Nvni Group Ltd 20-F, filed Sep 29, 2023
Nvni Group Ltd (NVNIF)
About this 20-F
Nvni Group Ltd filed this 20-F on September 29, 2023, covering the fiscal year ended September 29, 2023.
Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 20-F
(Mark One)
| ☐ | REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934 |
OR
| ☐ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended
OR
| ☐ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
OR
| ☒ | SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Date of event requiring this shell company report: September 29, 2023
Commission File Number: 001-41823
Nvni Group Limited
(Exact name of Registrant as specified in its charter)
| Not applicable | Cayman Islands | |
| (Translation of Registrant’s name into English) |
(Jurisdiction of incorporation or organization) |
P.O. Box 10008, Willow House, Cricket Square
Grand Cayman, Cayman Islands KY1-1001
(Address of principal executive offices)
Pierre Schurmann
Telephone: (+55 11) 5642-3370
Email: p@nuvini.com.br
At the address of the Company set forth above
(Name, Telephone, Email and/or Facsimile number and Address of Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
| Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered | ||
| Ordinary shares, par value $0.00001per share | NVNI | The Nasdaq Stock Market LLC (Nasdaq Capital Market) | ||
| Warrants to purchase ordinary shares, each whole warrant exercisable for one ordinary share at an exercise price of $11.50 | NVNIW | The Nasdaq Stock Market LLC (Nasdaq Capital Market) |
Securities registered or to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act:
None
(Title of Class)
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the shell company report: As of September 29, 2023, the issuer had 27,723,999 ordinary shares and 23,050,000 warrants to purchase ordinary shares outstanding.
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. Yes ☐ No ☐
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☐ No ☒
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth company. See definition of “large accelerated filer,” “accelerated filer,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non accelerated filer | ☒ | Emerging growth company | ☒ | |||
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 13(a) of the Exchange Act. ☐
| † | The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012. |
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
| U.S. GAAP ☐ |
International Financial Reporting Standards as issued by the International Accounting Standards Board ☒ | Other ☐ |
If “Other” has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to follow: Item 17 ☐ Item 18 ☐
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☐
Table of Contents
| ii | ||||||
| iii | ||||||
| 1 | ||||||
| Item 1. |
Identity of Directors, Senior Management and Advisers | 1 | ||||
| Item 2. |
Offer Statistics and Expected Timetable | 1 | ||||
| Item 3. |
Key Information | 1 | ||||
| Item 4. |
Information on the Company | 2 | ||||
| Item 4A. |
Unresolved Staff Comments | 3 | ||||
| Item 5. |
Operating and Financial Review and Prospects | 3 | ||||
| Item 6. |
Directors, Senior Management and Employees | 3 | ||||
| Item 7. |
Major Shareholders and Related Party Transactions | 4 | ||||
| Item 8. |
Financial Information | 6 | ||||
| Item 9. |
The Offer and Listing | 6 | ||||
| Item 10. |
Additional Information | 7 | ||||
| Item 11. |
Quantitative and Qualitative Disclosures About Market Risk | 9 | ||||
| Item 12. |
Description of Securities Other than Equity Securities | 9 | ||||
| 10 | ||||||
| 10 | ||||||
| Item 17. |
Financial Statements | 10 | ||||
| Item 18. |
Financial Statements | 10 | ||||
| Item 19. |
Exhibits | 11 | ||||
Table of Contents
On September 29, 2023 (the “Closing Date”), Nvni Group Limited, an exempted company incorporated with limited liability in the Cayman Islands (“New Nuvini” or the “Company”), consummated the previously announced business combination pursuant to the Business Combination Agreement, dated February 26, 2023 (as amended on September 28, 2023, and as may be further amended, modified or supplemented from time to time, the “Business Combination Agreement”), by and among New Nuvini, Nuvini Holdings Limited, an exempted company incorporated with limited liability in the Cayman Islands (“Nuvini”), Nuvini Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and Mercato Partners Acquisition Corporation, a Delaware corporation (“Mercato”). Pursuant to the Business Combination Agreement, among other things, (i) on the business day preceding the Closing Date, Nuvini shareholders contributed (the “Contribution”) to New Nuvini all of the issued and outstanding ordinary shares, par value $0.00001 per share, of Nuvini ( “Nuvini Ordinary Shares”) in exchange for newly issued ordinary shares, par value $0.00001 per share, of New Nuvini (“New Nuvini Ordinary Shares”) and (ii) on the Closing Date, Merger Sub merged with and into Mercato, with Mercato surviving as a wholly-owned, indirect subsidiary of New Nuvini (the “Merger” and together with the Contribution and the other transactions contemplated by the Business Combination Agreement and the Ancillary Documents (as defined in the Company’s Amendment No. 4 to the Registration Statement on Form F-4 (333-272688) filed with the Securities and Exchange Commission (the “SEC”) on September 6, 2023 (as amended through the date of this Report, the “Form F-4”)), the “Business Combination”).
As a result of the Merger, (i) each issued and outstanding public unit of Mercato (collectively, “Mercato Units”) was separated into its constituent securities (i.e., one share of Mercato’s Class A Common Stock, par value $0.0001 per share (“Mercato Class A Common Stock”), and one-half of one warrant to purchase one share of Class A Common Stock (“Mercato Warrant”)); (ii) each issued and outstanding share of Mercato Class A Common Stock was canceled and converted into the right to receive one New Nuvini Ordinary Share; and (iii) each issued and outstanding Mercato Warrant was converted into one warrant to purchase one New Nuvini Ordinary Share at an exercise price of $11.50 per share (the “New Nuvini Warrants”), on substantially the same contractual terms and thereupon was assumed by New Nuvini pursuant to the Warrant Termination and Adoption Agreement, dated as of the Closing Date, by and among Mercato, New Nuvini and Continental Stock Transfer & Trust Company, a copy of which is filed hereto as Exhibit 2.3.
The Business Combination was unanimously approved by the Mercato board of directors and was approved at the special meeting of Mercato stockholders held on September 28, 2023 (the “Mercato Special Meeting”). Mercato stockholders also voted and approved all other proposals presented at the Mercato Special Meeting. Mercato stockholders exercised their redemption rights in respect of 4,204,655 shares of Mercato Class A Common Stock.
On September 24, 2023 and September 27, 2023, Mercato entered into separate subscription agreements (the “Subscription Agreements”) with certain investors (collectively, the “PIPE Investors”). Pursuant to the Subscription Agreements, the PIPE Investors agreed to subscribe for and purchase, and Mercato agreed to issue and sell to the PIPE Investors, immediately prior to the Closing, an aggregate of 1,280,000 shares of Mercato Class A common stock for a purchase price of $10.00 per share, for aggregate gross proceeds of $12.8 million. On September 27, 2023, Mercato, New Nuvini and Maxim Group LLC (“Maxim”), which acted as Mercato’s financial advisor in connection with the Business Combination, agreed that, as partial consideration for Maxim’s advisory services and in lieu of a portion of Maxim’s advisory fees that would otherwise be payable in cash, an entity affiliated with Maxim will receive 475,000 newly issued shares (the “Maxim Advisory Shares”) of Mercato Common Stock.
Immediately prior to closing of the Business Combination there were 7,246,707 shares of Mercato Class A Common Stock and 354,001 shares of Mercato’s Class B Common Stock, par value $0.0001 per share, issued and outstanding.
On the Closing Date, all outstanding shares of Mercato Common Stock (including shares sold pursuant to the Subscription Agreements and the Maxim Advisory Shares) will be exchanged for newly issued New Nuvini Ordinary Shares in accordance with the terms of the Business Combination Agreement,
In addition, an aggregate consideration to legacy Nuvini shareholders of 24,016,662 New Nuvini Ordinary Shares was delivered, of which, (a) 20,132,291 New Nuvini Ordinary Shares were issued on the Closing Date to legacy Nuvini shareholders; and (b) the following amounts of New Nuvini Ordinary Shares were reserved: (i) 2,740,721 New Nuvini Ordinary Shares issuable upon exercise which are associated with liabilities payable in shares such as loan premium, subscription rights, and contingent consideration assumed by New Nuvini as a result of the Business Combination; and (ii) 1,143,650 New Nuvini Ordinary Shares under the New Nuvini 2023 Incentive Plan.
On October 2, 2023, New Nuvini Ordinary Shares and New Nuvini Warrants will commence trading on the Nasdaq Capital Market (“Nasdaq”) under the ticker symbols “NVNI” and “NVNIW,” respectively.
Certain amounts that appear in this shell company report on Form 20-F (including information incorporated by reference herein, the “Report”) may not sum due to rounding. Except as otherwise indicated or required by context, references in this Report to “we,” “us,” “our” or “Company” refer to New Nuvini and its subsidiaries.
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SPECIAL NOTE ABOUT FORWARD LOOKING STATEMENTS
Some of the statements contained in this Report include or may include “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Exchange Act of 1934, as amended (the “Exchange Act”), which are intended to be covered by the safe harbors created by those laws. These forward-looking statements include, but are not limited to, statements regarding the expectations, hopes, beliefs, intentions or strategies regarding the future. The forward-looking statements contained in this proxy statement/prospectus are based on current expectations and beliefs concerning future developments and their potential effects on the Company. There can be no assurance that future developments affecting the Company will be those that we have anticipated. Where a forward-looking statement expresses or implies an expectation or belief as to future events or results, such expectation or belief is expressed in good faith and believed to have a reasonable basis. All statements other than statements of historical fact may be forward-looking statements. The words “anticipate,” “believe,” “estimate,” “expect,” “intend,” “forecast,” “outlook,” “aim,” “target,” “will,” “could,” “should,” “may,” “likely,” “plan,” “probably” or similar words may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. Forward-looking statements contained in this Report include, but are not limited to, statements about the ability of the Company following the consummation of the Business Combination to:
| • | maintain the listing of New Nuvini Ordinary Shares and New Nuvini Warrants on Nasdaq; |
| • | address the risk that the consummation of the Business Combination disrupts current plans and operations of Nuvini; |
| • | realize the benefits expected from the Business Combination and the transactions contemplated thereby; |
| • | achieve projections and anticipate uncertainties relating to the business, operations and financial performance of the Company after the Business Combination, including (i) expectations with respect to financial and business performance, including financial projections and business metrics and any underlying assumptions, (ii) expectations regarding market size, future acquisitions, partnerships or other relationships with third parties, (iii) expectations on Nuvini’s proprietary technology and related intellectual property rights, and (iv) future capital requirements and sources and uses of cash, including the ability to obtain additional capital in the future; |
| • | retain and hire necessary employees; |
| • | attract, train and retain effective officers, key employees or directors; |
| • | enhance future operating and financial results; |
| • | comply with applicable laws and regulations; |
| • | stay abreast of modified or new laws and regulations applying to its business, including privacy regulation; |
| • | anticipate the impact of, and response to, new accounting standards; |
| • | anticipate the significance and timing of contractual obligations; |
| • | maintain key strategic relationships with partners and customers; |
| • | successfully defend litigation; |
| • | upgrade, maintain and secure information technology systems; |
| • | acquire, maintain and protect intellectual property; |
| • | anticipate rapid technological changes; |
| • | meet future liquidity requirements; |
| • | effectively respond to general economic and business conditions; |
| • | obtain additional capital; and |
| • | successfully deploy the proceeds from the Business Combination. |
While forward-looking statements reflect the Company’s good faith beliefs, they are not guarantees of future performance. Except as otherwise required by applicable law, the Company disclaims any obligation to publicly update or revise any forward-looking statement to reflect changes in underlying assumptions or factors, new information, data or methods, future events or other changes after the date of this Report, except as required by applicable law. For a further discussion of these and other factors that could cause the Company’s future results, performance or transactions to differ significantly from those expressed in any forward-looking statement, please see the section “Risk Factors” of the Form F-4, which is incorporated by reference into this Report. You should not place undue reliance on any forward-looking statements, which are based only on information currently available to the Company.
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| Item 1. | Identity of Directors, Senior Management and Advisers |
| A. | Directors and Senior Management |
The directors and executive officers of the Company upon the consummation of the Business Combination are set forth in the Form F-4, in the section titled “Management of New Nuvini After the Business Combination,” and under Item 6.A of this Report, which are incorporated herein by reference. The business address for each of the Company’s directors and executive officers is P.O. Box 10008, Willow House, Cricket Square, Grand Cayman, Cayman Islands KY1-1001.
| B. | Advisers |
Mayer Brown LLP, with an address at 71 South Wacker Drive, Chicago, Illinois 60606, has acted as counsel for the Company with respect to New York and U.S. federal law and continues to act as counsel for the Company with respect to New York and U.S. federal law following the consummation of the Business Combination.
Tauil & Chequer Advogados, affiliate of Mayer Brown LLP and with an address at Avenida Presidente Juscelino, – 5°, 6° e 7° andares, São Paulo/SP, Brazil 04543-011, has acted as counsel for the Company with respect to Brazilian law and continues to act as counsel for the Company with respect to Brazilian law following the consummation of the Business Combination.
Carey Olsen (Cayman Islands) LLP, with an address at P.O. Box 10008, Willow House, Cricket Square, Grand Cayman, Cayman Islands KY1-10001, has acted as counsel for the Company with respect to Cayman Islands law and continues to act as counsel for the Company with respect to Cayman Islands law following the consummation of the Business Combination.
| C. | Auditors |
The Company was incorporated on November 16, 2022 for the purpose of effectuating the Business Combination. Prior to the consummation of the Business Combination, the Company had no material assets and did not operate any businesses. Accordingly, no financial statements of the Company have been included in this Report.
Deloitte Touche Tohmatsu Auditores Independentes Ltda, Av. Chucri Zaidan, 1240 São Paulo, Brazil, has acted as the independent registered public accounting firm for Nuvini S.A., a corporation (sociedade por ações) duly incorporated and organized under the laws of Brazil, for the years ended December 31, 2022 and 2021. Following the consummation of the Business Combination, the Company intends to retain Deloitte Touche Tohmatsu Auditores Independentes Ltda as the Company’s independent registered public accounting firm.
Marcum LLP, 730 Third Avenue, 525 Okeechobee Blvd # 750, West Palm Beach, FL 33401, acted as the independent registered public accounting firm for Mercato as of December 31, 2022 and 2021, and for the year ended December 31, 2021 and for the period from February 22, 2021 (inception) through December 31, 2021.
| Item 2. | Offer Statistics and Expected Timetable |
Not applicable.
| Item 3. | Key Information |
| A. | [Reserved] |
| B. | Capitalization and Indebtedness |
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Table of Contents
The following table sets forth the capitalization of the Company on an unaudited pro forma combined basis as of December 31, 2022, after giving effect to the Business Combination and the related transactions.
| As of December 31, 2022 |
(R$ thousands) | |||
| Cash and cash equivalents |
$ | 15,249 | ||
| Equity: |
||||
| Share premium |
602,275 | |||
| Capital reserves |
54,632 | |||
| Accumulated losses |
(630,690 | ) | ||
| Other comprehensive income |
291 | |||
| Non-controlling interest |
3,853 | |||
|
|
|
|||
| Total shareholders’ equity |
30,361 | |||
| Debt (current and non-current): |
||||
| Debentures |
60,873 | |||
| Deferred and contingent consideration on acquisitions |
151,044 | |||
| Other liabilities |
132,561 | |||
|
|
|
|||
| Total Debt |
344,478 | |||
|
|
|
|||
| Total Capitalization |
374,839 | |||
|
|
|
|||
| C. | Reasons for the Offer and Use of Proceeds |
Not applicable.
| D. | Risk Factors |
The risk factors associated with the Company are described in the Form F-4 in the section titled “Risk Factors,” which is incorporated herein by reference.
| Item 4. | Information on the Company |
| A. | History and Development of the Company |
See “Explanatory Note” in this Report for additional information regarding the Company and the Business Combination Agreement. The Company was incorporated under the laws of the Cayman Islands on November 16, 2022 for the purpose of effectuating the Business Combination. The mailing address of the Company’s registered office is P.O. Box 10008, Willow House, Cricket Square Grand Cayman, Cayman Islands KY1-1001. The Company’s principal executive office is P.O. Box 10008, Willow House, Cricket Square Grand Cayman, Cayman Islands KY1-1001. The telephone number of the Company’s principal executive office is +55 11 5642-3370. The history and development of the Company and the material terms of the Business Combination are set forth in the Form F-4, in the sections titled “Summary of the Proxy Statement/Prospectus,” “The Business Combination” and “Business of New Nuvini Before the Business Combination” which are incorporated herein by reference.
The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. The SEC’s website is http://www.sec.gov. The Company’s principal website address is https://www.nuvini.co/. We do not incorporate the information contained on, or accessible through, the Company’s websites into this Report, and you should not consider it a part of this Report.
| B. | Business Overview |
Following and as a result of the Business Combination, all of the Company’s business is conducted through Nuvini and its subsidiaries. A description of the business is included in the Form F-4 in the sections titled “Business of Nuvini and Certain Information about Nuvini” and “Nuvini S.A. Management’s Discussion and Analysis of Financial Condition and Results of Operations,” which are incorporated herein by reference.
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| C. | Organizational Structure |
Upon consummation of the Business Combination, Nuvini has become a wholly-owned subsidiary of the Company. The subsidiaries of the Company are listed below:
| Legal Name |
Jurisdiction of Incorporation | Percentage Ownership Interest Held by the Company |
||||
| Nuvini S.A. |
Brazil | 100 | % | |||
| Nuvini LLC |
United States | 100 | % | |||
| Effecti Tecnologia WEB LTDA. |
Brazil | 100 | % | |||
| Leadlovers Tecnologia LTDA. |
Brazil | 100 | % | |||
| Ipe Tecnologia LTDA. |
Brazil | 100 | % | |||
| Dataminer Dados, Informacoes E Documentos LTDA. |
Brazil | 100 | % | |||
| OnClick Sistemas de Informacao LTDA. |
Brazil | 100 | % | |||
| Simplest Software LTDA. |
Brazil | 57.91 | % | |||
| Smart NX Tecnologia LTDA. |
Brazil | 55 | % | |||
| Commit Consulting LTDA. |
Brazil | 100 | % | |||
| APIE.COMM Tecnologia LTDA. |
Brazil | 100 | % | |||
| Nuvini Holdings Limited |
Caymans Islands | 100 | % | |||
| Nvini Intermediate 1 Limited |
Caymans Islands | 100 | % | |||
| Nvini Intermediate 2 Limited |
Caymans Islands | 100 | % | |||
| Mercato Partners Acquisition Corporation |
United States | 100 | % | |||
| D. | Property, Plants and Equipment |
The Company’s property, plants and equipment are held through Nuvini S.A. Information regarding Nuvini S.A.’s property, plants and equipment is set forth in the Form F-4, in the section titled “Business of Nuvini and Certain Information about Nuvini—Facilities,” which is incorporated herein by reference.
| Item 4A. | Unresolved Staff Comments |
Not applicable.
| Item 5. | Operating and Financial Review and Prospects |
Following and as a result of the Business Combination, all of the Company’s business is conducted through Nuvini, the Company’s direct, wholly-owned subsidiary, and Nuvini’s subsidiaries.
The discussion and analysis of the financial condition and results of operation of Nuvini is set forth in the Form F-4, in the section titled “Nuvini S.A. Management’s Discussion and Analysis of Financial Condition and Results of Operations,” which is incorporated herein by reference.
| Item 6. | Directors, Senior Management and Employees |
| A. | Directors and Senior Management |
The directors and senior management upon the consummation of the Business Combination are set forth in the Form F-4, in the section titled “Management of New Nuvini After the Business Combination,” which is incorporated herein by reference.
| B. | Compensation |
Compensation of Directors and Executive Officers
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For the fiscal year ended December 31, 2022, Nuvini S.A. paid an aggregate of approximately R$9.7 million in cash to our directors and executive officers. New Nuvini was formed on November 16, 2022 and did not pay any compensation to its executive officers or directors for the period from inception to December 31, 2022. New Nuvini is not required under Cayman Islands law to disclose, and New Nuvini has not otherwise disclosed, the compensation of our directors and executive officers on an individual basis.
Nuvini’s executive compensation is set forth in the Form F-4, in the section entitled “Nuvini Executive Compensation” which is incorporated herein by reference.
Equity Incentive Plan
In connection with the consummation of Business Combination, the New Nuvini board of directors adopted, and the New Nuvini shareholders approved, an equity incentive plan in which eligible participants may include members of New Nuvini management, New Nuvini employees, certain members of the New Nuvini board of directors and consultants of New Nuvini and its subsidiaries. Beneficiaries under the equity incentive plan will be granted equity awards pursuant to the terms and conditions of the equity incentive plan and any applicable award agreement. The final eligibility of any beneficiary to participate in, and the terms and conditions of, the applicable equity awards will be determined by the New Nuvini Board. Pursuant to the Business Combination Agreement, the equity incentive plan has initially reserved a total of 1,143,650 New Nuvini Ordinary Shares.
| C. | Board Practices |
Information pertaining to the Company’s board of directors practices is set forth in the Form F-4, in the section titled “Management of New Nuvini After the Business Combination,” which is incorporated herein by reference.
| D. | Employees |
Information pertaining to the Company’s employees is set forth in the Form F-4, in the section titled “Business of Nuvini and Certain Information about Nuvini—Employees,” which is incorporated herein by reference.
| E. | Share Ownership |
Ownership of New Nuvini Ordinary Shares by its directors and executive officers upon consummation of the Business Combination is set forth in Item 7.A of this Report.
| F. | Disclosure of a registrant’s action to recover erroneously awarded compensation. |
Not applicable.
| Item 7. | Major Shareholders and Related Party Transactions |
| A. | Major Shareholders |
The following table sets forth information regarding the beneficial ownership of New Nuvini Ordinary Shares as of the date hereof by:
| • | each person known by us to be the beneficial owner of more than 5% of New Nuvini Ordinary Shares; |
| • | each of our directors and executive officers; and |
| • | all our directors and executive officers as a group. |
The SEC has defined “beneficial ownership” of a security to mean the possession, directly or indirectly, of voting power and/or investment power over such security. A stockholder is also deemed to be, as of any date, the beneficial owner of all securities that such stockholder has the right to acquire within 60 days after that date through (i) the exercise of any option, warrant or right, (ii) the conversion of a security, (iii) the power to revoke a trust,
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discretionary account or similar arrangement, or (iv) the automatic termination of a trust, discretionary account or similar arrangement. In computing the number of shares beneficially owned by a person and the percentage ownership of that person, ordinary shares subject to options or other rights (as set forth above) held by that person that are currently exercisable, or will become exercisable within 60 days thereafter, are deemed outstanding, while such shares are not deemed outstanding for purposes of computing percentage ownership of any other person. Each person named in the table has sole voting and investment power with respect to all of the New Nuvini Ordinary Shares shown as beneficially owned by such person, except as otherwise indicated in the table or footnotes below. Under these rules, more than one person may be deemed to be a beneficial owner of the same securities.
As of September 29, 2023, following the closing of the Business Combination, there were 27,732,999 New Nuvini Ordinary Shares issued and outstanding. This amount does not include the following amounts of New Nuvini Ordinary Shares which were delivered as consideration in connection with the Business Combination and reserved: (i) 2,740,721 New Nuvini Ordinary Shares issuable upon exercise which are associated with liabilities payable in shares such as loan premium, subscription rights, and contingent consideration assumed by New Nuvini as a result of the Business Combination; and (ii) 1,143,650 New Nuvini Ordinary Shares under the New Nuvini 2023 Incentive Plan.
Unless otherwise indicated, we believe that all persons named in the table below have sole voting and investment power with respect to all shares of voting shares beneficially owned by them. To the Company’s knowledge, no New Nuvini Ordinary Shares beneficially owned by any executive officer or director have been pledged as security.
To the Company’s knowledge, no New Nuvini Ordinary Shares beneficially owned by any executive officer, director or director nominee have been pledged as security.
| Number of New Nuvini Ordinary Shares |
% | |||||||
| Name and Address of Beneficial Owners |
||||||||
| Five Percent Holders of the Company |
||||||||
| Pierre Schurmann(1) † |
13,136,737 | 47.4 | % | |||||
| Mercato Partners Acquisition Group, LLC(2) |
17,123,000 | 43.6 | % | |||||
| Greg Warnock(2) † |
17,123,000 | 43.6 | % | |||||
| Luiz Busnello(3) † |
1,910,518 | 6.7 | % | |||||
| Directors and Executive Officers of the Company |
||||||||
| Pierre Schurmann(1) † |
13,136,737 | 47.4 | % | |||||
| Luiz Busnello(3) † |
1,910,518 | 6.7 | % | |||||
| Scott Klossner † |
70,000 | * | ||||||
| Greg Warnock(2) † |
17,123,000 | 43.6 | % | |||||
| Roberto Sahade † |
— | — | ||||||
| Marcello Gonçalves † |
— | — | ||||||
| Randy Millian † |
129,321 | * | ||||||
| All Directors and Executive Officers of the Company as a Group (7 Individuals) |
32,369,576 | 80.6 | % | |||||
| * | Less than one percent. |
| † | Unless otherwise noted, the business address of the following entities or individuals is c/o Nvni Group Limited, P.O. Box 10008, Willow House, Cricket Square, Grand Cayman, Cayman Islands KY1-1001 |
| (1) | The shares are held by Heru Investment Holdings Ltd. Heru Investment Holdings Ltd. is controlled indirectly by Pierre Schurmann. |
| (2) | Includes 11,550,000 New Nuvini Ordinary Shares underlying New Nuvini Warrants beneficially owned. Mercato Partners Acquisition Group, LLC (the “Sponsor”) is the record holder of the New Nuvini Ordinary Shares reported herein. Bullfrog Bay Trust (a family trust managed by the wife and two adult sons of Greg Warnock, one of the directors on our board of directors) is the manager of the Sponsor. As such, they may be deemed to have or share beneficial ownership of the New Nuvini Ordinary Shares held directly by the Sponsor. Each such person disclaims any beneficial ownership of the reported shares other than to the extent of any pecuniary interest they may have therein, directly or indirectly. |
| (3) | The shares are beneficially owned by Labsyl Ltd. Labsyl Ltd. is controlled indirectly by Luiz Busnello. These shares also include 900,192 shares underlying options granted to Mr. Busnello under the Nuvini S.A. Stock Option Plan. |
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| B. | Related Party Transactions |
Information pertaining to the Company’s related party transactions is set forth in the Form F-4, in the section titled “Nuvini Relationships and Related Party Transactions” which is incorporated herein by reference.
| C. | Interests of Experts and Counsel |
Not applicable.
| Item 8. | Financial Information |
| A. | Consolidated Statements and Other Financial Information |
Financial Statements
Financial Statements of Nuvini S.A. and Mercato have been filed as part of this Report. See Item 18 “Financial Statements.”
Legal Proceedings
Legal or arbitration proceedings are set forth in the Form F-4, in the sections titled “Business of Nuvini and Certain Information about Nuvini—Legal Proceedings” and “Information about Mercato—Legal Proceedings,” which are incorporated herein by reference.
Dividend Policy
Information regarding the Company’s policy on dividend distributions is set forth in the Form F-4, in the section titled “Price Range of Securities and Dividends—New Nuvini—Dividend Policy,” which is incorporated herein by reference. The Company has not paid any cash dividends on New Nuvini Ordinary Shares since the Closing Date and currently has no plans to pay cash dividends on such securities.
| B. | Significant Changes |
Not applicable.
| Item 9. | The Offer and Listing |
| A. | Offer and Listing Details |
New Nuvini Ordinary Shares and New Nuvini Warrants are listed on Nasdaq under the ticker symbols “NVNI” and “NVNIW,” respectively. Holders of New Nuvini Ordinary Shares and New Nuvini Warrants should obtain current market quotations for their securities.
Information regarding the New Nuvini Ordinary Shares and New Nuvini Warrants is set forth in the Form F-4, in the section titled “Description of New Nuvini Securities,” which is incorporated by reference herein.
Information regarding lock-up restrictions applicable to New Nuvini Ordinary Shares is set forth in the Form F-4, in the section titled “Shares Eligible for Future Resale—Registration Rights and Lock-Up Agreement” and is incorporated herein by reference.
| B. | Plan of Distribution |
Not applicable.
| C. | Markets |
Information related to markets is set forth in “Item 9.A. Offer and Listing Details” of this Report.
| D. | Selling Shareholders |
Not applicable.
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| E. | Dilution |
Not applicable.
| F. | Expenses of the Issue |
Not applicable.
| Item 10. | Additional Information |
| A. | Share Capital |
The Company’s authorized share capital is US$50,000, consisting of 500,000,000 New Nuvini Ordinary Shares.
As of the date of this Report, subsequent to the consummation of the Business Combination, there are 27,732,999 New Nuvini Ordinary Shares outstanding and issued. This amount does not include the following amounts of New Nuvini Ordinary Shares which were delivered as consideration in connection with the Business Combination and reserved: (i) 2,740,721 New Nuvini Ordinary Shares issuable upon exercise which are associated with liabilities payable in shares such as loan premium, subscription rights, and contingent consideration assumed by New Nuvini as a result of the Business Combination; and (ii) 1,143,650 New Nuvini Ordinary Shares under the New Nuvini 2023 Incentive Plan. There are also 23,050,000 New Nuvini Warrants outstanding, each exercisable at $11.50 per one New Nuvini Ordinary Share.
Additional information regarding the Company’s securities is set forth in the Form F-4 in the section entitled “Description of New Nuvini Securities,” which is incorporated herein by reference.
| B. | Memorandum and Articles of Association |
The amended and restated memorandum and articles of association of the Company, effective as of September 19, 2023 (the “Public Company Articles”), are filed as Exhibit 1.2 to this Report.
Information regarding certain material provisions of the Public Company Articles is set forth in the Form F-4, in the section titled “Description of New Nuvini Securities,” which is incorporated herein by reference.
| C. | Material Contracts |
Material Contracts Relating to the Company’s Operations
Information pertaining to certain of the Company’s material contracts is set forth in the Form F-4, in the sections titled “Nuvini S.A.’s Management’s Discussion and Analysis of Financial Condition and Results of Operations—Loans and Financing and Debenture,” “Nuvini S.A.’s Management’s Discussion and Analysis of Financial Condition and Results of Operations—Contractual Obligations and Commitments,” “Risk Factors—Risk Related to the Nuvini Group’s Business” and “Nuvini Relationship and Related Party Transactions,” each of which is incorporated herein by reference.
Material Contracts Relating to the Business Combination
Business Combination Agreement
The description of the Business Combination Agreement is set forth in the Form F-4, in the section titled “The Business Combination,” which is incorporated herein by reference.
On September 28, 2023, Nuvini, New Nuvini, Merger Sub and Mercato entered into a wavier and amendment agreement to the Business Combination Agreement (the “Amendment”). The Amendment provided for waivers to certain conditions to closing and amended certain defined terms to provide that the size of the New Nuvini 2023 Incentive Plan would be equal to five percent of the fully diluted share count for Nuvini prior to the Closing Date exclusive of the New Nuvini 2023 Incentive Plan.
Ancillary Documents
The description of the material provisions of certain additional agreements entered into pursuant to the Business Combination Agreement is set forth in the Form F-4, in the section titled “The Business Combination Agreement and Ancillary Documents,” which is incorporated herein by reference.
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Subscription Agreements
On September 24, 2023 and September 27, 2023, Mercato entered into separate subscription agreements (the “Subscription Agreements”) with certain investors (collectively, the “PIPE Investors”). Pursuant to the Subscription Agreements, the PIPE Investors agreed to subscribe for and purchase, and Mercato agreed to issue and sell to the PIPE Investors, immediately prior to the Closing, an aggregate of 1,280,000 shares of Mercato Class A common stock, par value $0.0001 per share (“Mercato Common Stock”) for a purchase price of $10.00 per share, for aggregate gross proceeds of $12.8 million. On the Closing Date, all outstanding shares of Mercato Common Stock (including shares sold pursuant to the Subscription Agreements) were exchanged for newly issued New Nuvini Ordinary Shares in accordance with the terms of the Business Combination Agreement.
A copy of the form of Subscription Agreement is filed herewith as Exhibit 4.38, and the foregoing description of the Subscription Agreements is qualified in its entirety by reference thereto. Any reference herein to the “Subscription Agreements” are to be treated as a reference to each PIPE Investor’s separate agreement with Mercato and should be construed accordingly, and any action taken by a PIPE Investor should be construed as an action under its own respective agreement.
| D. | Exchange Controls |
There are no governmental exchange control laws, decrees, regulations or other exchange control legislation in the Cayman Islands that may affect the import or export of capital, including the availability of cash and cash equivalents for use by the Company, or that may affect the remittance of dividends, interest, or other payments by the Company to non-resident holders of New Nuvini Ordinary Shares. There is no limitation imposed by the laws of the Cayman Islands or in the Company’s Articles on the right of non-residents to hold or vote New Nuvini Ordinary Shares.
| E. | Taxation |
Information pertaining to tax considerations is set forth in the Form F-4, in the section titled “Certain Tax Considerations,” which is incorporated herein by reference.
| F. | Dividends and Paying Agents |
Information regarding the Company’s policy on dividends is set forth in the Form F-4, in the section titled “Price Range of Securities and Dividends—New Nuvini—Dividend Policy,” which is incorporated herein by reference. The Company has not paid any cash dividends on the New Nuvini Ordinary Shares since the consummation of the Business Combination and currently has no plans to pay cash dividends on such securities. The Company has not identified a paying agent.
| G. | Statement by Experts |
Not applicable.
| H. | Documents on Display |
The Company is subject to certain of the informational filing requirements of the Exchange Act. As a foreign private issuer, the Company is not subject to all of the disclosure requirements applicable to public companies organized within the United States. For example, the Company is exempt from certain rules and regulations under the Exchange Act that regulate disclosure obligations and procedural requirements related to the solicitation of proxies, consents or authorizations applicable to a security registered under the Exchange Act, including the U.S. proxy rules under Section 14 of the Exchange Act. In addition, the Company’s officers, directors and principal shareholders are exempt from the reporting and “short-swing” profit recovery provisions of Section 16 of the Exchange Act and related rules with respect to their purchases and sales of the Company’s securities. Moreover, the Company is not required to file periodic reports and financial statements with the SEC as frequently or as promptly as U.S. public companies and
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will not be required to file quarterly reports on Form 10-Q or current reports on Form 8-K under the Exchange Act. However, the Company is required to file with the SEC an Annual Report on Form 20-F containing financial statements audited by an independent accounting firm. The Company may, but is not required, to furnish to the SEC, on Form 6-K, unaudited financial information after each of the Company’s first three fiscal quarters. The SEC maintains a website at http://www.sec.gov that contains reports and other information that the Company files with or furnishes electronically with the SEC. You may read and copy any report or document the Company files, including the exhibits, at the SEC’s public reference room located at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room.
| I. | Subsidiary Information |
Not applicable.
| J. | Annual Report to Security Holders |
Not applicable.
| Item 11. | Quantitative and Qualitative Disclosures About Market Risk |
The information set forth in the section titled “Nuvini S.A. Management’s Discussion and Analysis of Financial Condition and Results of Operations—Quantitative and Qualitative Disclosures about Certain Risks” in the Form F-4 is incorporated herein by reference.
| Item 12. | Description of Securities Other than Equity Securities |
Warrants
Upon the consummation of the Business Combination, there were 23,050,000 New Nuvini Warrants outstanding. Each New Nuvini Warrant represents the right to purchase one New Nuvini Ordinary Share at a price of $11.50 per share in cash. The New Nuvini Warrants will become exercisable on October 29, 2023 (i.e., 30 days after Closing Date) and will expire upon the earlier of (a) September 29, 2028 (i.e., the date that is five (5) years after the Closing Date) and (b) a liquidation of the Company.
The exercise price of the New Nuvini Warrants, and the number of New Nuvini Ordinary Shares issuable upon exercise thereof, will be subject to adjustment under certain circumstances, including for stock splits, stock dividends, reorganizations, recapitalizations and the like.
Once the New Nuvini Warrants become exercisable, the Company will have the right to redeem not less than all of the New Nuvini Warrants (other than the Private Placement Warrants and the working capital warrants) at any time prior to their expiration, at a redemption price of $0.01 per New Nuvini Warrant, if (i) the last reported sales price of New Nuvini Ordinary Shares has been at least $18.00 per share on each of twenty (20) trading days within the thirty (30) trading-day period ending on the third trading day prior to the date on which notice of the redemption is given, (ii) upon a minimum of 30 days’ prior written notice of redemption, or the 30-day redemption period, to each warrant holder, and (iii) there is an effective registration statement covering the New Nuvini Ordinary Shares issuable upon exercise of the New Nuvini Warrants, and a current prospectus relating thereto, available throughout the 30-day redemption period or the Company has elected to require the exercise of the New Nuvini Warrants on a “cashless basis.” No fractional shares will be issued upon exercise of the New Nuvini Warrants. If, upon exercise, a holder would be entitled to receive a fractional interest in New Nuvini Ordinary Shares, the Company will round down to the nearest whole number of shares to be issued to the New Nuvini Warrant holder.
Once the New Nuvini Warrants become exercisable, the Company will have the right to redeem, in whole or in part, New Nuvini Warrants (including both Public Warrants and Private Placement Warrants) at any time prior to their expiration, at a redemption price of $0.10 per New Nuvini Warrant, if (i) the reference value equals or exceeds has been at least $10.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like), (ii) the private placement warrants are also concurrently called for redemption on the same terms as the outstanding public warrants, and (iii) upon a minimum of 30 days’ prior written notice of redemption provided that
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holders will be able to exercise their warrants on a cashless basis prior to redemption and receive that number of New Nuvini Ordinary Shares based on the redemption date and the fair market value of the New Nuvini Ordinary Shares. No fractional shares will be issued upon exercise of the New Nuvini Warrants. If, upon exercise, a holder would be entitled to receive a fractional interest in New Nuvini Ordinary Shares, the Company will round down to the nearest whole number of shares to be issued to the New Nuvini Warrant holder.
Additional information on the New Nuvini Warrants is set forth in the Form F-4, in the section entitled “Description of New Nuvini Securities—Redeemable Warrants,” which is incorporated herein by reference.
Not applicable.
| Item 17. | Financial Statements |
See Item 18.
| Item 18. | Financial Statements |
The audited consolidated financial statements of Nuvini S.A. as of December 31, 2022, and 2021, prepared in accordance with International Financial Reporting Standards (“IFRS”), as issued by the International Accounting Standards Board (“IASB”), and in its presentation and functional currency of Brazilian reais, are set forth in the Form F-4 on pages F-51 through F-110 and are incorporated herein by reference.
The audited financial statements of Mercato as of December 31, 2022, and 2021, for the year ended December 31, 2022 and for the period from February 22, 2021 (inception) through December 31, 2021, prepared in accordance with U.S. GAAP in its presentation and reporting currency of United States dollars, are set forth in the Form F-4 on pages F-27 through F-50 and are incorporated herein by reference.
The unaudited condensed financial information of Mercato as of June 30, 2023 and December 31, 2022, and for the three and six months ended June 30, 2023 and June 30, 2022 are set forth in the Form F-4 on pages F-2 through F-26 and are incorporated herein by reference.
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| Item 19. | Exhibits |
We have filed the following documents as exhibits to this Report:
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| + | Schedules and exhibits have been omitted pursuant to Item 601(b)(2)(ii) of Regulation S-K. Nuvini Group Limited agrees to furnish supplementally a copy of any omitted schedule or exhibit to the SEC upon request. |
| † | Portions of these exhibits have been redacted in compliance with Item 601(a)(6) of Regulation S-K. |
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SIGNATURES
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this report on its behalf.
| NVNI GROUP LIMITED | ||
| By: | /s/ Pierre Schurmann | |
| Pierre Schurmann Chief Executive Officer | ||
Date: September 29, 2023
15
Exhibit 1.2
THE COMPANIES ACT (AS REVISED) OF THE CAYMAN ISLANDS
EXEMPTED COMPANY LIMITED BY SHARES
AMENDED AND RESTATED MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
NVNI GROUP LIMITED
(adopted by special resolution on 19 September 2023)
Filed: 19-Sep-2023 16:39 EST
Auth Code: H91458502188
www.verify.gov.ky File#: 395485
THE COMPANIES ACT (AS REVISED) OF THE CAYMAN ISLANDS
EXEMPTED COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
MEMORANDUM OF ASSOCIATION
OF
NVNI GROUP LIMITED
(adopted by Special Resolution passed on 19 September 2023)
| 1. | The name of the Company is Nvni Group Limited. |
| 2. | The registered office of the Company shall be at the offices of CO Services Cayman Limited, P.O. Box 10008, Willow House, Cricket Square, Grand Cayman, KY1-1001, Cayman Islands, or at such other place as the Directors may from time to time decide. |
| 3. | The objects for which the Company is established are unrestricted and the Company shall have full power and authority to exercise all the functions of a natural person of full capacity. |
| 4. | The liability of each Member is limited to the amount from time to time unpaid on such Member’s Shares. |
| 5. | The share capital of the Company is US$5,000 divided into 500,000,000 Ordinary Shares of a par value of US$0.00001 each. |
| 6. | The Company has the power to register by way of continuation outside of the Cayman Islands in accordance with the Companies Act and to de-register as an exempted company in the Cayman Islands. |
| 7. | Capitalised terms that are not defined in this Amended and Restated Memorandum of Association have the same meaning as those given in the Amended and Restated Articles of Association of the Company. |
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THE COMPANIES ACT (AS REVISED) OF THE CAYMAN ISLANDS
EXEMPTED COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
NVNI GROUP LIMITED
(adopted by Special Resolution passed on 19 September 2023)
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| www.verify.gov.ky File#: 395485 |
CONTENTS
| 1. |
PRELIMINARY | 1 | ||||
| 2. |
COMMENCEMENT OF BUSINESS | 7 | ||||
| 3. |
REGISTERED OFFICE AND OTHER OFFICES | 7 | ||||
| 4. |
SERVICE PROVIDERS | 7 | ||||
| 5. |
ISSUE OF SHARES | 8 | ||||
| 6. |
REGISTER OF MEMBERS | 10 | ||||
| 7. |
CLOSING REGISTER OF MEMBERS AND FIXING RECORD DATE | 11 | ||||
| 8. |
CERTIFICATED SHARES | 11 | ||||
| 9. |
UNCERTIFICATED SHARES | 12 | ||||
| 10. |
DEPOSITORY INTERESTS | 14 | ||||
| 11. |
CALLS ON SHARES | 16 | ||||
| 12. |
FORFEITURE OF SHARES | 17 | ||||
| 13. |
TRANSFER OF SHARES | 19 | ||||
| 14. |
TRANSMISSION OF SHARES | 22 | ||||
| 15. |
REDEMPTION, PURCHASE AND SURRENDER OF SHARES | 23 | ||||
| 16. |
FINANCIAL ASSISTANCE | 24 | ||||
| 17. |
CLASS RIGHTS AND CLASS MEETINGS | 24 | ||||
| 18. |
NO RECOGNITION OF TRUSTS OR THIRD PARTY INTERESTS | 25 | ||||
| 19. |
LIEN ON SHARES | 26 | ||||
| 20. |
UNTRACED MEMBERS | 27 | ||||
| 21. |
ALTERATION OF SHARE CAPITAL | 29 | ||||
| 22. |
GENERAL MEETINGS | 30 | ||||
| 23. |
NOTICE OF GENERAL MEETINGS | 31 | ||||
| 24. |
PROCEEDINGS AT GENERAL MEETINGS | 32 | ||||
| 25. |
VOTES OF MEMBERS | 34 | ||||
| 26. |
REPRESENTATION OF MEMBERS AT GENERAL MEETINGS | 36 | ||||
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| 27. |
APPOINTMENT, RETIREMENT AND REMOVAL OF DIRECTORS | 39 | ||||
| 28. |
ALTERNATE DIRECTORS | 40 | ||||
| 29. |
POWERS OF DIRECTORS | 42 | ||||
| 30. |
PROCEEDINGS OF DIRECTORS | 42 | ||||
| 31. |
DELEGATION OF DIRECTORS’ POWERS | 46 | ||||
| 32. |
DIRECTORS’ RENUMERATION, EXPENSES AND BENEFITS | 49 | ||||
| 33. |
SEAL | 50 | ||||
| 34. |
DIVIDENDS, DISTRIBUTIONS AND RESERVES | 51 | ||||
| 35. |
SHARE PREMIUM ACCOUNT | 57 | ||||
| 36. |
DISTRIBUTION PAYMENT RESTRICTIONS | 58 | ||||
| 37. |
BOOKS OF ACCOUNT | 58 | ||||
| 38. |
AUDITOR | 59 | ||||
| 39. |
NOTICES | 59 | ||||
| 40. |
WINDING UP | 62 | ||||
| 41. |
INDEMNITY AND INSURANCE | 63 | ||||
| 42. |
REQUIRED DISCLOSURE | 64 | ||||
| 43. |
FINANCIAL YEAR | 64 | ||||
| 44. |
TRANSFER BY WAY OF CONTINUATION | 64 | ||||
| 45. |
MERGERS AND CONSOLIDATIONS | 65 | ||||
| 46. |
AMENDMENT OF MEMORANDUM AND ARTICLES | 65 | ||||
| 47. |
TAX TRANSPARENCY REPORTING | 65 | ||||
| 48. |
BUSINESS OPPORTUNITIES | 66 | ||||
| 49. |
EXCLUSIVE JURISDICTION AND FORUM | 67 | ||||
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| 1. | PRELIMINARY |
| 1.1 | Table A not to apply |
The regulations contained or incorporated in Table A in the First Schedule to the Companies Act shall not apply to the Company and these Articles shall apply in place thereof.
| 1.2 | Definitions |
| “Applicable Law” | 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; | |
| “Articles” | means these amended and restated articles of association of the Company, as amended or substituted from time to time; | |
| “Audit Committee” | means the audit committee of the board of directors of the Company established pursuant to the Articles, or any successor committee. | |
| “Auditor” | means the person (if any) for the time being performing the duties of auditor of the Company; | |
| “Beneficial Ownership” | means, with respect to a security, sole or shared voting power (which includes the power to vote, or to direct the voting of, such security) and/or investment power (which includes the power to acquire (or an obligation to acquire) or dispose, or to direct the acquisition or disposal of, such security) and/or a long economic exposure, whether absolute or conditional, to changes in the price of such security, in each case, whether direct or indirect, and whether though any contract, arrangement, understanding, relationship, or otherwise and “beneficial owner” shall mean a person entitled to such Interest; | |
| “business day” | means any day on which the Exchange is open for the business of dealing in securities; | |
| “certificated” | means, in relation to a Share, a Share which is recorded in the Register of Members as being held in certificated form; | |
| “Class” or “Classes” | means any class or classes of Shares as may from time to time be issued by the Company; | |
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| “clear days” | in relation to the period of a notice means that period excluding the day when the notice is served or deemed to be served and the day for which it is given or on which it is to take effect; | |
| “Clearing House” | means a clearing house recognised by the laws of the jurisdiction in which the Shares (or any Interests in Shares) (or the depository receipts therefor) are listed or quoted on an Exchange or interdealer quotation system in such jurisdiction. | |
| “Companies Act” | means the Companies Act (as revised) of the Cayman Islands, as amended or revised from time to time; | |
| “Company” | means the above-named company; | |
| “Company’s Website” | means the website of the Company, the address or domain name of which has been notified to Members; | |
| “Compensation Committee” | means the compensation committee of the board of directors of the Company established pursuant to the Articles, or any successor committee. | |
| “Depository” | means any person who is a Member by virtue of its holding Shares as trustee or otherwise on behalf of those who have elected to hold Shares in dematerialised form through a Depository Interest. | |
| “Depository Interest” | means a dematerialised depository receipt representing the underlying Share in the capital of the Company to be issued by a Depository nominated by the Company. | |
| “Directors” | means the directors for the time being of the Company or as the case may be, the Directors assembled as a board or as a committee thereof; | |
| “Dollar” or “US$” | means the lawful currency of the United States of America; | |
| “electronic communication” | means a communication sent by electronic means, including electronic posting to the Company’s Website, transmission to any number, address or internet website (including the website of the Securities and Exchange Commission) or other electronic delivery methods as otherwise decided and approved by the Directors; | |
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| “Electronic Record” | has the same meaning as in the Electronic Transactions Act; | |
| “Electronic Transactions Act” | means the Electronic Transactions Act (as revised) of the Cayman Islands, as amended or revised from time to time; | |
| “Exchange” | means the NASDAQ for so long as any Shares or Interests in Shares are there listed or quoted and any other recognised securities exchange(s) listed in Schedule 4 of the Companies Act on which any Shares or Interests in Shares are listed or quoted for trading from time to time; | |
| “Exchange Rules” | means the NASDAQ Listing Rules and any other relevant code, rules and regulations, as amended, from time to time, applicable as a result of the original and continued listing or quotation of any Shares (or any Interests in Shares) on an Exchange; | |
| “Group” | means the group comprising the Company and its subsidiary undertakings (not including any parent undertaking of the Company); | |
| “Group Undertaking” | means any undertaking in the Group, including the Company; | |
| “Heru” | means, collectively, Heru Investment Holdings Ltd and any other person controlled by, controlling, or under common control with the same; | |
| “Interest” | in securities or in a person means any form of Beneficial Ownership (including, for the avoidance of doubt, any derivative, contractual or economic right or contract for difference) of securities of such person; | |
| “Listed Share” | means a Share that is listed or admitted to trading on an Exchange; | |
| “Listed Share Register” | means the register of members which registers the holdings of Listed Shares; | |
| “Member” | means any person from time to time entered in the Register of Members as a holder of one or more Shares; | |
| “Memorandum” | means the memorandum of association of the Company, as amended or substituted from time to time; | |
| “Nominating and Corporate Governance Committee” | means the nominating and corporate governance committee of the board of directors of the Company established pursuant to the Articles, or any successor committee. | |
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| “officer” | means a person appointed to hold an office in the Company; | |
| “Ordinary Resolution” | means a resolution: | |
| (a) passed by a simple majority of such Members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of the Company and where a poll is taken regard shall be had in computing a majority to the number of votes to which each Member is entitled by the Articles; or | ||
| (b) approved in writing by all of the Members entitled to vote at a general meeting of the Company, passed in accordance with these Articles; | ||
| “Register of Members” | means the Listed Share Register, the Unlisted Share Register and any branch register(s) in each case as the context requires; | |
| “Registered Office” | means the registered office for the time being of the Company in the Cayman Islands; | |
| “Relevant System” | means any computer-based system and procedures permitted by the Exchange Rules, which enable title to Interests in a security to be evidenced and transferred without a written instrument, and which facilitate supplementary and incidental matters; | |
| “Seal” | means the common seal of the Company (if any) and includes every duplicate seal; | |
| “Secretary” | means any person or persons appointed by the Directors to perform any of the duties of the secretary of the Company; | |
| “Securities and Exchange Commission” | means the United States Securities and Exchange Commission; | |
| “Share” | means a share in the capital of the Company and includes a fraction of a Share; | |
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| “Special Resolution” | means a special resolution passed in accordance with the Companies Act, being a resolution: | |
| (a) passed by a majority of not less than two-thirds of such Members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of the Company of which notice specifying the intention to propose the resolution as a Special Resolution has been duly given and where a poll is taken regard shall be had in computing a majority to the number of votes to which each Member is entitled; or | ||
| (b) approved in writing by all of the Members entitled to vote at a general meeting of the Company, passed in accordance with these Articles; | ||
| “subsidiary undertaking” | a company or undertaking is a subsidiary of a parent undertaking if the parent undertaking (i) holds a majority of the voting rights in it, or (ii) is a member of it and has the right to appoint or remove a majority of its board of directors, or (iii) is a member of it and controls alone, pursuant to an agreement with other shareholders or members, a majority of the voting rights in it; | |
| “Treasury Shares” | means Shares held in treasury pursuant to the Companies Act and these Articles; | |
| “uncertificated” | means, in relation to a Share, a Share to which title is recorded in the Register of Members as being in uncertificated form and title to which may be transferred by means of a Relevant System; | |
| “Uncertificated Proxy Instruction” | means a properly authenticated dematerialised instruction and/or other instruction or notification, which is sent by means of the Relevant System concerned and received by such participant in that system acting on behalf of the Company as the Directors may prescribe, in such form and subject to such terms and conditions as may from time to time be prescribed by the Directors (subject always to the facilities and requirements of the Relevant System concerned); | |
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| “Unlisted Share Register” | means the register of members that registers the holdings of Unlisted Shares and which, for the purposes of the Companies Act, constitutes the Company’s “principal register”; and | |
| “Unlisted Shares” | means a Share that is not listed or admitted to trading on an Exchange. | |
| 1.3 | Interpretation |
Unless the contrary intention appears, in these Articles:
| (a) | singular words include the plural and vice versa; |
| (b) | a word of any gender includes the corresponding words of any other gender; |
| (c) | references to “persons” include natural persons, companies, partnerships, firms, joint ventures, associations or other bodies of persons (whether or not incorporated); |
| (d) | a reference to a person includes that person’s successors and legal personal representatives; |
| (e) | “writing” and “written” includes any method of representing or reproducing words in a visible form, including in the form of an Electronic Record; |
| (f) | a reference to “shall” shall be construed as imperative and a reference to “may” shall be construed as permissive; |
| (g) | in relation to determinations to be made by the Directors and all powers, authorities and discretions exercisable by the Directors under these Articles, the Directors may make those determinations and exercise those powers, authorities and discretions in their sole and absolute discretion, either generally or in a particular case, subject to any qualifications or limitations expressed in these Articles or imposed by law; |
| (h) | any reference to the powers of the Directors shall include, when the context admits, the service providers or any other person to whom the Directors may, from time to time, delegate their powers; |
| (i) | the term “and/or” is used in these Articles to mean both “and” as well as “or”. The use of “and/or” in certain contexts in no respects qualifies or modifies the use of the terms “and” or “or” in others. “Or” shall not be interpreted to be exclusive, and “and” shall not be interpreted to require the conjunctive, in each case unless the context requires otherwise; |
| (j) | any phrase introduced by the terms “including”, “includes”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; |
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| (k) | headings are inserted for reference only and shall not affect construction; |
| (l) | a reference to a law includes regulations and instruments made under that law; |
| (m) | a reference to a law or a provision of law includes amendments, re-enactments, consolidations or replacements of that law or the provision; |
| (n) | “fully paid” and “paid up” means paid up as to the par value and any premium payable in respect of the issue or re-designation of any Shares and includes credited as fully paid; |
| (o) | where an Ordinary Resolution is expressed to be required for any purpose, a Special Resolution is also effective for that purpose; and |
| (p) | sections 8 and 19(3) of the Electronic Transactions Act are hereby excluded. |
| 2. | COMMENCEMENT OF BUSINESS |
| 2.1 | The business of the Company may be commenced as soon after incorporation as the Directors shall see fit. |
| 2.2 | The Directors may pay, out of the capital or any other monies of the Company, all expenses incurred in connection with the formation and operation of the Company, including the expenses of registration and any expenses relating to the offer of, subscription for, or issuance of Shares. |
| 2.3 | Expenses may be amortised over such period as the Directors may determine. |
| 3. | REGISTERED OFFICE AND OTHER OFFICES |
| 3.1 | Subject to the provisions of the Companies Act, the Company may by resolution of the Directors change the location of its Registered Office. |
| 3.2 | The Directors, in addition to the Registered Office, may in their discretion establish and maintain such other offices, places of business and agencies whether within or outside of the Cayman Islands. |
| 4. | SERVICE PROVIDERS |
The Directors may appoint any person to act as a service provider to the Company and may delegate to any such service provider any of the functions, duties, powers and discretions available to them as Directors, upon such terms and conditions (including as to the remuneration payable by the Company) and with such powers of sub-delegation, but subject to such restrictions, as they think fit.
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| 5. | ISSUE OF SHARES |
| 5.1 | Power of Directors to issue Shares |
| (a) | The issue of Shares is under the control of the Directors who, subject to the Companies Act, the Memorandum, these Articles, the Exchange Rules (where applicable), any resolution that may be passed by the Company in general meeting and any rights attached to any Shares or Class of Shares, may: |
| (i) | offer, issue, allot or otherwise dispose of them to such persons, in such manner, on such terms and having such rights and being subject to such restrictions, as they may from time to time determine; and |
| (ii) | grant options over such Shares and issue warrants, convertible securities or similar instruments with respect thereto. |
| (b) | The Directors may authorise the division of Shares into any number of Classes and the different Classes shall be authorised, established and designated (or re-designated as the case may be) and the variations in the relative rights (including, without limitation, voting, dividend, return of capital and redemption rights), restrictions, preferences, privileges and payment obligations as between the different Classes (if any) shall be fixed and determined by the Directors. |
| (c) | The Directors may refuse to accept any application for Shares, and may accept any application in whole or in part, for any reason or for no reason. |
| (d) | The Directors shall only issue Shares as fully paid. |
| 5.2 | Payment of commission or brokerage |
Subject to the provisions of the Companies Act, the Company may pay a commission or brokerage in connection with the subscription for or issue of any Shares. The Company may pay the commission or brokerage in cash or by issuing fully or partly paid Shares or by a combination of both.
| 5.3 | No Shares to bearer |
The Company shall not issue Shares to bearer.
