to or by any person pursuant<br> to these Articles shall be: |
|---|---|
| (a) | in<br> writing signed by or on behalf of the giver in the manner set out below for written notices;<br> or |
| --- | --- |
| (b) | subject<br> to the next Article, in an Electronic Record signed by or on behalf of the giver by Electronic<br> Signature and authenticated in accordance with Articles about authentication of Electronic<br> Records; or |
| --- | --- |
| (c) | where<br> these Articles expressly permit, by the Company by means of a website. |
| --- | --- |
Electronic communications
| 31.2 | Without<br> limitation to Articles 17.1 to 17.4 inclusive (relating to the appointment and removal by<br> directors of alternate directors) and to Articles 19.8to 19.10 inclusive (relating to the<br> appointment by directors of proxies), a notice may only be given to the Company in an Electronic<br> Record if: |
|---|---|
| (a) | the<br> directors so resolve; |
| --- | --- |
| (b) | the<br> resolution states how an Electronic Record may be given and, if applicable, specifies an<br> email address for the Company; and |
| --- | --- |
| (c) | the<br> terms of that resolution are notified to the Members for the time being and, if applicable,<br> to those directors who were absent from the meeting at which the resolution was passed. |
| --- | --- |
| 41 |
| --- |
If the resolution is revoked or varied, the revocation or variation shall only become effective when its terms have been similarly notified.
| 31.3 | A<br> notice may not be given by Electronic Record to a person other than the Company unless the<br> recipient has notified the giver of an Electronic address to which notice may be sent. |
|---|
Persons authorised to give notices
| 31.4 | A<br> notice by either the Company or a Member pursuant to these Articles may be given on behalf<br> of the Company or a Member by a director or company secretary of the Company or a Member. |
|---|
Delivery of written notices
| 31.5 | Save<br> where these Articles provide otherwise, a notice in writing may be given personally to the<br> recipient, or left at (as appropriate) the Member’s or director’s registered<br> address or the Company’s registered office, or posted to that registered address or<br> registered office. |
|---|
Joint holders
| 31.6 | Where<br> Members are joint holders of a Share, all notices shall be given to the Member whose name<br> first appears in the Register of Members. |
|---|
Signatures
| 31.7 | A<br> written notice shall be signed when it is autographed by or on behalf of the giver, or is<br> marked in such a way as to indicate its execution or adoption by the giver. |
|---|---|
| 31.8 | An<br> Electronic Record may be signed by an Electronic Signature. |
| --- | --- |
Evidence of transmission
| 31.9 | A<br> notice given by Electronic Record shall be deemed sent if an Electronic Record is kept demonstrating<br> the time, date and content of the transmission, and if no notification of failure to transmit<br> is received by the giver. |
|---|---|
| 31.10 | A<br> notice given in writing shall be deemed sent if the giver can provide proof that the envelope<br> containing the notice was properly addressed, pre-paid and posted, or that the written notice<br> was otherwise properly transmitted to the recipient. |
| --- | --- |
Giving notice to a deceased or bankrupt Member
| 31.11 | A<br> notice may be given by the Company to the persons entitled to a Share in consequence of the<br> death or bankruptcy of a Member by sending or delivering it, in any manner authorised by<br> these Articles for the giving of notice to a Member, addressed to them by name, or by the<br> title of representatives of the deceased, or trustee of the bankrupt or by any like description,<br> at the address, if any, supplied for that purpose by the persons claiming to be so entitled. |
|---|---|
| 31.12 | Until<br> such an address has been supplied, a notice may be given in any manner in which it might<br> have been given if the death or bankruptcy had not occurred. |
| --- | --- |
| 42 |
| --- |
Date of giving notices
| 31.13 | A<br> notice is given on the date identified in the following table. |
|---|---|
| Method for giving notices | When taken to be given |
| --- | --- |
| Personally | At<br> the time and date of delivery |
| By<br> leaving it at the member’s registered address | At<br> the time and date it was left |
| If<br> the recipient has an address within the Islands, by posting it by prepaid post to the street or postal address of that recipient | 48<br> hours after it was posted |
| If<br> the recipient has an address outside the Islands, by posting it by prepaid airmail to the street or postal address of that recipient | 3<br> Clear Days after posting |
| By<br> Electronic Record (other than publication on a website), to recipient’s Electronic address | Within<br> 24 hours after it was sent |
| By<br> publication on a website | See<br> these Articles about the time when notice of a meeting of Members or accounts and reports, as the case may be, are published on a<br> website |
Saving provision
| 31.14 | None<br> of the preceding notice provisions shall derogate from these Articles about the delivery<br> of written resolutions of directors and written resolutions of Members. |
|---|---|
| 32. | Authentication<br> of Electronic Records |
| --- | --- |
Application of Articles
| 32.1 | Without<br> limitation to any other provision of these Articles, any notice, written resolution or other<br> document under these Articles that is sent by Electronic means by a Member, or by the Secretary,<br> or by a director or other Officer of the Company, shall be deemed to be authentic if either<br> Article 32.2 or Article 32.4 applies. |
|---|
Authentication of documents sent by Members by Electronic means
| 32.2 | An<br> Electronic Record of a notice, written resolution or other document sent by Electronic means<br> by or on behalf of one or more Members shall be deemed to be authentic if the following conditions<br> are satisfied: |
|---|---|
| (a) | the<br> Member or each Member, as the case may be, signed the original document, and for this purpose<br> Original Document includes several documents in like form signed by one or more of those<br> Members; and |
| --- | --- |
| (b) | the<br> Electronic Record of the Original Document was sent by Electronic means by, or at the direction<br> of, that Member to an address specified in accordance with these Articles for the purpose<br> for which it was sent; and |
| --- | --- |
| (c) | Article<br> 32.7 does not apply. |
| --- | --- |
| 43 |
| --- | | 32.3 | For<br> example, where a sole Member signs a resolution and sends the Electronic Record of the original<br> resolution, or causes it to be sent, by facsimile transmission to the address in these Articles<br> specified for that purpose, the facsimile copy shall be deemed to be the written resolution<br> of that Member unless Article 32.7 applies. | | --- | --- |
Authentication of document sent by the Secretary or Officers of the Company by Electronic means
| 32.4 | An<br> Electronic Record of a notice, written resolution or other document sent by or on behalf<br> of the Secretary or an Officer or Officers of the Company shall be deemed to be authentic<br> if the following conditions are satisfied: |
|---|---|
| (a) | the<br> Secretary or the Officer or each Officer, as the case may be, signed the original document,<br> and for this purpose Original Document includes several documents in like form signed by<br> the Secretary or one or more of those Officers; and |
| --- | --- |
| (b) | the<br> Electronic Record of the Original Document was sent by Electronic means by, or at the direction<br> of, the Secretary or that Officer to an address specified in accordance with these Articles<br> for the purpose for which it was sent; and |
| --- | --- |
| (c) | Article<br> 32.7 does not apply. |
| --- | --- |
This Article applies whether the document is sent by or on behalf of the Secretary or Officer in his own right or as a representative of the Company.
| 32.5 | For<br> example, where a sole director signs a resolution and scans the resolution, or causes it<br> to be scanned, as a PDF version which is attached to an email sent to the address in these<br> Articles specified for that purpose, the PDF version shall be deemed to be the written resolution<br> of that director unless Article 32.7 applies. |
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Manner of signing
| 32.6 | For<br> the purposes of these Articles about the authentication of Electronic Records, a document<br> will be taken to be signed if it is signed manually or in any other manner permitted by these<br> Articles. |
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Saving provision
| 32.7 | A<br> notice, written resolution or other document under these Articles will not be deemed to be<br> authentic if the recipient, acting reasonably: |
|---|---|
| (a) | believes<br> that the signature of the signatory has been altered after the signatory had signed the original<br> document; or |
| --- | --- |
| (b) | believes<br> that the original document, or the Electronic Record of it, was altered, without the approval<br> of the signatory, after the signatory signed the original document; or |
| --- | --- |
| (c) | otherwise<br> doubts the authenticity of the Electronic Record of the document |
| --- | --- |
and the recipient promptly gives notice to the sender setting the grounds of its objection. If the recipient invokes this Article, the sender may seek to establish the authenticity of the Electronic Record in any way the sender thinks fit.
| 44 |
| --- |
| 33. | Transfer by way of continuation |
|---|---|
| 33.1 | The<br> Company may, by Special Resolution, resolve to be registered by way of continuation in a<br> jurisdiction outside: |
| --- | --- |
| (a) | the<br> Islands; or |
| --- | --- |
| (b) | such<br> other jurisdiction in which it is, for the time being, incorporated, registered or existing. |
| --- | --- |
| 33.2 | To<br> give effect to any resolution made pursuant to the preceding Article, the directors may cause<br> the following: |
| --- | --- |
| (a) | an<br> application be made to the Registrar of Companies to deregister the Company in the Islands<br> or in the other jurisdiction in which it is for the time being incorporated, registered or<br> existing; and |
| --- | --- |
| (b) | all<br> such further steps as they consider appropriate to be taken to effect the transfer by way<br> of continuation of the Company. |
| --- | --- |
| 34. | Winding up |
| --- | --- |
Distribution of assets in specie
| 34.1 | If<br> the Company is wound up, the Members may, subject to these Articles and any other sanction<br> required by the Act, pass a Special Resolution allowing the liquidator to do either or both<br> of the following: |
|---|---|
| (a) | to<br> divide in specie among the Members the whole or any part of the assets of the Company and,<br> for that purpose, to value any assets and to determine how the division shall be carried<br> out as between the Members or different classes of Members; |
| --- | --- |
| (b) | to<br> vest the whole or any part of the assets in trustees for the benefit of Members and those<br> liable to contribute to the winding up. |
| --- | --- |
No obligation to accept liability
| 34.2 | No<br> Member shall be compelled to accept any assets if an obligation attaches to them. |
|---|
The directors are authorised to present a winding up petition
| 34.3 | The<br> directors have the authority to present a petition for the winding up of the Company to the<br> Grand Court of the Cayman Islands on behalf of the Company without the sanction of a resolution<br> passed at a general meeting. |
|---|---|
| 35. | Amendment<br> of Memorandum and Articles |
| --- | --- |
Power to change name or amend Memorandum
| 35.1 | Subject<br> to the Act, the Company may, by Special Resolution: |
|---|---|
| (a) | change<br> its name; or |
| --- | --- |
| (b) | change<br> the provisions of its Memorandum with respect to its objects, powers or any other matter<br> specified in the Memorandum. |
| --- | --- |
Power to amend these Articles
| 35.2 | Subject<br> to the Act and as provided in these Articles, the Company may, by Special Resolution, amend<br> these Articles in whole or in part. |
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| 45 |
| --- |
| 36. | Mergers and Consolidations |
|---|
The Company shall have the power to merge or consolidate with one or more constituent companies (as defined in the Act) upon such terms as the directors may determine and (to the extent required by the Act) with the approval of a Special Resolution.
| 37. | Business Combination |
|---|---|
| 37.1 | Notwithstanding<br> any other provision of these Articles, this Article 37 shall apply during the period commencing<br> upon the adoption of these Articles and terminating upon the first to occur of the consummation<br> of any Business Combination and the distribution of the Trust Account pursuant to Article<br> 37.10. In the event of a conflict between this Article 37 and any other Articles, the provisions<br> of this Article 37 shall prevail and this Article may not be amended prior to the consummation<br> of a Business Combination without a Special Resolution. |
| --- | --- |
| 37.2 | Prior<br> to the consummation of any Business Combination, the Company shall either: |
| --- | --- |
| (a) | submit<br> such Business Combination to its Members for approval; or |
| --- | --- |
| (b) | provide<br> Members with the opportunity to have their Shares repurchased by means of a tender offer<br> (a Tender Offer) for a per-Share repurchase price payable in cash, equal to the aggregate<br> amount then on deposit in the Trust Account, calculated as of two business days prior to<br> the consummation of such Business Combination, including interest earned on the funds held<br> in the Trust Account not previously released to the Company to pay its income taxes, if any,<br> divided by the number of Public Shares then in issue, provided that the Company shall not<br> repurchase Public Shares in an amount that would cause the Company’s net tangible assets<br> (after payment of the deferred underwriting commissions) to be less than US$5,000,001. |
| --- | --- |
| 37.3 | If<br> the Company initiates any Tender Offer in accordance with Rule 13e-4 and Regulation 14E of<br> the Exchange Act in connection with a proposed Business Combination, it shall file Tender<br> Offer documents with the SEC prior to completing such Business Combination which contain<br> substantially the same financial and other information about such Business Combination and<br> the redemption rights as is required under Regulation 14A of the Exchange Act. |
| --- | --- |
| 37.4 | If,<br> alternatively, the Company holds a general meeting to approve a proposed Business Combination,<br> the Company will conduct any redemptions in conjunction with a proxy solicitation pursuant<br> to Regulation 14A of the Exchange Act, and not pursuant to the Tender Offer rules, and file<br> proxy materials with the SEC. |
| --- | --- |
| 37.5 | At<br> a general meeting called for the purposes of approving a Business Combination pursuant to<br> this Article, in the event that such Business Combination is approved by Ordinary Resolution,<br> the Company shall be authorised to consummate such Business Combination. |
| --- | --- |
| 37.6 | Any<br> Member holding Public Shares who is not a Founder, Officer or director may, contemporaneously<br> with any vote on a Business Combination, elect to have their Public Shares redeemed for cash<br> (the IPO Redemption), provided that no such Member acting together with any Affiliate<br> of his or any other person with whom he is acting in concert or as a partnership, syndicate,<br> or other group for the purposes of acquiring, holding, or disposing of Shares may exercise<br> this redemption right with respect to more than 15% of the Public Shares without the Company’s<br> prior consent, and provided further that any holder that holds Public Shares beneficially<br> through a nominee must identify itself to the Company in connection with any redemption election<br> in order to validly redeem such Public Shares. In connection with any vote held to approve<br> a proposed Business Combination, holders of Public Shares seeking to exercise their redemption<br> rights will be required to either tender their certificates (if any) to the Company’s<br> transfer agent or to deliver their shares to the transfer agent electronically using The<br> Depository Trust Company’s DWAC (Deposit/Withdrawal At Custodian) System, at the holder’s<br> option, in each case up to two business days prior to the initially scheduled vote on the<br> proposal to approve a Business Combination. If so demanded, the Company shall pay any such<br> redeeming Member, regardless of whether he is voting for or against such proposed Business<br> Combination or abstains from voting, a per-Share redemption price payable in cash, equal<br> to the aggregate amount then on deposit in the Trust Account calculated as of two business<br> days prior to the consummation of a Business Combination, including interest earned on the<br> Trust Account not previously released to the Company to pay its income taxes, if any, divided<br> by the number of Public Shares then in issue (such redemption price being referred to herein<br> as the Redemption Price), provided that the Company shall not repurchase Public Shares<br> in an amount that would cause the Company’s net tangible assets to be less than US$5,000,001. |
| --- | --- |
| 46 |
| --- | | 37.7 | The<br> Redemption Price shall be paid promptly following the consummation of the relevant Business<br> Combination. If the proposed Business Combination is not approved or completed for any reason<br> then such redemptions shall be cancelled and share certificates (if any) returned to the<br> relevant Members as appropriate. | | --- | --- | | 37.8 | The<br> Company has until 12 months from the closing of the IPO to consummate a Business Combination,<br> provided however that if the Board of Directors anticipates that the Company may not be able<br> to consummate a Business Combination within 12 months of the closing of the IPO, the Company<br> may, by Resolution of Directors, at the request of the Sponsor, extend the period of time<br> to consummate a Business Combination up to three times, each by an additional three months<br> (for a total of up to 21 months to complete a Business Combination), subject to the Sponsor<br> depositing additional funds into the Trust Account upon five days advice notice prior to<br> the applicable deadline in accordance with terms as set out in the Trust Agreement and referred<br> to in the Registration Statement. In the event that the Company does not consummate a Business<br> Combination by 12 months after the closing of the IPO (or 21 months from the closing of the<br> IPO (subject in the latter case to valid three months extensions having been made in each<br> case) or such later time as the Members of the Company may approve in accordance with these<br> Articles, the Company shall: | | --- | --- | | (a) | cease<br> all operations except for the purpose of winding up; | | --- | --- | | (b) | as<br> promptly as reasonably possible but not more than ten business days thereafter, redeem the<br> Public Shares, at a per-Share price, payable in cash, equal to the aggregate amount then<br> on deposit in the Trust Account, including interest earned on the funds held in the Trust<br> Account and not previously released to the Company to pay income taxes, if any (less up to<br> US$50,000 of interest to pay dissolution expenses), divided by the number of the Public Shares<br> then in issue, which redemption will completely extinguish public Members’ rights as<br> Members (including the right to receive further liquidation distributions, if any); and | | --- | --- | | (c) | as<br> promptly as reasonably possible following such redemption, subject to the approval of the<br> Company’s remaining Members and the directors, liquidate and dissolve, | | --- | --- |
subject in each case, to its obligations under Cayman Islands law to provide for claims of creditors and in all cases subject to the other requirements of Applicable Law. If the Company shall wind up for any other reason prior to the consummation of a Business Combination, the Company shall, as promptly as reasonably possible but not more than ten business days thereafter, follow the foregoing procedures set out in this Article 37.8 with respect to the liquidation of the Trust Account, subject to its obligations under Cayman Islands law to provide for claims of creditors and in all cases subject to the other requirements of Applicable Law.
| 37.9 | In<br> the event that any amendment is made to these Articles: |
|---|---|
| (a) | that<br> would modify the substance or timing of the Company’s obligation to provide holders<br> of Public Shares the right to: |
| --- | --- |
| (i) | have<br> their shares redeemed or repurchased in connection with a Business Combination pursuant to<br> Articles 37.2(b) or 37.6; or |
| --- | --- |
| 47 |
| --- | | (ii) | redeem<br> 100% of the Public Shares if the Company has not consummated an initial Business Combination<br> within 12 months after the closing of the IPO (or 18 months from the date of the closing<br> of the IPO pursuant to Article 37.8 (subject in the latter case to valid three months extensions<br> having been made in each case); or | | --- | --- | | (b) | with<br> respect to any other provision relating to the rights of holders of Public Shares, | | --- | --- |
each holder of Public Shares who is not a Founder, Officer or director shall be provided with the opportunity to redeem their Public Shares upon the approval of any such amendment (an Amendment Redemption) at a per-Share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest earned on the funds held in the Trust Account not previously released to the Company to pay income taxes, if any, divided by the number of Public Shares then in issue.
| 37.10 | Except<br> for the withdrawal of interest to pay income taxes, if any, none of the funds held in the<br> Trust Account shall be released from the Trust Account: |
|---|---|
| (a) | to<br> the Company, until completion of any Business Combination; or |
| --- | --- |
| (b) | to<br> the Members holding Public Shares, until the earliest of: |
| --- | --- |
| (i) | a<br> repurchase of Shares by means of a Tender Offer pursuant to Article 37.2(b); |
| --- | --- |
| (ii) | an<br> IPO Redemption pursuant to Article 37.6; |
| --- | --- |
| (iii) | a<br> distribution of the Trust Account pursuant to Article 37.8; or |
| --- | --- |
| (iv) | an<br> Amendment Redemption pursuant to Article 37.9. |
| --- | --- |
In no other circumstance shall a holder of Public Shares have any right or interest of any kind in the Trust Account.
| 37.11 | After<br> the issue of Public Shares (including pursuant to the Over-Allotment Option), and prior to<br> the consummation of a Business Combination, the directors shall not issue additional Shares<br> or any other securities that would entitle the holders thereof to: |
|---|---|
| (a) | receive<br> funds from the Trust Account; or |
| --- | --- |
| (b) | vote<br> as a class with the Public Shares: |
| --- | --- |
| (i) | on<br> a Business Combination or on any other proposal presented to Members prior to or in connection<br> with the completion of a Business Combination; or |
| --- | --- |
| (ii) | to<br> approve an amendment to these Articles to: |
| --- | --- |
| (A) | extend<br> the time the Company has to consummate a Business Combination beyond 12 months after the<br> closing of the IPO or 18 months from the date of the closing of the IPO pursuant to Article<br> 37.8 (subject in the latter case to valid three months extensions having been made in each<br> case); or |
| --- | --- |
| (B) | amend<br> the foregoing provisions of these Articles. |
| --- | --- |
| 48 |
| --- | | 37.12 | The<br> Company must complete one or more Business Combinations, which must be with one or more operating<br> businesses or assets with a fair market value equal to at least 80% of the net assets held<br> in the trust account (net of amounts disbursed to management for working capital purposes,<br> if permitted, and excluding the amount of any deferred underwriting discount and taxes payable<br> on the interest earned on the trust account). An initial Business Combination must not be<br> effectuated solely with another blank cheque company or a similar company with nominal operations | | --- | --- | | 37.13 | The<br> uninterested Independent Directors shall approve any transaction or transactions between<br> the Company and any of the following parties: | | --- | --- | | (a) | any<br> Member owning an interest in the voting power of the Company that gives such Member a significant<br> influence over the Company; and | | --- | --- | | (b) | any<br> director or Officer of the Company and any Affiliate or relative of such director or Officer. | | --- | --- | | 37.14 | A<br> director may vote in respect of any Business Combination in which such director has a conflict<br> of interest with respect to the evaluation of such Business Combination. Such director must<br> disclose such interest or conflict to the other directors. | | --- | --- | | 37.15 | The<br> Company may enter into a Business Combination with a target business that is Affiliated with<br> the Sponsor, a Founder, the directors of the Company or Officers. In the event the Company<br> seeks to complete the Business Combination with a target that is Affiliated with the Sponsor,<br> a Founder, Officers or directors, the Company, or a committee of Independent Directors, will<br> obtain an opinion from an independent investment banking firm or another independent firm<br> that commonly renders valuation opinions for the type of company we are seeking to acquire<br> or another independent accounting firm, that such a Business Combination or transaction is<br> fair to the Company from a financial point of view. | | --- | --- | | 37.16 | Any<br> Business Combination must be approved by a majority of the Independent Directors. | | --- | --- | | 38. | Certain Tax Filings | | --- | --- | | 38.1 | Each<br> Tax Filing Authorised Person and any such other person, acting alone, as any director shall<br> designate from time to time, are authorised to file tax forms SS-4, W-8 BEN, W-8 IMY, W-9,<br> 8832 and 2553 and such other similar tax forms as are customary to file with any US state<br> or federal governmental authorities or foreign governmental authorities in connection with<br> the formation, activities and/or elections of the Company and such other tax forms as may<br> be approved from time to time by any director of the Company or an Officer. The Company further<br> ratifies and approves any such filing made by any Tax Filing Authorised Person or such other<br> person prior to the date of these Articles. | | --- | --- | | 39. | Business Opportunities | | --- | --- | | 39.1 | In<br> recognition and anticipation of the facts that: (a) directors, managers, officers, members,<br> partners, managing members, employees and/or agents of one or more members of the Investor<br> Group (each of the foregoing, an “Investor Group Related Person”) may<br> serve as directors of the Company and/or Officers; and (b) the Investor Group engages, and<br> may continue to engage in the same or similar activities or related lines of business as<br> those in which the Company, directly or indirectly, may engage and/or other business activities<br> that overlap with or compete with those in which the Company, directly or indirectly, may<br> engage, the provisions under this heading “Business Opportunities” are set forth<br> to regulate and define the conduct of certain affairs of the Company as they may involve<br> the Members and the Investor Group Related Persons, and the powers, rights, duties and liabilities<br> of the Company and its Officers, directors and Members in connection therewith. | | --- | --- | | 39.2 | To<br> the fullest extent permitted by Applicable Law, the directors and officers of the Company<br> shall have no duty, except and to the extent expressly assumed by contract, to refrain from<br> engaging directly or indirectly in the same or similar business activities or lines of business<br> as the Company. To the fullest extent permitted by Applicable Law, and subject to his or<br> her fiduciary duties under Applicable Law, the Company renounces any interest or expectancy<br> of the Company in, or in being offered an opportunity to participate in, any potential transaction<br> or matter which may be a corporate opportunity offered to any director and officer of the<br> Company, on the one hand, and the Company, on the other, unless such opportunity is expressly<br> offered to such director or officer of the Company solely in their capacity as an Officer<br> or director of the Company and the opportunity is one the Company is permitted to complete<br> on a reasonable basis. | | --- | --- | | 39.3 | Except<br> as provided elsewhere in these Articles, the Company hereby renounces any interest or expectancy<br> of the Company in, or in being offered an opportunity to participate in, any potential transaction<br> or matter which may be a corporate opportunity for both the Company and the Investor Group,<br> about which a director of the Company and/or Officer who is also an Investor Group Related<br> Person acquires knowledge. | | --- | --- | | 39.4 | To<br> the extent a court might hold that the conduct of any activity related to a corporate opportunity<br> that is renounced in this Article to be a breach of duty to the Company or its Members, the<br> Company hereby waives, to the fullest extent permitted by Applicable Law, any and all claims<br> and causes of action that the Company may have for such activities. To the fullest extent<br> permitted by Applicable Law, the provisions of this Article apply equally to activities conducted<br> in the future and that have been conducted in the past. | | --- | --- |
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Exhibit4.1
WARRANTAGREEMENT
This WARRANT AGREEMENT (this “Agreement”) is made as of December 13, 2021 between Kairous Acquisition Corp. Limited, a Cayman Islands exempted company with limited liability, with its principal executive office at Unit 9-3, Oval Tower @ Damansara, No. 685, Jalan Damansara, 60000 Taman Tun Dr. Ismail, Kuala Lumpur, Malaysia (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”).
WHEREAS, the Company is engaged in a public offering (the “Public Offering”) of up to 8,625,000 units (including 1,125,000 units which may be issued pursuant to an over-allotment option granted to the underwriters of the Public Offering), each unit (the “Public Units”) comprised of one ordinary share of the Company, par value $0.0001 each (“Ordinary Share”), one-half of one redeemable warrant and one right to acquire one-tenth of one Ordinary Share. Each whole redeemable warrant entitles the holder to purchase one Ordinary Share at a price of $11.50 per share, subject to adjustment as described herein, and, in connection therewith, the Company will issue and deliver up to 4,312,500 warrants (the “Public Warrants”) to the public investors in connection with the Public Offering; and
WHEREAS, the Company has filed with the Securities and Exchange Commission (the “SEC”) a Registration Statement on Form S-1, No. 333-259031 (as amended, the “Registration Statement”) and prospectus (the “Prospectus”), for the registration, under the Securities Act of 1933, as amended (the “Act”) of, among other securities, the Public Warrants; and
WHEREAS, the Company will issue and deliver 187,500 warrants (or 215,625 warrants if the over-allotment option is exercised in full) underlying a unit purchase option to Maxim Group LLC (the “Representative”) or its designees, which warrants will be identical to the Public Warrants, subject to compliance with FINRA Rule 5110 (“Representative Warrants”); and
WHEREAS, the Company has received binding commitments (the “Subscription Agreements”) from the Company’s sponsor, Kairous Asia Limited (the “Sponsor”), to purchase, simultaneously with the closing of the Public Offering, up to an aggregate of 348,143 units (381,893 units if the over-allotment option is exercised in full) (the “Private Units”), each containing one Ordinary Share, one-half of one redeemable warrant (the “Private Warrants”, including the warrants underlying the units that may be issued upon conversion of working capital loans and together with the Public Warrants and the Representative Warrants, the “Warrants”), and one right to acquire one-tenth of one Ordinary Share. Each whole Private Warrant is exercisable to purchase one Ordinary Share at a price of $11.50 per share, bearing the legend set forth in Exhibit B hereto; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption, and exercise of the Warrants; and
WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent, as provided herein, the valid, binding, and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement.
2. Warrants.
2.1. Form of Warrant. Each Warrant shall be issued in registered form only, shall be in substantially the form of Exhibit A hereto, the provisions of which are incorporated herein and shall be signed by, or bear the facsimile signature of, the Chairman of the Board of Directors or Chief Executive Officer or Chief Financial Officer and Treasurer, Secretary or Assistant Secretary of the Company and shall bear a facsimile of the Company’s seal. In the event the person whose facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.
2.2. Uncertificated Warrants. Notwithstanding anything herein to the contrary, any Warrant, or portion thereof, may be issued as part of, and be represented by, a Unit, and any Warrant may be issued in uncertificated or book-entry form through the Warrant Agent and/or the facilities of The Depository Trust Company (the “Depositary”) or other book-entry depositary system, in each case as determined by the Board of Directors of the Company or by an authorized committee thereof. Any Warrant so issued shall have the same terms, force and effect as a certificated Warrant that has been duly countersigned by the Warrant Agent in accordance with the terms of this Agreement.
2.3. Effect of Countersignature. Except with respect to uncertificated Warrants as described above, unless and until countersigned by the Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no effect and may not be exercised by the holder thereof.
2.4. Registration.
2.4.1. Warrant Register. The Warrant Agent shall maintain books (“Warrant Register”) for the registration of original issuance and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall issue and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by the Company.
2.4.2. Registered Holder. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose name such Warrant is then registered in the Warrant Register (“registered holder”) as the absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other writing on the Warrant certificate made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
2.5. Detachability of Warrants. The securities comprising the Units will not be separately transferable until the 52nd Business Day (as defined below) or earlier with the consent of Maxim Group LLC (the “Representative”), but in no event will the Representative allow separate trading of the securities comprising the Units until (i) the Company has filed a Current Report on Form 8-K which includes an audited balance sheet reflecting the receipt by the Company of the gross proceeds of the Public Offering including the proceeds received by the Company from the exercise of the underwriters’ over-allotment option in the Public Offering, if the over-allotment option is exercised prior to the filing of the Form 8-K, and (ii) the Company has issued a press release and has filed a Current Report on Form 8-K announcing when such separate trading shall begin (the “Detachment Date”). A “Business Day” means a day, other than a Saturday, Sunday or federal holiday, on which banks in New York City are generally open for normal business.
2.6. Private Warrant and Representative Warrants Attributes. The Private Warrants and the Representative Warrants will be identical to the Public Warrants subject to the adjustments provided in Section 5.6.
3. Terms and Exercise of Warrants
3.1. Warrant Price. Each Warrant shall, when countersigned by the Warrant Agent (except with respect to uncertificated Warrants), entitle the registered holder thereof, subject to the provisions of such Warrant and of this Agreement, to purchase from the Company the number of Ordinary Shares stated therein, at the price of $11.50 per full share, subject to the adjustments provided in Section 4 hereof and in the last sentence of this Section 3.1. The term “Warrant Price” as used in this Agreement refers to the price per share at which the Ordinary Shares may be purchased at the time a Warrant is exercised. No fractional warrants will be issued upon separation of the units and only whole warrants will trade. Any fractional warrants will be canceled for no consideration. As a result, such Registered Holder must hold and separate units in multiples of two to not have any fractional warrants canceled. The Company in its sole discretion may lower the Warrant Price at any time prior to the Expiration Date (as defined below) for a period of not less than twenty (20) Business Days; provided, that the Company shall provide at least twenty (20) days’ prior written notice of such reduction to registered holders of the Warrants and, provided further that any such reduction shall be applied consistently to all of the Warrants.
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3.2. Duration of Warrants. A Warrant may be exercised only during the period commencing 30 days after the consummation by the Company of a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or other similar business combination with one or more businesses or entities (“Business Combination”) (as described more fully in the Registration Statement), and terminating at 5:00 p.m., New York City time on the earlier to occur of (i) the date that is five (5) years after the date on which the Company consummates a Business Combination, (ii) at 5:00 p.m., New York City time on the Redemption Date as provided in Section 6.2 of this Agreement and (iii) the liquidation of the Trust Account (defined below) (“Expiration Date”). The period of time from the date the Warrants will first become exercisable until the expiration of the Warrants shall hereafter be referred to as the “Exercise Period.” Except with respect to the right to receive the Redemption Price (as set forth in Section 6 hereunder), as applicable, each outstanding Warrant not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at the close of business on the Expiration Date. The Company in its sole discretion may extend the duration of the Warrants by delaying the Expiration Date; provided, however, that the Company will provide at least twenty (20) days’ prior written notice of any such extension to registered holders and, provided further that any such extension shall be applied consistently to all of the Warrants.
