|
The Cayman Islands
(State or other jurisdiction of incorporation or organization) |
| |
8200
(Primary Standard Industrial Classification Code Number) |
| |
N/A
(I.R.S. Employer Identification Number) |
|
| | | |
Copies to:
|
| | | |
|
Manuel Garciadiaz
Davis Polk & Wardwell LLP 450 Lexington Avenue New York, NY 10017 (212) 450-4000 |
| | | | |
John P. Guzman
Jessica Y. Chen White & Case LLP 1221 Avenue of the Americas New York, New York 10020 (212) 819-8200 |
|
|
CALCULATION OF REGISTRATION FEE
|
| ||||||||||||||||||||||||||||
|
Title of Each Class of
Securities to be Registered |
| | |
Amount to be
Registered(1) |
| | |
Proposed Maximum
Aggregate Offering Price Per Share(2) |
| | |
Proposed Maximum
Aggregate Offering Price(1)(2) |
| | |
Amount of
Registration Fee(3) |
| ||||||||||||
|
Common shares, par value US$0.00005 per share
|
| | | | | 12,914,644 | | | | | | US$ | 24.00 | | | | | | US$ | 309,951,456 | | | | | | US$ | 40,232 | | |
| | |
Per common
share |
| |
Total
|
| ||||||
Initial public offering price
|
| | | US$ | | | | | US$ | | | ||
Underwriting discounts and commissions
|
| | | US$ | | | | | US$ | | | ||
Proceeds, before expenses, to us(1)
|
| | | US$ | | | | | US$ | | | ||
Proceeds, before expenses, to the selling shareholders(1)
|
| | | US$ | | | | | US$ | | | |
| | |
Page
|
| |||
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| | | | 74 | | | |
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| | | | 80 | | | |
| | | | 81 | | | |
| | | | 83 | | | |
| | | | 84 | | | |
| | | | 91 | | | |
| | | | 124 | | | |
| | | | 139 | | | |
| | | | 152 | | | |
| | | | 187 | | | |
| | | | 194 | | | |
| | | | 196 | | | |
| | | | 198 | | | |
| | | | 215 | | | |
| | | | 216 | | | |
| | | | 221 | | | |
| | | | 233 | | | |
| | | | 234 | | | |
| | | | 234 | | | |
| | | | 235 | | | |
| | | | 237 | | | |
| | | | 238 | | | |
| | | | F-1 | | |
| | |
For the Six Months
Ended June 30, |
| |
For the Years Ended
December 31, |
| ||||||||||||||||||||||||||||||
| | |
2020
|
| |
2020
|
| |
2019
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||||||||
| | |
US$(1)
|
| |
R$
|
| |
US$(1)
|
| |
R$
|
| ||||||||||||||||||||||||
| | |
(in millions, except per share information)
|
| |||||||||||||||||||||||||||||||||
Statement of Profit or Loss Data | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net revenue
|
| | | | 46.9 | | | | | | 256.7 | | | | | | 234.5 | | | | | | 84.2 | | | | | | 461.1 | | | | | | 383.4 | | |
Revenue from distance-learning undergraduate courses
|
| | | | 37.2 | | | | | | 203.7 | | | | | | 170.8 | | | | | | 61.4 | | | | | | 336.3 | | | | | | 259.6 | | |
Revenue from continuing education courses
|
| | | | 3.9 | | | | | | 21.3 | | | | | | 23.0 | | | | | | 8.6 | | | | | | 47.1 | | | | | | 33.0 | | |
Revenue from on-campus undergraduate courses
|
| | | | 5.8 | | | | | | 31.6 | | | | | | 40.7 | | | | | | 14.2 | | | | | | 77.6 | | | | | | 90.8 | | |
Cost of services rendered
|
| | | | (19.4) | | | | | | (106.0) | | | | | | (105.2) | | | | | | (38.6) | | | | | | (211.5) | | | | | | (184.2) | | |
Gross profit
|
| | | | 27.5 | | | | | | 150.6 | | | | | | 129.3 | | | | | | 45.6 | | | | | | 249.5 | | | | | | 199.3 | | |
Selling expenses
|
| | | | (9.1) | | | | | | (50.0) | | | | | | (47.8) | | | | | | (18.4) | | | | | | (100.9) | | | | | | (70.6) | | |
General and administrative expenses
|
| | | | (4.4) | | | | | | (24.4) | | | | | | (61.3) | | | | | | (22.9) | | | | | | (125.3) | | | | | | (90.7) | | |
Net impairment losses on financial assets
|
| | | | (6.4) | | | | | | (34.9) | | | | | | (25.3) | | | | | | (10.6) | | | | | | (58.2) | | | | | | (44.6) | | |
Other income (expenses), net
|
| | | | 0.3 | | | | | | 1.7 | | | | | | (0.4) | | | | | | (0.2) | | | | | | (0.9) | | | | | | (1.0) | | |
Operating expenses
|
| | | | (19.7) | | | | | | (107.6) | | | | | | (134.7) | | | | | | (52.1) | | | | | | (285.4) | | | | | | (206.9) | | |
Operating profit (loss)
|
| | | | 7.9 | | | | | | 43.0 | | | | | | (5.4) | | | | | | (6.6) | | | | | | (35.9) | | | | | | (7.6) | | |
| | |
For the Six Months
Ended June 30, |
| |
For the Years Ended
December 31, |
| ||||||||||||||||||||||||||||||
| | |
2020
|
| |
2020
|
| |
2019
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||||||||
| | |
US$(1)
|
| |
R$
|
| |
US$(1)
|
| |
R$
|
| ||||||||||||||||||||||||
| | |
(in millions, except per share information)
