Vtex F-1/A, filed Jul 15, 2021
Vtex (VTEX)
As filed with the Securities and Exchange Commission on July 15, 2021
Registration No. 333-257400
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2
To
FORM F-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VTEX
(Exact Name of Registrant as Specified in its Charter)
| The Cayman Islands | 7372 | N/A | ||
| (State or Other Jurisdiction of Incorporation or Organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
125 Kingsway, WC2B 6NH
London, United Kingdom
(Address, including Zip Code, and Telephone Number, including Area Code, of Registrant’s Principal Executive Offices)
Cogency Global Inc.
122 East 42th Street, 18th Floor
New York, NY 10168
(212) 947-7200
(Name, Address, including Zip Code, and Telephone Number, including Area Code, of Agent for Service)
Copies to:
| S. Todd Crider Grenfel S. Calheiros Simpson Thacher & Bartlett LLP 425 Lexington Avenue New York, New York 10017 (212) 455-2000 |
Byron B. Rooney Maurice Blanco Konstantinos Papadopoulos Davis Polk & Wardwell LLP 450 Lexington Avenue New York, New York 10017 (212) 450-4000 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this registration statement.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
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 7(a)(2)(B) of the Securities 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.
CALCULATION OF REGISTRATION FEE
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| Title of Each Class of Securities to be Registered |
Amount to be Registered(1) |
Proposed Maximum Offering Price Per Share(1)(2) |
Proposed Maximum Offering Price(1)(2) |
Amount of Registration Fee(3) | ||||
| Class A common shares, par value US$0.0001 per share |
21,850,000 | US$17.00 | US$371,450,000 | US$37,850.76 | ||||
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| (1) | Includes Class A common shares to be sold pursuant to the underwriters’ option to purchase additional Class A common shares from us and the selling shareholders. See “Underwriting.” |
| (2) | Estimated solely for the purpose of determining the amount of registration fee pursuant to Rule 457(a) under the Securities Act of 1933, as amended. |
| (3) | Calculated pursuant to Rule 457(a) based on an estimate of the proposed maximum aggregate offering price. Previously paid. |
The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
VTEX has prepared this Amendment No. 2 to the Registration Statement on Form F-1 (File No. 333-257400) for the sole purpose of filing Exhibits 5.01 and 23.02 to the Registration Statement with the Securities and Exchange Commission. This Amendment No. 2 consists only of the facing page, this explanatory note, Part II of the Registration Statement, the signature pages to the Registration Statement and the filed exhibits. No change is made to the preliminary prospectus constituting Part I of the Registration Statement, and accordingly, such preliminary prospectus has not been included herein.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 6. | Indemnification of Directors and Officers. |
Cayman Islands law does not limit the extent to which a company’s articles of association may provide indemnification of officers and directors, except to the extent that it may be held by the Cayman Islands courts to be contrary to public policy, such as providing indemnification against civil fraud or the consequences of committing a crime.
The registrant’s Articles of Association provide that each director or officer of the registrant shall be indemnified out of the assets of the registrant against all actions, proceedings, costs, charges, expenses, losses, damages, or liabilities, judgments, fines, settlements and other amounts (including reasonable attorneys’ fees and expenses and amounts paid in settlement and costs of investigation (collectively “Losses”) incurred or sustained by such directors or officers, other than by reason of such person’s dishonesty, willful default or fraud, in or about the conduct of our business or affairs (including as a result of any mistake of judgment) or in the execution or discharge of such person’s duties, powers, authorities or discretions, including without prejudice to the generality of the foregoing, any Losses incurred by such director or officer in defending or investigating (whether successfully or otherwise) any civil, criminal, investigative and administrative proceedings concerning or in any way related to us or our affairs in any court whether in the Cayman Islands or elsewhere.
Also, the registrant expects to maintain director’s and officer’s liability insurance covering its directors and officers with respect to general civil liability, including liabilities under the Securities Act, which he or she may incur in his or her capacity as such.
The form of underwriting agreement to be filed as Exhibit 1.1 to this registration statement will also provide for indemnification by the underwriters of the registrant and its directors and officers for certain liabilities, including liabilities arising under the Securities Act, but only to the extent that these liabilities are caused by information relating to the underwriters that was furnished to us by the underwriters in writing expressly for use in this registration statement and certain other disclosure documents.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us under the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
| Item 7. | Recent Sales of Unregistered Securities. |
During the past three years, we have issued and sold the securities described below without registering the securities under the Securities Act. None of these transactions involved any underwriters’ underwriting discounts or commissions, or any public offering. We believe that each of the following issuances was exempt from registration under the Securities Act in reliance on Regulation S under the Securities Act regarding sales by an
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issuer in offshore transactions, Rule 701 under the Securities Act or pursuant to Section 4(a)(2) of the Securities Act regarding transactions not involving a public offering.