3.3. Exercise of Warrants.
3.3.1. Payment. Subject to the provisions of the Warrant and this Agreement, a Warrant, when countersigned by the Warrant Agent, may be exercised by the registered holder thereof by surrendering it, at the office of the Warrant Agent, or at the office of its successor as Warrant Agent, in the Borough of Manhattan, City and State of New York, with the subscription form, as set forth in the Warrant, duly executed, and by paying in full the Warrant Price for each Ordinary Share as to which the Warrant is exercised and any and all applicable taxes due in connection with the exercise of the Warrant, as follows:
(a) in lawful money of the United States, by good certified check or good bank draft payable to the order of the Warrant Agent or wire transfer;
(b) in the event of a redemption pursuant to Section 6.1 hereof in which the Company’s management has elected to force all holders of Warrants to exercise such Warrants on a “cashless basis,” by surrendering the Warrants for that number of Ordinary Shares equal to the quotient obtained by dividing (x) the product of the number of Ordinary Shares underlying the Warrants, multiplied by the excess of the “Fair Market Value” (defined below) over the Warrant Price by (y) the Fair Market Value. Solely for purposes of this Section 3.3.1(b), the “Fair Market Value” shall mean the average reported closing price of the Ordinary Shares for the ten (10) trading days ending on the third trading day prior to the date of exercise on which the notice of redemption is sent to holders of the Warrants pursuant to Section 6 hereof; or
(c) in the event the registration statement required by Section 7.4 hereof is not effective and current within ninety (90) days after the closing of a Business Combination, by surrendering such Warrants for that number of Ordinary Shares equal to the quotient obtained by dividing (x) the product of the number of Ordinary Shares underlying the Warrants, multiplied by the excess of the “Fair Market Value” over the Warrant Price by (y) the Fair Market Value; provided, however, that no cashless exercise shall be permitted unless the Fair Market Value is equal to or higher than the Warrant Price. Solely for purposes of this Section 3.3.1(c), the “Fair Market Value” shall mean the average reported last sale price of the Ordinary Shares for the ten (10) trading days ending on the third trading day prior to the date of exercise.
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3.3.2. Issuance of Ordinary Shares. As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of the Warrant Price (if any), the Company shall issue to the registered holder of such Warrant a certificate or certificates, or book entry position, for the number of Ordinary Shares to which he, she or it is entitled, registered in such name or names as may be directed by him, her or it, and if such Warrant shall not have been exercised in full, a new countersigned Warrant, or book entry position, for the number of shares as to which such Warrant shall not have been exercised. Notwithstanding the foregoing, in no event will the Company be required to net cash settle the Warrant exercise. No Warrant shall be exercisable for cash and the Company shall not be obligated to issue Ordinary Shares upon exercise of a Warrant unless the Ordinary Shares issuable upon such Warrant exercise have been registered, qualified or deemed to be exempt under the securities laws of the state of residence of the registered holder of the Warrants. In the event that the condition in the immediately preceding sentence is not satisfied with respect to a Warrant, the holder of such Warrant shall not be entitled to exercise such Warrant for cash and such Warrant may have no value and expire worthless, in which case the purchaser of a Unit containing such Warrants shall have paid the full purchase price for the Unit solely for the Ordinary Shares underlying such Unit. Warrants may not be exercised by, or securities issued to, any registered holder in any state in which such exercise or issuance would be unlawful.
3.3.3. Valid Issuance. All Ordinary Shares issued upon the proper exercise of a Warrant in conformity with this Agreement shall be validly issued, fully paid and non-assessable.
3.3.4. Date of Issuance. Each person in whose name any book entry position or certificate for Ordinary Shares is issued shall for all purposes be deemed to have become the holder of record of such shares on the date on which the Warrant, or book entry position representing such Warrant, was surrendered and payment of the Warrant Price was made, irrespective of the date of delivery of such certificate, except that, if the date of such surrender and payment is a date when the share transfer books of the Company or book entry system of the Warrant Agent are closed, such person shall be deemed to have become the holder of such shares at the close of business on the next succeeding date on which the share transfer books or book entry system are open.
3.3.5 Maximum Percentage. A holder of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection 3.3.5; however, no holder of a Warrant shall be subject to this subsection 3.3.5 unless he, she or it makes such election. If the election is made by a holder, the Warrant Agent shall not cause the exercise of the holder’s Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 9.8% (the “Maximum Percentage”) of the Ordinary Shares outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of Ordinary Shares beneficially owned by such person and its affiliates shall include the number of Ordinary Shares issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude Ordinary Shares that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred shares or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of outstanding Ordinary Shares, the holder may rely on the number of outstanding Ordinary Shares as reflected in (1) the Company’s most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K or other public filing with the SEC as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Warrant Agent setting forth the number of Ordinary Shares outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder the number of Ordinary Shares then outstanding. In any case, the number of outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding Ordinary Shares was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company.
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4. Adjustments.
4.1. Share Dividends; Split Ups. If after the date hereof, and subject to the provisions of Section 4.6 below, the number of outstanding Ordinary Shares is increased by a share dividend payable in Ordinary Shares, or by a split up of Ordinary Shares, or other similar event, then, on the effective date of such share dividend, split up or similar event, the number of Ordinary Shares issuable on exercise of each Warrant shall be increased in proportion to such increase in outstanding Ordinary Shares.
4.2. Aggregation of Shares. If after the date hereof, the number of outstanding Ordinary Shares is decreased by a consolidation, combination, reverse share split or reclassification of Ordinary Shares or other similar event, then, on the effective date of such consolidation, combination, reverse share split, reclassification or similar event, the number of Ordinary Shares issuable on exercise of each Warrant shall be decreased in proportion to such decrease in outstanding Ordinary Shares.
4.3 Extraordinary Dividends. If the Company, at any time while the Warrants (or rights to purchase the Warrants) are outstanding and unexpired, shall pay a dividend or make a distribution in cash, securities or other assets to the holders of the Ordinary Shares on account of such Ordinary Shares (or other shares of the Company’s capital stock into which the Warrants are convertible), other than (a) as described in subsection 4.1 above, (b) Ordinary Cash Dividends (as defined below), (c) to satisfy the redemption rights of the holders of the Ordinary Shares in connection with a proposed initial Business Combination, (d) as a result of the repurchase of Ordinary Shares by the Company in connection with an initial Business Combination or as otherwise permitted by the Investment Management Trust Agreement between the Company and the Warrant Agent dated of even date herewith, (e) or as a result of the issuance of Ordinary Shares as a result of conversion of the Rights issued in the Public Offering, or (f) in connection with the Company’s liquidation and the distribution of its assets upon its failure to consummate a Business Combination (any such non-excluded event being referred to herein as an “Extraordinary Dividend”), then the Warrant Price shall be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and the fair market value (as determined by the Company’s board of directors, in good faith) of any securities or other assets paid on each Ordinary Share in respect of such Extraordinary Dividend. For purposes of this subsection 4.3, “Ordinary Cash Dividends” means any cash dividend or cash distribution which, when combined on a per share basis with the per share amounts of all other cash dividends and cash distributions paid on the Ordinary Shares during the 365-day period ending on the date of declaration of such dividend or distribution (as adjusted to appropriately reflect any of the events referred to in other subsections of this Section 4 and excluding cash dividends or cash distributions that resulted in an adjustment to the Warrant Price or to the number of Ordinary Shares issuable on exercise of each Warrant) does not exceed $0.50 (being 5% of the offering price of the Units in the Offering).
4.4 Adjustments in Exercise Price.
4.4.1 Whenever the number of Ordinary Shares purchasable upon the exercise of the Warrants is adjusted, as provided in Sections 4.1 and 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price, immediately prior to such adjustment, by a fraction, (a) the numerator of which shall be the number of Ordinary Shares purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (b) the denominator of which shall be the number of Ordinary Shares so purchasable immediately thereafter, provided that no adjustment shall be made to the Warrant Price if this would result in the Warrant Price falling below the par value of the Ordinary Shares. In such cases, the Warrant Price would be equal to the par value of the Ordinary Shares.
4.4.2 If (i) the Company issues additional Ordinary Shares or securities convertible into or exercisable or exchangeable for Ordinary Shares for capital raising purposes in connection with the closing of the initial business combination at an issue price or effective issue price of less than $9.35 per share of Ordinary Share, with such issue price or effective issue price to be determined in good faith by the Board, (ii) the aggregate gross proceeds from such issuances represent more than 60% of the total equity proceeds, and interest thereon, available for funding the initial business combination, and (iii) the volume weighted average trading price of the Ordinary Shares during the 20 trading day period starting on the trading day prior to the day on which the Company consummates the initial business combination (the “Market Value”) is below $9.35 per share, the Warrant Price shall be adjusted (to the nearest cent) to be equal to 115% of the Market Value, and the $16.50 per share redemption triggers the Company’s right to redeem the Warrants pursuant to Section 6.1 below shall be adjusted (to the nearest cent) to be equal to 165% of the Market Price.
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4.5. Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the outstanding Ordinary Shares (other than a change covered by Section 4.1, 4.2 or 4.3 hereof or that solely affects the par value of the Ordinary Shares), or in the case of any merger or consolidation of the Company with or into another corporation (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding Ordinary Shares), or in the case of any sale or conveyance to another corporation or entity of the assets or other property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the Warrant holders shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the Ordinary Shares of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the Warrant holder would have received if such Warrant holder had exercised his, her or its Warrant(s) immediately prior to such event. If any reclassification also results in a change in the Ordinary Shares covered by Section 4.1, 4.2 or 4.3, then such adjustment shall be made pursuant to Sections 4.1, 4.2, 4.3, 4.4 and this Section 4.5. The provisions of this Section 4.5 shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers. In no event will the Warrant Price be reduced to less than the par value per share issuable upon exercise of the Warrant. Notwithstanding anything to the contrary herein, in the event of any tender offer for Ordinary Shares, the offeror shall not make any tender offer for Warrants if the effect of such offer would be to require the Warrants to be accounted for as liabilities under applicable accounting principles.
4.6. Issuance in connection with a Business Combination. If, in connection with a Business Combination, the Company (a) issues additional Ordinary Shares or equity-linked securities at an issue price or effective issue price of less than $9.35 per share (with such issue price or effective issue price as determined by the Company’s Board of Directors, in good faith, and in the case of any such issuance to the Company’s initial shareholders, or their affiliates, without taking into account any founders’ shares held by them prior to such issuance), (b) the aggregate gross proceeds from such issuances represent more than 60% of the total equity proceeds, and interest thereon, available for the funding of the Business Combination on the date of the consummation of such Business Combination (net of redemptions), and (c) the Fair Market Value (as defined below) is below $9.35 per share, the exercise price of the warrants will be adjusted (to the nearest cent) to be equal to 115% of the greater of (i) the Fair Market Value or (ii) the price at which the Company issues the Ordinary Shares or equity-linked securities, and the $16.50 per share redemption trigger price will be adjusted (to the nearest cent) to be equal to 165% of the higher of the Fair Market Value and the price at which the Company issues Ordinary Shares or equity-linked securities. Solely for purposes of this Section 4.6, the “Fair Market Value” shall mean the volume weighted average reported trading price of the Ordinary Shares for the twenty (20) trading days starting on the trading day prior to the date of the consummation of the Business Combination.
4.7 Notices of Changes in Warrant. Upon every adjustment of the Warrant Price or the number of shares issuable upon exercise of a Warrant, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Sections 4.1, 4.2, 4.3, 4.4, 4.5, or 4.6, then, in any such event, the Company shall give written notice to each Warrant holder, at the last address set forth for such holder in the Warrant Register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.
4.8. No Fractional Warrants or Shares. Notwithstanding any provision contained in this Agreement to the contrary, the Company shall not issue fractional shares upon exercise of Warrants or fractional warrants upon separation of the units and only whole warrants will trade. If, by reason of any adjustment made pursuant to this Section 4, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise, round up to the nearest whole number of Ordinary Shares to be issued to the Warrant holder.
4.9. Form of Warrant. The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued after such adjustment may state the same Warrant Price and the same number of shares as is stated in the Warrants initially issued pursuant to this Agreement. However, the Company may at any time in its sole discretion make any change in the form of Warrant that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.
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4.10 Other Events. In case any event shall occur affecting the Company as to which none of the provisions of preceding subsections of this Section 4 are strictly applicable, but which would require an adjustment to the terms of the Warrants in order to (i) avoid an adverse impact on the Warrants and (ii) effectuate the intent and purpose of this Section 4, then, in each such case, the Company shall appoint a firm of independent public accountants, investment banking or other appraisal firm of recognized national standing, which shall give its opinion as to whether or not any adjustment to the rights represented by the Warrants is necessary to effectuate the intent and purpose of this Section 4 and, if they determine that an adjustment is necessary, the terms of such adjustment. provided, however, that under no circumstances shall the Warrants be adjusted pursuant to this Section 4.10 as a result of any issuance of securities in connection with a Business Combination. The Company shall adjust the terms of the Warrants in a manner that is consistent with any adjustment recommended in such opinion.
5. Transfer and Exchange of Warrants.
5.1. Registration of Transfer. The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender of such Warrant for transfer, properly endorsed with signatures, in the case of certificated Warrants, properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. In the case of certificated Warrants, the Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time to time upon request.
5.2. Procedure for Surrender of Warrants. Warrants may be surrendered to the Warrant Agent, either in certificated form or in book entry position, together with a written request for exchange or transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants, or book entry positions, as requested by the registered holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that in the event that a Warrant surrendered for transfer bears a restrictive legend, the Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange therefor until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer may be made and indicating whether the new Warrants must also bear a restrictive legend.
5.3. Fractional Warrants. The Warrant Agent shall not be required to effect any registration of transfer or exchange which will result in the issuance of a warrant certificate or book-entry position for a fraction of a Warrant.
5.4. Service Charges. No service charge shall be made for any exchange or registration of transfer of Warrants.
5.5. Warrant Execution and Countersignature. The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company, whenever required by the Warrant Agent, will supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.
5.6. Private Warrants. The Warrant Agent shall not register any transfer of Private Warrants until 30 days after the consummation by the Company of an initial Business Combination, except for transfers (i) among the initial shareholders or to the initial shareholders’ or the Company’s officers, directors, consultants or their affiliates, (ii) to a holder’s shareholders or members upon the holder’s liquidation, in each case if the holder is an entity, (iii) by bona fide gift to a member of the holder’s immediate family or to a trust, the beneficiary of which is the holder or a member of the holder’s immediate family, in each case for estate planning purposes, (iv) by virtue of the laws of descent and distribution upon death, (v) pursuant to a qualified domestic relations order, (vi) to the Company for no value for cancellation in connection with the consummation of a Business Combination, (vii) in connection with the consummation of a Business Combination by private sales at prices no greater than the price at which the Private Warrants were originally purchased, (viii) in the event of the Company’s liquidation prior to its consummation of an initial Business Combination or (ix) in the event that, subsequent to the consummation of an initial Business Combination, the Company completes a liquidation, merger, share exchange or other similar transaction which results in all of the Company’s shareholders having the right to exchange their Ordinary Shares for cash, securities or other property, in each case (except for clauses (vi), (viii) or (ix) or with the Company’s prior written consent) on the condition that prior to such registration for transfer, the Warrant Agent shall be presented with written documentation pursuant to which each transferee (each, a “Permitted Transferee”) or the trustee or legal guardian for such transferee agrees to be bound by the transfer restrictions contained in this section and any other applicable agreement the transferor is bound by.
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5.7. Transfers prior to Detachment. Prior to the Detachment Date, the Public Warrants may be transferred or exchanged only together with the Unit in which such Warrants are included, and only for the purpose of effecting, or in conjunction with, a transfer or exchange of such Units. Furthermore, each transfer of a Unit on the register relating to such Unit shall operate also to transfer the Warrants included in such Unit. Notwithstanding the foregoing, the provisions of this Section 5.7 shall have no effect on any transfer of Warrants on or after the Detachment Date.
6. Redemption.
6.1. Redemption. Not less than all of the outstanding Warrants may be redeemed, at the option of the Company, at any time during the Exercise Period, at the office of the Warrant Agent, upon the notice referred to in Section 6.2, at the price of $0.01 per Warrant (“Redemption Price”), provided that the closing price of the Ordinary Shares equals or exceeds $16.50 per share (subject to adjustment in accordance with Section 4 hereof), on each of twenty (20) trading days within any thirty (30) trading day period commencing after the Warrants become exercisable and ending on the third trading day prior to the date on which notice of redemption is given and provided that there is an effective registration statement covering the Ordinary Shares issuable upon exercise of the Warrants, and a current prospectus relating thereto, available throughout the 30-day redemption or the Company has elected to require the exercise of the Warrants on a “cashless basis” pursuant to subsection 3.3.1(b); provided, however, that if and when the Warrants become redeemable by the Company, the Company may not exercise such redemption right if the issuance of Ordinary Shares upon exercise of the Warrants is not exempt from registration or qualification under applicable state blue sky laws or the Company is unable to effect such registration or qualification.
6.2. Date Fixed for, and Notice of, Redemption. In the event the Company shall elect to redeem all of the Warrants, the Company shall fix a date for the redemption (the “Redemption Date”). Notice of redemption shall be mailed by first class mail, postage prepaid, by the Company not less than thirty (30) days prior to the Redemption Date to the registered holders of the Warrants to be redeemed at their last addresses as they shall appear on the registration books. Any notice mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the registered holder received such notice.
6.3. Exercise After Notice of Redemption. The Warrants may be exercised, for cash (or on a “cashless basis” in accordance with Section 3 of this Agreement) at any time after notice of redemption shall have been given by the Company pursuant to Section 6.2 hereof and prior to the Redemption Date. In the event the Company determines to require all holders of Warrants to exercise their Warrants on a “cashless basis” pursuant to Section 3.3.1(b), the notice of redemption will contain the information necessary to calculate the number of Ordinary Shares to be received upon exercise of the Warrants, including the “Fair Market Value” (as such term is defined in subsection 3.3.1(b) hereof) in such case. On and after the Redemption Date, the record holder of the Warrants shall have no further rights except to receive, upon surrender of the Warrants, the Redemption Price.
7. Other Provisions Relating to Rights of Holders of Warrants.
7.1. No Rights as Shareholder. A Warrant does not entitle the registered holder thereof to any of the rights of a shareholder of the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as shareholders in respect of the meetings of shareholders or the election of directors of the Company or any other matter.
7.2. Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.
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7.3. Reservation of Ordinary Shares. The Company shall at all times reserve and keep available a number of its authorized but unissued Ordinary Shares that will be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement.
7.4. Registration of Ordinary Shares. The Company agrees that as soon as practicable after the closing of its initial Business Combination, it shall use its best efforts to file with the Securities and Exchange Commission a registration statement for the registration, under the Act, of the Ordinary Shares issuable upon exercise of the Warrants, and it shall use its best efforts to take such action as is necessary to register or qualify for sale, in those states in which the Warrants were initially offered by the Company and in those states where holders of Warrants then reside, the Ordinary Shares issuable upon exercise of the Warrants, to the extent an exemption is not available. The Company will use its best efforts to cause the same to become effective and to maintain the effectiveness of such registration statement, and a current prospectus relating thereto, until the expiration of the Warrants in accordance with the provisions of this Agreement. If any such registration statement has not been declared effective by the 90th day following the closing of the Business Combination, holders of the Warrants shall have the right, during the period beginning on the 91st day after the closing of the Business Combination and ending upon such registration statement being declared effective by the Securities and Exchange Commission, and during any other period when the Company shall fail to have maintained an effective registration statement covering the Ordinary Shares issuable upon exercise of the Warrants, to exercise such Warrants on a “cashless basis” as determined in accordance with Section 3.3.1(c). The Company shall provide the Warrant Agent with an opinion of counsel for the Company (which shall be an outside law firm with securities law experience) stating that (i) the exercise of the Warrants on a cashless basis in accordance with this Section 7.4 is not required to be registered under the Act and (ii) the Ordinary Shares issued upon such exercise will be freely tradable under U.S. federal securities laws by anyone who is not an affiliate (as such term is defined in Rule 144 under the Act) of the Company and, accordingly, will not be required to bear a restrictive legend. For the avoidance of any doubt, unless and until all of the Warrants have been exercised or have expired, the Company shall continue to be obligated to comply with its registration obligations under the first three sentences of this Section 7.4. The provisions of this Section 7.4 may not be modified, amended, or deleted without the prior written consent of the Representative.
8. Concerning the Warrant Agent and Other Matters.
8.1. Payment of Taxes. The Company will from time to time promptly pay all taxes and charges that may be imposed upon the Company or the Warrant Agent in respect of the issuance or delivery of Ordinary Shares upon the exercise of Warrants, but the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or such Ordinary Shares.
8.2. Resignation, Consolidation, or Merger of Warrant Agent.
8.2.1. Appointment of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of thirty (30) days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of the Warrant (who shall, with such notice, submit his Warrant for inspection by the Company), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation organized and existing under the laws of the State of New York, in good standing and having its principal office in the Borough of Manhattan, City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.
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8.2.2. Notice of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the transfer agent for the Ordinary Shares not later than the effective date of any such appointment.
8.2.3. Merger or Consolidation of Warrant Agent. Any corporation into which the Warrant Agent may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act.
8.3. Fees and Expenses of Warrant Agent.
8.3.1. Remuneration. The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and will reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.
8.3.2. Further Assurances. The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
8.4. Liability of Warrant Agent.
8.4.1. Reliance on Company Statement. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by the Chief Executive Officer or Chairman of the Board of Directors of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.
8.4.2. Indemnity. The Warrant Agent shall be liable hereunder only for its own fraud, gross negligence, willful misconduct or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement except as a result of the Warrant Agent’s fraud, gross negligence, willful misconduct, or bad faith.
8.4.3. Exclusions. The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant; nor shall it be responsible to make any adjustments required under the provisions of Section 4 hereof or responsible for the manner, method, or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Ordinary Shares to be issued pursuant to this Agreement, the Amended and Restated Memorandum and Articles of Association of the Company, or any Warrant or as to whether any Ordinary Shares will, when issued, be valid and fully paid and non-assessable.
8.5. Acceptance of Agency. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all monies received by the Warrant Agent for the purchase of Ordinary Shares through the exercise of Warrants.
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9. Miscellaneous Provisions.
9.1. Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.
9.2. Notices. Any notice, statement or demand authorized by this Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on the Company shall be sufficiently given (i) if by email when the email is sent, (ii) if by hand or overnight delivery, when so delivered, or (iii) if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows:
Kairous Acquisition Corp. Limited
Unit 9-3, Oval Tower @ Damansara,
No. 685, Jalan Damansara,
60000 Taman Tun Dr. Ismail,
Kuala Lumpur, Malaysia
Attn: Joseph Lee, Chief Executive Officer
E-mail: joseph@kairous.com
Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given (i) if by email, when the email is sent, (ii) if by hand or overnight delivery, when so delivered, or (iii) if sent by certified mail or private courier service within five days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows:
Continental Stock Transfer & Trust Company
1 State Street - 30th Floor
New York, NY 10004-1561Attn: Compliance Department
E-mail: compliance@continentalstock.com
with a copy in each case to:
Loeb& Loeb LLP
2206-19 Jardine House
1 Connaught Place
Central, Hong Kong SAR
Attn: Lawrence Venick, Esq.
E-mail: lvenick@loeb.com
and
Hunter Taubman Fischer & Li LLC
800 Third Avenue
Suite 2800
New York, New York 10022
Attn: Guillaume de Sampigny, Esq.
E-mail: gdesampigny@htflawyers.com
and
Maxim Group LLC
405 Lexington Ave
New York, NY 10174
Attn: Alex Jin
E-mail: ajin@maximgrp.com
and
Ogier
11th Floor Central Tower
28 Queen’s Road Central
Central, Hong Kong SAR
Attn: Nathan Powell
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9.3. Applicable Law and Exclusive Forum. The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. Each of the Company and the Warrant Agent hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction. Each of the Company and the Warrant Agent hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Notwithstanding the foregoing, the provisions of this paragraph will not apply to suits brought to enforce any liability or duty created by the Exchange Act or any other claim for which the federal courts of the United States of America have exclusive jurisdiction or any complaint asserting a cause of action arising under the Securities Act against us or any of our directors, officers, other employees or agents. Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder. Any such process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 9.2 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding or claim.
9.4. Persons Having Rights under this Agreement. Nothing in this Agreement expressed and nothing that may be implied from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the parties hereto and the registered holders of the Warrants and, for the purposes of Sections 7.4, 9.4 and 9.8 hereof, the Representative, any right, remedy, or claim under or by reason of this Warrant Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. The Representative shall be deemed to be a third-party beneficiary of this Agreement with respect to Sections 7.4, 9.4 and 9.8 hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Warrant Agreement shall be for the sole and exclusive benefit of the parties hereto (and the Representative with respect to the Sections 7.4, 9.4 and 9.8 hereof) and their successors and assigns and of the registered holders of the Warrants.
9.5. Examination of the Warrant Agreement. A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent in the Borough of Manhattan, City and State of New York, for inspection by the registered holder of any Warrant. The Warrant Agent may require any such holder to submit his Warrant for inspection by it.
9.6. Counterparts. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
9.7. Effect of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.
9.8 Amendments. This Agreement may be amended by the parties hereto without the consent of any registered holder for the purpose of curing any ambiguity, including to conform the provisions hereof to the description of the terms of the Warrants and this Agreement set forth in the Prospectus, or curing, correcting or supplementing any defective provision contained herein or adding or changing any other provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the registered holders. All other modifications or amendments, including any amendment to increase the Warrant Price or shorten the Exercise Period, shall require the written consent or vote of the registered holders of a majority of the then outstanding Warrants. Notwithstanding the foregoing, the Company may lower the Warrant Price or extend the duration of the Exercise Period pursuant to Sections 3.1 and 3.2, respectively, without the consent of the registered holders. The provisions of this Section 9.8 may not be modified, amended or deleted without the prior written consent of the Representative.
9.9 Trust Account Waiver. The Warrant Agent acknowledges and agrees that it shall not make any claims or proceed against the trust account established by the Company in connection with the Public Offering (as more fully described in the Registration Statement) (“Trust Account”), including by way of set-off, and shall not be entitled to any funds in the Trust Account under any circumstance. In the event that the Warrant Agent has a claim against the Company under this Agreement, the Warrant Agent will pursue such claim solely against the Company and not against the property held in the Trust Account.
9.10 Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
[signaturepage follows]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written.
| KAIROUS<br> ACQUISITION CORP. LIMITED | |
|---|---|
| By: | /s/ Joseph Lee |
| Name: | Joseph Lee |
| Title: | Chief Executive Officer |
| CONTINENTAL<br> STOCK TRANSFER & TRUST COMPANY | |
| By: | /s/ Douglas Reed |
| Name: | Douglas Reed |
| Title: | Vice President |
[SignaturePage to Warrant Agreement]
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EXHIBITA
FORM OF WARRANT
EXHIBITB
LEGEND FOR PRIVATE WARRANTS
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. IN ADDITION, SUBJECT TO ANY ADDITIONAL LIMITATIONS ON TRANSFER DESCRIBED IN THE LETTER AGREEMENT BY AND AMONG KAIROUS ACQUISITION CORP. LIMITED (THE “COMPANY”), MAXIM GROUP LLC AND THE OTHER PARTIES THERETO, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD OR TRANSFERRED PRIOR TO THE DATE UPON WHICH THE COMPANY COMPLETES ITS INITIAL BUSINESS COMBINATION (AS DEFINED IN SECTION 3 OF THE WARRANT AGREEMENT REFERRED TO HEREIN) EXCEPT TO A PERMITTED TRANSFEREE (AS DEFINED IN SECTION 5.6 OF THE WARRANT AGREEMENT) WHO AGREES IN WRITING WITH THE COMPANY TO BE SUBJECT TO SUCH TRANSFER PROVISIONS.
SECURITIES EVIDENCED BY THIS CERTIFICATE AND ORDINARY SHARES OF THE COMPANY ISSUED UPON EXERCISE OF SUCH SECURITIES SHALL BE ENTITLED TO REGISTRATION RIGHTS UNDER A REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE COMPANY.
Exhibit4.2
RIGHTS AGREEMENT
This Rights Agreement (this “Agreement”) is made as of December 13, 2021 between Kairous Acquisition Corp. Limited, a Cayman Islands company, with its principal executive office at Unit 9-3, Oval Tower @ Damansara, No. 685, Jalan Damansara, 60000 Taman Tun Dr. Ismail, Kuala Lumpur, Malaysia (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation (the “Right Agent”).
WHEREAS, the Company has received a firm commitment from Maxim Group LLC (“Maxim”), as representative of the several underwriters, to purchase an aggregate of 7,500,000 units, each unit (“Unit”) comprised of one ordinary share of the Company, par value $0.0001 per share (the “Ordinary Shares”), one-half (1/2) of one redeemable warrant, with each whole warrant entitling the holder thereof to purchase one Ordinary Share, and one right to receive one-tenth of one Ordinary Share (a “PublicRight”). The underwriters were also granted an option to purchase up to 1,125,000 additional Units for the purpose of covering over-allotments. Upon the happening of the triggering event described herein, and in connection therewith, the Company will issue and deliver up to an aggregate of 8,625,000 Public Rights upon consummation of such public offering (“Public Offering”), 1,125,000 of which are attributable to the over-allotment option;
WHEREAS, simultaneously with the consummation of the Public Offering, the Company will issue and deliver up to an aggregate of 348,143 rights (or 381,893 rights if the over-allotment option is exercised in full) underlying private units (the “Private Rights”);
WHEREAS, in connection with the Public Offering, the Company will issue and deliver up to 431,250 rights (underlying unit purchase options) to Maxim or its designees (“Maxim Rights”);
WHEREAS, the Company may issue up to an additional 100,000 Rights, which will be identical to the Private Rights, in consideration of certain working capital loans that may be made by Kairous Asia Limited, the Company’s sponsor, or the Company’s officers, directors or affiliates (together with the Public Rights, the Private Rights, the Maxim Rights, and along with such other rights as the Company issues from time to time hereunder, the “Rights”);
WHEREAS, the Company has filed with the Securities and Exchange Commission (the “SEC”) a Registration Statement on Form S-1, File No. 333-259031 (“Registration Statement”), for the registration, under the Securities Act of 1933, as amended (“Act”) of, among other securities, the Public Rights and the Ordinary Shares issuable to the holders of the Public Rights;
WHEREAS, the Company desires the Right Agent to act on behalf of the Company, and the Right Agent is willing to so act, in connection with the issuance, registration, transfer and exchange of the Rights;
WHEREAS, the Company desires to provide for the form and provisions of the Rights, the terms upon which they shall be issued, and the respective rights, limitation of rights, and immunities of the Company, the Right Agent, and the holders of the Rights; and
WHEREAS, all acts and things have been done and performed which are necessary to make the Rights, when executed on behalf of the Company and countersigned by or on behalf of the Right Agent, as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
1. Appointment of Right Agent. The Company hereby appoints the Right Agent to act as agent for the Company for the Rights, and the Right Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement.
2. Rights.
2.1 Form of Rights. Each Right shall be issued in registered form only, shall be in substantially the form of Exhibit A hereto, the provisions of which are incorporated herein and shall be signed by, or bear the facsimile signature of, the Chairman of the Board or any Director or Chief Executive Officer and Treasurer, Secretary or Assistant Secretary of the Company and shall bear a facsimile of the Company’s seal. In the event the person whose facsimile signature has been placed upon any Right shall have ceased to serve in the capacity in which such person signed the Right before such Right is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance. Notwithstanding anything herein to the contrary, any Public Right, or portion thereof, may be issued as part of, and be represented by, a Unit, and any Right may be issued in uncertificated or book-entry form through the Right Agent and/or the facilities of The Depository Trust Company (the “Depositary”) or other book-entry depositary system, in each case as determined by the Board of Directors of the Company or by an authorized committee thereof. Any Right so issued shall have the same terms, force and effect as a certificated Right that has been duly countersigned by the Right Agent in accordance with the terms of this Agreement.
2.2 Effect of Countersignature. Unless and until countersigned by the Right Agent pursuant to this Agreement, a Right shall be invalid and of no effect and may not be exchanged for Ordinary Shares.
2.3 Registration.
2.3.1 Right Register. The Right Agent shall maintain books (“Right Register”) for the registration of original issuance and the registration of transfer of the Rights. Upon the initial issuance of the Rights, the Right Agent shall issue and register the Rights in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Right Agent by the Company.