|
| |||||||||||||||||||||||||||||||||
Financial income
|
| | | | 1.7 | | | | | | 9.5 | | | | | | 9.4 | | | | | | 3.5 | | | | | | 19.2 | | | | | | 22.0 | | |
Financial expenses
|
| | | | (3.8) | | | | | | (20.8) | | | | | | (29.9) | | | | | | (11.0) | | | | | | (60.4) | | | | | | (64.6) | | |
Financial results
|
| | | | (2.1) | | | | | | (11.2) | | | | | | (20.5) | | | | | | (7.5) | | | | | | (41.2) | | | | | | (42.6) | | |
Profit (loss) before taxes
|
| | | | 5.8 | | | | | | 31.7 | | | | | | (25.9) | | | | | | (14.1) | | | | | | (77.1) | | | | | | (50.2) | | |
Current income taxes
|
| | | | (3.6) | | | | | | (19.6) | | | | | | (8.6) | | | | | | (2.7) | | | | | | (14.8) | | | | | | (10.6) | | |
Deferred income taxes
|
| | | | 7.4 | | | | | | 40.3 | | | | | | 9.4 | | | | | | 4.7 | | | | | | 25.7 | | | | | | 15.7 | | |
Income tax
|
| | | | 3.8 | | | | | | 20.6 | | | | | | 0.8 | | | | | | 2.0 | | | | | | 10.9 | | | | | | 5.0 | | |
Net income (loss) for the period
|
| | | | 9.6 | | | | | | 52.4 | | | | | | (25.1) | | | | | | (12.1) | | | | | | (66.2) | | | | | | (45.2) | | |
Earnings (loss) per common share
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic and diluted earnings (loss) per common
share – R$(2) |
| | | | 0.02 | | | | | | 0.10 | | | | | | (0.05) | | | | | | (0.02) | | | | | | (0.13) | | | | | | (0.09) | | |
Pro forma Basic earnings (loss) per common
share – R$(3) |
| | | | 0.57 | | | | | | 3.11 | | | | | | (1.49) | | | | | | (0.72) | | | | | | (3.93) | | | | | | (2.78) | | |
Pro forma Diluted earnings (loss) per common share – R$(3)
|
| | | | 0.54 | | | | | | 2.98 | | | | | | (1.49) | | | | | | (0.72) | | | | | | (3.93) | | | | | | (2.78) | | |
| | |
As of June 30,
|
| |
As of
December 31, |
| ||||||||||||||||||||||||
| | |
2020
|
| |
2020
|
| |
2019
|
| |
2019
|
| |
2018
|
| |||||||||||||||
| | |
US$(1)
|
| |
R$
|
| |
US$(1)
|
| |
R$
|
| ||||||||||||||||||
| | |
(in millions)
|
| |||||||||||||||||||||||||||
Statement of Financial Position Data: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total current assets
|
| | | | 72.5 | | | | | | 397.2 | | | | | | 39.2 | | | | | | 214.9 | | | | | | 252.5 | | |
Total non-current assets
|
| | | | 169.4 | | | | | | 927.5 | | | | | | 159.6 | | | | | | 873.8 | | | | | | 926.5 | | |
Total assets
|
| | | | 241.9 | | | | | | 1,324.7 | | | | | | 198.8 | | | | | | 1,088.7 | | | | | | 1,179.0 | | |
Liabilities and Equity | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Total current liabilities
|
| | | | 46.9 | | | | | | 257.0 | | | | | | 40.4 | | | | | | 221.4 | | | | | | 175.1 | | |
Total non-current liabilities
|
| | | | 103.0 | | | | | | 564.0 | | | | | | 76.0 | | | | | | 416.0 | | | | | | 484.5 | | |
Total liabilities
|
| | | | 149.9 | | | | | | 821.0 | | | | | | 116.4 | | | | | | 637.4 | | | | | | 659.6 | | |
Total equity
|
| | | | 92.0 | | | | | | 503.7 | | | | | | 82.4 | | | | | | 451.3 | | | | | | 519.4 | | |
Total liabilities and equity
|
| | | | 241.9 | | | | | | 1,324.7 | | | | | | 198.8 | | | | | | 1,088.7 | | | | | | 1,179.0 | | |
| | |
For the Six Months
Ended June 30, |
| |
For the Year Ended
December 31, |
| ||||||||||||||||||||||||||||||
| | |
2020
|
| |
2020
|
| |
2019
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||||||||
| | |
US$(1)
|
| |
R$
|
| |
US$(1)
|
| |
R$
|
| ||||||||||||||||||||||||
| | |
(in millions)
|
| |||||||||||||||||||||||||||||||||
Net revenue
|
| | | | 46.9 | | | | | | 256.7 | | | | | | 234.5 | | | | | | 84.2 | | | | | | 461.1 | | | | | | 383.4 | | |
Net income (loss) for the period
|
| | | | 9.6 | | | | | | 52.4 | | | | | | (25.1) | | | | | | (12.1) | | | | | | (66.2) | | | | | | (45.2) | | |
Adjusted EBITDA(2)
|
| | | | 13.7 | | | | | | 75.2 | | | | | | 66.1 | | | | | | 21.5 | | | | | | 117.6 | | | | | | 107.8 | | |
Adjusted Net Income(3)
|
| | | | 10.4 | | | | | | 57.1 | | | | | | 35.1 | | | | | | 10.5 | | | | | | 57.7 | | | | | | 55.4 | | |
Cash flow from operations
|
| | | | 12.3 | | | | | | 67.2 | | | | | | 50.0 | | | | | | 0.2 | | | | | | 98.0 | | | | | | 88.0 | | |
Adjusted Cash Flow Conversion from Operations(4)
|
| | | | 80% | | | | | | 80% | | | | | | 68% | | | | | | 75% | | | | | | 75% | | | | | | 79% | | |
| | |
As of and
for the Six Months Ended June 30 |
| |
As of and for the
Year Ended December 31, |
| ||||||||||||||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2019
|
| |