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| 5.4 | Fractional Shares |
The Directors may issue fractions of a Share of any Class, and, if so issued, a fraction of a Share (calculated to such decimal points as the Directors may determine) shall be subject to and carry the corresponding fraction of liabilities (whether with respect to any unpaid amount thereon, contribution, calls or otherwise), limitations, preferences, privileges, qualifications, restrictions, rights (including, without limitation, voting and participation rights) and other attributes of a whole Share of the same Class.
| 5.5 | Treasury Shares |
| (a) | Shares that the Company purchases, redeems or acquires by way of surrender in accordance with the Companies Act shall be held as Treasury Shares and not treated as cancelled if: |
| (i) | the Directors so determine prior to the purchase, redemption or surrender of those shares; and |
| (ii) | the relevant provisions of the Memorandum and Articles, the Companies Act and the Exchange Rules are otherwise complied with. |
| (b) | No dividend may be declared or paid, and no other distribution (whether in cash or otherwise) of the Company’s assets (including any distribution of assets to members on a winding up) may be made to the Company in respect of a Treasury Share. |
| (c) | The Company shall be entered in the Register of Members as the holder of the Treasury Shares. However: |
| (i) | the Company shall not be treated as a Member for any purpose and shall not exercise any right in respect of the Treasury Shares, and any purported exercise of such a right shall be void; and |
| (ii) | a Treasury Share shall not be voted, directly or indirectly, at any general meeting of the Company and shall not be counted in determining the total number of issued Shares at any given time, whether for the purposes of these Articles or the Companies Act. |
| (d) | Nothing in paragraph (c) above prevents an allotment of Shares as fully paid up bonus Shares in respect of a Treasury Share and Shares allotted as fully paid up bonus Shares in respect of a Treasury Share shall be treated as Treasury Shares. |
| (e) | Treasury Shares may be disposed of by the Company in accordance with the Companies Act and otherwise on such terms and conditions as the Directors determine (including, without limitation, for nil consideration). |
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| 6. | REGISTER OF MEMBERS |
| 6.1 | Duty to establish and maintain a Register of Members |
| (a) | The Directors shall cause the Company to keep at its Registered Office, or at any other place within or outside the Cayman Islands they think fit, the Register of Members (which, for the avoidance of doubt, comprises the Listed Share Register, the Unlisted Share Register and any branch register(s) maintained from time to time) in which shall be entered: |
| (i) | the particulars of the Members; |
| (ii) | the particulars of the Shares issued to each of them; and |
| (iii) | other particulars required under the Companies Act and the Exchange Rules (as appropriate). |
| (b) | If the recording complies with the Companies Act, the Exchange Rules and any other applicable law, the Listed Share Register may be kept by recording the particulars required under the Companies Act in a form otherwise than in a physically written form. However, to the extent the Listed Share Register is kept in a form otherwise than in a physically written form, it must be capable of being reproduced in a legible form. |
| 6.2 | Power to establish and maintain branch registers |
| (a) | Subject to the Exchange Rules, the rules and regulations of the Relevant System and any other applicable laws, if the Directors consider it necessary or desirable, whether for administrative purposes or otherwise, they may cause the Company to establish and maintain a branch register or registers of members of such category or categories and at such location or locations within or outside the Cayman Islands as they think fit. |
| (b) | The Company shall cause to be kept at the place where the Unlisted Share Register is kept, a duplicate of any branch register duly entered up from time to time. Subject to this Article, with respect to a duplicate of any branch register: |
| (i) | the Unlisted Shares registered in the branch register shall be distinguished from those registered in the Unlisted Share Register; and |
| (ii) | no transaction with respect to any Unlisted Shares registered in a branch register shall, during the continuance of that registration, be registered in any other register. |
| (c) | The Company may discontinue keeping any branch register and thereupon all entries in such branch register shall be transferred to another branch register kept by the Company or to the Unlisted Share Register. |
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| 7. | CLOSING REGISTER OF MEMBERS AND FIXING RECORD DATE |
| 7.1 | Power of Directors to close the Register of Members |
For the purpose of determining Members entitled to notice of, or to vote at any meeting of Members or any adjournment of a meeting, or Members entitled to receive payment of any dividend or distribution, or in order to make a determination of Members for any other proper purpose, the Directors may provide that the Register of Members shall be closed for transfers for a stated period which shall not in any case exceed thirty (30) days.
| 7.2 | Power of Directors to fix a record date |
In lieu of, or apart from, closing the Register of Members, the Directors may fix in advance or arrear a date as the record date for any such determination of Members entitled to notice of or to vote at a meeting of the Members, and for the purpose of determining the Members entitled to receive payment of any dividend or distribution, or in order to make a determination of Members for any other purpose.
| 7.3 | Circumstances where Register of Members is not closed and no fixed record date |
If the Register of Members is not closed and no record date is fixed for the determination of Members entitled to notice of, or to vote at, a meeting of Members or Members entitled to receive payment of a dividend or distribution, the date on which notice of the meeting is sent or the date on which the resolution of the Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Article, such determination shall apply to any adjournment of that meeting.
| 8. | CERTIFICATED SHARES |
| 8.1 | Right to certificates |
A Member shall only be entitled to a share certificate if the Directors resolve that share certificates shall be issued. Share certificates representing Shares, if any, shall be in such form as the Directors may determine.
| 8.2 | Form of share certificates |
Share certificates, if any, shall be in such form as the Directors may determine and shall be signed by one or more Directors or other person authorised by the Directors. The Directors may authorise share certificates to be issued with the authorised signature(s) affixed by mechanical process. All share certificates shall be consecutively numbered or otherwise identified and shall specify the number and Class
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of Shares to which they relate and the amount paid up thereon or the fact that they are fully paid, as the case may be. All share certificates surrendered to the Company for transfer shall be cancelled and subject to these Articles no new certificate shall be issued until the former certificate evidencing a like number of relevant Shares shall have been surrendered and cancelled. Where only some of the certificated Shares evidenced by a share certificate are transferred, the old certificate shall be surrendered and cancelled and a new certificate for the balance of the certificated Shares shall be issued in lieu without charge.
| 8.3 | Certificates for jointly-held Shares |
If the Company issues a share certificate in respect of certificated Shares held jointly by more than one person, delivery of a single share certificate to one joint holder shall be a sufficient delivery to all of them.
| 8.4 | Replacement of share certificates |
If a share certificate is defaced, worn-out or alleged to have been lost, stolen or destroyed, a new share certificate shall be issued on the payment of such expenses reasonably incurred by the Company and the person requiring the new share certificate shall first surrender the defaced or worn-out share certificate or give such evidence of the loss, theft or destruction of the share certificate and such indemnity to the Company as the Directors may require.
| 8.5 | Timing of issue |
Share certificates shall be issued within the relevant time limit as prescribed by the Companies Act, if applicable, or as the rules and regulations of the Exchange, the Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under applicable law may from time to time determine, whichever is shorter, after the allotment or, except in the case of a Share transfer which the Company is for the time being entitled to refuse to register and does not register, after lodgement of a Share transfer with the Company.
| 9. | UNCERTIFICATED SHARES |
| 9.1 | Uncertificated Shares held by means of a Relevant System |
| (a) | The Directors may permit Shares to be held in uncertificated form and shall have power to implement such arrangements as they may, in their absolute discretion, think fit in order for any Class of Shares to be transferred by means of a Relevant System of holding and transferring Shares (subject always to any applicable law and the requirements of the Relevant System concerned). |
| (b) | (For the purpose of this Article 8.5, the expression “Shares”, where the context permits, also includes Interests in such Shares). |
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| 9.2 | Disapplication of inconsistent Articles |
Where the arrangements described in this Article 8.5 are implemented, no provision of these Articles shall apply or have effect to the extent that it is in any respect inconsistent with:
| (a) | the holding of Shares of that Class in uncertificated form; and |
| (b) | the facilities and requirements of the Relevant System. |
| 9.3 | Arrangements for uncertificated Shares |
Notwithstanding anything contained in these Articles (but subject always to the Companies Act, any other applicable laws and regulations and the facilities and requirements of any Relevant System):
| (a) | unless the Directors otherwise determine, Shares held by the same holder or joint holder in certificated form and uncertificated form shall be treated as separate holdings; |
| (b) | conversion of Shares held in certificated form into Shares held in uncertificated form, and vice versa, may be made in such a manner as the Directors may in their absolute discretion think fit and in accordance with applicable regulations; |
| (c) | shares may be changed from uncertificated to certificated form, and from certificated to uncertificated form, in such manner as the Directors may in their absolute discretion, think fit; |
| (d) | Article 13.2 shall not apply in respect of Shares recorded on the Register of Members as being held in uncertificated form to the extent that Article 13.2 requires or contemplates the effecting of a transfer by an instrument in writing and the production of a certificate for the Share to be transferred; |
| (e) | a Class of Share shall not be treated as two Classes by virtue only of that Class comprising both certificated and uncertificated Shares or as a result of any provision of these Articles or any other applicable law or regulation which applies only in respect of certificated and uncertificated Shares; |
| (f) | where the Company is entitled under applicable law or these Articles to sell, transfer or otherwise dispose of, redeem, repurchase, re-allot, accept the surrender of, forfeit or enforce a lien over, a Share in the Company, the Directors shall, subject to such applicable laws, these Articles and the facilities and requirements of the Relevant System be entitled (without limitation): |
| (i) | to require the holder of that Share by notice to convert that Share into certificated form within the period specified in the notice and to hold that Share in certificated form so long as required by the Company; |
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| (ii) | to require the operator of the Relevant System to convert that Share into certificated form; |
| (iii) | to require the holder of that Share by notice to give any instructions necessary to transfer title to that Share by means of the Relevant System within the period specified in the notice; |
| (iv) | to require the holder of that Share by notice to appoint any person to take any step, including without limitation the giving of any instructions by means of the Relevant System, necessary to transfer that Share within the period specified in the notice; |
| (v) | to take any other action that the Directors consider necessary or expedient to achieve the sale, transfer, disposal, re-allotment, forfeiture or surrender of that Share or otherwise to enforce a lien in respect of that Share; |
| (vi) | to require the deletion of any entries in the Relevant System reflecting the holding of such Share in uncertificated form; and |
| (vii) | to require the operator of the Relevant System to alter the entries in the Relevant System so as to divest the holder of the relevant Share of the power to transfer such Share other than to a person selected or approved by the Directors for the purposes of such transfer. |
| (g) | Article 8 shall not apply so as to require the Company to issue a certificate to any person holding Shares in uncertificated form. |
| 10. | DEPOSITORY INTERESTS |
| 10.1 | Depository Interests held by means of a Relevant System |
The Directors may permit Shares of any Class to be represented by Depository Interests and to be transferred or otherwise dealt with by means of a Relevant System and may revoke any such permission.
| 10.2 | Disapplication of inconsistent Articles |
Where the arrangements described in this Article 10 are implemented, no provision of these Articles shall apply or have effect to the extent that it is in any respect inconsistent with:
| (a) | the holding of Depository Interests; and |
| (b) | the facilities and requirements of the Relevant System. |
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| 10.3 | Arrangements for Depository Interests |
| (a) | The Directors may make such arrangements or regulations (if any) as they may from time to time in their absolute discretion think fit in relation to the evidencing, issue and transfer of Depository Interests and otherwise for the purpose of implementing and/or supplementing the provisions of this Article 10 and the Exchange Rules and the facilities and requirements of the Relevant System. |
| (b) | The Company may use the Relevant System in which any Depository Interests are held to the fullest extent available from time to time in the exercise of any of its powers or functions under the Companies Act, the Exchange Rules or these Articles or otherwise in effecting any actions. |
| (c) | For the purpose of effecting any action by the Company, the Directors may determine that Depository Interests held by a person shall be treated as a separate holding from certificated Shares held by that person. |
| 10.4 | Not separate Class |
Shares in a particular Class shall not form a separate Class of Shares from other Shares in that Class because they are dealt with as Depository Interests.
| 10.5 | Power of sale |
| (a) | Where the Company is entitled under applicable law or these Articles to sell, transfer or otherwise dispose of, redeem, repurchase, re-allot, accept the surrender of, forfeit or enforce a lien over, any Share represented by a Depository Interest, the Directors shall, subject to such applicable laws, these Articles and the facilities and requirements of the Relevant System be entitled (without limitation): |
| (b) | to require the holder of that Depository Interest by notice to convert that Share represented by the Depository Interest into certificated form within the period specified in the notice and to hold that Share in certificated form so long as required by the Company; |
| (c) | to require the holder of that Depository Interest by notice to give any instructions necessary to transfer title to that Share by means of the Relevant System within the period specified in the notice; |
| (d) | to require the holder of that Depository Interest by notice to appoint any person to take any step, including without limitation the giving of any instructions by means of the Relevant System, necessary to transfer that Share within the period specified in the notice; and |
| (e) | to take any other action that the Directors consider necessary or expedient to achieve the sale, transfer, disposal, re-allotment, forfeiture or surrender of that Share or otherwise to enforce a lien in respect of that Share. |
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| 11. | CALLS ON SHARES |
| 11.1 | Calls, how made |
| (a) | Subject to the terms on which Shares are allotted, the Directors may make calls on the Members (and any persons entitled by transmission) in respect of any amounts unpaid on their Shares (whether in respect of nominal value or premium or otherwise) and not payable on a date fixed by or in accordance with the allotment terms. Each such Member or other person shall pay to the Company the amount called, subject to receiving at least fourteen (14) clear days’ notice specifying when and where the payment is to be made, as required by such notice. |
| (b) | A call may be made payable by instalments. A call shall be deemed to have been made when the resolution of the Directors authorising it is passed. A call may, before the Company’s receipt of any amount due under it, be revoked or postponed in whole or in part as the Directors may decide. A person upon whom a call is made will remain liable for calls made on him notwithstanding the subsequent transfer of the Shares in respect of which the call was made. |
| 11.2 | Liability of joint holders |
The joint holders of a Share shall be jointly and severally liable to pay all calls in respect of it.
| 11.3 | lnterest |
lf the whole of the sum payable in respect of any call is not paid by the day it becomes due and payable, the person from whom it is due shall pay all costs, charges and expenses that the Company may have incurred by reason of such non-payment, together with interest on the unpaid amount from the day it became due and payable until it is paid at the rate fixed by the terms of the allotment of the Share or in the notice of the call or, if no rate is fixed, at such rate, not exceeding eight percent (8%) per annum (compounded on a six monthly basis), as the Directors shall determine. The Directors may waive payment of such costs, charges, expenses or interest in whole or in part.
| 11.4 | Differentiation |
Subject to the allotment terms, the Directors may make arrangements on or before the issue of Shares to differentiate between the holders of Shares in the amounts and times of payment of calls on their Shares.
| 11.5 | Payment in advance of calls |
| (a) | The Directors may receive from any Member (or any person entitled by transmission) all or any part of the amount uncalled and unpaid on the Shares held by him (or to which he is entitled). The liability of each such Member or other person on the Shares to which such payment relates shall be reduced by such amount. The Company may pay interest on such amount from the time of receipt until the time when such amount would, but for such advance, have become due and payable at such rate not exceeding eight percent (8%) per annum (compounded on a six monthly basis) as the Directors may decide. |
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| (b) | No sum paid up on a Share in advance of a call shall entitle the holder to any portion of a dividend subsequently declared or paid in respect of any period prior to the date on which such sum would, but for such payment, become due and payable. |
| 11.6 | Restrictions if calls unpaid |
Unless the Directors decide otherwise, no Member shall be entitled to receive any dividend or to be present or vote at any meeting or to exercise any right or privilege as a Member until he has paid all calls due and payable on every Share held by him, whether alone or jointly with any other person, together with interest and expenses (if any) to the Company.
| 11.7 | Sums due on allotment treated as calls |
Any sum payable in respect of a Share on allotment or at any fixed date, whether in respect of the nominal value of the Share or by way of premium or otherwise or as an instalment of a call, shall be deemed to be a call. lf such sum is not paid, these Articles shall apply as if it had become due and payable by virtue of a call.
| 12. | FORFEITURE OF SHARES |
| 12.1 | Forfeiture after notice of unpaid call |
| (a) | lf a call or an instalment of a call remains unpaid after it has become due and payable, the Directors may give to the person from whom it is due not less than fourteen (14) clear days’ notice requiring payment of the amount unpaid together with any interest which may have accrued and any costs, charges and expenses that the Company may have incurred by reason of such non- payment. The notice shall state the place where payment is to be made and that if the notice is not complied with the Shares in respect of which the call was made will be liable to be forfeited. lf the notice is not complied with, any Shares in respect of which it was given may, before the payment required by the notice has been made, be forfeited by a resolution of the Directors. The forfeiture will include all dividends and other amounts payable in respect of the forfeited Shares which have not been paid before the forfeiture. |
| (b) | The Directors may accept the surrender of a Share which is liable to be forfeited in accordance with these Articles. All provisions in these Articles which apply to the forfeiture of a Share also apply to the surrender of a Share. |
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| 12.2 | Notice after forfeiture |
When a Share has been forfeited, the Company shall give notice of the forfeiture to the person who was before forfeiture the holder of the Share or the person entitled by transmission to the Share. An entry that such notice has been given and of the fact and date of forfeiture shall be made in the Register of Members. Notwithstanding the above, no forfeiture will be invalidated by any omission to give such notice or make such entry.
| 12.3 | Consequences of forfeiture |
| (a) | A Share shall, on its forfeiture, become the property of the Company. |
| (b) | All interest in and all claims and demands against the Company in respect of a Share and all other rights and liabilities incidental to the Share as between its holder and the Company shall, on its forfeiture, be extinguished and terminate except as otherwise stated in these Articles. |
| (c) | The holder of a Share (or the person entitled to it by transmission) which is forfeited shall: |
| (i) | on its forfeiture cease to be a Member (or a person entitled) in respect of it; |
| (ii) | if a certificated Share, surrender to the Company for cancellation the share certificate for the Share; |
| (iii) | remain liable to pay to the Company all monies payable in respect of the Share at the time of forfeiture, with interest from such time of forfeiture until the time of payment, in the same manner in all respects as if the Share had not been forfeited; and |
| (iv) | remain liable to satisfy all (if any) claims and demands which the Company might have enforced in respect of the Share at the time of forfeiture without any deduction or allowance for the value of the Share at the time of forfeiture or for any consideration received on its disposal. |
| 12.4 | Disposal of forfeited Share |
| (a) | A forfeited Share may be sold, re-allotted or otherwise disposed of on such terms and in such manner as the Directors may decide either to the person who was before the forfeiture the holder or to any other person. At any time before the disposal, the forfeiture may be cancelled on such terms as the Directors may decide. Where for the purpose of its disposal a forfeited Share is to be transferred to any transferee, the Directors may: |
| (i) | in the case of certificated Shares, authorise a person to execute an instrument of transfer of Shares in the name and on behalf of their holder to the purchaser or as the purchaser may direct; |
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| (ii) | in the case of uncertificated Shares, exercise any power conferred on them by Article 9.3(f) to effect a transfer of the Shares; and |
| (iii) | if the Share is represented by a Depository Interest, exercise any of the Company’s powers under Article 10.5 to effect the sale of the Share to, or in accordance with the directions of, the buyer. |
| (b) | The purchaser will not be bound to see to the application of the purchase monies in respect of any such sale. The title of the transferee to the Shares will not be affected by any irregularity in or invalidity of the proceedings connected with the sale or transfer. Any instrument or exercise referred to at paragraph (a) of this Article shall be effective as if it had been executed or exercised by the holder of, or the person entitled by transmission to, the Shares to which it relates. |
| 12.5 | Proof of forfeiture |
A statutory declaration by a Director or any other officer that a Share has been forfeited on a specified date shall be conclusive evidence of the facts stated in it against all persons claiming to be entitled to the Share. The declaration shall (subject to the execution of any necessary instrument of transfer) constitute good title to the Share. The person to whom the Share is disposed of shall not be bound to see to the application of the consideration (if any) given for it on such disposal. His title to the Share will not be affected by any irregularity in, or invalidity of, the proceedings connected with the forfeiture or disposal.
| 13. | TRANSFER OF SHARES |
| 13.1 | Form of transfer |
Subject to these Articles, a Member may transfer all or any of his Shares:
| (a) | in the case of certificated Shares, by an instrument of transfer in writing in any usual form or in another form approved by the Directors or prescribed by the Exchange, which must be executed by or on behalf of the transferor and (in the case of a transfer of a Share which is not fully paid) by or on behalf of the transferee; or |
| (b) | in the case of uncertificated Shares, without a written instrument in accordance with the rules or regulations of any Relevant System in which the Shares are held. |
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| 13.2 | Registration of a certificated Share transfer |
| (a) | Subject to these Articles, the Directors may, in their absolute discretion and without giving a reason, refuse to register the transfer of a certificated Share unless it is: |
| (i) | in respect of a Share which is fully paid; |
| (ii) | in respect of a Share on which the Company has no lien; |
| (iii) | in respect of only one Class of Shares; |
| (iv) | in favour of a single transferee or not more than four joint transferees; |
| (v) | duly stamped (if required); and |
| (vi) | delivered for registration to the Registered Office or such other place as the Directors may decide, accompanied by the certificate for the Shares to which it relates and any other evidence as the Directors may reasonably require to prove the title to such Share of the transferor and the due execution by him of the transfer or, if the transfer is executed by some other person on his behalf, the authority of such person to do so, provided that the Directors shall not refuse to register any transfer of any certificated Shares listed on the Exchange on the ground that they are partly paid in circumstances where such refusal would prevent dealings in such Shares from taking place on an open and proper basis. |
| (b) | lf the Directors refuse to register a transfer pursuant to this Article, they shall, within two (2) months after the date on which the transfer was delivered to the Company, send notice of the refusal to the transferee. An instrument of transfer which the Directors refuse to register shall (except in the case of suspected fraud) be returned to the person delivering it. All instruments of transfer which are registered may, subject to these Articles, be retained by the Company. |
| 13.3 | Registration of an uncertificated Share transfer |
| (a) | The Directors shall register a transfer of title to any uncertificated Share which is held in uncertificated form in accordance with the rules or regulations of any Relevant System in which the Shares are held, except that the Directors may refuse (subject to any relevant requirements of (to the extent applicable) the Exchange Rules and/or the Exchange) to register any such transfer which is in favour of more than four persons jointly or in any other circumstance permitted by the rules or regulations of any Relevant System in which the Shares are held. |
| (b) | lf the Directors refuse to register any such transfer the Company shall, within two months after the date on which the instruction relating to such transfer was received by the Company, send notice of the refusal to the transferee. |
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| 13.4 | Transfers of Depository Interests |
| (a) | The Company shall register the transfer of any Shares represented by Depository Interests in accordance with the rules or regulations of the Relevant System and any other applicable laws and regulations. |
| (b) | Where permitted by the rules or regulations of the Relevant System and any other applicable laws and regulations, the Directors may, in their absolute discretion and without giving any reason for their decision, refuse to register any transfer of any Share represented by a Depository Interest. |
| 13.5 | No fee on registration |
No fee shall be charged for the registration of a transfer of a Share or other document relating to or affecting the title to any Share.
| 13.6 | Renunciations of Shares |
Nothing in these Articles shall preclude the Directors from recognising the renunciation of any Share by the allottee thereof in favour of some other person.
| 13.7 | Enforceability of and interpretation/administration of this Article |
| (a) | If any provision of this Article 13 or any part of such provision is held under any circumstances to be invalid or unenforceable in any jurisdiction, then: |
| (i) | the invalidity of unenforceability of such provision shall not affect the validity or enforceability of such provision or part thereof under any other circumstances or in any other jurisdiction; and |
| (ii) | the invalidity or unenforceability of such provision or part thereof shall not affect the validity or enforceability of the remainder of such provision or the validity or enforceability of any other provision of these Articles. |
| (b) | The Directors shall have the exclusive power and authority to administer and interpret the provisions of this Article 13 and to exercise all rights and powers specifically granted the Directors and the Company or as may be necessary or advisable in the administration of this Article 13. All such actions, calculations, determinations and interpretations which are done or made by the Directors in good faith shall be final, conclusive, and binding on the Company and the beneficial and registered owners of the Shares and shall not subject the Directors to any liability. |
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| 13.8 | No transfers to an infant etc |
No transfer shall be made to an infant or to a person of whom an order has been made by competent court or official on the grounds that he is or may be suffering from mental disorder or is otherwise incapable of managing his affairs or under other legal disability.
| 13.9 | Effect of registration |
The transferor shall be deemed to remain the holder of the Share transferred until the name of the transferee is entered in the Register of Members in respect of that Share.
| 14. | TRANSMISSION OF SHARES |
| 14.1 | Transmission of Shares |
If a Member dies, becomes bankrupt, commences liquidation or is dissolved, the only person that the Company will recognise as having any title to, or interest in, that Member’s Share (other than the Member) are:
| (a) | if the deceased Member was a joint holder, the survivor; |
| (b) | if the deceased Member was a sole or the only surviving holder, the personal representative of that Member; or |
| (c) | any trustee in bankruptcy or other person succeeding to the Member’s interest by operation of law, |
but nothing in these Articles releases the estate of a deceased Member, or any other successor by operation of law, from any liability in respect of any Share held by that Member solely or jointly.
| 14.2 | Election by persons entitled on transmission |
Any person becoming entitled to a Share as a result of the death, bankruptcy, liquidation or dissolution of a Member (or in any other way than by transfer) may, upon such evidence being produced as may from time to time be required by the Directors, elect either to become registered as the holder of the Share or nominate another person to be registered as the holder of that Share. If he elects to be registered as the holder of the Share himself, he shall give written notice to the Company to that effect. If he elects to have some other person registered as the holder of the Share, he shall:
| (a) | in the case of a certificated Share, execute an instrument of transfer of such Share to such person; |
| (b) | in the case of an uncertificated Share, either: |
| (i) | procure that all the appropriate instructions are given by means of the Relevant System to effect the transfer of such Share to such person; or |
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| (ii) | change the uncertificated Share to certified form and then execute a transfer of such Share to such person; and |
| (c) | in the case of a Share represented by a Depository Interest, take any action the Directors may require (including, without limitation, the execution of any document and the giving of any instruction by means of the Relevant System) to effect the transfer of the Share to that person. |
| 14.3 | Rights of persons entitled by transmission |
A person becoming entitled to a Share by reason of the death, bankruptcy, liquidation or dissolution of a Member (or in any other case than by transfer) shall be entitled to the same Dividends and other rights to which he would be entitled if he were the registered holder of the Share. However, the person shall not, before being registered as a Member in respect of the Share, be entitled in respect of it to attend or vote at any meeting of the Company and the Directors may at any time give notice requiring any such person to elect either to be registered himself or to have some person nominated by him registered as the holder (and the Directors shall, in either case, have the same right to refuse registration as they would have had in the case of a transfer of the Share by that Member before his death, bankruptcy, liquidation or dissolution, as the case may be). If the notice is not complied with within ninety (90) days the Directors may withhold payment of all Dividends, bonuses or other monies payable in respect of the Share until the requirements of the notice have been complied with.
| 15. | REDEMPTION, PURCHASE AND SURRENDER OF SHARES |
| 15.1 | Subject to the Companies Act, the Memorandum, these Articles, the Exchange Rules (where applicable) and any rights conferred on the holders of any Shares or attaching to any Class of Shares, the Company may: |
| (a) | issue Shares on terms that they are to be redeemed or are liable to be redeemed at the option of one or both of the Company or the Member on such terms and in such manner as the Directors may determine before the issue of the Shares; |
| (b) | purchase, or enter into a contract under which it will or may repurchase, any of its own Shares of any Class (including any redeemable Shares) on such terms and in such manner as the Directors may determine or agree with the Member; |
| (c) | make a payment in respect of the redemption or purchase of its own Shares in any manner authorised by the Companies Act, including out of capital; and |
| (d) | accept the surrender for no consideration of any paid up Share (including any redeemable Share) on such terms and in such manner as the Directors may determine. |
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| 15.2 | For the avoidance of doubt, redemptions, repurchases and surrenders of Shares in the circumstances described in the Article above shall not require further approval of the Members. |
| 15.3 | Any Share in respect of which notice of redemption has been given shall not be entitled to participate in the profits of the Company in respect of the period after the date specified as the date of redemption in the notice of redemption. |
| 15.4 | The redemption or purchase of any Share shall not be deemed to give rise to the redemption or purchase of any other Share. |
| 15.5 | The Directors may when making payments in respect of the redemption or purchase of Shares, if authorised by the terms of issue of the Shares being redeemed or purchased or with the agreement of the holder of such Shares, make such payment either in cash or in specie. |
| 15.6 | The Directors may hold any repurchased, redeemed or surrendered Shares as Treasury Shares in accordance with the provisions of the Companies Act and these Articles. |
| 16. | FINANCIAL ASSISTANCE |
Any financial assistance given by the Company in connection with a purchase made or to be made by any person of any Shares or Interests in Shares in the Company shall only be made in accordance with the Companies Act, applicable law and the Exchange Rules (where applicable).
| 17. | CLASS RIGHTS AND CLASS MEETINGS |
| 17.1 | Variation of class rights |
Subject to the Companies Act, if at any time the share capital of the Company is divided into different Classes of Shares, all or any of the rights attached to any Class of Shares may be varied in such manner as those rights may provide or, if no such provision is made, either:
| (a) | with the consent in writing of holders of not less than two-thirds of the issued Shares of that Class; or |
| (b) | with the sanction of a resolution passed at a separate meeting of the holders of the Shares of that Class by a two-thirds majority of the holders of the Shares of that Class present and voting at such meeting (whether in person or by proxy). |
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For the avoidance of doubt, the Directors reserve the right, notwithstanding that any such variation may not have a material adverse effect, to obtain consent from the holders of shares of the relevant class.
| 17.2 | Treatment of classes of Shares by Directors |
The Directors may treat two or more or all of the Classes of Shares as forming one class of Shares if the Directors consider that such Classes of Shares would be affected by the proposed variation in the same way.
| 17.3 | Effect of Share issue on class rights |
The rights attached to any Class of Shares are not taken to be varied by:
| (a) | the creation or issue of further Shares ranking equally with them unless expressly provided by the terms of the issue of the Shares of that Class; or |
| (b) | the reduction of capital paid up on such Shares or by the repurchase, redemption or surrender of any Shares in accordance with the Companies Act and these Articles. |
| 17.4 | Class meetings |
The provisions of these Articles relating to general meetings of the Company shall apply mutatis mutandis to any Class meeting, except that the quorum shall be one or more Members that together hold at least one-third of the Shares of that Class.
| 18. | NO RECOGNITION OF TRUSTS OR THIRD PARTY INTERESTS |
Except as otherwise expressly provided by these Articles or as required by law or as ordered by a court of competent jurisdiction, the Company:
| (a) | is not required to recognise a person as holding any Share on any trust, even if the Company has notice of the trust; and |
| (b) | is not required to recognise, and is not bound by, any interest in or claim to any Share, except for the registered holder’s absolute legal ownership of the Share, even if the Company has notice of that interest or claim. |
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| 19. | LIEN ON SHARES |
| 19.1 | Lien on Shares generally |
The Company shall have a first and paramount lien on all Shares registered in the name of a Member (whether solely or jointly with others) for all debts, liabilities or amounts payable to or with the Company (whether presently payable or not) by such Member or his estate, either alone or jointly with any other person, whether a Member or not, but the Directors may at any time determine any Share to be wholly or in part exempt from the provisions of this Article. The Company’s lien on a Share is released if a transfer of that Share is registered.
| 19.2 | Enforcement of lien by sale |
The Company may sell, on such terms and in such manner as the Directors think fit, any Share on which the Company has a lien, if a sum in respect of which the lien exists is presently payable, and is not paid within fourteen (14) clear days after notice has been given by the Company to the holder of the Share (or to any other person entitled by transmission to the Shares) demanding payment of that amount and giving notice of intention to sell the Share if such payment is not made.
| 19.3 | Completion of sale under lien |
| (a) | To give effect to a sale of Shares under a lien the Directors may: |
| (i) | in the case of certificated Shares, authorise any person to execute an instrument of transfer in respect of the Shares to be sold to, or in accordance with the directions of, the relevant purchaser; |
| (ii) | in the case of uncertificated Shares, exercise any power conferred on them by Article 9.3(f) to effect a transfer of Shares; and |
| (iii) | if the Shares are represented by a Depository Interest, exercise any of the Company’s powers under Article 10.5 to effect the sale of such Shares to, or in accordance with the directions of the purchaser. |
| (b) | The purchaser or his nominee shall be registered as the holder of the Shares comprised in any such transfer, and he shall not be bound to see to the application of any consideration provided for the Shares, nor will the purchaser’s title to the Shares be affected by any irregularity or invalidity in connection with the sale or the exercise of the Company’s power of sale under these Articles. |
| 19.4 | Application of proceeds of sale |
The net proceeds of a sale made under a lien after payment of costs, shall be applied in payment of such part of the amount in respect of which the lien exists as is presently payable and any balance shall (subject to a like lien for sums not presently payable as existed upon the Shares before the sale) be paid to the person who was entitled to the Shares immediately prior to the sale.
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| 20. | UNTRACED MEMBERS |
| 20.1 | Sale of Shares |
| (a) | The Company may sell at the best price reasonably obtainable any Share of a Member, or any Share to which a person is entitled by transmission, if: |
| (i) | during the period of six (6) years prior to the date of the publication of the advertisements referred to in this paragraph (a) (or, if published on different dates, the earlier or earliest of them): |
| (A) | no cheque, warrant or money order in respect of such Share sent by or on behalf of the Company to the Member or to the person entitled by transmission to the Share, at his address in the Register of Members or other address last known to the Company has been cashed; and |
| (B) | no cash dividend payable on the Shares has been satisfied by the transfer of funds to a bank account of the Member (or person entitled by transmission to the share) or by transfer of funds by means of the Relevant System, and the Company has received no communication (whether in writing or otherwise) in respect of such Share from such Member or person, provided that during such six year period the Company has paid at least three cash dividends (whether interim or final) in respect of Shares of the Class in question and no such dividend has been claimed by the person entitled to such Share; |
| (ii) | on or after the expiry of such six year period the Company has given notice of its intention to sell such Share by advertisements in a national newspaper published in the country in which the Registered Office is located and in a newspaper circulating in the area in which the address in the Register of Members or other last known address of the member or the person entitled by transmission to the Share or the address for the service of notices on such member or person notified to the Company in accordance with these Articles is located; |
| (iii) | such advertisements, if not published on the same day, are published within thirty (30) days of each other; |
| (iv) | during a further period of three months following the date of publication of such advertisements (or, if published on different dates, the date on which the requirements of this paragraph (a) concerning the publication of newspaper advertisements are met) and prior to the sale the Company has not received any communication (whether in writing or otherwise) in respect of such Share from the Member or person entitled by transmission. |
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| (b) | lf during such six year period, or during any subsequent period ending on the date when all the requirements of paragraph (a) of this Article have been met in respect of any Shares, any additional Shares have been issued in respect of those held at the beginning of, or previously so issued during, any such subsequent period and all the requirements of paragraph (a) of this Article have been satisfied with regard to such additional Shares, the Company may also sell the additional Shares. |
| (c) | To give effect to a sale pursuant to paragraph (a) or paragraph (b) of this Article, the Directors may: |
| (i) | in the case of certificated Shares, authorise a person to execute an instrument of transfer of Shares in the name and on behalf of the holder of, or the person entitled by transmission to, them to the purchaser or as the purchaser may direct; |
| (ii) | in the case of uncertificated Shares, exercise any power conferred on them by Article 9.3(f) to effect a transfer of the Shares; and |
| (iii) | if the Share is represented by a Depository Interest, exercise any of the Company’s powers under Article 10.5 to effect the sale of the Share to, or in accordance with the directions of, the purchaser. |
| (d) | The purchaser will not be bound to see to the application of the purchase monies in respect of any such sale. The title of the transferee to the Shares will not be affected by any irregularity in or invalidity of the proceedings connected with the sale or transfer. Any instrument or exercise referred to at paragraph (c) of this Article shall be effective as if it had been executed or exercised by the holder of, or the person entitled by transmission to, the Shares to which it relates. |
| 20.2 | Application of sale proceeds |
The Company shall account to the Member or other person entitled to such Share for the net proceeds of such sale by carrying all monies in respect of the sale to a separate account. The Company shall be deemed to be a debtor to, and not a trustee for, such Member or other person in respect of such monies. Monies carried to such separate account may either be employed in the business of the Company or invested as the Directors may think fit. No interest shall be payable to such Member or other person in respect of such monies and the Company shall not be required to account for any money earned on them.
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| 21. | ALTERATION OF SHARE CAPITAL |
| 21.1 | Increase, consolidation, subdivision and cancellation |
| (a) | The Company may by Ordinary Resolution: |
| (i) | increase its share capital by such sum, to be divided into Shares of such Classes and with such rights, priorities and privileges annexed thereto and amounts each as the resolution shall prescribe; |
| (ii) | consolidate, or consolidate and divide all or any of its share capital into Shares of a larger amount than its existing Shares; |
| (iii) | subdivide its Shares, or any of them, into Shares of a smaller amount than is fixed by the Memorandum; and |
| (iv) | cancel any Shares which, at the date of the passing of the resolution, have not been taken, or agreed to be taken, by any person and diminish the amount of its share capital by the amount of the Shares so cancelled. |
| (b) | All new Shares created in accordance with the provisions of this Article shall be subject to the same provisions of these Articles with reference to liens, transfer, transmission and otherwise as the Shares in the original share capital. |
| 21.2 | Dealing with fractions resulting from consolidation or subdivision of Shares |
| (a) | Whenever, as a result of a consolidation or subdivision of Shares, any Members would become entitled to fractions of a Share the Directors may on behalf of those Members deal with the fractions as they think fit, including (without limitation): |
| (i) | selling the Shares representing the fractions for the best price reasonably obtainable to any person (including, subject to the provisions of the Companies Act, the Company); and |
| (ii) | distributing the net proceeds in due proportion among those Members (except that if the amount due to a person is less than US$5.00, or such other sum as the Directors may decide, the Company may retain such sum for its own benefit). |
| (b) | For the purposes of this Article, the Directors may: |
| (i) | in the case of certificated Shares, authorise some person to execute an instrument of transfer of the Shares to, or in accordance with the directions of, the purchaser; |
| (ii) | in the case of uncertificated Shares, exercise any power conferred on it by Article 9.3(f) to effect a transfer of the Shares; and |
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| (iii) | if the Share is represented by a Depository Interest, exercise any of the Company’s powers under Article 10.5 to effect the sale of the Share to, or in accordance with the directions of, the purchaser. |
| (c) | 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 any sale undertaken pursuant to this Article. |
| 21.3 | Reduction of Share Capital |
Subject to the provisions of the Companies Act and to any rights attached to any Shares, the Company may by Special Resolution reduce its share capital, any capital redemption reserve, any share premium account or any other undistributable reserve in any way.
| 22. | GENERAL MEETINGS |
| 22.1 | Annual general meetings and general meetings |
| (a) | For so long as the Company’s securities are traded on an Exchange, the Company shall hold an annual general meeting in each calendar year, which shall be convened by the Directors, in accordance with these Articles, but so that the maximum period between such annual general meetings shall not exceed fifteen (15) months. |
| (b) | All general meetings other than annual general meetings shall be called general meetings. |
| 22.2 | Convening of general meetings |
The Directors may convene a general meeting of the Company whenever the Directors think fit, and must do so if required to do so pursuant to a valid Members’ requisition.
| 22.3 | Members’ requisition |
A Members’ requisition is a requisition of Members of the Company holding at the date of deposit of the requisition at the Registered Office not less than ten percent (10%) in par value of the issued Shares which as at that date carry the right to vote at general meetings of the Company.
| 22.4 | Requirements of Members’ requisition |
| (a) | The requisition must state the objects of the general meeting and must be signed by the requisitionists and deposited at the Registered Office, and may consist of several documents in like form each signed by one or more requisitionists. |
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| (b) | If the Directors do not within twenty-one (21) days from the date of the deposit of the requisition duly proceed to convene a general meeting to be held within a further 21 days, the requisitionists, or any of them representing a majority of the total voting rights of all of them, may themselves convene a general meeting of the Company, but any meeting so convened shall not be held after the expiration of three months after the expiration of such 21 day period. |
| (c) | A general meeting convened in accordance with this Article by requisitionists shall be convened (insofar as is possible) in the same manner as that in which general meetings are to be convened by Directors and the Directors shall, upon demand, provide the names and addresses of each Member to the requisitionists for the purpose of convening such meeting. |
| 23. | NOTICE OF GENERAL MEETINGS |
| 23.1 | Length and form of notice and persons to whom notice must be given |
| (a) | At least fourteen (14) clear days’ notice shall be given of any annual general meeting or general meeting of the Company. |
| (b) | Subject to the Companies Act and notwithstanding that it is convened by shorter notice than that specified in paragraph (a) of this Article, a general meeting shall be deemed to have been duly convened if it is so agreed in the case of all meetings by ninety percent (90%) of all the Members entitled to attend and vote at the meeting. |
| (c) | The notice of meeting shall specify: |
| (i) | whether the meeting is an annual general meeting or a general meeting; |
| (ii) | the place, the day and the time of the meeting; |
| (iii) | subject to the requirements of (to the extent applicable) the Exchange Rules and/or the Exchange, the general nature of the business to be transacted; |
| (iv) | if the meeting is convened to consider a Special Resolution, the intention to propose the resolution as such; and |
| (v) | with reasonable prominence, that a Member entitled to attend and vote is entitled to appoint one or more proxies to attend and, on a poll, vote instead of him and that a proxy need not also be a Member. |
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| (d) | The notice of meeting: |
| (i) | shall be given to the Members (other than a Member who, under these Articles or any restrictions imposed on any Shares, is not entitled to receive notice from the Company), to each Director and alternate Director, to the Auditor and to such other persons as may be required by the Exchange Rules and/or the Exchange; and |
| (ii) | may specify a time by which a person must be entered on the Register of Members in order for such person to have the right to attend or vote at the meeting. |
| (e) | The Directors may determine that the Members entitled to receive notice of a meeting are those persons entered on the Register of Members at the close of business on a day determined by the Directors. |
| 23.2 | Omission or non-receipt of notice or instrument of proxy |
The accidental omission to send or give notice of meeting or, in cases where it is intended that it be sent out or given with the notice, an instrument of proxy or other document to, or the non-receipt of any such item by, any person entitled to receive such notice shall not invalidate the proceedings at that meeting.
| 24. | PROCEEDINGS AT GENERAL MEETINGS |
| 24.1 | Requirement and number for a quorum |
No business may be transacted at a general meeting unless a quorum is present. Members holding in aggregate voting shares of the Company carrying the right to cast a majority of the votes attributable to all shares of the Company then in issue present in person or by proxy and entitled to vote on the business to be transacted constitutes a quorum The absence of a quorum will not prevent the appointment of a chairman of the meeting. Such appointment shall not be treated as being part of the business of the meeting.
| 24.2 | General meetings by telephone or other communications device |
A general meeting may be held by means of any telephone, electronic or other communications facilities that permit all persons in the meeting to communicate with each other simultaneously and instantaneously and participation in such a meeting shall constitute presence in person at such meeting. Unless otherwise determined by resolution of the Members present, the meeting shall be deemed to be held at the place where the chairman is physically present.
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| 24.3 | Adjournment if quorum not present |
If within thirty (30) minutes after the time appointed for a general meeting a quorum is not present (or if during such a meeting a quorum ceases to be present), the meeting:
| (a) | if convened upon the requisition of Members, shall be dissolved; and |
| (b) | in any other case, stands adjourned to the same day in the next week at the same time and place or to such other day, time and place as the Directors may determine, and if at the adjourned meeting a quorum is not present within thirty (30) minutes from the time appointed for the meeting the Members present shall be a quorum. |
| 24.4 | Appointment of chairman of general meeting |
| (a) | If the Directors have elected one of their number as chairman of their meetings that person shall preside as chairman at every general meeting of the Company. If there is no such chairman, or if the elected chairman is not present within fifteen (15) minutes after the time appointed for the holding of the meeting, or is unable or unwilling to act, the Directors present shall elect one of their number to be chairman of the meeting. |
| (b) | If no Director is willing to act as chairman or if no Director is present within fifteen (15) minutes after the time appointed for holding the meeting, the Members present shall choose one of their number to be chairman of the meeting. |
| 24.5 | Orderly conduct |
The chairman shall take such action or give directions for such action to be taken as he thinks fit to promote the orderly conduct of the business of the meeting. The chairman’s decision on points of order, matters of procedure or arising incidentally from the business of the meeting shall be final as shall be his determination as to whether any point or matter is of such a nature.
| 24.6 | Entitlement to attend and speak |
Each Director shall be entitled to attend and speak at any general meeting of the Company. The chairman may invite any person to attend and speak at any general meeting of the Company where he considers that this will assist in the deliberations of the meeting.
| 24.7 | Adjournment of general meeting |
The chairman may, with the consent of a meeting at which a quorum is present (and shall if so directed by the meeting), adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. When a general meeting is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Otherwise it shall not be necessary to give any such notice.
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| 25. | VOTES OF MEMBERS |
| 25.1 | Voting procedure |
At any general meeting:
| (a) | a resolution put to the vote of the meeting shall be decided on a poll; |
| (b) | a poll shall be taken in such manner as the chairman directs, and the result of the poll shall be deemed to be the resolution of the general meeting; |
| (c) | votes may be given either personally or by proxy; |
| (d) | a Member holding more than one Share need not cast the votes in respect of their Shares in the same way on any resolution and therefore may vote a Share or some or all such Shares either for or against a resolution and/or abstain from voting a Share or some or all of the Shares and, subject to the terms of the instrument appointing the proxy, a proxy appointed under one or more instruments may vote a Share or some or all of the Shares in respect of which they are appointed either for or against a resolution and/or abstain from voting a Share or some or all of the Shares in respect of which they are appointed. |
| 25.2 | No casting vote for chairman |
If there is an equality of votes on a poll, the chairman is not entitled to a second or casting vote in addition to any other vote he may have or be entitled to exercise.
| 25.3 | Written resolutions of Members |
A resolution (including a Special Resolution) in writing (in one or more counterparts) signed by or on behalf of all Members for the time being entitled to receive notice of and to attend and vote at general meetings of the Company shall be as valid and effective as if the resolution had been passed at a general meeting of the Company duly convened and held. A resolution in writing is adopted when all Members entitled to do so have signed it.
| 25.4 | Registered Members to vote |
No person shall be entitled to vote at any general meeting unless he is registered as a Member in the Register of Members on the record date for such meeting.
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| 25.5 | Voting rights |
Subject to any rights and restrictions for the time being attached to any class or classes of Shares, every Member present in person and every person representing a Member by proxy at a general meeting of the Company shall have one vote for each Share registered in such Member’s name in the Register of Members. No cumulative voting shall be allowed.
| 25.6 | Voting rights of joint holders |
If a Share is held jointly and more than one of the joint holders votes in respect of that Share, only the vote of the joint holder whose name appears first in the Register of Members in respect of that Share counts.
| 25.7 | Voting rights of Members incapable of managing their affairs |
A Member of unsound mind, or in respect of whom an order has been made by any court having jurisdiction in matters concerning mental disorder, may vote on a poll by his receiver, curator bonis, or other person on such Member’s behalf appointed by that court, and any such receiver, curator bonis or other person may vote by proxy.
| 25.8 | Voting restriction on an outstanding call |
Unless the Directors decide otherwise, no Member shall be entitled to be present or vote at any general meeting either personally or by proxy until he has paid all calls due and payable on every Share held by him whether alone or jointly with any other person together with interest and expenses (if any) to the Company.
| 25.9 | Objection to error in voting |
| (a) | An objection to the right of a person to attend or vote at a general meeting or adjourned general meeting: |
| (i) | may not be raised except at that meeting or adjourned meeting; and |
| (ii) | must be referred to the chairman of the meeting whose decision is final. |
| (b) | If any objection is raised to the right of a person to vote and the chairman disallows the objection then the vote cast by that person is valid for all purposes. |
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| 26. | REPRESENTATION OF MEMBERS AT GENERAL MEETINGS |
| 26.1 | How Members may attend and vote |
| (a) | Subject to these Articles, each Member entitled to vote at a general meeting may attend and vote at the general meeting: |
| (i) | in person, or where a Member is a company or non-natural person, by a duly authorised representative; or |
| (ii) | by one or more proxies. |
| (b) | A proxy or a duly authorised representative may, but not need be, a Member of the Company. |
| 26.2 | Appointment of proxies |
| (a) | The instrument appointing a proxy shall be in writing and be executed by or on behalf of the Member appointing the proxy. |
| (b) | A corporation may execute an instrument appointing a proxy either under its common seal (or in any other manner permitted by law and having the same effect as if executed under seal) or under the hand of a duly authorised officer, attorney or other person. |
| (c) | A Member may appoint more than one proxy to attend on the same occasion, but only one proxy may be appointed in respect of any one Share. |
| (d) | The appointment of a proxy shall not preclude a Member from attending and voting at the meeting or any adjournment of it. |
| 26.3 | Form of instrument of proxy |
The instrument appointing a proxy may be in any usual or common form (or in any other form approved by the Directors or prescribed by the Exchange) and may be expressed to be for a particular general meeting (or any adjournment of a general meeting) or generally until revoked.
| 26.4 | Authority under instrument of proxy |
The instrument appointing a proxy shall be deemed (unless the contrary is stated in it) to confer authority to demand or join in demanding a poll and to vote, on a poll, on a resolution as a motion or an amendment of a resolution put to, or other business which may properly come before, the meeting or meetings for which it is given or any adjournment of any such meeting, as the proxy thinks fit.
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| 26.5 | Receipt of proxy appointment |
The instrument appointing a proxy and any authority under which it is executed shall be deposited at the Registered Office or at such other place as is specified in the notice convening the meeting (or in any instrument of proxy sent out by the Company) prior to the time set out in such notice or instrument (or if no such time is specified, no later than forty-eight (48) hours before the time appointed for holding the meeting or adjourned meeting). Notwithstanding the foregoing, the chairman may, in any event, at his discretion, direct that an instrument of proxy shall be deemed to have been duly deposited.
| 26.6 | Uncertificated Proxy Instruction |
In relation to any Shares which are held by means of a Relevant System, the Directors may from time to time permit appointments of a proxy to be made by means of an electronic communication in the form of an Uncertificated Proxy Instruction. The Directors may in a similar manner permit supplements to, or amendments or revocations of, any such Uncertificated Proxy Instruction to be made by like means. The Directors may in addition prescribe the method of determining the time at which any such properly authenticated dematerialised instruction (and/or other instruction or notification) is to be treated as received by the Company or such participant. Notwithstanding any other provision in these Articles, the Directors may treat any such Uncertificated Proxy Instruction which purports to be or is expressed to be sent on behalf of a holder of a Share as sufficient evidence of the authority of the persons sending that instruction to send it on behalf of the holder.
| 26.7 | Validity of votes cast by proxy |
Votes given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the previous death or insanity of the principal or revocation of the instrument of proxy or of the authority under which the instrument of proxy was executed, or the transfer of the Share in respect of which the proxy is appointed unless notice in writing of such death, insanity, revocation or transfer was received by the Company at the Registered Office before the commencement of the general meeting, or adjourned meeting at which the proxy voted.
| 26.8 | Corporate representatives |
A corporation which is a Member may, by resolution of its directors or other governing body, authorise such person as it thinks fit to act as its representative at any meeting of the Company or at any separate meeting of the holders of any Class of Shares. Any person so authorised shall be entitled to exercise the same powers on behalf of the corporation (in respect of that part of the corporation’s holdings to which the authority relates) as the corporation could exercise if it were an individual Member. The corporation shall for the purposes of these Articles be deemed to be present in person at any such meeting if a person so authorised is present at it. All references in these Articles to attendance and voting in person shall be construed accordingly. A Director, the Secretary or some other person authorised for the purpose by a Director may require the representative to produce a certified copy of the resolution so authorising him or such other evidence of his authority reasonably satisfactory to such person before permitting him to exercise his powers.