2.3.2 Registered Holder. Prior to due presentment for registration of transfer of any Right, the Company and the Right Agent may deem and treat the person in whose name such Right shall be registered upon the Right Register (“registered holder”) as the absolute owner of such Right and of each Right represented thereby (notwithstanding any notation of ownership or other writing on the Right Certificate made by anyone other than the Company or the Right Agent), for the purpose of the exchange thereof, and for all other purposes, and neither the Company nor the Right Agent shall be affected by any notice to the contrary.
2.4 Detachability of Rights. The securities comprising the Units, including the Rights, will not be separately transferable until the fifty-second (52^nd^) day after the date of the prospectus unless Maxim informs the Company of its decision to allow earlier separate trading, but in no event will separate trading of the securities comprising the Units begin until (i) the Company files a Current Report on Form 8-K which includes an audited balance sheet reflecting the receipt by the Company of the gross proceeds of the Public Offering including the proceeds received by the Company from the exercise of the over-allotment option, if the over-allotment option is exercised on the date hereof, and (ii) the Company issues a press release and files a Current Report on Form 8-K announcing when such separate trading shall begin.
3. Terms and Exchange of Rights.
3.1 Rights. Each Right shall entitle the holder thereof to receive one-tenth of one Ordinary Share upon the happening of the Exchange Event (described below). No additional consideration shall be paid by a holder of Rights in order to receive his, her or its Ordinary Shares upon the Exchange Event as the purchase price for such Ordinary Shares has been included in the purchase price for the Units. In no event will the Company be required to net cash settle the Rights or issue fractional Ordinary Shares.
3.2 Exchange Event. The Exchange Event shall be the Company’s consummation of an initial Business Combination (as defined in the Company’s Amended and Restated Memorandum and Articles of Association).
3.3 Exercise of Rights.
3.3.1 Issuance of Certificates. As soon as practicable upon the occurrence of the Exchange Event, the Company shall direct holders of the Rights to return their Rights Certificates to the Right Agent. If the Company is not the surviving entity in a Business Combination, the holder of Rights must affirmatively elect to such conversion. Upon receipt of a valid Rights Certificate, the Company shall issue to the registered holder of such Right(s) a certificate or certificates for the number of full Ordinary Shares to which he, she or it is entitled, registered in such name or names as may be directed by him, her or it. Notwithstanding the foregoing, or any provision contained in this Agreement to the contrary, in no event will the Company be required to net cash settle the Rights. The Company shall not issue fractional shares upon exchange of Rights. At the time of the Exchange Event, the Company will instruct the Right Agent to round down to the nearest whole Ordinary Share or otherwise inform it how fractional shares will be addressed in accordance with Cayman Islands law.
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3.3.2 Valid Issuance. All Ordinary Shares issued upon an Exchange Event in conformity with this Agreement shall be validly issued, fully paid and non-assessable.
3.3.3 Date of Issuance. Each person in whose name any such certificate for Ordinary Shares is issued shall for all purposes be deemed to have become the holder of record of such shares on the date of the Exchange Event, irrespective of the date of delivery of such certificate.
3.3.4 Company Not Surviving Following Exchange Event. If the Exchange Event results in the Company not continuing as a publicly held reporting entity, the definitive agreement will provide for the holders of Rights to receive the same per share consideration as the holders of the Ordinary Shares will receive in with the Exchange Event, for the number of shares such holder is entitled to pursuant to Section 3.1 above.
3.4 Duration of Rights. If the Exchange Event does not occur within 12 months from the closing of the Public Offering (or up to 21 months from the closing of the Public Offering if the Company extends the period of time to consummate a Business Combination, as described in the Registration Statement), and such Business Combination has not yet been consummated within the applicable time period, the Rights shall expire and shall be worthless; provided that, for as long as any of the Maxim Right are held by Maxim, or its designees or affiliates, such Rights may not be converted after five years, from the effective date of the Registration Statement.
4. Transfer and Exchange of Rights.
4.1 Registration of Transfer. The Right Agent shall register the transfer, from time to time, of any outstanding Right upon the Right Register, upon surrender of such Right for transfer, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Right representing an equal aggregate number of Rights shall be issued and the old Right shall be cancelled by the Right Agent. The Rights so cancelled shall be delivered by the Right Agent to the Company from time to time upon request.
4.2 Procedure for Surrender of Rights. Rights may be surrendered to the Right Agent, together with a written request for exchange or transfer, and thereupon the Right Agent shall issue in exchange therefor one or more new Rights as requested by the registered holder of the Rights so surrendered, representing an equal aggregate number of Rights; provided, however, that in the event that a Right surrendered for transfer bears a restrictive legend, the Right Agent shall not cancel such Right and issue new Rights in exchange therefor until the Right Agent has received an opinion of counsel for the Company stating that such transfer may be made and indicating whether the new Rights must also bear a restrictive legend. Extraordinary Dividends.
4.3 Fractional Rights. The Right Agent shall not be required to effect any registration of transfer or exchange which will result in the issuance of a Right Certificate for a fraction of a Right.
4.4 Service Charges. No service charge shall be made for any exchange or registration of transfer of Rights.
4.5 Adjustments to Conversion Ratios. The number of Ordinary Shares that the holders of Rights are entitled to receive as a result of the occurrence of an Exchange Event shall be equitably adjusted to reflect appropriately the effect of any share split, reverse share split, share dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the Ordinary Shares occurring on or after the date hereof and prior to the Exchange Event.
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4.6 Right Execution and Countersignature. The Right Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the Rights required to be issued pursuant to the provisions of this Section 4, and the Company, whenever required by the Right Agent, will supply the Right Agent with Rights duly executed on behalf of the Company for such purpose.
5. Other Provisions Relating to Rights of Holders of Rights.
5.1 No Rights as Shareholder. Until exchange of a Right for Ordinary Shares as provided for herein, a Right does not entitle the registered holder thereof to any of the rights of a shareholder of the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as shareholders in respect of the meetings of shareholders or the election of directors of the Company or any other matter
5.2 Lost, Stolen, Mutilated, or Destroyed Rights. If any Right is lost, stolen, mutilated, or destroyed, the Company and the Right Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Right, include the surrender thereof), issue a new Right of like denomination, tenor, and date as the Right so lost, stolen, mutilated, or destroyed. Any such new Right shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Right shall be at any time enforceable by anyone.
5.3 Reservation of Ordinary Shares. The Company shall at all times reserve and keep available a number of its authorized but unissued Ordinary Shares that will be sufficient to permit the exchange of all outstanding Rights issued pursuant to this Agreement.
6. Concerning the Right Agent and Other Matters.
6.1 Payment of Taxes. The Company will from time to time promptly pay all taxes and charges that may be imposed upon the Company or the Right Agent in respect of the issuance or delivery of Ordinary Shares upon the exchange of Rights, but the Company shall not be obligated to pay any transfer taxes in respect of the Rights or such shares.
6.2 Resignation, Consolidation, or Merger of Right Agent.
6.2.1 Appointment of Successor Right Agent. The Right Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the office of the Right Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Right Agent in place of the Right Agent. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation or incapacity by the Right Agent or by the holder of the Right (who shall, with such notice, submit his, her or its Right for inspection by the Company), then the holder of any Right may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Right Agent at the Company’s cost. Any successor Right Agent, whether appointed by the Company or by such court, shall be a corporation organized and existing under the laws of the State of New York, in good standing and having its principal office in the Borough of Manhattan, City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Right Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Right Agent with like effect as if originally named as Right Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Right Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Right Agent all the authority, powers, and rights of such predecessor Right Agent hereunder; and upon request of any successor Right Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Right Agent all such authority, powers, rights, immunities, duties, and obligations.
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6.2.2 Notice of Successor Right Agent. In the event a successor Right Agent shall be appointed, the Company shall give notice thereof to the predecessor Right Agent and the transfer agent for the Ordinary Shares not later than the effective date of any such appointment.
6.2.3 Merger or Consolidation of Right Agent. Any corporation into which the Right Agent may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Right Agent shall be a party shall be the successor Right Agent under this Agreement without any further act.
6.3 Fees and Expenses of Right Agent.
6.3.1 Remuneration. The Company agrees to pay the Right Agent reasonable remuneration for its services as such Right Agent hereunder and will reimburse the Right Agent upon demand for all expenditures that the Right Agent may reasonably incur in the execution of its duties hereunder.
6.3.2 Further Assurances. The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Right Agent for the carrying out or performing of the provisions of this Agreement.
6.4 Liability of Right Agent.
6.4.1 Reliance on Company Statement. Whenever in the performance of its duties under this Agreement, the Right Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by the Chief Executive Officer or Chief Financial Officer and delivered to the Right Agent. The Right Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.
6.4.2 Indemnity. The Right Agent shall be liable hereunder only for its own gross negligence, willful misconduct or bad faith. Subject to Section 6.6, the Company agrees to indemnify the Right Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted by the Right Agent in the execution of this Agreement except as a result of the Right Agent’s gross negligence, willful misconduct, or bad faith.
6.4.3 Exclusions. The Right Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Right (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Right; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Ordinary Shares to be issued pursuant to this Agreement or any Right or as to whether any Ordinary Shares will, when issued, be valid and fully paid and non-assessable.
6.5 Acceptance of Agency. The Right Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth.
6.6 Waiver. The Right Agent hereby waives any right of set-off or any other right, title, interest or claim of any kind (“Claim”) in, or to any distribution of, the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of the date hereof, by and between the Company and the Right Agent as trustee thereunder) and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever.
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7. Miscellaneous Provisions.
7.1 Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Right Agent shall bind and inure to the benefit of their respective successors and assigns.
7.2 Notices. Any notice, statement or demand authorized by this Agreement to be given or made by the Right Agent or by the holder of any Right to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Company with the Right Agent), as follows:
Continental Stock Transfer & Trust Company
1 State Street - 30th Floor
New York, NY 10004
Attn: Account Administration
Kairous Acquisition Corp. Limited
Unit 9-3, Oval Tower @ Damansara,
No. 685, Jalan Damansara,
60000 Taman Tun Dr. Ismail,
Kuala Lumpur, Malaysia
Attn: Joseph Lee, Chief Executive Officer
with a copy (which shall not constiute notice) to:
Loeb & Loeb LLP
345 Park Avenue
New York, New York 10154
Attn: Lawrence Venick
and
Maxim Group LLC
405 Lexington Ave
New York, NY 10174
Attn: Alex Jin
7.3 Applicable Law. The validity, interpretation, and performance of this Agreement and of the Rights shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. Each of the Company and the Right Agent hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each of the Company and the Right Agent hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Notwithstanding the foregoing, this exclusive forum provision shall not apply to suits brought to enforce a duty or liability created by the Securities Exchange Act of 1934 (“Exchange Act”), any other claim for which the federal courts have exclusive jurisdiction or any complaint asserting a cause of action arising under the Securities Act against us or any of our directors, officers, other employees or agents. Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder. Any such process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 7.2 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding or claim.
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7.4 Persons Having Rights under this Agreement. Nothing in this Agreement expressed and nothing that may be implied from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the parties hereto and the registered holders of the Rights and, for the purposes of Sections 3.1, 3.2, 7.4 and 7.8 hereof, Maxim, any right, remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. Maxim shall be deemed to be a third-party beneficiary of this Agreement with respect to Sections 3.1, 3.2, 7.4 and 7.8 hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto (and Maxim with respect to Sections 3.1, 3.2, 7.4 and 7.8 hereof) and their successors and assigns and of the registered holders of the Rights.
7.5 Examination of this Agreement. A copy of this Agreement shall be available at all reasonable times at the office of the Right Agent in the Borough of Manhattan, City and State of New York, for inspection by the registered holder of any Right. The Right Agent may require any such holder to submit his, her or its Right for inspection by it.
7.6 Counterparts. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
7.7 Effect of Headings. The Section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.
7.8 Amendments. This Agreement may be amended by the parties hereto without the consent of any registered holder for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein or adding or changing any other provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the registered holders. All other modifications or amendments shall require the written consent or vote of the registered holders of a majority of the then outstanding Rights. The provisions of this Section 7.8 may not be modified, amended or deleted without the prior written consent of Maxim.
7.9 Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Rights Agreement has been duly executed by the parties hereto as of the day and year first above written.
| KAIROUS ACQUISITION CORP. LIMITED | |
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| By: | /s/ Joseph Lee |
| Name: | Joseph<br> Lee |
| Title: | Chief<br> Executive Officer |
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY | |
| By: | /s/ Douglas Reed |
| Name: | Douglas<br> Reed |
| Title: | Vice<br> President |
EXHIBITA
Formof Rights
Exhibit 4.3
THE REGISTERED HOLDER OF THIS PURCHASE OPTION BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE OPTION EXCEPT AS HEREIN PROVIDED AND THE REGISTERED HOLDER OF THIS PURCHASE OPTION AGREES THAT IT WILL NOT SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE OPTION OR CAUSE IT TO BE THE SUBJECT OF ANY HEDGING, SHORT SALE, DERIVATIVE, PUT, OR CALL TRANSACTION THAT WOULD RESULT IN THE EFFECTIVE ECONOMIC DISPOSITION OF THE PURCHASE OPTION BY ANY PERSON FOR A PERIOD OF ONE HUNDRED EIGHTY DAYS BEGINNING ON THE DATE OF COMMENCEMENT OF SALES OF THE OFFERING (AS DEFINED BELOW) TO ANYONE OTHER THAN TO (I) MAXIM GROUP LLC (“MAXIM”) OR AN UNDERWRITER OR SELECTED DEALER PARTICIPATING IN THE OFFERING OR (II) AN OFFICER OR PARTNER OF MAXIM OR OF ANY SUCH UNDERWRITER OR SELECTED DEALER AND IN ACCORDANCE WITH FINRA RULE 5110(e).
THIS PURCHASE OPTION IS NOT EXERCISABLE PRIOR TO THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE OF THE REGISTRATION STATEMENT OF KAIROUS ACQUISITION CORP. LIMITED (“COMPANY”) AS DESCRIBED MORE FULLY IN THE COMPANY’S REGISTRATION STATEMENT (DEFINED HEREIN)). VOID AFTER 5:00 P.M. NEW YORK CITY LOCAL TIME, ON THE EARLIER OF THE LIQUIDATION OF THE COMPANY’S TRUST ACCOUNT (AS DESCRIBED IN THE REGISTRATION STATEMENT) IF THE COMPANY HAS NOT COMPLETED A MERGER, SHARE EXCHANGE, ASSET ACQUISITION, RECAPITALIZATION, REORGANIZATION OR OTHER SIMILAR BUSINESS COMBINATION (“BUSINESS COMBINATION”) WITHIN THE REQUIRED TIME PERIODS OR DECEMBER 13, 2026.
UNIT PURCHASE OPTION FOR THE PURCHASE OF UP TO 431,250 UNITS OF KAIROUS ACQUISITION CORP. LIMITED
| 1. | Purchase Option. |
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THIS CERTIFIES THAT, in consideration of $100.00 duly paid by or on behalf of Maxim Group LLC (“Holder”), as registered owner of this Purchase Option, to Company, a Cayman Islands company, Holder is entitled, at any time or from time to time on or after the first anniversary of the effective date (“Effective Date”) of the Registration Statement (“CommencementDate”), (as described in the Company’s registration statement (“Registration Statement”) pursuant to which Units are offered for sale to the public in Company’s initial public offering (“Offering”)) until five years from the Effective Date of the Registration Statement (“Expiration Date”), but not thereafter, to subscribe for, purchase and receive, in whole or in part, Three Hundred and Ninety Thousand (390,000) units (or up to Four Hundred Thirty-one Thousand and Two Hundred Fifty (431,250) units with full exercise of the over-allotment option in the offering) (“Units”) of the Company, each Unit consisting of one (1) ordinary share of the Company, with a par value $0.0001 per share (“Ordinary Share(s)”), one-half (1/2) of one redeemable warrant (“Warrant(s)”), each whole Warrant entitles the holder thereof to purchase one ordinary share at a price of $11.50 per full share (subject to adjustment), and one (1) right to receive one-tenth (1/10) of an Ordinary Share upon the consummation of a Business Combination (“Right(s)”). Each Right is the same as the right included in the units being registered for sale to the public by way of the Registration Statement (“Public Rights”). Each Warrant is the same as the whole warrant included in the Units being registered for sale to the public by way of the Registration Statement (the “Public Warrants”). If the Expiration Date is a day on which banking institutions are authorized by law to close, then this Purchase Option may be exercised on the next succeeding day which is not such a day in accordance with the terms herein. During the period ending on the Expiration Date, the Company agrees not to take any action that would terminate the Purchase Option. This Purchase Option is initially exercisable at $11.00 per Unit so purchased; provided, however, that upon the occurrence of any of the events specified in Section 6 hereof, the rights granted by this Purchase Option, including the exercise price per Unit and the number of Units (and Ordinary Shares, Warrants and Rights) to be received upon such exercise, shall be adjusted as therein specified. The term “Exercise Price” shall mean the initial exercise price or the adjusted exercise price, depending on the context.
| 2. | Exercise of Purchase option. |
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| 2.1. | Exercise<br> Form. In order to exercise this Purchase Option, the exercise form attached hereto must be duly executed and completed and delivered<br> to the Company, together with this Purchase Option and payment of the Exercise Price for the Units being purchased payable in cash<br> or by certified check or official bank check. If the subscription rights represented hereby shall not be exercised at or before 5:00<br> p.m., New York City local time, on the Expiration Date, this Purchase Option shall become and be void without further force or effect,<br> and all rights represented hereby shall cease and expire. |
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| 2.2. | Legend.<br> Each certificate for the securities purchased under this Purchase Option shall bear a legend as follows, unless such securities<br> have been registered under the Securities Act of 1933, as amended (“Act”): |
| “The securities<br> represented by this certificate have not been registered under the Securities Act of 1933, as amended (“Act”) or applicable<br> state law. The securities may not be offered for sale, sold or otherwise transferred except pursuant to an effective registration<br> statement under the Act, or pursuant to an exemption from registration under the Act and applicable state law.” | |
| 2.3. | Cashless<br> Exercise. |
| 2.3.1. | Determination of Amount. In lieu of the payment of the Exercise Price multiplied by the number of Units for which this Purchase Option is exercisable<br> (and in lieu of being entitled to receive Ordinary Shares and Warrants) in the manner required by Section 2.1, and subject to Section<br> 6.1 hereof, the Holder shall have the right (but not the obligation) to convert any exercisable but unexercised portion of this Purchase<br> Option into Units (“Cashless Exercise Right”) as follows: upon exercise of the Cashless Exercise Right, the Company<br> shall deliver to the Holder (without payment by the Holder of any of the Exercise Price in cash) that number of Units (or that number<br> of Ordinary Shares, Warrants and Rights comprising that number of Units) equal to the number of Units to be exercised multiplied<br> by the quotient obtained by dividing (x) the “Value” (as defined below) of the portion of the Purchase Option being converted<br> by (y) the Current Market Value (as defined below). The “Value” of the portion of the Purchase Option being converted<br> shall equal the remainder derived from subtracting (a) (i) the Exercise Price multiplied by (ii) the number of Units underlying the<br> portion of this Purchase Option being converted from (b) the Current Market Value of a Unit multiplied by the number of Units underlying<br> the portion of the Purchase Option being converted. As used herein, the term “Current Market Value” per Unit at any date<br> means: (A) in the event that the Units, Ordinary Shares, Public Warrants, and Public Rights are still trading, (i) if the Units are<br> listed on a national securities exchange or quoted on the OTC Bulletin Board (or successor exchange), the average reported last sale<br> price of the Units in the principal trading market for the Units as reported by the exchange, Nasdaq or the Financial Industry Regulatory<br> Authority (“FINRA”), as the case may be, for the three trading days preceding the date in question; or (ii) if<br> the Units are not listed on a national securities exchange or quoted on the OTC Bulletin Board (or successor exchange), but is traded<br> in the residual over-the-counter market, the average reported last sale price for Units for the three trading days preceding the<br> date in question for which such quotations are reported by the Pink Sheets, LLC or similar publisher of such quotations; (B) in the<br> event that the Units are not still trading but the Ordinary Shares, Public Warrants, and Public Rights underlying the Units are still<br> trading, the aggregate of (i) the product of (x) the Current Market Price of the Ordinary Share and (y) the number of the Ordinary<br> Shares underlying one Unit (which shall include the portion of an Ordinary Share the holder of a Unit would automatically receive<br> in connection with the Right included in each such Unit), plus (ii) the product of (x) the Current Market Price of the Public Warrants<br> and (y) the number of Warrants included in one Unit; or (C) in the event that neither the Units nor the Public Warrants are still<br> trading, the aggregate of (i) the product of (x) the Current Market Price of the Ordinary Shares and (y) the number of the Ordinary<br> Shares underlying one Unit (which shall include the portion of an Ordinary Share the holder of a Unit would automatically receive<br> in connection with the Right included in each such Unit), plus (ii) the remainder derived from subtracting (x) the exercise price<br> of the Warrants multiplied by the number of Ordinary Shares issuable upon exercise of the Warrants underlying one Unit from (y) the<br> product of (aa) the Current Market Price of the Ordinary Shares multiplied by (bb) the number of Ordinary Shares underlying the Warrants<br> included in each such Unit. The “Current Market Price” shall mean (i) if the Ordinary Shares (or Public Warrants,<br> as the case may be) are listed on a national securities exchange or quoted on the OTC Bulletin Board (or successor exchange), the<br> average reported last sale price of the Ordinary Shares (or Public Warrants) in the principal trading market for the Ordinary Share<br> (or Public Warrants) as reported by the exchange, Nasdaq or FINRA, as the case may be, for the three trading days preceding the date<br> in question; (ii) if the Ordinary Shares (or Public Warrants) are not listed on a national securities exchange or quoted on the OTC<br> Bulletin Board (or successor exchange), but are traded in the residual over-the-counter market, the average reported last sale price<br> for the Ordinary Share (or Public Warrants) on for the three (3) trading days preceding the date in question for which such quotations<br> are reported by the Pink Sheets, LLC or similar publisher of such quotations; and (iii) if the fair market value of the Ordinary<br> Share cannot be determined pursuant to clause (i) or (ii) above, such price as the Board of Directors of the Company shall determine,<br> in good faith. In the event the Public Warrants have expired and are no longer exercisable, no “Value” shall be attributed<br> to Warrants underlying this Purchase Options. |
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| 2.3.2. | Mechanics of Cashless Exercise. The Cashless Exercise Right may be exercised by the Holder on any business day on or after the Commencement<br> Date and not later than the Expiration Date by delivering the Purchase Option with the duly executed exercise form attached hereto<br> with the cashless exercise section completed to the Company, exercising the Cashless Exercise Right and specifying the total number<br> of Units the Holder will purchase pursuant to such Cashless Exercise Right |
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| 2.4. | No<br> Obligation to Net Cash Settle. Notwithstanding anything to the contrary contained in this Purchase Option, in no event will the<br> Company be required to net cash settle the exercise of the Purchase Option or Warrants underlying the Purchase Option. The holder<br> of the Purchase Option and Warrants underlying the Purchase Option will not be entitled to exercise the Purchase Option or the Warrants<br> underlying such Purchase Option unless it exercises such Purchase Option pursuant to the Cashless Exercise Right or a registration<br> statement is effective, or an exemption from the registration requirements is available at such time and, if the holder is not able<br> to exercise the Purchase Option or underlying Warrants, the Purchase Option and/or the underlying Warrants, as applicable, will expire<br> worthless. |
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| 3. | Transfer of purchase option. |
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| 3.1. | General<br> Restrictions. The registered Holder of this Purchase Option, by its acceptance hereof, agrees that it will not sell, transfer,<br> assign, pledge or hypothecate this Purchase Option (or the Ordinary Shares and Warrants underlying this Purchase Option), or cause<br> the Purchase Option (or the Ordinary Shares and Warrants underlying this Purchase Option) to be the subject of any hedging, short<br> sale, derivative, put, or call transaction that would result in the effective economic disposition of the Purchase Option by any<br> person, for a period of 180 days (pursuant to Rule 5110(e)(1) of the Conduct Rules of FINRA) beginning on the date of commencement<br> of sales of the Offering to anyone other than (i) Maxim or an underwriter or selected dealer in connection with the Offering, or<br> (ii) a bona fide officer or partner of Maxim or of any such underwriter or selected dealer. On and after the 181st day after the<br> date of commencement of sales of the Offering, transfers to others may be made subject to compliance with or exemptions from applicable<br> securities laws. In order to make any permitted assignment, the Holder must deliver to the Company the assignment form attached hereto<br> duly executed and completed, together with the Purchase Option and payment of all transfer taxes, if any, payable in connection therewith.<br> The Company shall within five (5) business days transfer this Purchase Option on the books of the Company and shall execute and deliver<br> a new Purchase Option of like tenor to the appropriate assignee(s) expressly evidencing the right to purchase the aggregate number<br> of Units purchasable hereunder or such portion of such number as shall be contemplated by any such assignment. |
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| 3.2. | Restrictions<br> Imposed by the Act. The securities evidenced by this Purchase Option shall not be transferred unless and until (i) the Company<br> has received the opinion of counsel for the Holder that the securities may be transferred pursuant to an exemption from registration<br> under the Act and applicable state securities laws, the availability of which is established to the reasonable satisfaction of the<br> Company (the Company hereby agreeing that the opinion of Hunter Taubman Fischer & Li LLC shall be deemed satisfactory evidence<br> of the availability of an exemption), or (ii) a registration statement or a post-effective amendment to the Registration Statement<br> relating to such securities has been filed by the Company and declared effective by the Securities and Exchange Commission (the “Commission”)<br> and compliance with applicable state securities law has been established. |
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| 4. | New Purchase Option to be Issued. |
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| 4.1. | Partial<br> Exercise or Transfer. Subject to the restrictions in Section 3 hereof, this Purchase Option may be exercised or assigned in whole<br> or in part. In the event of the exercise or assignment hereof in part only, upon surrender of this Purchase Option for cancellation,<br> together with the duly executed exercise or assignment form and funds sufficient to pay any Exercise Price (except to the extent<br> that the Holder elects to exercise this Purchase Option by means of a cashless exercise as provided in Section 2.3 above) and/or<br> transfer tax, the Company shall cause to be delivered to the Holder without charge a new Purchase Option of like tenor to this Purchase<br> Option in the name of the Holder evidencing the right of the Holder to purchase the number of Units purchasable hereunder as to which<br> this Purchase Option has not been exercised or assigned |
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| 4.2. | Lost<br> Certificate. Upon receipt by the Company of evidence satisfactory to it of the loss, theft, destruction or mutilation of this<br> Purchase Option and of reasonably satisfactory indemnification or the posting of a bond, the Company shall execute and deliver a<br> new Purchase Option of like tenor and date. Any such new Purchase Option executed and delivered as a result of such loss, theft,<br> mutilation or destruction shall constitute a substitute contractual obligation on the part of the Company. |
| 5. | REGISTRATION RIGHTS. |
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| 5.1. | Demand<br> Registration. |
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| 5.1.1. | 5.1.1 Grant of Right. The Company, upon written demand (“Initial Demand Notice”) of the Holder(s) of at least 51%<br> of the Purchase Option and/or the underlying Units and/or the underlying securities (“Majority Holders”), agrees<br> to use its best efforts to register (the “Demand Registration”) under the Act on one occasion, all or any portion<br> of the (i) Purchase Option requested by the Majority Holders in the Initial Demand Notice and all of the securities underlying such<br> Purchase Option, including the Units, Ordinary Shares, Warrants, Rights and the Ordinary Shares underlying the Warrants and Rights<br> and (ii) the securities issued to the Holder prior to or concurrently with the Offering and all the securities underlying such securities<br> (collectively, the “Registrable Securities”). On such occasion, the Company will use its best efforts to file<br> a registration statement or a post-effective amendment to the Registration Statement covering the Registrable Securities as expeditiously<br> as possible within sixty (60) days after receipt of the Initial Demand Notice and use its best efforts to have such registration<br> statement or post-effective amendment declared effective as soon as possible thereafter. The demand for registration may be made<br> at any time during a period of four and one-half years beginning 180 days after the date of commencement of sales of the Offering.<br> The Initial Demand Notice shall specify the number of shares of Registrable Securities proposed to be sold and the intended method(s)<br> of distribution thereof. The Company will notify all holders of the Purchase Option and/or Registrable Securities of the demand within<br> ten days from the date of the receipt of any such Initial Demand Notice. Each holder of Registrable Securities who wishes to include<br> all or a portion of such holder’s Registrable Securities in the Demand Registration (each such holder including shares of Registrable<br> Securities in such registration, a “Demanding Holder”) shall so notify the Company within fifteen (15) days after<br> the receipt by the holder of the notice from the Company. Upon any such request, the Demanding Holders shall be entitled to have<br> their Registrable Securities included in the Demand Registration, subject to Section 5.1.4. The Company shall not be required to<br> effect more than one (1) Demand Registrations under this Section 5.1 in respect of all Registrable Securities. Notwithstanding the<br> provisions of this Section 5.1.1, the Holder shall be entitled to a Demand Registration Statement under this Section 5.1.1<br> on only one occasion and such demand registration right shall terminate on the fifth anniversary of the commencement of sales<br> of the Offering in accordance with FINRA Rule 5110(g)(8)(B) and (C). |
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| 5.1.2. | Effective Registration. Notwithstanding Section 5.1.5, a registration will not count as a Demand Registration until the registration statement<br> filed with the Commission, with respect to such Demand Registration, has been declared effective and the Company has complied with<br> all of its obligations under this Purchase Option with respect thereto. |
| 5.1.3. | Underwritten Offering. If the Majority Holders so elect and such holders so advise the Company as part of the Initial Demand Notice, the offering<br> of such Registrable Securities pursuant to such Demand Registration shall be in the form of an underwritten offering. In such event,<br> the right of any holder to include its Registrable Securities in such registration shall be conditioned upon such holder’s<br> participation in such underwriting and the inclusion of such holder’s Registrable Securities in the underwriting to the extent<br> provided herein. All Demanding Holders proposing to distribute their securities through such underwriting shall enter into an underwriting<br> agreement in customary form with the underwriter or underwriters selected for such underwriting by the Majority Holders. |
| 5.1.4. | Reduction of Offering. If the managing underwriter or underwriters for a Demand Registration that is to be an underwritten offering advises<br> the Company and the Demanding Holders in writing that the dollar amount or number of shares of Registrable Securities which the Demanding<br> Holders desire to sell, taken together with all other Ordinary Shares or other securities which the Company desires to sell and the<br> Ordinary Shares, if any, as to which registration has been requested pursuant to written contractual piggy-back registration rights<br> held by other shareholders of the Company who desire to sell, exceeds the maximum dollar amount or maximum number of shares that<br> can be sold in such offering without adversely affecting the proposed offering price, the timing, the distribution method, or the<br> probability of success of such offering (such maximum dollar amount or maximum number of shares, as applicable, the “Maximum Number of Shares”), then the Company shall include in such registration: (i) first, the Registrable Securities as to which<br> Demand Registration has been requested by the Demanding Holders (pro rata in accordance with the number of shares that each such<br> person has requested be included in such registration, regardless of the number of shares held by each such person (such proportion<br> is referred to herein as “Pro Rata”)) that can be sold without exceeding the Maximum Number of Shares; (ii) second,<br> to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (i), the Ordinary Shares or other<br> securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (iii) third, to the<br> extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i) and (ii), the Ordinary Shares or other<br> securities registrable pursuant to the terms of the Registration Rights Agreement between the Company and the initial investors in<br> the Company and Maxim, dated as of December 13, 2021 (the “Registration Rights Agreement” and such registrable<br> securities, the “Investor Securities”) as to which “piggy-back” registration has been requested by<br> the holders thereof, Pro Rata, that can be sold without exceeding the Maximum Number of Shares; and (iv) fourth, to the extent that<br> the Maximum Number of Shares has not been reached under the foregoing clauses (i), (ii), and (iii), the Ordinary Shares or other<br> securities for the account of other persons that the Company is obligated to register pursuant to written contractual arrangements<br> with such persons and that can be sold without exceeding the Maximum Number of Shares. |
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| 5.1.5. | Withdrawal. If a majority-in-interest of the Demanding Holders disapprove of the terms of any underwriting or are not entitled to include<br> all of their Registrable Securities in any offering, such majority-in-interest of the Demanding Holders may elect to withdraw from<br> such offering by giving written notice to the Company and the underwriter or underwriters of their request to withdraw prior to the<br> effectiveness of the registration statement filed with the Commission with respect to such Demand Registration. If the majority-in-interest<br> of the Demanding Holders withdraws from a proposed offering relating to a Demand Registration, then the Company does not have to<br> continue its obligations under Section 5.1, provided that, any such withdrawal will not count as the Demand Registration if the Demanding<br> Holders pay all of the Company’s out-of-pocket expenses, with respect to such withdrawn registration. |