2018
|
| |
2017
|
| |
2016
|
| ||||||||||||||||||
Number enrolled students
|
| | | | 287,798 | | | | | | 244,188 | | | | | | 240,946 | | | | | | 189,295 | | | | | | 140,363 | | | | | | 115,325 | | |
Number of distance learning undergraduate students
|
| | | | 236,838 | | | | | | 193,068 | | | | | | 195,613 | | | | | | 148,711 | | | | | | 106,576 | | | | | | 81,406 | | |
Number of distance learning graduate
students |
| | | | 42,033 | | | | | | 40,673 | | | | | | 35,952 | | | | | | 30,227 | | | | | | 22,910 | | | | | | 21,108 | | |
Number of hubs
|
| | | | 608 | | | | | | 436 | | | | | | 545 | | | | | | 370 | | | | | | 221 | | | | | | 72 | | |
| | |
As of June 30, 2020
|
| |||||||||||||||||||||||||||||||||
| | |
Vitru Brasil, actual
|
| |
Vitru, as adjusted
for the contribution(2) |
| |
Vitru, as further
adjusted for the contribution and the offering(3) |
| |||||||||||||||||||||||||||
| | |
(in millions)
|
| |||||||||||||||||||||||||||||||||
| | |
(in US$)(1)
|
| |
(in R$)
|
| |
(in US$)(1)
|
| |
(in R$)
|
| |
(in US$)(1)
|
| |
(in R$)
|
| ||||||||||||||||||
Non-current accounts payable from acquisition of subsidiaries(4)
|
| | | | 46.7 | | | | | | 256.0 | | | | | | 46.7 | | | | | | 256.0 | | | | | | 46.7 | | | | | | 256.0 | | |
Non-current lease liabilities(5)
|
| | | | 19.1 | | | | | | 104.8 | | | | | | 19.1 | | | | | | 104.8 | | | | | | 19.1 | | | | | | 104.8 | | |
Non-current loans and financing
|
| | | | 27.4 | | | | | | 150.0 | | | | | | 27.4 | | | | | | 150.0 | | | | | | 27.4 | | | | | | 150.0 | | |
Long-term debt(6)
|
| | | | 93.2 | | | | | | 510.8 | | | | | | 93.2 | | | | | | 510.8 | | | | | | 93.3 | | | | | | 510.8 | | |
Total equity(7)
|
| | | | 92.0 | | | | | | 503.7 | | | | | | 92.0 | | | | | | 503.7 | | | | | | 217.5 | | | | | | 1,191.1 | | |
Total capitalization(7)(8)
|
| | | | 185.2 | | | | | | 1,014.5 | | | | | | 185.2 | | | | | | 1,014.5 | | | | | | 310.8 | | | | | | 1,702.0 | | |
|
Net tangible book value per share as of June 30, 2020
|
| | | US$ | (2.27) | | |
|
Increase in net tangible book value per share attributable to new investors
|
| | | US$ | 6.04 | | |
|
Pro forma as adjusted net tangible book value per share after the offering
|
| | | US$ | 3.76 | | |
|
Dilution per common share to new investors
|
| | | US$ | 19.24 | | |
|
Percentage of dilution in net tangible book value per common share for new investors
|
| | | | 83.6% | | |
Year
|
| |
Period-end
|
| |
Average(1)
|
| |
Low(2)
|
| |
High(3)
|
| ||||||||||||
2015
|
| | | | 3.9048 | | | | | | 3.3387 | | | | | | 2.5754 | | | | | | 4.1949 | | |
2016
|
| | | | 3.2585 | | | | | | 3.4833 | | | | | | 3.1193 | | | | | | 4.1558 | | |
2017
|
| | | | 3.3074 | | | | | | 3.1925 | | | | | | 3.0510 | | | | | | 3.3807 | | |
2018
|
| | | | 3.8742 | | | | | | 3.6558 | | | | | | 3.1391 | | | | | | 4.1879 | | |
2019
|
| | | | 4.0307 | | | | | | 3.9461 | | | | | | 3.6519 | | | | | | 4.2602 | | |
Month
|
| |
Period-end
|
| |
Average(1)
|
| |
Low(2)
|
| |
High(3)
|
| ||||||||||||
January 2020
|
| | | | 4.2695 | | | | | | 4.1495 | | | | | | 4.0213 | | | | | | 4.2695 | | |
February 2020
|
| | | | 4.4987 | | | | | | 4.3410 | | | | | | 4.2381 | | | | | | 4.4987 | | |
March 2020
|
| | | | 5.1987 | | | | | | 4.8839 | | | | | | 4.4883 | | | | | | 5.1987 | | |
April 2020
|
| | | | 5.4270 | | | | | | 5.3256 | | | | | | 5.0779 | | | | | | 5.6510 | | |
May 2020
|
| | | | 5.3405 | | | | | | 5.6434 | | | | | | 5.2992 | | | | | | 5.9372 | | |
June 2020
|
| | | | 5.4760 | | | | | | 5.1966 | | | | | | 4.8894 | | | | | | 5.4760 | | |
July 2020
|
| | | | 5.2033 | | | | | | 5.2802 | | | | | | 5.1111 | | | | | | 5.4288 | | |
August 2020
|
| | | | 5.4713 | | | | | | 5.4612 | | | | | | 5.2760 | | | | | | 5.6510 | | |
September 2020 (through September 4, 2020)
|
| | | | 5.2848 | | | | | | 5.3350 | | | | | | 5.2848 | | | | | | 5.3741 | | |
| | |
For the Six Months
Ended June 30, |
| |
For the Years Ended
December 31, |
| ||||||||||||||||||||||||||||||
| | |
2020
|
| |
2020
|
| |
2019
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||||||||
| | |
US$(1)
|
| |
R$
|
| |
US$(1)
|
| |
R$
|
| ||||||||||||||||||||||||
| | |
(in millions, except per share information)
|
| |||||||||||||||||||||||||||||||||
Statement of Profit or Loss Data | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net revenue
|
| | | | 46.9 | | | | | | 256.7 | | | | | | 234.5 | | | | | | 84.2 | | | | | | 461.1 | | | | | | 383.4 | | |