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| 26.9 | Clearing Houses and Depositories |
If a Clearing House or a Depository (or its nominee(s)), being a corporation, is a Member, it may authorise such persons as it thinks fit to act as its representatives at any meeting of the Company or at any separate meeting of the holders of any Class of Shares provided that, if more than one person is so authorised, the authorisation shall specify the number and Class of Shares in respect of which each such representative is so authorised. Each person so authorised under the provisions of this Article shall be deemed to have been duly authorised without further evidence of the facts and be entitled to exercise the same rights and powers on behalf of the Clearing House or the Depository (or its nominee(s)) as if such person was the registered holder of the Shares of the Company held by the Clearing House or the Depository (or its nominee(s)).
| 26.10 | Termination of proxy or corporate authority |
A vote given or poll demanded by proxy or by the duly authorised representative of a corporation shall be valid notwithstanding the previous termination of the authority of the person voting or demanding a poll, unless notice of the termination was received by the Company at the Registered Office, or at such other place at which the instrument of proxy was duly deposited, or, where the appointment of proxy was contained in an electronic communication, at the address at which such appointment was duly received, at least one hour before the commencement of the meeting or adjourned meeting at which the vote is given or the poll demanded or (in the case of a poll not taken on the same day as the meeting or adjourned meeting) at least one hour before the time appointed for taking the poll.
| 26.11 | Amendment to resolution |
| (a) | If an amendment shall be proposed to any resolution but shall in good faith be ruled out of order by the chairman of the meeting, any error in such ruling shall not invalidate the proceedings on the substantive resolution. |
| (b) | ln the case of a resolution duly proposed as a Special Resolution, no amendment to it (other than an amendment to correct a patent error) may be considered or voted on and in the case of a resolution duly proposed as an Ordinary Resolution no amendment to it (other than an amendment to correct a patent error) may be considered or voted on unless either at least forty-eight (48) hours prior to the time appointed for holding the meeting or adjourned meeting at which such Ordinary Resolution is to be proposed notice in writing of the terms of the amendment and intention to move it has been lodged at the Registered Office or the chairman of the meeting in his absolute discretion decides that it may be considered or voted on. |
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| 26.12 | Shares that may not be voted |
Shares that are beneficially owned by the Company shall not be voted, directly or indirectly, at any general meeting or Class meeting (as applicable) and shall not be counted in determining the total number of outstanding Shares at any given time.
| 27. | APPOINTMENT, RETIREMENT AND REMOVAL OF DIRECTORS |
| 27.1 | Number of Directors |
The number of Directors (other than alternate Directors) shall be not more than seven Directors.
| 27.2 | Appointment and removal of Directors |
| (a) | Heru shall be entitled, by written notice to the Company, to appoint and remove: |
| (i) | five Directors, provided that Heru then holds shares in the Company entitled to cast at least thirty (30%) percent of the votes at a general meeting of the Company; |
| (ii) | three Directors, provided that Heru then holds shares in the Company entitled to cast less than thirty (30%) percent but at least ten (10%) percent of the votes at a general meeting of the Company; and |
| (iii) | the chairman of the board of Directors provided that Heru then holds shares in the Company entitled to cast at least ten (10%) percent of the votes at a general meeting of the Company. |
| (b) | Any Directors which Hero is not entitled to appoint pursuant to paragrpah (a) above, may be appointed and removed by Ordinary Resolution. |
| 27.3 | Appointment of executive Directors |
The Directors may appoint one or more of its members to an executive office or other position of employment with the Company for such term and on any other conditions the Directors think fit. The Directors may revoke, terminate or vary the terms of any such appointment, without prejudice to a claim for damages for breach of contract between the Director and the Company.
| 27.4 | No age limit |
| (a) | No person shall be disqualified from being appointed or re-appointed as a Director and no Director shall be requested to vacate that office by reason of his attaining the age of seventy or any other age. |
| (b) | It shall not be necessary to give special notice of any resolution appointing, re-appointing or approving the appointment of a Director by reason of his age. |
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| 27.5 | Other circumstances in which a Director ceases to hold office |
| (a) | Without prejudice to the provisions in these Articles, a Director ceases to hold office as a Director if: |
| (i) | he resigns as Director by notice in writing delivered to the Directors or to the Registered Office or tendered at a meeting of Directors; |
| (ii) | he is not present personally or by proxy or represented by an alternate Director at meetings of the Directors for a continuous period of 6 months without special leave of absence from the Directors, and the Directors pass a resolution that he has by reason of such absence vacated office; |
| (iii) | he only held office as a Director for a fixed term and such term expires; |
| (iv) | he dies, becomes bankrupt or makes any arrangement or composition with his creditors generally; or |
| (v) | he is removed from office pursuant to these Articles or the Companies Act or becomes prohibited by law from being a Director; |
| (vi) | an order is made by any court of competent jurisdiction on the ground (however formulated) of mental disorder for his detention or for the appointment of a guardian or receiver or other person to exercise powers with respect to his property or affairs or he is admitted to hospital in pursuance of an application for admission for treatment under any legislation relating to mental health and the Directors resolve that his office be vacated; or |
| (vii) | in the case of a Director who holds executive office, his appointment to such office is terminated or expires and the Directors resolve that his office be vacated. |
| (b) | The appointment rights set out in Article 27.2 shall apply to the appointment of any replacement of a Director removed from or ceasing to hold office in accordance with this Article 27.5. |
| 28. | ALTERNATE DIRECTORS |
| 28.1 | Appointment |
| (a) | A Director (other than an alternate Director) may appoint any other Director or any person approved for that purpose by the Directors and willing to act, to be his alternate by notice in writing delivered to the Directors or to the Registered Office, or in any other manner approved by the Directors. |
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| (b) | The appointment of an alternate Director who is not already a Director shall require the approval of either a majority of the Directors or the Directors by way of a Directors’ resolution. |
| (c) | An alternate Director need not hold a Share qualification and shall not be counted in reckoning any maximum or minimum number of Directors allowed by these Articles. |
| 28.2 | Responsibility |
Every person acting as an alternate Director shall be an officer of the Company, shall alone be responsible to the Company for his own acts and defaults and shall not be deemed to be the agent of the Director appointing him.
| 28.3 | Participation at Directors’ meetings |
An alternate Director shall (subject to his giving to the Company an address at which notices may be served on him) be entitled to receive notice of all meetings of the Directors and all committees of the Directors of which his appointor is a member and, in the absence from such meetings of his appointor, to attend and vote at such meetings and to exercise all the powers, rights, duties and authorities of his appointor (other than the power to appoint an alternate Director). A Director acting as alternate Director shall have a separate vote at Directors’ meetings for each Director for whom he acts as alternate Director, but he shall count as only one for the purpose of determining whether a quorum is present.
| 28.4 | lnterests |
An alternate Director shall be entitled to contract and be interested in and benefit from contracts or arrangements with the Company and to be repaid expenses and to be indemnified in the same way and to the same extent as a Director. However, he shall not be entitled to receive from the Company any fees for his services as alternate, except only such part (if any) of the fee payable to his appointor as such appointor may by notice in writing to the Company direct. Subject to this Article, the Company shall pay to an alternate Director such expenses as might properly have been paid to him if he had been a Director.
| 28.5 | Termination of appointment |
| (a) | An alternate Director shall cease to be an alternate Director: |
| (b) | if his appointor revokes his appointment by notice delivered to the Directors or to the Registered Office or in any other manner approved by the Directors; or |
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| (c) | if his appointor ceases for any reason to be a Director, provided that if any Director retires but is re-appointed or deemed to be re-appointed at the same meeting, any valid appointment of the alternate Director which was in force immediately before his retirement shall remain in force; or |
| (d) | if any event happens in relation to him which, if he were a Director, would cause his office as Director to be vacated. |
| 29. | POWERS OF DIRECTORS |
| 29.1 | General powers to manage the Company’s business |
| (a) | Subject to the provisions of the Companies Act, the Memorandum and these Articles and to any directions given by Special Resolution, the business of the Company shall be managed by the Directors, who may exercise all the powers of the Company. No alteration of the Memorandum or Articles and no such direction shall invalidate any prior act of the Directors which would have been valid if that alteration had not been made or that direction had not been given. |
| (b) | The powers given by this Article shall not be limited by any special power given to the Directors by these Articles and a duly convened meeting of Directors at which a quorum is present may exercise all powers exercisable by the Directors. |
| 29.2 | Signing of cheques |
All cheques, promissory notes, drafts, bills of exchange and other negotiable instruments and all receipts for monies paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed as the case may be in such manner as the Directors shall determine.
| 29.3 | Borrowing powers of Directors |
The Directors may exercise all the powers of the Company to borrow money and to mortgage or charge all or any part of its undertaking and property and to issue debentures, debenture stock, mortgages, bonds and other such securities whether outright or as security for any debt, liability or obligation of the Company or of any third party.
| 30. | PROCEEDINGS OF DIRECTORS |
| 30.1 | Directors’ meetings |
Subject to the provisions of these Articles, the Directors may regulate their proceedings as they think fit.
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| 30.2 | Voting |
Questions arising at any Directors’ meeting shall be decided by a simple majority of votes. In the case of an equality of votes, the chairman shall not have a second or casting vote. A Director who is also an alternate Director shall be entitled in the absence of his appointor to a separate vote on behalf of his appointor in addition to his own vote.
| 30.3 | Notice of a Directors’ meeting |
A Director or an alternate Director may, or any other officer of the Company at the request of a Director or alternate Director shall, call a meeting of the Directors by not less than twenty-four (24) hours’ notice. Notice of a meeting of the Directors must specify the time and place of the meeting and the general nature of the business to be considered, and shall be deemed to be given to a Director if it is given to him personally or by word of mouth or sent in writing to his last known address given to the Company by him for such purpose or given by electronic communications to an address for the time being notified to the Company by the Director. A Director may waive the requirement that notice of any Directors’ meeting be given to him, either at, before or after the meeting.
| 30.4 | Failure to give notice |
A Director or alternate Director who attends any Directors’ meeting waives any objection that he or she may have to any failure to give notice of that meeting. The accidental failure to give notice of a Directors’ meeting to, or the non-receipt of notice by, any person entitled to receive notice of that meeting does not invalidate the proceedings at that meeting or any resolution passed at that meeting.
| 30.5 | Quorum |
No business shall be transacted at any meeting of the Directors unless a quorum is present. The quorum may be fixed by the Directors, and unless so fixed shall be two (2) if there are two or more Directors, and shall be one if there is only one Director. A person who holds office only as an alternate Director shall, if his appointor is not present, be counted in the quorum.
| 30.6 | Power to act notwithstanding vacancies |
The continuing Directors or sole continuing Director may act notwithstanding any vacancies in their number, but if the number of Directors is less than the number fixed as the quorum, the continuing Directors or Director may act only for the purpose of filling vacancies in that number, or for calling a general meeting of the Company.
| 30.7 | Chairman to preside |
The Directors may elect a chairman of their board and determine the period for which he is to hold office, but if no such chairman is elected, or if at any meeting the chairman is not present within five minutes after the time appointed for the meeting, the Directors present may appoint one of their number to be chairman of the meeting.
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| 30.8 | Validity of acts of Directors in spite of a formal defect |
All acts done by a meeting of the Directors or of a committee of Directors (including any person acting as an alternate Director) shall, notwithstanding that it be afterwards discovered that there was a defect in the appointment of any Director or alternate Director, or that they or any of them were disqualified from holding office (or had vacated office) or were not entitled to vote, be as valid as if every such person had been duly appointed and qualified to be a Director or alternate Director as the case may be and had been entitled to vote.
| 30.9 | Directors’ meetings by telephone or other communication device |
A meeting of the Directors (or committee of Directors) may be held by means of any telephone, electronic or such other communications facilities that permit all persons in the meeting to communicate with each other simultaneously and instantaneously and participation in such a meeting shall constitute presence in person at such meeting. Unless otherwise determined by the Directors the meeting shall be deemed to be held at the place where the chairman is physically present.
| 30.10 | Written resolutions of Directors |
A resolution in writing (in one or more counterparts) signed by all the Directors or all the members of a committee of Directors (an alternate Director being entitled to sign such a resolution on behalf of his appointor) shall be as valid and effective as if it had been passed at a meeting of the Directors, or committee of Directors as the case may be, duly convened and held. A resolution in writing is adopted when all the Directors (whether personally, by an alternate Director or by a proxy) have signed it.
| 30.11 | Appointment of a proxy |
A Director but not an alternate Director may be represented at any meeting of the Directors by a proxy appointed in writing by him. The proxy shall count towards the quorum and the vote of the proxy shall for all purposes be deemed to be that of the appointing Director. The authority of any such proxy shall be deemed unlimited unless expressly limited in the written instrument appointing him.
| 30.12 | Presumption of assent |
A Director (or alternate Director) present at a meeting of Directors is taken to have cast a vote in favour of a resolution of the Directors unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent from such action with the chairman or secretary of the meeting before the adjournment of the meeting or shall forward such dissent by registered post to such person immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Director who voted in favour of a resolution of the Directors.
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| 30.13 | Directors’ interests |
| (a) | Subject to the provisions of the Companies Act and provided that he has declared to the Directors the nature and extent of any personal interest of his in a matter, transaction or arrangement, a Director or alternate Director notwithstanding his office may: |
| (i) | hold any office or place of profit in the Company, except that of Auditor; |
| (ii) | hold any office or place of profit in any other company or entity promoted by the Company or in which it has an interest of any kind; |
| (iii) | enter into any contract, transaction or arrangement with the Company or in which the Company is otherwise interested; |
| (iv) | act in a professional capacity (or be a member of a firm which acts in a professional capacity) for the Company, except as Auditor; |
| (v) | sign or participate in the execution of any document in connection with matters related to that interest; |
| (vi) | participate in, vote on and be counted in the quorum at any meeting of the Directors that considers matters relating to that interest; and |
| (vii) | do any of the above despite the fiduciary relationship of the Director’s office: |
| (viii) | without any liability to account to the Company for any direct or indirect benefit accruing to the Director; and |
| (ix) | without affecting the validity of any contract, transaction or arrangement. |
| (b) | For the purposes of this Article, a general notice given to the Directors that a Director is to be regarded as having an interest of the nature and extent specified in the notice in any matter, transaction or arrangement for which a specified person or class of persons is interested shall be deemed to be a disclosure that the Director has an interest in any such matter, transaction or arrangement of the nature and extent so specified. |
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| 30.14 | Minutes of meetings to be kept |
The Directors shall cause minutes to be made in books kept for the purpose of all appointments of officers made by the Directors, all proceedings at general and Class meetings of the Company and meetings of the Directors or committees of the Directors, including the names of the Directors or alternate Directors present at each meeting.
| 31. | DELEGATION OF DIRECTORS’ POWERS |
| 31.1 | Power of Directors to delegate |
The Directors may:
| (a) | delegate any of their powers, authorities and discretions to any person or committee consisting of one or more Directors and (if the Directors think fit) to one or more other persons in each case to such extent, by such means (including by power of attorney) and on such terms and conditions as the Directors think fit; |
| (b) | authorise any person or committee to whom powers, authorities and discretions are delegated under this Article by the Directors to further delegate some or all of those powers, authorities and discretions; |
| (c) | delegate their powers, authorities and discretions under this Article either collaterally with or to the exclusion of their own powers, authorities and discretions; and |
| (d) | at any time revoke any delegation made under this Article by the Directors in whole or in part or vary its terms and conditions. |
| 31.2 | Delegation to Committees |
The Directors may delegate any of their powers, authorities and discretions, including the power to sub- delegate, to any committees consisting of such member or members of their body and/or such other persons as they think fit (including, without limitation, the Audit Committee, the Compensation Committee and the Nominating and Corporate Governance Committee (provided that the Compensation Committee and the Nominating and Corporate Governance Committee may be combined into a single committee)); provided that any committee so formed shall include amongst its members at least one Director unless otherwise required by the rules and regulations of the Exchange, the Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law; provided further that no committee shall have the power of authority to:
| (a) | recommend to the Members an amendment of these Articles (except that a committee may, to the extent authorised in the resolution or resolutions providing for the issuance of shares adopted by the Directors as provided under the laws of the Cayman Islands, fix the designations and any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the Company or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of shares of the Company); |
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| (b) | adopt an agreement of merger or consolidation; |
| (c) | recommend to the Members the sale, lease or exchange of all or substantially all of the Company’s property and assets; |
| (d) | recommend to the Members a dissolution of the Company or a revocation of a dissolution; |
| (e) | recommend to the Members an amendment of the Memorandum of Association of the Company; or |
| (f) | declare a dividend or authorise the issuance of shares unless the resolution establishing such committee (or the charter of such committee approved by the Directors) or the Memorandum of Association or these Articles so provide. |
Any committee so formed shall in the exercise of the powers so delegated conform to any regulations that may be imposed on it by the Directors. The Directors may also delegate to any Director holding any executive office such of their powers as they consider desirable to be exercised by him or her. Any such delegation may be made subject to any conditions the Directors may impose, and either collaterally with or to the exclusion of their own powers, and may be revoked or altered.
| 31.3 | Charters for committees |
The Directors may adopt formal written charters for committees and, if so adopted, shall review and assess the adequacy of such formal written charters if required by the rules and regulations of the Exchange, the Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law. Each of these committees shall be empowered to do all things necessary to exercise the rights of such committee set forth in the written charters and shall have such powers as the Directors may delegate pursuant to the Articles and as required by the rules and regulations of the Exchange, the Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law. Each of the Audit Committee, the Compensation Committee and the Nominating and Corporate Governance Committee, if established, shall consist of such number of Directors as the Directors shall from time to time determine (or such minimum number as may be required from time to time by the rules and regulations of the Exchange, the Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law). For so long as any class of Shares is listed on the Exchange, the Audit Committee, the Compensation Committee and the Nominating and
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Corporate Governance Committee shall be made up of such number of Independent Directors as is required from time to time by the rules and regulations of the rules and regulations of the Exchange, the Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law.
| 31.4 | Delegation to executive Directors |
The Directors may delegate to a Director holding executive office any of its powers, authorities and discretions for such time and on such terms and conditions as it shall think fit. The Directors may grant to a Director the power to sub-delegate, and may retain or exclude the right of the Directors to exercise the delegated powers, authorities or discretions collaterally with the Director. The Directors may at any time revoke the delegation or alter its terms and conditions.
| 31.5 | Delegation to advisory committees or local boards |
| (a) | The Directors may establish any advisory committees or local or divisional board or agency for managing any of the affairs of the Company whether in the Cayman Islands or elsewhere and may appoint any persons to be members of such advisory committee or local or divisional board, or to be managers or agents, and may fix their remuneration. |
| (b) | The Directors may delegate to any advisory committee or local or divisional board, manager or agent any of its powers and authorities (with power to sub-delegate) and may authorise the members of any local or divisional board or any of them to fill any vacancies and to act notwithstanding vacancies. |
| (c) | Any appointment or delegation under this Article may be made on such terms and subject to such conditions as the Directors think fit and the Directors may remove any person so appointed, and may revoke or vary any delegation. |
| 31.6 | Proceedings of committees |
Meetings and actions of committees of the Directors shall be governed by, and held and taken in accordance with, the provisions of Article 23.1(c) (place of meetings), Article 23.1(a) (notice), Article 24.2 (telephonic meetings), and Article 24.1 (quorum), with such changes in the context of these Articles as are necessary to substitute the committee and its members for the Directors; provided, however, that the time of regular meetings of committees may be determined either by resolution of the Directors or by resolution of the committee, that special meetings of committees may also be called by resolution of the Directors, and that notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee. The Directors may adopt rules for the government of any committee not inconsistent with the provisions of these Articles.
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| 31.7 | Appointing an attorney, agent or authorised signatory of the Company |
| (a) | The Directors may by power of attorney or otherwise appoint any person to be the attorney, agent or authorised signatory of the Company for such purpose and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors under these Articles) and for such period and subject to such conditions as they think fit. |
| (b) | Any such power of attorney or other appointment may contain such provisions for the protection and convenience of persons dealing with any such attorney, agent or authorised signatory as the Directors think fit and may also authorise any such attorney, agent or authorised signatory to delegate all or any of the powers, authorities and discretions vested in such person. |
| 31.8 | Officers |
The Directors may appoint such officers (including a Secretary) as they consider necessary on such terms, at such remuneration and to perform such duties, and subject to such provisions as to disqualification and removal as the Directors think fit. Unless otherwise specified in the terms of his appointment, an officer may be removed from that office by resolution of the Directors or by Ordinary Resolution.
| 32. | DIRECTORS’ RENUMERATION, EXPENSES AND BENEFITS |
| 32.1 | Fees |
The Company shall pay to the Directors (but not alternate Directors) for their services as Directors such aggregate amount of fees as the Directors may decide. The aggregate fees shall be divided among the Directors in such proportions as the Directors may decide or, if no decision is made, equally. A fee payable to a Director pursuant to this Article shall be distinct from any salary, remuneration or other amount payable to him pursuant to other provisions of these Articles and accrues from day to day.
| 32.2 | Expenses |
A Director may also be paid all travelling, hotel and other expenses properly incurred by him in connection with his attendance at meetings of the Directors or of committees of the Directors or general meetings or separate meetings of the holders of any Class of Shares or otherwise in connection with the discharge of his duties as a Director, including (without limitation) any professional fees incurred by him (with the approval of the Directors or in accordance with any procedures stipulated by the Directors) in taking independent professional advice in connection with the discharge of such duties.
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| 32.3 | Remuneration of executive Directors |
The salary or remuneration of a Director appointed to hold employment or executive office in accordance with the Articles may be a fixed sum of money, or wholly or in part governed by business done or profits made, or as otherwise decided by the Directors (including, for the avoidance of doubt, by the Directors acting through a duly authorised Directors’ committee), and may be in addition to or instead of a fee payable to him for his services as Director pursuant to these Articles.
| 32.4 | Special remuneration |
A Director who, at the request of the Directors, goes or resides abroad, makes a special journey or performs a special service on behalf of or for the Company (including, without limitation, services as a chairman of the board of Directors, services as a member of any committee of the Directors and services which the Directors consider to be outside the scope of the ordinary duties of a Director) may be paid such reasonable additional remuneration (whether by way of salary, bonus, commission, percentage of profits or otherwise) and expenses as the Directors (including, for the avoidance of doubt, the Directors acting through a duly authorised Directors’ committee) may decide.
| 32.5 | Pensions and other benefits |
The Directors may exercise all the powers of the Company to provide pensions or other retirement or superannuation benefits and to provide death or disability benefits or other allowances or gratuities (by insurance or otherwise) for a person who is or has at any time been a Director, an officer or a director or an employee of a company which is or was a Group Undertaking, a company which is or was allied to or associated with the Company or with a Group Undertaking or a predecessor in business of the Company or of a Group Undertaking (and for any member of his family, including a spouse or former spouse, or a person who is or was dependent on him). For this purpose the Directors may establish, maintain, subscribe and contribute to any scheme, trust or fund and pay premiums. The Directors may arrange for this to be done by the Company alone or in conjunction with another person. A Director or former Director is entitled to receive and retain for his own benefit any pension or other benefit provided in accordance with this Article and is not obliged to account for it to the Company.
| 33. | SEAL |
| 33.1 | Directors to determine use of Seal |
The Company may, if the Directors so determine, have a Seal. The Seal shall only be used with the authority of the Directors or a committee of the Directors established for such purpose. Every document to which the Seal is affixed shall be signed by at least one person who shall be either a Director or some officer or other person appointed by the Directors for that purpose unless the Directors decide that, either general or in a particular case, that a signature may be dispensed with or affixed by mechanical means.
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| 33.2 | Duplicate Seal |
The Company may have for use in any place or places outside the Cayman Islands a duplicate Seal or Seals each of which shall be a facsimile of the common Seal of the Company and, if the Directors so determine, with the addition on its face of the name of every place where it is to be used.
| 34. | DIVIDENDS, DISTRIBUTIONS AND RESERVES |
| 34.1 | Declaration |
Subject to the Companies Act and these Articles, the Directors may declare dividends and distributions on any one or more Classes of Shares in issue and authorise payment of the dividends or distributions out of the funds of the Company lawfully available therefor. No dividend or distribution shall be paid except out of the realised or unrealised profits of the Company, or out of the share premium account, or as otherwise permitted by the Companies Act.
| 34.2 | lnterim dividends |
Subject to the Companies Act, the Directors may pay such interim dividends (including any dividend payable at a fixed rate) as appears to the Directors to be available for distribution. lf at any time the share capital of the Company is divided into different Classes, the Directors may pay such interim dividends on Shares which rank after Shares conferring preferential rights with regard to dividend as well as on Shares conferring preferential rights, unless at the time of payment any preferential dividend is in arrears. lf the Directors act in good faith, they shall not incur any liability to the holders of Shares conferring preferential rights for any loss that they may suffer by the lawful payment of an interim dividend on any Shares ranking after those with preferential rights.
| 34.3 | Entitlement to dividends |
| (a) | Except as otherwise provided by these Articles or the rights attached to Shares: |
| (i) | a dividend shall be declared and paid according to the amounts paid up (otherwise than in advance of calls) on the nominal value of the Shares on which the dividend is paid; and |
| (ii) | dividends shall be apportioned and paid proportionately to the amounts paid up on the nominal value of the Shares during any portion or portions of the period in respect of which the dividend is paid, but if any Share is issued on terms that it shall rank for dividend as from a particular date, it shall rank for dividend accordingly. |
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| (b) | Except as otherwise provided by these Articles or the rights attached to Shares: |
| (i) | a dividend may be paid in any currency or currencies decided by the Directors; and |
| (ii) | the Company may agree with a Member that any dividend declared or which may become due in one currency will be paid to the Member in another currency, for which purpose the Directors may use any relevant exchange rate current at any time as the Directors may select for the purpose of calculating the amount of any Member’s entitlement to the dividend. |
| 34.4 | Payment methods |
| (a) | The Company may pay a dividend, interest or other amount payable in respect of a Share in cash or by cheque, warrant or money order or by a bank or other funds transfer system or (in respect of any uncertificated Share or any Share represented by a Depository Interest) through the Relevant System in accordance with any authority given to the Company to do so (whether in writing, through the Relevant System or otherwise) by or on behalf of the Member in a form or in a manner satisfactory to the Directors. Any joint holder or other person jointly entitled to a Share may give an effective receipt for a dividend, interest or other amount paid in respect of such Share. |
| (b) | The Company may send a cheque, warrant or money order by post: |
| (i) | in the case of a sole holder, to his registered address; |
| (ii) | in the case of joint holders, to the registered address of the person whose name stands first in the Register of Members; |
| (iii) | in the case of a person or persons entitled by transmission to a Share, as if it were a notice given in accordance with Article 14; or |
| (iv) | in any case, to a person and address that the person or persons entitled to the payment may in writing direct. |
| (c) | Every cheque, warrant or money order shall be sent at the risk of the person or persons entitled to the payment and shall be made payable to the order of the person or persons entitled or to such other person or persons as the person or persons entitled may in writing direct. The payment of the cheque, warrant or money order shall be a good discharge to the Company. lf payment is made by a bank or other funds transfer or through the Relevant System, the Company shall not be responsible for amounts lost or delayed in the course of transfer. lf payment is made by or on behalf of the Company through the Relevant System: |
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| (i) | the Company shall not be responsible for any default in accounting for such payment to the Member or other person entitled to such payment by a bank or other financial intermediary of which the Member or other person is a customer for settlement purposes in connection with the Relevant System; and |
| (ii) | the making of such payment in accordance with any relevant authority referred to in paragraph (a) above shall be a good discharge to the Company. |
| (d) | The Directors may: |
| (i) | lay down procedures for making any payments in respect of uncertificated Shares through the Relevant System; |
| (ii) | allow any holder of uncertificated Shares to elect to receive or not to receive any such payment through the Relevant System; and |
| (iii) | lay down procedures to enable any such holder to make, vary or revoke any such election. |
| (e) | The Directors may withhold payment of a dividend (or part of a dividend) payable to a person entitled by transmission to a Share until he has provided any evidence of his entitlement that the Directors may reasonably require. |
| 34.5 | Deductions |
The Directors may deduct from any dividend or other amounts payable to any person in respect of a Share all such sums as may be due from him to the Company on account of calls or otherwise in relation to any Shares.
| 34.6 | Interest |
No dividend or other money payable in respect of a Share shall bear interest against the Company, unless otherwise provided by the rights attached to the Share.
| 34.7 | Unclaimed dividends |
All unclaimed dividends or other monies payable by the Company in respect of a Share may be invested or otherwise made use of by the Directors for the benefit of the Company until claimed. The payment of any unclaimed dividend or other amount payable by the Company in respect of a Share into a separate account shall not constitute the Company a trustee in respect of it. Any dividend unclaimed after a period of one (1) year from the date the dividend became due for payment shall be forfeited and shall revert to the Company.
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| 34.8 | Uncashed dividends |
| (a) | lf, in respect of a dividend or other amount payable in respect of a Share: |
| (b) | a cheque, warrant or money order is returned undelivered or left uncashed; or |
| (c) | a transfer made by or through a bank transfer system and/or other funds transfer system(s) (including, without limitation, the Relevant System in relation to any uncertificated Shares) fails or is not accepted, on two consecutive occasions, or one occasion and reasonable enquiries have failed to establish another address or account of the person entitled to the payment, the Company shall not be obliged to send or transfer a dividend or other amount payable in respect of such Share to such person until he notifies the Company of an address or account to be used for such purpose. |
| 34.9 | Dividends in kind |
The Directors may direct that any dividend or distribution shall be satisfied wholly or partly by the distribution of assets (including, without limitation, paid up Shares or securities of any other body corporate). Where any difficulty arises concerning such distribution, the Directors may settle it as it thinks fit. ln particular (without limitation), the Directors may:
| (a) | issue fractional certificates or ignore fractions; |
| (b) | fix the value for distribution of any assets, and may determine that cash shall be paid to any Member on the footing of the value so fixed in order to adjust the rights of Members; and |
| (c) | vest any assets in trustees on trust for the persons entitled to the dividend. |
| 34.10 | Scrip dividends |
| (a) | The Directors may offer any holders of ordinary Shares the right to elect to receive ordinary Shares, credited as fully paid, instead of cash in respect of the whole (or some part, to be determined by the Directors) of any dividend specified by the Ordinary Resolution, subject to the Companies Act and to the provisions of this Article. |
| (b) | The Directors may make any provision they consider appropriate in relation to an allotment made or to be made pursuant to this Article (whether before or after the passing or the Ordinary Resolution referred to in paragraph (a) of this Article), including (without limitation): |
| (i) | the giving of notice to holders of the right of election offered to them; |
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| (ii) | the provision of forms of election and/or a facility and a procedure for making elections through the Relevant System (whether in respect of a particular dividend or dividends generally); |
| (iii) | determination of the procedure for making and revoking elections; |
| (iv) | the place at which, and the latest time by which, forms of election and other relevant documents must be lodged in order to be effective; |
| (v) | the disregarding or rounding up or down or carrying forward of fractional entitlements, in whole or in part, or the accrual of the benefit of fractional entitlements to the Company (rather than to the holders concerned); and |
| (vi) | the exclusion from any offer of any holders of ordinary Shares where the Directors consider that the making of the offer to them would or might involve the contravention of the laws of any territory or that for any other reason the offer should not be made to them. |
| (c) | The dividend (or that part of the dividend in respect of which a right of election has been offered) shall not be payable on ordinary Shares in respect of which a valid election has been made (“the elected ordinary Shares”). Instead additional ordinary Shares shall be allotted to the holders of the elected ordinary Shares on the basis of allotment determined under this Article. For such purpose, the Directors may capitalise out of any amount for the time being standing to the credit of any reserve or fund of the Company (including any share premium account, capital redemption reserve and profit and loss account), whether or not available for distribution, a sum equal to the aggregate nominal amount of the additional ordinary Shares to be allotted on that basis and apply it in paying up in full the appropriate number of unissued ordinary Shares for allotment and distribution to the holders of the elected ordinary Shares on that basis. |
| (d) | The additional ordinary Shares when allotted shall rank equally in all respects with the fully paid ordinary Shares in issue on the record date for the dividend in respect of which the right of election has been offered, except that they will not rank for any dividend or other entitlement which has been declared, paid or made by reference to such record date. |
| (e) | The Directors may: |
| (i) | do all acts and things which it considers necessary or expedient to give effect to any such capitalisation, and may authorise any person to enter on behalf of all the Members interested into an agreement with the Company providing for such capitalisation and incidental matters and any agreement so made shall be binding on all concerned; |
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| (ii) | establish and vary a procedure for election mandates in respect of future rights of election and determine that every duly effected election in respect of any ordinary Shares shall be binding on every successor in title to the holder of such Shares; and |
| (iii) | terminate, suspend or amend any offer of the right to elect to receive ordinary Shares in lieu of any cash dividend at any time and generally implement any scheme in relation to any such offer on such terms and conditions as the Directors may from time to time determine and take such other action as the Directors may deem necessary or desirable from time to time in respect of any such scheme. |
| 34.11 | Reserves |
The Directors may set aside out of the profits of the Company and carry to reserve such sums as it thinks fit. Such sums standing to reserve may be applied, at the Directors’ discretion, for any purpose to which the profits of the Company may properly be applied and, pending such application, may either be employed in the business of the Company or be invested in such investments as the Directors thinks fit. The Directors may divide the reserve into such special funds as it thinks fit and may consolidate into one fund any special funds or any parts of any special funds into which the reserve may have been divided as it thinks fit. The Directors may also carry forward any profits without placing them to reserve.
| 34.12 | Capitalisation of profits and reserves |
The Directors may, with the authority of an Ordinary Resolution:
| (a) | subject to this Article, resolve to capitalise any undivided profits of the Company not required for paying any preferential dividend (whether or not available for distribution) or any sum standing to the credit of any reserve or fund of the Company (including any share premium account, capital redemption reserve and profit and loss account), whether or not available for distribution; |
| (b) | appropriate the sum resolved to be capitalised to the holders of ordinary Shares in proportion to the nominal amounts of the Shares (whether or not fully paid) held by them respectively which would entitle them to participate in a distribution of that sum if the Shares were fully paid and the sum were then distributable and were distributed by way of dividend and apply such sum on their behalf either in or towards paying up the amounts, if any, unpaid on any Shares held by them respectively, or in paying up in full unissued Shares or debentures of the Company of a nominal amount equal to that sum, and allot the Shares or debentures credited as fully paid to those holders of ordinary Shares or as the Directors may direct, in those proportions, or partly in one way and partly in the other, but so that the share premium account, the capital redemption reserve and any profits or reserves which are not available for distribution may, for the purposes of this Article, only be applied in paying up unissued Shares to be allotted to Members credited as fully paid; |
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| (c) | resolve that any Shares so allotted to any Member in respect of a holding by him of any partly paid Shares shall, so long as such Shares remain partly paid, rank for dividend only to the extent that such partly paid Shares rank for dividend; |
| (d) | make such provision by the issue of fractional certificates (or by ignoring fractions or by accruing the benefit of fractions to the Company rather than to the holders concerned) or by payment in cash or otherwise as the Directors may determine in the case of Shares or debentures becoming distributable in fractions; |
| (e) | authorise any person to enter on behalf of all the Members concerned into an agreement with the Company providing for either: |
| (i) | the allotment to them respectively, credited as fully paid, of any further Shares or debentures to which they are entitled upon such capitalisation; or |
| (ii) | the payment up by the Company on behalf of such Members by the application thereto of their respective proportions of the reserves or profits resolved to be capitalised, of the amounts or any part of the amounts remaining unpaid on their existing Shares, and so that any such agreement shall be binding on all such Members; and |
| (f) | generally do all acts and things required to give effect to such resolution. |
| 35. | SHARE PREMIUM ACCOUNT |
| 35.1 | Directors to maintain share premium account |
The Directors shall establish a share premium account in accordance with the Companies Act. They shall carry to the credit of that account from time to time an amount equal to the amount or value of the premium paid on the issue of any Share or capital contributed or such other amounts required by the Companies Act.
| 35.2 | Debits to share premium account |
| (a) | The following amounts shall be debited to any share premium account: |
| (i) | on the redemption or purchase of a Share, the difference between the nominal value of that Share and the redemption or purchase price; and |
| (ii) | any other amount paid out of a share premium account as permitted by the Companies Act. |
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| (b) | Notwithstanding paragraph (a) above, on the redemption or purchase of a Share, the Directors may pay the difference between the nominal value of that Share and the redemption purchase price out of the profits of the Company or, as permitted by the Companies Act, out of capital. |
| 36. | DISTRIBUTION PAYMENT RESTRICTIONS |
Notwithstanding any other provision of these Articles, the Company shall not be obliged to make any payment to a Member in respect of a dividend, repurchase, redemption or other distribution if the Directors suspect that such payment may result in the breach or violation of any applicable laws or regulations (including, without limitation, any anti-money laundering laws or regulations) or such refusal is required by the laws and regulations governing the Company or its service providers.
| 37. | BOOKS OF ACCOUNT |
| 37.1 | Books of account to be kept |
The Directors shall cause proper books of account to be kept with respect to all sums of money received and expended by the Company and the matters in respect of which the receipt or expenditure takes place, all sales and purchases of goods by the Company and the assets and liabilities of the Company. Proper books shall not be deemed to be kept if there are not kept such books of account as are necessary to give a true and fair view of the state of the affairs of the Company and to explain its transactions.
| 37.2 | Inspection by Members |
The Directors shall from time to time determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company or any of them will be open to the inspection of Members (not being Directors). No Member (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by the Companies Act by order of the court or authorised by the Directors or by Ordinary Resolution.
| 37.3 | Accounts required by law |
The Directors shall cause to be prepared and to be laid before the Company at each annual general meeting profit and loss accounts, balance sheets, group accounts (if any) and such other reports and accounts as may be required by law.
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| 37.4 | Retention of records |
All books of account maintained by the Company shall be retained for a period of at least five years, or such longer period required by any applicable law or regulation from time to time.
| 38. | AUDITOR |
| 38.1 | Appointment of Auditor |
The Directors or, if authorised to do so, the Audit Committee, may appoint an Auditor who shall hold office until removed from office by a resolution of the Directors, and may fix the Auditor’s remuneration.
| 38.2 | Rights of Auditor |
The Auditor shall have a right of access at all times to the books and accounts and vouchers of the Company and shall be entitled to require from the Directors and officers of the Company such information and explanation as may be necessary for the performance of the duties of the Auditor.
| 38.3 | Reporting requirements of Auditor |
Auditors shall, if so required by the Directors, make a report on the accounts of the Company during their tenure of office at the next general meeting following their appointment, and at any other time during their term of office, upon request of the Directors or any general meeting of the Company.
| 39. | NOTICES |
| 39.1 | Forms of notices |
| (a) | Any notice to be given to or by any person pursuant to these Articles (other than a notice calling a meeting of the Directors) shall be in writing or shall be given using electronic communications to an address for the time being notified for that purpose to the person giving the notice, except that a notice to a holder of any uncertificated Shares or given in respect of any such Shares may be given electronically through the Relevant System (if permitted by, and subject to, the facilities and requirements of the Relevant System and subject to compliance with any relevant requirements of the Exchange Rules and/or the Exchange) or by placing it on the Company’s Website. |
| (b) | (ln this Article “address”, in relation to electronic communications, includes any number or address used for the purposes of such communications). |
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| 39.2 | Service on Members |
| (a) | Where a notice is sent by: |
| (i) | courier; service of the notice shall be deemed to be effected by delivery of the notice to a courier company, and shall be deemed to have been received on the third day (not including Saturdays or Sundays or public holidays in the Cayman Islands and in the city of São Paulo, Brazil) following the day on which the notice was delivered to the courier; |
| (ii) | post; service of the notice shall be deemed to be effected by properly addressing, pre paying and posting a letter containing the notice, and shall be deemed to have been received on the fifth day (not including Saturdays or Sundays or public holidays in the Cayman Islands and in the city of São Paulo, Brazil) following the day on which the notice was posted; |
| (iii) | telex or fax; service of the notice shall be deemed to be effected by properly addressing and sending such notice and shall be deemed to have been received on the same day that it was transmitted; |
| (iv) | email or other electronic communication; service of the notice shall be deemed to be effected by transmitting the email to the email address provided by the intended recipient and shall be deemed to have been received on the same day that it was sent, and it shall not be necessary for the receipt of the email to be acknowledged by the recipient; and |
| (v) | placing it on the Company’s Website; service of the notice shall be deemed to have been effected one hour after the notice or document was placed on the Company’s Website. |
| (b) | ln the case of joint holders of a Share, all notices and documents shall be given to the person whose name stands first in the Register of Members in respect of that Share. Notice so given shall be sufficient notice to all the joint holders. |
| (c) | Notice of every general meeting shall be given to: |
| (i) | all Members by the means of email or other electronic communication, including the placement on the Company’s Website for the giving of notices to them, except that in case of joint holders, the notice shall be sufficient if given to the joint holder first named in the Register of Members; and |
| (ii) | each Director. |
| (d) | Notice may be given by the Company to the person or persons which the Company has been advised are entitled to a Share or Shares in consequence of the death or bankruptcy of a Member in the same manner as other notices which are required to be given under the Articles and shall be addressed to them by name, or by the title of representatives of the deceased, or trustee of the bankrupt, or by any like description at the address supplied for that purpose by the persons claiming to be so entitled, or at the option of the Company by giving the notice in any manner in which the same might have been given if the death or bankruptcy had not occurred. |
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| (e) | Notice of every general meeting shall be given in any manner authorised by the Articles to every holder of Shares carrying an entitlement to receive such notice on the record date for such meeting except that in the case of joint holders the notice shall be sufficient if given to the joint holder first named in the Register of Members and every person upon whom the ownership of a Share devolves because they are a legal personal representative or a trustee in bankruptcy of a Member where the Member but for their death or bankruptcy would be entitled to receive notice of the meeting, and no other person shall be entitled to receive notices of general meetings. |
| (f) | lf on three consecutive occasions notices or other documents have been sent through the post to any Member at his registered address or his address for the service of notices but have been returned undelivered, such Member shall not be entitled to receive notices or other documents from the Company until he shall have communicated with the Company and supplied in writing a new registered address for the service of notices. |
| (g) | lf on three consecutive occasions notices or other documents have been sent using electronic communications to an address for the time being notified to the Company by the Member and the Company becomes aware that there has been a failure of transmission, the Company shall revert to giving notices and other documents to the Member by post or by any other means authorised in writing by the Member concerned. Such Member shall not be entitled to receive notices or other documents from the Company using electronic communications until he shall have communicated with the Company and supplied in writing a new address to which notices or other documents may be sent using electronic communications. |
| 39.3 | Evidence of giving notice |
| (a) | An affidavit of the mailing or other means of giving any notice of any general meeting, executed by the Secretary, Assistant Secretary or any transfer agent of the Company giving the notice, shall be prima facie evidence of the giving of such notice. |
| (b) | Any Member present, either personally or by proxy, at any meeting of the Company shall for all purposes be deemed to have received due notice of such meeting and, where requisite, of the purposes for which such meeting was convened. |
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| (c) | Any notice or document delivered or sent to any Member in accordance with the terms of these Articles shall notwithstanding that such Member be then dead or bankrupt, and whether or not the Company has notice of his death or bankruptcy, be deemed to have been duly served in respect of any share registered in the name of such Member as sole or joint holder, unless his name shall at the time of the service of the notice or document, have been removed from the Register of Members as the holder of the share, and such service shall for all purposes be deemed a sufficient service of such notice or document on all persons interested (whether jointly with or as claiming through or under him) in the share. |
| 39.4 | Notice binding on transferees |
A person who becomes entitled to a Share by transfer, transmission or otherwise shall be bound by any notice in respect of that Share which, before his name is entered in the Register of Members, has been given to the person from whom he derives his title.
| 39.5 | Notice to persons entitled by transmission |
A notice or other document may be given by the Company to a person entitled by transmission to a Share in consequence of the death or bankruptcy of a Member or otherwise by sending or delivering it in any manner authorised by these Articles for the giving of notice to a Member, addressed to that person by name, or by the title of representative of the deceased or trustee of the bankrupt or by any similar or equivalent description, to the address to which notices have been requested to be sent for that purpose by the person claiming to be so entitled. Until such an address has been supplied, a notice or other document may be given in any manner in which it might have been given if the event giving rise to the transmission had not occurred. The giving of notice in accordance with this Article shall be sufficient notice to all other persons interested in the Share.
| 40. | WINDING UP |
| 40.1 | Method of winding up |
| (a) | If the Company shall be wound up, and the assets available for distribution amongst the Members shall be insufficient to repay the whole of the share capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the Members in proportion to the par value of the Shares held by them. |
| (b) | If in a winding up the assets available for distribution amongst the Members shall be more than sufficient to repay the whole of the share capital at the commencement of the winding up, the surplus shall be distributed amongst the Members in proportion to the par value of the Shares held by them at the commencement of the winding up subject to a deduction from those Shares in respect of which there are monies due, of all monies payable to the Company. |
| (c) | This Article is without prejudice to the rights of the holders of Shares issued upon special terms and conditions. |
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| 40.2 | Distribution of assets in a winding up |
Subject to any rights or restrictions for the time being attached to any Class of Shares, on a winding up of the Company the liquidator may, with the sanction of a Special Resolution of the Company and any other sanction required by the Companies Act, distribute among the Members the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not) and may for that purpose:
| (a) | decide how the assets are to be distributed as between the Members or different Classes of Members; |
| (b) | value the assets to be distributed in such manner as the liquidator thinks fit; and |
| (c) | vest the whole or any part of any assets in such trustees and on such trusts for the benefit of the Members entitled to the distribution of those assets as the liquidator sees fit, but so that no Member shall be obliged to accept any assets in respect of which there is any liability. |
| 41. | INDEMNITY AND INSURANCE |
| 41.1 | Indemnity and limitation of liability of Directors and officers |
| (a) | To the maximum extent permitted by law, every current and former Director and officer of the Company (excluding an Auditor) (each an “Indemnified Person”), shall be entitled to be indemnified out of the assets of the Company against any liability, action, proceeding, claim, demand, costs, damages or expenses, including legal expenses (each a “Liability”), which such Indemnified Person may incur in that capacity unless such Liability arose as a result of the actual fraud or wilful default of such person. |
| (b) | No Indemnified Person shall be liable to the Company for any loss or damage resulting (directly or indirectly) from such Indemnified Person carrying out his or her duties unless that liability arises through the actual fraud or wilful default of such Indemnified Person. |
| (c) | For the purpose of these Articles, no Indemnified Person shall be deemed to have committed “actual fraud” or “wilful default” until a court of competent jurisdiction has made a final, non- appealable finding to that effect. |
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| 41.2 | Advance of legal fees |
The Company shall advance to each Indemnified Person reasonable legal fees and other costs and expenses incurred in connection with the defence of any action, suit, proceeding or investigation involving such Indemnified Person for which indemnity will or could be sought. In connection with any such advance of expenses, the Indemnified Person shall execute an undertaking to repay the advanced amount to the Company if it is determined that the Indemnified Person was not entitled to indemnification under these Articles.
| 41.3 | Indemnification to form part of contract |
The indemnification and exculpation provisions of these Articles are deemed to form part of the employment contract or terms of appointment entered into by each Indemnified Person with the Company and accordingly are enforceable by such persons against the Company.
| 41.4 | Insurance |
The Directors may purchase and maintain insurance for or for the benefit of any Indemnified Person including (without prejudice to the generality of the foregoing) insurance against any Liability incurred by such persons in respect of any act or omission in the actual or purported execution or discharge of their duties or the exercise or purported exercise of their powers or otherwise in relation to or in connection with their duties, powers or offices in relation to the Company.
| 42. | REQUIRED DISCLOSURE |
If required to do so under the laws of any jurisdiction to which the Company (or any of its service providers) is subject, or in compliance with Exchange Rules of any Exchange, or to ensure the compliance by any person with any anti-money laundering legislation in any relevant jurisdiction, any Director, officer or service provider (acting on behalf of the Company) shall be entitled to release or disclose any information in its possession regarding the affairs of the Company or a Member, including, without limitation, any information contained in the Register of Members or subscription documentation of the Company relating to any Member.
| 43. | FINANCIAL YEAR |
Unless the Directors resolve otherwise, the financial year of the Company shall end on 31 December in each year and, following the year of incorporation, shall begin on 1 January in each year.
| 44. | TRANSFER BY WAY OF CONTINUATION |
The Company shall, with the approval of a Special Resolution, have the power to register by way of continuation to a jurisdiction outside of the Cayman Islands in accordance with the Companies Act.
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| 45. | MERGERS AND CONSOLIDATIONS |
The Company shall, with the approval of a Special Resolution, have the power to merge or consolidate with one or more constituent companies (as defined in the Companies Act), upon such terms as the Directors may determine.
| 46. | AMENDMENT OF MEMORANDUM AND ARTICLES |
| 46.1 | Power to change name or amend Memorandum |
Subject to the Companies Act, the Company may, by Special Resolution:
| (a) | change its name; or |
| (b) | change the provisions of its Memorandum with respect to its objects, powers or any other matter specified in the Memorandum. |
| 46.2 | Power to amend these Articles |
Subject to the Companies Act and as provided in these Articles, the Company may, by Special Resolution, amend these Articles in whole or in part.
| 47. | TAX TRANSPARENCY REPORTING |
| 47.1 | Each Member shall provide the Company on a timely basis with any documents, tax certifications, financial and other information (collectively “Tax Reporting Information”) as the Company may request in connection with the Company’s compliance with any legal and tax information reporting and exchange obligations applicable to it under the laws of the Cayman Islands or any other applicable jurisdiction (collectively, “Tax Reporting Obligations”), including, without limitation, any Tax Reporting Obligations under any Cayman Islands laws, regulations or guidance notes that give effect to: (i) the United States’ Foreign Account Tax Compliance Act; (ii) the Organisation for Economic Co-operation and Development’s Common Reporting Standard; and (iii) any additional inter-governmental agreement or treaty entered into by, or otherwise binding upon the Cayman Islands that provides for the exchange of tax information with another jurisdiction. |
| 47.2 | The Company shall have the power to release, report or otherwise disclose to the Department for International Tax Cooperation in the Cayman Islands (or any other authority as may be required under the Tax Reporting Obligations) any Tax Reporting Information provided by a Member to the Company and any other information held by the Company in respect of the Member’s investment in the Company, in connection with the Tax Reporting Obligations, including, without limitation, in relation to the identity, address, tax identification number, tax status and interest in the Company of the Member (and any of its direct or indirect owners or affiliates). |
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| 47.3 | If a Member fails to provide the Company with any requested Tax Reporting Information on a timely basis and such failure results, or may result, in the Company’s inability to comply with its Tax Reporting Obligations or if the Company is otherwise unable to comply with its Tax Reporting Obligations as a result of the direct or indirect action (or inaction) of a Member, the Company may: |
| (a) | compulsorily repurchase some or all of such Member’s Shares without notice at a price per Share equal to the fair value of such Shares (as determined by the Directors) and may deduct or withhold from such redemption proceeds any penalty, debt, withholding or back up tax, costs, expenses, obligations, liabilities or other adverse consequences (collectively, “Tax Reporting Liabilities”) imposed on the Company, its Members and/or any of their respective directors, officers, employees, agents, managers, shareholders and/or partners as a result of such failure, action or inaction by such Member; and/or |
| (b) | re-designate, immediately and without consent, such Member’s Shares as belonging to a separate class and create a separate internal account in respect of such Shares so that any Tax Reporting Liabilities may be allocated solely to that class and debited from such class. |
| 48. | BUSINESS OPPORTUNITIES |
| 48.1 | To the fullest extent permitted by Applicable Law, no individual serving as a Director or an officer (“Management”) shall have any duty, except and to the extent expressly assumed by contract, to refrain from engaging directly or indirectly in the same or similar business activities or lines of business as the Company. To the fullest extent permitted by Applicable Law, the Company renounces any interest or expectancy of the Company in, or in being offered an opportunity to participate in, any potential transaction or matter which may be a corporate opportunity for Management, on the one hand, and the Company, on the other. Except to the extent expressly assumed by contract, to the fullest extent permitted by Applicable Law, Management shall have no duty to communicate or offer any such corporate opportunity to the Company and shall not be liable to the Company or its Members for breach of any fiduciary duty as a Member, Director and/or Officer solely by reason of the fact that such party pursues or acquires such corporate opportunity for itself or themselves, directs such corporate opportunity to another person, or does not communicate information regarding such corporate opportunity to the Company. |
| 48.2 | Except as provided elsewhere in this Article, the Company hereby renounces any interest or expectancy of the Company in, or in being offered an opportunity to participate in, any potential transaction or matter which may be a corporate opportunity for both the Company and Management, about which a Director and/or Officer who is also a member of Management acquires knowledge. |
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| 48.3 | To the extent a court might hold that the conduct of any activity related to a corporate opportunity that is renounced in this Article to be a breach of duty to the Company or its Members, the Company hereby waives, to the fullest extent permitted by Applicable Law, any and all claims and causes of action that the Company may have for such activities. To the fullest extent permitted by Applicable Law, the provisions of this Article apply equally to activities conducted in the future and that have been conducted in the past. |
| 49. | EXCLUSIVE JURISDICTION AND FORUM |
| 49.1 | Unless the Company consents in writing to the selection of an alternative forum, the courts of the Cayman Islands shall have exclusive jurisdiction over any claim or dispute arising out of or in connection with the Memorandum, the Articles or otherwise related in any way to each Member’s shareholding in the Company, including but not limited to: |
| (a) | any derivative action or proceeding brought on behalf of the Company; |
| (b) | any action asserting a claim of breach of any fiduciary or other duty owed by any current or former Director, Officer or other employee of the Company to the Company or the Members; |
| (c) | any action asserting a claim arising pursuant to any provision of the Companies Act, the Memorandum or the Articles; or |
| (d) | any action asserting a claim against the Company governed by the “Internal Affairs Doctrine” (as such concept is recognised under the laws of the United States of America). |
| 49.2 | Each Member irrevocably submits to the exclusive jurisdiction of the courts of the Cayman Islands over all such claims or disputes. |
| 49.3 | Without prejudice to any other rights or remedies that the Company may have, each Member acknowledges that damages alone would not be an adequate remedy for any breach of the selection of the courts of the Cayman Islands as exclusive forum and that accordingly the Company shall be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the selection of the courts of the Cayman Islands as exclusive forum. |
| 49.4 | This Article 49 shall not apply to any action or suits brought to enforce any liability or duty created by the U.S. Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any claim for which the federal district courts of the United States of America are, as a matter of the laws of the United States, the sole and exclusive forum for determination of such a claim. |
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Exhibit 2.3
WARRANT TERMINATION AND ADOPTION AGREEMENT
among
MERCATO PARTNERS ACQUISITION CORP.,
NVNI GROUP LIMITED
and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
Dated September 29, 2023
THIS WARRANT TERMINATION AND ADOPTION AGREEMENT (this “Agreement”), dated September 29, 2023, is made by and among Mercato Partners Acquisition Corp., a Delaware corporation (the “Company”), Nvni Group Limited, a Cayman Islands exempted company (“PubCo”), and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (in such capacity, the “Warrant Agent”). Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Existing Warrant Agreement (as defined below).
WHEREAS, the Company and the Warrant Agent are parties to that certain warrant agreement, dated November 3, 2021 (the “Existing Warrant Agreement”), pursuant to which the Company issued (i) 10,050,000 Private Placement Warrants to the Sponsor and (ii) 11,500,000 Public Warrants;
WHEREAS, the terms of the Warrants are governed by the Existing Warrant Agreement;
WHEREAS, on February 26, 2023, the Company, PubCo, Nuvini Merger Sub, Inc., a Delaware corporation (“Merger Sub”) and Nuvini Holdings Limited, a Cayman Islands exempted company, entered into a business combination agreement (as amended, modified or supplemented from time to time, the “Business Combination Agreement”);
WHEREAS, pursuant to the Business Combination Agreement, Merger Sub will merge with and into the Company (the “Merger”), with the Company surviving the Merger as an indirect, wholly-owned subsidiary of PubCo, and each share of Common Stock issued and outstanding immediately prior to the effective time of the Merger (except for shares being cancelled) shall be converted into and represent the right to receive one ordinary share of PubCo, par value $0.00001 (the “PubCo Ordinary Shares”);
WHEREAS, pursuant to the Business Combination Agreement, PubCo will cause to be contributed (as a capital contribution) (the “Warrant Contribution”) certain warrants to be utilized as consideration in connection with the Merger, as provided in the Business Combination Agreement (the “New Warrants”);
WHEREAS, upon consummation of the Merger, in accordance with the terms of the Business Combination Agreement, the Warrants shall be converted into the New Warrants, which New Warrants will not be exercisable for Common Stock but instead will be exercisable (subject to the terms of the Existing Warrant Agreement that are adopted by PubCo to govern the New Warrants as provided hereby) for the same number of PubCo Ordinary Shares;
WHEREAS, the Board has determined that the consummation of the transactions contemplated by the Business Combination Agreement will constitute a Business Combination;
WHEREAS, in connection with the Merger, the Company desires to terminate the Existing Warrant Agreement and PubCo will adopt a new warrant agreement (the “Warrant Agreement”) to govern the New Warrants with the same terms as the Existing Warrant Agreement except for such amendments described herein; and
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
| 1. | Adoption; Consent. |
| 1.1. | Adoption. (i) As of and with effect at and from the Merger Effective Time (as defined in the Business Combination Agreement), the Company hereby terminates the Existing Warrant Agreement and (ii) concurrently with the effective time of the Warrant Contribution, PubCo hereby adopts the Warrant Agreement and agrees to pay, perform, satisfy and discharge in full, as the same become due, all of the liabilities and obligations with respect to the New Warrants under the Warrant Agreement arising at, from and after the adoption thereof. |
| 1.2. | Consent. The Warrant Agent hereby consents to (i) the termination of the Existing Warrant Agreement by the Company pursuant to Section 1.1 effective as of the Merger Effective Time and (ii) the adoption of the Warrant Agreement by PubCo pursuant to Section 1.1 concurrently with the effective time of the Warrant Contribution, and (iii) the validity of the Warrant Agreement, in full force and effect from and after the effective time of the Warrant Contribution. The Warrant Agent hereby ratifies the appointment set forth in Section 1 of the Warrant Agreement. |
| 2. | Termination of Existing Warrant Agreement. Effective as of the Merger Effective Time, the Company and the Warrant Agent hereby terminate the Existing Warrant Agreement as provided in this Section 2, and the parties acknowledge and agree that the terms of the Warrant Agreement will be identical to those of the Existing Warrant Agreement except for the amendments to the Existing Warrant Agreement set forth in this Section 2, which the parties agree are (i) necessary and desirable and do not adversely affect the rights of the holders of the New Warrants (as compared to the rights of the Registered Holders under the Existing Warrant Agreement) in any material respect and (ii) consistent with amendments that could have been made to provide for the delivery of Alternative Issuance pursuant to Section 4.4 of the Existing Warrant Agreement (in connection with the Merger and the transactions contemplated by the Business Combination Agreement). The amendments provided by this Section 2 are as follows: |
| 2.1. | Preamble and References to the “Company”. The preamble on page one and the Exhibits of the Existing Warrant Agreement are hereby amended by deleting “Mercato Partners Acquisition Corp.” and replacing it with “Nvni Group Limited”. As a result thereof, all references to the “Company” in the Warrant Agreement (including all Exhibits thereto but excluding the recitals thereto as amended by this Agreement) shall be references to PubCo. |
| 2.2. | Recitals. The recitals beginning on page one of the Existing Warrant Agreement shall be deleted and replaced in their entirety in the Warrant Agreement as follows: |
“WHEREAS, on November 3, 2021, Mercato Partners Acquisition Corp., a Delaware corporation (“Mercato” ), entered into that certain Private Placement Warrants Purchase Agreement with Mercato Partners Acquisition Group, LLC, a Delaware limited liability company (the “Sponsor”), pursuant to which the Sponsor agreed to purchase an aggregate of 10,050,000 warrants bearing the legend set forth in Exhibit B hereto (including any successor warrants in respect thereof, the “Private Placement Warrants”) at a purchase price of $1.00 per Private Placement Warrant. Each Private Placement Warrant entitles the holder thereof to purchase one share of Common Stock (as defined below) at a price of $11.50 per share, subject to adjustment as described herein;
WHEREAS, in order to finance Mercato’s transaction costs in connection with an intended initial merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination, involving Mercato and one or more businesses (a “Business Combination”), the Sponsor or an affiliate of the Sponsor or certain of Mercato’s officers and directors may, but are not obligated to, loan Mercato funds as Mercato may require, of which up to $1,500,000 of such loans may be convertible into up to an additional 1,500,000 Private Placement Warrants at a price of $1.00 per warrant (including any successor warrants in respect thereof, the “Working Capital Warrants”);
WHEREAS, on November 8, 2021, Mercato consummated its initial public offering (the “Offering”) of units of Mercato’s equity securities, each such unit comprised of one share of Common Stock (as defined below) and one-half of one Public Warrant (as defined below) (the “Units”) and, in connection therewith, issued and delivered 11,500,000 redeemable warrants to public investors in the Offering (including any successor warrants in respect thereof, the “Public Warrants” and, collectively with the Working Capital Warrants and the Private Placement Warrants, the “Warrants”). Each whole Warrant entitles the holder thereof to purchase one share of Class A common stock of Mercato, par value $0.00001 per share (“Common Stock”), for $11.50 per whole share, subject to adjustment as described herein. Only whole Warrants are exercisable. A holder of the Warrants will not be able to exercise any fraction of a Warrant;
WHEREAS, Mercato filed with the Securities and Exchange Commission (the “Commission”) registration statements on Form S-1, File No. 333-260219 (the “Registration Statement”), and prospectus (the “Prospectus”), for the registration, under the Securities Act of 1933, as amended (the “Securities Act”), of the Units and the Public Warrants and the shares of Common Stock included in the Units;
WHEREAS, the Company, Mercato, Nuvini Merger Sub, Inc., a Delaware corporation (“Merger Sub”) and Nuvini Holdings Limited, a Cayman Islands exempted company are parties to that certain Business Combination Agreement, dated as of February 26, 2023 (the “Business Combination Agreement”), pursuant to which, among other things, (i) Merger Sub will merge with and into Mercato (the “Merger”), with Mercato surviving the Merger, pursuant to which each share of Common Stock issued and outstanding immediately prior to the effective time of the Merger (except for shares being cancelled) will be converted into and represent the right to receive one ordinary share of the Company, par value $0.0001 (“Ordinary Shares”) and (ii) each Warrant outstanding and unexercised immediately prior to the Merger Effective Time (as defined in the Business Combination Agreement), will be converted into and become a warrant to purchase Ordinary Shares determined as if the Company assumed such Warrant in accordance with the terms of that certain Warrant Agreement, dated as of November 3, 2021 (the “Existing Warrant Agreement”), by and between Mercato and the Warrant Agent;
WHEREAS, on September 29, 2023, the Company, Mercato and the Warrant Agent entered into a Warrant Agreement (the “Warrant Agreement”), pursuant to which, among other things, the Company adopted the liabilities and obligations under this Agreement;
WHEREAS, pursuant to the Business Combination Agreement, the Warrant Agreement and the terms of this Agreement (as adopted by the Warrant Agreement), each Public Warrant and each Private Placement Warrant has been converted into a warrant providing the right to purchase one Ordinary Share rather than one share of Common Stock;
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;
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 (if a physical certificate is issued), 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:”
| 2.3. | References to Common Stock. All references to “Common Stock”, “share of Common Stock” and “shares of Common Stock” in the Existing Warrant Agreement (including all Exhibits thereto but excluding the recitals thereto as amended by this Agreement) shall be replaced with “Ordinary Share” or “Ordinary Shares”, as applicable. |
| 2.4. | References to Business Combination. All references to “Business Combination” in the Existing Warrant Agreement (including all Exhibits thereto) shall be references to the transactions contemplated by the Business Combination Agreement, and references to “the completion of the Business Combination” and all variations thereof in the Existing Warrant Agreement (including all Exhibits thereto) shall be references to the Closing (as defined in the Business Combination Agreement). |
| 2.5. | Detachability of Warrants. Section 2.4 of the Existing Warrant Agreement shall be deleted and replaced with the following: |
“[INTENTIONALLY OMITTED.]”
| 2.6. | Extraordinary Dividends. Section 4.1.2 of the Existing Warrant Agreement shall be amended by adding the word “or” before clause (B) of such Section and deleting clauses (C), (D) and (E) of such Section. |
| 2.7. | Notice Clause. Section 9.2 of the Existing Warrant Agreement is hereby deleted and replaced with the following: |
“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 when so delivered if by hand or overnight delivery or 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:
Nvni Group Ltd
P.O. Box 10008, Willow House, Cricket Square
Grand Cayman, Cayman Islands KY1-1001
Attn: Pierre Schurmann
with a copy (which shall not constitute notice) to:
Mayer Brown LLP
71 South Wacker Drive
Chicago, Illinois 60606
Attn: Edward S. Best
and
Tauil & Chequer Advogados (an affiliate of Mayer Brown LLP)
Avenida Presidente Juscelino
– 5°, 6° e 7° andares
São Paulo/SP, Brazil 04543-011
Attn: Carlos Motta, Esq.