| Purchaser |
Date of Sale or Issuance |
Title of Securities |
Number of Securities |
Consideration (in US$ thousands) |
Securities Registration Exemption | |||||||||||||
| Various employees |
March 11, 2021 | common shares | 113,122 | 1,000.0 | Regulation S and Section 4(a)(2) of the Securities Act | |||||||||||||
| Various employees |
January 29, 2021 | common shares | 382 | 3.0 | Regulation S and Section 4(a)(2) of the Securities Act | |||||||||||||
| Various employees |
November 27, 2020 | common shares | 22,455 | 198.5 | Regulation S and Section 4(a)(2) of the Securities Act | |||||||||||||
| LA Holdings (Cayman) Ltd. |
November 19, 2020 | common shares | 3,393,665 | 30,000.0 | Regulation S and Section 4(a)(2) of the Securities Act | |||||||||||||
| Various private equity investments funds |
September 24, 2020 | common shares | 14,330,909 | 125,948.3 | Regulation S and Section 4(a)(2) of the Securities Act | |||||||||||||
| Various employees |
September 09, 2020 | common shares | 152,800 | 218.7 | Regulation S and Section 4(a)(2) of the Securities Act | |||||||||||||
| Various employees |
September 09, 2020 | common shares | 51,000 | 72.9 | Regulation S and Section 4(a)(2) of the Securities Act | |||||||||||||
| Various employees |
January 16, 2020 | common shares | 51,000 | 92.4 | Regulation S and Section 4(a)(2) of the Securities Act | |||||||||||||
| Various employees |
December 11, 2019 | common shares | 176,600 | 496.2 | Regulation S and Section 4(a)(2) of the Securities Act | |||||||||||||
| Various private equity investments funds and employees |
October 25, 2019 | common shares | 142,348 | 39,999.8 | Regulation S and Section 4(a)(2) of the Securities Act | |||||||||||||
In 2019, we granted an aggregate of 1,797,400 share options to our employees to purchase an aggregate of 727,980 common shares, in consideration of their past and future services to us. In 2020, we granted an aggregate of 7.382.000 share options to our employees to purchase an aggregate of 7,382,000 common shares. Also in 2020 we granted certain employees an aggregate of 2,618,832 restricted stock units, in consideration of past and future services provided to us, following the cancellation of 2,586,720 previously granted shares options.
| Item 8. | Exhibits and Financial Statement Schedules. |
(a) Exhibits: See Exhibit Index beginning on page II-5 of this Registration Statement.
The agreements included as exhibits to this registration statement contain representations and warranties by each of the parties to the applicable agreement. These representations and warranties were made for the benefit of
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the other parties to the applicable agreement and (1) were not intended to be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate; (2) may have been qualified in such agreement by disclosures that were made to the other party in connection with the negotiation of the applicable agreement; (3) may apply contract standards of “materiality” that are different from “materiality” under the applicable securities laws; and (4) were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement. We acknowledge that, notwithstanding the inclusion of the foregoing cautionary statements, we are responsible for considering whether additional specific disclosures of material information regarding material contractual provisions are required to make the statements in this registration statement not misleading.
(b) Financial Statement Schedules: All schedules have been omitted because they are not required, are not applicable or the required information is otherwise set forth in the consolidated financial statements or related notes thereto.
| Item 9. | Undertakings. |
(a) The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.
(b) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(c) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective; and
(2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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EXHIBIT INDEX
| † | Previously filed. |
| # | Portions of this exhibit have been omitted in accordance with the rules of the Securities and Exchange Commission. |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-1 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in city of London, United Kingdom, on July 15, 2021.
| VTEX | ||
| By: | /s/ Geraldo do Carmo Thomaz Júnior | |
| Name: Geraldo do Carmo Thomaz Júnior | ||
| Title: Co-Chief Executive Officer | ||
| By: | /s/ Mariano Gomide de Faria | |
| Name: Mariano Gomide de Faria | ||
| Title: Co-Chief Executive Officer | ||
| By: | /s/ André Spolidoro Ferreira Gomes | |
| Name: André Spolidoro Ferreira Gomes | ||
| Title: Chief Financial Officer | ||
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Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities indicated on July 15, 2021.