Revenue from distance-learning undergraduate courses
|
| | | | 37.2 | | | | | | 203.7 | | | | | | 170.8 | | | | | | 61.4 | | | | | | 336.3 | | | | | | 259.6 | | |
Revenue from continuing education
courses |
| | | | 3.9 | | | | | | 21.3 | | | | | | 23.0 | | | | | | 8.6 | | | | | | 47.1 | | | | | | 33.0 | | |
Revenue from on-campus undergraduate courses
|
| | | | 5.8 | | | | | | 31.6 | | | | | | 40.7 | | | | | | 14.2 | | | | | | 77.6 | | | | | | 90.8 | | |
Cost of services rendered
|
| | | | (19.4) | | | | | | (106.0) | | | | | | (105.2) | | | | | | (38.6) | | | | | | (211.5) | | | | | | (184.2) | | |
Gross profit
|
| | | | 27.5 | | | | | | 150.6 | | | | | | 129.3 | | | | | | 45.6 | | | | | | 249.5 | | | | | | 199.3 | | |
Selling expenses
|
| | | | (9.1) | | | | | | (50.0) | | | | | | (47.8) | | | | | | (18.4) | | | | | | (100.9) | | | | | | (70.6) | | |
General and administrative expenses
|
| | | | (4.4) | | | | | | (24.4) | | | | | | (61.3) | | | | | | (22.9) | | | | | | (125.3) | | | | | | (90.7) | | |
Net impairment losses on financial assets
|
| | | | (6.4) | | | | | | (34.9) | | | | | | (25.3) | | | | | | (10.6) | | | | | | (58.2) | | | | | | (44.6) | | |
Other income (expenses), net
|
| | | | 0.3 | | | | | | 1.7 | | | | | | (0.4) | | | | | | (0.2) | | | | | | (0.9) | | | | | | (1.0) | | |
Operating expenses
|
| | | | (19.7) | | | | | | (107.6) | | | | | | (134.7) | | | | | | (52.1) | | | | | | (285.4) | | | | | | (206.9) | | |
Operating profit (loss)
|
| | | | 7.9 | | | | | | 43.0 | | | | | | (5.4) | | | | | | (6.6) | | | | | | (35.9) | | | | | | (7.6) | | |
| | |
For the Six Months
Ended June 30, |
| |
For the Years Ended
December 31, |
| ||||||||||||||||||||||||||||||
| | |
2020
|
| |
2020
|
| |
2019
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||||||||
| | |
US$(1)
|
| |
R$
|
| |
US$(1)
|
| |
R$
|
| ||||||||||||||||||||||||
| | |
(in millions, except per share information)
|
| |||||||||||||||||||||||||||||||||
Financial income
|
| | | | 1.7 | | | | | | 9.5 | | | | | | 9.4 | | | | | | 3.5 | | | | | | 19.2 | | | | | | 22.0 | | |
Financial expenses
|
| | | | (3.8) | | | | | | (20.8) | | | | | | (29.9) | | | | | | (11.0) | | | | | | (60.4) | | | | | | (64.6) | | |
Financial results
|
| | | | (2.1) | | | | | | (11.2) | | | | | | (20.5) | | | | | | (7.5) | | | | | | (41.2) | | | | | | (42.6) | | |
Profit (loss) before taxes
|
| | | | 5.8 | | | | | | 31.7 | | | | | | (25.9) | | | | | | (14.1) | | | | | | (77.1) | | | | | | (50.2) | | |
Current income taxes
|
| | | | (3.6) | | | | | | (19.6) | | | | | | (8.6) | | | | | | (2.7) | | | | | | (14.8) | | | | | | (10.6) | | |
Deferred income taxes
|
| | | | 7.4 | | | | | | 40.3 | | | | | | 9.4 | | | | | | 4.7 | | | | | | 25.7 | | | | | | 15.7 | | |
Income tax
|
| | | | 3.8 | | | | | | 20.6 | | | | | | 0.8 | | | | | | 2.0 | | | | | | 10.9 | | | | | | 5.0 | | |
Net income (loss) for the period
|
| | | | 9.6 | | | | | | 52.4 | | | | | | (25.1) | | | | | | (12.1) | | | | | | (66.2) | | | | | | (45.2) | | |
Earnings (loss) per common share | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic and diluted earnings (loss) per common
share – R$(2) |
| | | | 0.02 | | | | | | 0.10 | | | | | | (0.05) | | | | | | (0.02) | | | | | | (0.13) | | | | | | (0.09) | | |
Pro forma Basic earnings (loss) per common
share – R$(3) |
| | | | 0.57 | | | | | | 3.11 | | | | | | (1.49) | | | | | | (0.72) | | | | | | (3.93) | | | | | | (2.78) | | |
Pro forma Diluted earnings (loss) per common share – R$(3)
|
| | | | 0.54 | | | | | | 2.98 | | | | | | (1.49) | | | | | | (0.72) | | | | | | (3.93) | | | | | | (2.78) | | |
| | |
As of June 30,
|
| |
As of December 31,
|
| ||||||||||||||||||||||||
| | |
2020
|
| |
2020
|
| |
2019
|
| |
2019
|
| |
2018
|
| |||||||||||||||
| | |
US$(1)
|
| |
R$
|
| |
US$(1)
|
| |
R$
|
| ||||||||||||||||||
| | |
(in millions)
|
| |||||||||||||||||||||||||||
Statement of Financial Position Data: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Current assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | | 28.7 | | | | | | 157.2 | | | | | | 0.5 | | | | | | 2.5 | | | | | | 2.4 | | |
Short-term investments
|
| | | | 14.6 | | | | | | 80.0 | | | | | | 13.2 | | | | | | 72.3 | | | | | | 164.8 | | |
Trade receivables
|
| | | | 20.1 | | | | | | 110.3 | | | | | | 16.1 | | | | | | 88.1 | | | | | | 71.4 | | |