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 when so delivered if by hand or overnight delivery or 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 Warrant Agent with the Company), as follows:
Continental Stock Transfer & Trust Company
One State Street, 30th Floor
New York, NY 10004
Attention: Compliance Department”
| 3. | Miscellaneous Provisions. |
| 3.1. | Effectiveness of this Agreement. Each of the parties hereto acknowledges and agrees that the effectiveness of this Agreement shall be expressly subject to the occurrence of the Merger and substantially contemporaneous occurrence of the Merger Effective Time and shall automatically be terminated and shall be null and void if the Business Combination Agreement shall be terminated for any reason. |
| 3.2. | Successors. All the covenants and provisions of this Agreement by or for the benefit of PubCo, the Company or the Warrant Agent shall bind and inure to the benefit of their permitted respective successors and assigns. |
| 3.3. | Applicable Law and Exclusive Forum. The validity, interpretation, and performance of this Agreement shall be governed in all respects by the laws of the State of New York, without giving effect to conflict of laws. Each of PubCo and the Company 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 forum for any such action, proceeding or claim. Each of PubCo and the Company 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 district courts of the United States of America are the sole and exclusive forum. |
| 3.4. | 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. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement. |
| 3.5. | 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. |
| 3.6. | 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. |
| 3.7. | Entire Agreement; Reference to and Effect on Agreements. This Agreement and the Warrant Agreement constitutes the entire understanding of the parties and supersedes all prior agreements, understandings, arrangements, promises and commitments, whether written or oral, express or implied, relating to the subject matter hereof, and all such prior agreements, understandings, arrangements, promises and commitments are hereby canceled and terminated. Any references to “this Agreement” in the Warrant Agreement will mean the Warrant Agreement as in effect after the effectiveness of this Agreement. Except as specifically amended by this Agreement, the provisions of the Existing Warrant Agreement adopted in the Warrant Agreement shall have full force and effect in the Warrant Agreement. |
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| MERCATO PARTNERS ACQUISITION CORP. | ||
| By: | /s/ Scott Klossner | |
| Name: | Scott Klossner | |
| Title: | Chief Financial Officer | |
[Signature Page to Termination and Adoption of Warrant Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| NVNI GROUP LIMITED | ||
| By: | /s/ Pierre Schurmann | |
| Name: | Pierre Schurmann | |
| Title: | Chief Executive Officer | |
[Signature Page to Termination and Adoption of Warrant Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent | ||
| By: | /s/ Henry Farrell | |
| Name: | Henry Farrell | |
| Title: | Vice President | |
[Signature Page to Termination and Adoption of Warrant Agreement]
Exhibit 4.3
LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this “Agreement”) is dated as of September 29, 2023 by and among Nvni Group Limited, an exempted company incorporated with limited liability in the Cayman Islands (“New PubCo”), and each of the stockholder parties identified on Exhibit A hereto (together with any other Person who, following the effective date of this Agreement, enters into a joinder to this Agreement substantially in the form of Exhibit B hereto with New PubCo and is designated as a “Holder” for purposes of this Agreement, each, a “Holder” and collectively, the “Holders”). New PubCo and each Holder are sometimes referred to herein individually as a “Party” and, collectively, as the “Parties.” Capitalized terms used but not defined herein shall have the meanings assigned to them in the Business Combination Agreement (as defined below).
WHEREAS, New PubCo has entered into that certain Business Combination Agreement, dated as of February 26, 2023 (as it may be amended or supplemented from time to time pursuant to the terms thereof, the “Business Combination Agreement”), by and among New PubCo, Mercato Partners Acquisition Company, a Delaware corporation (“SPAC”), Nuvini Merger Sub, Inc., a Delaware corporation (“Merger Sub”) and a direct, wholly-owned subsidiary of New PubCo, and Nuvini Holdings Limited, an exempted company incorporated with limited liability in the Cayman Islands (“Nuvini”), pursuant to which, among other things, (a) pursuant to the Contribution Agreement, each Holder will, prior to the Merger Effective Time, contribute its respective Nuvini ordinary shares to New PubCo in exchange for the issuance of ordinary shares (“Ordinary Shares”) of New PubCo, par value 0.0001 per share (the “Contribution”), (b) as a result of the Contribution, Nuvini will become a direct, wholly-owned subsidiary of New PubCo and (c) following the consummation of the Contribution, Merger Sub will merge with and into SPAC (the “Merger”), with SPAC continuing as the surviving entity and a direct, wholly-owned subsidiary of New PubCo, and as a result of the Merger, each share of SPAC Common Stock issued and outstanding immediately prior to the Merger Effective Time shall be converted into and shall for all purposes represent only the right to receive one (1) New PubCo Ordinary Share, in each case of clauses (a), (b) and (c), on the terms and conditions set forth in the Business Combination Agreement (collectively, the “Business Combination”);
WHEREAS, as a result of the Business Combination, the Holders will own equity interests in New PubCo; and
WHEREAS, in connection with the Business Combination, the parties hereto desire to set forth certain understandings themselves with respect to restrictions on transfers of equity interests in New PubCo.
NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated into this Agreement as if fully set forth below, and intending to be legally bound hereby, the Parties hereby agree as follows:
1. Lock-up Provisions.
(a) Subject to the exclusions in Section 1(b), each Holder agrees not to Transfer any Lock-up Shares until the end of the Lock-up Period (the “Lock-up”).
(b) Notwithstanding the provisions set forth in Section 1(a), the Holders or their respective Permitted Transferees may Transfer the Lock-up Shares during the Lock-up Period (i) to (A) New PubCo’s officers or directors, (B) any Affiliates or family members of New PubCo’s officers or directors, or (C) the other Holders or any direct or indirect partners, members or equity holders of the Holders, any Affiliates of the Holders or any related investment funds or vehicles controlled or managed by such persons or entities or their respective Affiliates; (ii) in the case of an individual, by bona fide gift to a member of the individual’s immediate family or to a trust, the beneficiary of which is a member of the individual’s immediate family or an Affiliate of such person or entity; (iii) as a bona fide gift or gifts or charitable contribution; (iv) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual; (v) in the case of an individual, pursuant to a qualified domestic relations order; (vi) in connection with any bona fide mortgage, encumbrance or pledge to a financial institution in connection with any bona fide loan or debt transaction or enforcement thereunder, including foreclosure thereof; (vii) to New PubCo; or (viii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the board of directors of New PubCo (the “Board of Directors”) or a duly authorized committee thereof or other similar transaction which results in all of New PubCo’s stockholders having the right to exchange their Common Shares for cash, securities or other property subsequent to the Closing Date. If dividends are declared and payable on the Holder’s Lock-up Shares in Ordinary Shares, such dividends will also be Lock-up Shares subject to the terms of Section 1(a) of this Agreement.
(c) Notwithstanding the provisions set forth in Section 1(a), if the Lock-up Period, excluding in connection with a Lock-up Period Early Release, is scheduled to end during a Blackout Period or within five (5) Trading Days prior to a Blackout Period, the Lock-up Period shall end ten (10) Trading Days prior to the commencement of the Blackout Period (the “Blackout-Related Release”); provided that New PubCo shall announce the date of the expected Blackout-Related Release through a major news service, or on a Form 6-K, at least two (2) Trading Days in advance of the Blackout-Related Release; and provided further, that the Blackout-Related Release shall not occur unless New PubCo shall have publicly released its earnings results for the quarterly period during which the Closing occurred.
(d) Notwithstanding the other provisions set forth in this Section 1, the Board of Directors may, in its sole discretion, determine to waive, amend, or repeal the Lock-up obligations set forth herein; provided, that, any such waiver, amendment or repeal (each, a “Release”) shall require, in addition to any other vote of the members of the Board of Directors required to take such action pursuant to the Governing Documents of New PubCo or applicable law, the affirmative vote of the directors who have been designated by SPAC (the “SPAC Designees”); provided, further, that, in the event the SPAC Designees are no longer serving as members of the Board of Directors, and, at such time, with respect to any Lock-up Shares by one or more Holders (such Holder, a “Released Holder”), the Board of Directors determines to waive, amend, or repeal the Lock-up obligations set forth herein pursuant to this Section 1(d), then the Applicable Percentage of the Lock-up Shares (solely for the purposes of this proviso, as such term is defined in the Sponsor Support Agreement) held by the SPAC Sponsor on the date of such waiver, amendment or repeal shall be immediately and fully waived, amended or released, as applicable, in each case, on the same terms from the applicable Lock-up (solely for the purposes of this proviso, as such term is defined in the Sponsor Support Agreement) obligations set forth in the Sponsor Support Agreement.
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(e) For purposes of this Section 1:
(i) the term “Affiliate” has the meaning ascribed to such term in Rule 12b-2 promulgated under the Exchange Act;
(ii) the term “Applicable Percentage” means, with respect to a Released Holder, the percentage obtained by dividing (x) the number of such Released Holder’s Lock-up Shares that are being Released by (y) the aggregate number of Lock-up Shares held by such Holder on the date of such Release;
(iii) the term “Blackout Period” means a broadly applicable and regularly scheduled period during which trading in New PubCo’s securities would not be permitted under New PubCo’s insider trading policy;
(iv) the term “Change of Control” shall mean the transfer (whether by tender offer, merger, stock purchase, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons of New PubCo’s voting securities if, after such transfer, such person or group of affiliated persons would hold more than 50% of outstanding voting securities of New PubCo (or surviving entity) or would otherwise have the power to control the board of directors of New PubCo or to direct the operations of New PubCo;
(v) the term “immediate family” means with respect to any Person, such Person’s spouse or domestic partner (or former spouse or former domestic partner), ancestors, descendants (whether by blood, marriage or adoption) or spouse of a descendant of such Person, brothers and sisters (whether by blood, marriage or adoption);
(vi) the term “Lock-up Period” means the period beginning on the Closing Date and ending on the earlier of (A) the date that is the one (1) year anniversary of the Closing Date and (B) the Lock-up Period Early Release Date. Notwithstanding the foregoing, in the event that a definitive agreement that contemplates a Change of Control is entered into after the Closing, the Lock-up Period for any Lock-up Shares shall automatically terminate immediately prior to the consummation of such Change of Control. For the avoidance of doubt, no Lock-up Shares shall be subject to Lock-up from and after the date that is 12 months after the Closing Date;
(vii) the term “Lock-up Period Early Release Date” means the date on which the last reported sale price per Ordinary Share equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 Trading Days within any 30-Trading Day period commencing at least 150 days after the Closing Date (the “Lock-up Period Early Release”);
(viii) the term “Lock-up Shares” means with respect to each Holder and their respective Permitted Transferees, (A) the Ordinary Shares held by such Person immediately following the Closing (other than Ordinary Shares acquired in the public market or pursuant to a transaction exempt from registration under the Securities Act pursuant to a subscription agreement where the issuance of such Ordinary Shares occurs on or after the Closing), (B) the Ordinary Shares issuable to such Person upon the settlement or exercise of restricted stock units, stock options or other equity awards outstanding as of immediately following the Closing in respect of awards of Nuvini outstanding immediately prior to the Closing (along with such securities
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themselves) and (C) any Ordinary Shares acquirable upon the conversion, exercise or exchange of any securities convertible into or exercisable or exchangeable for Ordinary Shares held by such Holder immediately after the Closing in respect of securities of Nuvini outstanding immediately prior to the Closing (along with such securities themselves);
(ix) the term “Permitted Transferees” means, prior to the expiration of the Lock-up Period, any person or entity to whom such Holder is permitted to transfer such Ordinary Shares prior to the expiration of the Lock-up Period pursuant to Section 1(b);
(x) the term “Trading Day” is a day on which the New York Stock Exchange and the Nasdaq Stock Market are open for the buying and selling of securities; and
(xi) the term “Transfer” means the (A) sale or assignment of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any security, (B) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (C) public announcement of any intention to effect any transaction specified in clause (A) or (B).
(f) If any Transfer is made or attempted contrary to the provisions of this Agreement, such Transfer shall be null and void ab initio, and New PubCo shall refuse to recognize any such transferee of the Lock-up Shares as one of its equity holders for any purpose. In order to enforce this Section 1(f), New PubCo may impose stop-transfer instructions with respect to the Lock-up Shares of each Holder (and any permitted transferees and assigns thereof) until the end of the Lock-up Period.
(g) Each Holder acknowledges and agrees that during the Lock-up Period, each certificate or book entry position statement evidencing Lock-up Shares shall be stamped or otherwise imprinted with a legend in substantially the following form, in addition to any other applicable legends:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A LOCK-UP AGREEMENT, DATED AS OF SEPTEMBER 29, 2023, BY AND BETWEEN THE ISSUER OF SUCH SECURITIES (THE “ISSUER”) AND THE ISSUER’S SECURITY HOLDER NAMED THEREIN. A COPY OF SUCH LOCK-UP AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE ISSUER TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”
(h) For the avoidance of any doubt, the Holder shall retain all of its rights as a shareholder of New PubCo with respect to its Lock-up Shares during the Lock-up Period, including the right to receive dividends and the right to vote any of its Lock-up Shares.
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2. Miscellaneous.
(a) Power and Authority. Each Holder hereby represents and warrants that it, he or she has full power and authority to enter into this Agreement and that this Agreement constitutes the legal, valid and binding obligation of such Holder, enforceable in accordance with its terms.
(b) Capacity as a New PubCo Shareholder. Each Holder signs this Agreement solely in such Holder’s capacity as a shareholder of New PubCo, and not in such Holder’s capacity as a director or officer of New PubCo, if and as applicable.
(c) Termination. This Agreement shall automatically terminate on the expiration of the Lock-up Period and, thereafter, all rights and obligations of the Parties hereunder shall be of no further force or effect.
(d) Binding Effect; Assignment. No party hereto shall assign this Agreement or any part hereof without the prior written consent of the other parties hereto; provided that a Holder may assign this Agreement to a Permitted Transferee solely in connection with a Transfer permitted by this Agreement, subject to the receipt by New PubCo of a duly executed joinder to this Agreement in substantially the form of Exhibit B hereto by the Permitted Transferee; provided, further, that any Transfer permitted under this Agreement shall not relieve the transferor of its obligations under this Agreement with respect to the Lock-up Shares, if any, retained by such transferor. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. Any attempted assignment in violation of the terms of this Section 2(d) shall be null and void, ab initio.
(e) Third Parties. Nothing contained in this Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any person or entity that is not a Party hereto or thereto or a successor or permitted assign of such a Party.
(f) Governing Law. This Agreement and the consummation of the Transactions, and any action, suit, dispute, controversy or claim arising out of this Agreement and the consummation of the Transactions, or the validity, interpretation, breach or termination of this Agreement and the consummation of the Transactions, shall be governed by and construed in accordance with the internal law of the State of Delaware regardless of the law that might otherwise govern under applicable principles of conflicts of law thereof.
(g) CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
(i) Each of the Parties irrevocably consents to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware or, to the extent such court does not have jurisdiction, in the United States District Court for the District of Delaware, in each case in connection with any matter based upon or arising out of this Agreement, the other Transaction Agreements and the consummation of the Transactions. Each Party and any Person asserting rights as a third-party beneficiary may do so only if he, she or it hereby waives, and shall not assert as a defense in any legal dispute, that: (a) such Person is not personally subject to the jurisdiction of the above named courts for any reason; (b) such Legal Proceeding may not be brought or is not maintainable in such court; (c) such Person’s property is exempt or immune from execution; (d) such Legal Proceeding is brought in an inconvenient forum; or (e) the venue of such Legal
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Proceeding is improper. Each Party and any Person asserting rights as a third-party beneficiary hereby agrees not to commence or prosecute any such action, claim, cause of action or suit other than before one of the above-named courts, nor to make any motion or take any other action seeking or intending to cause the transfer or removal of any such action, claim, cause of action or suit to any court other than one of the above-named courts, whether on the grounds of inconvenient forum or otherwise. Each Party hereby consents to service of process in any such proceeding in any manner permitted by the laws of the State of Delaware, and further consents to service of process by nationally recognized overnight courier service guaranteeing overnight delivery, or by registered or certified mail, return receipt requested, at its address specified pursuant to Section 2(i) and waives and covenants not to assert or plead any objection which they might otherwise have to such manner of service of process. Notwithstanding the foregoing in this Section 2(g), any Party may commence any action, claim, cause of action or suit in a court other than the above-named courts solely for the purpose of enforcing an order or judgment issued by one of the above-named courts.
(ii) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LEGAL REQUIREMENT WHICH CANNOT BE WAIVED, EACH OF THE PARTIES AND ANY PERSON ASSERTING RIGHTS AS A THIRD-PARTY BENEFICIARY MAY DO SO ONLY IF HE, SHE OR IT IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY ON ANY CLAIMS OR COUNTERCLAIMS ASSERTED IN ANY LEGAL DISPUTE RELATING TO THIS AGREEMENT, EACH OTHER TRANSACTION AGREEMENT AND THE CONSUMMATION OF THE TRANSACTIONS, AND FOR ANY COUNTERCLAIM RELATING THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. IF THE SUBJECT MATTER OF ANY SUCH LEGAL DISPUTE IS ONE IN WHICH THE WAIVER OF JURY TRIAL IS PROHIBITED, NO PARTY NOR ANY PERSON ASSERTING RIGHTS AS A THIRD-PARTY BENEFICIARY SHALL ASSERT IN SUCH LEGAL DISPUTE A NON-COMPULSORY COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION AGREEMENTS AND THE CONSUMMATION OF THE TRANSACTIONS. FURTHERMORE, NO PARTY NOR ANY PERSON ASSERTING RIGHTS AS A THIRD-PARTY BENEFICIARY SHALL SEEK TO CONSOLIDATE ANY SUCH LEGAL DISPUTE WITH A SEPARATE ACTION OR OTHER LEGAL PROCEEDING IN WHICH A JURY TRIAL CANNOT BE WAIVED.
(h) Interpretation. The words “hereof,” “herein,” “hereinafter,” “hereunder” and “hereto” and words of similar import refer to this Agreement as a whole and not to any particular section or subsection of this Agreement and reference to a particular section of this Agreement will include all subsections thereof, unless, in each case, the context otherwise requires. The definitions of the terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context shall require, any pronoun shall include all genders. When a reference is made in this Agreement to an Exhibit, such reference shall be to an Exhibit to this Agreement unless otherwise indicated. When a reference is made in this Agreement to Sections or subsections, such reference shall be to a Section or subsection of this Agreement. Unless otherwise indicated the words “include,” “includes” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation.” The headings and subheadings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The word “or” shall be disjunctive but not exclusive. When calculating the period of time before which, within which or following which any act is to
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be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day. References to a particular statute or regulation including all rules and regulations thereunder and any predecessor or successor statute, rule or regulation, in each case as amended or otherwise modified from time to time. All references to currency amounts in this Agreement shall mean United States dollars (unless otherwise expressly stated).
(i) Notices. All notices and other communications hereunder shall be in writing and shall be deemed given: (a) on the date established by the sender as having been delivered personally; (b) one (1) Business Day after being sent by a nationally recognized overnight courier guaranteeing overnight delivery; (c) on the date delivered, if delivered on a Business Day; (d) on the fifth (5th) Business Day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid; or (e) when emailed, if delivered by email during normal business hours (and otherwise as of the immediately following Business Day). Such communications, to be valid, must be addressed as follows:
if to New PubCo, to:
Nvni Group Limited
c/o Services Cayman Limited
Willow House, Cricket Square
P.O. Box 10008
Grand Cayman KY1-1001
Cayman Islands
Attention: Pierre Schurmann / Luis Busnello
Email: p@nuvini.com.br /
lab@nuvini.com.br Attention:
and
Nuvini S.A.
Rua Jesuíno Arruda
No. 769, Room 20-B
Itaim Bibi
São Paulo - SP, 04532-082
Federal Republic of Brazil
Attention: Pierre Schurmann/ Luis Busnello
Email: p@nuvini.com.br /
lab@nuvini.com.br
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with a copy to (which shall not constitute notice):
Mayer Brown LLP
71 South Wacker Drive
Chicago, IL 60606-4637
United States of America
Attention: Eddie Best / Esther Chang
Email: ebest@mayerbrown.com /
echang@mayerbrown.com
and
Tauil & Chequer Advogados Associados
À Mayer Brown
Av. Pres. Juscelino Kubitschek
1455 - 5°, 6° e 7º andares
São Paulo – SP, 04543-011 - Vila Nova Conceição
Federal Republic of Brazil
Attention: Carlos Motta / Rodolfo Constantino de Tella
Email: cmotta@mayerbrown.com /
rtella@mayerbrown.com
If to any Holder, to such address indicated on New PubCo’s records with respect to such Holder or to such other address or addresses as such Holder may from time to time designate in writing.
(j) Amendment; Waiver. Except as expressly set forth herein, this Agreement may be amended, supplemented, modified or waived only by execution of a written instrument signed by New PubCo and Holders holding in the aggregate a majority of the Lock-up Shares at such time; provided that, if any such amendment, supplement, modification or waiver disproportionately and adversely impacts a Holder (or group of Holders), the consent of such disproportionately impacted Holder (or group of Holders) shall be required. No failure or delay by a Party in exercising any right hereunder shall operate as a waiver thereof. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.
(k) Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
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(l) Specific Performance. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. The Parties agree that the rights and obligations of each Party hereunder are special, unique and of extraordinary character and immediate and irreparable harm or damage would occur for which money damages would not be an adequate remedy in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, in addition to any other remedy to which either party is entitled at law or in equity, each Party shall be entitled to equitable remedies against another party for its breach or threatened breach of this Agreement, including an injunction or injunctions to prevent breaches of this Agreement and specific enforcement of the terms and provisions of this Agreement, in each case, without the necessity of proving the inadequacy of money damages as a remedy and without bond or other security being required. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief. Each Party hereby further agrees that in the event of any action by any other party for specific performance or injunctive relief, it will not assert that a remedy at law or other remedy would be adequate or that specific performance or injunctive relief in respect of such breach or violation should not be available on the grounds that money damages are adequate or any other grounds.
(m) Entire Agreement. This Agreement, including the Exhibits hereto, constitutes the full and entire understanding and agreement among the Parties with respect to the subject matter hereof, and any other written or oral agreement or understanding relating to the subject matter hereof existing between the Parties is expressly superseded; provided, that, for the avoidance of doubt, the foregoing shall not affect the rights and obligations of the Parties under the Business Combination Agreement or any other Transaction Agreement. Notwithstanding the foregoing, nothing in this Agreement shall limit any of the rights, remedies or obligations of the Parties under any other agreement between the Holder and New PubCo or any certificate or instrument executed by the Holder in favor of New PubCo, and nothing in any other agreement, certificate or instrument shall limit any of the rights, remedies or obligations of the Parties under this Agreement.
(n) Further Assurances. From time to time, at another Party’s request and without further consideration (but at the requesting Party’s reasonable cost and expense), each Party shall execute and deliver such additional documents and take all such further action as may be reasonably necessary to consummate the transactions contemplated by this Agreement.
(o) Rules of Construction. Each of the Parties agrees that it has been represented by independent counsel of its choice during the negotiation and execution of this Agreement and each Party hereto and its counsel cooperated in the drafting and preparation of this Agreement and the documents referred to herein and, therefore, waive the application of any Legal Requirement or rule of construction providing that ambiguities in an agreement or other document will be construed against the Party drafting such agreement or document.
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(p) Counterparts; Electronic Delivery. This Agreement may be executed in counterparts, all of which shall be considered one and the same document and shall become effective when such counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart. Delivery by electronic transmission to counsel for the other Parties of a counterpart executed by a Party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the Parties to the terms and conditions of this Agreement.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
| NEW PUBCO: | ||
| NVNI GROUP LIMITED | ||
| By: | /s/ Pierre Schurmann | |
| Name: Pierre Schurmann | ||
| Title: Director | ||
[Signature Page to Lock-up Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
| HOLDER: | ||
| HERU INVESTMENT HOLDINGS LTD. | ||
| By: | /s/ Pierre Schurmann | |
| Name: Pierre Schurmann | ||
| Title: Director | ||
[Signature Page to Lock-up Agreement]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
| HOLDER: | ||
| LABSY L LTD. | ||
| By: | /s/ Luiz Antonio Busnello | |
| Name: Luiz Antonio Busnello | ||
| Title: Director | ||
| By: | /s/ Sylvia Verre | |
| Name: Sylvia Verre | ||
| Title: Director | ||
[Signature Page to Lock-up Agreement]
Exhibit A
Heru Investment Holdings Ltd.
Labsyl Ltd.
Exhibit A to Lock-up Agreement
Exhibit B
FORM OF JOINDER TO LOCK-UP AGREEMENT
[ ], 20
Reference is made to the Lock-up Agreement, dated as of September 29, 2023, by and among Nvni Group Limited, an exempted company incorporated with limited liability in the Cayman Islands (“New PubCo”) and each of the stockholder parties identified on Exhibit A and the Holders (as defined therein) from time to time party thereto (as amended from time to time, the “Lock-up Agreement”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Lock-up Agreement.
Each of New PubCo and each undersigned holder of ordinary shares of New PubCo (each, a “New Holder”) agrees that this Joinder to the Lock-up Agreement (this “Joinder”) is being executed and delivered for good and valuable consideration.
Each undersigned New Holder hereby agrees to and does become party to the Lock-up Agreement as a “Holder” thereunder. This Joinder shall serve as a counterpart signature page to the Lock-up Agreement and by executing below each undersigned New Holder is deemed to have executed the Lock-up Agreement with the same force and effect as if originally named a party thereto.
This Joinder may be executed in counterparts, all of which shall be considered one and the same document and shall become effective when such counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart. Delivery by electronic transmission to counsel for the other Parties of a counterpart executed by a Party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Joinder (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the Parties to the terms and conditions of this Joinder.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
Exhibit B to Lock-up Agreement
IN WITNESS WHEREOF, the undersigned have duly executed this Joinder as of the date first set forth above.
| [NEW HOLDER] | ||
| By: | ||
| Name: | ||
| Title | ||
| NVNI GROUP LIMITED | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit B to Lock-up Agreement
Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of September 29, 2023, is made and entered into by and among Nvni Group Limited, an exempted company incorporated with limited liability in the Cayman Islands (“New PubCo”), Mercato Partners Acquisition Group, LLC, a Delaware limited liability company (the “Sponsor”), certain parties set forth on Exhibit A hereto (such parties, together with the Sponsor, the “Sponsor Parties” and individually, a “Sponsor Party”), and certain former shareholders of Nuvini Holdings Limited, an exempted company incorporated with limited liability in the Cayman Islands (“Nuvini”), listed on Exhibit B hereto (such stockholders, the “Nuvini Holders” and, collectively with each Sponsor Party and any person or entity who hereafter becomes a party to this Agreement pursuant to Section 5.2 or Section 5.9 of this Agreement, the “Holders” and each, a “Holder”). Capitalized terms used but not defined herein have the meanings assigned to them in the Business Combination Agreement (as defined below).
RECITALS
WHEREAS, New PubCo has entered into that certain Business Combination Agreement, dated as of February 26, 2023, (as it may be amended or supplemented from time to time pursuant to the terms thereof, the “Business Combination Agreement”), by and among New PubCo, Mercato Partners Acquisition Corporation, a Delaware corporation (the “SPAC”), Nuvini Merger Sub, Inc., a Delaware corporation (“Merger Sub”) and a direct, wholly-owned subsidiary of New PubCo, and Nuvini, pursuant to which, among other things, (a) in accordance with the Contribution Agreement, each holder of Nuvini ordinary shares will, prior to the Merger Effective Time, contribute its respective Nuvini ordinary shares to New PubCo in exchange for the issuance of ordinary shares of New PubCo, par value 0.0001 per share (“Ordinary Shares”), to be subscribed for by such Nuvini ordinary shareholder (the “Contribution”), (b) as a result of the Contribution, Nuvini will become a direct, wholly-owned subsidiary of New PubCo, (c) following the consummation of the Contribution, Merger Sub will merge with and into SPAC (the “Merger”), with SPAC continuing as the surviving entity and a direct, wholly owned subsidiary of New PubCo, and (d) as a result of the Merger, each share of SPAC Common Stock issued and outstanding immediately prior to the Merger Effective Time shall be converted into and shall for all purposes represent only the right to receive one (1) Ordinary Share, in each case of clauses (a), (b), (c) and (d), on the terms and conditions set forth in the Business Combination Agreement;
WHEREAS, on the date hereof, pursuant to the Business Combination Agreement, the Nuvini Holders received Ordinary Shares;
WHEREAS, at the Merger Effective Time, (a) all of the shares of Class B Common Stock and SPAC Warrants held by the Sponsor immediately prior to the Merger Effective Time will be converted into the same number of Ordinary Shares and (b) all SPAC Warrants held by the Sponsor immediately prior to the Merger Effective Time will be converted into the same number of warrants to Ordinary Shares;
WHEREAS, the SPAC and the Sponsor are parties to that certain Registration Rights Agreement, dated as of November 3, 2021 (the “Original RRA”);
WHEREAS, upon consummation of the Transactions, the parties to the Prior Registration Rights Agreement will terminate the Original RRA; and
WHEREAS, the parties hereto desire to enter into this Agreement, pursuant to which New PubCo shall grant the Holders certain registration rights with respect to certain securities of New PubCo, as set forth in this Agreement.
NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The terms defined in this Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:
“Additional Holder” shall have the meaning given in Section 5.9.
“Additional Holder Ordinary Shares” shall have the meaning given in Section 5.9.
“Adverse Disclosure” shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Chief Executive Officer or the Chief Financial Officer of New PubCo, after consultation with counsel to New PubCo, (i) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading, (ii) would not be required to be made at such time if the Registration Statement were not being filed, declared effective or used, as the case may be, and (iii) New PubCo has a bona fide business purpose for not making such information public.
“Agreement” shall have the meaning given in the Preamble hereto.
“Block Trade” shall have the meaning given in Section 2.4.1.
“Board” shall mean the Board of Directors of New PubCo.
“Business Combination Agreement” shall have the meaning given in the Recitals hereto.
“Change in Control” shall mean the transfer (whether by tender offer, merger, stock purchase, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons of New PubCo’s voting securities if, after such transfer, such person or group of affiliated persons would hold more than 50% of outstanding voting securities of New PubCo (or surviving entity) or would otherwise have the power to control the board of directors of New PubCo or to direct the operations of New PubCo.
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“Commission” shall mean the Securities and Exchange Commission.
“Contribution” shall have the meaning given in the Recitals hereto.
“Demanding Holder” shall have the meaning given in Section 2.1.4.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.
“Form F-1 Shelf” shall have the meaning given in Section 2.1.1.
“Form F-3 Shelf” shall have the meaning given in Section 2.1.1.
“Holder Information” shall have the meaning given in Section 4.1.2.
“Holders” shall have the meaning given in the Preamble hereto, for so long as such person or entity holds any Registrable Securities.
“Joinder” shall have the meaning given in Section 5.9.
“Lock-up Period” shall mean (a) with respect to the Sponsor and its respective Permitted Transferees, the Lock-up Period as defined in the Sponsor Support Agreement and (b) with respect to the Nuvini Holders and their respective Permitted Transferees, the Lock-up Period as defined in the Lock-up Agreement.
“Lock-up Shares” shall mean (a) with respect to the Sponsor and its respective Permitted Transferees, the Lock-up Shares as defined in the Sponsor Support Agreement and (b) with respect to the Nuvini Holders and their respective Permitted Transferees, the Lock-up Shares as defined in the Lock-up Agreement.
“Maximum Number of Securities” shall have the meaning given in Section 2.1.5.
“Merger” shall have the meaning given in the Recitals hereto.
“Merger Sub” shall have the meaning given in the Recitals hereto.
“Minimum Takedown Threshold” shall have the meaning given in Section 2.1.4.
“Misstatement” shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus or necessary to make the statements in a Registration Statement or Prospectus (in the case of a Prospectus, in the light of the circumstances under which they were made) not misleading.
“New PubCo” shall have the meaning given in the Preamble hereto and includes New PubCo’s successors by recapitalization, merger, consolidation, spin-off, reorganization or similar transaction.
“New Registration Statement” shall have the meaning given in Section 2.1.7.
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“Nuvini” shall have the meaning given in the Preamble hereto.
“Nuvini Holders” shall have the meaning given in the Preamble hereto.
“Nuvini Majority Holders” shall mean the Nuvini Holder or Nuvini Holders holding in the aggregate a majority of the Registrable Securities then held by all of the Nuvini Holders.
“Ordinary Shares” shall have the meaning given in the Recitals hereto.
“Original RRA” shall have the meaning given in the Recitals hereto.
“Other Coordinated Offering” shall have the meaning given in Section 2.4.1.
“Permitted Transferees” shall mean (a) with respect to the Sponsor and its respective Permitted Transferees, (i) prior to the expiration of the Lock-up Period, any person or entity to whom such Holder is permitted to transfer such Registrable Securities prior to the expiration of the Lock-up Period pursuant to the Sponsor Support Agreement and (ii) after the expiration of the Lock-up Period, any person or entity to whom such Holder is permitted to transfer such Registrable Securities, subject to and in accordance with any applicable agreement between such Holder and/or their respective Permitted Transferees and New PubCo and any transferee thereafter and (b) with respect to the Nuvini Holders and their respective Permitted Transferees, (i) prior to the expiration of the Lock-up Period, any person or entity to whom such Holder is permitted to transfer such Registrable Securities prior to the expiration of the Lock-up Period pursuant to the Lock-up Agreement and (ii) after the expiration of the Lock-up Period, any person or entity to whom such Holder is permitted to transfer such Registrable Securities, subject to and in accordance with any applicable agreement between such Holder and/or their respective Permitted Transferees and New PubCo and any transferee thereafter.
“Piggyback Registration” shall have the meaning given in Section 2.2.1.
“Prospectus” shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all post-effective amendments and including all material incorporated by reference in such prospectus.
“Registrable Security” shall mean (a) any outstanding Ordinary Shares or any other equity security (including warrants to purchase Ordinary Shares and Ordinary Shares issued or issuable upon the exercise of any other equity security) of New PubCo held by a Holder immediately following the Closing (including any securities distributable pursuant to the Business Combination Agreement); (b) any outstanding Ordinary Shares or any other equity security (including warrants to purchase Ordinary Shares and Ordinary Shares issued or issuable upon the exercise of any other equity security) of New PubCo acquired by a Holder following the date hereof to the extent that such securities are “restricted securities” (as defined in Rule 144) or are otherwise held by an “affiliate” (as defined in Rule 144) of New PubCo; (c) any Additional Holder Ordinary Shares; and (d) any other equity security of New PubCo or any of its subsidiaries issued or issuable with respect to any securities referenced in clause (a), (b) or (c) above by way of a stock dividend or stock split or in connection with a recapitalization, merger, consolidation, spin-off, reorganization or similar transaction; provided, however, that, as to any particular Registrable Security, such securities shall cease to be Registrable Securities upon the earliest to occur of: (A) a Registration
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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 by the applicable Holder; (B) (i) such securities shall have been otherwise transferred, (ii) new certificates for such securities not bearing (or book entry positions not subject to) a legend restricting further transfer shall have been delivered by New PubCo and (iii) subsequent public distribution of such securities shall not require registration under the Securities Act; (C) such securities shall have ceased to be outstanding; (D) such securities may be sold without registration pursuant to Rule 144 or any successor rule promulgated under the Securities Act (but with no volume or other restrictions or limitations including as to manner or timing of sale imposed on Holder pursuant to Rule 144(b)(2)); and (E) such securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.
“Registration” shall mean a registration, including any related Shelf Takedown, effected by preparing and filing a registration statement, Prospectus 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.
“Registration Expenses” shall mean the documented, out-of-pocket expenses of a Registration, including, without limitation, the following:
(A) all registration and filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc.) and any national securities exchange on which the Ordinary Shares are then listed;
(B) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of outside counsel for the Underwriters in connection with blue sky qualifications of Registrable Securities);
(C) printing, messenger, telephone and delivery expenses;
(D) reasonable fees and disbursements of counsel for New PubCo;
(E) reasonable fees and disbursements of all independent registered public accountants of New PubCo incurred specifically in connection with such Registration; and
(F) in an Underwritten Offering or Other Coordinated Offering, reasonable fees and expenses not to exceed $30,000 in the aggregate for each Registration of one (1) legal counsel selected by the majority-in-interest of the Demanding Holders with the approval of New PubCo, which approval shall not be unreasonably withheld.
“Registration Statement” shall mean any registration statement that covers Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.
“SEC Guidance” shall have the meaning given in Section 2.1.7.
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“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.
“Shelf” shall mean the Form F-1 Shelf, the Form F-3 Shelf, the New Registration Statement or any Subsequent Shelf Registration Statement, as the case may be.
“Shelf Registration” shall mean a registration of securities pursuant to a registration statement filed with the Commission in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect).
“Shelf Takedown” shall mean an Underwritten Shelf Takedown or any proposed transfer or sale using a Registration Statement, including a Piggyback Registration.
“SPAC” shall have the meaning given in the Recitals hereto.
“Sponsor” shall have the meaning given in the Preamble hereto.
“Sponsor Majority Holders” shall mean the Sponsor Party or Sponsor Parties holding in the aggregate a majority of the Registrable Securities then held by all of the Sponsor Parties.
“Sponsor Parties” or “Sponsor Party” shall have the meaning given in the Preamble hereto.
“Subsequent Shelf Registration Statement” shall have the meaning given in Section 2.1.2.
“Transfer” shall mean the (a) sale or assignment of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any security, (b) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) public announcement of any intention to effect any transaction specified in clause (a) or (b).
“Underwriter” shall mean 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.
“Underwritten Offering” shall mean a Registration in which securities of New PubCo are sold to an Underwriter in a firm commitment underwriting for distribution to the public.
“Underwritten Shelf Takedown” shall have the meaning given in Section 2.1.4.
“Withdrawal Notice” shall have the meaning given in Section 2.1.6.
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ARTICLE II
REGISTRATIONS AND OFFERINGS
2.1 Shelf Registration.
2.1.1 Filing. Within thirty (30) calendar days following the Closing Date, New PubCo shall submit to or file with the Commission a Registration Statement for a Shelf Registration on Form F-1 (the “Form F-1 Shelf”) or a Registration Statement for a Shelf Registration on Form F-3 (the “Form F-3 Shelf”), if New PubCo is then eligible to use a Form F-3 Shelf, in each case, covering the resale of all the Registrable Securities (determined no later than two (2) business days prior to such submission or filing) on a delayed or continuous basis and shall use its commercially reasonable efforts to have such Shelf declared effective as soon as practicable after the filing thereof, but no later than the earlier of (a) the ninetieth (90th) calendar day following the filing date thereof if the Commission notifies New PubCo that it will “review” the Registration Statement and (b) the tenth (10th) business day after the date New PubCo is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review. Such Shelf shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. New PubCo shall maintain a Shelf in accordance with the terms hereof, and shall prepare and file with the Commission such amendments, including post-effective amendments, and supplements as may be necessary to keep a Shelf continuously effective, available for use to permit the Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. In the event New PubCo files a Form F-1 Shelf, New PubCo shall use its commercially reasonable efforts to convert the Form F-1 Shelf (and any Subsequent Shelf Registration Statement) to a Form F-3 Shelf as soon as practicable after New PubCo is eligible to use Form F-3. New PubCo’s obligation under this Section 2.1.1, shall, for the avoidance of doubt, be subject to Section 3.4.
2.1.2 Subsequent Shelf Registration. If any Shelf ceases to be effective under the Securities Act for any reason at any time while Registrable Securities are still outstanding, New PubCo shall use its commercially reasonable efforts to as promptly as is reasonably practicable cause such Shelf to again become effective under the Securities Act (including using its commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness of such Shelf), and shall use its commercially reasonable efforts to as promptly as is reasonably practicable amend such Shelf in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf or file an additional registration statement as a Shelf Registration (a “Subsequent Shelf Registration Statement”) registering the resale of all Registrable Securities (determined no later than two (2) business days prior to such filing), and pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. If a Subsequent Shelf Registration Statement is filed, New PubCo shall use its commercially reasonable efforts to (i) cause such Subsequent Shelf Registration Statement to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof (it being agreed that the Subsequent Shelf Registration Statement shall be an automatic shelf registration statement (as defined in Rule 405 promulgated under the Securities Act) if New PubCo is a well-known seasoned issuer (as defined in Rule 405 promulgated under
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the Securities Act) at the most recent applicable eligibility determination date) and (ii) keep such Subsequent Shelf Registration Statement continuously effective, available for use to permit the Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. Any such Subsequent Shelf Registration Statement shall be on Form F-3 to the extent that New PubCo is eligible to use such form. Otherwise, such Subsequent Shelf Registration Statement shall be on another appropriate form. New PubCo’s obligation under this Section 2.1.2, shall, for the avoidance of doubt, be subject to Section 3.4.
2.1.3 Additional Registrable Securities. Subject to Section 3.4, in the event that any Holder holds Registrable Securities that are not registered for resale on a delayed or continuous basis, New PubCo, upon written request of the Sponsor Majority Holders or the Nuvini Majority Holders, shall promptly use its commercially reasonable efforts to cause the resale of such Registrable Securities to be covered by either, at New PubCo’s option, any then available Shelf (including by means of a post-effective amendment) or by filing a Subsequent Shelf Registration Statement and cause the same to become effective as soon as practicable after such filing and such Shelf or Subsequent Shelf Registration Statement shall be subject to the terms hereof; provided, however, that New PubCo shall only be required to cause such Registrable Securities to be so covered twice per calendar year for each of the Sponsor Majority Holders and the Nuvini Majority Holders.
2.1.4 Requests for Underwritten Shelf Takedowns. Subject to Section 3.4, at any time and from time to time when an effective Shelf is on file with the Commission, the Sponsor Majority Holders or the Nuvini Majority Holders (any of the Sponsor Majority Holders or the Nuvini Majority Holders being in such case, a “Demanding Holder”) may request to sell all or any portion of its Registrable Securities in an Underwritten Offering that is registered pursuant to the Shelf (each, an “Underwritten Shelf Takedown”); provided that New PubCo shall only be obligated to effect an Underwritten Shelf Takedown if such offering shall include Registrable Securities proposed to be sold by the Demanding Holder, either individually or together with other Demanding Holders, with an anticipated aggregate offering price, net of underwriting discounts and commissions, of at least $50 million (the “Minimum Takedown Threshold”). All requests for Underwritten Shelf Takedowns shall be made by giving written notice to New PubCo, which shall specify the approximate number of Registrable Securities proposed to be sold in the Underwritten Shelf Takedown. Subject to Section 2.4.4, New PubCo shall have the right to select the Underwriters for such offering (which shall consist of one or more reputable nationally recognized investment banks), subject to the initial Demanding Holder’s prior approval (which shall not be unreasonably withheld, conditioned or delayed). The Sponsor Majority Holders may demand not more than one (1) Underwritten Shelf Takedown and the Nuvini Majority Holders may demand not more than two (2) Underwritten Shelf Takedowns, in each case, pursuant to this Section 2.1.4 in any twelve (12) month period. Notwithstanding anything to the contrary in this Agreement, New PubCo may effect any Underwritten Offering pursuant to any then effective Registration Statement, including a Form F-3, that is then available for such offering.
2.1.5 Reduction of Underwritten Offering. If the underwriter in an Underwritten Shelf Takedown advises the Demanding Holders in writing that marketing factors require a limitation of the number of shares to be underwritten, then the Demanding Holders shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and
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the number of shares of Registrable Securities that may be included in the underwriting (such maximum number of such securities, the “Maximum Number of Securities”) shall be allocated among all participating Holders thereof, including the Demanding Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities owned by each participating Holder; provided, however, that the number of shares of Registrable Securities to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting.
2.1.6 Withdrawal. Prior to the filing of the applicable “red herring” prospectus or prospectus supplement used for marketing such Underwritten Shelf Takedown, a majority-in-interest of the Demanding Holders initiating an Underwritten Shelf Takedown shall have the right to withdraw from such Underwritten Shelf Takedown for any or no reason whatsoever upon written notification (a “Withdrawal Notice”) to New PubCo and the Underwriter or Underwriters of their intention to withdraw from such Underwritten Shelf Takedown; provided that the Sponsor Majority Holders or the Nuvini Majority Holders may elect to have New PubCo continue an Underwritten Shelf Takedown if the Minimum Takedown Threshold would still be satisfied by the Registrable Securities proposed to be sold in the Underwritten Shelf Takedown by the Sponsor Majority Holders, the Nuvini Majority Holders or any of their respective Permitted Transferees, as applicable. If withdrawn, a demand for an Underwritten Shelf Takedown shall constitute a demand for an Underwritten Shelf Takedown by the withdrawing Demanding Holder for purposes of Section 2.1.4, unless either (i) such Demanding Holder has not previously withdrawn any Underwritten Shelf Takedown or (ii) such Demanding Holder reimburses New PubCo for all Registration Expenses with respect to such Underwritten Shelf Takedown (or, if there is more than one Demanding Holder, a pro rata portion of such Registration Expenses based on the respective number of Registrable Securities that each Demanding Holder has requested be included in such Underwritten Shelf Takedown); provided that, if the Sponsor Majority Holders or the Nuvini Majority Holders elect to continue an Underwritten Shelf Takedown pursuant to the proviso in the immediately preceding sentence, such Underwritten Shelf Takedown shall instead count as an Underwritten Shelf Takedown demanded by the Sponsor Majority Holders, the Nuvini Majority Holders, as applicable, for purposes of Section 2.1.4. Following the receipt of any Withdrawal Notice, New PubCo shall promptly forward such Withdrawal Notice to any other Holders that had elected to participate in such Shelf Takedown. Notwithstanding anything to the contrary in this Agreement, New PubCo shall be responsible for the Registration Expenses incurred in connection with a Shelf Takedown prior to its withdrawal under this Section 2.1.6, other than if a Demanding Holder elects to pay such Registration Expenses pursuant to clause (ii) of the second sentence of this Section 2.1.6.
2.1.7 New Registration Statement. Notwithstanding the registration obligations set forth in this Section 2.1, in the event the Commission informs New PubCo that all of the Registrable Securities cannot, as a result of the application of Rule 415 under the Securities Act, be registered for resale as a secondary offering on a single registration statement, New PubCo agrees to promptly (a) inform each of the holders thereof and use its commercially reasonable efforts to file amendments to the Shelf Registration as required by the Commission and/or (b) withdraw the Shelf Registration and file a new registration statement (a “New Registration Statement”), on Form F-3, or if Form F-3 is not then available to New PubCo for such registration statement, on such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration
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Statement, New PubCo shall use its commercially reasonable efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the Commission staff (the “SEC Guidance”). Notwithstanding any other provision of this Agreement, if any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that New PubCo used commercially reasonable efforts to advocate with the Commission for the registration of all or a greater number of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities to register a less amount of Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced on a pro rata basis based on the total number of Registrable Securities held by the Holders. In the event New PubCo amends the Shelf Registration or files a New Registration Statement, as the case may be, under clauses (a) or (b) above, New PubCo will use its commercially reasonable efforts to file with the Commission, as promptly as allowed by Commission or provided by SEC Guidance to New PubCo or to registrants of securities in general, one or more registration statements on Form F-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Shelf Registration, as amended, or the New Registration Statement.
2.2 Piggyback Registration.
2.2.1 Piggyback Rights. If New PubCo proposes to (but without any obligation to do so) register (including for this purpose a registration effected by New PubCo for holders of Ordinary Shares other than the Holders) any of its securities under the Securities Act in connection with the public offering of such securities solely for cash (other than a registration relating solely to the sale of securities to participants in a New PubCo stock plan or a transaction covered by Rule 145 under the Securities Act, a registration in which the only stock being registered is Ordinary Shares issuable upon conversion of debt securities which are also being registered, or any registration on any form which does not include substantially the same information as would be required to be included in a registration statement covering the sale of the Registrable Securities), then New PubCo shall give written notice of such proposed offering to all of the Holders of Registrable Securities as soon as practicable but not less than ten (10) calendar days before the anticipated filing date of such Registration Statement or, in the case of an Underwritten Offering pursuant to a Shelf Registration, the applicable “red herring” prospectus or prospectus supplement used for marketing such offering, which notice shall (A) 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, in such offering, and (B) offer to all of the Holders of Registrable Securities the opportunity to include in such registered offering such number of Registrable Securities as such Holders may request in writing within five (5) calendar days after receipt of such written notice (such registered offering, a “Piggyback Registration”). Subject to Section 2.2.2, New PubCo shall, in good faith, cause such Registrable Securities to be included in such Piggyback Registration and, if applicable, shall use its commercially reasonable efforts to cause the managing Underwriter or Underwriters of such Piggyback Registration to permit the Registrable Securities requested by the Holders pursuant to this Section 2.2.1 to be included therein on the same terms and conditions as any similar securities of New PubCo included in such registered offering and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. The inclusion of any Holder’s
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Registrable Securities in a Piggyback Registration shall be subject to such Holder agreement to enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering. Notwithstanding anything to the contrary, the Holders shall have no rights under this Section 2.2.1 if the registration statement New PubCo proposes to file is solely for purposes of a delayed or continuous offering pursuant to Rule 415 under the Securities Act and, at the time of the filing of such registration statement, New PubCo is in compliance with its obligations under Section 2.1.
2.2.2 Reduction of Piggyback Registration. If the total amount of securities, including Registrable Securities, requested by holders of Registrable Securities to be included in such offering exceeds the amount of securities sold other than by New PubCo that the underwriters determine in their sole discretion is compatible with the success of the offering, then New PubCo shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among the selling security holders according to the total amount of securities entitled to be included therein owned by each selling security holder or in such other proportions as shall mutually be agreed to by such selling security holders). For purposes of the preceding parenthetical note concerning apportionment, any selling security holder which is a holder of Registrable Securities and which is a partnership or corporation, the partners, retired partners and holders of capital stock of such holder, or the estates and family members of any such partners and retired partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be a single “selling security holder,” and any pro-rata reduction with respect to such “selling security holder” shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “selling security holder,” as defined in this sentence.
2.2.3 Piggyback Registration Withdrawal. Any Holder of Registrable Securities (other than a Demanding Holder, whose right to withdraw from an Underwritten Shelf Takedown, and related obligations, shall be governed by Section 2.1.6) shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to New PubCo and the Underwriter or Underwriters of his, her or its intention to withdraw from such Piggyback Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Piggyback Registration or, in the case of a Piggyback Registration pursuant to a Shelf Registration, the filing of the applicable “red herring” prospectus or prospectus supplement with respect to such Piggyback Registration used for marketing such transaction. New PubCo (whether on its own good faith determination or as the result of a request for withdrawal by persons or entities pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection with a Piggyback Registration (which, in no circumstance, shall include a Shelf) at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement (other than Section 2.1.6), New PubCo shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal under this Section 2.2.3.
2.2.4 Unlimited Piggyback Registration Rights. For purposes of clarity, subject to Section 2.1.6, any Piggyback Registration effected pursuant to Section 2.2 hereof shall not be counted as a demand for an Underwritten Shelf Takedown under Section 2.1.4 hereof.
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2.3 Market Stand-off. In connection with any Underwritten Offering of equity securities of New PubCo (other than a Block Trade or Other Coordinated Offering), if requested by the managing Underwriters, each Holder that is an executive officer, director or Holder in excess of five percent (5%) of the outstanding Ordinary Shares (and for which it is customary for such a Holder to agree to a lock-up) agrees that it shall not Transfer any Ordinary Shares or other equity securities of New PubCo (other than those included in such offering pursuant to this Agreement), without the prior written consent of New PubCo, during the ninety (90)-day period (or such shorter time agreed to by the managing Underwriters) beginning on the date of pricing of such offering, except as expressly permitted by such lock-up agreement or in the event the managing Underwriters otherwise agree by written consent. Each such Holder agrees to execute a customary lock-up agreement in favor of the Underwriters to such effect (in each case on substantially the same terms and conditions as all such Holders).