| Name |
Title | |||
| By: |
/s/ Geraldo do Carmo Thomaz Júnior Name: Geraldo do Carmo Thomaz Júnior |
Co-Chief Executive Officer and Co-Chairman (principal executive officer) | ||
| By: |
/s/ Mariano Gomide de Faria Name: Mariano Gomide de Faria |
Co-Chief Executive Officer and Co-Chairman (principal executive officer) | ||
| By: | /s/ André Spolidoro Ferreira Gomes Name: André Spolidoro Ferreira Gomes |
Chief Financial Officer (principal financial officer and principal accounting officer) | ||
| By: | * Name: Paulo Thiago Passoni |
Director | ||
| By: | * Name: Francisco Alvarez-Demalde |
Director | ||
| By: | * Name: Alejandro Raul Scannapieco |
Director | ||
| By: | * Name: Arshad Matin |
Director | ||
| By: | * Name: Benoit Jean-Claude Marie Fouilland |
Director | ||
| By: |
/s/ Colleen A. De Vries On behalf of Cogency Global Inc. Name: Colleen A. De Vries Title: Senior Vice President |
Authorized Representative in the United States | ||
| *By: | /s/ Geraldo do Carmo Thomaz Júnior |
*By: | /s/ Mariano Gomide de Faria | |||
| Name: Geraldo do Carmo Thomaz Júnior Attorney-in-fact | Name: Mariano Gomide de Faria Attorney-in-fact | |||||
| *By: | /s/ André Spolidoro Ferreira Gomes |
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| Name: André Spolidoro Ferreira Gomes Attorney-in-fact |
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Exhibit 5.01
|
Harney Westwood & Riegels | |
| 4th Floor, Harbour Place | ||
| 103 South Church Street, PO Box 10240 | ||
| Grand Cayman KY1-1002, Cayman Islands | ||
| Tel: +1 345 949 8599 | ||
| Fax: +1 345 949 4451 |
15 July 2021
christopher.hall@harneys.com
+1 345 815 2979
051043.0003/CFH
VTEX
125 Kingsway, London, WC2B
6NH, United Kingdom
Dear Sirs
VTEX (the Company)
We are attorneys-at-law qualified to practise in the Cayman Islands and have been asked to provide this legal opinion to you with regard to the laws of the Cayman Islands in connection with a registration statement on Form F-1, including all amendments or supplements thereto (the Registration Statement which term does not include any other document or agreement whether or not specifically referred to therein or attached as an exhibit or schedule thereto), filed with the U.S. Securities and Exchange Commission under the U.S. Securities Act of 1933, as amended (the Securities Act) involving a public offer (IPO) and a placing of Class A common shares (Shares). In this opinion Companies Act means the Companies Act (Revised) of the Cayman Islands. Unless otherwise defined in Schedule 1 hereto, capitalised terms defined in the Registration Statement shall have the same meanings when used in this opinion.
For the purposes of giving this opinion, we have examined the Documents (as defined in Schedule 1). We have not examined any other documents, official or corporate records or external or internal registers and have not undertaken or been instructed to undertake any further enquiry or due diligence in relation to the transaction which is the subject of this opinion.
In giving this opinion we have relied upon the assumptions set out in Schedule 2 which we have not verified.
Based solely upon the foregoing examinations and assumptions and having regard to legal considerations which we deem relevant, and subject to the qualifications set out in Schedule 3, we are of the opinion that under the laws of the Cayman Islands:
| 1 | Existence and Good Standing. The Company is an exempted company duly incorporated with limited liability, and is validly existing and in good standing under the laws of the Cayman Islands. It is a separate legal entity and is subject to suit in its own name. |
| A list of partners is available for inspection at our offices. Bermuda legal services provided through an association with Zuill & Co. KY:5460190_1 |
Anguilla | Bermuda | British Virgin Islands Cayman Islands | Cyprus | Hong Kong | London Montevideo | Shanghai | Singapore | Vancouver www.harneys.com |
| 2 | Allotment and Issue. When the price at which the new Shares to be sold by the Company has been approved by or on behalf of the Board of Directors of the Company and when the Shares to be sold by the Company have been issued and delivered against payment therefor in accordance with the terms of the Underwriting Agreement (as defined in Schedule 1) referred to in the prospectus which is a part of the Registration Statement, the Shares will be validly issued, fully paid and non-assessable. |
| 3 | Share Capital. Based on the Memorandum and Articles of Association, the Company will, upon the closing of the IPO, have an authorised share capital of US$210,000 divided into 2,100,000,000 shares of a par value of US$0.0001. When allotted, issued, paid for and registered in the register of members of the Company, the Shares will conform to the description of the Shares contained in the Registration Statement and will rank pari passu in all respects with all other issued Shares subject to the rights, privileges and restrictions set forth in the Memorandum and Articles of Association. |
| 4 | Prospectus. The statements under the caption “Certain Tax Considerations – Certain Cayman Islands Tax Considerations” in the prospectus forming part of the Registration Statement, to the extent that they constitute statements of Cayman Islands law, are accurate in all material respects and that such statements constitute our opinion. |
| 5 | Corporate Governance. Assuming the corporate governance practices of the Company are conducted in conformity with the requirements of Memorandum and Articles of Association, the performance of the same will be consistent with the laws of the Cayman Islands as regards such matters. |