Income taxes recoverable
|
| | | | — | | | | | | — | | | | | | 0.9 | | | | | | 4.7 | | | | | | 5.5 | | |
Prepaid expenses
|
| | | | 2.5 | | | | | | 13.6 | | | | | | 1.6 | | | | | | 8.9 | | | | | | 7.2 | | |
Other current assets
|
| | | | 0.2 | | | | | | 1.1 | | | | | | 0.3 | | | | | | 1.9 | | | | | | 1.2 | | |
| | | | | 66.1 | | | | | | 362.1 | | | | | | 32.6 | | | | | | 178.4 | | | | | | 252.5 | | |
Assets classified as held for sale(2)
|
| | | | 6.4 | | | | | | 35.1 | | | | | | 6.7 | | | | | | 36.5 | | | | | | — | | |
Total current assets
|
| | | | 72.5 | | | | | | 397.2 | | | | | | 39.2 | | | | | | 214.9 | | | | | | 252.5 | | |
|
| | |
As of June 30,
|
| |
As of December 31,
|
| ||||||||||||||||||||||||
| | |
2020
|
| |
2020
|
| |
2019
|
| |
2019
|
| |
2018
|
| |||||||||||||||
| | |
US$(1)
|
| |
R$
|
| |
US$(1)
|
| |
R$
|
| ||||||||||||||||||
| | |
(in millions)
|
| |||||||||||||||||||||||||||
Non-current assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Trade receivables
|
| | | | 0.6 | | | | | | 3.3 | | | | | | 0.7 | | | | | | 3.8 | | | | | | 5.4 | | |
Indemnification assets
|
| | | | 2.4 | | | | | | 12.9 | | | | | | 2.7 | | | | | | 14.8 | | | | | | 16.5 | | |
Deferred tax assets
|
| | | | 10.1 | | | | | | 55.3 | | | | | | 6.8 | | | | | | 37.1 | | | | | | 29.9 | | |
Other non-current assets
|
| | | | 0.3 | | | | | | 1.4 | | | | | | 0.3 | | | | | | 1.4 | | | | | | 1.2 | | |
Right-of-use assets
|
| | | | 19.9 | | | | | | 109.0 | | | | | | 16.2 | | | | | | 88.5 | | | | | | 74.8 | | |
Property and equipment
|
| | | | 15.5 | | | | | | 85.1 | | | | | | 12.8 | | | | | | 70.0 | | | | | | 63.4 | | |
Intangible assets
|
| | | | 120.6 | | | | | | 660.5 | | | | | | 120.2 | | | | | | 658.2 | | | | | | 735.3 | | |
Total non-current assets
|
| | | | 169.4 | | | | | | 927.5 | | | | | | 159.6 | | | | | | 873.8 | | | | | | 926.5 | | |
Total assets
|
| | | | 241.9 | | | | | | 1,324.7 | | | | | | 198.8 | | | | | | 1,088.7 | | | | | | 1,179.0 | | |
Liabilities and Equity | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Current liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Trade payables
|
| | | | 5.2 | | | | | | 28.2 | | | | | | 5.5 | | | | | | 30.0 | | | | | | 17.1 | | |
Loans and financing
|
| | | | 0.4 | | | | | | 2.0 | | | | | | — | | | | | | — | | | | | | — | | |
Lease liabilities
|
| | | | 3.7 | | | | | | 20.3 | | | | | | 3.2 | | | | | | 17.3 | | | | | | 15.4 | | |
Labor and social obligations
|
| | | | 6.6 | | | | | | 36.3 | | | | | | 3.1 | | | | | | 16.8 | | | | | | 16.1 | | |
Income tax payable
|
| | | | 1.0 | | | | | | 5.2 | | | | | | — | | | | | | — | | | | | | — | | |
Taxes payable
|
| | | | 0.5 | | | | | | 3.0 | | | | | | 0.3 | | | | | | 1.7 | | | | | | 1.7 | | |
Prepayments from customers
|
| | | | 0.9 | | | | | | 4.7 | | | | | | 0.6 | | | | | | 3.2 | | | | | | 1.2 | | |
Accounts payable from acquisition of subsidiaries
|
| | | | 24.1 | | | | | | 131.8 | | | | | | 23.5 | | | | | | 128.9 | | | | | | 123.3 | | |
Other current liabilities
|
| | | | 0.2 | | | | | | 0.8 | | | | | | 0.1 | | | | | | 0.3 | | | | | | 0.3 | | |
| | | | | 42.6 | | | | | | 232.5 | | | | | | 36.2 | | | | | | 198.1 | | | | | | 175.1 | | |
Liabilities directly associated with assets classified as held for sale(2)
|
| | | | 4.4 | | | | | | 24.5 | | | | | | 4.3 | | | | | | 23.3 | | | | | | — | | |
Total current liabilities
|
| | | | 47.0 | | | | | | 257.0 | | | | | | 40.4 | | | | | | 221.4 | | | | | | 175.1 | | |
Non-current liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Loans and financing
|
| | | | 27.4 | | | | | | 150.0 | | | | | | — | | | | | | — | | | | | | — | | |
Lease liabilities
|
| | | | 19.1 | | | | | | 104.8 | | | | | | 15.7 | | | | | | 85.9 | | | | | | 73.3 | | |
Share-based compensation
|
| | | | 6.3 | | | | | | 34.4 | | | | | | 6.4 | | | | | | 35.0 | | | | | | 7.0 | | |
Accounts payable from acquisition of subsidiaries
|
| | | | 46.7 | | | | | | 256.0 | | | | | | 45.8 | | | | | | 250.7 | | | | | | 335.2 | | |
Provisions for contingencies
|
| | | | 3.3 | | | | | | 17.8 | | | | | | 3.4 | | | | | | 18.4 | | | | | | 18.0 | | |
Deferred tax liabilities
|
| | | | — | | | | | | — | | | | | | 4.6 | | | | | | 25.0 | | | | | | 43.4 | | |
Other non-current liabilities
|
| | | | 0.2 | | | | | | 0.9 | | | | | | 0.2 | | | | | | 1.1 | | | | | | 7.5 | | |
Total non-current liabilities
|