2.4 Block Trades; Other Coordinated Offerings.
2.4.1 Notwithstanding any other provision of this Article II, but subject to Section 3.4, at any time and from time to time when an effective Shelf is on file with the Commission, if a Demanding Holder wishes to engage in (a) an underwritten registered offering not involving a “roadshow,” an offer commonly known as a “block trade” (a “Block Trade”) or (b) an “at the market” or similar registered offering through a broker, sales agent or distribution agent, whether as agent or principal, (an “Other Coordinated Offering”), in each case, with an anticipated aggregate offering price of, either (x) at least $50 million or (y) all remaining Registrable Securities held by the Demanding Holder, then such Demanding Holder only needs to notify New PubCo of the Block Trade or Other Coordinated Offering at least five (5) business days prior to the day such offering is to commence and New PubCo shall as expeditiously as possible use its commercially reasonable efforts to facilitate such Block Trade or Other Coordinated Offering; provided that the Demanding Holders representing a majority of the Registrable Securities wishing to engage in the Block Trade or Other Coordinated Offering shall use commercially reasonable efforts to work with New PubCo and any Underwriters, brokers, sales agents or placement agents prior to making such request in order to facilitate preparation of the registration statement, prospectus and other offering documentation related to the Block Trade or Other Coordinated Offering.
2.4.2 Prior to the filing of the applicable “red herring” prospectus or prospectus supplement used in connection with a Block Trade or Other Coordinated Offering, a majority-in-interest of the Demanding Holders initiating such Block Trade or Other Coordinated Offering shall have the right to submit a Withdrawal Notice to New PubCo, the Underwriter or Underwriters (if any) and any brokers, sale agents or placement agents (if any) of their intention to withdraw from such Block Trade or Other Coordinated Offering. Notwithstanding anything to the contrary in this Agreement, New PubCo shall be responsible for the Registration Expenses incurred in connection with a Block Trade or Other Coordinated Offering prior to its withdrawal under this Section 2.4.2.
2.4.3 Notwithstanding anything to the contrary in this Agreement, Section 2.2 shall not apply to a Block Trade or Other Coordinated Offering initiated by a Demanding Holder pursuant to this Agreement.
2.4.4 The Demanding Holder in a Block Trade or Other Coordinated Offering shall have the right to select the Underwriters and any brokers, sale agents or placement agents (if any) for such Block Trade or Other Coordinated Offering (in each case, which shall consist of one or more reputable nationally recognized investment banks).
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2.4.5 A Holder in the aggregate may demand no more than two (2) Block Trades or Other Coordinated Offerings pursuant to this Section 2.4 in any twelve (12) month period. For the avoidance of doubt, any Block Trade or Other Coordinated Offering effected pursuant to this Section 2.4 shall not be counted as a demand for an Underwritten Shelf Takedown pursuant to Section 2.1.4 hereof.
ARTICLE III
NEW PUBCO PROCEDURES
3.1 General Procedures. In connection with any Shelf and/or Shelf Takedown, New PubCo shall use its commercially reasonable efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof (and including all manners of distribution in such Registration Statement as Holders may reasonably request in connection with the filing of such Registration Statement and as permitted by law, including distribution of Registrable Securities to a Holder’s members, securityholders or partners), and pursuant thereto New PubCo shall, as expeditiously as possible:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities have ceased to be Registrable Securities;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by any Holder that holds at least five percent (5%) of the Registrable Securities registered on such Registration Statement or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by New PubCo or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and 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 Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
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3.1.4 prior to any public offering of Registrable Securities, use its commercially reasonable 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 (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) 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 New PubCo 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 New PubCo shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each national securities exchange on which similar securities issued by New PubCo are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) calendar days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus (or such shorter period of time as may be (a) necessary in order to comply with the Securities Act, the Exchange Act, and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable or (b) advisable in order to reduce the number of days that sales are suspended pursuant to Section 3.4), furnish a copy thereof to each seller of such Registrable Securities or its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein);
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4;
3.1.10 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a broker, placement agent or sales agent pursuant to such Registration, permit a representative of the Holders, the Underwriters or other financial institutions facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such
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Holders or Underwriter to participate, at each such person’s or entity’s own expense, in the preparation of the Registration Statement, and cause New PubCo’s officers, directors and employees (if any) to supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection with the Registration; provided, however, that such representatives, Underwriters or financial institutions agree to confidentiality arrangements in form and substance reasonably satisfactory to New PubCo, prior to the release or disclosure of any such information;
3.1.11 obtain a “cold comfort” letter from New PubCo’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration (subject to such broker, placement agent or sales agent providing such certification or representation reasonably requested by New PubCo’s independent registered public accountants and New PubCo’s counsel) 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 majority-in-interest of the participating Holders;
3.1.12 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing New PubCo for the purposes of such Registration, addressed to the participating Holders, the broker, placement agents or sales agent, if any and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders, broker, placement agent, sales agent or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters;
3.1.13 in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration, enter into and perform its obligations under an underwriting or other purchase or sales agreement, in usual and customary form, with the managing Underwriter or the broker, placement agent or sales agent of such offering or sale;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of New PubCo’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule then in effect);
3.1.15 with respect to an Underwritten Offering pursuant to Section 2.1.4, use its commercially reasonable efforts to make available senior executives of New PubCo to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in such Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the participating Holders, consistent with the terms of this Agreement, in connection with such Registration.
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Notwithstanding the foregoing, New PubCo shall not be required to provide any documents or information to an Underwriter or broker, sales agent or placement agent if such Underwriter or broker, sales agent or placement agent has not then been named with respect to the applicable Underwritten Offering or other offering involving a registration as an Underwriter or broker, sales agent or placement agent, as applicable.
3.2 Registration Expenses. The Registration Expenses of all Registrations shall be borne by New PubCo. It is acknowledged by the Holders that the Holders shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as set forth in the definition of “Registration Expenses,” all fees and expenses of any legal counsel representing the Holders.
3.3 Requirements for Participation in Registration Statement in Offerings. Notwithstanding anything in this Agreement to the contrary, if any Holder does not provide New PubCo with its requested Holder Information within the period provided by New PubCo, New PubCo may exclude such Holder’s Registrable Securities from the applicable Registration Statement or Prospectus if New PubCo determines, based on the advice of counsel, that such information is necessary to effect the registration and such Holder continues thereafter to withhold such information. No person or entity may participate in any Underwritten Offering or other offering for equity securities of New PubCo pursuant to a Registration initiated by New PubCo hereunder unless such person or entity (i) agrees to sell such person’s or entity’s securities on the basis provided in any underwriting, sales, distribution or placement arrangements approved by New PubCo and (ii) completes and executes all customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting or other agreements and other customary documents as may be reasonably required under the terms of such underwriting, sales, distribution or placement arrangements. The exclusion of a Holder’s Registrable Securities as a result of this Section 3.3 shall not affect the registration of the other Registrable Securities to be included in such Registration.
3.4 Suspension of Sales; Adverse Disclosure; Restrictions on Registration Rights.
3.4.1 Upon receipt of written notice from New PubCo that a Registration Statement or Prospectus contains a Misstatement, each of the Holders shall forthwith discontinue the offering or disposition of Registrable Securities until it has received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that New PubCo hereby covenants to prepare and file such supplement or amendment as soon as practicable after the time of such notice), or until it is advised in writing by New PubCo that the use of the Prospectus may be resumed.
3.4.2 If the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would (a) require New PubCo to make an Adverse Disclosure, (b) require the inclusion in such Registration Statement of financial statements that are unavailable to New PubCo for reasons beyond New PubCo’s control or (c) in the good faith judgment of the Board such Registration, be seriously detrimental to New PubCo and its holders of capital stock and it is therefore essential to defer such filing, initial effectiveness or continued use at such time, New PubCo shall have the right, upon giving prompt written notice
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of such action to the Holders (which notice shall not specify the nature of the event giving rise to such delay or suspension), delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time determined in good faith by New PubCo to be necessary for such purpose. In the event New PubCo exercises its rights under this Section 3.4.2, the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities until such Holder receives written notice from New PubCo that such sales or offers of Registrable Securities may be resumed, and in each case maintain the confidentiality of such notice and its contents.
3.4.3 (a) During the period starting from the date ninety (90) days prior to New PubCo’s good faith estimate of the date of the filing of, and ending on a date ninety (90) days after the effective date of, a New PubCo-initiated Registration and provided that New PubCo continues to actively employ, in good faith, all reasonable efforts to maintain the effectiveness of the applicable Shelf Registration Statement, or (b) if, pursuant to Section 2.1.4, Holders have requested an Underwritten Shelf Takedown and New PubCo and Holders are unable to obtain the commitment of underwriters to firmly underwrite such offering, New PubCo may, upon giving prompt written notice of such action to the Holders, delay any other registered offering pursuant to Section 2.1.4 or 2.4 for not more than ninety (90) consecutive calendar days or more than one hundred twenty (120) total calendar days in each case during any twelve (12)-month period.
3.5 Reporting Obligations. As long as any Holder shall own Registrable Securities, New PubCo, at all times while it shall be a reporting company under the Exchange Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by New PubCo after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holders with true and complete copies of all such filings; provided that any documents publicly filed or furnished with the Commission pursuant to the Electronic Data Gathering, Analysis and Retrieval System shall be deemed to have been furnished or delivered to the Holders pursuant to this Section 3.5. New PubCo further covenants that it shall take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell Ordinary Shares held by such Holder without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act (or any successor rule then in effect). Upon the request of any Holder, New PubCo shall deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such requirements.
3.6 Foreign Private Issuer Status. As of such time as New PubCo ceases to be a “foreign private issuer” (as defined in Rule 12b-2 under the Exchange Act), (a) all references in this Agreement to a Form F-1 Shelf shall thereafter be deemed to refer to a shelf registration on Form S-1, (b) all references in this Agreement to a Form F-3 Shelf shall thereafter be deemed to refer to a shelf registration on Form S-3, and (c) New PubCo shall promptly take all actions reasonably necessary to ensure the Holders gain the expected benefit of this Agreement, including by filing (and making effective) any post-effective amendment to an existing Registration Statement or a New Registration Statement.
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ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
4.1 Indemnification.
4.1.1 New PubCo agrees to indemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers, directors and agents and each person or entity who controls such Holder (within the meaning of the Securities Act), against all losses, claims, damages, liabilities and out-of-pocket expenses (including, without limitation, reasonable outside attorneys’ fees) resulting from any untrue or alleged untrue statement of material fact contained in or incorporated by reference in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information or affidavit so furnished in writing to New PubCo by such Holder expressly for use therein. New PubCo shall indemnify the Underwriters, their officers and directors and each person or entity who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Holder.
4.1.2 In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish (or cause to be furnished) to New PubCo in writing such information and affidavits as New PubCo reasonably requests for use in connection with any such Registration Statement or Prospectus (the “Holder Information”) and, to the extent permitted by law, shall indemnify New PubCo, its directors, officers and agents and each person or entity who controls New PubCo (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and out-of-pocket expenses (including, without limitation, reasonable outside attorneys’ fees) resulting from any untrue or alleged untrue statement of material fact contained or incorporated by reference in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement is contained in (or not contained in, in the case of an omission) any information or affidavit so furnished in writing by or on behalf of such Holder expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each person or entity who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of New PubCo.
4.1.3 Any person or entity entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s or entity’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest
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between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement includes a statement or admission of fault and culpability on the part of such indemnified party or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
4.1.4 The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling person or entity of such indemnified party and shall survive the transfer of securities. New PubCo and each Holder of Registrable Securities participating in an offering also agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event New PubCo’s or such Holder’s indemnification is unavailable for any reason.
4.1.5 If the indemnification provided under Section 4.1 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and out-of-pocket expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and out-of-pocket expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by (or not made by, in the case of an omission), or relates to information supplied by (or not supplied by in the case of an omission), such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder under this Section 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in Sections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or out-of-pocket expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.1.5 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 this Section 4.1.5. No person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 4.1.5 from any person or entity who was not guilty of such fraudulent misrepresentation.
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4.2 Waiver of Medallion Guaranty.
4.2.1 New PubCo agrees to enter into that certain indemnification agreement, substantially in the form attached as Exhibit D to this Agreement, in favor of Continental Stock Transfer & Trust Company (or any successor transfer agent or warrant agent of New PubCo) in connection with the waiver of any requirement to provide a medallion guarantee in connection with any Transfer of any Ordinary Shares or other equity securities of New PubCo by the Sponsor or any of its Permitted Transferees.
ARTICLE V
MISCELLANEOUS
5.1 Notices. Any notice or communication under this Agreement must be in writing and given by (i) deposit in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, (ii) delivery in person or by courier service providing evidence of delivery, or (iii) transmission by hand delivery, electronic mail or facsimile. Each notice or communication that is mailed, delivered, or transmitted in the manner described above shall be deemed sufficiently given, served, sent, and received, in the case of mailed notices, on the third business day following the date on which it is mailed and, in the case of notices delivered by courier service, hand delivery, electronic mail or facsimile, at such time as it is delivered to the addressee (with the delivery receipt or the affidavit of messenger) or at such time as delivery is refused by the addressee upon presentation. Any notice or communication under this Agreement must be addressed, if to New PubCo, to: Nvni Group Limited, Rua Jesuíno Arruda, No. 769, Room 20-B, Itaim Bibi, São Paulo—SP, 04532-082, Federal Republic of Brazil, Attention: Pierre Schurmann, Email: p@nuvini.com.br and Luis Busnello, Email: lab@nuvini.com.br and, if to any Holder, at such Holder’s address, electronic mail address or facsimile number as set forth in New PubCo’s books and records. Any party may change its address for notice at any time and from time to time by written notice to the other parties hereto, and such change of address shall become effective thirty (30) days after delivery of such notice as provided in this Section 5.1.
5.2 Assignment; No Third Party Beneficiaries.
5.2.1 This Agreement and the rights, duties and obligations of New PubCo hereunder may not be assigned or delegated by New PubCo in whole or in part.
5.2.2 Subject to Section 5.2.4 and Section 5.2.5, this Agreement and the rights, duties and obligations of a Holder hereunder may not be assigned in whole or in part except to such Holder’s Permitted Transferees; provided, that, with respect to the Nuvini Holders and the Sponsor Parties, the rights hereunder that are personal to such Holders may not be assigned or delegated in whole or in part, except that (x) each of the Nuvini Holders shall be permitted to transfer its, his or her respective rights hereunder as the Nuvini Holders to one or more Affiliates
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or any direct or indirect partners, members or equity holders of such Nuvini Holder (it being understood that no such transfer shall reduce any rights of such Nuvini Holder or such transferees) and (y) each of the Sponsor Parties shall be permitted to transfer its, his or her respective rights hereunder as the Sponsor Parties to one or more of their respective Affiliates or any direct or indirect partners, members or equity holders of the Sponsor Parties (it being understood that no such transfer shall reduce any rights of the Sponsor Parties or such transferees).
5.2.3 This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and the permitted assigns of the Holders, which shall include Permitted Transferees.
5.2.4 This Agreement shall not confer any rights or benefits on any persons or entities that are not parties hereto, other than as expressly set forth in this Agreement and Section 5.2.
5.2.5 No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate New PubCo unless and until New PubCo shall have received (i) written notice of such assignment as provided in Section 5.1 hereof and (ii) the written agreement of the assignee, in a form reasonably satisfactory to New PubCo, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement). Any transfer or assignment made other than as provided in this Section 5.2 shall be null and void.
5.3 Counterparts. This Agreement may be executed in multiple counterparts (including facsimile or PDF counterparts), each of which shall be deemed an original, and all of which together shall constitute the same instrument, but only one of which need be produced.
5.4 Governing Law; Venue. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT (1) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK AND (2) THE VENUE FOR ANY ACTION TAKEN WITH RESPECT TO THIS AGREEMENT SHALL BE EXCLUSIVELY IN THE SUPREME COURT OF THE STATE OF NEW YORK, NEW YORK COUNTY, AND ANY STATE APPELLATE COURT THEREFROM WITHIN THE STATE OF NEW YORK, NEW YORK COUNTY, OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.
5.5 TRIAL BY JURY. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
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5.6 Amendments and Modifications. Upon the written consent of (a) New PubCo and (b) the Holders of a majority of the total Registrable Securities, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however, that notwithstanding the foregoing, any amendment hereto or waiver hereof shall also require the written consent of the Sponsor Majority Holders so long as the Sponsor Parties and their respective affiliates hold Registrable Securities representing, in the aggregate, at least five percent (5%) of the outstanding Ordinary Shares of New PubCo; provided, further, that notwithstanding the foregoing, any amendment hereto or waiver hereof shall also require the written consent of each of the Nuvini Majority Holders so long as such Nuvini Holder and its affiliates hold Registrable Securities representing, in the aggregate, at least five percent (5%) of the outstanding Ordinary Shares of New PubCo; and provided, further, that any amendment hereto or waiver hereof that adversely affects one Holder, solely in its capacity as a holder of the shares of capital stock of New PubCo, in a manner that is materially different from the other Holders (in such capacity) shall require the consent of the Holder so affected. No course of dealing between any Holder or New PubCo and any other party hereto or any failure or delay on the part of a Holder or New PubCo in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or New PubCo. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party.
5.7 Term. This Agreement shall terminate on the earlier of (a) the fifth anniversary of the date of this Agreement or (b) with respect to any Holder, on the date that such Holder no longer holds any Registrable Securities. The provisions of Section 3.5 and Article IV shall survive any termination.
5.8 Holder Information. Each Holder agrees, if requested in writing, to represent to New PubCo the total number of Registrable Securities held by such Holder in order for New PubCo to make determinations hereunder.
5.9 Additional Holders; Joinder. In addition to persons or entities who may become Holders pursuant to Section 5.2 hereof, subject to the prior written consent of each of the Sponsor Majority Holders and the Nuvini Majority Holders (in each case, so long as such Holder and its affiliates hold Registrable Securities representing, in the aggregate, at least five percent (5%) of the outstanding Ordinary Shares of New PubCo), New PubCo may make any person or entity who acquires Ordinary Shares or rights to acquire Ordinary Shares after the date hereof a party to this Agreement (each such person or entity, an “Additional Holder”) by obtaining an executed joinder to this Agreement from such Additional Holder in the form of Exhibit C attached hereto (a “Joinder”). Such Joinder shall specify the rights and obligations of the applicable Additional Holder under this Agreement. Upon the execution and delivery and subject to the terms of a Joinder by such Additional Holder, the Ordinary Shares of New PubCo then owned, or underlying any rights then owned, by such Additional Holder (the “Additional Holder Ordinary Shares”) shall be Registrable Securities to the extent provided herein and therein and such Additional Holder shall be a Holder under this Agreement with respect to such Additional Holder Ordinary Shares.
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5.10 Severability. It is the desire and intent of the parties that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
5.11 Entire Agreement. This Agreement constitutes the full and entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter, including the Original RRA.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| NEW PUBCO: | ||
| NVNI GROUP LIMITED | ||
| By: | /s/ Pierre Schurmann | |
| Name: Pierre Schurmann | ||
| Title: Director | ||
[Signature Page to Registration Rights Agreement]
| SPONSOR: | ||
| MERCATO PARTNERS ACQUISITION GROUP, LLC | ||
| By: | /s/ Scott Klossner | |
| Name: | Scott Klossner | |
| Title: | Chief Financial Officer | |
[Signature Page to Registration Rights Agreement]
| NUVINI HOLDER: | ||
| HERU INVESTMENT HOLDINGS LTD. | ||
| By: | /s/ Pierre Schurmann | |
| Name: Pierre Schurmann | ||
| Title: Director | ||
[Signature Page to Registration Rights Agreement]
| NUVINI HOLDER: | ||
| LABSYL LTD. | ||
| By: | /s/ Luiz Antonio Busnello | |
| Name: Luiz Antonio Busnello | ||
| Title: Director | ||
| By: | /s/ Sylvia Verre | |
| Name: Sylvia Verre | ||
| Title: Director | ||
[Signature Page to Registration Rights Agreement]
Exhibit A
SPONSOR PARTIES
1. Scott Klossner
2. Greg Butterfield
3. Greg Warnock
4. Michael Rosen
5. Context Partners Master Fund, L.P.
Exhibit A to Registration Rights Agreement
Exhibit B
NUVINI HOLDERS
1. Heru Investment Holdings Ltd.
2. Labsyl Ltd.
Exhibit B to Registration Rights Agreement
Exhibit C
REGISTRATION RIGHTS AGREEMENT JOINDER
The undersigned is executing and delivering this joinder (this “Joinder”) pursuant to the Registration Rights Agreement, dated as of September 29, 2023 (as the same may hereafter be amended, the “Registration Rights Agreement”), among Nvni Group Limited, an exempted company incorporated with limited liability in the Cayman Islands (“New PubCo”), and the other persons or entities named as parties therein. Capitalized terms used but not otherwise defined herein shall have the meanings provided in the Registration Rights Agreement.
By executing and delivering this Joinder to New PubCo, and upon acceptance hereof by New PubCo upon the execution of a counterpart hereof, the undersigned hereby agrees to become a party to, to be bound by, and to comply with the Registration Rights Agreement as a Holder of Registrable Securities in the same manner as if the undersigned were an original signatory to the Registration Rights Agreement, and the undersigned’s Ordinary Shares shall be included as Registrable Securities under the Registration Rights Agreement to the extent provided therein; provided, however, that the undersigned and its permitted assigns (if any) shall not have any rights as Holders, and the undersigned’s (and its transferees’) Ordinary Shares shall not be included as Registrable Securities, for purposes of the Excluded Sections.
For purposes of this Joinder, “Excluded Sections” shall mean [ ].
Accordingly, the undersigned has executed and delivered this Joinder as of the day of , 20 .
| Signature of Stockholder |
| Print Name of Stockholder |
| Its: |
| Address: | ||
| Agreed and Accepted as of | ||
| , 20 | ||
| [ ] | ||
| By: | ||
| Name: | ||
| Its: | ||
Exhibit C to Registration Rights Agreement
Exhibit D
INDEMNIFICATION AGREEMENT
Nvni Group Limited
[ • ]
[ • ]
[ ], 2023
Continental Stock Transfer & Trust Company
1 State Street 30th Floor
New York, NY 10004-1561
Re: Indemnification in-lieu-of Medallion Signature Guarantee
To whom it may concern:
This letter is in regards to the transfer by Mercato Partners Acquisition Group, LLC to [ ], for [ ] ordinary shares of Nvni Group Limited (“New PubCo”). Please be advised that New PubCo authorizes Continental Stock Transfer & Trust Company to process the subject transfer, which includes securities that have been duly endorsed by the registered holder but do not bear a customary medallion signature guarantee. New PubCo agrees to indemnify Continental Stock Transfer & Trust Company against all losses, damages, costs, charges and expenses that it may in any way sustain, incur, or become liable for by reason related to the above referenced transaction.
I, [ • ], a duly authorized officer of New PubCo, have the authority to execute this indemnification on behalf of New PubCo.
| Very truly yours, | ||
| NVNI GROUP LIMITED | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit D to Registration Rights Agreement
Exhibit 4.30
[***] Portions of this exhibit have been redacted in compliance with Regulation S-K Item 601(a)(6)
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made on September 29, 2023, by and between Nvni Group Limited, a Cayman Islands exempted company incorporated with limited liability (the “Company”), and Pierre Schurmann (the “Indemnitee”), a director and Chief Executive Officer of the Company.
WHEREAS, the Indemnitee has agreed to serve as a director and Chief Executive Officer of the Company and in such capacity will render valuable services to the Company; and
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its Subsidiaries (as defined below) from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among publicly traded corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The amended and restated memorandum and articles of association of the Company (the “Articles”) provide for the indemnification of the officers and directors of the Company. The Articles expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, while the Articles provide for the indemnification of the officers and directors of the Company and the Articles provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve, or continue to serve, as a director and Chief Executive Officer of the Company, the Company and the Indemnitee hereby agree as follows:
| 1 | Definitions. As used in this Agreement: |
| (a) | A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events: |
| (i) | Acquisition of shares of the Company by a third party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing twenty-five percent (25%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors; |
| (ii) | Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board; |
| (iii) | Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; |
| (iv) | Liquidation. The approval by the shareholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and |
| (v) | Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. |
| (vi) | For purposes of this Section 2(b), the following terms have the following meanings: |
| (1) | “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended from time to time. |
| (2) | “Person” has the meaning as set forth in Section 13(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of shares of the Company. |
| (3) | “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the shareholders of the Company approving a merger of the Company with another entity. |
| (b) | The term “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee. |
| (c) | The term “Expenses” shall mean any expense, liability or loss, including, without limitation, damages, judgments, fines, penalties, settlements (if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, conditioned or delayed) and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations, liabilities, losses, taxes, any expense paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any taxes, interests, assessments or other charges imposed as a result of the actual or deemed receipt of any payment under this Agreement. |
| (d) | The term “Independent Legal Counsel” shall mean any attorney or firm of attorneys that is reasonably selected by the Board and approved by the Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed), so long as such firm is not presently representing and has not in the preceding five (5) years represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company in any matter material to any such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Articles, which became effective immediately after the Company’s initial public offering, applicable law or otherwise. |
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| (e) | The term “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, hearing or any other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), in which the Indemnitee was, is or will be involved as a party or otherwise, by reason of (i) the fact that the Indemnitee is or was a director (or a director appointee) or an executive officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, (ii) any actual or alleged act or omission or neglect or breach of duty, including, without limitation, any actual or alleged error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in any such capacity, or (iii) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Articles, applicable law or otherwise, in each case whether or not the Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. |
| (f) | The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director or an executive officer of the Company which imposes duties on, or involves services by, such director or executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company. |
| 2 | Indemnification. Subject to Section 6 below, the Company hereby agrees to hold harmless and indemnify the Indemnitee to the fullest extent permitted by Cayman Islands law in effect on the date hereof and as amended from time to time (“Law”). In furtherance of the foregoing indemnification and without limiting the generality thereof: |
| (a) | Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (b) | Proceedings Other than Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other than a Proceeding by or in the right of the Company) against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to |
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| be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (c) | Indemnification for Expenses of Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee, has prepared to serve or has served as a witness or is made to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith, in each case, to the maximum extent permitted by Law. |
| (d) | Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Proceedings, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled, in each case, to the maximum extent permitted by Law. |
| (e) | Mandatory Indemnification. Other than as provided in Section 6, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any Proceeding relating in whole or in part to a Proceeding or in defense of any issue or matter therein, Indemnitee shall be indemnified against all Expenses incurred in connection therewith. For purposes of this Agreement and without limiting the foregoing, if any action, suit or proceeding is disposed of, on the merits or otherwise (including a disposition without prejudice), without (i) the disposition being adverse to Indemnitee, (ii) an adjudication that Indemnitee was liable to the Company, (iii) a plea of guilty or nolo contendere by Indemnitee or (iv) an adjudication that Indemnitee is not entitled to the indemnification provided by this Agreement, Indemnitee shall be considered for the purposes hereof to have been wholly successful with respect thereto. |
| 3 | Contribution. If the indemnification provided in Section 2 above is unavailable to Indemnitee for any reason (other than those set forth in Section 6 below) in connection with a Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company, in lieu of indemnifying Indemnitee thereunder, shall, to the maximum extent permitted by Law, contribute to the amount of Expenses which are actually and reasonably incurred and paid or payable by the Indemnitee in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and the Indemnitee and/or (ii) the relative fault of the Company and such Indemnitee in connection with the transaction or events from which such Proceeding arose. The relative fault of the Company and the Indemnitee shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. |
| 4 | Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee (but in any event no later than thirty (30) days after such request) to the fullest extent permitted by Law; provided, however, that the Indemnitee shall set forth in such request reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding and an undertaking (which shall not require any security) in writing to repay any advances if it is ultimately determined as provided in subsection 5(b) of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement, the Articles, applicable law or otherwise. |
| 5 | Indemnification Procedure; Determination of Right to Indemnification. |
| (a) | Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify. |
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| (b) | The Indemnitee shall be conclusively presumed to be entitled to indemnification under this Agreement unless a determination is made that the Indemnitee is not entitled to indemnification under Law or this Agreement by one of the following two methods, which shall be at the election of the Indemnitee: (i) by a majority vote of the Board of a quorum consisting of Disinterested Directors or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, the Indemnitee so directs, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. |
| (c) | If (i) a determination is made that the Indemnitee is not entitled to indemnification under this Agreement or (ii) a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the Indemnitee is entitled to an adjudication in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct shall be a defense to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein. |
| (d) | If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall to the maximum extent permitted by Law pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings). |
| (e) | With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Company shall not be liable to indemnify Indemnitee under this Agreement or otherwise for any amounts paid in settlement of any Proceeding effected without the Company’s written consent, such consent not to be unreasonably withheld; provided, however, that if a Change in Control has occurred (other than a Change in Control approved by a majority of the directors on the Board who were directors immediately prior to such Change in Control), the Company shall be liable for indemnification of Indemnitee for amounts paid in settlement if the Independent Counsel has approved the settlement. The Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial award if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense of such action; the Company’s liability hereunder shall not be excused if participation in the Proceeding by the Company was barred by this Agreement. |
| (f) | The Indemnitee shall have the right to employ his own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of a Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a |
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| proceeding, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be advanced by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded in his/her sole discretion that there may be a conflict of interest between the Company and the Indemnitee. |
| (g) | Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power. Subject to Section 3, the Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial action if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense, conduct and/or settlement of such action. |
| 6 | Limitations on Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee: |
| (a) | in connection with any Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, unless (i) the Board authorized the Proceeding prior to its initiation or (ii) the Proceeding is to enforce indemnification rights under this Agreement, the Articles, applicable law or otherwise and either (A) Indemnitee is successful in such Proceeding in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of Expenses hereunder (in which case such indemnification or advancement shall be to the fullest extent permitted by this Agreement) or (B) the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his or her right to indemnification, Indemnitee is entitled to indemnity for such expenses (in which case such indemnification or advancement shall be to the extent provided by such court); |
| (b) | in connection with the Indemnitee preparing to serve or serving, prior to a Change in Control, as a witness in voluntary cooperation with any non-governmental or non-regulatory party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification may be provided by the Company if the Board finds it to be appropriate; |
| (c) | for which payment has actually been made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance policy; |
| (d) | for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Exchange Act or similar provisions of any foreign or United States federal, state or local statute or regulation; |
| (e) | for which the Indemnitee is indemnified and actually paid other than pursuant to this Agreement; |
| (f) | for conduct that is finally adjudged (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to have been caused by the Indemnitee’s dishonesty, willful default or fraud, including, without limitation, breach of the duty of loyalty, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper; |
| (g) | if a court of competent jurisdiction finally determines that such indemnification is unlawful (as to which all rights of appeal therefrom have been exhausted or lapsed). In this respect, the Company and the Indemnitee have been advised that the Securities and Exchange Commission (the “SEC”) takes the position that indemnification for liabilities arising under securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication; |
| (h) | in connection with the Indemnitee’s personal tax matters; |
| (i) | subject to the proviso in Section 6(a) hereof, in connection with any dispute or breach arising under any contract or similar obligation between the Company or any of its subsidiaries or affiliates and such Indemnitee; or |
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| (j) | in connection with any reimbursement made by Indemnitee to the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), Section 306 of the Sarbanes-Oxley Act or Section 954 of the Dodd–Frank Wall Street Reform and Consumer Protection Act and the rules promulgated by the SEC thereunder. |
| 7 | Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’ insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
| 8 | No Employment Rights. Nothing in this Agreement is intended to create in the Indemnitee any right to continued employment with the Company. |
| 9 | Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is a director and/or Chief Executive Officer of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee is or was a director and/or Chief Executive Officer of the Company or is or was serving in any other capacity referred to in this Section 9. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as a director and/or Chief Executive Officer of the Company or as an agent of another enterprise at the Company’s request. |
| 10 | Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Articles, any agreement, vote of shareholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office. |
| 11 | Other Indemnity Agreement. Other than this Agreement, the Company has not entered into as of the date hereof, and shall not enter into following the date hereof, any indemnification agreement or side letter or other similar agreement or arrangement (collectively, an “Indemnity Agreement”), or amend any existing Indemnity Agreement, with any existing or future director/executive officer of the Company that has the effect of establishing rights or otherwise benefiting such director/executive officer in a manner more favorable in any respect than the rights and benefits established in favor of the Indemnitee by this Agreement, unless, in each such case, the Indemnitee is offered the opportunity to receive the rights and benefits of such Indemnity Agreement. All Indemnity Agreements shall be in writing. |
| 12 | Assignment; Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party thereto without the prior written consent of the other party, except that the Company may, without such consent, assign all such rights and obligations to a successor in interest to the Company which assumes all obligations of the Company under this Agreement in a written agreement in form and substance satisfactory to the Indemnitee. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the parties hereto and the Company’s successors (including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, as well as the Indemnitee’s spouses, heirs, and personal and legal representatives. |
| 13 | Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights. |
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| 14 | Severability. Each and every section, sentence, term and provision of this Agreement is separate and distinct so that if any section, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, lawfulness or enforceability of any other section, sentence, term or provision hereof. To the extent required, any section, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. |
| 15 | Savings Clause. If this Agreement or any section, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable section, sentence, term or provision of this Agreement that has not been invalidated or (b) applicable law. |
| 16 | Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with Cayman Islands laws without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. |
| 17 | Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles, or by other agreements, including directors’ and officers’ liability insurance policies, of the Company. |
| 18 | Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. Delivery by electronic transmission to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. |
| 19 | Notices. Any notice required to be given under this Agreement shall be directed to the Company at CO Services Cayman Limited, P.O. Box 10008, Willow House, Cricket Square, Grand Cayman, KY1-1001, Cayman Islands (Attention of the Board), and to the Indemnitee at the address specified with the Indemnitee’s signature hereto or to such other address as the Indemnitee shall designate to the Company in writing. |
| 20 | Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern. |
| 21 | Additional Acts. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement. |
| 22 | Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. |
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| 23 | Electronic Transactions Act. Sections 8 and 19(3) of the Electronic Transactions Act (As Revised) shall not apply. |
| 24 | Third Party Rights. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act (As Revised), as amended, modified, re-enacted or replaced, to enforce any term of this Agreement. |
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IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as a deed on the date first written above.
| Executed and delivered as a deed NVNI GROUP LIMITED | ||
| By: | /s/ Pierre Schurmann | |
| Name: Pierre Schurmann | ||
| Office: Chief Executive Officer | ||
| Executed and delivered as a deed | ||
| INDEMNITEE | ||
| /s/ Pierre Schurmann | ||
| Name: Pierre Schurmann | ||
| Address: [***] | ||
| WITNESSED BY: | ||
| /s/ Camilla Carrapatoso | ||
| Name: Camilla Carrapatoso | ||
| Title: Investor Relations | ||
| Address: [***] | ||
Signature Page to Indemnification Agreement
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Exhibit 4.31
[***] Portions of this exhibit have been redacted in compliance with Regulation S-K Item 601(a)(6)
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made on September 29, 2023, by and between Nvni Group Limited, a Cayman Islands exempted company incorporated with limited liability (the “Company”), and Luiz Busnello (the “Indemnitee”), a director and Chief Operating Officer of the Company.
WHEREAS, the Indemnitee has agreed to serve as a director and Chief Operating Officer of the Company and in such capacity will render valuable services to the Company; and
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its Subsidiaries (as defined below) from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among publicly traded corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The amended and restated memorandum and articles of association of the Company (the “Articles”) provide for the indemnification of the officers and directors of the Company. The Articles expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, while the Articles provide for the indemnification of the officers and directors of the Company and the Articles provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve, or continue to serve, as a director and Chief Operating Officer of the Company, the Company and the Indemnitee hereby agree as follows:
| 1 | Definitions. As used in this Agreement: |
| (a) | A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events: |
| (i) | Acquisition of shares of the Company by a third party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing twenty-five percent (25%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors; |
| (ii) | Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board; |
| (iii) | Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; |
| (iv) | Liquidation. The approval by the shareholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and |
| (v) | Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. |
| (vi) | For purposes of this Section 2(b), the following terms have the following meanings: |
| (1) | “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended from time to time. |
| (2) | “Person” has the meaning as set forth in Section 13(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of shares of the Company. |
| (3) | “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the shareholders of the Company approving a merger of the Company with another entity. |
| (b) | The term “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee. |
| (c) | The term “Expenses” shall mean any expense, liability or loss, including, without limitation, damages, judgments, fines, penalties, settlements (if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, conditioned or delayed) and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations, liabilities, losses, taxes, any expense paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any taxes, interests, assessments or other charges imposed as a result of the actual or deemed receipt of any payment under this Agreement. |
| (d) | The term “Independent Legal Counsel” shall mean any attorney or firm of attorneys that is reasonably selected by the Board and approved by the Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed), so long as such firm is not presently representing and has not in the preceding five (5) years represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company in any matter material to any such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Articles, which became effective immediately after the Company’s initial public offering, applicable law or otherwise. |
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| (e) | The term “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, hearing or any other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), in which the Indemnitee was, is or will be involved as a party or otherwise, by reason of (i) the fact that the Indemnitee is or was a director (or a director appointee) or an executive officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, (ii) any actual or alleged act or omission or neglect or breach of duty, including, without limitation, any actual or alleged error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in any such capacity, or (iii) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Articles, applicable law or otherwise, in each case whether or not the Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. |
| (f) | The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director or an executive officer of the Company which imposes duties on, or involves services by, such director or executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company. |
| 2 | Indemnification. Subject to Section 6 below, the Company hereby agrees to hold harmless and indemnify the Indemnitee to the fullest extent permitted by Cayman Islands law in effect on the date hereof and as amended from time to time (“Law”). In furtherance of the foregoing indemnification and without limiting the generality thereof: |
| (a) | Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (b) | Proceedings Other than Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other than a Proceeding by or in the right of the Company) against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to |
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| which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (c) | Indemnification for Expenses of Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee, has prepared to serve or has served as a witness or is made to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith, in each case, to the maximum extent permitted by Law. |
| (d) | Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Proceedings, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled, in each case, to the maximum extent permitted by Law. |
| (e) | Mandatory Indemnification. Other than as provided in Section 6, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any Proceeding relating in whole or in part to a Proceeding or in defense of any issue or matter therein, Indemnitee shall be indemnified against all Expenses incurred in connection therewith. For purposes of this Agreement and without limiting the foregoing, if any action, suit or proceeding is disposed of, on the merits or otherwise (including a disposition without prejudice), without (i) the disposition being adverse to Indemnitee, (ii) an adjudication that Indemnitee was liable to the Company, (iii) a plea of guilty or nolo contendere by Indemnitee or (iv) an adjudication that Indemnitee is not entitled to the indemnification provided by this Agreement, Indemnitee shall be considered for the purposes hereof to have been wholly successful with respect thereto. |
| 3 | Contribution. If the indemnification provided in Section 2 above is unavailable to Indemnitee for any reason (other than those set forth in Section 6 below) in connection with a Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company, in lieu of indemnifying Indemnitee thereunder, shall, to the maximum extent permitted by Law, contribute to the amount of Expenses which are actually and reasonably incurred and paid or payable by the Indemnitee in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and the Indemnitee and/or (ii) the relative fault of the Company and such Indemnitee in connection with the transaction or events from which such Proceeding arose. The relative fault of the Company and the Indemnitee shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. |
| 4 | Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee (but in any event no later than thirty (30) days after such request) to the fullest extent permitted by Law; provided, however, that the Indemnitee shall set forth in such request reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding and an undertaking (which shall not require any security) in writing to repay any advances if it is ultimately determined as provided in subsection 5(b) of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement, the Articles, applicable law or otherwise. |
| 5 | Indemnification Procedure; Determination of Right to Indemnification. |
| (a) | Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify. |
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| (b) | The Indemnitee shall be conclusively presumed to be entitled to indemnification under this Agreement unless a determination is made that the Indemnitee is not entitled to indemnification under Law or this Agreement by one of the following two methods, which shall be at the election of the Indemnitee: (i) by a majority vote of the Board of a quorum consisting of Disinterested Directors or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, the Indemnitee so directs, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. |
| (c) | If (i) a determination is made that the Indemnitee is not entitled to indemnification under this Agreement or (ii) a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the Indemnitee is entitled to an adjudication in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct shall be a defense to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein. |
| (d) | If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall to the maximum extent permitted by Law pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings). |
| (e) | With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Company shall not be liable to indemnify Indemnitee under this Agreement or otherwise for any amounts paid in settlement of any Proceeding effected without the Company’s written consent, such consent not to be unreasonably withheld; provided, however, that if a Change in Control has occurred (other than a Change in Control approved by a majority of the directors on the Board who were directors immediately prior to such Change in Control), the Company shall be liable for indemnification of Indemnitee for amounts paid in settlement if the Independent Counsel has approved the settlement. The Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial award if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense of such action; the Company’s liability hereunder shall not be excused if participation in the Proceeding by the Company was barred by this Agreement. |
| (f) | The Indemnitee shall have the right to employ his own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense |
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| of a Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a proceeding, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be advanced by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded in his/her sole discretion that there may be a conflict of interest between the Company and the Indemnitee. |
| (g) | Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power. Subject to Section 3, the Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial action if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense, conduct and/or settlement of such action. |
| 6 | Limitations on Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee: |
| (a) | in connection with any Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, unless (i) the Board authorized the Proceeding prior to its initiation or (ii) the Proceeding is to enforce indemnification rights under this Agreement, the Articles, applicable law or otherwise and either (A) Indemnitee is successful in such Proceeding in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of Expenses hereunder (in which case such indemnification or advancement shall be to the fullest extent permitted by this Agreement) or (B) the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his or her right to indemnification, Indemnitee is entitled to indemnity for such expenses (in which case such indemnification or advancement shall be to the extent provided by such court); |
| (b) | in connection with the Indemnitee preparing to serve or serving, prior to a Change in Control, as a witness in voluntary cooperation with any non-governmental or non-regulatory party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification may be provided by the Company if the Board finds it to be appropriate; |
| (c) | for which payment has actually been made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance policy; |
| (d) | for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Exchange Act or similar provisions of any foreign or United States federal, state or local statute or regulation; |
| (e) | for which the Indemnitee is indemnified and actually paid other than pursuant to this Agreement; |
| (f) | for conduct that is finally adjudged (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to have been caused by the Indemnitee’s dishonesty, willful default or fraud, including, without limitation, breach of the duty of loyalty, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper; |
| (g) | if a court of competent jurisdiction finally determines that such indemnification is unlawful (as to which all rights of appeal therefrom have been exhausted or lapsed). In this respect, the Company and the Indemnitee have been advised that the Securities and Exchange Commission (the “SEC”) takes the position that indemnification for liabilities arising under securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication; |
| (h) | in connection with the Indemnitee’s personal tax matters; |
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| (i) | subject to the proviso in Section 6(a) hereof, in connection with any dispute or breach arising under any contract or similar obligation between the Company or any of its subsidiaries or affiliates and such Indemnitee; or |
| (j) | in connection with any reimbursement made by Indemnitee to the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), Section 306 of the Sarbanes-Oxley Act or Section 954 of the Dodd–Frank Wall Street Reform and Consumer Protection Act and the rules promulgated by the SEC thereunder. |
| 7 | Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’ insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
| 8 | No Employment Rights. Nothing in this Agreement is intended to create in the Indemnitee any right to continued employment with the Company. |
| 9 | Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is a director and/or Chief Operating Officer of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee is or was a director and/or Chief Operating Officer of the Company or is or was serving in any other capacity referred to in this Section 9. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as a director and/or Chief Operating Officer of the Company or as an agent of another enterprise at the Company’s request. |
| 10 | Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Articles, any agreement, vote of shareholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office. |
| 11 | Other Indemnity Agreement. Other than this Agreement, the Company has not entered into as of the date hereof, and shall not enter into following the date hereof, any indemnification agreement or side letter or other similar agreement or arrangement (collectively, an “Indemnity Agreement”), or amend any existing Indemnity Agreement, with any existing or future director/executive officer of the Company that has the effect of establishing rights or otherwise benefiting such director/executive officer in a manner more favorable in any respect than the rights and benefits established in favor of the Indemnitee by this Agreement, unless, in each such case, the Indemnitee is offered the opportunity to receive the rights and benefits of such Indemnity Agreement. All Indemnity Agreements shall be in writing. |
| 12 | Assignment; Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party thereto without the prior written consent of the other party, except that the Company may, without such consent, assign all such rights and obligations to a successor in interest to the Company which assumes all obligations of the Company under this Agreement in a written agreement in form and substance satisfactory to the Indemnitee. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the parties hereto and the Company’s successors (including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, as well as the Indemnitee’s spouses, heirs, and personal and legal representatives. |
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| 13 | Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights. |
| 14 | Severability. Each and every section, sentence, term and provision of this Agreement is separate and distinct so that if any section, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, lawfulness or enforceability of any other section, sentence, term or provision hereof. To the extent required, any section, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. |
| 15 | Savings Clause. If this Agreement or any section, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable section, sentence, term or provision of this Agreement that has not been invalidated or (b) applicable law. |
| 16 | Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with Cayman Islands laws without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. |
| 17 | Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles, or by other agreements, including directors’ and officers’ liability insurance policies, of the Company. |
| 18 | Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. Delivery by electronic transmission to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. |
| 19 | Notices. Any notice required to be given under this Agreement shall be directed to the Company at CO Services Cayman Limited, P.O. Box 10008, Willow House, Cricket Square, Grand Cayman, KY1-1001, Cayman Islands (Attention of the Board), and to the Indemnitee at the address specified with the Indemnitee’s signature hereto or to such other address as the Indemnitee shall designate to the Company in writing. |
| 20 | Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern. |
| 21 | Additional Acts. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement. |
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| 22 | Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. |
| 23 | Electronic Transactions Act. Sections 8 and 19(3) of the Electronic Transactions Act (As Revised) shall not apply. |
| 24 | Third Party Rights. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act (As Revised), as amended, modified, re-enacted or replaced, to enforce any term of this Agreement. |
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IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as a deed on the date first written above.
| Executed and delivered as a deed | ||
| NVNI GROUP LIMITED | ||
| By: | /s/ Pierre Schurmann | |
| Name: Pierre Schurmann | ||
| Office: Chief Executive Officer | ||
| Executed and delivered as a deed | ||
| INDEMNITEE | ||
| /s/ Luiz Busnello | ||
| Name: Luiz Busnello | ||
| Address: [***] | ||
| WITNESSED BY: | ||
| /s/ Camilla Carrapatoso | ||
| Name: Camilla Carrapatoso | ||
| Title: Investor Relations | ||
| Address: [***] | ||
Signature Page to Indemnification Agreement
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Exhibit 4.32
[***] Portions of this exhibit have been redacted in compliance with Regulation S-K Item 601(a)(6)
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made on September 29, 2023, by and between Nvni Group Limited, a Cayman Islands exempted company incorporated with limited liability (the “Company”), and Scott Klossner (the “Indemnitee”), a director and Chief Financial Officer of the Company.
WHEREAS, the Indemnitee has agreed to serve as a director and Chief Financial Officer of the Company and in such capacity will render valuable services to the Company; and
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its Subsidiaries (as defined below) from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among publicly traded corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The amended and restated memorandum and articles of association of the Company (the “Articles”) provide for the indemnification of the officers and directors of the Company. The Articles expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, while the Articles provide for the indemnification of the officers and directors of the Company and the Articles provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve, or continue to serve, as a director and Chief Financial Officer of the Company, the Company and the Indemnitee hereby agree as follows:
| 1 | Definitions. As used in this Agreement: |
| (a) | A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events: |
| (i) | Acquisition of shares of the Company by a third party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing twenty-five percent (25%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors; |
| (ii) | Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board; |
| (iii) | Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; |
| (iv) | Liquidation. The approval by the shareholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and |
| (v) | Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. |
| (vi) | For purposes of this Section 2(b), the following terms have the following meanings: |
| (1) | “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended from time to time. |
| (2) | “Person” has the meaning as set forth in Section 13(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of shares of the Company. |
| (3) | “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the shareholders of the Company approving a merger of the Company with another entity. |
| (b) | The term “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee. |
| (c) | The term “Expenses” shall mean any expense, liability or loss, including, without limitation, damages, judgments, fines, penalties, settlements (if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, conditioned or delayed) and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations, liabilities, losses, taxes, any expense paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any taxes, interests, assessments or other charges imposed as a result of the actual or deemed receipt of any payment under this Agreement. |
| (d) | The term “Independent Legal Counsel” shall mean any attorney or firm of attorneys that is reasonably selected by the Board and approved by the Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed), so long as such firm is not presently representing and has not in the preceding five (5) years represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company in any matter material to any such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Articles, which became effective immediately after the Company’s initial public offering, applicable law or otherwise. |
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| (e) | The term “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, hearing or any other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), in which the Indemnitee was, is or will be involved as a party or otherwise, by reason of (i) the fact that the Indemnitee is or was a director (or a director appointee) or an executive officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, (ii) any actual or alleged act or omission or neglect or breach of duty, including, without limitation, any actual or alleged error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in any such capacity, or (iii) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Articles, applicable law or otherwise, in each case whether or not the Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. |
| (f) | The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director or an executive officer of the Company which imposes duties on, or involves services by, such director or executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company. |
| 2 | Indemnification. Subject to Section 6 below, the Company hereby agrees to hold harmless and indemnify the Indemnitee to the fullest extent permitted by Cayman Islands law in effect on the date hereof and as amended from time to time (“Law”). In furtherance of the foregoing indemnification and without limiting the generality thereof: |
| (a) | Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (b) | Proceedings Other than Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other than a Proceeding by or in the right of the Company) against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to |
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| be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (c) | Indemnification for Expenses of Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee, has prepared to serve or has served as a witness or is made to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith, in each case, to the maximum extent permitted by Law. |
| (d) | Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Proceedings, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled, in each case, to the maximum extent permitted by Law. |
| (e) | Mandatory Indemnification. Other than as provided in Section 6, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any Proceeding relating in whole or in part to a Proceeding or in defense of any issue or matter therein, Indemnitee shall be indemnified against all Expenses incurred in connection therewith. For purposes of this Agreement and without limiting the foregoing, if any action, suit or proceeding is disposed of, on the merits or otherwise (including a disposition without prejudice), without (i) the disposition being adverse to Indemnitee, (ii) an adjudication that Indemnitee was liable to the Company, (iii) a plea of guilty or nolo contendere by Indemnitee or (iv) an adjudication that Indemnitee is not entitled to the indemnification provided by this Agreement, Indemnitee shall be considered for the purposes hereof to have been wholly successful with respect thereto. |
| 3 | Contribution. If the indemnification provided in Section 2 above is unavailable to Indemnitee for any reason (other than those set forth in Section 6 below) in connection with a Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company, in lieu of indemnifying Indemnitee thereunder, shall, to the maximum extent permitted by Law, contribute to the amount of Expenses which are actually and reasonably incurred and paid or payable by the Indemnitee in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and the Indemnitee and/or (ii) the relative fault of the Company and such Indemnitee in connection with the transaction or events from which such Proceeding arose. The relative fault of the Company and the Indemnitee shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. |
| 4 | Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee (but in any event no later than thirty (30) days after such request) to the fullest extent permitted by Law; provided, however, that the Indemnitee shall set forth in such request reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding and an undertaking (which shall not require any security) in writing to repay any advances if it is ultimately determined as provided in subsection 5(b) of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement, the Articles, applicable law or otherwise. |
| 5 | Indemnification Procedure; Determination of Right to Indemnification. |
| (a) | Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify. |
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| (b) | The Indemnitee shall be conclusively presumed to be entitled to indemnification under this Agreement unless a determination is made that the Indemnitee is not entitled to indemnification under Law or this Agreement by one of the following two methods, which shall be at the election of the Indemnitee: (i) by a majority vote of the Board of a quorum consisting of Disinterested Directors or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, the Indemnitee so directs, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. |
| (c) | If (i) a determination is made that the Indemnitee is not entitled to indemnification under this Agreement or (ii) a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the Indemnitee is entitled to an adjudication in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct shall be a defense to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein. |
| (d) | If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall to the maximum extent permitted by Law pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings). |
| (e) | With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Company shall not be liable to indemnify Indemnitee under this Agreement or otherwise for any amounts paid in settlement of any Proceeding effected without the Company’s written consent, such consent not to be unreasonably withheld; provided, however, that if a Change in Control has occurred (other than a Change in Control approved by a majority of the directors on the Board who were directors immediately prior to such Change in Control), the Company shall be liable for indemnification of Indemnitee for amounts paid in settlement if the Independent Counsel has approved the settlement. The Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial award if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense of such action; the Company’s liability hereunder shall not be excused if participation in the Proceeding by the Company was barred by this Agreement. |
| (f) | The Indemnitee shall have the right to employ his own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of a Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a |
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| proceeding, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be advanced by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded in his/her sole discretion that there may be a conflict of interest between the Company and the Indemnitee. |
| (g) | Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power. Subject to Section 3, the Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial action if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense, conduct and/or settlement of such action. |
| 6 | Limitations on Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee: |
| (a) | in connection with any Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, unless (i) the Board authorized the Proceeding prior to its initiation or (ii) the Proceeding is to enforce indemnification rights under this Agreement, the Articles, applicable law or otherwise and either (A) Indemnitee is successful in such Proceeding in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of Expenses hereunder (in which case such indemnification or advancement shall be to the fullest extent permitted by this Agreement) or (B) the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his or her right to indemnification, Indemnitee is entitled to indemnity for such expenses (in which case such indemnification or advancement shall be to the extent provided by such court); |
| (b) | in connection with the Indemnitee preparing to serve or serving, prior to a Change in Control, as a witness in voluntary cooperation with any non-governmental or non-regulatory party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification may be provided by the Company if the Board finds it to be appropriate; |
| (c) | for which payment has actually been made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance policy; |
| (d) | for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Exchange Act or similar provisions of any foreign or United States federal, state or local statute or regulation; |
| (e) | for which the Indemnitee is indemnified and actually paid other than pursuant to this Agreement; |
| (f) | for conduct that is finally adjudged (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to have been caused by the Indemnitee’s dishonesty, willful default or fraud, including, without limitation, breach of the duty of loyalty, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper; |
| (g) | if a court of competent jurisdiction finally determines that such indemnification is unlawful (as to which all rights of appeal therefrom have been exhausted or lapsed). In this respect, the Company and the Indemnitee have been advised that the Securities and Exchange Commission (the “SEC”) takes the position that indemnification for liabilities arising under securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication; |
| (h) | in connection with the Indemnitee’s personal tax matters; |
| (i) | subject to the proviso in Section 6(a) hereof, in connection with any dispute or breach arising under any contract or similar obligation between the Company or any of its subsidiaries or affiliates and such Indemnitee; or |
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| (j) | in connection with any reimbursement made by Indemnitee to the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), Section 306 of the Sarbanes-Oxley Act or Section 954 of the Dodd–Frank Wall Street Reform and Consumer Protection Act and the rules promulgated by the SEC thereunder. |
| 7 | Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’ insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
| 8 | No Employment Rights. Nothing in this Agreement is intended to create in the Indemnitee any right to continued employment with the Company. |
| 9 | Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is a director and/or Chief Financial Officer of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee is or was a director and/or Chief Financial Officer of the Company or is or was serving in any other capacity referred to in this Section 9. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as a director and/or Chief Financial Officer of the Company or as an agent of another enterprise at the Company’s request. |
| 10 | Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Articles, any agreement, vote of shareholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office. |
| 11 | Other Indemnity Agreement. Other than this Agreement, the Company has not entered into as of the date hereof, and shall not enter into following the date hereof, any indemnification agreement or side letter or other similar agreement or arrangement (collectively, an “Indemnity Agreement”), or amend any existing Indemnity Agreement, with any existing or future director/executive officer of the Company that has the effect of establishing rights or otherwise benefiting such director/executive officer in a manner more favorable in any respect than the rights and benefits established in favor of the Indemnitee by this Agreement, unless, in each such case, the Indemnitee is offered the opportunity to receive the rights and benefits of such Indemnity Agreement. All Indemnity Agreements shall be in writing. |
| 12 | Assignment; Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party thereto without the prior written consent of the other party, except that the Company may, without such consent, assign all such rights and obligations to a successor in interest to the Company which assumes all obligations of the Company under this Agreement in a written agreement in form and substance satisfactory to the Indemnitee. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the parties hereto and the Company’s successors (including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, as well as the Indemnitee’s spouses, heirs, and personal and legal representatives. |
| 13 | Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights. |
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| 14 | Severability. Each and every section, sentence, term and provision of this Agreement is separate and distinct so that if any section, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, lawfulness or enforceability of any other section, sentence, term or provision hereof. To the extent required, any section, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. |
| 15 | Savings Clause. If this Agreement or any section, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable section, sentence, term or provision of this Agreement that has not been invalidated or (b) applicable law. |
| 16 | Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with Cayman Islands laws without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. |
| 17 | Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles, or by other agreements, including directors’ and officers’ liability insurance policies, of the Company. |
| 18 | Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. Delivery by electronic transmission to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. |
| 19 | Notices. Any notice required to be given under this Agreement shall be directed to the Company at CO Services Cayman Limited, P.O. Box 10008, Willow House, Cricket Square, Grand Cayman, KY1-1001, Cayman Islands (Attention of the Board), and to the Indemnitee at the address specified with the Indemnitee’s signature hereto or to such other address as the Indemnitee shall designate to the Company in writing. |
| 20 | Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern. |
| 21 | Additional Acts. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement. |
| 22 | Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. |
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| 23 | Electronic Transactions Act. Sections 8 and 19(3) of the Electronic Transactions Act (As Revised) shall not apply. |
| 24 | Third Party Rights. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act (As Revised), as amended, modified, re-enacted or replaced, to enforce any term of this Agreement. |
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IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as a deed on the date first written above.
| Executed and delivered as a deed | ||
| NVNI GROUP LIMITED | ||
| By: | /s/ Pierre Schurmann | |
| Name: Pierre Schurmann | ||
| Office: Chief Executive Officer | ||
| Executed and delivered as a deed |
| INDEMNITEE |
| /s/ Scott Klossner |
| Name: Scott Klossner |
| Address: [***] |
| WITNESSED BY: |
| /s/ Camilla Carrapatoso |
| Name: Camilla Carrapatoso |
| Title: Investor Relations |
| Address: [***] |
Signature Page to Indemnification Agreement
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Exhibit 4.33
[***] Portions of this exhibit have been redacted in compliance with Regulation S-K Item 601(a)(6)
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made on September 29, 2023, by and between Nvni Group Limited, a Cayman Islands exempted company incorporated with limited liability (the “Company”), and Greg Warnock (the “Indemnitee”), a director of the Company.