| 5.1.6. | Terms. The Company shall bear all fees and expenses attendant to registering the Registrable Securities, including the expenses of one<br> legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities, but the Holders<br> shall pay any and all underwriting commissions. The Company agrees to use its reasonable best efforts to qualify or register the<br> Registrable Securities in such states as are reasonably requested by the Majority Holder(s); provided, however, that in no event<br> shall the Company be required to register the Registrable Securities in a state in which such registration would cause (i) the Company<br> to be obligated to qualify to do business in such state, or would subject the Company to taxation as a foreign corporation doing<br> business in such jurisdiction or (ii) the principal shareholders of the Company to be obligated to escrow their shares of capital<br> stock of the Company. The Company shall use its best efforts to cause any registration statement or post-effective amendment filed<br> pursuant to the demand rights granted under Section 5.1.1 to remain effective for a period of nine consecutive months from the effective<br> date of such registration statement or post-effective amendment. |
| 5.2. | Piggy-Back<br> Registration. |
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| 5.2.1. | Piggy-Back Rights. If at any time during the seven year period beginning on the date of commencement of sales of the Offering the Company<br> proposes to file a registration statement under the Act with respect to an offering of equity securities, or securities or other<br> obligations exercisable or exchangeable for, or convertible into, equity securities, by the Company for its own account or for shareholders<br> of the Company for their account (or by the Company and by shareholders of the Company including, without limitation, pursuant to<br> Section 5.1), other than a registration statement (i) filed in connection with any employee stock option or other benefit plan, (ii)<br> for an exchange offer or offering of securities solely to the Company’s existing shareholders, (iii) for an offering of debt<br> that is convertible into equity securities of the Company or (iv) for a dividend reinvestment plan, then the Company shall (x) give<br> written notice of such proposed filing to the holders of Registrable Securities as soon as practicable but in no event less than<br> ten (10) days before the anticipated filing date, which notice shall describe the amount and type of securities to be included in<br> such offering, the intended method(s) of distribution, and the name of the proposed managing underwriter or underwriters, if any,<br> of the offering, and (y) offer to the holders of Registrable Securities in such notice the opportunity to register the sale of such<br> number of shares of Registrable Securities as such holders may request in writing within five (5) days following receipt of such<br> notice (a “Piggy-Back Registration”). The Company shall cause such Registrable Securities to be included in such<br> registration and shall use its best efforts to cause the managing underwriter or underwriters of a proposed underwritten offering<br> to permit the Registrable Securities requested to be included in a Piggy-Back Registration on the same terms and conditions as any<br> similar securities of the Company and to permit the sale or other disposition of such Registrable Securities in accordance with the<br> intended method(s) of distribution thereof. All holders of Registrable Securities proposing to distribute their securities through<br> a Piggy-Back Registration that involves an underwriter or underwriters shall enter into an underwriting agreement in customary form<br> with the underwriter or underwriters selected for such Piggy-Back Registration. Notwithstanding the provisions of this Section<br> 5.2.1, such piggyback registration rights shall terminate on the seventh anniversary of the commencement of sales of the Offering<br> in accordance with FINRA Rule 5110(g)(8)(D). |
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| 5.2.2. | Reduction of Offering. If the managing underwriter or underwriters for a Piggy-Back Registration that is to be an underwritten offering<br> advises the Company and the holders of Registrable Securities in writing that the dollar amount or number of Ordinary Shares which<br> the Company desires to sell, taken together with Ordinary Shares, if any, as to which registration has been demanded pursuant to<br> written contractual arrangements with persons other than the holders of Registrable Securities hereunder, the Registrable Securities<br> as to which registration has been requested under this Section 5.2, and the Ordinary Shares, if any, as to which registration has<br> been requested pursuant to the written contractual piggy-back registration rights of other shareholders of the Company, exceeds the<br> Maximum Number of Shares, then the Company shall include in any such registration: |
| (a) | If<br> the registration is undertaken for the Company’s account: (A) first, Ordinary Shares or other securities that the Company desires<br> to sell that can be sold without exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum Number of Shares<br> has not been reached under the foregoing clause (A), the Ordinary Shares or other securities, if any, comprised of Registrable Securities<br> and Investor Securities, as to which registration has been requested pursuant to the applicable written contractual piggy-back registration<br> rights of such security holders, Pro Rata, that can be sold without exceeding the Maximum Number of Shares; and (C) third, to the<br> extent that the Maximum Number of shares has not been reached under the foregoing clauses (A) and (B), the Ordinary Shares or other<br> securities for the account of other persons that the Company is obligated to register pursuant to written contractual piggy-back<br> registration rights with such persons and that can be sold without exceeding the Maximum Number of Shares; |
| --- | --- |
| (b) | If<br> the registration is a “demand” registration undertaken at the demand of holders of Investor Securities, (A) first, the<br> Ordinary Shares or other securities for the account of the demanding persons, Pro Rata, that can be sold without exceeding the Maximum<br> Number of Shares; (B) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (A),<br> the Ordinary Shares or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of<br> Shares; (C) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A) and (B),<br> the shares of Registrable Securities, Pro Rata, as to which registration has been requested pursuant to the terms hereof, that can<br> be sold without exceeding the Maximum Number of Shares; and (D) fourth, to the extent that the Maximum Number of Shares has not been<br> reached under the foregoing clauses (A), (B) and (C), the Ordinary Shares or other securities for the account of other persons that<br> the Company is obligated to register pursuant to written contractual arrangements with such persons, that can be sold without exceeding<br> the Maximum Number of Shares; and |
| --- | --- |
| (c) | If<br> the registration is a “demand” registration undertaken at the demand of persons other than either the holders of Registrable<br> Securities or of Investor Securities, (A) first, the Ordinary Shares or other securities for the account of the demanding persons<br> that can be sold without exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum Number of Shares has<br> not been reached under the foregoing clause (A), the Ordinary Shares or other securities that the Company desires to sell that can<br> be sold without exceeding the Maximum Number of Shares; (C) third, to the extent that the Maximum Number of Shares has not been reached<br> under the foregoing clauses (A) and (B), collectively the Ordinary Shares or other securities comprised of Registrable Securities<br> and Investor Securities, Pro Rata, as to which registration has been requested pursuant to the terms hereof and of the Registration<br> Rights Agreement, as applicable, that can be sold without exceeding the Maximum Number of Shares; and (D) fourth, to the extent that<br> the Maximum Number of Shares has not been reached under the foregoing clauses (A), (B) and (C), the Ordinary Shares or other securities<br> for the account of other persons that the Company is obligated to register pursuant to written contractual arrangements with such<br> persons, that can be sold without exceeding the Maximum Number of Shares. |
| 5.2.3. | Withdrawal. Any holder of Registrable Securities may elect to withdraw such holder’s request for inclusion of Registrable Securities<br> in any Piggy-Back Registration by giving written notice to the Company of such request to withdraw prior to the effectiveness of<br> the registration statement. The Company (whether on its own determination or as the result of a withdrawal by persons making a demand<br> pursuant to written contractual obligations) may withdraw a registration statement at any time prior to the effectiveness of the<br> registration statement. Notwithstanding any such withdrawal, the Company shall pay all expenses incurred by the holders of Registrable<br> Securities in connection with such Piggy-Back Registration as provided in Section 5.2.4. |
| --- | --- |
| 5.2.4. | Terms. The Company shall bear all fees and expenses attendant to registering the Registrable Securities, including the expenses of one<br> legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities but the Holders<br> shall pay any and all underwriting commissions related to the Registrable Securities. In the event of such a proposed registration,<br> the Company shall furnish the then Holders of outstanding Registrable Securities with not less than fifteen days written notice prior<br> to the proposed date of filing of such registration statement. Such notice to the Holders shall continue to be given for each applicable<br> registration statement filed (during the period in which the Purchase Option is exercisable) by the Company until such time as all<br> of the Registrable Securities have been registered and sold. The Holders of the Registrable Securities shall exercise the “piggy-back”<br> rights provided for herein by giving written notice within ten days of the receipt of the Company’s notice of its intention<br> to file a registration statement. The Company shall use its best efforts to cause any registration statement filed pursuant to the<br> above “piggyback” rights to remain effective for at least nine months from the date that the Holders of the Registrable<br> Securities are first given the opportunity to sell all of such securities. |
| --- | --- |
| 5.3. | General<br> Terms. |
| --- | --- |
| 5.3.1. | Indemnification.<br> The Company shall indemnify the Holder(s) of the Registrable Securities to be sold pursuant to any registration statement hereunder<br> and each person, if any, who controls such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities<br> Exchange Act of 1934, as amended (“Exchange Act”), against all loss, claim, damage, expense or liability (including<br> all reasonable attorneys’ fees and other expenses reasonably incurred in investigating, preparing or defending against litigation,<br> commenced or threatened, or any claim whatsoever whether arising out of any action between the underwriter and the Company or between<br> the underwriter and any third party or otherwise) to which any of them may become subject under the Act, the Exchange Act or otherwise,<br> arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which<br> the Company has agreed to indemnify the underwriters contained in Section 5 of the Underwriting Agreement between the Company, Maxim<br> and the other underwriters named therein dated the Effective Date (“Underwriting Agreement”). The Holder(s) of<br> the Registrable Securities to be sold pursuant to such registration statement, and their successors and assigns, shall severally,<br> and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning<br> of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage, expense or liability (including all<br> reasonable attorneys’ fees and other expenses reasonably incurred in investigating, preparing or defending against any claim<br> whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by<br> or on behalf of such Holders, or their successors or assigns for specific inclusion in such registration statement or arising from<br> any omission or the alleged omission to state a material fact required to be stated therein or necessary to make the statement contained<br> therein not misleading in connection with the registration of the Registrable Securities, to the same extent and with the same effect<br> as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the underwriters have agreed to indemnify<br> the Company. |
| --- | --- |
| 5.3.2. | Exercise of Purchase Option. Nothing contained in this Purchase Option shall be construed as requiring the Holder(s) to exercise their<br> Purchase Option or Warrants underlying such Purchase Option prior to or after the initial filing of any registration statement or<br> the effectiveness thereof. |
| 5.3.3. | Documents Delivered to Holders. The Company shall furnish Maxim, for as long as it is a Holder, as representative of the Holders participating<br> in any of the foregoing offerings, a signed counterpart, addressed to the participating Holders, of (i) an opinion of counsel to<br> the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering,<br> an opinion dated the date of the closing under any underwriting agreement related thereto), and (ii) a “cold comfort”<br> letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering,<br> a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued<br> a report on the Company’s financial statements included in such registration statement, in each case covering substantially<br> the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants’<br> letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer’s<br> counsel and in accountants’ letters delivered to underwriters in underwritten public offerings of securities. The Company shall<br> also deliver promptly to Maxim, as representative of the Holders participating in the offering, the correspondence and memoranda<br> described below and copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda<br> relating to discussions with the Commission or its staff with respect to the registration statement and permit Maxim, as representative<br> of the Holders, to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from<br> the registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of FINRA. Such investigation<br> shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers<br> and independent auditors, all to such reasonable extent and at such reasonable times and as often as Maxim, as representative of<br> the Holders, shall reasonably request. The Company shall not be required to disclose any confidential information or other records<br> to Maxim, as representative of the Holders, or to any other person, until and unless such persons shall have entered into reasonable<br> confidentiality agreements (in form and substance reasonably satisfactory to the Company), with the Company with respect thereto. |
| --- | --- |
| 5.3.4. | Underwriting Agreement. The Company shall enter into an underwriting agreement with the managing underwriter(s), if any, selected by any Holders<br> whose Registrable Securities are being registered pursuant to this Section 5, which managing underwriter shall be reasonably acceptable<br> to the Company. Such agreement shall be reasonably satisfactory in form and substance to the Company, each Holder and such managing<br> underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily<br> contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement<br> relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations,<br> warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such<br> Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters<br> except as they may relate to such Holders and their intended methods of distribution. Such Holders, however, shall agree to such<br> covenants and indemnification and contribution obligations for selling shareholders as are customarily contained in agreements of<br> that type used by the managing underwriter. Further, such Holders shall execute appropriate custody agreements and otherwise cooperate<br> fully in the preparation of the registration statement and other documents relating to any offering in which they include securities<br> pursuant to this Section 5. Each Holder shall also furnish to the Company such information regarding itself, the Registrable Securities<br> held by it, and the intended method of disposition of such securities as shall be reasonably required to effect the registration<br> of the Registrable Securities. |
| 5.3.5. | Rule 144 Sale. Notwithstanding anything contained in this Section 5 to the contrary, the Company shall have no obligation pursuant<br> to Sections 5.1 or 5.2 to use its best efforts to obtain the registration of Registrable Securities held by any Holder (i) where<br> such Holder would then be entitled to sell under Rule 144 within any three-month period (or such other period prescribed under Rule<br> 144 as may be provided by amendment thereof) all of the Registrable Securities then held by such Holder, or (ii) where the number<br> of Registrable Securities held by such Holder is within the volume limitations under paragraph (e) of Rule 144 (calculated as if<br> such Holder were an affiliate within the meaning of Rule 144). |
| --- | --- |
| 5.3.6. | Supplemental Prospectus. Each Holder agrees, that upon receipt of any notice from the Company of the happening of any event as a result of<br> which the prospectus included in the registration statement, as then in effect, includes an untrue statement of a material fact or<br> omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light<br> of the circumstances then existing, such Holder will immediately discontinue disposition of Registrable Securities pursuant to the<br> registration statement covering such Registrable Securities until such Holder’s receipt of the copies of a supplemental or<br> amended prospectus, and, if so desired by the Company, such Holder shall deliver to the Company (at the expense of the Company) or<br> destroy (and deliver to the Company a certificate of such destruction) all copies, other than permanent file copies then in such<br> Holder’s possession, of the prospectus covering such Registrable Securities current at the time of receipt of such notice. |
| 6. | ADJUSTMENTS. |
| --- | --- |
| 6.1. | Adjustments<br> to Exercise Price and Number of Securities. The Exercise Price and the number of Units underlying the Purchase Option shall be<br> subject to adjustment from time to time as hereinafter set forth: |
|---|---|
| 6.1.1. | Stock Dividends - Split-Ups. If after the date hereof, and subject to the provisions of Section 6.3 below, the number of outstanding<br> Ordinary Shares is increased by a stock dividend payable in Ordinary Shares or by a split-up of Ordinary Shares or other similar<br> event, then, on the effective date thereof, the number of Ordinary Shares underlying each of the Units purchasable hereunder shall<br> be increased in proportion to such increase in outstanding shares. In such case, the number of Ordinary Shares, and the exercise<br> price applicable thereto, underlying the Warrants underlying each of the Units purchasable hereunder shall be adjusted in accordance<br> with the terms of the Warrants. |
| --- | --- |
| 6.1.2. | Aggregation of Shares. If after the date hereof, and subject to the provisions of Section 6.3, the number of outstanding Ordinary Shares<br> is decreased by a consolidation, combination or reclassification of Ordinary Shares or other similar event, then, on the effective<br> date thereof, the number of Ordinary Shares underlying each of the Units purchasable hereunder shall be decreased in proportion to<br> such decrease in outstanding shares and the Exercise Price shall be proportionately increased. In such case, the number of Ordinary<br> Shares, and the exercise price applicable thereto, underlying the Warrants underlying each of the Units purchasable hereunder shall<br> be adjusted in accordance with the terms of the Warrants. |
| 6.1.3. | Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the outstanding Ordinary Shares<br> other than a change covered by Section 6.1.1 or 6.1.2 hereof or that solely affects the par value of such Ordinary Shares, or in<br> the case of any merger or consolidation of the Company with or into another company (other than a consolidation or merger in which<br> the Company is the continuing entity and that does not result in any reclassification or reorganization of the outstanding Ordinary<br> Shares), or in the case of any sale or conveyance to another company or entity of the property of the Company as an entirety or substantially<br> as an entirety in connection with which the Company is dissolved, the Holder of this Purchase Option shall have the right thereafter<br> (until the expiration of the right of exercise of this Purchase Option) to receive upon the exercise hereof, for the same aggregate<br> Exercise Price payable hereunder immediately prior to such event, the kind and amount of shares or other securities or property (including<br> cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale<br> or transfer, by a Holder of the number of Ordinary Shares of the Company obtainable upon exercise of this Purchase Option and the<br> underlying Warrants immediately prior to such event; and if any reclassification also results in a change in Ordinary Shares covered<br> by Section 6.1.1 or 6.1.2, then such adjustment shall be made pursuant to Sections 6.1.1, 6.1.2 and this Section 6.1.3. The provisions<br> of this Section 6.1.3 shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or<br> other transfers. |
| --- | --- |
| 6.1.4. | Changes in Form of Purchase Option. This form of Purchase Option need not be changed because of any change pursuant to this Section,<br> and a Purchase Option issued after such change may state the same Exercise Price and the same number of Units as are stated in the<br> Purchase Option as initially issued. The acceptance by any Holder of the issuance of a new Purchase Option reflecting a required<br> or permissive change shall not be deemed to waive any rights to an adjustment occurring after the Commencement Date or the computation<br> thereof. |
| 6.2. | Substitute<br> Purchase Option. In case of any consolidation of the Company with, or merger of the Company with, or merger of the Company into,<br> another entity (other than a consolidation or merger which does not result in any reclassification or change of the outstanding Ordinary<br> Shares), the entity formed by such consolidation or merger shall execute and deliver to the Holder a supplemental Purchase Option<br> providing that the holder of each Purchase Option then outstanding or to be outstanding shall have the right thereafter (until the<br> stated expiration of such Purchase Option) to receive, upon exercise of such Purchase Option, the kind and amount of shares and other<br> securities and property receivable upon such consolidation or merger, by a holder of the number of Ordinary Shares of the Company<br> for which such Purchase Option might have been exercised immediately prior to such consolidation, merger, sale or transfer. Such<br> supplemental Purchase Option shall provide for adjustments which shall be identical to the adjustments provided in Section 6. The<br> above provision of this Section shall similarly apply to successive consolidations or mergers. |
| --- | --- |
| 6.3. | Elimination<br> of Fractional Interests. The Company shall not be required to issue certificates representing fractions of Ordinary Shares or<br> Warrants upon the exercise of the Purchase Option, nor shall it be required to issue scrip or pay cash in lieu of any fractional<br> interests, it being the intent of the parties that all fractional interests shall be eliminated by rounding any fraction up or down<br> to the nearest whole number of Warrants, Ordinary Shares or other securities, properties or rights. |
| 7. | RESERVATION AND LISTING. The Company shall at all times reserve and keep available out of its authorized but unissued Ordinary Shares, solely<br> for the purpose of issuance upon exercise of the Purchase Option (including the Ordinary Shares underlying the Rights) or the Warrants,<br> such number of Ordinary Shares or other securities, properties or rights as shall be issuable upon the exercise thereof. The Company<br> covenants and agrees that, upon exercise of the Purchase Option and payment of the Exercise Price therefor, all Ordinary Shares and<br> other securities issuable upon such exercise shall be duly and validly issued, fully paid and non-assessable and not subject to preemptive<br> rights of any shareholder. The Company further covenants and agrees that upon exercise of the Warrants underlying the Purchase Option<br> and payment of the respective Warrant exercise price therefor, all Ordinary Shares and other securities issuable upon such exercise<br> shall be duly and validly issued, fully paid and non-assessable and not subject to preemptive rights of any shareholders. As long<br> as the Purchase Option shall be outstanding, the Company shall use its best efforts to cause all (i) Units and Ordinary Shares issuable<br> upon exercise of the Purchase Option, (ii) Warrants issuable upon exercise of the Purchase Option, (iii) Ordinary Shares issuable<br> upon exercise of the Warrants included in the Units issuable upon exercise of the Purchase Option, (iv) Rights issuable upon exercise<br> of the Purchase Option and (v) Ordinary Shares underlying the Rights included in the Units issuable upon exercise of the Purchase<br> Option to be listed and/or quoted (subject to official notice of issuance) on all securities exchanges (or, if applicable, on the<br> OTC Bulletin Board or OTC Markets Group, Inc. or any successor trading market) on which the Ordinary Shares or the Public Warrants<br> may then be listed and/or quoted. |
| --- | --- |
| 8. | CERTAIN NOTICE REQUIREMENTS. |
| 8.1. | Holder’s<br> Right to Receive Notice. Nothing herein shall be construed as conferring upon the Holders the right to vote or consent as a shareholder<br> for the election of directors or any other matter, or as having any rights whatsoever as a shareholder of the Company. If, however,<br> at any time prior to the expiration of the Purchase Option and its exercise, any of the events described in Section 8.2 shall occur,<br> then, in each such event, the Company shall give written notice of such event at least fifteen days prior to the date fixed as a<br> record date or the date of closing the transfer books for the determination of the shareholders entitled to such dividend, distribution,<br> conversion or exchange of securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding<br> up or sale. Such notice shall specify such record date or the date of the closing of the transfer books, as the case may be. Notwithstanding<br> the foregoing, the Company shall deliver to each Holder a copy of each notice given to the other shareholders of the Company at the<br> same time and in the same manner that such notice is given to the shareholders. |
| --- | --- |
| 8.2. | Events<br> Requiring Notice. The Company shall be required to give the notice described in this Section 8 upon one or more of the following<br> events: (i) if the Company shall take a record of the holders of its Ordinary Shares for the purpose of entitling them to receive<br> a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of retained<br> earnings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company, or (ii) the Company<br> shall offer to all the holders of its Ordinary Shares any additional shares of capital stock of the Company or securities convertible<br> into or exchangeable for shares of capital stock of the Company, or any option, right or warrant to subscribe therefor, or (iii)<br> a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation or merger) or a sale of all<br> or substantially all of its property, assets and business shall be proposed. |
| 8.3. | Notice<br> of Change in Exercise Price. The Company shall, promptly after an event requiring a change in the Exercise Price pursuant to<br> Section 6 hereof, send notice to the Holders of such event and change (“Price Notice”). The Price Notice shall<br> describe the event causing the change and the method of calculating same and shall be certified as being true and accurate by the<br> Company’s Chief Executive Officer. |
| 8.4. | Transmittal<br> of Notices. All notices, requests, consents and other communications under this Purchase Option shall be in writing and shall<br> be deemed to have been duly made when hand delivered, or mailed by express mail or private courier service: (i) if to the registered<br> Holder of the Purchase Option, to the address of such Holder as shown on the books of the Company, or (ii) if to the Company, to<br> the following address or to such other address as the Company may designate by notice to the Holders: |
| --- | --- |
Joseph Lee
Chief Executive Officer
KAIROUS ACQUISITION CORP. LIMITED
Unit 9-3, Oval Tower @ Damansara,
No. 685, Jalan Damansara,
60000 Taman Tun Dr. Ismail,
Kuala Lumpur, Malaysia
Tel: +603 – 7733 9340
| 9. | MISCELLANEOUS. |
|---|---|
| 9.1. | Amendment.<br> The Company and Maxim, for as long as it is a Holder, may from time to time supplement or amend this Purchase Option without<br> the approval of any of the Holders in order to cure any ambiguity, to correct or supplement any provision contained herein that may<br> be defective or inconsistent with any other provisions herein, or to make any other provisions in regard to matters or questions<br> arising hereunder that the Company and Maxim may deem necessary or desirable and that the Company and Maxim deem shall not adversely<br> affect the interest of the Holders. All other modifications or amendments shall require the written consent of and be signed by the<br> party against whom enforcement of the modification or amendment is sought. |
| --- | --- |
| 9.2. | Headings.<br> The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect<br> the meaning or interpretation of any of the terms or provisions of this Purchase Option. |
| 9.3. | Entire<br> Agreement. This Purchase Option (together with the other agreements and documents being delivered pursuant to or in connection<br> with this Purchase Option) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof, and<br> supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof. |
| 9.4. | Binding<br> Effect. This Purchase Option shall inure solely to the benefit of and shall be binding upon the Holder and the Company and their<br> permitted assignees, respective successors, legal representative and assigns, and no other person shall have or be construed to have<br> any legal or equitable right, remedy or claim under or in respect of or by virtue of this Purchase Option or any provisions herein<br> contained. |
| 9.5. | Governing<br> Law; Submission to Jurisdiction. This Purchase Option shall be governed by and construed and enforced in accordance with the<br> internal laws of the State of New York, without giving effect to conflict of laws principles thereof. Each of the Holder and the<br> Company hereby agrees that any action, proceeding or claim against it arising out of, or relating in any way to this Purchase Option<br> shall be brought and enforced in the New York Supreme Court, County of New York, or in the United States District Court for the Southern<br> District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each of the Holder and<br> the Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any<br> process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or certified mail, return<br> receipt requested, postage prepaid, addressed to it at the address set forth in Section 8.4 hereof. Such mailing shall be deemed<br> personal service and shall be legal and binding upon the Company in any action, proceeding or claim. The Company and the Holder agree<br> that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies) all of its reasonable attorneys’<br> fees and expenses relating to such action or proceeding and/or incurred in connection with the preparation therefore. |
| 9.6. | Waiver,<br> Etc. The failure of the Company or the Holder to at any time enforce any of the provisions of this Purchase Option shall not<br> be deemed or construed to be a waiver of any such provision, nor to in any way affect the validity of this Purchase Option or any<br> provision hereof or the right of the Company or any Holder to thereafter enforce each and every provision of this Purchase Option.<br> No waiver of any breach, non-compliance or non-fulfillment of any of the provisions of this Purchase Option shall be effective unless<br> set forth in a written instrument executed by the party or parties against whom or which enforcement of such waiver is sought; and<br> no waiver of any such breach, non-compliance or non- fulfillment shall be construed or deemed to be a waiver of any other or subsequent<br> breach or non-compliance. |
| --- | --- |
| 9.7. | Execution<br> in Counterparts. This Purchase Option may be executed in one or more counterparts, and by the different parties hereto in separate<br> counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same<br> agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered to<br> each of the other parties hereto. |
| 9.8. | Exchange<br> Agreement. As a condition of the Holder’s receipt and acceptance of this Purchase Option, Holder agrees that, at any time<br> prior to the complete exercise of this Purchase Option by Holder, if the Company and Maxim enter into an agreement (“Exchange Agreement”) pursuant to which they agree that all outstanding Purchase Options will be exchanged for securities or cash<br> or a combination of both, then Holder shall agree to such exchange and become a party to the Exchange Agreement. |
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Company has caused this Purchase Option to be signed by its duly authorized officer as of the 16th day of December, 2021.
| KAIROUS ACQUISITION CORP. LIMITED | |
|---|---|
| By: | /s/ Joseph Moh Hon Lee |
| Name: | Joseph<br> Moh Hon Lee |
| Title: | Chief<br> Executive Officer |
Form to be used to exercise Purchase Option
Joseph Lee
Chief Executive Officer
Unit 9-3, Oval Tower @ Damansara,
No. 685, Jalan Damansara,
60000 Taman Tun Dr. Ismail,
Kuala Lumpur, Malaysia
Tel: +603 – 7733 9340
Date: [●], 20__
The undersigned hereby elects irrevocably to exercise all or a portion of the within Purchase Option and to purchase ____ Units of Kairous Acquisition Corp. Limited and hereby makes payment of $____________ (at the rate of $_________ per Unit) in payment of the Exercise Price pursuant thereto. Please issue the securities as to which this Purchase Option is exercised in accordance with the instructions given below.
Or
The undersigned hereby elects irrevocably to convert its right to purchase _________ Units purchasable under the within Purchase Option by surrender of the unexercised portion of the attached Purchase Option (with a “Value” based of $_______ based on a “Market Price” of $_______). Please issue the securities comprising the Units as to which this Purchase Option is exercised in accordance with the instructions given below.
________________________
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the purchase option in every particular, without alteration or enlargement or any change whatever
Signature(s) Guaranteed:
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15).
INSTRUCTIONS FOR REGISTRATION OF SECURITIES
| Name |
|---|
| (Print in Block Letters) |
| Address |
Form to be used to assign Purchase Option:
ASSIGNMENT
(To be executed by the registered Holder to effect a transfer of the within Purchase Option):
FOR VALUE RECEIVED,______________________________________________ does hereby sell, assign and transfer unto___________________________________________ the right to purchase __________ Units of Kairous Acquisition Corp. Limited (“Company”) evidenced by the within Purchase Option and does hereby authorize the Company to transfer such right on the books of the Company.
| Dated: | ___________________,<br> 20__ | |
|---|---|---|
| Signature |
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the purchase option in every particular, without alteration or enlargement or any change whatever.
Signature(s) Guaranteed:
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15).
Exhibit10.1
December 13, 2021
Kairous Acquisition Corp. Limited
Unit 9-3, Oval Tower @ Damansara,
No. 685, Jalan Damansara,
60000 Taman Tun Dr. Ismail,
Kuala Lumpur, Malaysia
Maxim Group LLC
405 Lexington Ave.
New York, NY 10174
Re: Initial Public Offering
Ladies and Gentlemen:
This letter is being delivered to you in accordance with the Underwriting Agreement (the “Underwriting Agreement”) entered into by and between Kairous Acquisition Corp. Limited, a Cayman Islands company (the “Company”), and Maxim Group LLC, as Representative (the “Representative”) of the several underwriters named on Schedule A thereto (the “Underwriters”), relating to an underwritten initial public offering (the “IPO”) of the Company’s units (the “Units”), each comprised of one ordinary share of the Company, par value $0.0001 per share (the “Ordinary Shares”), one-half (1/2) of one redeemable warrant, each whole warrant entitling its holder to purchase one Ordinary Share at an exercise price of $11.50 per full share (the “Warrants”), and one right to receive one-tenth (1/10) of one Ordinary Share (the “Rights”). Certain capitalized terms used herein are defined in paragraph 13 hereof.
In order to induce the Company and the Underwriters to enter into the Underwriting Agreement and to proceed with the IPO, and in recognition of the benefit that such IPO will confer upon the undersigned as a shareholder of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees with the Company as follows:
1. If the Company solicits approval of its shareholders of a Business Combination, the undersigned will vote all Ordinary Shares beneficially owned by him, her or it, whether acquired before, in or after the IPO, in favor of such Business Combination.
2. (a) Unless the Company’s shareholders are previously given the option to redeem their shares in connection with amending applicable documents to extend the time that the Company has to complete a Business Combination and that the Company fails to consummate a Business Combination within 12 months (or, in the event that the Company extended the period of time to consummate a business combination by an additional three months, within 21 months) from the closing of the Company’s IPO from the closing of the Company’s IPO, the undersigned shall take all reasonable steps to (i) cause the Trust Fund to be liquidated and distributed to the holders of the IPO Shares and (ii) cause the Company to liquidate as soon as reasonably practicable.
(b) The undersigned hereby waives any and all right, title, interest or claim of any kind in or to any distribution of the Trust Fund and any remaining net assets of the Company as a result of such liquidation with respect to his, her or its Insider Shares (“Claim”) and hereby waives any Claim the undersigned may have in the future as a result of, or arising out of, any contracts or agreements with the Company and will not seek recourse against the Trust Fund for any reason whatsoever.
3. The undersigned will escrow all of his, her or its Insider Shares pursuant to the terms of a Stock Escrow Agreement, which the Company will enter into with the undersigned and an escrow agent acceptable to the Company.
4. In order to minimize potential conflicts of interest which may arise from multiple affiliations, the undersigned agrees to present to the Company for its consideration, prior to presentation to any other person or entity, any suitable opportunity to acquire a target business, until the earlier of the consummation by the Company of a Business Combination or the liquidation of the Company, subject to any pre-existing fiduciary and contractual obligations the undersigned might have.