| | | | 103.0 | | | | | | 564.0 | | | | | | 76.0 | | | | | | 416.0 | | | | | | 484.5 | | |
Total liabilities
|
| | | | 150.0 | | | | | | 821.0 | | | | | | 116.4 | | | | | | 637.4 | | | | | | 659.6 | | |
Equity | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Share capital
|
| | | | 100.1 | | | | | | 548.4 | | | | | | 100.1 | | | | | | 548.4 | | | | | | 546.5 | | |
Capital reserves
|
| | | | (0.2) | | | | | | (1.2) | | | | | | (0.2) | | | | | | (1.3) | | | | | | 2.5 | | |
Revenue reserves
|
| | | | 0.1 | | | | | | 0.4 | | | | | | 0.1 | | | | | | 0.4 | | | | | | 0.4 | | |
| | |
As of June 30,
|
| |
As of December 31,
|
| ||||||||||||||||||||||||
| | |
2020
|
| |
2020
|
| |
2019
|
| |
2019
|
| |
2018
|
| |||||||||||||||
| | |
US$(1)
|
| |
R$
|
| |
US$(1)
|
| |
R$
|
| ||||||||||||||||||
| | |
(in millions)
|
| |||||||||||||||||||||||||||
Retained earnings (accumulated losses)
|
| | | | (8.0) | | | | | | (43.8) | | | | | | (17.6) | | | | | | (96.2) | | | | | | (30.1) | | |
Total equity
|
| | | | 92.0 | | | | | | 503.7 | | | | | | 82.4 | | | | | | 451.3 | | | | | | 519.4 | | |
Total liabilities and equity
|
| | | | 242.0 | | | | | | 1,324.7 | | | | | | 198.8 | | | | | | 1,088.7 | | | | | | 1,179.0 | | |
|
| | |
For the Six Months
Ended June 30, |
| |
For the Year Ended
December 31, |
| ||||||||||||||||||||||||||||||
| | |
2020
|
| |
2020
|
| |
2019
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||||||||
| | |
US$(1)
|
| |
R$
|
| |
US$(1)
|
| |
R$
|
| ||||||||||||||||||||||||
| | |
(in millions)
|
| |||||||||||||||||||||||||||||||||
Net revenue
|
| | | | 46.9 | | | | | | 256.7 | | | | | | 234.5 | | | | | | 84.2 | | | | | | 461.1 | | | | | | 383.4 | | |
Net income (loss) for the period
|
| | | | 9.6 | | | | | | 52.4 | | | | | | (25.1) | | | | | | (12.1) | | | | | | (66.2) | | | | | | (45.2) | | |
Adjusted EBITDA(2)
|
| | | | 13.7 | | | | | | 75.2 | | | | | | 66.1 | | | | | | 21.5 | | | | | | 117.6 | | | | | | 107.8 | | |
Adjusted Net Income(3)
|
| | | | 10.4 | | | | | | 57.1 | | | | | | 35.1 | | | | | | 10.5 | | | | | | 57.7 | | | | | | 55.4 | | |
Cash flow from operations
|
| | | | 12.3 | | | | | | 67.2 | | | | | | 50.0 | | | | | | 0.2 | | | | | | 98.0 | | | | | | 88.0 | | |
Adjusted Cash Flow Conversion from
Operations(4) |
| | | | 80% | | | | | | 80% | | | | | | 68% | | | | | | 75% | | | | | | 75% | | | | | | 79% | | |
| | |
For the Six Months
Ended June 30, |
| |
For the Year Ended
December 31, |
| ||||||||||||||||||||||||||||||
| | |
2020
|
| |
2020
|
| |
2019
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||||||||
| | |
US$(1)
|
| |
R$
|
| |
US$(1)
|
| |
R$
|
| ||||||||||||||||||||||||
| | |
(in millions)
|
| |||||||||||||||||||||||||||||||||
Net income (loss) for the period
|
| | | | 9.6 | | | | | | 52.4 | | | | | | (25.1) | | | | | | (12.1) | | | | | | (66.2) | | | | | | (45.2) | | |
(+) Deferred and current income tax
|
| | | | (3.8) | | | | | | (20.6) | | | | | | (0.8) | | | | | | (2.0) | | | | | | (10.9) | | | | | | (5.0) | | |
(+) Financial results
|
| | | | 2.1 | | | | | | 11.2 | | | | | | 20.5 | | | | | | 7.5 | | | | | | 41.2 | | | | | | 42.6 | | |
(+) Depreciation and amortization
|
| | | | 4.4 | | | | | | 24.3 | | | | | | 30.4 | | | | | | 11.4 | | | | | | 62.4 | | | | | | 56.3 | | |
(+) Interest on tuition fees paid in arrears
|
| | | | 1.3 | | | | | | 7.2 | | | | | | 3.9 | | | | | | 1.5 | | | | | | 8.3 | | | | | | 8.9 | | |
(+) Impairment of non-current assets
|
| | | | — | | | | | | — | | | | | | 31.4 | | | | | | 9.3 | | | | | | 51.0 | | | | | | 33.5 | | |
(+) Share-based compensation plan
|
| | | | (0.1) | | | | | | (0.6) | | | | | | 3.1 | | | | | | 4.8 | | | | | | 26.4 | | | | | | 7.5 | | |
(+) Other income (expenses), net
|
| | | | (0.3) | | | | | | (1.7) | | | | | | 0.4 | | | | | | 0.2 | | | | | | 0.9 | | | | | | 1.0 | | |
(+) M&A, pre-offering expenses and restructuring expenses
|
| | | | 0.5 | | | | | | 2.9 | | | | | | 2.1 | | | | | | 0.8 | | | | | | 4.5 | | | | | | 8.2 | | |
Adjusted EBITDA(2)
|
| | | | 13.7 | | | | | | 75.2 | | | | | | 66.1 | | | | | | 21.5 | | | | | | 117.6 | | | | | | 107.8 | | |
| | |
For the Six Months
Ended June 30, |
| |
For the Year Ended
December 31, |
| ||||||||||||||||||||||||||||||
| | |
2020
|
| |
2020
|
| |
2019
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||||||||
| | |
US$(1)
|
| |
R$
|
| |
US$(1)
|
| |
R$
|
| ||||||||||||||||||||||||
| | |