WHEREAS, the Indemnitee has agreed to serve as a director of the Company and in such capacity will render valuable services to the Company; and
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its Subsidiaries (as defined below) from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among publicly traded corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The amended and restated memorandum and articles of association of the Company (the “Articles”) provide for the indemnification of the officers and directors of the Company. The Articles expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, while the Articles provide for the indemnification of the officers and directors of the Company and the Articles provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve, or continue to serve, as a director of the Company, the Company and the Indemnitee hereby agree as follows:
| 1 | Definitions. As used in this Agreement: |
| (a) | A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events: |
| (i) | Acquisition of shares of the Company by a third party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing twenty-five percent (25%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors; |
| (ii) | Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board; |
| (iii) | Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; |
| (iv) | Liquidation. The approval by the shareholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and |
| (v) | Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. |
| (vi) | For purposes of this Section 2(b), the following terms have the following meanings: |
| (1) | “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended from time to time. |
| (2) | “Person” has the meaning as set forth in Section 13(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of shares of the Company. |
| (3) | “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the shareholders of the Company approving a merger of the Company with another entity. |
| (b) | The term “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee. |
| (c) | The term “Expenses” shall mean any expense, liability or loss, including, without limitation, damages, judgments, fines, penalties, settlements (if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, conditioned or delayed) and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations, liabilities, losses, taxes, any expense paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any taxes, interests, assessments or other charges imposed as a result of the actual or deemed receipt of any payment under this Agreement. |
| (d) | The term “Independent Legal Counsel” shall mean any attorney or firm of attorneys that is reasonably selected by the Board and approved by the Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed), so long as such firm is not presently representing and has not in the preceding five (5) years represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company in any matter material to any such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Articles, which became effective immediately after the Company’s initial public offering, applicable law or otherwise. |
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| (e) | The term “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, hearing or any other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), in which the Indemnitee was, is or will be involved as a party or otherwise, by reason of (i) the fact that the Indemnitee is or was a director (or a director appointee) or an executive officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, (ii) any actual or alleged act or omission or neglect or breach of duty, including, without limitation, any actual or alleged error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in any such capacity, or (iii) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Articles, applicable law or otherwise, in each case whether or not the Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. |
| (f) | The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director or an executive officer of the Company which imposes duties on, or involves services by, such director or executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company. |
| 2 | Indemnification. Subject to Section 6 below, the Company hereby agrees to hold harmless and indemnify the Indemnitee to the fullest extent permitted by Cayman Islands law in effect on the date hereof and as amended from time to time (“Law”). In furtherance of the foregoing indemnification and without limiting the generality thereof: |
| (a) | Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (b) | Proceedings Other than Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other than a Proceeding by or in the right of the Company) against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to |
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| which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (c) | Indemnification for Expenses of Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee, has prepared to serve or has served as a witness or is made to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith, in each case, to the maximum extent permitted by Law. |
| (d) | Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Proceedings, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled, in each case, to the maximum extent permitted by Law. |
| (e) | Mandatory Indemnification. Other than as provided in Section 6, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any Proceeding relating in whole or in part to a Proceeding or in defense of any issue or matter therein, Indemnitee shall be indemnified against all Expenses incurred in connection therewith. For purposes of this Agreement and without limiting the foregoing, if any action, suit or proceeding is disposed of, on the merits or otherwise (including a disposition without prejudice), without (i) the disposition being adverse to Indemnitee, (ii) an adjudication that Indemnitee was liable to the Company, (iii) a plea of guilty or nolo contendere by Indemnitee or (iv) an adjudication that Indemnitee is not entitled to the indemnification provided by this Agreement, Indemnitee shall be considered for the purposes hereof to have been wholly successful with respect thereto. |
| 3 | Contribution. If the indemnification provided in Section 2 above is unavailable to Indemnitee for any reason (other than those set forth in Section 6 below) in connection with a Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company, in lieu of indemnifying Indemnitee thereunder, shall, to the maximum extent permitted by Law, contribute to the amount of Expenses which are actually and reasonably incurred and paid or payable by the Indemnitee in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and the Indemnitee and/or (ii) the relative fault of the Company and such Indemnitee in connection with the transaction or events from which such Proceeding arose. The relative fault of the Company and the Indemnitee shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. |
| 4 | Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee (but in any event no later than thirty (30) days after such request) to the fullest extent permitted by Law; provided, however, that the Indemnitee shall set forth in such request reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding and an undertaking (which shall not require any security) in writing to repay any advances if it is ultimately determined as provided in subsection 5(b) of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement, the Articles, applicable law or otherwise. |
| 5 | Indemnification Procedure; Determination of Right to Indemnification. |
| (a) | Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify. |
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| (b) | The Indemnitee shall be conclusively presumed to be entitled to indemnification under this Agreement unless a determination is made that the Indemnitee is not entitled to indemnification under Law or this Agreement by one of the following two methods, which shall be at the election of the Indemnitee: (i) by a majority vote of the Board of a quorum consisting of Disinterested Directors or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, the Indemnitee so directs, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. |
| (c) | If (i) a determination is made that the Indemnitee is not entitled to indemnification under this Agreement or (ii) a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the Indemnitee is entitled to an adjudication in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct shall be a defense to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein. |
| (d) | If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall to the maximum extent permitted by Law pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings). |
| (e) | With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Company shall not be liable to indemnify Indemnitee under this Agreement or otherwise for any amounts paid in settlement of any Proceeding effected without the Company’s written consent, such consent not to be unreasonably withheld; provided, however, that if a Change in Control has occurred (other than a Change in Control approved by a majority of the directors on the Board who were directors immediately prior to such Change in Control), the Company shall be liable for indemnification of Indemnitee for amounts paid in settlement if the Independent Counsel has approved the settlement. The Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial award if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense of such action; the Company’s liability hereunder shall not be excused if participation in the Proceeding by the Company was barred by this Agreement. |
| (f) | The Indemnitee shall have the right to employ his own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense |
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| of a Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a proceeding, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be advanced by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded in his/her sole discretion that there may be a conflict of interest between the Company and the Indemnitee. |
| (g) | Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power. Subject to Section 3, the Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial action if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense, conduct and/or settlement of such action. |
| 6 | Limitations on Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee: |
| (a) | in connection with any Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, unless (i) the Board authorized the Proceeding prior to its initiation or (ii) the Proceeding is to enforce indemnification rights under this Agreement, the Articles, applicable law or otherwise and either (A) Indemnitee is successful in such Proceeding in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of Expenses hereunder (in which case such indemnification or advancement shall be to the fullest extent permitted by this Agreement) or (B) the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his or her right to indemnification, Indemnitee is entitled to indemnity for such expenses (in which case such indemnification or advancement shall be to the extent provided by such court); |
| (b) | in connection with the Indemnitee preparing to serve or serving, prior to a Change in Control, as a witness in voluntary cooperation with any non-governmental or non-regulatory party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification may be provided by the Company if the Board finds it to be appropriate; |
| (c) | for which payment has actually been made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance policy; |
| (d) | for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Exchange Act or similar provisions of any foreign or United States federal, state or local statute or regulation; |
| (e) | for which the Indemnitee is indemnified and actually paid other than pursuant to this Agreement; |
| (f) | for conduct that is finally adjudged (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to have been caused by the Indemnitee’s dishonesty, willful default or fraud, including, without limitation, breach of the duty of loyalty, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper; |
| (g) | if a court of competent jurisdiction finally determines that such indemnification is unlawful (as to which all rights of appeal therefrom have been exhausted or lapsed). In this respect, the Company and the Indemnitee have been advised that the Securities and Exchange Commission (the “SEC”) takes the position that indemnification for liabilities arising under securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication; |
| (h) | in connection with the Indemnitee’s personal tax matters; |
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| (i) | subject to the proviso in Section 6(a) hereof, in connection with any dispute or breach arising under any contract or similar obligation between the Company or any of its subsidiaries or affiliates and such Indemnitee; or |
| (j) | in connection with any reimbursement made by Indemnitee to the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), Section 306 of the Sarbanes-Oxley Act or Section 954 of the Dodd–Frank Wall Street Reform and Consumer Protection Act and the rules promulgated by the SEC thereunder. |
| 7 | Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’ insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
| 8 | No Employment Rights. Nothing in this Agreement is intended to create in the Indemnitee any right to continued employment with the Company. |
| 9 | Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is a director of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee is or was a director of the Company or is or was serving in any other capacity referred to in this Section 9. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as a director of the Company or as an agent of another enterprise at the Company’s request. |
| 10 | Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Articles, any agreement, vote of shareholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office. |
| 11 | Other Indemnity Agreement. Other than this Agreement, the Company has not entered into as of the date hereof, and shall not enter into following the date hereof, any indemnification agreement or side letter or other similar agreement or arrangement (collectively, an “Indemnity Agreement”), or amend any existing Indemnity Agreement, with any existing or future director/executive officer of the Company that has the effect of establishing rights or otherwise benefiting such director/executive officer in a manner more favorable in any respect than the rights and benefits established in favor of the Indemnitee by this Agreement, unless, in each such case, the Indemnitee is offered the opportunity to receive the rights and benefits of such Indemnity Agreement. All Indemnity Agreements shall be in writing. |
| 12 | Assignment; Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party thereto without the prior written consent of the other party, except that the Company may, without such consent, assign all such rights and obligations to a successor in interest to the Company which assumes all obligations of the Company under this Agreement in a written agreement in form and substance satisfactory to the Indemnitee. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the parties hereto and the Company’s successors (including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, as well as the Indemnitee’s spouses, heirs, and personal and legal representatives. |
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| 13 | Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights. |
| 14 | Severability. Each and every section, sentence, term and provision of this Agreement is separate and distinct so that if any section, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, lawfulness or enforceability of any other section, sentence, term or provision hereof. To the extent required, any section, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. |
| 15 | Savings Clause. If this Agreement or any section, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable section, sentence, term or provision of this Agreement that has not been invalidated or (b) applicable law. |
| 16 | Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with Cayman Islands laws without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. |
| 17 | Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles, or by other agreements, including directors’ and officers’ liability insurance policies, of the Company. |
| 18 | Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. Delivery by electronic transmission to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. |
| 19 | Notices. Any notice required to be given under this Agreement shall be directed to the Company at CO Services Cayman Limited, P.O. Box 10008, Willow House, Cricket Square, Grand Cayman, KY1-1001, Cayman Islands (Attention of the Board), and to the Indemnitee at the address specified with the Indemnitee’s signature hereto or to such other address as the Indemnitee shall designate to the Company in writing. |
| 20 | Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern. |
| 21 | Additional Acts. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement. |
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| 22 | Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. |
| 23 | Electronic Transactions Act. Sections 8 and 19(3) of the Electronic Transactions Act (As Revised) shall not apply. |
| 24 | Third Party Rights. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act (As Revised), as amended, modified, re-enacted or replaced, to enforce any term of this Agreement. |
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IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as a deed on the date first written above.
| Executed and delivered as a deed NVNI GROUP LIMITED | ||
| By: | /s/ Pierre Schurmann | |
| Name: Pierre Schurmann | ||
| Office: Chief Executive Officer | ||
| Executed and delivered as a deed INDEMNITEE | ||
| /s/ Greg Warnock | ||
| Name: Greg Warnock | ||
| Address: [***] | ||
| WITNESSED BY: | ||
| /s/ Camilla Carrapatoso | ||
| Name: Camilla Carrapatoso | ||
| Title: Investor Relations | ||
| Address: [***] | ||
Signature Page to Indemnification Agreement
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Exhibit 4.34
[***] Portions of this exhibit have been redacted in compliance with Regulation S-K Item 601(a)(6)
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made on September 29, 2023, by and between Nvni Group Limited, a Cayman Islands exempted company incorporated with limited liability (the “Company”), and Marcello Gonçalves (the “Indemnitee”), a director of the Company.
WHEREAS, the Indemnitee has agreed to serve as a director of the Company and in such capacity will render valuable services to the Company; and
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its Subsidiaries (as defined below) from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among publicly traded corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The amended and restated memorandum and articles of association of the Company (the “Articles”) provide for the indemnification of the officers and directors of the Company. The Articles expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, while the Articles provide for the indemnification of the officers and directors of the Company and the Articles provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve, or continue to serve, as a director of the Company, the Company and the Indemnitee hereby agree as follows:
| 1 | Definitions. As used in this Agreement: |
| (a) | A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events: |
| (i) | Acquisition of shares of the Company by a third party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing twenty-five percent (25%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors; |
| (ii) | Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board; |
| (iii) | Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; |
| (iv) | Liquidation. The approval by the shareholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and |
| (v) | Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. |
| (vi) | For purposes of this Section 2(b), the following terms have the following meanings: |
| (1) | “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended from time to time. |
| (2) | “Person” has the meaning as set forth in Section 13(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of shares of the Company. |
| (3) | “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the shareholders of the Company approving a merger of the Company with another entity. |
| (b) | The term “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee. |
| (c) | The term “Expenses” shall mean any expense, liability or loss, including, without limitation, damages, judgments, fines, penalties, settlements (if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, conditioned or delayed) and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations, liabilities, losses, taxes, any expense paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any taxes, interests, assessments or other charges imposed as a result of the actual or deemed receipt of any payment under this Agreement. |
| (d) | The term “Independent Legal Counsel” shall mean any attorney or firm of attorneys that is reasonably selected by the Board and approved by the Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed), so long as such firm is not presently representing and has not in the preceding five (5) years represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company in any matter material to any such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Articles, which became effective immediately after the Company’s initial public offering, applicable law or otherwise. |
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| (e) | The term “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, hearing or any other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), in which the Indemnitee was, is or will be involved as a party or otherwise, by reason of (i) the fact that the Indemnitee is or was a director (or a director appointee) or an executive officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, (ii) any actual or alleged act or omission or neglect or breach of duty, including, without limitation, any actual or alleged error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in any such capacity, or (iii) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Articles, applicable law or otherwise, in each case whether or not the Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. |
| (f) | The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director or an executive officer of the Company which imposes duties on, or involves services by, such director or executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company. |
| 2 | Indemnification. Subject to Section 6 below, the Company hereby agrees to hold harmless and indemnify the Indemnitee to the fullest extent permitted by Cayman Islands law in effect on the date hereof and as amended from time to time (“Law”). In furtherance of the foregoing indemnification and without limiting the generality thereof: |
| (a) | Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (b) | Proceedings Other than Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other than a Proceeding by or in the right of the Company) against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to |
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| be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (c) | Indemnification for Expenses of Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee, has prepared to serve or has served as a witness or is made to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith, in each case, to the maximum extent permitted by Law. |
| (d) | Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Proceedings, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled, in each case, to the maximum extent permitted by Law. |
| (e) | Mandatory Indemnification. Other than as provided in Section 6, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any Proceeding relating in whole or in part to a Proceeding or in defense of any issue or matter therein, Indemnitee shall be indemnified against all Expenses incurred in connection therewith. For purposes of this Agreement and without limiting the foregoing, if any action, suit or proceeding is disposed of, on the merits or otherwise (including a disposition without prejudice), without (i) the disposition being adverse to Indemnitee, (ii) an adjudication that Indemnitee was liable to the Company, (iii) a plea of guilty or nolo contendere by Indemnitee or (iv) an adjudication that Indemnitee is not entitled to the indemnification provided by this Agreement, Indemnitee shall be considered for the purposes hereof to have been wholly successful with respect thereto. |
| 3 | Contribution. If the indemnification provided in Section 2 above is unavailable to Indemnitee for any reason (other than those set forth in Section 6 below) in connection with a Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company, in lieu of indemnifying Indemnitee thereunder, shall, to the maximum extent permitted by Law, contribute to the amount of Expenses which are actually and reasonably incurred and paid or payable by the Indemnitee in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and the Indemnitee and/or (ii) the relative fault of the Company and such Indemnitee in connection with the transaction or events from which such Proceeding arose. The relative fault of the Company and the Indemnitee shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. |
| 4 | Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee (but in any event no later than thirty (30) days after such request) to the fullest extent permitted by Law; provided, however, that the Indemnitee shall set forth in such request reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding and an undertaking (which shall not require any security) in writing to repay any advances if it is ultimately determined as provided in subsection 5(b) of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement, the Articles, applicable law or otherwise. |
| 5 | Indemnification Procedure; Determination of Right to Indemnification. |
| (a) | Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify. |
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| (b) | The Indemnitee shall be conclusively presumed to be entitled to indemnification under this Agreement unless a determination is made that the Indemnitee is not entitled to indemnification under Law or this Agreement by one of the following two methods, which shall be at the election of the Indemnitee: (i) by a majority vote of the Board of a quorum consisting of Disinterested Directors or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, the Indemnitee so directs, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. |
| (c) | If (i) a determination is made that the Indemnitee is not entitled to indemnification under this Agreement or (ii) a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the Indemnitee is entitled to an adjudication in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct shall be a defense to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein. |
| (d) | If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall to the maximum extent permitted by Law pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings). |
| (e) | With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Company shall not be liable to indemnify Indemnitee under this Agreement or otherwise for any amounts paid in settlement of any Proceeding effected without the Company’s written consent, such consent not to be unreasonably withheld; provided, however, that if a Change in Control has occurred (other than a Change in Control approved by a majority of the directors on the Board who were directors immediately prior to such Change in Control), the Company shall be liable for indemnification of Indemnitee for amounts paid in settlement if the Independent Counsel has approved the settlement. The Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial award if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense of such action; the Company’s liability hereunder shall not be excused if participation in the Proceeding by the Company was barred by this Agreement. |
| (f) | The Indemnitee shall have the right to employ his own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of a Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a |
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| proceeding, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be advanced by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded in his/her sole discretion that there may be a conflict of interest between the Company and the Indemnitee. |
| (g) | Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power. Subject to Section 3, the Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial action if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense, conduct and/or settlement of such action. |
| 6 | Limitations on Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee: |
| (a) | in connection with any Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, unless (i) the Board authorized the Proceeding prior to its initiation or (ii) the Proceeding is to enforce indemnification rights under this Agreement, the Articles, applicable law or otherwise and either (A) Indemnitee is successful in such Proceeding in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of Expenses hereunder (in which case such indemnification or advancement shall be to the fullest extent permitted by this Agreement) or (B) the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his or her right to indemnification, Indemnitee is entitled to indemnity for such expenses (in which case such indemnification or advancement shall be to the extent provided by such court); |
| (b) | in connection with the Indemnitee preparing to serve or serving, prior to a Change in Control, as a witness in voluntary cooperation with any non-governmental or non-regulatory party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification may be provided by the Company if the Board finds it to be appropriate; |
| (c) | for which payment has actually been made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance policy; |
| (d) | for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Exchange Act or similar provisions of any foreign or United States federal, state or local statute or regulation; |
| (e) | for which the Indemnitee is indemnified and actually paid other than pursuant to this Agreement; |
| (f) | for conduct that is finally adjudged (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to have been caused by the Indemnitee’s dishonesty, willful default or fraud, including, without limitation, breach of the duty of loyalty, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper; |
| (g) | if a court of competent jurisdiction finally determines that such indemnification is unlawful (as to which all rights of appeal therefrom have been exhausted or lapsed). In this respect, the Company and the Indemnitee have been advised that the Securities and Exchange Commission (the “SEC”) takes the position that indemnification for liabilities arising under securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication; |
| (h) | in connection with the Indemnitee’s personal tax matters; |
| (i) | subject to the proviso in Section 6(a) hereof, in connection with any dispute or breach arising under any contract or similar obligation between the Company or any of its subsidiaries or affiliates and such Indemnitee; or |
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| (j) | in connection with any reimbursement made by Indemnitee to the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), Section 306 of the Sarbanes-Oxley Act or Section 954 of the Dodd–Frank Wall Street Reform and Consumer Protection Act and the rules promulgated by the SEC thereunder. |
| 7 | Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’ insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
| 8 | No Employment Rights. Nothing in this Agreement is intended to create in the Indemnitee any right to continued employment with the Company. |
| 9 | Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is a director of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee is or was a director of the Company or is or was serving in any other capacity referred to in this Section 9. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as a director of the Company or as an agent of another enterprise at the Company’s request. |
| 10 | Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Articles, any agreement, vote of shareholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office. |
| 11 | Other Indemnity Agreement. Other than this Agreement, the Company has not entered into as of the date hereof, and shall not enter into following the date hereof, any indemnification agreement or side letter or other similar agreement or arrangement (collectively, an “Indemnity Agreement”), or amend any existing Indemnity Agreement, with any existing or future director/executive officer of the Company that has the effect of establishing rights or otherwise benefiting such director/executive officer in a manner more favorable in any respect than the rights and benefits established in favor of the Indemnitee by this Agreement, unless, in each such case, the Indemnitee is offered the opportunity to receive the rights and benefits of such Indemnity Agreement. All Indemnity Agreements shall be in writing. |
| 12 | Assignment; Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party thereto without the prior written consent of the other party, except that the Company may, without such consent, assign all such rights and obligations to a successor in interest to the Company which assumes all obligations of the Company under this Agreement in a written agreement in form and substance satisfactory to the Indemnitee. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the parties hereto and the Company’s successors (including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, as well as the Indemnitee’s spouses, heirs, and personal and legal representatives. |
| 13 | Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights. |
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| 14 | Severability. Each and every section, sentence, term and provision of this Agreement is separate and distinct so that if any section, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, lawfulness or enforceability of any other section, sentence, term or provision hereof. To the extent required, any section, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. |
| 15 | Savings Clause. If this Agreement or any section, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable section, sentence, term or provision of this Agreement that has not been invalidated or (b) applicable law. |
| 16 | Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with Cayman Islands laws without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. |
| 17 | Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles, or by other agreements, including directors’ and officers’ liability insurance policies, of the Company. |
| 18 | Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. Delivery by electronic transmission to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. |
| 19 | Notices. Any notice required to be given under this Agreement shall be directed to the Company at CO Services Cayman Limited, P.O. Box 10008, Willow House, Cricket Square, Grand Cayman, KY1-1001, Cayman Islands (Attention of the Board), and to the Indemnitee at the address specified with the Indemnitee’s signature hereto or to such other address as the Indemnitee shall designate to the Company in writing. |
| 20 | Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern. |
| 21 | Additional Acts. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement. |
| 22 | Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. |
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| 23 | Electronic Transactions Act. Sections 8 and 19(3) of the Electronic Transactions Act (As Revised) shall not apply. |
| 24 | Third Party Rights. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act (As Revised), as amended, modified, re-enacted or replaced, to enforce any term of this Agreement. |
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IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as a deed on the date first written above.
| Executed and delivered as a deed | ||
| NVNI GROUP LIMITED | ||
| By: | /s/ Pierre Schurmann | |
| Name: Pierre Schurmann | ||
| Office: Chief Executive Officer | ||
| Executed and delivered as a deed |
| INDEMNITEE |
| /s/ Marcello Gonçalves |
| Name: Marcello Gonçalves |
| Address: [***] |
| WITNESSED BY: |
| /s/ Camilla Carrapatoso |
| Name: Camilla Carrapatoso |
| Title: Investor Relations |
| Address: [***] |
Signature Page to Indemnification Agreement
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Exhibit 4.35
[***] Portions of this exhibit have been redacted in compliance with Regulation S-K Item 601(a)(6)
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made on September 29, 2023, by and between Nvni Group Limited, a Cayman Islands exempted company incorporated with limited liability (the “Company”), and Roberto Sahade (the “Indemnitee”), a director of the Company.
WHEREAS, the Indemnitee has agreed to serve as a director of the Company and in such capacity will render valuable services to the Company; and
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its Subsidiaries (as defined below) from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among publicly traded corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The amended and restated memorandum and articles of association of the Company (the “Articles”) provide for the indemnification of the officers and directors of the Company. The Articles expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, while the Articles provide for the indemnification of the officers and directors of the Company and the Articles provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve, or continue to serve, as a director of the Company, the Company and the Indemnitee hereby agree as follows:
| 1 | Definitions. As used in this Agreement: |
| (a) | A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events: |
| (i) | Acquisition of shares of the Company by a third party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing twenty-five percent (25%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors; |
| (ii) | Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board; |
| (iii) | Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; |
| (iv) | Liquidation. The approval by the shareholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and |
| (v) | Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. |
| (vi) | For purposes of this Section 2(b), the following terms have the following meanings: |
| (1) | “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended from time to time. |
| (2) | “Person” has the meaning as set forth in Section 13(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of shares of the Company. |
| (3) | “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the shareholders of the Company approving a merger of the Company with another entity. |
| (b) | The term “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee. |
| (c) | The term “Expenses” shall mean any expense, liability or loss, including, without limitation, damages, judgments, fines, penalties, settlements (if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, conditioned or delayed) and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations, liabilities, losses, taxes, any expense paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any taxes, interests, assessments or other charges imposed as a result of the actual or deemed receipt of any payment under this Agreement. |
| (d) | The term “Independent Legal Counsel” shall mean any attorney or firm of attorneys that is reasonably selected by the Board and approved by the Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed), so long as such firm is not presently representing and has not in the preceding five (5) years represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company in any matter material to any such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Articles, which became effective immediately after the Company’s initial public offering, applicable law or otherwise. |
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| (e) | The term “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, hearing or any other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), in which the Indemnitee was, is or will be involved as a party or otherwise, by reason of (i) the fact that the Indemnitee is or was a director (or a director appointee) or an executive officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, (ii) any actual or alleged act or omission or neglect or breach of duty, including, without limitation, any actual or alleged error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in any such capacity, or (iii) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Articles, applicable law or otherwise, in each case whether or not the Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. |
| (f) | The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director or an executive officer of the Company which imposes duties on, or involves services by, such director or executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company. |
| 2 | Indemnification. Subject to Section 6 below, the Company hereby agrees to hold harmless and indemnify the Indemnitee to the fullest extent permitted by Cayman Islands law in effect on the date hereof and as amended from time to time (“Law”). In furtherance of the foregoing indemnification and without limiting the generality thereof: |
| (a) | Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (b) | Proceedings Other than Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other than a Proceeding by or in the right of the Company) against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to |
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| be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (c) | Indemnification for Expenses of Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee, has prepared to serve or has served as a witness or is made to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith, in each case, to the maximum extent permitted by Law. |
| (d) | Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Proceedings, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled, in each case, to the maximum extent permitted by Law. |
| (e) | Mandatory Indemnification. Other than as provided in Section 6, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any Proceeding relating in whole or in part to a Proceeding or in defense of any issue or matter therein, Indemnitee shall be indemnified against all Expenses incurred in connection therewith. For purposes of this Agreement and without limiting the foregoing, if any action, suit or proceeding is disposed of, on the merits or otherwise (including a disposition without prejudice), without (i) the disposition being adverse to Indemnitee, (ii) an adjudication that Indemnitee was liable to the Company, (iii) a plea of guilty or nolo contendere by Indemnitee or (iv) an adjudication that Indemnitee is not entitled to the indemnification provided by this Agreement, Indemnitee shall be considered for the purposes hereof to have been wholly successful with respect thereto. |
| 3 | Contribution. If the indemnification provided in Section 2 above is unavailable to Indemnitee for any reason (other than those set forth in Section 6 below) in connection with a Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company, in lieu of indemnifying Indemnitee thereunder, shall, to the maximum extent permitted by Law, contribute to the amount of Expenses which are actually and reasonably incurred and paid or payable by the Indemnitee in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and the Indemnitee and/or (ii) the relative fault of the Company and such Indemnitee in connection with the transaction or events from which such Proceeding arose. The relative fault of the Company and the Indemnitee shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. |
| 4 | Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee (but in any event no later than thirty (30) days after such request) to the fullest extent permitted by Law; provided, however, that the Indemnitee shall set forth in such request reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding and an undertaking (which shall not require any security) in writing to repay any advances if it is ultimately determined as provided in subsection 5(b) of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement, the Articles, applicable law or otherwise. |
| 5 | Indemnification Procedure; Determination of Right to Indemnification. |
| (a) | Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify. |
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| (b) | The Indemnitee shall be conclusively presumed to be entitled to indemnification under this Agreement unless a determination is made that the Indemnitee is not entitled to indemnification under Law or this Agreement by one of the following two methods, which shall be at the election of the Indemnitee: (i) by a majority vote of the Board of a quorum consisting of Disinterested Directors or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, the Indemnitee so directs, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. |
| (c) | If (i) a determination is made that the Indemnitee is not entitled to indemnification under this Agreement or (ii) a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the Indemnitee is entitled to an adjudication in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct shall be a defense to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein. |
| (d) | If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall to the maximum extent permitted by Law pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings). |
| (e) | With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Company shall not be liable to indemnify Indemnitee under this Agreement or otherwise for any amounts paid in settlement of any Proceeding effected without the Company’s written consent, such consent not to be unreasonably withheld; provided, however, that if a Change in Control has occurred (other than a Change in Control approved by a majority of the directors on the Board who were directors immediately prior to such Change in Control), the Company shall be liable for indemnification of Indemnitee for amounts paid in settlement if the Independent Counsel has approved the settlement. The Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial award if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense of such action; the Company’s liability hereunder shall not be excused if participation in the Proceeding by the Company was barred by this Agreement. |
| (f) | The Indemnitee shall have the right to employ his own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of a Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a |
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| proceeding, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be advanced by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded in his/her sole discretion that there may be a conflict of interest between the Company and the Indemnitee. |
| (g) | Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power. Subject to Section 3, the Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial action if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense, conduct and/or settlement of such action. |
| 6 | Limitations on Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee: |
| (a) | in connection with any Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, unless (i) the Board authorized the Proceeding prior to its initiation or (ii) the Proceeding is to enforce indemnification rights under this Agreement, the Articles, applicable law or otherwise and either (A) Indemnitee is successful in such Proceeding in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of Expenses hereunder (in which case such indemnification or advancement shall be to the fullest extent permitted by this Agreement) or (B) the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his or her right to indemnification, Indemnitee is entitled to indemnity for such expenses (in which case such indemnification or advancement shall be to the extent provided by such court); |
| (b) | in connection with the Indemnitee preparing to serve or serving, prior to a Change in Control, as a witness in voluntary cooperation with any non-governmental or non-regulatory party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification may be provided by the Company if the Board finds it to be appropriate; |
| (c) | for which payment has actually been made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance policy; |
| (d) | for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Exchange Act or similar provisions of any foreign or United States federal, state or local statute or regulation; |
| (e) | for which the Indemnitee is indemnified and actually paid other than pursuant to this Agreement; |
| (f) | for conduct that is finally adjudged (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to have been caused by the Indemnitee’s dishonesty, willful default or fraud, including, without limitation, breach of the duty of loyalty, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper; |
| (g) | if a court of competent jurisdiction finally determines that such indemnification is unlawful (as to which all rights of appeal therefrom have been exhausted or lapsed). In this respect, the Company and the Indemnitee have been advised that the Securities and Exchange Commission (the “SEC”) takes the position that indemnification for liabilities arising under securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication; |
| (h) | in connection with the Indemnitee’s personal tax matters; |
| (i) | subject to the proviso in Section 6(a) hereof, in connection with any dispute or breach arising under any contract or similar obligation between the Company or any of its subsidiaries or affiliates and such Indemnitee; or |
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| (j) | in connection with any reimbursement made by Indemnitee to the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), Section 306 of the Sarbanes-Oxley Act or Section 954 of the Dodd–Frank Wall Street Reform and Consumer Protection Act and the rules promulgated by the SEC thereunder. |
| 7 | Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’ insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
| 8 | No Employment Rights. Nothing in this Agreement is intended to create in the Indemnitee any right to continued employment with the Company. |
| 9 | Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is a director of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee is or was a director of the Company or is or was serving in any other capacity referred to in this Section 9. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as a director of the Company or as an agent of another enterprise at the Company’s request. |
| 10 | Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Articles, any agreement, vote of shareholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office. |
| 11 | Other Indemnity Agreement. Other than this Agreement, the Company has not entered into as of the date hereof, and shall not enter into following the date hereof, any indemnification agreement or side letter or other similar agreement or arrangement (collectively, an “Indemnity Agreement”), or amend any existing Indemnity Agreement, with any existing or future director/executive officer of the Company that has the effect of establishing rights or otherwise benefiting such director/executive officer in a manner more favorable in any respect than the rights and benefits established in favor of the Indemnitee by this Agreement, unless, in each such case, the Indemnitee is offered the opportunity to receive the rights and benefits of such Indemnity Agreement. All Indemnity Agreements shall be in writing. |
| 12 | Assignment; Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party thereto without the prior written consent of the other party, except that the Company may, without such consent, assign all such rights and obligations to a successor in interest to the Company which assumes all obligations of the Company under this Agreement in a written agreement in form and substance satisfactory to the Indemnitee. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the parties hereto and the Company’s successors (including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, as well as the Indemnitee’s spouses, heirs, and personal and legal representatives. |
| 13 | Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights. |
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| 14 | Severability. Each and every section, sentence, term and provision of this Agreement is separate and distinct so that if any section, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, lawfulness or enforceability of any other section, sentence, term or provision hereof. To the extent required, any section, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. |
| 15 | Savings Clause. If this Agreement or any section, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable section, sentence, term or provision of this Agreement that has not been invalidated or (b) applicable law. |
| 16 | Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with Cayman Islands laws without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. |
| 17 | Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles, or by other agreements, including directors’ and officers’ liability insurance policies, of the Company. |
| 18 | Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. Delivery by electronic transmission to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. |
| 19 | Notices. Any notice required to be given under this Agreement shall be directed to the Company at CO Services Cayman Limited, P.O. Box 10008, Willow House, Cricket Square, Grand Cayman, KY1-1001, Cayman Islands (Attention of the Board), and to the Indemnitee at the address specified with the Indemnitee’s signature hereto or to such other address as the Indemnitee shall designate to the Company in writing. |
| 20 | Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern. |
| 21 | Additional Acts. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement. |
| 22 | Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. |
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| 23 | Electronic Transactions Act. Sections 8 and 19(3) of the Electronic Transactions Act (As Revised) shall not apply. |
| 24 | Third Party Rights. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act (As Revised), as amended, modified, re-enacted or replaced, to enforce any term of this Agreement. |
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IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as a deed on the date first written above.
| Executed and delivered as a deed | ||
| NVNI GROUP LIMITED | ||
| By: | /s/ Pierre Schurmann | |
| Name: Pierre Schurmann | ||
| Office: Chief Executive Officer | ||
| Executed and delivered as a deed | ||
| INDEMNITEE | ||
| /s/ Roberto Sahade | ||
| Name: Roberto Sahade | ||
| Address: [***] | ||
| WITNESSED BY: | ||
| /s/ Camilla Carrapatoso | ||
| Name: Camilla Carrapatoso | ||
| Title: Investor Relations | ||
| Address: [***] | ||
Signature Page to Indemnification Agreement
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Exhibit 4.36
[***] Portions of this exhibit have been redacted in compliance with Regulation S-K Item 601(a)(6)
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made on September 29, 2023, by and between Nvni Group Limited, a Cayman Islands exempted company incorporated with limited liability (the “Company”), and Randy Millian (the “Indemnitee”), a director of the Company.
WHEREAS, the Indemnitee has agreed to serve as a director of the Company and in such capacity will render valuable services to the Company; and
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its Subsidiaries (as defined below) from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among publicly traded corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The amended and restated memorandum and articles of association of the Company (the “Articles”) provide for the indemnification of the officers and directors of the Company. The Articles expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, while the Articles provide for the indemnification of the officers and directors of the Company and the Articles provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
NOW, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve, or continue to serve, as a director of the Company, the Company and the Indemnitee hereby agree as follows:
| 1 | Definitions. As used in this Agreement: |
| (a) | A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events: |
| (i) | Acquisition of shares of the Company by a third party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing twenty-five percent (25%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors; |
| (ii) | Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board; |
| (iii) | Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity; |
| (iv) | Liquidation. The approval by the shareholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and |
| (v) | Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement. |
| (vi) | For purposes of this Section 2(b), the following terms have the following meanings: |
| (1) | “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended from time to time. |
| (2) | “Person” has the meaning as set forth in Section 13(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of shares of the Company. |
| (3) | “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the shareholders of the Company approving a merger of the Company with another entity. |
| (b) | The term “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee. |
| (c) | The term “Expenses” shall mean any expense, liability or loss, including, without limitation, damages, judgments, fines, penalties, settlements (if, and only if, such settlement is approved in advance by the Company, which approval shall not be unreasonably withheld, conditioned or delayed) and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations, liabilities, losses, taxes, any expense paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any taxes, interests, assessments or other charges imposed as a result of the actual or deemed receipt of any payment under this Agreement. |
| (d) | The term “Independent Legal Counsel” shall mean any attorney or firm of attorneys that is reasonably selected by the Board and approved by the Indemnitee (which approval shall not be unreasonably withheld, conditioned or delayed), so long as such firm is not presently representing and has not in the preceding five (5) years represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company in any matter material to any such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Articles, which became effective immediately after the Company’s initial public offering, applicable law or otherwise. |
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| (e) | The term “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, hearing or any other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), in which the Indemnitee was, is or will be involved as a party or otherwise, by reason of (i) the fact that the Indemnitee is or was a director (or a director appointee) or an executive officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, (ii) any actual or alleged act or omission or neglect or breach of duty, including, without limitation, any actual or alleged error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in any such capacity, or (iii) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Articles, applicable law or otherwise, in each case whether or not the Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. |
| (f) | The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director or an executive officer of the Company which imposes duties on, or involves services by, such director or executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company. |
| 2 | Indemnification. Subject to Section 6 below, the Company hereby agrees to hold harmless and indemnify the Indemnitee to the fullest extent permitted by Cayman Islands law in effect on the date hereof and as amended from time to time (“Law”). In furtherance of the foregoing indemnification and without limiting the generality thereof: |
| (a) | Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding by or in the right of the Company to procure a judgment in its favor against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company; except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (b) | Proceedings Other than Proceedings by or in the Right of the Company. The Company shall indemnify the Indemnitee if the Indemnitee is a party to or threatened to be made a party to or is otherwise involved in any Proceeding (other than a Proceeding by or in the right of the Company) against all Expenses which are actually and reasonably incurred by the Indemnitee in connection with such a Proceeding, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, except that no indemnification under this subsection shall be made in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to |
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| be liable to the Company for dishonesty, willful default or fraud in the performance of his/her duty to the Company, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper, in each case, to the maximum extent permitted by Law. |
| (c) | Indemnification for Expenses of Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee, has prepared to serve or has served as a witness or is made to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith, in each case, to the maximum extent permitted by Law. |
| (d) | Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Proceedings, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled, in each case, to the maximum extent permitted by Law. |
| (e) | Mandatory Indemnification. Other than as provided in Section 6, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any Proceeding relating in whole or in part to a Proceeding or in defense of any issue or matter therein, Indemnitee shall be indemnified against all Expenses incurred in connection therewith. For purposes of this Agreement and without limiting the foregoing, if any action, suit or proceeding is disposed of, on the merits or otherwise (including a disposition without prejudice), without (i) the disposition being adverse to Indemnitee, (ii) an adjudication that Indemnitee was liable to the Company, (iii) a plea of guilty or nolo contendere by Indemnitee or (iv) an adjudication that Indemnitee is not entitled to the indemnification provided by this Agreement, Indemnitee shall be considered for the purposes hereof to have been wholly successful with respect thereto. |
| 3 | Contribution. If the indemnification provided in Section 2 above is unavailable to Indemnitee for any reason (other than those set forth in Section 6 below) in connection with a Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company, in lieu of indemnifying Indemnitee thereunder, shall, to the maximum extent permitted by Law, contribute to the amount of Expenses which are actually and reasonably incurred and paid or payable by the Indemnitee in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and the Indemnitee and/or (ii) the relative fault of the Company and such Indemnitee in connection with the transaction or events from which such Proceeding arose. The relative fault of the Company and the Indemnitee shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses. |
| 4 | Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid promptly by the Company in advance of the final disposition of the Proceeding at the written request of the Indemnitee (but in any event no later than thirty (30) days after such request) to the fullest extent permitted by Law; provided, however, that the Indemnitee shall set forth in such request reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding and an undertaking (which shall not require any security) in writing to repay any advances if it is ultimately determined as provided in subsection 5(b) of this Agreement that the Indemnitee is not entitled to indemnification under this Agreement, the Articles, applicable law or otherwise. |
| 5 | Indemnification Procedure; Determination of Right to Indemnification. |
| (a) | Promptly after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify. |
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| (b) | The Indemnitee shall be conclusively presumed to be entitled to indemnification under this Agreement unless a determination is made that the Indemnitee is not entitled to indemnification under Law or this Agreement by one of the following two methods, which shall be at the election of the Indemnitee: (i) by a majority vote of the Board of a quorum consisting of Disinterested Directors or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, the Indemnitee so directs, by Independent Legal Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. |
| (c) | If (i) a determination is made that the Indemnitee is not entitled to indemnification under this Agreement or (ii) a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the Indemnitee is entitled to an adjudication in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct shall be a defense to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (i) create a presumption that the Indemnitee did not act in good faith and in a manner which he reasonably believed to be in the best interests of the Company and/or its shareholders, and, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful or (ii) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein. |
| (d) | If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall to the maximum extent permitted by Law pay all Expenses actually and reasonably incurred by the Indemnitee in connection with such adjudication (including, but not limited to, any appellate proceedings). |
| (e) | With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee without the Indemnitee’s written consent. The Company shall not be liable to indemnify Indemnitee under this Agreement or otherwise for any amounts paid in settlement of any Proceeding effected without the Company’s written consent, such consent not to be unreasonably withheld; provided, however, that if a Change in Control has occurred (other than a Change in Control approved by a majority of the directors on the Board who were directors immediately prior to such Change in Control), the Company shall be liable for indemnification of Indemnitee for amounts paid in settlement if the Independent Counsel has approved the settlement. The Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial award if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense of such action; the Company’s liability hereunder shall not be excused if participation in the Proceeding by the Company was barred by this Agreement. |
| (f) | The Indemnitee shall have the right to employ his own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the employment of counsel by the Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee in the conduct of the defense of a Proceeding, or (iii) the Company shall not in fact have employed counsel to assume the defense of a |
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| proceeding, in each of which cases the fees and expenses of the Indemnitee’s counsel shall be advanced by the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has concluded in his/her sole discretion that there may be a conflict of interest between the Company and the Indemnitee. |
| (g) | Indemnitee shall give the Company such information and cooperation as it may reasonably require and as shall be within Indemnitee’s power. Subject to Section 3, the Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial action if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense, conduct and/or settlement of such action. |
| 6 | Limitations on Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee: |
| (a) | in connection with any Proceeding initiated or brought voluntarily by the Indemnitee and not by way of defense, unless (i) the Board authorized the Proceeding prior to its initiation or (ii) the Proceeding is to enforce indemnification rights under this Agreement, the Articles, applicable law or otherwise and either (A) Indemnitee is successful in such Proceeding in establishing Indemnitee’s right, in whole or in part, to indemnification or advancement of Expenses hereunder (in which case such indemnification or advancement shall be to the fullest extent permitted by this Agreement) or (B) the court in such Proceeding shall determine that, despite Indemnitee’s failure to establish his or her right to indemnification, Indemnitee is entitled to indemnity for such expenses (in which case such indemnification or advancement shall be to the extent provided by such court); |
| (b) | in connection with the Indemnitee preparing to serve or serving, prior to a Change in Control, as a witness in voluntary cooperation with any non-governmental or non-regulatory party or entity who or which has threatened or commenced any action or proceeding against the Company, or any director, officer, employee, trustee, agent, representative, subsidiary, parent corporation or affiliate of the Company, but such indemnification may be provided by the Company if the Board finds it to be appropriate; |
| (c) | for which payment has actually been made to the Indemnitee under a valid and collectible insurance policy, except in respect of any excess beyond the amount of payment under such insurance policy; |
| (d) | for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Exchange Act or similar provisions of any foreign or United States federal, state or local statute or regulation; |
| (e) | for which the Indemnitee is indemnified and actually paid other than pursuant to this Agreement; |
| (f) | for conduct that is finally adjudged (as to which all rights of appeal therefrom have been exhausted or lapsed) by a court of competent jurisdiction to have been caused by the Indemnitee’s dishonesty, willful default or fraud, including, without limitation, breach of the duty of loyalty, unless and only to the extent that the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such amounts which such court shall deem proper; |
| (g) | if a court of competent jurisdiction finally determines that such indemnification is unlawful (as to which all rights of appeal therefrom have been exhausted or lapsed). In this respect, the Company and the Indemnitee have been advised that the Securities and Exchange Commission (the “SEC”) takes the position that indemnification for liabilities arising under securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication; |
| (h) | in connection with the Indemnitee’s personal tax matters; |
| (i) | subject to the proviso in Section 6(a) hereof, in connection with any dispute or breach arising under any contract or similar obligation between the Company or any of its subsidiaries or affiliates and such Indemnitee; or |
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| (j) | in connection with any reimbursement made by Indemnitee to the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), Section 306 of the Sarbanes-Oxley Act or Section 954 of the Dodd–Frank Wall Street Reform and Consumer Protection Act and the rules promulgated by the SEC thereunder. |
| 7 | Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’ insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
| 8 | No Employment Rights. Nothing in this Agreement is intended to create in the Indemnitee any right to continued employment with the Company. |
| 9 | Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is a director of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee is or was a director of the Company or is or was serving in any other capacity referred to in this Section 9. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as a director of the Company or as an agent of another enterprise at the Company’s request. |
| 10 | Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Articles, any agreement, vote of shareholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office. |
| 11 | Other Indemnity Agreement. Other than this Agreement, the Company has not entered into as of the date hereof, and shall not enter into following the date hereof, any indemnification agreement or side letter or other similar agreement or arrangement (collectively, an “Indemnity Agreement”), or amend any existing Indemnity Agreement, with any existing or future director/executive officer of the Company that has the effect of establishing rights or otherwise benefiting such director/executive officer in a manner more favorable in any respect than the rights and benefits established in favor of the Indemnitee by this Agreement, unless, in each such case, the Indemnitee is offered the opportunity to receive the rights and benefits of such Indemnity Agreement. All Indemnity Agreements shall be in writing. |
| 12 | Assignment; Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party thereto without the prior written consent of the other party, except that the Company may, without such consent, assign all such rights and obligations to a successor in interest to the Company which assumes all obligations of the Company under this Agreement in a written agreement in form and substance satisfactory to the Indemnitee. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the parties hereto and the Company’s successors (including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, as well as the Indemnitee’s spouses, heirs, and personal and legal representatives. |
| 13 | Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights. |
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| 14 | Severability. Each and every section, sentence, term and provision of this Agreement is separate and distinct so that if any section, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, lawfulness or enforceability of any other section, sentence, term or provision hereof. To the extent required, any section, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement. |
| 15 | Savings Clause. If this Agreement or any section, sentence, term or provision hereof is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable section, sentence, term or provision of this Agreement that has not been invalidated or (b) applicable law. |
| 16 | Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with Cayman Islands laws without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the courts of the Cayman Islands shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. |
| 17 | Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Articles, or by other agreements, including directors’ and officers’ liability insurance policies, of the Company. |
| 18 | Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other. Delivery by electronic transmission to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentence. The exchange of a fully executed Agreement (in counterparts or otherwise) in pdf, DocuSign or similar format and transmitted by facsimile or email shall be sufficient to bind the parties to the terms and conditions of this Agreement. |
| 19 | Notices. Any notice required to be given under this Agreement shall be directed to the Company at CO Services Cayman Limited, P.O. Box 10008, Willow House, Cricket Square, Grand Cayman, KY1-1001, Cayman Islands (Attention of the Board), and to the Indemnitee at the address specified with the Indemnitee’s signature hereto or to such other address as the Indemnitee shall designate to the Company in writing. |
| 20 | Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern. |
| 21 | Additional Acts. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement. |
| 22 | Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. |
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| 23 | Electronic Transactions Act. Sections 8 and 19(3) of the Electronic Transactions Act (As Revised) shall not apply. |
| 24 | Third Party Rights. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act (As Revised), as amended, modified, re-enacted or replaced, to enforce any term of this Agreement. |
[The remainder of this page is intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as a deed on the date first written above.
| Executed and delivered as a deed | ||
| NVNI GROUP LIMITED | ||
| By: | /s/ Pierre Schurmann | |
| Name: Pierre Schurmann | ||
| Office: Chief Executive Officer | ||
| Executed and delivered as a deed |
| INDEMNITEE |
| /s/ Randy Millian |
| Name: Randy Millian |
| Address: [***] |
| WITNESSED BY: |
| /s/ Camilla Carrapatoso |
| Name: Camilla Carrapatoso |
| Title: Investor Relations |
| Address: [***] |
Signature Page to Indemnification Agreement
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Exhibit 4.37
NVNI GROUP LIMITED
2023 LONG-TERM INCENTIVE PLAN
As Adopted on September 29, 2023
TABLE OF CONTENTS
| Page | ||||||||
| SECTION 1 GENERAL |
1 | |||||||
| 1.1. |
Purpose |
1 | ||||||
| 1.2. |
Participation |
1 | ||||||
| 1.3. |
Foreign Participants |
1 | ||||||
| 1.4. |
Operation and Administration |
1 | ||||||
| 1.5. |
History |
1 | ||||||
| SECTION 2 DEFINITIONS |
2 | |||||||
| SECTION 3 SHARES AND PLAN LIMITS |
5 | |||||||
|
|
3.1. |
Shares of Stock and Other Amounts Subject to Plan |
5 | |||||
| 3.2. |
Adjustments |
6 | ||||||
| SECTION 4 OPTIONS |
6 | |||||||
| 4.1. |
Grant of Options |
6 | ||||||
| 4.2. |
Option Agreement |
6 | ||||||
| 4.3. |
Term of Option |
6 | ||||||
| 4.4. |
Exercise Price |
6 | ||||||
| 4.5. |
Payment of Option Exercise Price |
7 | ||||||
| 4.6. |
No Repricing |
7 | ||||||
| SECTION 5 FULL VALUE AWARDS |
7 | |||||||
| 5.1. |
Grant of Full Value Award |
7 | ||||||
| 5.2. |
Full Value Award Agreement |
8 | ||||||
| 5.3. |
Conditions |
8 | ||||||
| SECTION 6 CHANGE IN CONTROL |
8 | |||||||
| 6.1. |
Change in Control |
8 | ||||||
| 6.2. |
Committee Actions on a Change in Control |
8 | ||||||
| SECTION 7 COMMITTEE |
9 | |||||||
| 7.1. |
Administration |
9 | ||||||
| 7.2. |
Selection of Committee |
9 | ||||||
| 7.3. |
Powers of Committee |
9 | ||||||
| 7.4. |
Delegation by Committee |
10 | ||||||
| 7.5. |
Information to be Furnished to Committee |
10 | ||||||
| 7.6. |
Liability and Indemnification of Committee |
10 | ||||||
| SECTION 8 AMENDMENT AND TERMINATION |
10 | |||||||
| SECTION 9 GENERAL PROVISIONS |
11 | |||||||
|
|
9.1. |
General Restrictions |
11 | |||||
| 9.2. |
Tax Withholding |
11 | ||||||
|
|
9.3. |
Grant and Use of Awards |
12 | |||||
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| 9.4. |
Dividends and Dividend Equivalents |
12 | ||||||
| 9.5. |
Settlement of Awards |
12 | ||||||
|
|
9.6. |
Transferability |
12 | |||||
| 9.7. |
Form and Time of Elections |
13 | ||||||
| 9.8. |
Agreement With Company |
13 | ||||||
| 9.9. |
Action by Company or Subsidiary |
13 | ||||||
| 9.10. |
Gender and Number |
13 | ||||||
| 9.11. |
Limitation of Implied Rights |
13 | ||||||
| 9.12. |
Evidence |
14 | ||||||
| 9.13. |
Limitations under Section 409A |
14 | ||||||
| 9.14. |
Governing Law and Jurisdiction |
15 |
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NVNI GROUP LIMITED
2023 LONG-TERM INCENTIVE PLAN
SECTION 1
GENERAL
1.1 Purpose. The Nvni Group Limited 2023 Long-Term Incentive Plan (the “Plan”) has been established by Nvni Group Limited, an exempted company incorporated with limited liability in the Cayman Islands, (the “Company”) to (i) attract and retain persons eligible to participate in the Plan; (ii) motivate Participants, by means of appropriate incentives, to achieve long-range goals; (iii) provide incentive compensation opportunities that are competitive with those of other similar companies; and (iv) further align the interests of Participants with those of the Company’s other shareholders through compensation that is based on the Company’s shares; and thereby promote the long-term financial interest of the Company and the Related Companies, including the growth in value of the Company’s shares and enhancement of long-term shareholder return. Capitalized terms in the Plan are defined in Section 2.
1.2 Participation. Subject to the terms and conditions of the Plan, the Committee shall determine and designate, from time to time, from among the Eligible Individuals, those persons who will be granted one or more Awards under the Plan, and thereby become “Participants” in the Plan.
1.3 Foreign Participants. In order to assure the viability of Awards granted to Participants who are subject to taxation, the Committee may provide for such special terms as it may consider necessary or appropriate to accommodate differences in local law, tax policy, or custom. Moreover, the Committee may approve such appendixes, supplements to, or amendments, restatements, or alternative versions of the Plan, as it may consider necessary or appropriate for such purposes without thereby affecting the terms of the Plan as in effect for any other purpose; provided, however, that no such supplements, amendments, restatements, or alternative versions shall increase the share limitations contained in Section 3.1 of the Plan.
1.4 Operation and Administration. The operation and administration of the Plan, including the Awards made under the Plan, shall be subject to the provisions of Section 7 (relating to operation and administration).
1.5 History. The Plan was adopted by the Company on September 29, 2023. The Plan shall be unlimited in duration and, in the event of Plan termination, shall remain in effect as long as any Awards under it are outstanding; provided, however, that no Awards may be granted under the Plan after the ten-year anniversary of the date on which the Company adopted the Plan.
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SECTION 2
DEFINITIONS
2.1 “Applicable Laws” means the requirements relating to the administration of equity-based awards under U.S. state corporate laws, U.S. federal and state securities laws, the Code, any stock exchange or quotation system on which the Ordinary Shares are listed or quoted and the applicable laws of any foreign country or jurisdiction where Awards are, or will be, granted under the Plan, including, for the avoidance of doubt, the laws of the Cayman Islands and Brazil.