5. The undersigned acknowledges and agrees that prior to entering into a Business Combination with a target business that is affiliated with any Insiders of the Company or their affiliates, including any company that is a portfolio company of, or otherwise affiliated with, or has received financial investment from, an entity with which any Insider or their affiliates is affiliated, such transaction must be approved by a majority of the Company’s disinterested independent directors and the Company must obtain an opinion from an independent investment banking firm that such Business Combination is fair to the Company’s unaffiliated shareholders from a financial point of view.
6. Neither the undersigned, any member of the family of the undersigned, nor any affiliate of the undersigned will be entitled to receive and will not accept any compensation or other cash payment prior to, or for services rendered in connection with, the consummation of the Business Combination; provided that the Company shall be allowed to repay working capital loans made by the undersigned to the Company in cash upon consummation of the Business Combination. Notwithstanding the foregoing, the undersigned and any affiliate of the undersigned shall be entitled to reimbursement from the Company for their out-of-pocket expenses incurred in connection with identifying, investigating and consummating a Business Combination.
7. Neither the undersigned, any member of the family of the undersigned, nor any affiliate of the undersigned will be entitled to receive or accept a finder’s fee or any other compensation in the event the undersigned, any member of the family of the undersigned or any affiliate of the undersigned originates a Business Combination.
8. The undersigned agrees to be a director/officer of the Company until the earlier of the consummation by the Company of a Business Combination or the liquidation of the Company. The undersigned’s biographical information previously furnished to the Company and the Representative is true and accurate in all material respects, does not omit any material information with respect to the undersigned’s biography and contains all of the information required to be disclosed pursuant to Item 401 of Regulation S-K, promulgated under the Securities Act of 1933. The undersigned’s FINRA Questionnaire previously furnished to the Company and the Representative is true and accurate in all material respects. The undersigned represents and warrants that:
| (a) | He,<br> she or it has never had a petition under the federal bankruptcy laws or any state insolvency<br> law been filed by or against (i) him, her or it, or any partnership in which he or she was<br> a general partner at or within two years before the time of filing; or (ii) any corporation<br> or business association of which he or she was an executive officer at or within two years<br> before the time of such filing; |
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| --- | | (b) | He,<br> she or it has never had a receiver, fiscal agent or similar officer been appointed by a court<br> for his business or property, or any such partnership; | | --- | --- | | (c) | He,<br> she or it has never been convicted of fraud in a civil or criminal proceeding; | | (d) | He,<br> she or it has never been convicted in a criminal proceeding or named the subject of a pending<br> criminal proceeding (excluding traffic violations and minor offenses); | | (e) | He,<br> she or it has never been the subject of any order, judgment or decree, not subsequently reversed,<br> suspended or vacated, of any court of competent jurisdiction, permanently or temporarily<br> enjoining or otherwise limiting him, her or it from (i) acting as a futures commission merchant,<br> introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage<br> transaction merchant, any other person regulated by the Commodity Futures Trading Commission<br> (“CFTC”) or an associated person of any of the foregoing, or as an investment<br> adviser, underwriter, broker or dealer in securities, or as an affiliated person, director<br> or employee of any investment company, bank, savings and loan association or insurance company,<br> or from engaging in or continuing any conduct or practice in connection with any such activity;<br> or (ii) engaging in any type of business practice; or (iii) engaging in any activity in connection<br> with the purchase or sale of any security or commodity or in connection with any violation<br> of federal or state securities or federal commodities laws; | | (f) | He,<br> she, or it has never been the subject of any order, judgment or decree, not subsequently<br> reversed, suspended or vacated, of any federal or state authority barring, suspending or<br> otherwise limiting for more than 60 days his, her or its right to engage in any activity<br> described in 10(e)(i) above, or to be associated with persons engaged in any such activity; | | --- | --- | | (g) | He,<br> she, or it has never been found by a court of competent jurisdiction in a civil action or<br> by the SEC to have violated any federal or state securities law, where the judgment in such<br> civil action or finding by the SEC has not been subsequently reversed, suspended or vacated; |
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| --- | | (h) | He,<br> she, or it has never been found by a court of competent jurisdiction in a civil action or<br> by the CFTC to have violated any federal commodities law, where the judgment in such civil<br> action or finding by the CFTC has not been subsequently reversed, suspended or vacated; | | --- | --- | | (i) | He,<br> she, or it has never been the subject of, or a party to, any Federal, State or foreign judicial<br> or administrative order, judgment, decree or finding, not subsequently reversed, suspended<br> or vacated, relating to an alleged violation of (i) any Federal, State or foreign securities<br> or commodities law or regulation, (ii) any law or regulation respecting financial institutions<br> or insurance companies including, but not limited to, a temporary or permanent injunction,<br> order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and<br> desist order, or removal or prohibition order or (iii) any law or regulation prohibiting<br> mail or wire fraud or fraud in connection with any business entity; | | (j) | He,<br> she or it has never been the subject of, or party to, any sanction or order, not subsequently<br> reversed, suspended or vacated, or any self-regulatory organization, any registered entity,<br> or any equivalent exchange, association, entity or organization that has disciplinary authority<br> over its members or persons associated with a member; | | (k) | He,<br> she or it has never been convicted of any felony or misdemeanor: (i) in connection with the<br> purchase or sale of any security; (ii) involving the making of any false filing with the<br> SEC; or (iii) arising out of the conduct of the business of an underwriter, broker, dealer,<br> municipal securities dealer, investment advisor or paid solicitor of purchasers of securities; | | (l) | He,<br> she or it was never subject to a final order of a state or foreign securities commission<br> (or an agency of officer of a state performing like functions); a state or foreign authority<br> that supervises or examines banks, savings associations, or credit unions; a state or foreign<br> insurance commission (or an agency or officer of a state performing like functions); an appropriate<br> federal or foreign banking agency; the CFTC; or the National Credit Union Administration<br> that is based on a violation of any law or regulation that prohibits fraudulent, manipulative,<br> or deceptive conduct; | | (m) | He,<br> she or it has never been subject to any order, judgment or decree of any court of competent<br> jurisdiction, that, at the time of the sale of the Units, restrained or enjoined him, her<br> or it from engaging or continuing to engage in any conduct or practice: (i) in connection<br> with the purchase or sale of any security; (ii) involving the making of any false filing<br> with the SEC or any foreign regulatory agency with similar functions; or (iii) arising out<br> of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer,<br> investment adviser or paid solicitor of purchasers of securities; |
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| --- | | (n) | He,<br> she or it has never been subject to any order of the SEC or any foreign regulatory agency<br> with similar functions that orders him, her or it to cease and desist from committing or<br> causing a future violation of: (i) any scienter-based anti-fraud provision of the federal<br> securities laws, including, but not limited to, Section 17(a)(1) of the Securities Act, Section<br> 10(b) of the Exchange Act and Rule 10b-5 thereunder, Section 15(c) and Section 206(1) of<br> the Advisers Act or any other rule or regulation thereunder; or (ii) Section 5 of the Securities<br> Act; | | --- | --- | | (o) | He,<br> she or it has never filed (as a registrant or issuer), or been named as an underwriter in<br> any registration statement or Regulation A offering statement filed with the SEC that was<br> the subject of a refusal order, stop order, or order suspending the Regulation A exemption,<br> or is, currently, the subject of an investigation or proceeding to determine whether a stop<br> order or suspension order should be issued; | | (p) | He,<br> she or it has never been subject to a United States Postal Service false representation order,<br> or is currently subject to a temporary restraining order or preliminary injunction with respect<br> to conduct alleged by the United States Postal Service to constitute a scheme or device for<br> obtaining money or property through the mail by means of false representations; | | (q) | He,<br> she or it is not subject to a final order of a state securities commission (or an agency<br> of officer of a state performing like functions); a state authority that supervises or examines<br> banks, savings associations, or credit unions; a state insurance commission (or an agency<br> or officer of a state performing like functions); an appropriate federal banking agency;<br> the CFTC; or the National Credit Union Administration that bars the undersigned from: (i)<br> association with an entity regulated by such commission, authority, agency or officer; (ii)<br> engaging in the business of securities, insurance or banking; or (iii) engaging in savings<br> association or credit union activities; | | (r) | He,<br> she or it is not subject to an order of the SEC entered pursuant to section 15(b) or 15B(c)<br> of the Securities Exchange Act of 1934 (the “Exchange Act”) or section 203(e)<br> or 203(f) of the Investment Advisers Act of 1940 (the “Advisers Act”) that: (i)<br> suspends or revokes the undersigned’s registration as a broker, dealer, municipal securities<br> dealer or investment adviser; (ii) places limitations on the activities, functions or operations<br> of, or imposes civil money penalties on, such person; or (iii) bars the undersigned from<br> being associated with any entity or from participating in the offering of any penny stock;<br> and |
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| --- | | (s) | He,<br> she or it has never been suspended or expelled from membership in, or suspended or barred<br> from association with a member of, a securities self-regulatory organization (e.g., a registered<br> national securities exchange or a registered national or affiliated securities association)<br> for any act or omission to act constituting conduct inconsistent with just and equitable<br> principles of trade. | | --- | --- |
9. The undersigned has full right and power, without violating any agreement by which he, she or it is bound, to enter into this letter agreement and to serve as a Director and/or officer of the Company.
10. The undersigned hereby waives his, her or its right to exercise redemption rights with respect to any Ordinary Shares owned or to be owned by the undersigned, directly or indirectly (or to sell such shares to the Company in a tender offer), whether purchased by the undersigned prior to the IPO, in the IPO or in the aftermarket, and agrees that he, she or it will not seek redemption with respect to or otherwise sell, such shares in connection with any vote to approve a Business Combination with respect thereto, a vote to amend the provisions of the Company’s Amended and Restated Memorandum and Articles of Association, or a tender offer by the Company prior to a Business Combination.
11. The undersigned hereby agrees to not propose, or vote in favor of, an amendment to the Company’s Amended and Restated Memorandum and Articles of Association with respect to the Company’s pre-Business Combination activities prior to the consummation of a Business Combination unless the Company offers holders of IPO Shares the right to receive their pro rata portion of the funds then held in the Trust Fund.
12. In connection with Section 5-1401 of the General Obligations Law of the State of New York, this letter agreement shall be governed by, and construed in accordance with, the laws of the State of New York without regard to principles of conflicts of law that would result in the application of the substantive law of another jurisdiction. The parties hereto agree that any action, proceeding or claim arising out of or relating in any way to this letter agreement shall be resolved through final and binding arbitration in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration shall be brought before the AAA International Center for Dispute Resolution’s offices in New York City, New York, will be conducted in English and will be decided by a panel of three arbitrators selected from the AAA Commercial Disputes Panel and that the arbitrator panel’s decision shall be final and enforceable by any court having jurisdiction over the party from whom enforcement is sought. The cost of such arbitrators and arbitration services, together with the prevailing party’s legal fees and expenses, shall be borne by the non-prevailing party or as otherwise directed by the arbitrators.
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13. As used herein, (i) a “Business Combination” shall mean a merger, share exchange, asset acquisition, contractual arrangement, share purchase, recapitalization, reorganization or other similar business combination with one or more businesses or entities; (ii) “Insiders” shall mean all officers, directors and shareholders of the Company immediately prior to the IPO; (iii) “Insider Shares” shall mean all of the Ordinary Shares of the Company acquired by an Insider prior to the IPO and any Ordinary Shares underlying the Private Units; (iv) “IPO Shares” shall mean the Ordinary Shares issued in the Company’s IPO; (v) “Registration Statement” means the registration statement on Form S-1 filed by the Company with respect to the IPO; and (vi) “Trust Fund” shall mean the trust fund into which a portion of the net proceeds of the Company’s IPO will be deposited.
14. Any notice, consent or request to be given in connection with any of the terms or provisions of this letter agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery, by electronic mail or by facsimile transmission.
If to the Representative:
Maxim Group LLC
405 Lexington Ave
New York, NY 10174
Attn: Alex Jin
Email: ajin@maximgrp.com
with a copy (which copy shall not constitute notice) to:
Hunter Taubman Fischer & Li LLC
800 Third Avenue
Suite 2800
New York, New York 10022
Attn: Guillaume de Sampigny, Esq.
E-mail: gdesampigny@htflawyers.com
If to the Company:
Kairous Acquisition Corporation
Unit 9-3, Oval Tower @ Damansara,
No. 685, Jalan Damansara,
60000 Taman Tun Dr. Ismail,
Kuala Lumpur, Malaysia
Attn: Joseph Lee, Chief Executive Officer
Email: joseph@kairous.com
with a copy (which copy shall not constitute notice) to:
Loeb & Loeb LLP
345 Park Avenue
New York, NY 10154
Attn: Lawrence Venick, Esq.
Email: lvenick@loeb.com
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15. No party hereto may assign either this letter agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other party. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This letter agreement shall be binding on the parties hereto and any successors and assigns thereof.
16. This Letter Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Letter Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by all parties hereto.
17. The undersigned acknowledges and understands that the Underwriters and the Company will rely upon the agreements, representations and warranties set forth herein in proceeding with the IPO. Nothing contained herein shall be deemed to render the Underwriters a representative of, or a fiduciary with respect to, the Company, its shareholders or any creditor or vendor of the Company with respect to the subject matter hereof.
[Signaturepages follow]
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| Joseph<br> Lee Moh Hon |
| /s/ Philip Wong Cheung Wang |
| Philip<br> Wong Cheung Wang |
| /s/ Steve Hsia Hsien-Chieng |
| Steve<br> Hsia Hsien-Chieng |
| /s/ Ng Kim Kiat |
| Ng<br> Kim Kiat |
| /s/ Dato’ Seri Chee Hong Leong |
| Dato’<br> Seri Chee Hong Leong |
| /s/ Ang Siak Keng |
| Ang<br> Siak Keng |
Exhibit10.2
December 13, 2021
Kairous Acquisition Corp. Limited
Unit 9-3, Oval Tower @ Damansara,
No. 685, Jalan Damansara,
60000 Taman Tun Dr. Ismail,
Kuala Lumpur, Malaysia
Maxim Group LLC
405 Lexington Ave.
New York, NY 10174
| Re: | Initial Public Offering |
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Ladies and Gentlemen:
This letter is being delivered to you in accordance with the Underwriting Agreement (the “Underwriting Agreement”) entered into by and between Kairous Acquisition Corp. Limited, a Cayman Islands company (the “Company”), and Maxim Group LLC, as Representative (the “Representative”) of the several underwriters named on Schedule A thereto (the “Underwriters”), relating to an underwritten initial public offering (the “IPO”) of the Company’s units (the “Units”), each comprised of one ordinary share of the Company, par value $0.0001 per share (the “Ordinary Shares”), one-half (1/2) of one redeemable warrant, each whole warrant entitling its holder to purchase one Ordinary Share at an exercise price of $11.50 per full share (the “Warrants”), and one right to receive one-tenth (1/10) of one Ordinary Share (the “Rights”). Certain capitalized terms used herein are defined in paragraph 14 hereof.
In order to induce the Company and the Underwriters to enter into the Underwriting Agreement and to proceed with the IPO, and in recognition of the benefit that such IPO will confer upon the undersigned as a shareholder of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agrees with the Company as follows:
1. If the Company solicits approval of its shareholders of a Business Combination, the undersigned will vote all Ordinary Shares beneficially owned by him, her or it, whether acquired before, in or after the IPO, in favor of such Business Combination.
2. (a) Unless the Company’s shareholders are previously given the option to redeem their shares in connection with amending applicable documents to extend the time that the Company has to complete a Business Combination and that the Company fails to consummate a Business Combination within 12 months (or, in the event that the Company extended the period of time to consummate a business combination by an additional three months, within 21 months) from the closing of the Company’s IPO from the closing of the Company’s IPO, the undersigned shall take all reasonable steps to (i) cause the Trust Fund to be liquidated and distributed to the holders of the IPO Shares and (ii) cause the Company to liquidate as soon as reasonably practicable.
(b) The undersigned hereby waives any and all right, title, interest or claim of any kind in or to any distribution of the Trust Fund and any remaining net assets of the Company as a result of such liquidation with respect to his, her or its Insider Shares including any shares underlying the Private Units (“Claim”) and hereby waives any Claim the undersigned may have in the future as a result of, or arising out of, any contracts or agreements with the Company and will not seek recourse against the Trust Fund for any reason whatsoever. The undersigned acknowledges and agrees that there will be no distribution from the Trust Fund with respect to any Warrants or Rights underlying the Private Units, all of which will terminate on the Company’s liquidation.
(c) In the event of the liquidation of the Trust Fund, the undersigned agrees to indemnify and hold harmless the Company against any and all loss, liability, claims, damage and expense whatsoever (including, but not limited to, any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, whether pending or threatened, or any claim whatsoever) which the Company may become subject as a result of any claim by any vendor or other person who is owed money by the Company for services rendered or products sold or contracted for, but only to the extent necessary to ensure that such loss, liability, claim, damage or expense does not reduce the amount of funds in the Trust Fund; provided, that such indemnity shall not apply if such vendor or other person has executed an agreement waiving any claims against the Trust Fund.
3. In the event that the Company does not consummate a Business Combination and must liquidate and its remaining net assets are insufficient to complete such liquidation, the undersigned agrees to advance such funds necessary to complete such liquidation and agrees not to seek recourse for such expenses.
4. The undersigned will escrow all of his, her or its Insider Shares pursuant to the terms of a Stock Escrow Agreement, which the Company will enter into with the undersigned and an escrow agent acceptable to the Company.
5. The undersigned agrees that until the Company consummates a Business Combination, the undersigned’s Private Units will be subject to the transfer restrictions described in the Subscription Agreement relating to the undersigned’s Private Units.
6. In order to minimize potential conflicts of interest which may arise from multiple affiliations, the undersigned agrees to present to the Company for its consideration, prior to presentation to any other person or entity, any suitable opportunity to acquire a target business, until the earlier of the consummation by the Company of a Business Combination or the liquidation of the Company, subject to any pre-existing fiduciary and contractual obligations the undersigned might have.
7. The undersigned acknowledges and agrees that prior to entering into a Business Combination with a target business that is affiliated with any Insiders of the Company or their affiliates, including any company that is a portfolio company of, or otherwise affiliated with, or has received financial investment from, an entity with which any Insider or their affiliates is affiliated, such transaction must be approved by a majority of the Company’s disinterested independent directors and the Company must obtain an opinion from an independent investment banking firm that such Business Combination is fair to the Company’s unaffiliated shareholders from a financial point of view.
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8. Neither the undersigned, any member of the family of the undersigned, nor any affiliate of the undersigned will be entitled to receive and will not accept any compensation or other cash payment prior to, or for services rendered in connection with, the consummation of the Business Combination; provided that the Company shall be allowed to repay working capital loans made by the undersigned to the Company in cash upon consummation of the Business Combination. Notwithstanding the foregoing, the undersigned and any affiliate of the undersigned shall be entitled to reimbursement from the Company for their out-of-pocket expenses incurred in connection with identifying, investigating and consummating a Business Combination.
9. Neither the undersigned, any member of the family of the undersigned, nor any affiliate of the undersigned will be entitled to receive or accept a finder’s fee or any other compensation in the event the undersigned, any member of the family of the undersigned or any affiliate of the undersigned originates a Business Combination.
10. The undersigned’s FINRA Questionnaire previously furnished to the Company and the Representative is true and accurate in all material respects. The undersigned represents and warrants that:
| (a) | He,<br> she or it has never had a petition under the federal bankruptcy laws or any state insolvency law been filed by or against (i) him,<br> her or it, or any partnership in which he or she was a general partner at or within two years before the time of filing; or (ii)<br> any corporation or business association of which he or she was an executive officer at or within two years before the time of such<br> filing; |
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| (b) | He,<br> she or it has never had a receiver, fiscal agent or similar officer been appointed by a court for his business or property, or any<br> such partnership; |
| (c) | He,<br> she or it has never been convicted of fraud in a civil or criminal proceeding; |
| (d) | He,<br> she or it has never been convicted in a criminal proceeding or named the subject of a pending criminal proceeding (excluding traffic<br> violations and minor offenses); |
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| --- | | (e) | He,<br> she or it has never been the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any court<br> of competent jurisdiction, permanently or temporarily enjoining or otherwise limiting him, her or it from (i) acting as a futures<br> commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant,<br> any other person regulated by the Commodity Futures Trading Commission (“CFTC”) or an associated person of any of the<br> foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee<br> of any investment company, bank, savings and loan association or insurance company, or from engaging in or continuing any conduct<br> or practice in connection with any such activity; or (ii) engaging in any type of business practice; or (iii) engaging in any activity<br> in connection with the purchase or sale of any security or commodity or in connection with any violation of federal or state securities<br> or federal commodities laws; | | --- | --- | | (f) | He,<br> she, or it has never been the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any federal<br> or state authority barring, suspending or otherwise limiting for more than 60 days his, her or its right to engage in any activity<br> described in 10(e)(i) above, or to be associated with persons engaged in any such activity; | | (g) | He,<br> she, or it has never been found by a court of competent jurisdiction in a civil action or by the SEC to have violated any federal<br> or state securities law, where the judgment in such civil action or finding by the SEC has not been subsequently reversed, suspended<br> or vacated; | | (h) | He,<br> she, or it has never been found by a court of competent jurisdiction in a civil action or by the CFTC to have violated any federal<br> commodities law, where the judgment in such civil action or finding by the CFTC has not been subsequently reversed, suspended or<br> vacated; | | (i) | He,<br> she, or it has never been the subject of, or a party to, any Federal, State or foreign judicial or administrative order, judgment,<br> decree or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of (i) any Federal, State or<br> foreign securities or commodities law or regulation, (ii) any law or regulation respecting financial institutions or insurance companies<br> including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or<br> temporary or permanent cease-and desist order, or removal or prohibition order or (iii) any law or regulation prohibiting mail or<br> wire fraud or fraud in connection with any business entity; | | (j) | He,<br> she or it has never been the subject of, or party to, any sanction or order, not subsequently reversed, suspended or vacated, or<br> any self-regulatory organization, any registered entity, or any equivalent exchange, association, entity or organization that has<br> disciplinary authority over its members or persons associated with a member; | | (k) | He,<br> she or it has never been convicted of any felony or misdemeanor: (i) in connection with the purchase or sale of any security; (ii)<br> involving the making of any false filing with the SEC; or (iii) arising out of the conduct of the business of an underwriter, broker,<br> dealer, municipal securities dealer, investment advisor or paid solicitor of purchasers of securities; | | --- | --- |
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| --- | | (l) | He,<br> she or it was never subject to a final order of a state or foreign securities commission (or an agency of officer of a state performing<br> like functions); a state or foreign authority that supervises or examines banks, savings associations, or credit unions; a state<br> or foreign insurance commission (or an agency or officer of a state performing like functions); an appropriate federal or foreign<br> banking agency; the CFTC; or the National Credit Union Administration that is based on a violation of any law or regulation that<br> prohibits fraudulent, manipulative, or deceptive conduct; | | --- | --- | | (m) | He,<br> she or it has never been subject to any order, judgment or decree of any court of competent jurisdiction, that, at the time of the<br> sale of the Units, restrained or enjoined him, her or it from engaging or continuing to engage in any conduct or practice: (i) in<br> connection with the purchase or sale of any security; (ii) involving the making of any false filing with the SEC or any foreign regulatory<br> agency with similar functions; or (iii) arising out of the conduct of the business of an underwriter, broker, dealer, municipal securities<br> dealer, investment adviser or paid solicitor of purchasers of securities; | | (n) | He,<br> she or it has never been subject to any order of the SEC or any foreign regulatory agency with similar functions that orders him,<br> her or it to cease and desist from committing or causing a future violation of: (i) any scienter-based anti-fraud provision of the<br> federal securities laws, including, but not limited to, Section 17(a)(1) of the Securities Act, Section 10(b) of the Exchange Act<br> and Rule 10b-5 thereunder, Section 15(c) and Section 206(1) of the Advisers Act or any other rule or regulation thereunder; or (ii)<br> Section 5 of the Securities Act; | | (o) | He,<br> she or it has never filed (as a registrant or issuer), or been named as an underwriter in any registration statement or Regulation<br> A offering statement filed with the SEC that was the subject of a refusal order, stop order, or order suspending the Regulation A<br> exemption, or is, currently, the subject of an investigation or proceeding to determine whether a stop order or suspension order<br> should be issued; | | (p) | He,<br> she or it has never been subject to a United States Postal Service false representation order, or is currently subject to a temporary<br> restraining order or preliminary injunction with respect to conduct alleged by the United States Postal Service to constitute a scheme<br> or device for obtaining money or property through the mail by means of false representations; |
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| --- | | (q) | He,<br> she or it is not subject to a final order of a state securities commission (or an agency of officer of a state performing like functions);<br> a state authority that supervises or examines banks, savings associations, or credit unions; a state insurance commission (or an<br> agency or officer of a state performing like functions); an appropriate federal banking agency; the CFTC; or the National Credit<br> Union Administration that bars the undersigned from: (i) association with an entity regulated by such commission, authority, agency<br> or officer; (ii) engaging in the business of securities, insurance or banking; or (iii) engaging in savings association or credit<br> union activities; | | --- | --- | | (r) | He,<br> she or it is not subject to an order of the SEC entered pursuant to section 15(b) or 15B(c) of the Securities Exchange Act of 1934<br> (the “Exchange Act”) or section 203(e) or 203(f) of the Investment Advisers Act of 1940 (the “Advisers Act”)<br> that: (i) suspends or revokes the undersigned’s registration as a broker, dealer, municipal securities dealer or investment<br> adviser; (ii) places limitations on the activities, functions or operations of, or imposes civil money penalties on, such person;<br> or (iii) bars the undersigned from being associated with any entity or from participating in the offering of any penny stock; and | | (s) | He,<br> she or it has never been suspended or expelled from membership in, or suspended or barred from association with a member of, a securities<br> self-regulatory organization (e.g., a registered national securities exchange or a registered national or affiliated securities association)<br> for any act or omission to act constituting conduct inconsistent with just and equitable principles of trade. |
11. The undersigned hereby waives his, her or its right to exercise redemption rights with respect to any Ordinary Shares owned or to be owned by the undersigned, directly or indirectly (or to sell such shares to the Company in a tender offer), whether purchased by the undersigned prior to the IPO, in the IPO or in the aftermarket, and agrees that he, she or it will not seek redemption with respect to or otherwise sell, such shares in connection with any vote to approve a Business Combination with respect thereto, a vote to amend the provisions of the Company’s Amended and Restated Memorandum and Articles of Association, or a tender offer by the Company prior to a Business Combination.
12. The undersigned hereby agrees to not propose, or vote in favor of, an amendment to the Company’s Amended and Restated Memorandum and Articles of Association with respect to the Company’s pre-Business Combination activities prior to the consummation of a Business Combination unless the Company offers holders of IPO Shares the right to receive their pro rata portion of the funds then held in the Trust Fund.
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13. In connection with Section 5-1401 of the General Obligations Law of the State of New York, this letter agreement shall be governed by, and construed in accordance with, the laws of the State of New York without regard to principles of conflicts of law that would result in the application of the substantive law of another jurisdiction. The parties hereto agree that any action, proceeding or claim arising out of or relating in any way to this letter agreement shall be resolved through final and binding arbitration in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration shall be brought before the AAA International Center for Dispute Resolution’s offices in New York City, New York, will be conducted in English and will be decided by a panel of three arbitrators selected from the AAA Commercial Disputes Panel and that the arbitrator panel’s decision shall be final and enforceable by any court having jurisdiction over the party from whom enforcement is sought. The cost of such arbitrators and arbitration services, together with the prevailing party’s legal fees and expenses, shall be borne by the non-prevailing party or as otherwise directed by the arbitrators.
14. As used herein, (i) a “Business Combination” shall mean a merger, share exchange, asset acquisition, contractual arrangement, share purchase, recapitalization, reorganization or other similar business combination with one or more businesses or entities; (ii) “Insiders” shall mean all officers, directors and shareholders of the Company immediately prior to the IPO; (iii) “Insider Shares” shall mean all of the Ordinary Shares of the Company acquired by an Insider prior to the IPO and any Ordinary Shares underlying the Private Units; (iv) “IPO Shares” shall mean the Ordinary Shares issued in the Company’s IPO; (v) [“PrivateUnits” shall mean (x) the Units purchased in the private placement taking place simultaneously with the consummation of the Company’s IPO and (y) the additional Units that may be purchased in connection with the exercise of the over-allotment option by the underwriters in the IPO as described in the Registration Statement;]^1^(vi) “Registration Statement” means the registration statement on Form S-1 filed by the Company with respect to the IPO; and (vii) “Trust Fund” shall mean the trust fund into which a portion of the net proceeds of the Company’s IPO will be deposited.
15. Any notice, consent or request to be given in connection with any of the terms or provisions of this letter agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery, by electronic mail or by facsimile transmission.
If to the Representative:
Maxim Group LLC
405 Lexington Ave
New York, NY 10174
Attn: Alex Jin
Email: ajin@maximgrp.com
with a copy (which copy shall not constitute notice) to:
Hunter Taubman Fischer & Li LLC
800 Third Avenue
Suite 2800
New York, New York 10022
Attn: Guillaume de Sampigny, Esq.
E-mail: gdesampigny@htflawyers.com
^1^NTD: Only include for Kairous Asia Limited.
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If to the Company:
Kairous Acquisition Corporation
Unit 9-3, Oval Tower @ Damansara,
No. 685, Jalan Damansara,
60000 Taman Tun Dr. Ismail,
Kuala Lumpur, Malaysia
Attn: Joseph Lee, Chief Executive Officer
Email: joseph@kairous.com
with a copy (which copy shall not constitute notice) to:
Loeb & Loeb LLP
345 Park Avenue
New York, NY 10154
Attn: Lawrence Venick, Esq.
Email: lvenick@loeb.com
16. No party hereto may assign either this letter agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other party. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This letter agreement shall be binding on the parties hereto and any successors and assigns thereof.
17. This Letter Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Letter Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by all parties hereto.
18. The undersigned acknowledges and understands that the Underwriters and the Company will rely upon the agreements, representations and warranties set forth herein in proceeding with the IPO. Nothing contained herein shall be deemed to render the Underwriters a representative of, or a fiduciary with respect to, the Company, its shareholders or any creditor or vendor of the Company with respect to the subject matter hereof.
[Signaturepages follow]
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| --- | | Kairous<br> Asia Limited | | | --- | --- | | By: | /s/ Joseph Lee Moh Hon | | Name: | Joseph<br> Lee Moh Hon | | Title: | Director |
Exhibit10.3
INVESTMENTMANAGEMENT TRUST AGREEMENT
This Agreement is made as of December 13, 2021 by and between Kairous Acquisition Corp. Limited (the “Company”) and Continental Stock Transfer & Trust Company, as trustee (“Trustee”).
WHEREAS, the Company’s registration statement on Form S-1, No. 333-259031 (“Registration Statement”) for its initial public offering of securities (“IPO”) has been declared effective as of the date hereof (“Effective Date”) by the Securities and Exchange Commission (capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Registration Statement); and
WHEREAS, Maxim Group LLC (“Maxim”) is acting as the underwriter in the IPO; and
WHEREAS, if a Business Combination is not consummated within the initial 12 month period following the closing of the IPO, the Company’s insiders may extend such period up to three times by an additional three months each time to a maximum of 21 months in the aggregate, by depositing $750,000 (or $862,500 if the Underwriters’ over-allotment option is exercised in full) into the Trust Account (as defined below) no later than the 12 month anniversary of the IPO or the 15 month anniversary of the IPO or the 18 month anniversary of the IPO (each, an “Applicable Deadline”) for each three-month extension (each, an “Extension”), in exchange for which they will receive promissory notes; and
WHEREAS, as described in the Registration Statement, and in accordance with the Company’s Amended and Restated Memorandum and Articles of Association, $75,750,000 of the gross proceeds of the IPO and the net proceeds of a private placement taking place simultaneously therewith ( $87,112,500 if the over-allotment option is exercised in full) , plus any amount eventually deposited on account of any Extensions, will be delivered to the Trustee to be deposited and held in the Trust Account for the benefit of the Company and the holders of the Company’s ordinary shares, par value $0.0001 per share, issued in the IPO as hereinafter provided (the proceeds to be delivered to the Trustee, including the proceeds from any loans in connection with an Extension, if any, will be referred to herein as the “Property”; the shareholders for whose benefit the Trustee shall hold the Property will be referred to as the “Public Shareholders,” and the Public Shareholders and the Company will be referred to together as the “Beneficiaries”); and
WHEREAS, the Company and the Trustee desire to enter into this Agreement to set forth the terms and conditions pursuant to which the Trustee shall hold the Property.