(in millions)
|
| |||||||||||||||||||||||||||||||||
Net income (loss) for the period
|
| | | | 9.6 | | | | | | 52.4 | | | | | | (25.1) | | | | | | (12.1) | | | | | | (66.2) | | | | | | (45.2) | | |
(+) M&A, pre-offering expenses and restructuring expenses
|
| | | | 0.5 | | | | | | 2.9 | | | | | | 2.1 | | | | | | 0.8 | | | | | | 4.5 | | | | | | 8.2 | | |
| | |
For the Six Months
Ended June 30, |
| |
For the Year Ended
December 31, |
| ||||||||||||||||||||||||||||||
| | |
2020
|
| |
2020
|
| |
2019
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||||||||
| | |
US$(1)
|
| |
R$
|
| |
US$(1)
|
| |
R$
|
| ||||||||||||||||||||||||
| | |
(in millions)
|
| |||||||||||||||||||||||||||||||||
Cash flow from operations
|
| | | | 12.3 | | | | | | 67.2 | | | | | | 50.0 | | | | | | 4.4 | | | | | | 98.0 | | | | | | 88.0 | | |
(+) Income tax paid
|
| | | | (1.8) | | | | | | (9.7) | | | | | | (6.8) | | | | | | (0.6) | | | | | | (12.7) | | | | | | (9.4) | | |
Adjusted Cash Flow from Operations
|
| | | | 10.5 | | | | | | 57.5 | | | | | | 43.2 | | | | | | 3.9 | | | | | | 85.3 | | | | | | 78.6 | | |
Adjusted EBITDA(2)
|
| | | | 13.7 | | | | | | 75.2 | | | | | | 66.1 | | | | | | 5.3 | | | | | | 117.6 | | | | | | 107.8 | | |
(-) M&A, pre-offering expenses and restructuring expenses
|
| | | | (0.5) | | | | | | (2.9) | | | | | | (2.1) | | | | | | (0.2) | | | | | | (4.5) | | | | | | (8.2) | | |
Adjusted EBITDA excluding M&A, pre-offering expenses and restructuring expenses
|
| | | | 13.2 | | | | | | 72.3 | | | | | | 64.0 | | | | | | 5.1 | | | | | | 113.1 | | | | | | 99.6 | | |
Adjusted Cash Flow Conversion from Operations(3)(2)
|
| | | | 80% | | | | | | 80% | | | | | | 68% | | | | | | 75% | | | | | | 75% | | | | | | 79% | | |
| | |
As of and for the
Six Months Ended June 30 |
| |
As of and for the Year Ended
December 31, |
| ||||||||||||||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2019
|
| |
2018
|
| |
2017
|
| |
2016
|
| ||||||||||||||||||
Number enrolled students
|
| | | | 287,798 | | | | | | 244,188 | | | | | | 240,946 | | | | | | 189,295 | | | | | | 140,363 | | | | | | 115,325 | | |
Number of distance learning undergraduate students
|
| | | | 236,838 | | | | | | 193,068 | | | | | | 195,613 | | | | | | 148,711 | | | | | | 106,576 | | | | | | 81,406 | | |
Number of distance learning graduate
students |
| | | | 42,033 | | | | | | 40,673 | | | | | | 35,952 | | | | | | 30,227 | | | | | | 22,910 | | | | | | 21,108 | | |
Number of hubs
|
| | | | 608 | | | | | | 436 | | | | | | 545 | | | | | | 370 | | | | | | 221 | | | | | | 72 | | |
| | |
As of June 30,
|
| |
As of December 31
|
| ||||||||||||||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2019
|
| |
2018
|
| |
2017
|
| |
2016
|
| ||||||||||||||||||
Number of Hubs
|
| | | | 608 | | | | | | 436 | | | | | | 545 | | | | | | 370 | | | | | | 221 | | | | | | 72 | | |
| | |
As of December 31
|
| |||||||||||||||||||||
| | |
2019
|
| |
2018
|
| |
2017
|
| |
2016
|
| ||||||||||||
Number of Hubs | | | | | | | | | | | | | | | | | | | | | | | | | |
Base Cohort
|
| | | | 72 | | | | | | 72 | | | | | | 72 | | | | | | 72 | | |
2017 Cohort
|
| | | | 149 | | | | | | 149 | | | | | | 149 | | | | | | — | | |
2018 Cohort
|
| | | | 149 | | | | | | 149 | | | | | | — | | | | | | — | | |
2019 Cohort
|
| | | | 175 | | | | | | — | | | | | | — | | | | | | — | | |
Students per Hub | | | | | | | | | | | | | | | | | | | | | | | | | |
Base Cohort
|
| | | | 1,331 | | | | | | 1,402 | | | | | | 1,351 | | | | | | 1,131 | | |
2017 Cohort
|
| | | | 353 | | | | | | 221 | | | | | | 63 | | | | | | — | | |
2018 Cohort
|
| | | | 269 | | | | | | 99 | | | | | | — | | | | | | — | | |
2019 Cohort
|
| | | | 41 | | | | | | — | | | | | | — | | | | | | — | | |
| | |
As of and for the Six
Months Ended June 30 |
| |
As of and for the Year
Ended December 31, |
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||
| | |
(in R$millions)
|
| |||||||||||||||||||||
Tuition
|
| | | | 402.0 | | | | | | 336.8 | | | | | | 680.1 | | | | | | 572.9 | | |
| | |
Three Months Ended
|
| |
Year
Ended |
| |
Three Months Ended
|
| |
Year
Ended |
| |
Three Months
Ended |
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| | |
Mar 31,
2018 |
| |
Jun 30,
2018 |
| |
Sep 30,
2018 |
| |
Dec 31,
2018 |
| |
Dec 31,
2018 |
| |
Mar 31,
2019 |
| |
Jun 30,
2019 |
| |
Sep 30,
2019 |
| |
Dec 31,
2019 |
| |
Dec 31,
2019 |
| |
Mar 31,
2020 |
| |