2.2 “Award Agreement” means the written agreement, including an electronic agreement, setting forth the terms and conditions applicable to each Award granted under the Plan. The Award Agreement is subject to the terms and conditions of the Plan.
2.3 “Award” means any award or benefit granted under the Plan, including, without limitation, the grant of Options and Full Value Awards.
2.4 “Board” means the Board of Directors of the Company.
2.5 “Change in Control” means the first to occur of any of the following:
(a) the consummation of a purchase or other acquisition by any person, entity or group of persons (within the meaning of Section 13(d) or 14(d) of the Exchange Act or any comparable successor provisions, other than an acquisition by a trustee or other fiduciary holding securities under an employee benefit plan or similar plan of the Company or a Related Company), of “beneficial ownership” (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or more of either the outstanding Shares or the combined voting power of the Company’s then issued and outstanding voting securities entitled to vote generally;
(b) the consummation of a reorganization, merger, consolidation, acquisition, share exchange or other corporate transaction of the Company, in each case with respect to which persons who were shareholders of the Company immediately prior to such reorganization, merger or consolidation do not, immediately thereafter, own more than 50% of the combined voting power entitled to vote generally in the election of directors (or similar governing body) of the reorganized, merged or consolidated company’s then issued and outstanding securities;
(c) the consummation of any plan of liquidation, winding-up or dissolution of the Company providing for the sale or distribution of substantially all of the assets of the Company and its Subsidiaries or the consummation of a sale of substantially all of the assets of the Company and its Subsidiaries; or
(d) Notwithstanding the foregoing, solely for the purpose of determining the timing of any payments pursuant to any Award constituting a “deferral of compensation” subject to Section 409A of the Code, a Change in Control shall be limited to a “change in the ownership” of the Company, a “change in the effective control” of the Company, or a “change in the ownership of a substantial portion of the assets” of the Company as such terms are defined in Section 1.409A-3(i)(5) of the U.S. Treasury Regulations.
2.6 “Code” means the United States Internal Revenue Code of 1986, as amended. A reference to any provision of the Code shall include reference to any successor provision of the Code.
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2.7 “Committee” has the meaning set forth in Section 7.1.
2.8 “Company” has the meaning set forth in Section 1.1.
2.9 “Consultant” means any natural person engaged as a consultant or advisor by the Company or a Parent or Subsidiary or other Related Company (as determined by the Committee) to render bona fide services to such entity and such services are not in connection with the sale of Shares in a capital-raising transaction, and do not directly or indirectly promote or maintain a market for the Company’s securities.
2.10 “Director” means any director of the Company at the time, being a member of the Board.
2.11 “Eligible Individual” means any Employee, Consultant or Director. An Award may be granted to an Employee, Consultant or Director, in connection with hiring, retention or otherwise, prior to the date the Employee, Consultant or Director first performs services for the Company or the Subsidiaries, provided that such Awards shall not become vested prior to the date the Employee, Consultant or Director first performs such services.
2.12 “Employee” means any person, including officers of the Company and Directors, employed by the Company or any Parent or Subsidiary of the Company or a Related Company (as determined by the Committee). Neither service as a Director nor payment of a director’s fee by the Company will be sufficient to constitute “employment” by the Company.
2.13 “Exchange Act” means the United States Securities Exchange Act of 1934, as amended.
2.14 “Exercise Price” of each Option granted under this Plan shall be established by the Committee or shall be determined by a method established by the Committee at the time the Option is granted.
2.15 “Fair Market Value” means, as of any date, the value of an Ordinary Share determined as follows:
(a) If the Ordinary Share is listed on any established stock exchange or a national market system, including without limitation the Nasdaq Global Market, its Fair Market Value will be the closing sales price for such Ordinary Share (or the closing bid, if no sales were reported) as quoted on such exchange or system on the last previous trading day prior to such date of determination, as reported in The Wall Street Journal or such other source as the Committee deems reliable;
(b) If the Ordinary Share is regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value of an Ordinary Share will be the mean between the high bid and low asked prices for the Ordinary Shares on the last previous trading day prior to such date of determination (or, if no bids and asks were reported on that date, as applicable, on the last trading date such bids and asks were reported), as reported in The Wall Street Journal or such other source as the Committee deems reliable; or
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(c) In the absence of an established market for the Ordinary Shares, the Fair Market Value will be determined in good faith by the Committee.
(d) Notwithstanding the foregoing, the determination of Fair Market Value in all cases shall be in accordance with the requirements set forth under Section 409A of the Code to the extent necessary for an Award to comply with, or be exempt from, Section 409A of the Code.
2.16 A “Full Value Award” is a grant of one or more Shares or a right to receive one or more Shares in the future, with such grant subject to one or more conditions, as determined by the Committee.
2.17 An “Option” entitles the Participant to purchase Shares at an Exercise Price established by the Committee.
2.18 “Ordinary Share” or “Share” means an ordinary share in the capital of the Company.
2.19 “Outside Director” means a Director of the Company who is not an officer or employee of the Company or the Related Companies.
2.20 “Parent” means a parent corporation within the meaning of Section 424(e) of the Code.
2.21 “Participant” means the holder of an outstanding Award.
2.22 “Period of Restriction” means the period during which the transfer of Shares are subject to restrictions and therefore, the Shares are subject to a substantial risk of forfeiture. Such restrictions may be based on the passage of time, the achievement of target levels of performance, or the occurrence of other events as determined by the Committee.
2.23 “Plan” has the meaning set forth in Section 1.1.
2.24 “Related Company” means any corporation, partnership, joint venture, limited liability company or other entity during any period in which a controlling interest in such entity is owned, directly or indirectly, by the Company (or by any entity that is a successor to the Company), and any other business venture designated by the Committee in which the Company (or any entity that is a successor to the Company) has, directly or indirectly, a significant interest (whether through the ownership of securities or otherwise), as determined in the discretion of the Committee.
2.25 “Securities Act” means the United States Securities Act of 1933, as amended.
2.26 “Subsidiary” means a “subsidiary corporation,” whether now or hereafter existing, as defined in Section 424(f) of the Code.
2.27 “Termination Date” means the date on which a Participant both ceases to be an employee of the Company and the Related Companies and ceases to perform material services for the Company and the Related Companies (whether as a director or otherwise), regardless of the reason for the cessation; provided that a “Termination Date” shall not be considered to have
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occurred during the period in which the reason for the cessation of services is a leave of absence approved by the Company or the Related Company which was the recipient of the Participant’s services; and provided, further that, with respect to an Outside Director, “Termination Date” means the date on which the Outside Director’s service as an Outside Director terminates for any reason. If, as a result of a sale or other transaction, the entity for which the Participant performs services ceases to be a Related Company (and such entity is or becomes an entity separate from the Company), the occurrence of such transaction shall be the Participant’s Termination Date. With respect to Awards that constitute deferred compensation subject to Section 409A of the Code, references to the Participant’s termination of employment (including references to the Participant’s employment termination, and to the Participant terminating employment, a Participant’s separation from service, and other similar reference) and references to a Participant’s termination as a Director (including separation from service and other similar references) shall mean the date that the Participant incurs a “separation from service” within the meaning of Section 409A of the Code.
SECTION 3
SHARES AND PLAN LIMITS
3.1 Shares and Other Amounts Subject to Plan. The Shares for which Awards may be granted under the Plan shall be subject to the following:
(a) Subject to the following provisions of this Section 3.1, the maximum number of Shares that may be issued and allotted to Participants and their beneficiaries under the Plan shall be 1,143,650 Shares (which number includes all shares available for delivery under this Section 3.1(a) since the establishment of the Plan, determined in accordance with the terms of the Plan). Shares issued by the Company in connection with awards that are assumed or substituted in connection with a reorganization, merger, consolidation, acquisition, share exchange or other corporate transaction shall not be counted against the number of Shares that may be issued with respect to Awards under the Plan.
(b) Only Shares, if any, actually issued and allotted to the Participant or beneficiary on an unrestricted basis with respect to an Award shall be treated as issued and allotted for purposes of the determination under Section 3.1(a) above, regardless of whether the Award is denominated in Shares or cash. To the extent any Shares covered by an Award are not issued and allotted to a Participant or beneficiary because the Award is forfeited or cancelled, or the Shares are not issued and allotted on an unrestricted basis (including, without limitation, by reason of the Award being settled in cash), such Shares shall not be deemed to have been issued and allotted for purposes of the determination under Section 3.1(a) above.
(c) The Shares with respect to which Awards may be made under the Plan shall be: (i) shares currently authorized but unissued; (ii) to the extent permitted by Applicable Law, shares currently held or acquired by the Company as treasury shares, including shares purchased in the open market or in private transactions; or (iii) shares purchased in the open market by a direct or indirect wholly-owned subsidiary of the Company (as determined by the Chief Executive Officer or the Chief Financial Officer of the Company). The Company may contribute to the subsidiary or trust an amount sufficient to accomplish the purchase in the open market of the Shares to be so acquired (as determined by the Chief Executive Officer or the Chief Financial Officer of the Company).
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3.2 Adjustments. In the event of a corporate transaction involving the Company (including, without limitation, any share dividend, share subdivision, extraordinary cash dividend, recapitalization, reorganization, merger, amalgamation, consolidation, share exchange split-up, spin-off, sale of assets or subsidiaries, combination or exchange of shares), the Committee shall, in the manner it determines equitable in its sole discretion, adjust Awards to reflect the transactions. Action by the Committee may include: (i) adjustment of the number and kind of shares which may be issued and allotted under the Plan; (ii) adjustment of the number and kind of shares subject to outstanding Awards; (iii) adjustment of the Exercise Price of outstanding Options; and (iv) any other adjustments that the Committee determines to be equitable (which may include, without limitation, (A) replacement of Awards with other Awards which the Committee determines have comparable value and which are based on shares of a company resulting from the transaction, and (B) cancellation of the Award in return for cash payment of the current value of the Award, determined as though the Award is fully vested at the time of payment, provided that in the case of an Option, the amount of such payment will be the excess of value of the Shares subject to the Option at the time of the transaction over the Exercise Price). However, in no event shall this Section 3.2 be construed to permit a modification (including a replacement) of an Option if such modification either: (i) would result in accelerated recognition of income or imposition of additional tax under Section 409A of the Code; or (ii) would cause the Option subject to the modification (or cause a replacement Option) to be subject to Section 409A of the Code, provided that the restriction of this clause (ii) shall not apply to any Option that, at the time it is granted or otherwise, is designated as being deferred compensation subject to Section 409A of the Code.
SECTION 4
OPTIONS
4.1 Grant of Options. Subject to the terms and conditions of the Plan, the Committee, at any time and from time to time, may grant Options to an Eligible Individual in such amounts as the Committee, in its sole discretion, will determine.
4.2 Option Agreement. Each Award of an Option will be evidenced by an Award Agreement that will specify the date of grant of the Option, the Exercise Price, the term of the Option, the number of Shares subject to the Option, the exercise restrictions, if any, applicable to the Option, including the dates upon which the Option is first exercisable in whole and/or part, and such other terms and conditions as the Committee, in its sole discretion, may determine.
4.3 Term of Option. The term of each Option will be stated in the Award Agreement; provided, however, that the term will be no more than 10 years from the date of grant thereof.
4.4 Exercise Price. The Exercise Price shall not be less than 100% of the Fair Market Value of a Share on the date of grant (or, if greater, the par value, if any, of a Share). Notwithstanding the foregoing provisions of this Section 4.4, Options may be granted with a per share Exercise Price of less than 100% of the Fair Market Value per Share on the date of grant pursuant to a transaction described in, and in a manner consistent with, Section 424(a) of the Code.
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4.5 Payment of Option Exercise Price. The payment of the Exercise Price of an Option granted under this Section 4 shall be subject to the following:
(a) Subject to the following provisions of this Section 4.5, the full Exercise Price for Shares purchased upon the exercise of any Option shall be paid at the time of such exercise (except that, in the case of an exercise arrangement approved by the Committee and described in Section 4.5(c), payment may be made as soon as practicable after the exercise).
(b) Subject to Applicable Law, the full Exercise Price shall be payable in cash, by promissory note, or by tendering, by either actual issue or transfer of Shares acceptable to the Committee (including shares otherwise distributable pursuant to the exercise of the Option), and valued at Fair Market Value as of the day of exercise, or in any combination thereof, as determined by the Committee.
(c) Subject to Applicable Law, if the Shares are publicly traded, the Committee may permit a Participant to elect to pay the Exercise Price upon the exercise of an Option by irrevocably authorizing a third party to sell Shares (or a sufficient portion of the Shares) acquired upon exercise of the Option and remit to the Company a sufficient portion of the sale proceeds to pay the entire Exercise Price and any tax withholding resulting from such exercise.
4.6 No Repricing. Except for either adjustments pursuant to Section 3.2 (relating to the adjustment of Shares), or reductions of the Exercise Price approved by the Company’s shareholders to the extent required by applicable listing standards, the Exercise Price for any outstanding Option may not be decreased after the date of grant nor may an outstanding Option granted under the Plan be surrendered to the Company as consideration for the grant of a replacement Option with a lower Exercise Price. Except as approved by Company’s shareholders to the extent required by applicable listing standards, in no event shall any Option granted under the Plan be surrendered to Company in consideration for a cash payment or the grant of any other Award if, at the time of such surrender, the Exercise Price of the Option is greater than the then current Fair Market Value of a Share. In addition, no repricing of an Option shall be permitted without the approval of Company’s shareholders if such approval is required under the rules of any stock exchange on which Shares are listed.
SECTION 5
FULL VALUE AWARDS
5.1 Grant of Full Value Award. Subject to the terms and conditions of the Plan, the Committee, at any time and from time to time, may grant Full Value Awards to Eligible Individuals in such amounts as the Committee, in its sole discretion, will determine.
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5.2 Full Value Award Agreement. Each Full Value Award will be evidenced by an Award Agreement that will specify the Period of Restriction, the number of Shares granted and such other terms and conditions as the Committee, in its sole discretion, may determine.
5.3 Conditions. A Full Value Award may be subject to one or more of the following, as determined by the Committee:
(a) The grant shall be in consideration of a Participant’s previously performed services, or surrender of other compensation that may be due.
(b) The grant shall be contingent on the achievement of performance or other objectives during a specified period.
(c) The grant shall be subject to a risk of forfeiture or other restrictions that will lapse upon the achievement of one or more goals relating to completion of service by the Participant, or achievement of performance or other objectives.
The grant of Full Value Awards may also be subject to such other conditions, restrictions and contingencies, as determined by the Committee.
SECTION 6
CHANGE IN CONTROL
6.1 Change in Control. Subject to the provisions of Section 3.2 and the authority of the Committee to take the actions permitted pursuant to Section 6.2, the occurrence of a Change in Control shall have the effect, if any, with respect to any Award as set forth in the Award Agreement or, to the extent not prohibited by the Plan or the Award Agreement, as provided by the Committee.
6.2 Committee Actions on a Change in Control. On a Change in Control, if the Plan is terminated by the Company or its successor without provision for the continuation of outstanding Awards hereunder, the Committee may cancel any outstanding Awards in return for cash payment of the current value of the Award, determined with the Award fully vested at the time of payment, provided that in the case of an Option, the amount of such payment will be the excess of value of the Shares subject to the Option at the time of the transaction over the Exercise Price; provided, further, that in the case of an Option, such Option will be cancelled with no payment if, as of the Change in Control, the value of the Shares subject to the Option at the time of the transaction are equal to or less than the Exercise Price. However, in no event shall this Section 6.2 be construed to permit a payment if such payment would result in accelerated recognition of income or imposition of additional tax under Section 409A of the Code.
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SECTION 7
COMMITTEE
7.1 Administration. The authority to control and manage the operation and administration of the Plan shall be vested in a committee (the “Committee”) in accordance with this Section 7. The Committee shall be selected by the Board, and shall consist of two or more Directors. Unless otherwise provided by the Board, the Compensation Committee of the Board shall serve as the Committee. As a committee of the Board, the Committee is subject to the overview of the Board. If the Committee does not exist, or for any other reason determined by the Board, and to the extent not prohibited by Applicable Law, the Board may take any action under the Plan that would otherwise be the responsibility of the Committee.
7.2 Selection of Committee. So long as the Company is subject to Section 16 of the Exchange Act, the Committee shall be selected by the Board and shall consist of not fewer than two members of the Board or such greater number as may be required for compliance with Rule 16b-3 issued under the Exchange Act and shall be comprised of persons who are independent for purposes of applicable stock exchange listing requirements and who would meet the requirements of a “non-employee director” within the meaning of Rule 16b-3 under the Securities Exchange Act of 1934.
7.3 Powers of Committee. The Committee’s administration of the Plan shall be subject to the following:
(a) Subject to the provisions of the Plan, the Committee will have the authority and discretion to select individuals who shall be Eligible Individuals and who, therefore, are eligible to receive Awards under the Plan. The Committee shall have the authority to determine the time or times of receipt of Awards, to determine the types of Awards and the number of Shares granted pursuant to the Awards, to establish the terms, conditions, performance targets, restrictions and other provisions of such Awards, to cancel or suspend Awards and to accelerate the exercisability or vesting of any Award under circumstances designated by it. In making such Award determinations, the Committee may take into account the nature of services rendered by the respective employee, the individual’s present and potential contribution to the Company’s or a Related Company’s success and such other factors as the Committee deems relevant.
(b) To the extent that the Committee determines that the restrictions imposed by the Plan preclude the achievement of the material purposes of the Awards in jurisdictions outside the United States, the Committee will have the authority and discretion to modify those restrictions as the Committee determines to be necessary or appropriate to conform to applicable requirements or practices of jurisdictions outside of the United States.
(c) The Committee will have the authority and discretion to interpret the Plan, to establish, amend and rescind any rules and regulations relating to the Plan, to determine the terms and conditions of any Award Agreement made pursuant to the Plan and to make all other determinations that may be necessary or advisable for the administration of the Plan.
(d) Any interpretation of the Plan by the Committee and any decision made by it under the Plan is final and binding on all persons.
(e) In controlling and managing the operation and administration of the Plan, the Committee shall take action in a manner that conforms to applicable corporate law.
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(f) Notwithstanding any other provision of the Plan, no benefit shall be distributed under the Plan to any person unless the Committee, in its sole discretion, determines that such person is entitled to benefits under the Plan.
7.4 Delegation by Committee. Except to the extent prohibited by Applicable Law, the Committee may allocate all or any portion of its responsibilities and powers to any one or more of its members and may delegate all or any part of its responsibilities and powers to any person or persons selected by it. Any such allocation or delegation may be revoked by the Committee at any time.
7.5 Information to be Furnished to Committee. The Company, Subsidiaries and any applicable Related Company shall furnish the Committee with such data and information as it determines may be required for it to discharge its duties. The records of the Company, Subsidiaries and any applicable Related Company as to an employee’s or Participant’s employment (or other provision of services), termination of employment (or cessation of the provision of services), leave of absence, reemployment and compensation shall be conclusive on all persons unless determined to be incorrect. Participants and other persons entitled to benefits under the Plan must furnish the Committee such evidence, data or information as the Committee considers desirable to carry out the terms of the Plan.
7.6 Liability and Indemnification of Committee. No member or authorized delegate of the Committee shall be liable to any person for any action taken or omitted in connection with the administration of the Plan unless attributable to his own actual fraud, willful neglect or willful default; nor shall the Company or any Related Company be liable to any person for any such action unless attributable to actual fraud, willful neglect or willful default on the part of a director or employee of the Company or Related Company. The Committee, the individual members thereof and persons acting as the authorized delegates of the Committee under the Plan, shall be indemnified by the Company against any and all liabilities, losses, costs and expenses (including legal fees and expenses) of whatsoever kind and nature which may be imposed on, incurred by or asserted against the Committee or its members or authorized delegates by reason of the performance of a Committee function if the Committee or its members or authorized delegates did not act dishonestly or in willful violation of the law or regulation under which such liability, loss, cost or expense arises. This indemnification shall not duplicate but may supplement any coverage available under any applicable insurance.
SECTION 8
AMENDMENT AND TERMINATION
The Board may, at any time, amend or terminate the Plan, and the Board or the Committee may amend any Award Agreement, provided that no amendment or termination may, in the absence of written consent to the change by the affected Participant (or, if the Participant is not then living, the affected beneficiary), adversely affect the rights of any Participant or beneficiary under any Award granted under the Plan prior to the date such amendment is adopted by the Board (or the Committee if applicable); and further provided that adjustments pursuant to Section 3.2 shall not be subject to the foregoing limitations of this Section 8; and further provided that the provisions of Section 4.6 (relating to Option repricing) cannot be amended unless the amendment is approved by
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the Company’s shareholders. Approval by the Company’s shareholders will be required for any material revision to the terms of the Plan to the extent required by applicable listing standards, with the Committee’s determination of “material revision” to take into account the exemptions under applicable stock exchange rules. No amendment or termination shall be adopted or effective if it would result in accelerated recognition of income or imposition of additional tax under Section 409A of the Code or, except as otherwise provided in the amendment, would cause amounts that were not otherwise subject to Section 409A of the Code to become subject to Section 409A of the Code.
SECTION 9
GENERAL PROVISIONS
9.1 General Restrictions. Issue and Allotment of Shares or other amounts under the Plan shall be subject to the following:
(a) Notwithstanding any other provision of the Plan, the Company shall have no obligation to recognize an exercise of an Option or issue and allot any Share or make any other distribution of benefits under the Plan unless such exercise, issue and allot or distribution complies with all Applicable Laws (including, without limitation, the requirements of the Securities Act and the securities laws of any other applicable jurisdiction), and the applicable requirements of any securities exchange or similar entity or other regulatory authority with respect to the issue of shares and securities by the Company.
(b) To the extent that the Plan provides for issuance of share certificates to reflect the issuance of Shares, the issuance may be effected on a non-certificated basis, to the extent not prohibited by Applicable Law or the Memorandum and Articles of Association of the Company.
(c) To the extent provided by the Committee, any Award may be settled in cash rather than Shares.
9.2 Tax Withholding. All distributions under the Plan are subject to withholding of all applicable taxes, and the Committee may condition the issue and allot of any Shares or other benefits under the Plan on satisfaction of the applicable withholding obligations. Except as otherwise provided by the Committee and subject to Applicable Law, such withholding obligations may be satisfied (i) through cash payment by the Participant; (ii) through the repurchase of Shares which the Participant already owns; or (iii) through reduction of the number of Shares to which the Participant is otherwise entitled under the Plan (including shares otherwise distributable pursuant to the Award); provided, however, that such Shares under this clause (iii) may be used to satisfy not more than the maximum individual tax rate for the Participant in applicable jurisdiction for such Participant (based on the applicable rates of the relevant tax authorities (for example, federal, state, and local), including the Participant’s share of payroll or similar taxes, as provided in tax law, regulations, or the authority’s administrative practices, not to exceed the highest statutory rate in that jurisdiction, even if that rate exceeds the highest rate that may be applicable to the specific Participant).
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9.3 Grant and Use of Awards. In the discretion of the Committee, an Eligible Individual may be granted any Award permitted under the provisions of the Plan, and more than one Award may be granted to an Eligible Individual. Subject to Section 4.6 (relating to repricing), Awards may be granted as alternatives to or replacement of awards granted or outstanding under the Plan, or any other plan or arrangement of the Company or a Subsidiary or a Related Company (including a plan or arrangement of a business or entity, all or a portion of which is acquired by the Company or a Subsidiary or a Related Company). Subject to the overall limitation on the number of Shares that may be issued and allotted under the Plan, the Committee may use available Shares as the form of payment for compensation, grants or rights earned or due under any other compensation plans or arrangements of the Company or a Subsidiary or a Related Company, including the plans and arrangements of the Company or a Subsidiary or a Related Company assumed in business combinations. Notwithstanding the provisions of Section 4.4, Options granted under the Plan in replacement for awards under plans and arrangements of the Company or a Subsidiary or a Related Company assumed in business combinations may provide for Exercise Prices that are less than the Fair Market Value of the Shares at the time of the replacement grants, if the Committee determines that such Exercise Price is appropriate to preserve the economic benefit of the award. The provisions of this Section 9.3 shall be subject to the provisions of Section 9.13.
9.4 Dividends and Dividend Equivalents. An Award (other than an Option) may provide the Participant with the right to receive dividend or dividend equivalent payments with respect to Shares subject to the Award; provided, however, that no dividend or dividend equivalents granted in relation to Full Value Awards that are subject to vesting shall be settled prior to the date that such Full Value Award (or applicable portion thereof) becomes vested and is settled. Any such settlements, and any such crediting of dividends or dividend equivalents or reinvestment in Shares, will be subject to the Company’s Memorandum and Articles of Association as well as Applicable Law and further may be subject to such conditions, restrictions and contingencies as the Committee shall establish, including the reinvestment of such credited amounts in equivalent Shares. The provisions of this Section 9.4 shall be subject to the provisions of Section 9.13.
9.5 Settlement of Awards. The obligation to make payments and distributions with respect to Awards may be satisfied through cash payments, the issue and allotment of Shares, the granting of replacement Awards or combination thereof as the Committee shall determine. Satisfaction of any such obligations under an Award, which is sometimes referred to as “settlement” of the Award, may be subject to such conditions, restrictions and contingencies as the Committee shall determine. The Committee may permit or require the deferral of any Award payment or distribution, subject to such rules and procedures as it may establish, which may include provisions for the payment or crediting of interest or dividend equivalents, and may include converting such credits into deferred Share equivalents. Except for Options designated at the time of grant or otherwise as intended to be subject to Section 409A of the Code, this Section 9.5 shall not be construed to permit the deferred settlement of Options, if such settlement would result in deferral of compensation under US Treas. Reg. §1.409A-1(b)(5)(i)(A)(3) (except as permitted in Sections (i) and (ii) of that section). Each Subsidiary shall be liable for payment of cash due under the Plan with respect to any Participant to the extent that such benefits are attributable to the services rendered for that Subsidiary by the Participant. Any disputes relating to liability of a Subsidiary for cash payments shall be resolved by the Committee. The provisions of this Section 9.5 shall be subject to the provisions of Section 9.13.
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9.6 Transferability. Except as otherwise provided by the Committee, Awards under the Plan are not transferable except as designated by the Participant by will or by the laws of descent and distribution. If any benefits deliverable or issuable to the Participant under this Plan have not been delivered or issued at the time of the Participant’s death, such benefits shall be delivered or issued to the Designated Beneficiary, in accordance with the provisions of any applicable Award Agreement and the Plan. The “Designated Beneficiary” shall be the beneficiary or beneficiaries designated by the Participant in a writing filed with the Committee in such form and at such time as the Committee shall require. If a deceased Participant fails to designate a beneficiary, or if the Designated Beneficiary does not survive the Participant, any rights that would have been exercisable by the Participant and any benefits distributable to the Participant shall be distributed to the legal representative of the estate of the Participant. If a deceased Participant designates a beneficiary and the Designated Beneficiary survives the Participant but dies before the complete distribution of benefits to the Designated Beneficiary under this Agreement, then any benefits distributable to the Designated Beneficiary shall be distributed to the legal representative of the estate of the Designated Beneficiary.
9.7 Form and Time of Elections. Unless otherwise specified herein, each election required or permitted to be made by any Participant or other person entitled to benefits under the Plan, and any permitted modification, or revocation thereof, shall be in writing filed with the Committee at such times, in such form, and subject to such restrictions and limitations, not inconsistent with the terms of the Plan, as the Committee shall require.
9.8 Agreement With Company. An Award under the Plan shall be subject to such terms and conditions, not inconsistent with the Plan, as the Committee shall, in its sole discretion, prescribe. The terms and conditions of any Award to any Participant shall be reflected in such form of written (including electronic) document as is determined by the Committee. A copy of such document shall be provided to the Participant, and the Committee may, but need not require that the Participant sign a copy of such document. Such document is referred to in the Plan as an “Award Agreement” regardless of whether any Participant signature is required.
9.9 Action by Company or Subsidiary. Any action required or permitted to be taken by the Company or any Subsidiary or Related Company shall be by resolution of its board of directors, or by action of one or more Director or members of the relevant board (including a committee of such board) who are duly authorized to act for the board, or (except to the extent prohibited by Applicable Law or applicable rules of any stock exchange) by a duly authorized officer of such company.
9.10 Gender and Number. Where the context admits, words in any gender shall include any other gender, words in the singular shall include the plural and the plural shall include the singular.
9.11 Limitation of Implied Rights.
(a) Neither a Participant nor any other person shall, by reason of participation in the Plan, acquire any right in or title to any assets, funds or property of the Company or any Subsidiary or Related Company whatsoever, including, without limitation, any specific funds, assets, or other property which the Company or any Subsidiary or Related Company,
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in its sole discretion, may set aside in anticipation of a liability under the Plan. A Participant shall have only a contractual right to the Shares or amounts, if any, payable under the Plan, unsecured by any assets of the Company or any Subsidiary or Related Company, and nothing contained in the Plan shall constitute a guarantee that the assets of the Company or any Subsidiary or Related Company shall be sufficient to pay any benefits to any person.
(b) The Plan does not constitute a contract of employment, and selection as a Participant will not give any participating employee or other individual the right to be retained in the employ of the Company or any Subsidiary or Related Company or the right to continue to provide services to the Company or any Subsidiary or Related Company, nor any right or claim to any benefit under the Plan, unless such right or claim has specifically accrued under the terms of the Plan. Except as otherwise provided in the Plan, no Award under the Plan shall confer upon the holder thereof any rights as a shareholder of the Company prior to the date on which the individual fulfills all conditions for receipt of such rights and is registered in the Company’s Register of Members.
(c) All Shares issued under any Award or otherwise are to be held subject to the provisions of the Company’s Memorandum and Articles of Association and each Participant is deemed to agree to be bound by the terms of the Company’s Memorandum and Articles of Association as they stand at the time of issue of any Shares under the Plan.
9.12 Evidence. Evidence required of anyone under the Plan may be by certificate, affidavit, document or other information which the person acting on it considers pertinent and reliable, and signed, made or presented by the proper party or parties.
9.13 Limitations under Section 409A. The provisions of the Plan shall be subject to the following:
(a) Awards will be designed and operated in such a manner that they are either exempt from the application of, or comply with, the requirements of Section 409A of the Code, except as otherwise determined in the sole discretion of the Committee. The Plan and each Award Agreement under the Plan is intended to meet the requirements of Section 409A of the Code and will be construed and interpreted in accordance with such intent, except as otherwise determined in the sole discretion of the Committee. To the extent that an Award or payment, or the settlement or deferral thereof, is subject to Section 409A of the Code the Award will be granted, paid, settled or deferred in a manner that will meet the requirements of Section 409A of the Code, such that the grant, payment, settlement or deferral will not be subject to the additional tax or interest applicable under Section 409A of the Code.
(b) Neither Section 9.3 nor any other provision of the Plan shall be construed to permit the grant of an Option if such action would cause the Option being granted or the option or share appreciation right being replaced to be subject to Section 409A of the Code, provided that this Section 9.13(b) shall not apply to any Option (or option or share appreciation right granted under another plan) being replaced that, at the time it is granted or otherwise, is designated as being deferred compensation subject to Section 409A of the Code.
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(c) Except with respect to an Option that, at the time it is granted or otherwise, is designated as being deferred compensation subject to Section 409A of the Code, no Option shall condition the receipt of dividends with respect to an Option on the exercise of such Award, or otherwise provide for payment of such dividends in a manner that would cause the payment to be treated as an offset to or reduction of the Exercise Price of the Option pursuant Treas. Reg. §1.409A-1(b)(5)(i)(E).
(d) The Plan shall not be construed to permit a modification of an Award, or to permit the payment of a dividend or dividend equivalent, if such actions would result in accelerated recognition of taxable income or imposition of additional tax under Section 409A of the Code.
9.14 Governing Law and Jurisdiction. The Plan and each Award shall be governed by and interpreted in accordance with the laws of the Cayman Islands. The Company and each Participant shall irrevocably submit to the non-exclusive jurisdiction of the courts of the Cayman Islands with respect to any dispute arising out of or in connection with the Plan or any Award.
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Exhibit 4.39
STOCK OPTION PLAN
This Stock Subscription Option Grant Plan of Nuvini S.A., registered with the CNPJ/ME under No. 35.632.719/0001-20, with head office in the City of São Paulo, State of São Paulo, at Avenida Presidente Juscelino Kubitschek, 2041 Complexo JK, Torre B, 04543-011 (“Company”) or (“Nuvini”), as successor by incorporation of Keiretsu Tecnologia S.A., registered with the CNPJ/ME under No. 35.603.880/0001-75 (“Keiretsu”), approved at the Extraordinary General Meeting of Keiretsu, held on November 27, 2020, and amended according to the terms approved at the Extraordinary General Meeting of Nuvini, held on June 30, 2021, which approved the amendment and creation of this Stock Option Grant Plan by Nuvini, as a result of the incorporation of Keiretsu by Nuvini.
1- THE OBJECTIVES
1.1 The objectives of the Nuvini’s Stock Option Grant Plan are as follows:
a) To attract, motivate, and retain qualified talent and employees, as well as strategic business partners (“Beneficiaries”), who will be offered the opportunity to become shareholders of the Company, under the terms, conditions and form provided for in this Plan; and
b) To align the interests of key employees and strategic partners with those of the the Company’s shareholders.
1.2 This Plan establishes the general conditions for the Company to grant options to subscribe ordinary shares issued by the Company to its directors, officers, employees and highly qualified service providers, as set forth herein.
2. THE ADMINISTRATION OF THE PLAN
2.1 This Plan will be managed by the Company’s Board of Directors.
2.1.1 The Company’s shareholders, other than a Beneficiary, shall not be personally liable for any costs, losses, liabilities and expenses that may be imposed in litigation disputing this Plan. If such shareholders are ordered to spend any sums as a result in litigation, the Company shall reimburse them in full.
2.2 The Company’s Board of Directors will have autonomy to manage the Plan, having, among other things, the necessary powers to:
| a) | Take any measures relating to the administration of the Plan, detailing and applying the general rules established herein; |
| b) | Decide the dates on which options to subscribe for Shares (“Options”) or, individually, (“Option”) will be granted, as well as on the opportunity to grant said options; |
| c) | Select, from among those eligible to participate in this Plan, those who will participate effectively in the Plan; |
| d) | Decide on issues related to the vesting period and exercise price of the Options; |
| e) | Create periodic option programs to be implemented within the scope of the Plan, which, within the limits established in the Plan, may provide for specific rules and conditions applicable to grants made to Beneficiaries who may be chosen by the Board of Directors to participate in each program (“Program”); |
| f) | Analyze exceptional cases; |
| g) | Unilaterally modify the terms and conditions of the options granted to adapt them to any requirements that may be made by changes in the relevant corporate legislation, provided that such changes do not impair the rights of the Beneficiaries (as defined below); and |
| h) | Revoke any Options granted if the recipients do not follow the terms defined in this Plan and/or the Adhesion Agreement. |
2.2.1 The Board of Directors shall be responsible for resolving any doubts about the interpretation of the general rules established in this Plan and for resolving any conflicts between the provisions of the Plan, the Programs and/or any other documents related to the Plan.
2.3 In exercising its powers, the Board of Directors shall be subject only to the limits imposed by law, by the Company’s bylaws, by the Company’s General Shareholders’ Meeting and by this Plan.
2.4 Subject to the provisions of Clause 2, the decisions of the Board of Directors of the Company shall be binding on the Company and the Beneficiaries, and they shall not be subject to any appeal, provided that said decisions do not conflict with what is established in this Plan, in the bylaws or relevant legislation.
2.5 The Company’s Board of Directors shall be responsible for approving the granting of Options to Beneficiaries.
2.6 The Company is authorized to proceed with the reduction of the total number of Options or Shares to be delivered to the Beneficiary upon exercise of the Options, or any other way it deems convenient and adequate to meet the legal requirements, in an amount equivalent to the taxes to which it may be legally obliged to withhold for payment on behalf of the Beneficiary.
3. COMPANY SHARES FOR THE PLAN
3.1 The initial global volume of Shares under the Plan will be shares representing up to 20,000,000 (twenty million) shares issued by the Company.
3.1.1 The limits of the Shares covered by the Plan, as set out above, may be altered by resolution of the majority of the shares with voting rights issued by the Company at a General Shareholders’ Meeting specially called for this purpose.
3.2 The Company’s shareholders shall not have preemptive rights in the subscription of Shares resulting from the exercise of the Options granted, under the terms of paragraph 3 of article 171 of Brazilian Law 6,404, of December 15, 1976.
3.3 Subject to the limits established in this Plan and by the Company’s General Shareholders’ Meeting, the Board of Directors shall establish the number of Shares subject to the Option granted to each Beneficiary.
4. THE BENEFICIARIES
4.1 Professionals selected at the sole discretion of the Board of Directors may participate in the Plan, from among (a) managers of the Company or the Company’s Affiliates; (b) executives and employees who hold management positions in the Company or the Company’s Affiliates; (c) employees, including officials and employees who hold strategic positions for the business of the Company or of the Company’s Affiliates; and (d) members of the Company’s Advisory Board, as identified by the Board of Directors or by the Beneficiary’s Managers.
4.1.1 “Affiliate” means any person who, directly or indirectly, controls, is controlled by, or is under common control with such person.
4.2 The Options, as well as their exercise by the Beneficiaries, have no relation or linked to their compensation. The Plan is exclusively of a civil nature and does not create any labor or social security obligations between the Company or its Subsidiaries and the Beneficiaries, whether or not they are statutory managers or employees. In this sense, the participation of a director, executive or employee of the Company or its Subsidiaries in the Plan does not interfere with the fixed and variable compensation applicable to them.
4.3 The Board of Directors shall select from among the persons defined as eligible in Clause 4.1 above, those who will participate in the Plan and who will be entitled to the granting of Options.
4.4 No provision of the Plan shall (a) confer rights on any Beneficiary relating to his/her permanence as an employee, collaborating manager or service provider of the Company or an Affiliate of the Company; or (b) interfere in any way with the right of the Company or an Affiliate of the Company, subject to legal conditions and those provided for in the employment or service agreement, as the case may be, to terminate at any time the employment or service agreement with the Beneficiary; or (c) ensure the right to their
re-election to office or renewal of their legal relationship, whatever it may be, with the Company or the Company’s Affiliate; nor shall it interfere in any way with the Company’s right, at any time and subject to legal and contractual conditions, to terminate the employee’s employment contract and/or terminate the service contract and/or interrupt the director’s term of office.
4.5 Each Beneficiary shall expressly adhere to the Plan and, where applicable, to the respective Program, by signing a term of adhesion, without any reservations, which shall contain all the specifications of his/her Options, obliging him/her to comply with all the provisions of the Plan and, where applicable, of the respective Program (“Term of Adhesion”).
5. THE GRANT
5.1 After prior approval at a meeting of the Company’s Board of Directors, the latter will grant Options by signing the relevant Adhesion Agreement. For each grant of Options, the Board of Directors will determine the characteristics listed below, including the benefits to be granted to each Beneficiary. These characteristics will be subject to the discretion of the Board of Directors, provided that the rules of this Plan and the limits established at the General Shareholders’ Meeting are always respected.
5.1.1 The Board of Directors shall establish the characteristics of the Options in the Programs or, in the absence of Programs, in the Terms of Adhesion for each Beneficiary, which shall include, among other points, the following:
a) The number of Options to be granted
b) The strike price;
c) Any penalties; and
d) Any restrictions on the transfer of Shares.
5.2 Each grant made by the Board of Directors shall be specific and aimed solely and exclusively at the Beneficiary to whom it is addressed, taking into account the particularities of the Company’s or the Company’s Affiliate’s relationship with such Beneficiary, including their actual and potential contribution to the growth of the Company or the Company’s Affiliate and the development of its business. Therefore, the Company or an Affiliate of the Company is not bound by the Plan to any rule of isonomy or analogy, nor to extend to other Beneficiaries any condition, benefit or resolution that it deems applicable only to certain Beneficiaries. The Board of Directors may also establish special treatment for exceptional cases during the term of each grant, provided that the rights already granted to Beneficiaries and the basic principles of the Plan are not affected. Such exceptional treatment will not constitute a precedent that can be invoked by other Beneficiaries.
5.3 Adherence to the Plan shall imply the irrevocable and irreversible acceptance by the Beneficiary of all the conditions of this Plan and, where applicable, of the respective Program, as well as the irrevocable and irreversible commitment to, upon exercising the Option, adhere to the Company’s corporate documents and shareholders’ agreement, as applicable, on the date of exercise of the Option.
6- THE EXERCISE OF THE SHARE SUBSCRIPTION OPTION
6.1 Unless otherwise provided for in the Program or the Term of Adhesion, the Options granted under this Plan may only be exercised after the first anniversary of the date of signature of the Term of Adhesion (“Initial Vesting Period”), when, then, 1/3 (one-third) of the total number of Options granted by the Term of Adhesion may be exercised (“Initial Quantity”); and from thereon, 1/24 of the total of the Options may be exercised on each following month (“Monthly Vesting Period”). The Initial Vesting Period and/or the Monthly Vesting Period and/or the Initial Quantity may be altered in the Subscription Agreement.
6.1.1 Each Program or Adhesion Agreement may provide that, in the occurence of a Liquidity Event, 25% (twenty-five) percent (or a different amount, at the discretion of the Board of Directors and subject to express provision in the Program or Adhesion Agreement) of the total quantity of Options not yet exercised and granted using the Adhesion Agreement shall become exercisable.
6.1.2 Liquidity Event means (i) the registration of the Company or the Company’s securities with the Securities and Exchange Commission or equivalent body in Brazil or abroad; and/or (ii) the listing of shares issued by the Company on one or more stock exchanges or organized over-the-counter markets, through a primary offering of shares (“IPO”).
6.1.3 In the event of a Liquidity Event, the Company must send notification to the Beneficiaries, within 30 (thirty) days of the closing date of the transaction (“Date of the Transaction”), informing them of the transaction and requesting that the Beneficiaries express whether or not they wish to exercise the Option, by the Date of the Transaction, under penalty of losing the right to exercise the Option, once the transaction has been concluded without the Beneficiary demonstrating their interest in exercising the Option, without any amounts being due to the Beneficiaries.
6.2 Unless otherwise provided for in the Program, all Options granted under this Plan, provided that they are exercisable per Clause 6.1 above, must be exercised within 4 (four) years from the date of their availability for exercise, or within 3 (three) months from the end of the professional relationship between the Beneficiary and the Company and/or the Company’s Affiliate, whichever occurs first (“Exercise Window”).
6.3 Under penalty of tacit waiver without any right to compensation, the Beneficiaries shall exercise their Options, provided that they are exercisable per Clause 6.1 above, during the Exercise Window by sending a formal written notice to the Company, which shall then take all the necessary steps to formalize such exercise through a General Shareholders’ Meeting and registration in the corporate books.
6.4 The Beneficiary shall not have any of the rights and privileges of a shareholder of the Company until the Options are duly exercised and the Shares subject to the Options are owned by him.
6..5 The Shares acquired as a result of the exercise of Options shall remain inalienable and non-transferable for a period of one (1) month as from the exercise of the Option, and the Beneficiary may not offer, sell, negotiate or promise to sell, pledge or in any way dispose of or encumber, directly or indirectly, these Shares, except in the event of a Lock-up Liquidity Event. The Board of Directors may establish, within the scope of each Program, different Lock-up periods or, furthermore, that the Lock-up will not be applicable within the scope of a given Program.
7. TRANSFER OF OPTIONS BY BENEFICIARIES
7.1 The Options are granted on a personal basis and may not be sold or exercised by any person, legal or natural, other than the Beneficiary.
7.1.1 Any attempt to negotiate or sell to a third party, in any capacity whatsoever, shall authorize the Board of Directors, at its sole discretion, to revoke the Options held by the Beneficiary in question, without any indemnity or compensation being due.
8. TERMINATION OF THE OPTION
8.1 Subject to the provisions of the other Clauses of this Chapter 8, the Options shall extinguish fully, regardless of prior notice or compensation due to the Beneficiary, in the following cases:
a) by the full exercise of the Option by the Beneficiary;
b) during the Exercise Window;
c) by the Beneficiary’s dismissal, at the Company’s initiative, with Cause;
d) if the Beneficiary is dismissed by the Company without Cause; and/o
e) rthe Beneficiary’s withdrawal at the Beneficiary’s initiative.
8.1.1 In the cases (a), (b) and (c) provided for in Item 8.1 above, the Beneficiary shall not be entitled to any amount (in any capacity whatsoever, including by way of reimbursement or indemnity) or right that has not been effectively exercised up to the date of Dismissal. The Beneficiary shall therefore not have any claim or right to any Shares that have not been subscribed and paid up by the date of Dismissal.
8.1.2 Unless expressly provided for within the scope of a Program and/or Adhesion Term, in the cases (d) and (e) provided for in Item 8.1 above, if the Severance occurs after the expiration of the Initial Vesting Period, the Beneficiary shall be entitled to a pro-rata amount of the unvested Options, based on the portion of the total Vesting Period during which he/she remained linked to the Company until his/her Dismissal, as defined within the scope of each Program.
8.1.3 In the event of the death, retirement or permanent disability of a Beneficiary, provided that this is proven by an appropriate document issued by a competent authority, the Options shall automatically lapse, in which case the Beneficiary shall cease to have any claim or right to the Options and the Shares resulting from the exercise of the Options, but shall be indemnified, to the Options already exercisable, in an amount equivalent to the Fair Value (as defined below) of the Shares that would have been acquired as a result of the exercise of the Options.
8.2 The Board of Directors shall have the broad authority to establish, in each Program, rules and conditions applicable to cases of Termination and extinction of Options other than the rules and conditions provided for above, in which case the rules and conditions established in the Program in question shall prevail.
8.3 For the purposes of this Plan, “Dismissal” means the termination of the legal relationship of director, executive or employee between the Beneficiary and the Company or its Subsidiaries, for any reason, including without limitation resignation, dismissal, replacement or termination of the term of office without re-election to the position of director, voluntary resignation or dismissal, with or without just cause, retirement, permanent disability or death. For the sake of clarity, the following is hereby established that any dismissal of the Beneficiary from the position of administrator, executive or employee of the Company or its Subsidiaries followed by the election and investiture or hiring of such Beneficiary for another position as administrator, executive or employee of the Company or its Subsidiaries does not characterize Dismissal, for this Plan.
8.4 For the purposes of this Plan, “With Cause” means, in relation to the Beneficiary, (i) if he/she is an employee, any of the cases of just cause provided for in the Labor Laws and labor legislation applicable at the time; or (ii) if he/she is a non-employee statutory administrator or service provider, any of the following cases: (a) dereliction of duty in the performance of the duties arising from his/her term of office as a manager or service contract; (b) final and unappealable criminal conviction related to intentional crimes; (c) the practice of dishonest or fraudulent acts against the Company or its subsidiaries or that violate the Company’s compiiance rules; (d) any act or omission resulting from the Participant’s willful misconduct or fault and which is detrimental to the business, image, or financial situation of the Company, its partners, or any of the Company’s affiliates; (e) violation of the legal duties applicable to managers of corporations (even if the Beneficiary is not a statutory manager of the Company or its subsidiaries), as provided for in the Brazilian Corporation Law, including, but not limited to, those provided for in arts. 153 to 157; or (f) non-compliance with a service agreement or any other contractual instrument entered into by the Participant with the Company or its subsidiaries.
9. BENEFICIARIES’ RIGHTS AND OBLIGATIONS
9.1 The exercise of the Option will be conditional on the unrestricted acceptance by the Beneficiary of the Company’s corporate documents, such as its bylaws and shareholders’ agreement in force or to be entered into at the time of exercise, according to the copy to be provided to the Beneficiary at the time of exercise.
9.2 The Company shall have the right, at any time, to purchase all the Shares acquired by the Beneficiary as a result of the exercise of the Options (“Option Purchase Rights”) for an amount equivalent to the Fair Value of the Shares subject to the Call Option on the date of exercise of the Call Option. For this Clause, “Fair Value” means (i) in the case of the Sale of the Company, the valuation of the Shares carried out immediately before said Sale of the Company; or (ii) in the case of the consummation of an IPO, the lowest closing value of the shares on the stock exchanges on which the Company is listed on the day immediately before the payment date; or (iii) in any other case, based on the value of the last trading of the Company’s shares on the market.
9.2 The Shares acquired by the Company as a result of exercising the Option Purchase Rights may not be sold to third parties for more than Fair Value for a period of 180 (one hundred and eighty) days from the date of acquisition.
9.3 Without prejudice to the Call Option, the Company shall also have the right to require the Beneficiaries to exercise their exercisable Options and/or sell their Shares to a third party at any time, provided that thirty (30) days’ prior written notice is given, and provided that such a sale occurs in the context of a Liquidity Event.
9.4 The exercise of the Option by the Beneficiary will be conditional on maintaining the confidentiality of all information, data, figures, transactions or matters that are not available to the public, whether in written, oral, visual or digital form, in the form of a document or not, whether or not identified as “confidential” by the Company and/or the Company’s Affiliate, including, but not limited to, those contained in the Adhesion Agreement.
10. EFFECTIVE DATE AND END OF THE PLAN
This Plan shall become effective immediately after its approval by the General Shareholders’ Meeting and shall remain effective for an indefinite period, and may be terminated at any time by decision of the Company’s General Shareholders’ Meeting.
11. GENERAL PROVISIONS
11.1 Any significant legal change concerning corporate regulations or the tax effects of a subscription option plan may lead to a full review of the Plan.
11.2 Once the Option has been duly exercised by a Beneficiary, he/she shall have the same rights and obligations as the other shareholders of the Company.
11.3 Any Option granted under the Plan shall be subject to all the terms and conditions set forth herein, which terms and conditions shall apply, as applicable, to any program or contract or agreement mentioned herein.
11.4 The granting of options under the terms of the Plan shall not prevent the Company from engaging in corporate reorganization operations, such as transformation, incorporation, merger and spin-off. The Company’s Board of Directors and the companies involved in such operations may, at their discretion, determine, without prejudice to other measures that they decide are equitable: (a) the replacement of the shares that are the object of this acquisition option with shares of the Company’s successor company; (b) the anticipation of the acquisition of the right to exercise the option to acquire the shares, to ensure the inclusion of the corresponding shares in the operation in question; and/or (c) the payment in cash of the amount to which the Beneficiary would be entitled under the terms of the Plan.
11.5 Should the number, type and class of shares existing on the date of approval of the Plan be altered as a result of bonuses, splits, reverse splits or conversion of shares of one type or class into another or conversion into shares of other securities issued by the Company, the Company’s Board of Directors shall make the corresponding adjustment to the number, type and class of shares subject to the options granted and their respective exercise price, to avoid distortions in the application of the Plan.
11.6 The rights and obligations arising from the Plan and the Adhesion Agreement may not be assigned or transferred, in whole or in part, by any of the parties, or pledged as security for obligations, without the prior written consent of the Company.
11.7 Omissions shall be regulated by the Board of Directors, in consultation with the Company’s General Shareholders’ Meeting when it deems it appropriate. Any Option granted under the Plan shall be subject to all the terms and conditions set out herein, which terms and conditions shall prevail in the event of any inconsistency concerning the provisions of any contract or document mentioned in this Plan.
11.8 It is expressly agreed that the abstention of either party from exercising any right, power, remedy or option guaranteed by law, by the Plan or by the Adhesion Agreement shall not constitute a novation, nor shall any tolerance of delay in the fulfillment of any obligations by either party, which shall not prevent the other party, at its sole discretion, from exercising these rights, powers, remedies or options at any time, which are cumulative and not exclusive of those provided for by law.
11.9 This Plan shall be governed by the Laws of the Federative Republic of Brazil.
Exhibit 4.40
[FORM OF]
ADHERENCE AGREEMENT TO
NUVINI S.A. STOCK OPTION SUBSCRIPTION PLAN
I, [ ], [ ], residing at [ ] (“Beneficiary”), hereby declare, through this “Adherence Agreement to the Nuvini S.A. Stock Option Subscription Plan” (“Adherence Agreement”), that I have read, analyzed, agreed to, and fully accepted, without any reservations, all the terms and conditions established in the “Nuvini S.A. Stock Option Subscription Plan” (“Plan”), registered under CNPJ number [ ], headquartered in the Municipality of São Paulo, State of São Paulo, at Rua Jesuíno Arruda, No. 769, Suite 20-B, Itaim Bibi, ZIP Code 04532-082, (“Company”) as approved at the extraordinary general meeting of the Company held on June 30, 2021 (“Plan”), under the following terms and conditions:
(i) Object: By exercising the Options granted to the Beneficiary by the Company under the Plan, the Beneficiary shall have the right to subscribe up to [ ] ([ ]) Shares, subject to the Initial Lock-up Period and the Monthly Lock-up Period.
(ii) Initial Lock-up Period: 12 (twelve) months, starting from [ ] (“Initial Lock-up Period”). After the Initial Lock-up Period, the Beneficiary may exercise the Initial Quantity of Options, equivalent to 1/3 (one-third) of the total Options granted.
(iii) Monthly Lock-up Period: Starting from the end of the Initial Lock-up Period, 1/24 (one twenty-fourth) of the total Options that are not exercisable on the date of the end of the Initial Lock-up Period, as per item “ii” of this Adherence Agreement, may be exercised in each of the subsequent months (“Monthly Lock-up Period”), until reaching 100% (one hundred percent) of the Options granted to the Beneficiary, as per item “i” of this Adherence Agreement.
(iv) Vesting Acceleration: In the event of a Liquidity Event, as defined in the Plan, 50% (fifty percent) of the Options that are not exercisable on the date of the Liquidity Event will become exercisable, as per clause 6.1.3 of the Plan, provided that, in this case, the Lock-up period provided in clause 6.5 of the Plan will be reduced to 6 (six) months.
(v) Value: In the event of the full exercise of the Options, the Beneficiary shall have the right to subscribe to the Shares resulting from the exercise of the Options for the total amount of R$ [ ] ([ ]) (“Option Value”). To avoid any doubts, in the event of partial exercise of the Options, the Option Value shall be proportionally reduced to the number of Shares subject to the partially exercised Options, in relation to the total number of Shares subject to the Options.
(vi) Exercise: To exercise the Options, the Beneficiary shall, within the Exercise Window, send formal written notification (“Exercise Notification”) to the Company, which shall take all necessary steps to formalize such exercise of Options, including by holding a general meeting or board meeting of the Company and recording it in the corporate books, provided that:
(a) The Beneficiary’s silence shall be interpreted as a tacit waiver of the acquisition of the Shares and all rights inherent thereto, without any amount being due to the Beneficiary in case of non-exercise of the Options.
(b) Once the Exercise Notification is received, the Company shall inform the Beneficiary of the date of the general meeting or board meeting of the Company that will resolve on the issuance of the Shares (“Date of Share Issuance”), and the Beneficiary shall pay the Option Value to the Company, in national currency or by offsetting credits held against the Company, until the Date of Share Issuance, under penalty of a tacit waiver of all rights to the Options, including the claim for the Shares, without any amount being due by the Company to the Beneficiary.
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(vii) Agreement with the terms and conditions of the Plan: The Beneficiary declares that they are aware of all the terms and conditions of the Plan, a copy of which is hereby provided to the Beneficiary. Additionally, the Beneficiary declares their unrestricted and irrevocable agreement to the Plan, including:
(a) The conditions necessary for the subscription and exercise of the Options, such as the unrestricted and irrevocable adherence to the corporate documents and shareholders’ agreement of the Company, as in force or as may be executed on the date of the exercise of the Options.
(b) The conditions applicable to the Options as provided in the Plan, including the possible declaration of lapse, such as in the case of dismissal for just cause, without any right to compensation or reimbursement by the Company and/or Affiliate of the Company.
(c) The maintenance of the confidentiality and secrecy of all information, data, numbers, transactions, or matters that are not available to the public, whether in written, oral, visual, or digital form, whether in the form of a document or not, identified or not as “confidential” by the Company and/or Affiliate of the Company, including, but not limited to, the information contained in this Adherence Agreement.
(viii) Corporate Reorganization: The Beneficiary acknowledges and agrees that:
(a) The corporate reorganization operations provided for in clause 11.4 of the Plan include all and any operations aimed at transferring the Company’s shareholding base to other entities, in Brazil or abroad, which will become the Company’s holding companies and holders of its shares, directly or indirectly, including flips and roll-ups of the shareholding base to other entities, as well as other equivalent operations, of any nature, as defined by the Company, at its sole discretion.