IT IS AGREED:
1. Agreements and Covenants of Trustee. The Trustee hereby agrees and covenants to:
(a) Hold the Property in trust for the Beneficiaries in accordance with the terms of this Agreement in a segregated trust account (“Trust Account”) established by the Trustee at JP Morgan Chase Bank, N.A. (or at another U.S. chartered commercial bank with consolidated assets of $100 billion or more) in the United States, maintained by Trustee, and at a brokerage institution selected by the Trustee that is reasonably satisfactory to the Company;
(b) Manage, supervise and administer the Trust Account subject to the terms and conditions set forth herein;
(c) In a timely manner, upon the written instruction of the Company, invest and reinvest the Property in United States government securities within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, as amended, having a maturity of 185 days or less, or in money market funds meeting the conditions of paragraphs (d)(1), (d)(2), (d)(3) and (d)(4) of Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended (or any successor rule), which invest only in direct U.S. government treasury obligations, as determined by the Company; the Trustee may not invest in any other securities or assets, it being understood that the Trust Account will earn no interest while account funds are uninvested awaiting the Company’s instructions hereunder; and while the account funds are invested or uninvested, the Trustee may earn bank credits or other consideration;
(d) Collect and receive, when due, all principal and income arising from the Property, which shall become part of the “Property,” as such term is used herein;
(e) Notify the Company and Maxim of all communications received by it with respect to any Property requiring action by the Company;
(f) Supply any necessary information or documents as may be requested by the Company in connection with the Company’s preparation of its tax returns;
(g) Participate in any plan or proceeding for protecting or enforcing any right or interest arising from the Property if, as and when instructed by the Company to do so;
(h) Render to the Company monthly written statements of the activities of and amounts in the Trust Account reflecting all receipts and disbursements of the Trust Account; and
(i) Commence liquidation of the Trust Account only after and promptly after (x) receipt of, and only in accordance with the terms of, a letter from the Company (“Termination Letter”) in a form substantially similar to that attached hereto as either Exhibit A or Exhibit B, as applicable, signed on behalf of the Company by its Chief Executive Officer, Chief Financial Officer, President, Executive Vice President, Vice President, Secretary or Chairman of the board of directors of the Company (the “Board”) or other authorized officer of the Company, and, in the case of a Termination Letter in a form substantially similar to that attached hereto as Exhibit A, acknowledged and agreed to by the Underwriters, and complete the liquidation of the Trust Account and distribute the Property in the Trust Account, including interest earned on the funds held in the Trust Account (less taxes payable and, in the case of Exhibit B, less up to $100,000 of interest income to pay dissolution expenses), only as directed in the Termination Letter and the other documents referred to therein, or (y) upon the date which is the later of (1) 12 months after the closing of the Offering and (2) such later date upon an Extension effectuated pursuant to the terms hereof, if a Termination Letter has not been received by the Trustee prior to such date, in which case the Trust Account shall be liquidated in accordance with the procedures set forth in the Termination Letter attached as Exhibit B and the Property in the Trust Account, including interest earned on the funds held in the Trust Account (less taxes payable and up to $100,000 of interest income to pay dissolution expenses), shall be distributed to the Public Shareholders of record as of such date;
(j) Upon written request from the Company, which may be given from time to time in a form substantially similar to that attached hereto as Exhibit C (a “Tax Payment Withdrawal Instruction”), withdraw from the Trust Account and distribute to the Company the amount of interest earned on the Property requested by the Company to cover any tax obligation owed by the Company as a result of assets of the Company or interest or other income earned on the Property, which amount shall be delivered directly to the Company by electronic funds transfer or other method of prompt payment, and the Company shall forward such payment to the relevant taxing authority so long as there is no reduction in the principal amount per share initially deposited in the Trust Account; provided, however, that to the extent there is not sufficient cash in the Trust Account to pay such tax obligation, the Trustee shall liquidate such assets held in the Trust Account as shall be designated by the Company in writing to make such distribution (it being acknowledged and agreed that any such amount in excess of interest income earned on the Property shall not be payable from the Trust Account). The written request of the Company referenced above shall constitute presumptive evidence that the Company is entitled to said funds, and the Trustee shall have no responsibility to look beyond said request.
(k) Upon receipt of an extension letter (“Extension Letter”) substantially similar to Exhibit D hereto at least five business days prior to the Applicable Deadline, signed on behalf of the Company by an executive officer, and receipt of the dollar amount specified in the Extension Letter on or prior to the Applicable Deadline, to follow the instructions set forth in the Extension Letter.
(l) Not disburse any amounts from the Trust Account in connection with a Business Combination in the event that the amount per share to be received by the redeeming Public Shareholders is less than $10.10 per share (plus the amount per share deposited in the Trust Account pursuant to any Extension Letter).
(m) In connection with a Business Combination, before making disbursements to the Depository Trust Company, the Company or any other person, disburse the per share amount to redeeming Public Shareholders (other than shares tendered through the Depository Trust Company) that have tendered their shares directly to the Trustee.
(n) Promptly acknowledge and comply with any irrevocable instruction letter delivered in the form of Exhibit E delivered by the Company in connection with the disbursement of funds to a Public Shareholder.
(o) Promptly acknowledge, in writing to any redeeming Public Shareholder and the Company, any irrevocable instruction letter in the form of Exhibit F delivered by such redeeming Public Shareholder after the announcement by the Company of a proposed Business Combination and promptly comply with any irrevocable written instruction letter in the form of Exhibit F delivered by such Public Shareholder in connection with the disbursement of funds to such Public Shareholder if the Company has not notified the Trustee in writing during the Objection Period that such irrevocable written instruction letter is a Non-Compliant Instruction Letter (as defined below).
2. Limited Distributions of Income from Trust Account.
(a) Upon written request from the Company, which may be given from time to time in a form substantially similar to that attached hereto as Exhibit C, the Trustee shall distribute to the Company the amount of interest income earned on the Trust Account requested by the Company to cover any income or other tax obligation owed by the Company.
(b) The limited distributions referred to in Section 2(a) above shall be made only from income collected on the Property. Except as provided in Section 2(a), no other distributions from the Trust Account shall be permitted except in accordance with Section 1(i) hereof.
(c) The Company shall provide Maxim with a copy of any Termination Letters and/or any other correspondence that it issues to the Trustee with respect to any proposed withdrawal from the Trust Account promptly after such issuance.
3. Agreements and Covenants of the Company. The Company hereby agrees and covenants to:
(a) Give all instructions to the Trustee hereunder in writing, signed by the Company’s Chairman of the Board, Chief Executive Officer, President or Chief Financial Officer. In addition, except with respect to its duties under paragraphs 1(i), 2(a) and 2(b) above, the Trustee shall be entitled to rely on, and shall be protected in relying on, any verbal or telephonic advice or instruction which it in good faith believes to be given by any one of the persons authorized above to give written instructions, provided that the Company shall promptly confirm such instructions in writing;
(b) Subject to the provisions of Sections 5 and 7(g) of this Agreement, hold the Trustee harmless and indemnify the Trustee from and against, any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Trustee in connection with any claim, potential claim, action, suit or other proceeding brought against the Trustee involving any claim, or in connection with any claim or demand which in any way arises out of or relates to this Agreement, the services of the Trustee hereunder, or the Property or any income earned from investment of the Property, except for expenses and losses resulting from the Trustee’s gross negligence or willful misconduct. Promptly after the receipt by the Trustee of notice of demand or claim or the commencement of any action, suit or proceeding, pursuant to which the Trustee intends to seek indemnification under this paragraph, it shall notify the Company in writing of such claim (hereinafter referred to as the “Indemnified Claim”); provided, however, that the Trustee’s failure to provide such notice shall not relieve the Company of its liability hereunder, except to the extent that it is materially prejudiced by such failure. The Trustee shall have the right to conduct and manage the defense against such Indemnified Claim, provided, that the Trustee shall obtain the consent of the Company with respect to the selection of counsel, which consent shall not be unreasonably withheld. The Trustee may not agree to settle any Indemnified Claim without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed. The Company may participate in such action with its own counsel;
(c) Pay the Trustee an initial acceptance fee, an annual fee and a transaction processing fee for each disbursement made pursuant to Sections 2(a) and 2(b) as set forth on Schedule A hereto, which fees shall be subject to modification by the parties from time to time. It is expressly understood that the Property shall not be used to pay such fees and further agreed that any fees owed to the Trustee shall be deducted by the Trustee from the disbursements made to the Company pursuant to Sections 1(i) solely in connection with the consummation of a Business Combination, or pursuant to Section 2(b). The Company shall pay the Trustee the initial acceptance fee and first year’s fee at the consummation of the IPO and thereafter on the anniversary of the Effective Date;
(d) In connection with any vote of the Company’s shareholders regarding a Business Combination, provide to the Trustee an affidavit or certificate of a firm regularly engaged in the business of soliciting proxies and/or tabulating shareholder votes verifying the vote of the Company’s shareholders regarding such Business Combination; and
(e) In the event that the Company directs the Trustee to commence liquidation of the Trust Account pursuant to Section 1(i), the Company agrees that it will not direct the Trustee to make any payments that are not specifically authorized by this Agreement.
(f) Upon receiving the written request of a Public Shareholder to do so at any time after the date hereof, provide such Public Shareholder with a copy of any instruction provided to the Trustee pursuant to Section 1(i) or Section 1(k) along with any Notification (as defined in Exhibit A), Instruction Letter (as defined in Exhibit A), applicable flow of funds memorandum (or similar document), or any other notice delivered to the Trustee by the Company regarding the disbursement of Property from the Trust Account resulting in the Property left in the Trust Account being less than $75,750,000 (or $87,112,500 if the Underwriters’ over-allotment option is exercised in full) plus any amount eventually deposited on account of any Extension, which, in each case, shall specify to whom the Property shall be disbursed (such written notice, a “Disbursement Notice” and the date such Public Shareholder receives a Disbursement Notice, a “Disbursement Notice Date”). Each Disbursement Notice shall be delivered to such Public Shareholder at least two business days prior to the disbursement of any Property pursuant to Section 1(i) or Section 1(k) and no Property shall be disbursed from the Trust Account prior to the date that is two business days from the applicable Disbursement Notice Date.
(g) At the request of any Public Shareholder who has removed shares from street name and holds such shares either in certificated or book-entry form and, except if such shares are held in book-entry form, delivered such certificated shares to the Trustee for purposes of redemption in connection with a Business Combination, concurrently with the delivery of such shares, solely if such shares are certificated. to the Trustee, send an irrevocable written instruction letter in the form of Exhibit E to the Trustee directing the Trustee to disburse no less than $10.10 per share (plus the amount per share deposited in the Trust Account pursuant to any Extension Letter) to such Public Shareholder.
(h) Following receipt of a copy of an irrevocable written instruction letter in the form of Exhibit F delivered by a Public Shareholder who has removed shares from street name and holds such shares either in certificated or book-entry form and, except if such shares are held in book-entry form, delivered such certificated shares to the Trustee for purposes of redemption in connection with a Business Combination to the Trustee, review such letter to confirm (i) such letter is in the form of Exhibit F, (ii) a Business Combination has been announced on or prior to the date of such letter and (iii) the number of ordinary shares set forth on such letter to be redeemed is not greater than the number of ordinary shares held by the applicable Public Shareholder. Solely if the Company cannot confirm the requirements of clauses (i) through (iii) of this Section 3(h), but not for any other reason, then within two days of the Company’s receipt of the applicable copy of the irrevocable written instruction letter in the form of Exhibit F (such time period, the “Objection Period”), the Company will notify the applicable Public Shareholder and the Trustee in writing that such irrevocable written instruction letter is a “Non-Compliant Instruction Letter” and that the Trustee shall not comply with such letter.
(i) If applicable, the Company shall issue a press release at least three days prior to the Applicable Deadline announcing that, at least five days prior to the Applicable Deadline, the Company received notice from the Company’s insiders that the insiders intend to extend the Applicable Deadline;
(j) Promptly following the Applicable Deadline, disclose whether or not the term the Company has to consummate a Business Combination has been extended.
4. Limitations of Liability. The Trustee shall have no responsibility or liability to:
(a) Take any action with respect to the Property, other than as directed in paragraphs 1 and 2 hereof and the Trustee shall have no liability to any party except for liability arising out of its own gross negligence or willful misconduct;
(b) Institute any proceeding for the collection of any principal and income arising from, or institute, appear in or defend any proceeding of any kind with respect to, any of the Property unless and until it shall have received instructions from the Company given as provided herein to do so and the Company shall have advanced or guaranteed to it funds sufficient to pay any expenses incident thereto;
(c) Change the investment of any Property, other than in compliance with paragraph 1(c);
(d) Refund any depreciation in principal of any Property;
(e) Assume that the authority of any person designated by the Company to give instructions hereunder shall not be continuing unless provided otherwise in such designation, or unless the Company shall have delivered a written revocation of such authority to the Trustee;
(f) The other parties hereto or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the exercise of its own best judgment, except for its gross negligence or willful misconduct. The Trustee may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Trustee), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is believed by the Trustee, in good faith, to be genuine and to be signed or presented by the proper person or persons. The Trustee shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement or any of the terms hereof, unless evidenced by a written instrument delivered to the Trustee signed by the proper party or parties and, if the duties or rights of the Trustee are affected, unless it shall give its prior written consent thereto;
(g) Verify the correctness of the information set forth in the Registration Statement or to confirm or assure that any acquisition made by the Company or any other action taken by it is as contemplated by the Registration Statement;
(h) File local, state and/or federal tax returns or information returns with any taxing authority on behalf of the Trust Account and payee statements with the Company documenting the taxes, if any, payable by the Company or the Trust Account, relating to the income earned on the Property;
(i) Pay any taxes on behalf of the Trust Account (it being expressly understood that the Property shall not be used to pay any such taxes and that such taxes, if any, shall be paid by the Company from funds not held in the Trust Account or released to it under Section 2(a) hereof);
(j) Imply obligations, perform duties, inquire or otherwise be subject to the provisions of any agreement or document other than this agreement and that which is expressly set forth herein; and
(k) Verify calculations, qualify or otherwise approve Company requests for distributions pursuant to Section 1(i), 2(a) or 2(b) above.
5. Trust Account Waiver. The Trustee has no right of set-off or any right, title, interest or claim of any kind (“Claim”) to, or to any monies in, the Trust Account, and hereby irrevocably waives any Claim to, or to any monies in, the Trust Account that it may have now or in the future. In the event the Trustee has any Claim against the Company under this Agreement, including, without limitation, under Section 3(b) or Section 3(c) hereof, the Trustee shall pursue such Claim solely against the Company and its assets outside the Trust Account and not against the Property or any monies in the Trust Account.
6. Termination. This Agreement shall terminate as follows:
(a) If the Trustee gives written notice to the Company that it desires to resign under this Agreement, the Company shall use its reasonable efforts to locate a successor trustee during which time the Trustee shall act in accordance with this Agreement. At such time that the Company notifies the Trustee that a successor trustee has been appointed by the Company and has agreed to become subject to the terms of this Agreement, the Trustee shall transfer the management of the Trust Account to the successor trustee, including but not limited to the transfer of copies of the reports and statements relating to the Trust Account, whereupon this Agreement shall terminate; provided, however, that, in the event that the Company does not locate a successor trustee within ninety days of receipt of the resignation notice from the Trustee, the Trustee may submit an application to have the Property deposited with any court in the State of New York or with the United States District Court for the Southern District of New York and upon such deposit, the Trustee shall be immune from any liability whatsoever; or
(b) At such time that the Trustee has completed the liquidation of the Trust Account in accordance with the provisions of paragraph 1(i) hereof, and distributed the Property in accordance with the provisions of the Termination Letter, this Agreement shall terminate except with respect to Paragraph 3(b).
7. Miscellaneous.
(a) The Company and the Trustee each acknowledge that the Trustee will follow the security procedures set forth below with respect to funds transferred from the Trust Account. The Company and the Trustee will each restrict access to confidential information relating to such security procedures to authorized persons. Each party must notify the other party immediately if it has reason to believe unauthorized persons may have obtained access to such information, or of any change in its authorized personnel. In executing funds transfers, the Trustee will rely upon all information supplied to it by the Company, including account names, account numbers and all other identifying information relating to a beneficiary, beneficiary’s bank or intermediary bank. The Trustee shall not be liable for any loss, liability or expense resulting from any error in the information or transmission of the wire.
(b) This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. It may be executed in several original or facsimile counterparts, each one of which shall constitute an original, and together shall constitute but one instrument.
(c) This Agreement contains the entire agreement and understanding of the parties hereto with respect to the subject matter hereof. Except for Sections 1(i), 1(n), 1(o), 3(g), 3(h), 7(c) and 7(h) (which may only be amended with the approval of the holders of at least 50% of the ordinary shares sold in the IPO, provided that all Public Shareholders must be given the right to receive a pro-rata portion of the trust account (no less than $10.10 per share plus the amount per share deposited in the Trust Account pursuant to any Extension Letter) in connection with any such amendment), this Agreement or any provision hereof may only be changed, amended or modified by a writing signed by each of the parties hereto; provided, however, that no such change, amendment or modification may be made without the prior written consent of Maxim. As to any claim, cross-claim or counterclaim in any way relating to this Agreement, each party waives the right to trial by jury. The Trustee may require from Company counsel an opinion as to the propriety of any proposed amendment.
(d) The parties hereto consent to the jurisdiction and venue of any state or federal court located in the City of New York, Borough of Manhattan, for purposes of resolving any disputes hereunder.
(e) Any notice, consent or request to be given in connection with any of the terms or provisions of this Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery, by electronic mail or by facsimile transmission:
if to the Trustee, to:
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004
Attn: Francis Wolf and Celeste Gonzalez
E-mail:fwolf@continentalstock.com and cgonzalez@continentalstockl.com
if to the Company, to:
Kairous Acquisition Corp. Limited
Unit 9-3, Oval Tower @ Damansara,
No. 685, Jalan Damansara,
60000 Taman Tun Dr. Ismail,
Kuala Lumpur, Malaysia
Attn: Joseph Lee, Chief Executive Officer
E-mail: joseph@kairous.com
in either case with a copy (which copy shall not constitute notice) to:
Maxim Group LLC
405 Lexington Ave
New York, NY 10174
Attn: Alex Jin
E-mail: ajin@maximgrp.com
and
Loeb & Loeb LLP
345 Park Avenue
New York, New York 10154
Attn: Lawrence Venick, Esq.
E-mail: lvenick@loeb.com
and
Hunter Taubman Fischer & Li LLC
800 Third Avenue
Suite 2800
New York, New York 10022
Attn: Guillaume de Sampigny, Esq.
E-mail: gdesampigny@htflawyers.com
(f) This Agreement may not be assigned by the Trustee without the prior consent of the Company.
(g) Each of the Trustee and the Company hereby represents that it has the full right and power and has been duly authorized to enter into this Agreement and to perform its respective obligations as contemplated hereunder.
(h) Each of the Company and the Trustee hereby acknowledge that Maxim is a third party beneficiary of this Agreement.
[signaturepage follows]
IN WITNESS WHEREOF, the parties have duly executed this Investment Management Trust Agreement as of the date first written above.
| CONTINENTAL<br> STOCK TRANSFER & TRUST COMPANY, as Trustee | |
|---|---|
| By: | /s/ Francis Wolf |
| Name: | Francis<br> Wolf |
| Title: | Vice<br> President |
| KAIROUS<br>ACQUISITION CORP. LIMITED | |
| --- | --- |
| By: | /s/ Joseph Lee Moh Hon |
| Name: | Joseph<br> Lee Moh Hon |
| Title: | Chief<br> Executive Officer |
SCHEDULEA
| Fee<br> Item | Time<br> and method of payment | Amount | |
|---|---|---|---|
| Initial<br> acceptance fee | Initial<br> closing of IPO by wire transfer | $ | 3,500.00 |
| Annual<br> fee | Initial<br> closing of IPO by wire transfer; thereafter on the anniversary of the effective date of the IPO by wire transfer or check | $ | 10,000.00 |
| Transaction<br> processing fee for disbursements to Company under Section 2 | Deduction<br> by Trustee from accumulated income following disbursement made to Company under Section 2 | $ | 250.00 |
| Paying<br> Agent services as required pursuant to section 1(i) (j) | Billed<br> to Company upon delivery of service pursuant to section 1(i) (j) | Prevailing<br> rates |
EXHIBITA
[Letterheadof Company]
[Insertdate]
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004
Attn: Francis Wolf and Celeste Gonzalez
| Re: | Trust<br> Account - Termination Letter |
|---|
Dear Mr. Wolf and Ms. Gonzalez:
Pursuant to paragraph 1(i) of the Investment Management Trust Agreement between Kairous Acquisition Corp. Limited (“Company”) and Continental Stock Transfer & Trust Company (“Trustee”), dated as of [*], 2021 (“Trust Agreement”), this is to advise you that the Company has entered into an agreement with [__________________] (“Target Business”) to consummate a business combination with Target Business (“Business Combination”) on or about [insert date]. The Company shall notify you at least seventy-two (72) hours in advance of the actual date of the consummation of the Business Combination (“Consummation Date”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Trust Agreement.
In accordance with the terms of the Trust Agreement, we hereby authorize you to liquidate the Trust Account investments and to transfer the proceeds to the above-referenced account at JPMorgan Chase Bank, N.A. to the effect that, on the Consummation Date, all of funds held in the Trust Account will be immediately available for transfer to the account or accounts that the Company shall direct on the Consummation Date. It is acknowledged and agreed that while the funds are on deposit in the trust account awaiting distribution, the Company will not earn any interest or dividends.
On the Consummation Date (i) counsel for the Company shall deliver to you written notification that the Business Combination has been consummated, and (ii) the Company shall deliver to you a certificate of the Chief Executive Officer which verifies the vote of the Company’s shareholders in connection with the Business Combination if a vote is held and (b) joint written instructions from the Company and Maxim Group LLC with respect to the transfer of the funds held in the Trust Account, which must provide for the disbursement of no less than $10.10 per share plus the amount per share deposited in the Trust Account per Extension Letter to redeeming Public Shareholders (“Instruction Letter”). You are hereby directed and authorized to transfer the funds held in the Trust Account immediately upon your receipt of the counsel’s letter and the Instruction Letter, in accordance with the terms of the Instruction Letter. In the event that certain deposits held in the Trust Account may not be liquidated by the Consummation Date without penalty, you will notify the Company of the same and the Company shall direct you as to whether such funds should remain in the Trust Account and distributed after the Consummation Date to the Company. Upon the distribution of all the funds in the Trust Account pursuant to the terms hereof, the Trust Agreement shall be terminated.
In the event that the Business Combination is not consummated on the Consummation Date described in the notice thereof and we have not notified you on or before the original Consummation Date of a new Consummation Date, then upon receipt by the Trustee of written instructions from the Company, the funds held in the Trust Account shall be reinvested as provided in the Trust Agreement on the business day immediately following the Consummation Date as set forth in the notice.
| Very<br> truly yours, | |
|---|---|
| KAIROUS<br> ACQUISITION CORP. LIMITED | |
| By: | |
| Name: | |
| Title: | |
| By: | |
| Name: | |
| Title: | Secretary/Assistant<br> Secretary |
| Acknowledged<br> and Agreed: | |
| --- | |
| Maxim<br> Group LLC | |
| By: | |
| Name: | |
| Title: |
EXHIBITB
[Letterheadof Company]
[Insertdate]
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004
Attn: [Francis Wolf and Celeste Gonzalez
| Re: | Trust<br> Account - Termination Letter |
|---|
Dear Mr. Wolf and Ms. Gonzalez:
Pursuant to paragraph 1(i) of the Investment Management Trust Agreement between Kairous Acquisition Corp. Limited (“Company”) and Continental Stock Transfer & Trust Company (“Trustee”), dated as of [*], 2021 (“Trust Agreement”), this is to advise you that the Company has been unable to effect a Business Combination with a Target Company within the time frame specified in the Company’s Amended and Restated Memorandum and Articles of Association, as described in the Company’s prospectus relating to its IPO. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Trust Agreement.
In accordance with the terms of the Trust Agreement, we hereby authorize you to liquidate all the Trust Account investments and to transfer the total proceeds to the Trust Operating Account at JPMorgan Chase Bank, N.A. to await distribution to the Public Shareholders. The Company has selected [____________, 20__] as the effective date for the purpose of determining when the Public Shareholders will be entitled to receive their share of the liquidation proceeds. It is acknowledged that no interest will be earned by the Company on the liquidation proceeds while on deposit in the Trust Operating Account. You agree to be the Paying Agent of record and in your separate capacity as Paying Agent, to distribute said funds directly to the Public Shareholders in accordance with the terms of the Trust Agreement and the Amended and Restated Memorandum and Articles of Association of the Company. Upon the distribution of all the funds in the Trust Account, your obligations under the Trust Agreement shall be terminated.
| Very<br> truly yours, | |
|---|---|
| KAIROUS<br> ACQUISITION CORP. LIMITED | |
| By: | |
| Name: | |
| Title: | |
| By: | |
| Name: | |
| Title: | Secretary/Assistant<br> Secretary |
| cc: | Maxim<br> Group LLC |
| --- | --- |
EXHIBITC
[Letterheadof Company]
[Insertdate]
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004
Attn: Francis Wolf and Celeste Gonzalez
| Re: | Trust<br> Account Tax Payment Withdrawal Request |
|---|
Gentlemen:
Pursuant to paragraph 2(a) of the Investment Management Trust Agreement between Kairous Acquisition Corp. Limited (“Company”) and Continental Stock Transfer & Trust Company (“Trustee”), dated as of [*], 2021 (“Trust Agreement”), the Company hereby requests that you deliver to the Company [$_______] of the interest income earned on the Property as of the date hereof. The Company needs such funds to pay for its tax obligations. In accordance with the terms of the Trust Agreement, you are hereby directed and authorized to transfer (via wire transfer) such funds promptly upon your receipt of this letter to the Company’s operating account at:
[WIRE INSTRUCTION INFORMATION]
| KAIROUS<br> ACQUISITION CORP. LIMITED | |
|---|---|
| By: | |
| Name: | |
| Title: | |
| cc: | Maxim<br> Group LLC |
| --- | --- |
EXHIBITD
[Letterheadof Company]
[Insertdate]
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004
Attn: Francis Wolf and Celeste Gonzalez
| Re: | Trust<br> Account - Extension Letter |
|---|
Gentlemen:
Pursuant to Section 1(k) of the Investment Management Trust Agreement between Kairous Acquisition Corp. Limited (“Company”) and Continental Stock Transfer & Trust Company, dated as of [*], 2021 (“Trust Agreement”), this is to advise you that the Company is extending the time available in order to consummate a Business Combination with the Target Businesses for an additional three (3) months, from _______ to _________ (the “Extension”).
This Extension Letter shall serve as the notice required with respect to Extension prior to the Applicable Deadline. Capitalized words used herein and not otherwise defined shall have the meanings ascribed to them in the Trust Agreement.
In accordance with the terms of the Trust Agreement, we hereby authorize you to deposit $750,000 (or $862,500 if the underwriters’ over-allotment option was exercised in full), which will be wired to you, into the Trust Account investments upon receipt.
This is the ____ of up to three Extension Letters.
| Very<br> truly yours, | |
|---|---|
| KAIROUS<br> ACQUISITION CORP. LIMITED | |
| By: | |
| Name: | |
| Title: | |
| cc: | Maxim<br> Group LLC |
| --- | --- |
EXHIBITE
[Letterheadof Company]
[Insertdate]
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004
Attn: Francis Wolf and Celeste Gonzalez
| Re: | Trust<br> Account - Irrevocable Instruction in Connection with Business Combination |
|---|
Dear Mr. Wolf and Ms. Gonzalez:
Pursuant to paragraphs 1(n) and 3(g) of the Investment Management Trust Agreement between Kairous Acquisition Corp. Limited (“Company”) and Continental Stock Transfer & Trust Company (“Trustee”), dated as of [*], 2021 (“Trust Agreement”), this constitutes our irrevocable instruction to you to (i) in conjunction with the Business Combination (as defined in the Trust Agreement), disburse a per share amount of $______, for a total disbursement of $__________________which is not less than $10.10 (plus the amount per share deposited in the Trust Account pursuant to any Extension Letter) to ________________ (the “Shareholder”) for the _____________________ ordinary shares of the Company delivered to you prior to or concurrently herewith for redemption in connection with the Business Combination, and (ii) deliver to the Shareholder the amounts specified in clause (i) prior to delivering and amounts to the Depository Trust Company, the Company, or any person from whom you have not received an irrevocable instruction substantially similar to this one. The Shareholder wire instructions are attached. A share advice or DWAC instruction from our broker is also attached.
The Company shall indemnify you and your officers, directors, principals, partners, agents and representatives, and hold each of them harmless from and against any and all loss, liability, damage, claim or expense (including the reasonable fees and disbursements of its attorneys) incurred by or asserted against you or any of them arising out of or in connection with the instructions set forth herein, the performance of your duties hereunder and otherwise in respect hereof, including the costs and expenses of defending yourself or themselves against any claim or liability hereunder, except that the Company shall not be liable hereunder as to matters in respect of which it is determined that you have acted with gross negligence. You shall have no liability to the Company in respect to any action taken or any failure to act in respect of this if such action was taken or omitted to be taken in good faith, and you shall be entitled to rely in this regard on the advice of counsel.
The Board of Directors of the Company has approved the foregoing irrevocable instructions and does hereby extend the Company’s irrevocable agreement to indemnify your firm for all loss, liability or expense in carrying out the authority and direction herein contained on the terms herein set forth.
The Shareholder is intended to be and is a third party beneficiary of this letter and the irrevocable instructions set forth herein, and no amendment or modification to the instructions set forth herein may be made without the prior written consent of the Shareholder.
By signing below, the person executing this letter certifies that they are duly authorized to execute this letter on behalf of the Company and to bind the Company to all of the terms and conditions contained herein.
[remainderof page intentionally left blank]
| Very<br> truly yours, |
|---|
| KAIROUS<br> ACQUISITION CORP. LIMITED |
| By: |
| Name: |
| Title: |
Acknowledged and Agreed:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Trustee
| Name: | |
|---|---|
| Title: | |
| Cc: | [SHAREHOLDER]. |
| --- | --- |
Attachments:
Shareholder Wire Instructions
Share advice or instruction
EXHIBITF
[Letterheadof Company]
[Insertdate]
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004
Attn: Francis Wolf and Celeste Gonzalez
| Re: | Trust<br> Account - Irrevocable Instruction in Connection with Business Combination |
|---|
Dear Mr. Wolf and Ms. Gonzalez:
Pursuant to paragraphs 1(o) and 3(h) of the Investment Management Trust Agreement between Kairous Acquisition Corp. Limited (“Company”) and Continental Stock Transfer & Trust Company (“Trustee”), dated as of [*], 2021 (“Trust Agreement”), this constitutes our irrevocable instruction to you to (i) in conjunction with the Business Combination (as defined in the Trust Agreement), disburse a per share amount of $______, for a total disbursement of $_________________which is not less than $10.10 (plus the amount per share deposited in the Trust Account pursuant to any Extension Letter) per share to ________________ (the “Shareholder”) for the _____________________ ordinary shares of the Company delivered to you prior to or concurrently herewith for redemption in connection with the Business Combination, and (ii) deliver to the Shareholder the amounts specified in clause (i) prior to delivering and amounts to the Depository Trust Company, the Company, or any person from whom you have not received an irrevocable instruction substantially similar to this one. Our wire instructions are attached. We understand that a servicing fee of $250.00 will deducted from our payment. A share advice or DWAC instruction from our broker is attached.