| 6 | Publication of Financial Statements. The publication of financial statements in the manner contemplated by the Registration Statement is permitted by the laws of the Cayman Islands and is sufficient to satisfy the requirements of the laws of the Cayman Islands in connection with the same. |
| 7 | Appointment of Directors. The provisions of the Company’s Memorandum and Articles of Association (being the Company’s charter and bylaws for the purposes of Cayman Islands law) regarding composition, election and classification of the Company’s board of directors are not provisions which in their respective terms are prohibited by the laws of the Cayman Islands. |
| 8 | Shareholder Approvals. The provisions relating to the shareholder approval policies, quorum requirements for shareholder meetings and methods of voting set out in the Registration Statement Memorandum and Articles of Association do not breach the requirements of Cayman Islands law in relation to such matters. |
This opinion is confined to the matters expressly opined on herein and given on the basis of the laws of the Cayman Islands as they are in force and applied by the Cayman Islands courts at the date of this opinion. We have made no investigation of, and express no opinion on, the laws of any other jurisdiction. We express no opinion as to matters of fact. Except as specifically stated herein, we make no comment with respect to any representations and warranties which may be made by or with respect to the Company in the Transaction Documents. We express no opinion with respect to the commercial terms of the transactions the subject of this opinion.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to our firm under the captions “Legal Matters” and “Enforceability of Civil Liabilities – Cayman Islands” and in the Exhibits in the prospectus forming part of the Registration Statement. In giving this consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission promulgated thereunder.
| Yours faithfully |
| /s/ Harney Westwood & Riegels |
| Harney Westwood & Riegels |
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SCHEDULE 1
List of Documents Examined
| 1 | the Certificate of Incorporation dated 25 June 2018 issued by the Registrar of Companies; |
| 2 | the Third Amended and Restated Memorandum and Articles of Association of the Company adopted by special resolution passed on July 15, 2021 and to be effective on the closing date of the Company’s initial public offering of Class A Common Shares (the Memorandum and Articles of Association); |
| 3 | a Certificate of Good Standing in respect of the Company dated 9 July 2021, issued by the Registrar of Companies; |
| 4 | the Register of Directors and Officers, Register of Members and Register of Mortgages and Charges of the Company provided to us on or prior to the date hereof; |
(1 - 4 above are the Corporate Documents), and
| 5 | a draft of the underwriting agreement in the form filed as Exhibit 1.1 to the Registration Statement (the Underwriting Agreement); |
| 6 | the Registration Statement, |
(5 - 6 above are the Transaction Documents).
The Corporate Documents and the Transaction Documents are collectively referred to in this opinion as the Documents.
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SCHEDULE 2
Assumptions
| 1 | Authenticity of Documents. All original Documents are authentic, all signatures, initials and seals are genuine, all copies of Documents are true and correct copies and conform in every material respect to the latest drafts of the same produced to us and, where the Transaction Documents have been provided to us in successive drafts marked-up to indicate changes to such documents, all such changes have been so indicated. |
| 2 | Unseen Documents. Save for the Documents provided to us there are no resolutions, agreements, documents or arrangements which materially affect, amend or vary the transactions envisaged in the Documents. |
| 3 | Proceeds of Crime. No monies paid to or for the account of any party under the Transaction Documents represent or will represent criminal property or terrorist property (as defined in the Proceeds of Crime Act (Revised) and the Terrorism Act (Revised), respectively). |
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SCHEDULE 3
Qualifications
| 1 | Foreign Statutes. We express no opinion in relation to provisions making reference to foreign statutes in the Transaction Documents. |
| 2 | Good Standing. The Company shall be deemed to be in good standing at any time if all fees (including annual filing fees) and penalties under the Companies Act (Revised) have been paid and the Registrar of Companies has no knowledge that the Company is in default under the Companies Act (Revised). |
| 3 | Statutory Powers. Any provision in the Underwriting Agreement which purports to fetter a statutory power of the Company may not be enforceable under the common law rule in Russell v Northern Bank Development Corp Ltd [1992] 1 WLR 588 (HL). |
| 4 | Conflict of Laws. An expression of an opinion on a matter of Cayman Islands law in relation to a particular issue in this opinion should not necessarily be construed to imply that the Cayman Islands courts would treat Cayman Islands law as the proper law to determine that issue under its conflict of laws rules. |
| 5 | Sanctions. The obligations of the Company may be subject to restrictions pursuant to United Nations and European Union sanctions as implemented under the laws of the Cayman Islands. |
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