(b) In the event of corporate reorganization referred to in item “a” of this clause, the Beneficiary undertakes to take all necessary steps for the implementation of the operation, as requested by the Company’s management, as well as to fully and irrevocably adhere to the corporate documents and shareholders’ agreements of the entity to which the Company’s shareholding base is transferred, as in force or as may be executed on the date of the operation, under penalty of automatically losing all rights to exercise the Options, including the claim for the Shares, without any amount being due by the Company to the Beneficiary.
(c) In the event of corporate reorganization, including those indicated in item “a” of this clause, the Beneficiary undertakes to accept and carry out the measures determined by the Company’s Board of Directors, as provided in clause 11.4 of the Plan, under penalty of automatically losing all rights to exercise the Options, including the claim for the Shares, without any amount being due by the Company to the Beneficiary.
(d) If, in the context of a corporate reorganization, the Company’s Board of Directors determines the early acquisition of the right to exercise the Options, as provided in clause 11.4(b) of the Plan, the Company’s Board of Directors may determine a deadline for the early exercise of the Options by the Beneficiary, and the non-exercise of the Options, in whole or in part, within such deadline shall automatically constitute a tacit waiver of all rights to the Options not exercised, including the claim for the Shares, without any amount being due by the Company to the Beneficiary.
2
(ix) Risk of Exercising the Options: The exercise of the Options is done at the Beneficiary’s own risk, and the Company is not responsible for any loss of capital invested by the Beneficiary after exercising their respective Options.
(x) Personal Character: The Beneficiary acknowledges that the Options are granted on a personal basis and cannot be transferred or exercised by any person, legal or natural, other than the Beneficiary.
(xi) Taxes: The Beneficiary shall be solely and entirely responsible for making the respective tax payments (including financial or capital gains), declarations, and/or other necessary or required formalities, if any, related to the Plan and this Adherence Agreement, except in cases that may be subject to withholding by the Company, in which case the Beneficiary hereby authorizes the Company to withhold such amounts.
(xii) Independent Advice: The Beneficiary acknowledges and agrees that, in analyzing and complying with the provisions of the Plan and this Adherence Agreement, as well as in the tax treatment of the Options, they are relying on their own independent legal and tax advisors.
(xiii) Defined Terms: Terms starting with uppercase letters not otherwise defined shall have the meanings ascribed to them in the Plan.
(xiv) Superseding Previously Granted Subscription Options: The Beneficiary acknowledges and agrees that the Options granted herein, with the terms and conditions set forth in this Adherence Agreement, supersede and replace, for all purposes, all and any subscription options, purchase options, and/or any other equivalent rights that may have been granted to the Beneficiary by the Company and/or Keiretsu Tecnologia S.A., a corporation registered under CNPJ number 35.603.880/0001-75, headquartered in the Municipality of São Paulo, State of São Paulo, at Rua Jesuíno Arruda, No. 769, Suite 20, Itaim Bibi, ZIP Code 04532-082, incorporated by the Company, as resolved at the extraordinary general meetings of both companies held on June 30, 2021, and/or any documents that provided for other terms and conditions that could be applicable to the Options, granting a full release to the Company, its shareholders, and its Affiliates, from any further claims or demands, of any nature, at any time, in this regard.
(xv) Prevalence of the Adherence Agreement: In case of conflict between the provisions of this Adherence Agreement and the Plan, the provisions of this Adherence Agreement shall prevail, for all purposes.
(xvi) Electronic Signature: This Adherence Agreement is fully valid in electronic format, being considered equivalent to a physical document for all legal purposes. The electronic signature of this Adherence Agreement on the DocuSign platform, Clicksign, or any other equivalent platform, even if by means of an electronic signature platform not accredited by the Brazilian Public Key Infrastructure (ICP-Brasil) and without a digital signature certificate, was chosen as the means of mutual agreement by the signatories to prove authorship and integrity of this Adherence Agreement and to give it full legal effect, as if it were a physical document, pursuant to Article 10, §2 of Provisional Measure no. 2.200-2/2001. All signatures affixed to this Adherence Agreement in electronic format, as provided in this clause, are fully valid and sufficient for authenticity, integrity, existence, and validity of this Adherence Agreement, including for the purposes of Provisional Measure no. 2.200-2/2001, Law no. 13.874/2019, and Decree no. 10.278/2020.
3
São Paulo, [ ], 20[ ].
Beneficiary:
[ ]
Company:
NUVINI S.A.
[ ]
Witnesses:
| 1. |
2. | |
| Nome: |
Nome: | |
| CPF: |
CPF: |
4
Exhibit 4.42
September 28, 2023
VIA EMAIL
Mercato Partners Acquisition Corporation
2750 E. Cottonwood Parkway, Suite #500
Cottonwood Heights, Utah
Attention: Scott Klossner
Email: sklossner@mercatopartners.com
with copies to:
Latham & Watkins LLP
811 Main Street, Suite 3700
Houston, Texas 77002
Attention: Ryan Maierson; Drew Capurro; Thomas Verity
Email: ryan.maierson@lw.com; drew.capurro@lw.com; thomas.verity@lw.com
and
Machado Meyer Sendacz e Opice Advogados
Av. Brigadeiro Faria Lima 3200
São Paulo – SP/Brazil
Attention: Mariana Meditsch
Email: mmeditsch@machadomeyer.com.br
Re: Letter Agreement
To the addressees set forth above,
Reference is made to that certain Business Combination Agreement (the “Business Combination Agreement”), made and entered into as of February 26, 2023, by and among Nuvini Holdings Limited, an exempted company incorporated with limited liability in the Cayman Islands (the “Company”), Nvni Group Limited, an exempted company incorporated with limited liability in the Cayman Islands (“New PubCo”), Nuvini Merger Sub, Inc., a Delaware corporation (“Merger Sub” and, together with the Company and New PubCo, the “Company Parties”), and Mercato Partners Acquisition Corporation, a Delaware corporation (“SPAC”). Each Company Party and SPAC will individually be referred to herein as a “Party” and, collectively, as the “Parties”. Capitalized terms used herein without definition have the meanings given to them in the Business Combination Agreement.
| 1. | Waiver of Obligation to Deliver Documentation Five Business Days Prior to the Closing Date. |
Section 3.2(f) of the Business Combination Agreement provides that, among other things, (i) at the Merger Effective Time, New PubCo shall assume the Company Equity Plan, and all references to “Company” in the Company Equity Plan and the documents governing the Company Equity Plan after the Merger Effective Time will be deemed references to New PubCo, and each Company Option, whether vested or unvested, that is outstanding and unexercised as of immediately prior to the Contribution Effective Time shall automatically cease to represent the right to purchase Company Ordinary Shares and shall be canceled and extinguished in exchange for a number of Rollover Option, (ii) prior to the Closing, the Company Parties shall take, or cause to be taken, all necessary or appropriate actions under the Company Equity Plan (and the underlying grant, award or similar agreements) to give effect to the provisions of Section 3.2(f) of the Business Combination Agreement and (iii) no less than five (5) Business Days prior to the Closing Date, the Company Parties shall provide to SPAC copies of all such necessary or appropriate actions (the “Documentation”) and a meaningful opportunity to provide comments, which comments will be considered in good faith.
SPAC hereby waives the obligation of the Company Parties to provide the Documentation to SPAC no less than five (5) Business Days prior to the Closing Date; provided, however, that, notwithstanding the foregoing, solely in the event the Company Parties do not take the actions set forth in Section 3.2(f) of the Business Combination Agreement such that the Company Equity Plan is assumed by New PubCo prior to the Closing, the Company Parties shall take any and all such actions set forth in Section 3.2(f) of the Business Combination Agreement such that the Company Equity Plan will be assumed by New PubCo in accordance with its Governing Documents no later than the Business Day immediately following the Closing Date and the board of directors of New PubCo shall have a meaningful opportunity to review and provide comments, which comments will be considered in good faith.
| 2. | Amendment to Business Combination Agreement. |
SPAC hereby agrees that the definition of “New PubCo Equity Plan Amount” shall be amended and restated in its entirety to be as follows:
“New PubCo Equity Plan Amount” shall mean a number equal to five percent (5%) of the Fully Diluted Share Count (exclusive of the New PubCo Equity Plan Amount).
| 3. | Miscellaneous. |
The Parties acknowledge that Section 3 of this letter agreement constitutes a valid and binding amendment under Section 11.12 of the Business Combination Agreement.
Except for the amendments, acknowledgements, confirmations, consents and waivers expressly provided for in this letter agreement, the Business Combination Agreement and each other Transaction Agreement and all of the terms, conditions and covenants contained herein and therein shall remain in full force and effect, without any modification whatsoever.
The provisions of Section 11.3 (Counterparts; Electronic Delivery), Section 11.7 (Governing Law) and Section 11.8 (Consent to Jurisdiction; Waiver of Jury Trial) of the Business Combination Agreement shall apply to this letter agreement mutatis mutandis.
[Signature page follows]
2
| Very truly yours, | ||
| NUVINI HOLDINGS LIMITED | ||
| By: | /s/ Pierre Schurmann | |
| Name: Pierre Schurmann | ||
| Title: Director | ||
| NVNI GROUP LIMITED | ||
| By: | /s/ Pierre Schurmann | |
| Name: Pierre Schurmann | ||
| Title: Director | ||
| NUVINI MERGER SUB, INC. | ||
| By: | /s/ Pierre Schurmann | |
| Name: Pierre Schurmann | ||
| Title: Director | ||
| The above is agreed to and accepted this 28th day of September, 2023 | ||
| MERCATO PARTNERS ACQUISITION CORPORATION | ||
| By: | /s/ Scott Klossner | |
| Name: Scott Klossner | ||
| Title: Chief Financial Officer | ||
[Signature Page to Waiver and Amendment]
Exhibit 15.1
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the shell company report on Form 20-F to which this exhibit is attached (the “Form 20-F”) and, if not defined in the Form 20-F, in the proxy statement/prospectus dated September 7, 2023 (the “Proxy Statement/Prospectus”) filed by New Nuvini with the SEC as part of its Registration Statement on Form F-4 (File. No. 333-272688).
Introduction
The following unaudited pro forma condensed combined financial information provides additional information regarding the financial aspects of the Business Combination of Nuvini, New Nuvini, Merger Sub and Mercato, including the related transactions that fall within the scope of the Business Combination.
Description of Business Combination
On February 26, 2023, Nuvini, New Nuvini, Merger Sub and Mercato entered into the Business Combination Agreement which contains customary representations and warranties, covenants, closing conditions, termination provisions and other terms relating to the transactions contemplated thereby.
The Business Combination was consummated on September 29, 2023 (the “Closing Date”). Upon consummation of the Business Combination, Nuvini Shareholders contributed all their issued and outstanding Nuvini Ordinary Shares, in the context of the Contribution, to New Nuvini, in exchange for newly issued New Nuvini Ordinary Shares. As a result, Nuvini became a wholly-owned subsidiary of New Nuvini.
The transaction was unanimously approved by Mercato stockholders, and the closing conditions set forth in the Business Combination Agreement were satisfied. Merger Sub merged with and into Mercato, with Mercato as the surviving entity.
As a result of the above transactions, Mercato became a direct, wholly-owned subsidiary of Intermediate 2, which is indirectly wholly owned by New Nuvini, and New Nuvini is controlled by Nuvini Shareholders and Mercato stockholders. Their rights as New Nuvini Shareholders will be governed by New Nuvini’s organizational documents adopted on the Closing Date and under Cayman Islands law.
For more information about the Business Combination, please see the section titled “The Business Combination and Ancillary Documents” in the Proxy Statement/Prospectus.
Accounting Treatment of the Business Combination
New Nuvini has been determined to be the accounting acquirer of Mercato based on evaluation of the following facts and circumstances:
| • | Nuvini Shareholders have the largest voting interest in New Nuvini; |
| • | the New Nuvini Board has up to seven members, and Nuvini Shareholders have the ability to nominate at least the majority of the members of the New Nuvini Board; |
| • | Nuvini’s senior management is the senior management of New Nuvini, with the exception of the CFO, which role will be undertaken by Scott Klossner, CFO of Mercato Partners Acquisition Corporation; |
| • | the business of Nuvini will comprise the ongoing operations of New Nuvini; and |
| • | Nuvini is the larger entity, in terms of substantive operations and employee base. |
Mercato does not meet the definition of a “business” pursuant to IFRS 3 Business Combinations, and therefore the Business Combination is expected to be considered a capital transaction and shall be accounted for as a share-based payment transaction under IFRS 2 Share-Based Payments, whereby New Nuvini will issue shares for Mercato’s net assets. Under this method of accounting, the acquisition of Mercato will be stated at historical cost, with no goodwill or other intangible assets recorded.
The difference between the fair value of the equity instruments issued to acquire Mercato and the fair value of the identifiable net assets acquired represents a stock exchange listing expense, as further discussed in Note 2 to the unaudited pro forma condensed combined financial information. This expense will be recognized immediately upon the consummation of the Business Combination.
Accordingly, the financial statements of Nuvini S.A. will become the historical financial statements of New Nuvini and the assets, liabilities and results of operations of Mercato will be consolidated with New Nuvini as from the Closing Date.
Basis of Pro Forma Presentation
The unaudited pro forma condensed combined financial information has been prepared in accordance with Article 11 of Regulation S-X, as amended by the final rule, Release No. 33-10786. The adjustments in the unaudited pro forma condensed combined financial information have been identified and presented to provide relevant information in accordance with IFRS necessary for an illustrative understanding of New Nuvini upon consummation of the Business Combination. Assumptions and estimates underlying the unaudited pro forma adjustments set forth in the unaudited pro forma condensed combined financial information are described in the accompanying notes.
The unaudited pro forma condensed combined statement of financial position as of December 31, 2022 combines the historical audited consolidated statement of financial position of Nuvini S.A. as of December 31, 2022 with the historical audited balance sheet of Mercato as of December 31, 2022, giving pro forma effect to the Business Combination as if it had been consummated as of December 31, 2022.
The unaudited pro forma condensed statements of income for the year ended December 31, 2022 combines the historical audited consolidated statement of loss and comprehensive income of Nuvini S.A. for the year ended December 31, 2022 with the historical audited statement of operations of Mercato for the year ended December 31, 2022, giving pro forma effect to the Business Combination as if it had been consummated as of January 1, 2022, the beginning of the earliest period presented.
This information should be read together with the audited and unaudited historical financial statements of each of Nuvini S.A. and Mercato, including the notes thereto, as well as the disclosures contained in the sections titled “Nuvini S.A. Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Mercato Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “The Business Combination,” “The Special Meeting of Mercato Stockholders” and other financial information included elsewhere in this proxy statement/prospectus.
Transaction costs related to the Business Combination will include all fees, costs, and expenses, paid or payable, by (a) any of the Nuvini Group companies, New Nuvini or Merger Sub and (b) Mercato or any of its affiliates, prior to and through the Closing Date. New Nuvini will pay, or cause to be paid, all transaction costs that remain unpaid as of the Closing Date.
This unaudited pro forma condensed combined financial information has been prepared for illustrative purposes only and is based on assumptions and estimates made and considered appropriate by Nuvini S.A.’s and Mercato’s management based on information available as of the date of these unaudited pro forma condensed combined financial information and are subject to change as additional information becomes available and analyses are performed. This unaudited pro forma condensed combined financial information is not necessarily indicative of the operating results and financial position that would have been achieved had the Business Combination occurred on the dates indicated and does not reflect adjustments for any anticipated synergies, operating efficiencies, tax savings or cost savings. The unaudited pro forma condensed combined financial information does not purport to project the future consolidated financial position or results of operations of New Nuvini following the completion of the Business Combination.
The unaudited pro forma condensed combined financial information may not be useful in predicting the future financial condition and results of operations of New Nuvini following the Closing Date. The adjustments included in this unaudited pro forma condensed combined financial information are preliminary and subject to change. Future results may vary significantly from the results reflected due to various factors, including those discussed in the section titled “Risk Factors,” of the Proxy statement/Prospectus.
The historical financial statements of Nuvini S.A. have been prepared in accordance with IFRS and in its presentation currency of the Brazilian real (R$). The historical financial statements of Mercato have been prepared in accordance with U.S. GAAP and in its presentation currency of the U.S. dollar ($). The unaudited pro forma condensed combined financial information reflects IFRS, the basis of accounting to be used by New Nuvini, and the accounting policy differences identified are discussed in Note 2 to the unaudited pro forma condensed combined financial information. Mercato and Nuvini S.A. did not have any historical relationship prior to the Business Combination. Accordingly, no pro forma adjustments were required to eliminate activities between the entities.
The unaudited pro forma condensed combined financial information has been prepared to give effect to the redemption of 4,204,655 New Nuvini Class A Ordinary Shares in connection with the redemption by Public Stockholders who exercised their redemption rights prior to the Special Meeting (the “Final Redemptions”).
The following table summarizes the pro forma New Nuvini Ordinary Shares issued and outstanding and New Nuvini Ordinary Shares reserved for issuance immediately after the Business Combination, exclusive of the exercise of any New Nuvini Warrants that will become exercisable 30 days after the Closing Date:
| Number of Shares |
|
Percent of Shares | ||||||||||
| Shares held by former Nuvini Shareholders (1) |
24,016,662 | 75.96 | % | |||||||||
| Shares held by current Public Stockholders (2) |
95,708 | 0.30 | % | |||||||||
| Shares held by the Mercato Founders (3) |
5,750,000 | 18.19 | % | |||||||||
| Shares held by Maxim |
475,000 | 1.50 | % | |||||||||
| PIPE Investors (4) |
1,280,000 | 4.05 | % | |||||||||
|
|
|
|
|
|
|
|||||||
| Total New Nuvini Ordinary Shares |
31,617,370 | 100.00 | % | |||||||||
| (1) | Pursuant to the Business Combination Agreement, the aggregate number of New Nuvini Ordinary Shares issued to the existing Nuvini Shareholders on the Closing Date will be 24,016,662 shares, based on the number of ordinary shares of Nuvini Holdings Limited outstanding as of September 29, 2023, of which, (a) 20,132,291 New Nuvini Ordinary Shares were issued on the Closing Date to legacy Nuvini shareholders; and (b) the following amounts of New Nuvini Ordinary Shares were reserved: (i) 2,740,721 New Nuvini Ordinary Shares issuable upon exercise which are associated with liabilities payable in shares such as loan premium, subscription rights, and contingent consideration assumed by New Nuvini as a result of the Business Combination; and (ii) 1,143,650 New Nuvini Ordinary Shares under the New Nuvini 2023 Incentive Plan. On the Closing Date, (1) each issued and outstanding Nuvini Ordinary Share held by the Nuvini Shareholders will be contributed in kind to New Nuvini and (2) each Nuvini Option will automatically cease to represent the right to purchase Nuvini Ordinary Shares and will be canceled and extinguished in exchange for an option to purchase New Nuvini Ordinary Shares. |
| (2) | Reflects the Final Redemptions of 4,204,655 Mercato Class A Ordinary Shares by Public Stockholders. |
| (3) | The Initial Stockholders have waived their redemption rights in connection with the consummation of the Business Combination with respect to any shares of Mercato Common Stock held by them. |
| (4) | Includes 1,280,000 New Nuvini Ordinary Shares issued to certain investors (the “PIPE Investors”) as a result of Mercato entering into separate subscription agreements with such investors (the “Subscription Agreements”). The PIPE Investors agreed to subscribe for and purchase, and Mercato agreed to issue and sell to the PIPE Investors, immediately prior to the Closing Date, an aggregate of 1,280,000 shares of Mercato Class A common stock, par value $0.0001 per share (“Mercato Common Stock”) for a purchase price of $10.00 per share, for aggregate gross proceeds of $12.8 million (the “PIPE Investment”). Upon consummation of the Business Combination, these shares will be exchanged for New Nuvini Ordinary Shares. |
The unaudited pro forma condensed combined financial information does not purport to project the future financial position or operating results of New Nuvini following the Business Combination. The unaudited pro forma adjustments represent Mercato’s and Nuvini S.A.’s management’s estimates based on information currently available as of the date of these unaudited pro forma condensed combined financial statements and are subject to change as additional information becomes available and analyses are performed. The assumptions and estimates underlying the unaudited pro forma adjustments are described in the accompanying notes. Actual results may differ materially from the assumptions used, including in respect of the matters further described in Note 1 to the unaudited pro forma condensed combined financial information, to present the unaudited pro forma condensed combined financial information.
Unaudited Pro Forma Condensed Combined Balance Sheet
As of December 31, 2022
(In thousands)
| As of December 31, 2022 | ||||||||||||||||||||
| Nuvini S.A. (Historical) (R$) |
Mercato Partners Acquisition Corporation (Historical) (Note 2) (R$) |
Pro Forma Transaction Accounting Adjustments |
Pro Forma Combined | |||||||||||||||||
| ASSETS |
||||||||||||||||||||
| Current assets |
||||||||||||||||||||
| Cash and cash equivalents |
$ | 8,015 | $ | 276 | $ | 24,158 | (a | ) | $ | 15,249 | ||||||||||
| (80,978 | ) | (c | ) | |||||||||||||||||
| 964 | (b | ) | ||||||||||||||||||
| 64,600 | (n | ) | ||||||||||||||||||
| (1,786 | ) | (f | ) | |||||||||||||||||
| Trade accounts receivable, net |
10,076 | — | 10,076 | |||||||||||||||||
| Prepaid expenses |
— | 540 | 540 | |||||||||||||||||
| Other current assets |
2,184 | — | 2,184 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Total current assets |
20,275 | 816 | 6,958 | 28,049 | ||||||||||||||||
| Non-current assets |
||||||||||||||||||||
| Property and equipment, net |
2,932 | — | 2,932 | |||||||||||||||||
| Right-of-use assets, net |
1,441 | — | 1,441 | |||||||||||||||||
| Investments held in Trust Account |
— | 1,236,119 | (985,539 | ) | (d | ) | — | |||||||||||||
| (226,422 | ) | (m | ) | |||||||||||||||||
| (24,158 | ) | (a | ) | |||||||||||||||||
| Intangible assets, net |
138,951 | — | 138,951 | |||||||||||||||||
| Goodwill |
199,512 | — | 199,512 | |||||||||||||||||
| Other non-current assets |
3,954 | — | 3,954 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Total non-current assets |
346,790 | 1,236,119 | (1,236,119 | ) | 346,790 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| TOTAL ASSETS |
367,065 | 1,236,935 | (1,229,161 | ) | 374,839 | |||||||||||||||
| LIABILITIES AND EQUITY |
||||||||||||||||||||
| Current liabilities |
||||||||||||||||||||
| Accounts payable |
7,283 | 1,297 | (1,111 | ) | (c | ) | 7,469 | |||||||||||||
| Accrued expenses |
— | 1,423 | (1,240 | ) | (c | ) | 183 | |||||||||||||
| Subscription rights |
39,343 | — | (39,343 | ) | (g | ) | ||||||||||||||
| Related parties |
846 | 17 | 863 | |||||||||||||||||
| Franchise tax payable |
— | 874 | 874 | |||||||||||||||||
| Salaries and labor charges |
15,015 | — | 15,015 | |||||||||||||||||
| Loans and financing |
1,138 | — | 1,138 | |||||||||||||||||
| Loans premium |
200 | — | (200 | ) | (f | ) | — | |||||||||||||
| Debentures |
60,873 | — | 60,873 | |||||||||||||||||
| Exposure premium liability |
841 | — | (841 | ) | (f | ) | — | |||||||||||||
| Lease liability |
976 | — | 976 | |||||||||||||||||
| Deferred tax liability |
— | 828 | 828 | |||||||||||||||||
| Income taxes payable |
1,204 | 2,738 | 3,942 | |||||||||||||||||
| Taxes, fees and contributions payable |
4,194 | — | 4,194 | |||||||||||||||||
| Deferred revenue |
3,820 | — | 3,820 | |||||||||||||||||
| Deferred and contingent consideration on acquisitions |
194,972 | — | (83,912 | ) | (e | ) | 111,060 | |||||||||||||
| Convertible working capital loan - related party |
— | 3,861 | 964 | (b | ) | — | ||||||||||||||
| (4,825 | ) | (b | ) | |||||||||||||||||
| Other current liabilities |
1,391 | — | 1,391 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Total current liabilities |
332,096 | 11,038 | (130,508 | ) | 212,626 | |||||||||||||||
| Non-current liabilities |
||||||||||||||||||||
| Redeemable shares liability |
1,230,803 | (985,539 | ) | (d | ) | — | ||||||||||||||
| (245,264 | ) | (j | ) | |||||||||||||||||
| Loans and financing |
669 | — | 669 | |||||||||||||||||
| Loans from investors |
5,249 | — | 5,249 | |||||||||||||||||
| Derivative liabilities |
— | 1,686 | 236 | (b | ) | 1,922 | ||||||||||||||
| Taxes, fees and contributions payable |
1,154 | — | 1,154 | |||||||||||||||||
| Related parties |
3,232 | — | 3,232 | |||||||||||||||||
| Deferred and contingent consideration on acquisitions |
39,984 | — | 39,984 | |||||||||||||||||
| Lease liability |
611 | — | 611 | |||||||||||||||||
| Provisions for risks |
31,032 | — | 31,032 | |||||||||||||||||
| Deferred taxes |
45,838 | — | 45,838 | |||||||||||||||||
| Other non-current liabilities |
2,161 | — | 2,161 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Total non-current liabilities |
129,930 | 1,232,489 | (1,230,567 | ) | 131,852 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| TOTAL LIABILITIES |
462,026 | 1,243,527 | (1,361,075 | ) | 344,478 | |||||||||||||||
| Equity: |
||||||||||||||||||||
| Share capital |
40,404 | — | (40,404 | ) | (l | ) | — | |||||||||||||
| Class B common stock, $0.0001 par value; 10,000,000 shares authorized; 5,750,000 shares issued and outstanding |
— | 3 | (3 | ) | (i | ) | — | |||||||||||||
| Share premium and Class A Ordinary Shares, R$0.00001 par value; 100,000,000 shares authorized; 31,617,370 issued and outstanding |
|
— | 4,589 | (b | ) | 602,275 | ||||||||||||||
| 329,205 | (h | ) | ||||||||||||||||||
| 83,912 | (e | ) | ||||||||||||||||||
| 39,343 | (g | ) | ||||||||||||||||||
| 98 | (f | ) | ||||||||||||||||||
| 3,384 | (k | ) | ||||||||||||||||||
| 238,378 | (j | ) | ||||||||||||||||||
| 3 | (i | ) | ||||||||||||||||||
| (226,422 | ) | (m | ) | |||||||||||||||||
| 64,600 | (n | ) | ||||||||||||||||||
| 24,781 | (c | ) | ||||||||||||||||||
| 40,404 | (l | ) | ||||||||||||||||||
| Capital reserves |
54,632 | — | 54,632 | |||||||||||||||||
| Accumulated losses |
(193,850 | ) | (6,886 | ) | (103,408 | ) | (c | ) | (630,690 | ) | ||||||||||
| (329,205 | ) | (h | ) | |||||||||||||||||
| (3,384 | ) | (k | ) | |||||||||||||||||
| 6,886 | (j | ) | ||||||||||||||||||
| (843 | ) | (f | ) | |||||||||||||||||
| Other comprehensive income |
291 | 291 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Equity attributable to owners of the Company |
(98,814 | ) | (6,592 | ) | 131,914 | 26,508 | ||||||||||||||
| Non-controlling interest |
3,853 | — | — | 3,853 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Total equity |
(94,961 | ) | (6,592 | ) | 131,914 | 30,361 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| TOTAL LIABILITIES AND EQUITY |
367,065 | 1,236,935 | (1,229,161 | ) | 374,839 | |||||||||||||||
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF INCOME
For the year ended December 31, 2022
(In thousands of Brazilian reais, except when indicated otherwise, and except share and per share amounts)
| As of December 31, 2022 | ||||||||||||||||||||
| Nuvini S.A. (Historical) (R$) |
Mercato Partners Acquisition Corporation (Historical) (Note 2) (R$) |
Pro Forma Transaction Accounting Adjustments |
Pro Forma Combined |
|||||||||||||||||
| REVENUE |
||||||||||||||||||||
| Net operating revenue |
$ | 124,545 | $ | — | $ | — | $ | 124,545 | ||||||||||||
| Cost of services provided |
(52,813 | ) | — | — | (52,813 | ) | ||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Gross profit (loss) |
71,732 | — | — | 71,732 | ||||||||||||||||
| COST AND EXPENSES |
— | |||||||||||||||||||
| Sales and marketing expenses |
(27,370 | ) | — | — | (27,370 | ) | ||||||||||||||
| General and administrative expenses |
(53,347 | ) | (8,931 | ) | (329,205 | ) | (aa | ) | (432,375 | ) | ||||||||||
| (37,508 | ) | (cc | ) | |||||||||||||||||
| (3,384 | ) | (ff | ) | |||||||||||||||||
| Impairment of goodwill |
(86,897 | ) | — | — | (86,897 | ) | ||||||||||||||
| Franchise tax expense |
— | (1,025 | ) | — | (1,025 | ) | ||||||||||||||
| Other operating income (expenses), net |
182 | — | — | 182 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Operating loss |
(95,700 | ) | (9,956 | ) | (370,097 | ) | (475,753 | ) | ||||||||||||
| Financial income and expenses, net |
(16,730 | ) | 84,411 | (18,029 | ) | (bb | ) | 58,480 | ||||||||||||
| 8,343 | (gg | ) | ||||||||||||||||||
| (849 | ) | (dd | ) | |||||||||||||||||
| 1,334 | (ee | ) | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Financial income (loss), net |
(16,730 | ) | 84,411 | (9,201 | ) | 58,480 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Income (loss) before income tax |
(112,430 | ) | 74,455 | (379,298 | ) | (417,273 | ) | |||||||||||||
| Income tax and social contribution |
(1,776 | ) | (3,531 | ) | — | (5,307 | ) | |||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Net income (loss) representing total comprehensive loss for the year |
(114,206 | ) | 70,924 | (379,298 | ) | (422,580 | ) | |||||||||||||
| Net income (loss) attributed to: |
||||||||||||||||||||
| Owners of the Company |
(114,408 | ) | 70,924 | (379,298 | ) | (422,782 | ) | |||||||||||||
| Non-controlling interests |
202 | — | — | 202 | ||||||||||||||||
| WEIGHTED AVERAGE SHARES OUTSTANDING |
||||||||||||||||||||
| Basic and Diluted |
121,136,080 | 23,000,000 | 31,617,370 | |||||||||||||||||
| NET INCOME (LOSS) PER SHARE |
||||||||||||||||||||
| Basic and Diluted |
$ | (0.94 | ) | $ | 2.48 | $ | (13.37 | ) | ||||||||||||
NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
The unaudited pro forma condensed combined financial information has been presented for illustrative purposes only and is not necessarily indicative of the operating results and financial position that would have been achieved had the Business Combination occurred on the dates indicated.
The following unaudited pro forma condensed combined financial information has been prepared in accordance with Article 11 of Regulation S-X as amended by the final rule, Release No. 33-10786. Nuvini S.A. has elected not to present management adjustments and will only be presenting transaction accounting adjustments and financing adjustments in the unaudited pro forma condensed combined financial information.
The pro forma condensed combined provision for income taxes does not necessarily reflect the amounts that would have resulted had New Nuvini filed consolidated income tax returns during the periods presented. The pro forma basic and diluted earnings per share amounts presented in the unaudited pro forma condensed combined statement of income are based on the weighted average number of Nuvini S.A.’s shares outstanding for the year ended December 31, 2022, assuming the Business Combination occurred on January 1, 2022, the beginning of the earliest period presented.
1. Adjustments to Unaudited Pro Forma Condensed Combined Statement of Financial Information
The transaction accounting adjustments included in the unaudited pro forma condensed combined statement of financial position as of December 31, 2022, are as follows (using the December 31, 2022 exchange rate of $1.00 into R$5.217 unless otherwise specified):
Transaction Accounting Adjustments:
| (a) | Reflects the reclassification of R$24.2 million of cash and cash equivalents held in the Trust Account that becomes available following the Business Combination. |
| (b) | Reflects the repayment of the working capital loan taken out by Mercato of R$3.9 million as of December 31, 2022 that is payable upon Closing. The loan has a principal amount of up to $1.5 million, is non-interest bearing, unsecured and due and payable in full on the earlier of (a) the date of consummation of the Business Combination or (b) the liquidation date of Mercato. Subsequent to December 31, 2022, Mercato took two additional drawings on the working capital loan, specifically on March 10, 2023 of $85,000 (R$440,470, using an exchange rate of $1.00 to R$5.182 as of March 10, 2023), and on March 21, 2023 of $100,000 (R$524,400, using a conversion rate of $1.00 to R$5.244 as of March 21, 2023). The loan will be settled in warrants with the same terms as the private placement warrants issued by Mercato. The increase of R$0.2 million in derivative liabilities was determined using a fair value of $0.049 per warrant, representing the issuance of warrants in settlement of the loan. The fair value per share of the warrants was estimated based on the trading price of Mercato’s publicly traded warrants as of May 30, 2023). |
| (c) | Reflects the Mercato’s transaction costs in the amount of (1) R$67.2 million, that are all paid upon Closing; and (2) the Nuvini and New Nuvini non-recurring transaction costs in the amount of R$38.6 million, that are all paid upon Closing. |
Upon Closing, a portion of Mercato’s transaction costs due to Maxim were settled through the issuance of 475,000 fully vested New Nuvini Ordinary Shares. The settlement represents a share-based payment within the scope of IFRS 2. The payment was recorded within the pro forma financials as an increase to share premium of $4.75 million using a fair value of $10 per share (R$24.8 million using a conversion rate of $1.00 to R$5.217 as of December 31, 2022).
| (d) | Reflects the payment in funds from the Trust Account of R$985.5 million due to the redemption of 18,699,637 shares of Mercato Common Stock on February 3, 2023 in connection with the extension proposal after the announcement of the Business Combination. The redemption amount was calculated using a redemption price of $10.33 and a conversion rate of $1.00 to R$5.102 as of February 3, 2023). |
| (e) | Reflects the reclassification of a portion of the contingent consideration arrangements that are payable in New Nuvini Ordinary Shares from liability to equity classified. Upon consummation of the Business Combination, the number of shares payable to Nuvini Group investors was determined, as the number of shares payable is based on the share price upon Closing. |
| (f) | Reflects the settlement of the exposure premium liability in cash and the settlement of the loans premium in New Nuvini Ordinary Shares. The difference between the liability amounts historically recorded and the payouts due upon consummation of the Business Combination is recorded within accumulated losses. |
| (g) | Reflects the reclassification of the subscription rights due to Nuvini Group investors from liability to equity classified. Upon consummation of the Business Combination, the number of shares payable was determined, as the number of shares payable is based on the share price upon Closing. |
| (h) | Reflects the difference between the fair value of the equity instruments issued to acquire Mercato and the fair value of Mercato’s identifiable net assets acquired. The fair value of shares issued was estimated based on a market price of Mercato’s Class A Common Stock of $9.34 per share (as of September 28, 2023). The expense represents a stock exchange listing expense of New Nuvini under IFRS 2. The stock exchange listing expense is calculated as follows, in thousands of reais: |
| (in thousands of R$) | December 31, 2022 | |||
| Fair value of equity instruments issued to acquire Mercato (1) |
$ | 275,555 | ||
| Net assets of Mercato as of December 31, 2022 (2)(3)(4)(5) |
238,672 | |||
| Effect of redemption of Mercato Class A Common Stock |
(226,422 | ) | ||
| Less: Mercato’s transaction costs |
(65,900 | ) | ||
|
|
|
|||
| Adjusted net assets/(liabilities) of Mercato as of December 31, 2022 |
(53,650 | ) | ||
|
|
|
|||
| IFRS 2 charge for listing services |
$ | 329,205 | ||
|
|
|
|||
| (1) | Estimated fair value determined based on the closing price of Mercato’s Class A Common Stock of $9.34 per share as of September 28, 2023, and foreign exchange rate of $1.00 to R$5.0469 as of September 28, 2023, or one day prior to the Closing Date. |
| (2) | Calculated using a foreign exchange rate of $1.00 to R$5.217 as of December 31, 2022. Based on this exchange rate, the net assets of Mercato as of December 31, 2022, were approximately R$238.7 million. |
| (3) | Net assets of Mercato have been adjusted to reflect the redemption of 18,699,637 shares of Mercato Class A Common Stock for R$985.5 million in connection with the extension proposal. |
| (4) | Adjusted net assets (liabilities) of Mercato as of December 31, 2022, is calculated as follows: |
| (in thousands of R$) | December 31, 2022 |
|||
| Total assets of Mercato |
$ | 1,236,935 | ||
| Less: extension redemptions |
(985,539 | ) | ||
|
|
|
|||
| Adjusted total assets of Mercato |
251,396 | |||
| Total liabilities of Mercato |
12,724 | |||
|
|
|
|||
| Net assets of Mercato |
$ | 238,672 | ||
|
|
|
|||
Summary of Transacting Accounting Adjustments impacting Share premium:
| (in thousands of R$) | Reference | December 31, 2022 | ||||
| Working capital loan conversion to warrants |
(b) | $ | 4,589 | |||
| IFRS 2 listing expense |
(h) | 329,205 | ||||
| Contingent consideration adjustment |
(e) | 83,912 | ||||
| Subscription rights adjustment |
(g) | 39,343 | ||||
| Exposure premium adjustment |
(f) | 98 | ||||
| Stock compensation |
(k) | 3,384 | ||||
| Removal of Mercato’s historical accumulated deficit |
(j) | (6,886 | ) | |||
| Issuance of Mercato’s Class A Ordinary Shares in New Nuvini |
(j) | 245,264 | ||||
| Mercato’s Class B conversion |
(i) | 3 | ||||
| Settlement of Maxim transaction costs in New Nuvini Ordinary Shares |
(c) | 24,781 | ||||
| PIPE Investment |
(n) | 64,600 | ||||
| Nuvini recapitalization |
(l) | 40,404 | ||||
| Redemptions |
(m) | (226,422 | ) | |||
|
|
|
|||||
| Share premium adjustments |
$ | 602,275 | ||||
| (i) | Reflects the conversion of 5,750,000 Mercato Class B Common Stock held by the Mercato Initial Shareholders to 5,750,000 New Nuvini Ordinary Shares after the consummation of the Business Combination. Pursuant to the Business Combination Agreement, all Mercato Class B Common Stock outstanding prior to Closing will be repurchased and canceled by Mercato in exchange for the issuance of such number of New Nuvini Ordinary Shares on a 1 to 1 basis. All Mercato Class B Common Stock converted into New Nuvini Ordinary Shares will no longer be outstanding and will cease to exist. |
| (j) | Reflects the reclassification of non-redeemed Mercato Class A Common Stock from liability to permanent equity of R$245.3 million upon consummation of the Business Combination. The reclassification of non- redeemed shares from liability to permanent equity is calculated as R$1,230.8 million of redeemable shares liability (before extension redemptions), less R$985.5 million of shares redeemed in connection with the extension proposal at a redemption price of approximately $10.33 per share and foreign exchange rate of $1.00 to R$5.102 as of February 3, 2023. The adjustment is also inclusive of the reclassification of R$6.9 million of Mercato’s historical accumulated deficit to share premium upon Closing. In connection with the approval of the extension proposal, the Extension Promissory Instrument was issued in the principal amount of up to $1,350,000 from the Sponsor. The Extension Promissory Instrument bears no interest and is repayable in full upon the earlier of (a) the date of the consummation of the initial business combination or (b) the date of liquidation. On February 7, 2023, $675,000 (R$3.5 million using a foreign exchange rate of $1.00 to R$5.1689 as of February 7, 2023) was drawn from the Extension Promissory Instrument and deposited into the Trust Account by the Sponsor. On each of June 30, 2023 and August 4, 2023, $135,000 (R$0.7 million using a foreign exchange rate of $1.00 to R$4.8186 as of June 30, 2023 and R$0.7 million using a foreign exchange rate of $1.00 to R$4.8489 as of August 4, 2023) was drawn from the Extension Promissory Instrument and deposited into the Trust Account to extend the period available for Mercato to consummate the Business Combination from July 8, 2023 to September 8, 2023. The net effect of recording the additional draw and repayment of the initial $675,000 and the aggregate additional $270,000 would have an immaterial net effect on the pro forma statement of financial position. |
| (k) | Reflects the acceleration of stock compensation expense of R$3.4 million under Nuvini’s historical stock option plan. Upon consummation of the Business Combination, 50% of the unvested awards granted under the historical stock option plan to employees automatically vest, with the remainder being forfeited. |
| (l) | Reflects the recapitalization of shares of Nuvini common stock with no par value into New Nuvini Ordinary Shares. |
| (m) | Reflects the Final Redemptions with 4,204,655 shares of Mercato Class A Common Stock being redeemed by Public Shareholders. The redemptions are allocated to New Nuvini Ordinary Shares and share premium using a par value of R$0.00001 per share at a redemption price of $10.67 per share. |
| (n) | Reflects a $12.8 million increase to cash and cash equivalents as a result of the issuance of 1,280,000 New Nuvini Ordinary Shares to the PIPE Investors at a price of $10 per share (R$64.6 million, using a foreign exchange rate of $1.00 to R$5.0469 as of September 28, 2023). |
Reconciliation of New Nuvini pro forma shares:
| Reference | # of New Nuvini Ordinary Shares |
# of Mercato Historical Public Shares |
# of Mercato Historical Class B Shares |
Share Capital | Share Premium and Class A Par Value |
Class B Par Value |
||||||||||||||||||||||
| Historical balance |
122,477,095 | 4,300,363 | 5,750,000 | $ | 40,404 | $ | — | $ | 3 | |||||||||||||||||||
| Loans premium issuance and earnout payment made in 2023 |
15,902,743 | — | — | — | — | — | ||||||||||||||||||||||
|
|
|
|||||||||||||||||||||||||||
| Actual issued historical Nuvini shares prior to conversion |
138,379,838 | |||||||||||||||||||||||||||
| Ratio to adjust historical Nuvini Ordinary Shares outstanding to New Nuvini Ordinary Shares |
0.145485724 | |||||||||||||||||||||||||||
|
|
|
|||||||||||||||||||||||||||
| New Nuvini Ordinary Shares balance |
20,132,291 | |||||||||||||||||||||||||||
| Reserve for New PubCo Equity Plan (3) |
1,143,650 | — | — | — | — | — | ||||||||||||||||||||||
| Liability to equity reclassification (2) |
(e),(g),(f) | 2,740,721 | — | — | — | 123,353 | — | |||||||||||||||||||||
|
|
|
|||||||||||||||||||||||||||
| Total shares of New Nuvini held by Nuvini Shareholders |
24,016,662 | |||||||||||||||||||||||||||
| Reclassification of Mercato’s financial liabilities at fair value to equity (1) |
(j | ) | — | — | — | — | 245,264 | — | ||||||||||||||||||||
| Share Capital impact of New Nuvini Ordinary Shares issuance to Nuvini Shareholders |
(l | ) | — | — | — | (40,404 | ) | 40,404 | — | |||||||||||||||||||
| Conversion of Mercato Public Shares to New Nuvini Ordinary Shares |
4,300,363 | (4,300,363 | ) | — | — | — | — | |||||||||||||||||||||
| Conversion of Mercato Class B Shares to New Nuvini Ordinary Shares |
(i | ) | 5,750,000 | — | (5,750,000 | ) | — | 3 | (3 | ) | ||||||||||||||||||
| Settlement of Maxim transaction expenses in New Nuvini Ordinary Shares |
(c | ) | 475,000 | — | — | — | 24,781 | — | ||||||||||||||||||||
| Redemptions |
(m | ) | (4,204,655 | ) | — | — | — | (226,422 | ) | — | ||||||||||||||||||
| PIPE |
(n | ) | 1,280,000 | — | — | — | 64,600 | — | ||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
| New Nuvini Totals |
31,617,370 | — | — | — | $ | 271,983 | — | |||||||||||||||||||||
| (1) | The reclassification of non-redeemed shares of Mercato Class A Common Stock from liability to permanent equity is calculated as R$1,230.8 million of redeemable shares liability (before extension redemptions), less R$985.5 million of shares redeemed in connection with the extension proposal at a redemption price of approximately $10.33 per share and foreign exchange rate of $1.00 to R$5.102 as of February 3, 2023. |
| (2) | Represents the sum of the amount arising from (i) the portion of the contingent consideration arrangements that are reclassified from liability to equity, (ii) the reclassification of the subscription rights due to Nuvini Group investors from liability to equity, and (iii) the issued New Nuvini Ordinary Shares from the settlement of the loan premium. |
| (3) | As required by the Business Combination Agreement, 1,143,650 New Nuvini Ordinary Shares were reserved for grant under an equity incentive plan for employees of New Nuvini (“New PubCo Equity Plan”) that is effective as of the Closing Date. |
Adjustments to Unaudited Pro Forma Condensed Combined Statement of Income for the Year Ended December 31, 2022
The adjustments included in the unaudited pro forma condensed combined statements of income for the year ended December 31, 2022, used the average annual exchange rate of $1.00 to R$5.165 for:
Transaction Accounting Adjustments:
(aa) Reflects the IFRS 2 stock-based compensation expenses for the deemed stock exchange listing of New Nuvini, which is the difference between the fair value of the equity instruments issued to acquire Mercato and the fair value of the identifiable net assets acquired.
| (in thousands of R$) | For the year ended December 31, 2022 | |||
| Fair value of equity instruments issued to acquire Mercato(2) |
$ | 275,555 | ||
| Net assets of Mercato |
238,672 | |||
| Effect of redemption of Mercato Class A Common Stock |
(226,422 | ) | ||
| Less: Mercato’s transaction costs |
(65,900 | ) | ||
|
|
|
|||
| Adjusted net assets of Mercato |
(53,650 | ) | ||
|
|
|
|||
| IFRS 2 charge for listing services |
$ | 329,205 | ||
|
|
|
|||
(bb) Reflects the elimination of the interest earned on investments held in the Trust Account. This amount represents interest income of R$18.0 million for the year ended December 31, 2022.
(cc) Reflects the incremental Nuvini and New Nuvini transaction costs in the amount of R$37.5 million net of R$1.1 million of costs accrued on Nuvini’s historical balance sheet, that are all paid upon Closing. The incremental Mercato transaction costs are excluded from the unaudited pro forma condensed combined statement of operations but are reflected as a reduction of the net assets of Mercato when calculating the IFRS 2 listing expense.
(dd) Reflects the removal of the change in fair value of the exposure premium that is settled in cash and the loans premium that is settled in New Nuvini Ordinary Shares.
(ee) Reflects the removal of the change in fair value of the subscription rights due to investors that are equity classified upon consummation of the Business Combination.
(ff) Reflects the acceleration of stock compensation expense of R$3.4 million under Nuvini’s historical stock option plan. Upon consummation of the Business Combination, 50% of the unvested awards granted under the historical stock option plan to employees automatically vest, with the remainder being forfeited.
(gg) Reflects the removal of the change in fair value of the contingent consideration arrangements that are equity classified upon consummation of the Business Combination.
Earnings (loss) per share
Net earnings (loss) per share is calculated using the weighted average shares outstanding and the issuance of additional shares of New Nuvini in connection with the Business Combination and other related events, assuming the shares were outstanding since January 1, 2022. As the Business Combination is being reflected as if it had occurred as of January 1, 2022, the calculation of weighted average shares outstanding for basic and diluted net earnings (loss) per share assumes the shares issued in connection with the Business Combination have been outstanding for the entire period presented. This also reflects the redemption of 18,699,637 shares in connection with the extension proposal, includes 2,740,721 New Nuvini Ordinary Shares associated with the loans premium, subscription rights, and contingent consideration, and includes 1,143,650 shares issued and held for reserve for the New Pubco Equity Plan. Management notes that the below pro forma diluted earnings (loss) per share calculation excludes the warrants as they were determined to be anti-dilutive.
| (in thousands of R$, except share data) | For year ended December 31, 2022 | |||
| Pro forma net loss |
$ | (422,580 | ) | |
| Basic and diluted weighted average shares outstanding(1) |
31,617,370 | |||
|
|
|
|||
| Pro forma net loss per share – basic and diluted |
$ | (13.37 | ) | |
| Weighted average shares outstanding – basic and diluted(2) |
||||
| Nuvini(3) |
24,016,662 | |||
| Mercato Public Stockholders (other than the Sponsor and its affiliates)(4) |
95,708 | |||
| Sponsor and its affiliates(5) |
5,750,000 | |||
| Shares held by Maxim in settlement of transaction costs |
475,000 | |||
| PIPE Investors(6) |
1,280,000 | |||
|
|
|
|||
| Total |
31,617,370 | |||
|
|
|
|||
| (1) | Reflects the Final Redemptions of 4,204,655 shares of Mercato Class A Common Stock in connection with the Business Combination at $10.67 per share. |
| (2) | Outstanding Public Warrants and Private Placement Warrants are anti-dilutive and are not included in the calculation of diluted net loss per share. Mercato currently has 1,500,000 private placement warrants that were issued to Mercato in connection with working capital loans, 11,500,000 Public Warrants and 10,050,000 Private Placement Warrants outstanding. Subject to the terms of the New Warrant Agreement, each Mercato Warrant that is outstanding and unexercised immediately prior to the Merger Effective Time, whether or not vested, shall be converted into and become a warrant to purchase New Nuvini Ordinary Shares, and New Nuvini shall assume each such Mercato Warrant in accordance with its terms. |
| (3) | Includes 2,740,721 New Nuvini Ordinary Shares associated with liabilities payable in shares such as loans premium, subscription rights, and contingent consideration that are reclassified to equity on the pro forma financial statements. Also includes 1,143,650 shares issued and held for reserve for the New Pubco Equity Plan. |
| (4) | Excludes New Nuvini Warrants and the warrants issued in settlement of the working capital loan. For additional information with respect to the dilutive effects of the New Nuvini Warrants, see “Summary of the Proxy Statement/Prospectus — Ownership of New Nuvini After Closing.” |
| (5) | Considering the exercise of all New Nuvini warrants, the Sponsor and its affiliates would own 35.8% of New Nuvini’s share capital. |
| (6) | Reflects the issuance of 1,280,000 New Nuvini Ordinary Shares to the PIPE Investors at a purchase price of $10 per share as a result of the PIPE Investment (R$64.6 million, using a foreign exchange rate of $1.00 to R$5.0469 as of September 28, 2023) |
| 2. | U.S. GAAP to IFRS conversion of Mercato’s Statement of Financial Position as of December 31, 2022, and Statements of Income for the year ended December 31, 2022 |
The historical financial information of Mercato has been adjusted to give effect to the differences between U.S. GAAP and IFRS as issued by the IASB for the purposes of the unaudited pro forma condensed combined financial information. The historical financial information of Mercato was prepared in accordance with U.S. GAAP and presented in U.S. dollars. The historical financial information was translated from U.S. dollars to Brazilian reais using the historical exchange rate, as of December 31, 2022, of $1.00 to R$5.217 and the average annual exchange rate of $1.00 to R$5.165 for the year ended December 31, 2022. The identified adjustments to convert Mercato’s financial statements from U.S. GAAP to IFRS for purposes of the unaudited pro forma condensed combined financial information and to align presentation with Nuvini’s historical financial information were as follows:
(i) Reflects the reclassification of Mercato’s mezzanine equity to non-current financial liabilities for R$1,230.8 million, and
(ii) Adjusts the presentation to reclassify the change in fair value of warrants, and interest earned on marketable securities held in Trust Account, and the gain from extinguishment of deferred underwriting commissions on public warrants in Mercato’s historical statement of income to financial income and expenses, net; and
(iii) Represents the recognition of foreign exchange gains and losses from the translation of $ to R$ within other comprehensive income using the average historical exchange rate of $1 to R$5.395 for the year ended December 31, 2021, and $1.00 to R$5.165 for the year ended December 31, 2022.
A conversion of Mercato statement of financial position from U.S. dollars to Brazilian reais, and from U.S. GAAP to IFRS is as follows:
| Mercato Partners Acquisition Corporation (Historical) (in thousands of $) |
Foreign translation adjustment into R$ (in thousands) |
IFRS conversion and reclassification adjustments |
After conversion (in thousands of R$) |
|||||||||||||||||
| ASSETS |
||||||||||||||||||||
| Current assets |
||||||||||||||||||||
| Cash and cash equivalents |
$ | 53 | $ | 276 | $ | 276 | ||||||||||||||
| Prepaid expenses |
103 | 540 | 540 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Total current assets |
156 | 816 | — | 816 | ||||||||||||||||
| Non-current assets |
||||||||||||||||||||
| Investments held in Trust Account |
236,941 | 1,236,119 | 1,236,119 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Total non-current assets |
236,941 | 1,236,119 | — | 1,236,119 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| TOTAL ASSETS |
237,097 | 1,236,935 | — | 1,236,935 | ||||||||||||||||
| LIABILITIES AND EQUITY |
||||||||||||||||||||
| Current liabilities |
||||||||||||||||||||
| Accounts payable |
249 | 1,297 | 1,297 | |||||||||||||||||
| Accrued expenses |
273 | 1,423 | 1,423 | |||||||||||||||||
| Related parties |
3 | 17 | 17 | |||||||||||||||||
| Franchise tax payable |
168 | 874 | 874 | |||||||||||||||||
| Deferred tax liability |
159 | 828 | 828 | |||||||||||||||||
| Income taxes payable |
525 | 2,738 | 2,738 | |||||||||||||||||
| Convertible working capital loan - related party |
740 | 3,861 | 3,861 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Total current liabilities |
2,116 | 11,038 | — | 11,038 | ||||||||||||||||
| Non-current liabilities |
||||||||||||||||||||
| Redeemable shares liability |
— | — | 1,230,803 | (i | ) | 1,230,803 | ||||||||||||||
| Derivative liabilities |
323 | 1,686 | 1,686 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Total non-current liabilities |
323 | 1,686 | 1,230,803 | 1,232,489 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| TOTAL LIABILITIES |
2,439 | 12,724 | 1,230,803 | 1,243,527 | ||||||||||||||||
| Class A common stock subject to possible redemption; 23,000,000 shares at redemption value of approximately $10.26 and $10.15 per share as of December 31, 2022 and 2021, respectively |
235,922 | 1,230,803 | (1,230,803 | ) | (i | ) | — | |||||||||||||
| Equity: |
||||||||||||||||||||
| Class B common stock, $0.0001 par value; 10,000,000 shares authorized; 5,750,000 shares issued and outstanding |
1 | 3 | 3 | |||||||||||||||||
| Accumulated losses |
(1,264 | ) | (6,595 | ) | (291 | ) | (iii | ) | (6,886 | ) | ||||||||||
| Other comprehensive income |
291 | (iii | ) | 291 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Total equity |
(1,264 | ) | (6,592 | ) | — | (6,592 | ) | |||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| TOTAL LIABILITIES AND EQUITY |
237,097 | 1,236,935 | — | 1,236,935 | ||||||||||||||||
| Mercato Partners Acquisition Corporation (Historical) (in thousands of $) |
Foreign translation adjustment into R$ (in thousands) |
IFRS conversion and reclassification adjustments |
After conversion (in thousands of R$) |
|||||||||||||||||
| COST AND EXPENSES |
||||||||||||||||||||
| General and administrative expenses |
$ | (1,729 | ) | $ | (8,931 | ) | $ | (8,931 | ) | |||||||||||
| Franchise tax expense |
(198 | ) | (1,025 | ) | (1,025 | ) | ||||||||||||||
| Other operating income (expenses), net |
— | — | — | — | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Operating loss |
(1,928 | ) | (9,956 | ) | — | (9,956 | ) | |||||||||||||
| Financial income and expenses, net |
— | 84,411 | (ii | ) | 84,411 | |||||||||||||||
| Change in fair value of derivative liabilities |
12,607 | 65,114 | (65,114 | ) | (ii | ) | — | |||||||||||||
| Gain from extinguishment of deferred underwriting commissions on public warrants |
246 | 1,268 | (1,268 | ) | (ii | ) | — | |||||||||||||
| Income from investments held in Trust Account |
3,491 | 18,029 | (18,029 | ) | (ii | ) | — | |||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Financial loss, net |
16,343 | 84,411 | — | 84,411 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Loss before income tax |
14,415 | 74,455 | — | 74,455 | ||||||||||||||||
| Income tax and social contribution |
(684 | ) | (3,531 | ) | (3,531 | ) | ||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Net income (loss) for the year |
13,731 | 70,924 | — | 70,924 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| NET INCOME (LOSS) |
13,731 | 70,924 | — | 70,924 | ||||||||||||||||