The Company shall indemnify you and your officers, directors, principals, partners, agents and representatives, and hold each of them harmless from and against any and all loss, liability, damage, claim or expense (including the reasonable fees and disbursements of its attorneys) incurred by or asserted against you or any of them arising out of or in connection with the instructions set forth herein, the performance of your duties hereunder and otherwise in respect hereof, including the costs and expenses of defending yourself or themselves against any claim or liability hereunder, except that the Company shall not be liable hereunder as to matters in respect of which it is determined that you have acted with gross negligence. You shall have no liability to the Company in respect to any action taken or any failure to act in respect of this if such action was taken or omitted to be taken in good faith, and you shall be entitled to rely in this regard on the advice of counsel.
The Board of Directors of the Company does hereby extend the Company’s irrevocable agreement to indemnify your firm for all loss, liability or expense in carrying out the authority and direction herein contained on the terms herein set forth.
No amendment or modification to the instructions set forth herein may be made without the prior written consent of the Shareholder.
By signing below, the person executing this letter certifies that they are duly authorized to execute this letter on behalf of the Shareholder and to bind the Shareholder to all of the terms and conditions contained herein.
[remainderof page intentionally left blank]
| Very<br> truly yours, |
|---|
| [SHAREHOLDER] |
| By: |
| Name: |
| Title: |
Acknowledged and Agreed:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Trustee
| Name: | |
|---|---|
| Title: | |
| Cc: | Kairous<br> Acquisition Corp. Limited |
| Unit<br> 9-3, Oval Tower @ Damansara, | |
| No.<br> 685, Jalan Damansara, | |
| 60000<br> Taman Tun Dr. Ismail, | |
| Kuala<br> Lumpur, Malaysia | |
| Attn:<br> Joseph Lee, Chief Executive Officer |
Attachments:
Shareholder Wire Instructions
Share advice or instruction
Exhibit10.4
REGISTRATIONRIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of December 13, 2021, by and among Kairous Acquisition Corp. Limited, a Cayman Islands company (the “Company”) and the undersigned parties listed under Investor on the signature page hereto (each, an “Investor” and collectively, the “Investors”).
WHEREAS, the Investors and the Company desire to enter into this Agreement to provide the Investors with certain rights relating to the registration of the securities held by them as of the date hereof;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. The following capitalized terms used herein have the following meanings:
“Agreement” means this Agreement, as amended, restated, supplemented, or otherwise modified from time to time.
“BusinessCombination” means the acquisition of direct or indirect ownership through a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or other similar type of transaction, of one or more businesses or entities.
“Commission” means the Securities and Exchange Commission, or any other Federal agency then administering the Securities Act or the Exchange Act.
“Company” is defined in the preamble to this Agreement.
“DemandRegistration” is defined in Section 2.1.1.
“DemandingHolder” is defined in Section 2.1.1.
“ExchangeAct” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in effect at the time.
“FormS-3” is defined in Section 2.3.
“IndemnifiedParty” is defined in Section 4.3.
“IndemnifyingParty” is defined in Section 4.3.
“InitialShares” means all of the outstanding Ordinary Shares issued prior to the consummation of the Company’s initial public offering.
“Investor” is defined in the preamble to this Agreement.
“InvestorIndemnified Party” is defined in Section 4.1.
“MaximumNumber of Shares” is defined in Section 2.1.4.
“Notices” is defined in Section 6.3.
“Piggy-BackRegistration” is defined in Section 2.2.1.
“OrdinaryShares” means the ordinary shares of the Company, with US$0.0001 par value.
“Over-AllotmentUnits” means the additional number of Private Units the Sponsor will be required to purchase in the event that the underwriters in the Company’s initial public offering exercise their over-allotment option, as described in the prospectus relating to the Company’s initial public offering.
“PrivateUnits” means up to 381,893 Units, 348,143 of which the Sponsor is privately purchasing simultaneously with the consummation of the Company’s initial public offering and up to 33,750 Units that the Sponsor has agreed to purchase if the underwriter exercises its over-allotment option.
“Register,” “Registered” and “Registration” mean a registration effected by preparing and filing a registration statement or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.
“RegistrableSecurities” means (i) the Initial Shares, (ii) the Private Units (and underlying securities), (iii) the Over-Allotment Units (and underlying Ordinary Shares), if any, and (iv) any securities issuable upon conversion of loans from Investors to the Company for the Company’s payment of its working capital, if any (the “Working Capital Loan Securities”). Registrable Securities include any warrants, rights, shares or other securities of the Company issued as a dividend or other distribution with respect to or in exchange for or in replacement of such Initial Shares, Private Units (and underlying Ordinary Shares), Over-Allotment Units (and underlying Ordinary Shares) and Working Capital Loan Securities. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when: (a) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (b) such securities shall have been otherwise transferred, new certificates for them not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of them shall not require registration under the Securities Act; (c) such securities shall have ceased to be outstanding, or (d) the Registrable Securities are freely saleable under Rule 144 without volume limitations.
“RegistrationStatement” means a registration statement filed by the Company with the Commission in compliance with the Securities Act and the rules and regulations promulgated thereunder for a public offering and sale of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities (other than a registration statement on Form S-4 or Form S-8, or their successors, or any registration statement covering only securities proposed to be issued in exchange for securities or assets of another entity).
“ReleaseDate” means the date on which the Initial Shares are disbursed from escrow pursuant to Section 3 of that certain Stock Escrow Agreement dated as of December 13, 2021 by and among the Investors and Continental Stock Transfer & Trust Company.
“SecuritiesAct” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in effect at the time.
“Sponsor” means Kairous Asia Limited, a limited liability company incorporated in the British Virgin Islands.
“Underwriter” means a securities dealer who purchases any Registrable Securities as principal in an underwritten offering and not as part of such dealer’s market-making activities.
“Units” means the units of the Company, each comprised of one Ordinary Share, one-half (1/2) of one redeemable Warrant, and one right to receive one-tenth (1/10) of an Ordinary Share.
“Warrants(s)” means the warrants of the Company.
2. REGISTRATION RIGHTS.
2.1 Demand Registration.
2.1.1 Request for Registration. At any time and from time to time on or after (i) the date that the Company consummates a Business Combination with respect to the Private Units (or underlying Ordinary Shares), Over-Allotment Units (or underlying Ordinary Shares) and Working Capital Loan Securities or (ii) three months prior to the Release Date with respect to all other Registrable Securities, the holders of a majority-in-interest of the Registrable Securities, as the case may be, held by the Investors, officers or directors of the Company or their affiliates, or the transferees of the Investors, may make a written demand, on no more than two occasions, for registration under the Securities Act of all or part of their Registrable Securities, as the case may be (a “Demand Registration”). Any demand for a Demand Registration shall specify the number of shares of Registrable Securities proposed to be sold and the intended method(s) of distribution thereof. The Company will notify, in writing, all holders of Registrable Securities of the demand, with ten (10) days of the Company’s receipt of such demand, and each holder of Registrable Securities who wishes to include all or a portion of such holder’s Registrable Securities in the Demand Registration (each such holder including shares of Registrable Securities in such registration, a “Demanding Holder”) shall so notify the Company within fifteen (15) days after the receipt by the holder of the notice from the Company. Upon any such request, the Demanding Holders shall be entitled to have their Registrable Securities included in the Demand Registration, subject to Section 2.1.4 and the provisions set forth in Section 3.1.1. The Company shall not be obligated to effect more than an aggregate of two (2) Demand Registrations under this Section 2.1.1 in respect of all Registrable Securities.
2.1.2 Effective Registration. A registration will not count as a Demand Registration until the Registration Statement filed with the Commission with respect to such Demand Registration has been declared effective and the Company has complied with all of its obligations under this Agreement with respect thereto; provided, however, that if, after such Registration Statement has been declared effective, the offering of Registrable Securities pursuant to a Demand Registration is interfered with by any stop order or injunction of the Commission or any other governmental agency or court, the Registration Statement with respect to such Demand Registration will be deemed not to have been declared effective, unless and until, (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of the Demanding Holders thereafter elect to continue the offering; provided, further, that the Company shall not be obligated to file a second Registration Statement until a Registration Statement that has been filed is counted as a Demand Registration or is terminated.
2.1.3 Underwritten Offering. If a majority-in-interest of the Demanding Holders so elect and such holders so advise the Company as part of their written demand for a Demand Registration, the offering of such Registrable Securities pursuant to such Demand Registration shall be in the form of an underwritten offering. In such event, the right of any holder to include its Registrable Securities in such registration shall be conditioned upon such holder’s participation in such underwriting and the inclusion of such holder’s Registrable Securities in the underwriting to the extent provided herein. All Demanding Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the Underwriter or Underwriters selected for such underwriting by a majority-in-interest of the holders initiating the Demand Registration.
2.1.4 Reduction of Offering. If the managing Underwriter or Underwriters for a Demand Registration that is to be an underwritten offering advises the Company and the Demanding Holders in writing that the dollar amount or number of shares of Registrable Securities which the Demanding Holders desire to sell, taken together with all other Ordinary Shares or other securities which the Company desires to sell and the Ordinary Shares, if any, as to which registration has been requested pursuant to written contractual piggy-back registration rights held by other shareholders of the Company who desire to sell, exceeds the maximum dollar amount or maximum number of shares that can be sold in such offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of shares, as applicable, the “Maximum Number of Shares”), then the Company shall include in such registration: (i) first, the Registrable Securities as to which Demand Registration has been requested by the Demanding Holders (pro rata in accordance with the number of shares that each such Person has requested be included in such registration, regardless of the number of shares held by each such Person (such proportion is referred to herein as “Pro Rata”)) that can be sold without exceeding the Maximum Number of Shares; (ii) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (i), the Ordinary Shares or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; and (iii) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i) and (ii), the Ordinary Shares or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual arrangements with such persons and that can be sold without exceeding the Maximum Number of Shares.
2.1.5 Withdrawal. If a majority-in-interest of the Demanding Holders disapprove of the terms of any underwriting or are not entitled to include all of their Registrable Securities in any offering, such majority-in-interest of the Demanding Holders may elect to withdraw from such offering by giving written notice to the Company and the Underwriter or Underwriters of their request to withdraw prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Demand Registration. If the majority-in-interest of the Demanding Holders withdraws from a proposed offering relating to a Demand Registration, then such registration shall not count as a Demand Registration provided for in Section 2.1. Notwithstanding any such withdrawal, the Company shall pay all expenses incurred by the holders of Registrable Securities in connection with such Demand Registration as provided in Section 3.3.
2.2 Piggy-Back Registration.
2.2.1 Piggy-Back Rights. If at any time on or after the date the Company consummates a Business Combination the Company proposes to file a Registration Statement under the Securities Act with respect to an offering of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities, by the Company for its own account or for shareholders of the Company for their account (or by the Company and by shareholders of the Company including, without limitation, pursuant to Section 2.1), other than a Registration Statement (i) filed in connection with any employee stock option or other benefit plan, (ii) for an exchange offer or offering of securities solely to the Company’s existing shareholders, (iii) for an offering of debt that is convertible into equity securities of the Company or (iv) for a dividend reinvestment plan, then the Company shall (x) give written notice of such proposed filing to the holders of Registrable Securities as soon as practicable but in no event less than ten (10) days before the anticipated filing date, which notice shall describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, of the offering, and (y) offer to the holders of Registrable Securities in such notice the opportunity to register the sale of such number of shares of Registrable Securities as such holders may request in writing within five (5) days following receipt of such notice (a “Piggy-Back Registration”). The Company shall cause such Registrable Securities to be included in such registration and shall use its best efforts to cause the managing Underwriter or Underwriters of a proposed underwritten offering to permit the Registrable Securities requested to be included in a Piggy-Back Registration on the same terms and conditions as any similar securities of the Company and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. All holders of Registrable Securities proposing to distribute their securities through a Piggy-Back Registration that involves an Underwriter or Underwriters shall enter into an underwriting agreement in customary form with the Underwriter or Underwriters selected for such Piggy-Back Registration.
2.2.2 Reduction of Offering. If the managing Underwriter or Underwriters for a Piggy-Back Registration that is to be an underwritten offering advises the Company and the holders of Registrable Securities in writing that the dollar amount or number of Ordinary Shares which the Company desires to sell, taken together with the Ordinary Shares, if any, as to which registration has been demanded pursuant to written contractual arrangements with persons other than the holders of Registrable Securities hereunder, the Registrable Securities as to which registration has been requested under this Section 2.2, and the Ordinary Shares, if any, as to which registration has been requested pursuant to the written contractual piggy-back registration rights of other shareholders of the Company, exceeds the Maximum Number of Shares, then the Company shall include in any such registration:
a) If the registration is undertaken for the Company’s account: (A) first, the Ordinary Shares or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (A), the Ordinary Shares or other securities, if any, comprised of Registrable Securities, as to which registration has been requested pursuant to the applicable written contractual piggy-back registration rights of such security holders, Pro Rata, that can be sold without exceeding the Maximum Number of Shares; and (C) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A) and (B), the Ordinary Shares or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual piggy-back registration rights with such persons and that can be sold without exceeding the Maximum Number of Shares;
b) If the registration is a “demand” registration undertaken at the demand of persons other than either the holders of Registrable Securities, (A) first, the Ordinary Shares or other securities for the account of the demanding persons that can be sold without exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (A), the Ordinary Shares or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (C) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A) and (B), collectively the Ordinary Shares or other securities comprised of Registrable Securities, Pro Rata, as to which registration has been requested pursuant to the terms hereof, that can be sold without exceeding the Maximum Number of Shares; and (D) fourth, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A), (B) and (C), the Ordinary Shares or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual arrangements with such persons, that can be sold without exceeding the Maximum Number of Shares.
2.2.3 Withdrawal. Any holder of Registrable Securities may elect to withdraw such holder’s request for inclusion of Registrable Securities in any Piggy-Back Registration by giving written notice to the Company of such request to withdraw prior to the effectiveness of the Registration Statement. The Company (whether on its own determination or as the result of a withdrawal by persons making a demand pursuant to written contractual obligations) may withdraw a Registration Statement at any time prior to the effectiveness of such Registration Statement. Notwithstanding any such withdrawal, the Company shall pay all expenses incurred by the holders of Registrable Securities in connection with such Piggy-Back Registration as provided in Section 3.3.
2.2.4 Registrations on Form S-3. The holders of Registrable Securities may at any time and from time to time, request in writing that the Company register the resale of any or all of such Registrable Securities on Form S-3 or any similar short-form registration which may be available at such time (“Form S-3”); provided, however, that the Company shall not be obligated to effect such request through an underwritten offering. Upon receipt of such written request, the Company will promptly give written notice of the proposed registration to all other holders of Registrable Securities, and, as soon as practicable thereafter, effect the registration of all or such portion of such holder’s or holders’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities or other securities of the Company, if any, of any other holder or holders joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company; provided, however, that the Company shall not be obligated to effect any such registration pursuant to this Section 2.3: (i) if Form S-3 is not available for such offering; or (ii) if the holders of the Registrable Securities, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at any aggregate price to the public of less than $500,000. Registrations effected pursuant to this Section 2.3 shall not be counted as Demand Registrations effected pursuant to Section 2.1.
3. REGISTRATION PROCEDURES.
3.1 Filings; Information. Whenever the Company is required to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the registration and sale of such Registrable Securities in accordance with the intended method(s) of distribution thereof as expeditiously as practicable, and in connection with any such request:
3.1.1 Filing Registration Statement. The Company shall use its best efforts to, as expeditiously as possible after receipt of a request for a Demand Registration pursuant to Section 2.1, prepare and file with the Commission a Registration Statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of all Registrable Securities to be registered thereunder in accordance with the intended method(s) of distribution thereof, and shall use its best efforts to cause such Registration Statement to become effective and use its best efforts to keep it effective for the period required by Section 3.1.3; provided, however, that the Company shall have the right to defer any Demand Registration for up to thirty (30) days, and any Piggy-Back Registration for such period as may be applicable to deferment of any demand registration to which such Piggy-Back Registration relates, in each case if the Company shall furnish to the holders a certificate signed by Chief Executive Officer or Chairman of the Company stating that, in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company and its shareholders for such Registration Statement to be effected at such time; provided further, however, that the Company shall not have the right to exercise the right set forth in this provision more than once in any 365-day period in respect of a Demand Registration hereunder.
3.1.2 Copies. The Company shall, prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the holders of Registrable Securities included in such registration, and such holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such Registration Statement (including each preliminary prospectus), and such other documents as the holders of Registrable Securities included in such registration or legal counsel for any such holders may request in order to facilitate the disposition of the Registrable Securities owned by such holders.
3.1.3 Amendments and Supplements. The Company shall prepare and file with the Commission such amendments, including post-effective amendments, and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and in compliance with the provisions of the Securities Act until all Registrable Securities and other securities covered by such Registration Statement have been disposed of in accordance with the intended method(s) of distribution set forth in such Registration Statement or such securities have been withdrawn.
3.1.4 Notification. After the filing of a Registration Statement, the Company shall promptly, and in no event more than two (2) business days after such filing, notify the holders of Registrable Securities included in such Registration Statement of such filing, and shall further notify such holders promptly and confirm such advice in writing in all events within two (2) business days of the occurrence of any of the following: (i) when such Registration Statement becomes effective; (ii) when any post-effective amendment to such Registration Statement becomes effective; (iii) the issuance or threatened issuance by the Commission of any stop order (and the Company shall take all actions required to prevent the entry of such stop order or to remove it if entered); and (iv) any request by the Commission for any amendment or supplement to such Registration Statement or any prospectus relating thereto or for additional information or of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of the securities covered by such Registration Statement, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in the light of the circumstances under which they were made), not misleading, and promptly make available to the holders of Registrable Securities included in such Registration Statement any such supplement or amendment; except that before filing with the Commission a Registration Statement or prospectus or any amendment or supplement thereto, including documents incorporated by reference, the Company shall furnish to the holders of Registrable Securities included in such Registration Statement and to the legal counsel for any such holders, copies of all such documents proposed to be filed sufficiently in advance of filing to provide such holders and legal counsel with a reasonable opportunity to review such documents and comment thereon, and the Company shall not file any Registration Statement or prospectus or amendment or supplement thereto, including documents incorporated by reference, to which such holders or their legal counsel shall object.
3.1.5 State Securities Laws Compliance. The Company shall use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph or subject itself to taxation in any such jurisdiction.
3.1.6 Agreements for Disposition. The Company shall enter into customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities. The representations, warranties and covenants of the Company in any underwriting agreement which are made to or for the benefit of any Underwriters, to the extent applicable, shall also be made to and for the benefit of the holders of Registrable Securities included in such registration statement. No holder of Registrable Securities included in such registration statement shall be required to make any representations or warranties in the underwriting agreement except, if applicable, with respect to such holder’s organization, good standing, authority, title to Registrable Securities, lack of conflict of such sale with such holder’s material agreements and organizational documents, and with respect to written information relating to such holder that such holder has furnished in writing expressly for inclusion in such Registration Statement.
3.1.7 Cooperation. The principal executive officer of the Company, the principal financial officer of the Company, the principal accounting officer of the Company and all other officers and members of the management of the Company shall cooperate fully in any offering of Registrable Securities hereunder, which cooperation shall include, without limitation, the preparation of the Registration Statement with respect to such offering and all other offering materials and related documents, and participation in meetings with Underwriters, attorneys, accountants and potential investors.
3.1.8 Records. The Company shall make available for inspection by the holders of Registrable Securities included in such Registration Statement, any Underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other professional retained by any holder of Registrable Securities included in such Registration Statement or any Underwriter, all financial and other records, pertinent corporate documents and properties of the Company, as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any of them in connection with such Registration Statement.
3.1.9 Opinions and Comfort Letters. In the case of any underwritten offering or if reasonably requested by any participant in any other offering pursuant to a Registration Statement filed pursuant to this Agreement, the Company shall obtain opinions of counsel representing the Company for the purposes of a registration pursuant to this Agreement, addressed to the holders participating in such registration, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to such registration in respect of which such opinion is being given as such holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to a holders of a majority-in-interest of the Registrable Securities included in such registration. In the case of any underwritten offering or if reasonably requested by any participant in any other offering pursuant to a Registration Statement filed pursuant to this Agreement, the Company shall obtain a “cold comfort” letters from the Company’s independent registered public accountants in the event of an underwritten public offering pursuant to this Agreement, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a holders of a majority-in-interest of the Registrable Securities included in such registration. The Company shall furnish to each holder of Registrable Securities included in any Registration Statement a signed counterpart, addressed to such holder, of (i) any opinion of counsel to the Company delivered to any Underwriter and (ii) any comfort letter from the Company’s independent public accountants delivered to any Underwriter.
3.1.10 Earnings Statement. The Company shall comply with all applicable rules and regulations of the Commission and the Securities Act, and make available to its shareholders, as soon as practicable, an earnings statement covering a period of twelve (12) months, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
3.1.11 Listing. The Company shall use its best efforts to cause all Registrable Securities included in any registration to be listed on such exchanges or otherwise designated for trading in the same manner as similar securities issued by the Company are then listed or designated or, if no such similar securities are then listed or designated, in a manner satisfactory to the holders of a majority of the Registrable Securities included in such registration.
3.1.12 Road Show. If the registration involves the registration of Registrable Securities involving gross proceeds in excess of 5,000,000, the Company shall use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any underwritten offering.
3.2 Obligation to Suspend Distribution. Upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.1.4(iv), or, in the case of a resale registration on Form S-3 pursuant to Section 2.3 hereof, upon any suspension by the Company, pursuant to a written insider trading compliance program adopted by the Company’s Board of Directors, of the ability of all “insiders” covered by such program to transact in the Company’s securities because of the existence of material non-public information, each holder of Registrable Securities included in any registration shall immediately discontinue disposition of such Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such holder receives the supplemented or amended prospectus contemplated by Section 3.1.4(iv) or the restriction on the ability of “insiders” to transact in the Company’s securities is removed, as applicable, and, if so directed by the Company, each such holder will deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice.
3.3 Registration Expenses. The Company shall bear all costs and expenses incurred in connection with any Demand Registration pursuant to Section 2.1, any Piggy-Back Registration pursuant to Section 2.2, and any registration on Form S-3 effected pursuant to Section 2.3, and all expenses incurred in performing or complying with its other obligations under this Agreement, whether or not the Registration Statement becomes effective, including, without limitation: (i) all registration and filing fees; (ii) fees and expenses of compliance with securities or “blue sky” laws (including fees and disbursements of counsel in connection with blue sky qualifications of the Registrable Securities); (iii) printing expenses; (iv) the Company’s internal expenses (including, without limitation, all salaries and expenses of its officers and employees); (v) the fees and expenses incurred in connection with the listing of the Registrable Securities as required by Section 3.1.11; (vi) Financial Industry Regulatory Authority fees; (vii) fees and disbursements of counsel for the Company and fees and expenses for independent certified public accountants retained by the Company (including the expenses or costs associated with the delivery of any opinions or comfort letters requested pursuant to Section 3.1.9); (viii) the reasonable fees and expenses of any special experts retained by the Company in connection with such registration and (ix) the reasonable fees and expenses of one legal counsel selected by the holders of a majority-in-interest of the Registrable Securities included in such registration. The Company shall have no obligation to pay any underwriting discounts or selling commissions attributable to the Registrable Securities being sold by the holders thereof, which underwriting discounts or selling commissions shall be borne by such holders. Additionally, in an underwritten offering, all selling shareholders and the Company shall bear the expenses of the Underwriter pro rata in proportion to the respective amount of shares each is selling in such offering.
3.4 Information. The holders of Registrable Securities shall provide such information as may reasonably be requested by the Company, or the managing Underwriter, if any, in connection with the preparation of any Registration Statement, including amendments and supplements thereto, in order to effect the registration of any Registrable Securities under the Securities Act pursuant to Section 2 and in connection with the Company’s obligation to comply with Federal and applicable state securities laws.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1 Indemnification by the Company. The Company agrees to indemnify and hold harmless each Investor and each other holder of Registrable Securities, and each of their respective officers, employees, affiliates, directors, partners, members, attorneys and agents, and each person, if any, who controls an Investor and each other holder of Registrable Securities (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) (each, an “Investor Indemnified Party”), from and against any expenses, losses, judgments, claims, damages or liabilities, whether joint or several, arising out of or based upon any untrue statement (or allegedly untrue statement) of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to such Registration Statement, or arising out of or based upon any omission (or alleged omission) to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by the Company of the Securities Act or any rule or regulation promulgated thereunder applicable to the Company and relating to action or inaction required of the Company in connection with any such registration; and the Company shall promptly reimburse the Investor Indemnified Party for any legal and any other expenses reasonably incurred by such Investor Indemnified Party in connection with investigating and defending any such expense, loss, judgment, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such expense, loss, claim, damage or liability arises out of or is based upon any untrue statement or allegedly untrue statement or omission or alleged omission made in such Registration Statement, preliminary prospectus, final prospectus, or summary prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to the Company, in writing, by such selling holder expressly for use therein. The Company also shall indemnify any Underwriter of the Registrable Securities, their officers, affiliates, directors, partners, members and agents and each person who controls such Underwriter on substantially the same basis as that of the indemnification provided above in this Section 4.1.
4.2 Indemnification by Holders of Registrable Securities. Each selling holder of Registrable Securities will, in the event that any registration is being effected under the Securities Act pursuant to this Agreement of any Registrable Securities held by such selling holder, indemnify and hold harmless the Company, each of its directors and officers and each Underwriter (if any), and each other selling holder and each other person, if any, who controls another selling holder or such Underwriter within the meaning of the Securities Act, against any losses, claims, judgments, damages or liabilities, whether joint or several, insofar as such losses, claims, judgments, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or allegedly untrue statement of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to the Registration Statement, or arise out of or are based upon any omission or the alleged omission to state a material fact required to be stated therein or necessary to make the statement therein not misleading, if the statement or omission was made in reliance upon and in conformity with information furnished in writing to the Company by such selling holder expressly for use therein, and shall reimburse the Company, its directors and officers, and each other selling holder or controlling person for any legal or other expenses reasonably incurred by any of them in connection with investigation or defending any such loss, claim, damage, liability or action. Each selling holder’s indemnification obligations hereunder shall be several and not joint and shall be limited to the amount of any net proceeds actually received by such selling holder.
4.3 Conduct of Indemnification Proceedings. Promptly after receipt by any person of any notice of any loss, claim, damage or liability or any action in respect of which indemnity may be sought pursuant to Section 4.1 or 4.2, such person (the “Indemnified Party”) shall, if a claim in respect thereof is to be made against any other person for indemnification hereunder, notify such other person (the “Indemnifying Party”) in writing of the loss, claim, judgment, damage, liability or action; provided, however, that the failure by the Indemnified Party to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which the Indemnifying Party may have to such Indemnified Party hereunder, except and solely to the extent the Indemnifying Party is actually prejudiced by such failure. If the Indemnified Party is seeking indemnification with respect to any claim or action brought against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in such claim or action, and, to the extent that it wishes, jointly with all other Indemnifying Parties, to assume control of the defense thereof with counsel satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of such claim or action, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that in any action in which both the Indemnified Party and the Indemnifying Party are named as defendants, the Indemnified Party shall have the right to employ separate counsel (but no more than one such separate counsel) to represent the Indemnified Party and its controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Indemnified Party against the Indemnifying Party, with the fees and expenses of such counsel to be paid by such Indemnifying Party if, based upon the written opinion of counsel of such Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, consent to entry of judgment or effect any settlement of any claim or pending or threatened proceeding in respect of which the Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such judgment or settlement includes an unconditional release of such Indemnified Party from all liability arising out of such claim or proceeding.
4.4 Contribution.
4.4.1 If the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3 is unavailable to any Indemnified Party in respect of any loss, claim, damage, liability or action referred to herein, then each such Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage, liability or action in such proportion as is appropriate to reflect the relative fault of the Indemnified Parties and the Indemnifying Parties in connection with the actions or omissions which resulted in such loss, claim, damage, liability or action, as well as any other relevant equitable considerations. The relative fault of any Indemnified Party and any Indemnifying Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by such Indemnified Party or such Indemnifying Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
4.4.2 The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding Section 4.4.1.
4.4.3 The amount paid or payable by an Indemnified Party as a result of any loss, claim, damage, liability or action referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 4.4, no holder of Registrable Securities shall be required to contribute any amount in excess of the dollar amount of the net proceeds (after payment of any underwriting fees, discounts, commissions or taxes) actually received by such holder from the sale of Registrable Securities which gave rise to such contribution obligation. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
5. RULE 144.
5.1 Rule 144. The Company covenants that it shall file any reports required to be filed by it under the Securities Act and the Exchange Act and shall take such further action as the holders of Registrable Securities may reasonably request, all to the extent required from time to time to enable such holders to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 under the Securities Act, as such Rules may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission. Upon the request of any holder of Registrable Securities, the Company shall deliver to such Holder a written certification of a duly authorized officer as to (A) whether the Company has filed (i) all reports and other materials required to be filed pursuant to Sections 13(a) or 15(d) of the Exchange Act, as applicable, during the preceding 12 months (or for such shorter period that the Company was required to file such reports and materials), other than Current Reports on Form 8-K and (ii) current “Form 10 information” (within the meaning of Rule 144 under the Securities Act) with the Commission reflecting the Company’s status as an entity that is no longer an issuer described in paragraph (i)(1)(i) of Rule 144 under the Securities Act and (B) the first date that the Company filed “Form 10 information” (within the meaning of Rule 144 under the Securities Act) with the Commission.
6. MISCELLANEOUS.
6.1 Other Registration Rights. The Company represents and warrants that, except as disclosed in the Company’s registration statement on Form S-1 (File No. 333-259031), no person, other than the holders of the Registrable Securities, has any right to require the Company to register any of the Company’s share capital for sale or to include the Company’s share capital in any registration filed by the Company for the sale of share capital for its own account or for the account of any other person.
6.2 Assignment; No Third Party Beneficiaries. This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part. This Agreement and the rights, duties and obligations of the holders of Registrable Securities hereunder may be freely assigned or delegated by such holder of Registrable Securities in conjunction with and to the extent of any transfer of Registrable Securities by any such holder. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties, to the permitted assigns of the Investors or holder of Registrable Securities or of any assignee of the Investors or holder of Registrable Securities. This Agreement is not intended to confer any rights or benefits on any persons that are not party hereto other than as expressly set forth in Article 4 and this Section 6.2. Any additional holder of Registrable Securities may become party to this Agreement by executing and delivering a joinder to the Company and the Sponsor in form and substance reasonably satisfactory to the Company.
6.3 Notices. All notices, demands, requests, consents, approvals or other communications (collectively, “Notices”) required or permitted to be given hereunder or which are given with respect to this Agreement shall be in writing and shall be personally served, delivered by reputable air courier service with charges prepaid, or transmitted by hand delivery, telegram, telex or facsimile, addressed as set forth below, or to such other address as such party shall have specified most recently by written notice. Notice shall be deemed given on the date of service or transmission if personally served or transmitted by telegram, telex or facsimile; provided, that if such service or transmission is not on a business day or is after normal business hours, then such notice shall be deemed given on the next business day. Notice otherwise sent as provided herein shall be deemed given on the next business day following timely delivery of such notice to a reputable air courier service with an order for next-day delivery.
To the Company:
Kairous Acquisition Corp. Limited
Unit 9-3, Oval Tower @ Damansara,
No. 685, Jalan Damansara,
60000 Taman Tun Dr. Ismail,
Kuala Lumpur, Malaysia
Attn: Joseph Lee, Chief Executive Officer
E-mail: joseph@kairous.com
with a copy to:
Loeb & Loeb LLP
345 Park Avenue
New York, NY 10154
Attn: Lawrence Venick, Esq.
E-mail: lvenick@loeb.com
To an Investor, to the address set forth below such Investor’s name on Exhibit A hereto.
6.4 Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible that is valid and enforceable.
6.5 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument.
6.6 Entire Agreement. This Agreement (including all agreements entered into pursuant hereto and all certificates and instruments delivered pursuant hereto and thereto) constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, representations, understandings, negotiations and discussions between the parties, whether oral or written.
6.7 Modifications and Amendments. No amendment, modification or termination of this Agreement shall be binding upon the Company unless executed in writing by the Company. No amendment, modification or termination of this Agreement shall be binding upon the holders of the Registrable Securities unless executed in writing by the holders of the majority Registrable Securities.
6.8 Titles and Headings. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
6.9 Waivers and Extensions. Any party to this Agreement may waive any right, breach or default which such party has the right to waive, provided that such waiver will not be effective against the waiving party unless it is in writing, is signed by such party, and specifically refers to this Agreement. Waivers may be made in advance or after the right waived has arisen or the breach or default waived has occurred. Any waiver may be conditional. No waiver of any breach of any agreement or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof nor of any other agreement or provision herein contained. No waiver or extension of time for performance of any obligations or acts shall be deemed a waiver or extension of the time for performance of any other obligations or acts.
6.10 Remedies Cumulative. In the event that the Company fails to observe or perform any covenant or agreement to be observed or performed under this Agreement, the Investor or any other holder of Registrable Securities may proceed to protect and enforce its rights by suit in equity or action at law, whether for specific performance of any term contained in this Agreement or for an injunction against the breach of any such term or in aid of the exercise of any power granted in this Agreement or to enforce any other legal or equitable right, or to take any one or more of such actions, without being required to post a bond. None of the rights, powers or remedies conferred under this Agreement shall be mutually exclusive, and each such right, power or remedy shall be cumulative and in addition to any other right, power or remedy, whether conferred by this Agreement or now or hereafter available at law, in equity, by statute or otherwise.
6.11 Governing Law. This Agreement shall be governed by, interpreted under, and construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed within the State of New York, without giving effect to any choice-of-law provisions thereof that would compel the application of the substantive laws of any other jurisdiction. The venue for any action taken with respect to the Agreement shall be any state or federal court in New York County in the State of New York.
6.12 Waiver of Trial by Jury. Each party hereby irrevocably and unconditionally waives the right to a trial by jury in any action, suit, counterclaim or other proceeding (whether based on contract, tort or otherwise) arising out of, connected with or relating to this Agreement, the transactions contemplated hereby, or the actions of the Investor in the negotiation, administration, performance or enforcement hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be executed and delivered by their duly authorized representatives as of the date first written above.
| COMPANY: | |
|---|---|
| KAIROUS ACQUISITION CORP. LIMITED | |
| By: | /s/ Joseph Lee Moh Hon |
| Name: | Joseph Lee Moh Hon |
| Title: | Chief Executive Officer |
| INITIAL SHAREHOLDERS: | |
| --- | --- |
| Kairous Asia Limited | |
| By: | /s/ Joseph Lee Moh Hon |
| Name: | Joseph<br> Lee Moh Hon |
| Title: | Director |
| /s/ Joseph Lee Moh Hon | |
| Joseph<br> Lee Moh Hon | |
| /s/ Philip Wong Cheung Wang | |
| Philip<br> Wong Cheung Wang | |
| /s/ Steve Hsia Hsien-Chieng | |
| Steve<br> Hsia Hsien-Chieng | |
| /s/ Ng Kim Kiat | |
| Ng<br> Kim Kiat | |
| /s/ Dato’ Seri Chee Hong Leong | |
| Dato’<br> Seri Chee Hong Leong | |
| /s/ Ang Siak Keng | |
| Ang<br> Siak Keng |
EXHIBITA
| Name<br> and Address of Initial Shareholders |
|---|
| To<br> all Initial Shareholders:<br><br> <br><br><br> <br>c/o<br> Kairous Acquisition Corp. Limited<br><br> <br>Unit<br> 9-3, Oval Tower @ Damansara,<br><br> <br>No.<br> 685, Jalan Damansara,<br><br> <br>60000<br> Taman Tun Dr. Ismail,<br><br> <br>Kuala<br> Lumpur, Malaysia<br><br> Attn: Joseph Lee, Chief Executive Officer<br><br> E-mail: joseph@kairous.com |
Exhibit10.5
STOCKESCROW AGREEMENT
STOCK ESCROW AGREEMENT, dated as of December 13, 2021 (“Agreement”), by and among KAIROUS ACQUISITION CORP. LIMITED, a Cayman Islands Company (the “Company”), the initial shareholders listed on Exhibit A attached hereto (each, an “Initial Shareholder” and collectively the “Initial Shareholders”) and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a New York corporation (the “Escrow Agent”).
WHEREAS, the Company has entered into an Underwriting Agreement, dated as of December 13, 2021 (“Underwriting Agreement”), with Maxim Group LLC (“Maxim”), acting as the representative of the underwriters (collectively, the “Underwriters”), pursuant to which, among other matters, the Underwriters have agreed to purchase 7,500,000 units (“Units”) of the Company, plus an additional 1,125,000 Units if the Underwriters exercise their over-allotment option in full. Each Unit consists of one ordinary share of the Company, par value $0.0001 per share (an “Ordinary Share”), one-half (1/2) of one redeemable warrant, each whole redeemable warrant entitling its holder to purchase one Ordinary Share at an exercise price of $11.50 per full Ordinary Share, and one right to receive one-tenth (1/10) of an Ordinary Share, all as more fully described in the Company’s final Prospectus comprising part of the Company’s Registration Statement on Form S-1 (File No. 333-259031) under the Securities Act of 1933, as amended (“Registration Statement”), declared effective on December 13, 2021 (“Effective Date”).
WHEREAS, the Initial Shareholders have agreed as a condition of the sale of the Units to deposit their Insider Shares (as defined in the Prospectus), as set forth opposite their respective names in Exhibit A attached hereto (collectively “Escrow Shares”), in escrow as hereinafter provided.
WHEREAS, the Company and the Initial Shareholders desire that the Escrow Agent accept the Escrow Shares, in escrow, to be held and disbursed as hereinafter provided.
IT IS AGREED:
1. Appointment of Escrow Agent. The Company and the Initial Shareholders hereby appoint the Escrow Agent to act in accordance with and subject to the terms of this Agreement and the Escrow Agent hereby accepts such appointment and agrees to act in accordance with and subject to such terms.
2. Deposit of Escrow Shares. On or prior to the date hereof, each of the Initial Shareholders delivered to the Escrow Agent certificates representing such Initial Shareholder’s respective Escrow Shares, together with applicable share powers, to be held and disbursed subject to the terms and conditions of this Agreement. Each of the Initial Shareholders acknowledges that the certificate representing such Initial Shareholder’s Escrow Shares is legended to reflect the deposit of such Escrow Shares under this Agreement.
3. Disbursement of the Escrow Shares.
3.1 The Escrow Agent shall hold the Escrow Shares during the period (the “Escrow Period”) commencing on the date hereof and ending on the earlier of (x) six months after the date of the consummation of an initial Business Combination and (y) subsequent to the consummation of our initial business combination, (i) the date on which we consummate a liquidation, merger, stock exchange or other similar transaction which results in all of our shareholders having the right to exchange their ordinary shares for cash, securities or other property or (ii) the date on which the closing price of the Ordinary Share equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations) for any 20 trading days within any 30-trading day period commencing after 150 calendar days after the Company’s initial business combination (as described in the Registration Statement, hereinafter a “Business Combination”). The Company shall promptly provide written notice of the consummation of an initial Business Combination to the Escrow Agent. Upon receipt of written instructions from the Company duly executed by a company officer, the Escrow Agent shall disburse to each Initial Shareholder the Escrow Shares as described herein; provided, however, that if the Escrow Agent is notified by the Company pursuant to Section 6.7 hereof that the Company is being liquidated at any time during the Escrow Period, then the Escrow Agent shall promptly destroy the certificates representing the Escrow Shares; provided further, however, that if, any time after the Company consummates an initial Business Combination, the Company (or the surviving entity) subsequently consummates a liquidation, merger, stock exchange or other similar transaction which results in all of the shareholders of such entity having the right to exchange their Ordinary Shares for cash, securities or other property, then the Escrow Agent will, upon receipt of a written notice executed by the Chairman of the Board, Chief Executive Officer or other authorized officer of the Company, in form reasonably acceptable to the Escrow Agent, certifying that such transaction is then being consummated or such conditions have been achieved, as applicable, release the Escrow Shares to the Initial Shareholders. The Escrow Agent shall have no further duties hereunder after the disbursement or destruction of the Escrow Shares in accordance with this Section 3.
3.2 Notwithstanding Section 3.1, if the Underwriters do not exercise their over-allotment option to purchase an additional 1,125,000 Units of the Company in full within 45 days of the date of the Prospectus (as described in the Underwriting Agreement), the Initial Shareholders agree that the Escrow Agent shall return to the Company for cancellation, at no cost, the number of Escrow Shares held by each such holder determined by multiplying (a) the product of (i) 1,125,000 multiplied by (ii) a fraction, (x) the numerator of which is the number of Escrow Shares held by each such holder, and (y) the denominator of which is the total number of Escrow Shares, by (b) a fraction, (i) the numerator of which is 1,125,000 minus the number of Ordinary Shares purchased by the Underwriters upon the exercise of their over-allotment option, and (ii) the denominator of which is 1,125,000. The Company shall promptly provide written notice to the Escrow Agent of the expiration or termination of the Underwriters’ over-allotment option and the number of Units, if any, purchased by the Underwriters in connection with their exercise thereof.
4. Rights of Initial Shareholders in Escrow Shares.
4.1 Voting Rights as a Shareholder. Subject to the terms of the Insider Letters described in Section 4.4 hereof and except as herein provided, the Initial Shareholders shall retain all of their rights as shareholders of the Company during the Escrow Period, including, without limitation, the right to vote such shares.
4.2 Dividends and Other Distributions in Respect of the Escrow Shares. During the Escrow Period, all dividends payable in cash with respect to the Escrow Shares shall be paid to the Initial Shareholders, but all dividends payable in shares or other non-cash property (“Non-Cash Dividends”) shall be delivered to the Escrow Agent to hold in accordance with the terms hereof. As used herein, the term “Escrow Shares” shall be deemed to include the Non-Cash Dividends distributed thereon, if any.
4.3 Restrictions on Transfer. During the Escrow Period, the only permitted transfers of the Escrow Shares will be (i) to the Company’s pre-IPO shareholders, or to the Company’s officers, directors, advisors and employees, (ii) if the Initial Shareholder is an entity, as a distribution to partners, members or shareholders of the Initial Shareholder upon the liquidation and dissolution of the Initial Shareholder, (iii) by bona fide gift to a member of the Initial Shareholder’s immediate family or to a trust, the beneficiary of which is the Initial Shareholder or a member of the Initial Shareholder’s immediate family for estate planning purposes, (iv) by virtue of the laws of descent and distribution upon death of the Initial Shareholder, (v) pursuant to a qualified domestic relations order, (vi) by private sales made in connection with the consummation of a Business Combination at prices no greater than the price at which the Private Units were originally purchased or (vii) to the Company for cancellation in accordance with Section 3.2 above or in connection with the consummation of a Business Combination, in each case, except for clause (vii), on the condition that such transfers may be implemented only upon the respective transferee’s written agreement to be bound by the terms and conditions of this Agreement and of the Insider Letter (as defined below) signed by the Initial Shareholder transferring the Escrow Shares.
4.4 Insider Letters. Each of the Initial Shareholders has executed a letter agreement with Maxim and the Company, dated as indicated on Exhibit A hereto, and the form of which is filed as an exhibit to the Registration Statement (“Insider Letter”), respecting the rights and obligations of such Initial Shareholder in certain events, including but not limited to the liquidation of the Company.
5. Concerning the Escrow Agent.
5.1 Good Faith Reliance. The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and in the exercise of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected, unless it shall have given its prior written consent thereto.
5.2 Indemnification. The Escrow Agent shall be indemnified and held harmless by the Company from and against any expenses, including reasonable counsel fees and disbursements, or loss suffered by the Escrow Agent in connection with any action, suit or other proceeding involving any claim which in any way, directly or indirectly, arises out of or relates to this Agreement, the services of the Escrow Agent hereunder, or the Escrow Shares held by it hereunder, other than expenses or losses arising from the gross negligence or willful misconduct of the Escrow Agent. Promptly after the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall notify the other parties hereto in writing. In the event of the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an action in the nature of interpleader in an appropriate court to determine ownership or disposition of the Escrow Shares or it may deposit the Escrow Shares with the clerk of any appropriate court or it may retain the Escrow Shares pending receipt of a final, non-appealable order of a court having jurisdiction over all of the parties hereto directing to whom and under what circumstances the Escrow Shares are to be disbursed and delivered. The provisions of this Section 5.2 shall survive in the event the Escrow Agent resigns or is discharged pursuant to Sections 5.5 or 5.6 below.
5.3 Compensation. The Escrow Agent shall be entitled to reasonable compensation from the Company for all services rendered by it hereunder. The Escrow Agent shall also be entitled to reimbursement from the Company for all expenses paid or incurred by it in the administration of its duties hereunder including, but not limited to, all counsel, advisors’ and agents’ fees and disbursements and all taxes or other governmental charges.
5.4 Further Assurances. From time to time on and after the date hereof, the Company and the Initial Shareholders shall deliver or cause to be delivered to the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts as the Escrow Agent shall reasonably request to carry out more effectively the provisions and purposes of this Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder.
5.5 Resignation. The Escrow Agent may resign at any time and be discharged from its duties as escrow agent hereunder by its giving the other parties hereto written notice and such resignation shall become effective as hereinafter provided. Such resignation shall become effective at such time that the Escrow Agent shall turn over to a successor escrow agent appointed by the Company, the Escrow Shares held hereunder. If no new escrow agent is so appointed within the 60 day period following the giving of such notice of resignation, the Escrow Agent may deposit the Escrow Shares with any court it reasonably deems appropriate.
5.6 Discharge of Escrow Agent. The Escrow Agent shall resign and be discharged from its duties as escrow agent hereunder if so requested in writing at any time by the other parties hereto, jointly, provided, however, that such resignation shall become effective only upon acceptance of appointment by a successor escrow agent as provided in Section 5.5.
5.7 Liability. Notwithstanding anything herein to the contrary, the Escrow Agent shall not be relieved from liability hereunder for its own gross negligence or its own willful misconduct.
5.8 Waiver. The Escrow Agent hereby waives any right of set-off or any other right, title, interest or claim of any kind (“Claim”) in, or to any distribution of, the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of the date hereof, by and between the Company and the Escrow Agent as trustee thereunder) and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever.
6. Miscellaneous.
6.1 Governing Law. This Agreement shall for all purposes be deemed to be made under and shall be construed in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction.
6.2 Third Party Beneficiaries. Each of the Initial Shareholders hereby acknowledges that Maxim is a third party beneficiaries of this Agreement and this Agreement may not be modified or changed without the prior written consent of Maxim.
6.3 Entire Agreement. This Agreement contains the entire agreement of the parties hereto with respect to the subject matter hereof and, except as expressly provided herein, may not be changed or modified except by an instrument in writing signed by the party to the charged.
6.4 Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation thereof.
6.5 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective parties hereto and their legal representatives, successors and assigns.
6.6 Notices. Any notice or other communication required or which may be given hereunder shall be in writing and either be delivered personally or be mailed, certified or registered mail, or by private national courier service, return receipt requested, postage prepaid, by electronic mail or by facsimile transmission and shall be deemed given when so delivered personally or, if mailed, two days after the date of mailing, as follows:
If to the Company, to:
Kairous Acquisition Corp. Limited
Unit 9-3, Oval Tower @ Damansara,
No. 685, Jalan Damansara,
60000 Taman Tun Dr. Ismail,
Kuala Lumpur, Malaysia
Attn: Joseph Lee, Chief Executive Officer
E-mail: joseph@kairous.com
If to a Shareholder, to his address set forth in Exhibit A.
and if to the Escrow Agent, to:
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, NY 10004
Attn: Account Administration
E-mail: accountadmin@continentalstock.com
A copy (which copy shall not constitute notice) sent hereunder shall be sent to:
Maxim Group LLC
405 Lexington Ave
New York, NY 10174
Attn: Alex Jin
E-mail: ajin@maximgrp.com
and:
Loeb & Loeb LLP
345 Park Avenue
New York, New York 10154
Attn: Lawrence Venick, Esq.
E-mail: lvenick@loeb.com
and:
Hunter Taubman Fischer & Li LLC
800 Third Avenue
Suite 2800
New York, New York 10022
Attn: Guillaume de Sampigny, Esq.
E-mail: gdesampigny@htflawyers.com
The parties may change the persons and addresses to which the notices or other communications are to be sent by giving written notice to any such change in the manner provided herein for giving notice.
6.7 Liquidation of the Company. The Company shall give the Escrow Agent written notification of the liquidation and dissolution of the Company in the event that the Company fails to consummate a Business Combination within the time period specified in the Prospectus.
[SignaturePage Follows]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first written above.
| COMPANY: | |
|---|---|
| KAIROUS<br> ACQUISITION CORP. LIMITED | |
| By: | /s/ Joseph Lee |
| Name: | Joseph<br> Lee |
| Title: | Chief<br> Executive Officer |
| INITIAL<br>SHAREHOLDERS: | |
| --- | --- |
| Kairous<br> Asia Limited | |
| By: | /s/ Joseph Lee |
| Name: | Joseph<br> Lee |
| Title: | Director |
| /s/ Joseph Lee Moh Hon | |
| --- | |
| Joseph<br> Lee Moh Hon | |
| /s/ Philip Wong Cheung Wang | |
| Philip<br> Wong Cheung Wang | |
| /s/ Steve Hsia Hsien-Chieng | |
| Steve<br> Hsia Hsien-Chieng | |
| /s/ Ng Kim Kiat | |
| Ng<br> Kim Kiat | |
| /s/ Dato’ Seri Chee Hong Leong | |
| Dato’<br> Seri Chee Hong Leong | |
| /s/ Ang Siak Keng | |
| Ang<br> Siak Keng | |
| CONTINENTAL<br> STOCK TRANSFER & TRUST COMPANY | |
| --- | --- |
| By: | /s/ Douglas Reed |
| Name:<br> Douglas Reed | |
| Title:<br> Vice President |
EXHIBITA
| Name and Address of<br> <br>Initial Shareholder^1^ | Number of Shares | Date of Insider Letter | |
|---|---|---|---|
| Kairous Asia<br> Limited | 1,992,250 | December 13,<br> 2021 | |
| Joseph Lee Moh Hon | 50,000 | December 13, 2021 | |
| Philip Wong Cheung Wang | 45,000 | December 13, 2021 | |
| Steve Hsia Hsien-Chieng | 40,000 | December 13 , 2021 | |
| Ng Kim Kiat | 13,000 | December 13 , 2021 | |
| Dato*’* Seri Chee<br> Hong Leong | 8,000 | December 13 , 2021 | |
| Ang Siak Keng | 8,000 | December 13 , 2021 |
^1^The address of each of the individuals is c/o Kairous Acquisition Corp. Limited, Unit 9-3, Oval Tower @ Damansara, No. 685, Jalan Damansara, 60000 Taman Tun Dr. Ismail, Kuala Lumpur, Malaysia.
Exhibit10.6
Kairous Acquisition Corp. Limited
Unit 9-3, Oval Tower @ Damansara,
No. 685, Jalan Damansara,
60000 Taman Tun Dr. Ismail,
Kuala Lumpur, Malaysia
December 13, 2021
Ladies and Gentlemen:
Kairous Acquisition Corp. Limited (the “Company”), a blank check company formed for the purpose of acquiring one or more businesses or entities (a “Business Combination”), intends to register its securities under the Securities Act of 1933, as amended (“Securities Act”), in connection with its initial public offering (“IPO”), pursuant to a registration statement on Form S-1 (“Registration Statement”).
The undersigned hereby commits that it will purchase 348,143 units of the Company (“Private Units”), each Private Unit consisting of one ordinary share of the Company, par value $0.0001 per share (the “Ordinary Shares”), one-half of one redeemable warrant and one right to receive one-tenth (1/10) of one Ordinary Share, at $10.00 per Private Unit, for a purchase price of $3,481,430 (the “Private Unit Purchase Price”).
The undersigned hereby agrees that it will purchase an additional amount of units of the Company (“Over-Allotment Units”), up to a maximum of 33,750 Over-Allotment Units, or a maximum purchase price of $337,500 (“Over-Allotment Unit Purchase Price”, together with the Private Unit Purchase Price, the “Purchase Price”), in the event Maxim Group LLC (“Maxim”) exercises its over-allotment option, such that the amount held in the trust account (as described in the Registration Statement) does not fall below $10.00 per share for each Ordinary Share sold in the IPO.
At least twenty-four (24) hours prior to the effective date of the Registration Statement, the undersigned will cause the Private Unit Purchase Price to be delivered to Loeb & Loeb LLP (“Loeb”), counsel for the Company, by wire transfer as set forth in the instructions attached as Exhibit A to hold in a non-interest bearing account until the Company consummates the IPO.
The consummation of the purchase and issuance of the Private Units shall occur simultaneously with the consummation of the IPO and the consummation of the purchase and issuance of the Over-Allotment Units shall occur simultaneously with the closing of any exercise of the over-allotment option related to the IPO. Simultaneously with the consummation of the IPO, Loeb shall deposit the Private Unit Purchase Price, without interest or deduction, into the trust fund (“Trust Fund”) established by the Company for the benefit of the Company’s public shareholders as described in the Registration Statement. If the Company does not complete the IPO within ten (10) days from the date of this letter, the Private Unit Purchase Price (without interest or deduction) will be returned to the undersigned.
Each of the Company, and the undersigned acknowledges and agrees that Loeb is serving hereunder solely as a convenience to the parties to facilitate the purchase of the Private Units and Loeb’s sole obligation under this letter agreement is to act with respect to holding and disbursing the Private Unit Purchase Price as described above. Loeb shall not be liable to the Company, Maxim or the undersigned or any other person or entity in respect of any act or failure to act hereunder or otherwise in connection with performing its services hereunder unless Loeb has acted in a manner constituting gross negligence or willful misconduct. The Company and the undersigned shall indemnify Loeb against any claim made against it (including reasonable attorney’s fees) by reason of it acting or failing to act in connection with this letter agreement except as a result of its gross negligence or willful misconduct. Loeb may rely and shall be protected in acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties.
The Private Units and Over-Allotment Units will be identical to the units to be sold by the Company in the IPO. Additionally, the undersigned agrees:
| ● | to<br> vote the Ordinary Shares included in the Private Units and Over-Allotment Units in favor<br> of any proposed Business Combination; |
|---|---|
| ● | not<br> to propose, or vote in favor of, an amendment to the Company’s Amended and Restated<br> Memorandum and Articles of Association that would affect the substance or timing of the Company’s<br> obligation to redeem 100% of the Company’s Ordinary Shares sold in the IPO if the Company<br> does not complete an initial Business Combination within 24 months from the closing of the<br> IPO, unless the Company provides the holders of Ordinary Shares sold in the IPO with the<br> opportunity to redeem their Ordinary Shares upon approval of any such amendment at a per-share<br> price, payable in cash, equal to the aggregate amount of the Trust Fund, including interest<br> earned on Trust Fund and not previously released to the Company to pay the Company’s<br> franchise and income taxes, divided by the number of then outstanding Ordinary Shares sold<br> in the IPO; |
| ● | not<br> to convert any Ordinary Shares included in the Private Units and Over-Allotment Units into<br> the right to receive cash from the Trust Fund in connection with a shareholder vote to approve<br> either a Business Combination or an amendment to the provisions of the Company’s Amended<br> and Restated Memorandum and Articles of Association, and not to tender the Private Units<br> and Over-Allotment Units in connection with a tender offer conducted prior to the closing<br> of a Business Combination; |
| ● | the<br> undersigned will not participate in any liquidation distribution with respect to the Private<br> Units and Over-Allotment Units (but will participate in liquidation distributions with respect<br> to any units or Ordinary Shares purchased by the undersigned in the IPO or in the open market)<br> if the Company fails to consummate a Business Combination; |
| ● | that<br> the Private Units, Over-Allotment Units and underlying securities will not be transferable<br> until after the consummation of a Business Combination except (i) to the Company’s<br> pre-IPO shareholders, or to the Company’s officers, directors, advisors and employees,<br> (ii) transfers to the undersigned’s affiliates or its members upon its liquidation,<br> (iii) to relatives and trusts for estate planning purposes, (iv) by virtue of the laws of<br> descent and distribution upon death, (v) pursuant to a qualified domestic relations order,<br> (vi) by private sales made in connection with the consummation of a Business Combination<br> at prices no greater than the price at which the Private Units were originally purchased<br> or (vii) to the Company for cancellation in connection with the consummation of a Business<br> Combination, in each case (except for clause vii) where the transferee agrees to the terms<br> of the transfer restrictions; and |
| ● | the<br> Private Units and Over-Allotment Units will include any additional terms or restrictions<br> as is customary in other similarly structured blank check company offerings or as may be<br> reasonably required by the underwriters in the IPO in order to consummate the IPO, each of<br> which will be set forth in the Registration Statement. |
The undersigned acknowledges and agrees that the purchaser of the Private Units and Over-Allotment Units will execute agreements in form and substance typical for transactions of this nature necessary to effectuate the foregoing agreements and obligations prior to the consummation of the IPO as are reasonably acceptable to the undersigned, including but not limited to an insider letter.
The undersigned hereby represents and warrants that:
| (a) | it<br> has been advised that the Private Units and Over-Allotment Units have not been registered<br> under the Securities Act; |
|---|---|
| (b) | it<br> will be acquiring the Private Units and Over-Allotment Units for its account for investment<br> purposes only; |
| (c) | it<br> has no present intention of selling or otherwise disposing of the Private Units and Over-Allotment<br> Units in violation of the securities laws of the United States; |
| (d) | it<br> is an “accredited investor” as defined by Rule 501 of Regulation D promulgated<br> under the Securities Act of 1933, as amended; |
| (e) | it<br> has had both the opportunity to ask questions and receive answers from the officers and directors<br> of the Company and all persons acting on its behalf concerning the terms and conditions of<br> the offer made hereunder; |
| (f) | it<br> is familiar with the proposed business, management, financial condition and affairs of the<br> Company; |
| (g) | it<br> has full power, authority and legal capacity to execute and deliver this letter and any documents<br> contemplated herein or needed to consummate the transactions contemplated in this letter;<br> and |
| (h) | this<br> letter constitutes its legal, valid and binding obligation, and is enforceable against it. |
This letter agreement constitutes the entire agreement between the undersigned and the Company with respect to the purchase of the Private Units and Over-Allotment Units, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the same.
| Very truly yours, | |
|---|---|
| Kairous Asia Limited | |
| By: | /s/ Joseph Lee Moh Hon |
| Name: | Joseph<br> Lee Moh Hon |
| Title: | Director |
| Accepted and Agreed: | |
| --- | --- |
| KAIROUS ACQUISITION CORP. LIMITED | |
| By: | /s/ Joseph Lee Moh Hon |
| Name: | Joseph<br> Lee Moh Hon |
| Title: | Chief<br> Executive Officer |
Exhibit 99.1
Kairous Acquisition Corp. Limited Pricing of $75Million Initial Public Offering
Malaysia – December 13, 2021 – Kairous Acquisition Corp. Limited (the “Company”), a newly organized blank check company incorporated as a Cayman Islands business company and led by Chief Executive Officer, Joseph Lee, today announced the pricing of its initial public offering of 7,500,000 units at an offering price of $10.00 per unit, with each unit consisting of one ordinary share, one half of one redeemable warrant, and one right to receive one-tenth (1/10) of an ordinary share. Each whole warrant will entitle the holder thereof to purchase one ordinary share, and each ten rights entitle the holder thereof to receive one ordinary share. The exercise price of the warrants is $11.50 per full share. The units are expected to trade on the Nasdaq Global Market (“Nasdaq”) under the ticker symbol “KACLU” beginning on December 14, 2021. Once the securities comprising the units begin separate trading, the ordinary shares, warrants and rights will be traded on Nasdaq under the symbols “KACL,” “KACLW,” and “KACLR,” respectively. No fractional warrants will be issued upon separation of the units and only whole warrants will trade. The offering is expected to close on December 16, 2021, subject to customary closing conditions.
Maxim Group LLC is acting as sole book-running manager for the offering. The Company has granted the underwriter a 45-day option to purchase up to 1,125,000 additional units at the initial public offering price to cover over-allotments, if any.
A registration statement on Form S-1 (File 333-259031) relating to the securities sold in the initial public offering was declared effective by the U.S. Securities and Exchange Commission (the “SEC”) on December 13, 2021. The offering is being made only by means of a prospectus. When available, copies of the prospectus relating to this offering may be obtained from Maxim Group LLC, 300 Park Ave, 16^th^ Floor, New York, NY 10022, or by accessing the SEC’s website, www.sec.gov.
This press release shall not constitute an offerto sell or a solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in which suchoffer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
About Kairous Acquisition Corp. Limited
Kairous Acquisition Corp. Limited is a blank check company, also commonly referred to as a special purpose acquisition company, or SPAC, formed for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses or entities.
Forward-Looking Statements
This press release contains statements that constitute “forward-looking statements,” including with respect to the Company’s initial public offering (“IPO”) and search for an initial business combination. No assurance can be given that the offering discussed above will be completed on the terms described, or at all, or that the net proceeds of the offering will be used as indicated. Forward-looking statements are subject to numerous conditions, many of which are beyond the control of Kairous Acquisition Corp. Limited, including those set forth in the Risk Factors section of Kairous Acquisition Corp. Limited’s registration statement and preliminary prospectus for the IPO filed with the SEC. Copies are available on the SEC’s website, www.sec.gov. Kairous Acquisition Corp. Limited undertakes no obligation to update these statements for revisions or changes after the date of this release, except as required by law.
Contact Information:
At the Company:
Joseph Lee
Chief Executive Officer
Email: joseph@kairous.com
Tel: +603 7733 9340
Investor Relations:
Adrian Hia / Teng Hau Lee
Manager
Email: ir@kairous.com
Tel: +603 7733 9340
Exhibit99.2
KairousAcquisition Corp. Closes $78.0 Million Initial Public Offering, Including Partial Exercise of the Overallotment Option
Malaysia– December 16, 2021 – Kairous Acquisition Corp. Limited (the “Company”), a newly organized blank check company incorporated as a Cayman Islands business company and led by Chief Executive Officer, Joseph Lee, today announced the closing of its initial public offering of 7,800,000 units at an offering price of $10.00 per unit, which includes 300,000 units issued pursuant to the partial exercise of the underwriter’s over-allotment option, for aggregate gross proceeds to the Company of $78,000,000. Each unit consists of one ordinary share, one half of one redeemable warrant, and one right to receive one-tenth (1/10) of an ordinary share. Each whole warrant entitles the holder thereof to purchase one ordinary share at a price of $11.50 per share, and each ten rights entitle the holder thereof to receive one ordinary share.. The units began trading on the Nasdaq Global Market (“Nasdaq”) under the ticker symbol “KACLU” on December 14, 2021. Once the securities comprising the units begin separate trading, the ordinary shares, warrants and rights will be traded on Nasdaq under the symbols “KACL,” “KACLW,” and “KACLR,” respectively. No fractional warrants will be issued upon separation of the units and only whole warrants will trade.
Maxim Group LLC acted as the sole book-running manager for the offering.
A registration statement on Form S-1 (File 333-259031) relating to the securities sold in the initial public offering was declared effective by the U.S. Securities and Exchange Commission (the “SEC”) on December 13, 2021. The offering was made only by means of a prospectus. Copies of the prospectus relating to this offering may be obtained from Maxim Group LLC, 300 Park Avenue, 16^th^ Floor, New York, NY 10022, or by accessing the SEC’s website, www.sec.gov.
Thispress release shall not constitute an offer to sell or a solicitation of an offer to buy, nor shall there be any sale of these securitiesin any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification underthe securities laws of any such state or jurisdiction.
AboutKairous Acquisition Corp. Limited
Kairous Acquisition Corp. Limited is a blank check company, also commonly referred to as a special purpose acquisition company, or SPAC, formed for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses or entities.
Forward-LookingStatements
This press release contains statements that constitute “forward-looking statements,” including with respect to the Company’s initial public offering and the anticipated use of the net proceeds thereof. Forward-looking statements are subject to numerous conditions, many of which are beyond the control of the Company, including those set forth in the Risk Factors section of the Company’s registration statement and final prospectus for the offering filed with the SEC. Copies are available on the SEC’s website, www.sec.gov. The Company undertakes no obligation to update these statements for revisions or changes after the date of this release, except as required by law.
ContactInformation:
At the Company:
Joseph Lee
Chief Executive Officer
Email: joseph@kairous.com
Tel: +603 7733 9340
Investor Relations:
Adrian Hia / Teng Hau Lee
Manager
Email: ir@kairous.com
Tel: +603 7733 9340