Jun 30,
2020 |
| ||||||||||||||||||||||||||||||||||||
| | |
(Unaudited) (in R$ millions, except percentages)
|
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Net revenue
|
| | | | 89.8 | | | | | | 102.4 | | | | | | 88.6 | | | | | | 102.6 | | | | | | 383.4 | | | | | | 106.9 | | | | | | 127.6 | | | | | | 109.4 | | | | | | 117.2 | | | | | | 461.1 | | | | | | 128.6 | | | | | | 128.1 | | |
Seasonality
(percentage of total revenue) |
| | | | 23.4% | | | | | | 26.7% | | | | | | 23.1% | | | | | | 26.8% | | | | | | — | | | | | | 23.2% | | | | | | 27.7% | | | | | | 23.7% | | | | | | 25.4% | | | | | | — | | | | | | n/a | | | | | | n/a | | |
| | |
As of and
for the Six Months Ended June 30, |
| |
As of and for the Year Ended December 31,
|
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2018
|
| |
2017
|
| ||||||||||||
Real growth in gross domestic product
|
| | | | N/A | | | | | | 1.1% | | | | | | 1.3% | | | | | | 1.3% | | |
Inflation (deflation) (IGP-M)(1)
|
| | | | 4.4% | | | | | | 7.3% | | | | | | 7.5% | | | | | | (0.5)% | | |
Inflation (IPCA)(2)
|
| | | | 0.10% | | | | | | 4.3% | | | | | | 3.7% | | | | | | 2.9% | | |
CDI interest rate(3)
|
| | | | 2.15% | | | | | | 6.0% | | | | | | 6.5% | | | | | | 10.1% | | |
SELIC(4) | | | | | 2.25% | | | | | | 4.5% | | | | | | 6.5% | | | | | | 7.0% | | |
Period-end exchange rate – reais per US$1.00(5)
|
| | | R$ | 5.476 | | | | | R$ | 4.031 | | | | | R$ | 3.875 | | | | | R$ | 3.308 | | |
Average exchange rate – reais per US$1.00(6)
|
| | | R$ | 5.197 | | | | | R$ | 3.946 | | | | | R$ | 3.656 | | | | | R$ | 3.203 | | |
Depreciation of the real vs. US$ in the period(7)
|
| | | | (35.8)% | | | | | | (4.0)% | | | | | | (17.1)% | | | | | | (1.5)% | | |
Unemployment rate(8)
|
| | | | 12.4% | | | | | | 11.9% | | | | | | 12.3% | | | | | | 12.7% | | |
| | |
For the Six Months Ended June 30,
|
| |||||||||||||||
| | |
2020
|
| |
2019
|
| |
Variation (%)
|
| |||||||||
| | |
(in R$ millions, except percentages)
|
| |||||||||||||||
Statement of Profit or Loss Data: | | | | | | | | | | | | | | | | | | | |
Net revenue
|
| | | | 256.7 | | | | | | 234.5 | | | | | | 9.5% | | |
Revenue from distance-learning undergraduate courses
|
| | | | 203.7 | | | | | | 170.8 | | | | | | 19.3% | | |
Revenue from continuing education courses
|
| | | | 21.3 | | | | | | 23.0 | | | | | | (7.3)% | | |
Revenue from on-campus undergraduate courses
|
| | | | 31.6 | | | | | | 40.7 | | | | | | (22.2)% | | |
Cost of services rendered
|
| | | | (106.0) | | | | | | (105.2) | | | | | | 0.8% | | |
Gross profit
|
| | | | 150.6 | | | | | | 129.3 | | | | | | 16.5% | | |
Selling expenses
|
| | | | (50.0) | | | | | | (47.8) | | | | | | 4.8% | | |
General and administrative expenses
|
| | | | (24.4) | | | | | | (61.3) | | | | | | (60.2)% | | |
Net impairment losses on financial assets
|
| | | | (34.9) | | | | | | (25.3) | | | | | | 38.1% | | |
Net impairment losses on financial assets from distance-learning undergraduate courses
|
| | | | (29.5) | | | | | | (20.5) | | | | | | 43.5% | | |
Net impairment losses on financial assets from continuing education courses
|
| | | | (1.6) | | | | | | (1.3) | | | | | | 21.0% | | |
Net impairment losses on financial assets from on-campus undergraduate courses
|
| | | | (3.8) | | | | | | (3.4) | | | | | | 12.2% | | |
Other income (expenses), net
|
| | | | 1.7 | | | | | | (0.4) | | | | | | n.m. | | |
Operating expenses
|
| | | | (107.6) | | | | | | (134.7) | | | | | | (20.1)% | | |
Operating profit (loss)
|
| | | | 43.0 | | | | | | (5.4) | | | | | | n.m. | | |
Financial income
|
| | | | 9.5 | | | | | | 9.4 | | | | | | 1.1% | | |
Financial expenses
|
| | | | (20.8) | | | | | | (29.9) | | | | | | (30.5)% | | |
Financial results
|
| | | | (11.2) | | | | | | (20.5) | | | | | | (45.1)% | | |
Profit (loss) before taxes taxes
|
| | | | 31.7 | | | | | | (25.9) | | | | | | n.m. | | |
Current income taxes
|
| | | | (19.6) | | | | | | (8.6) | | | | | | 128.3% | | |
Deferred income taxes
|
| | | | 40.3 | | | | | | 9.4 | | | | | | 328.4% | | |
Income taxes
|
| | | | 20.6 | | | | | | 0.8 | | | | | | 2,464.0% | | |
Net income (loss) for the period
|
| | | | 52.4 | | | | | | (25.1) | | | | | | n.m. | | |
| | |
For the Years Ended December 31,
|
| |||||||||||||||
| | |
2019
|
| |
2018(1)
|
| |
Variation (%)
|
| |||||||||
| | |
(in R$ millions, except percentages)
|
| |||||||||||||||
Statement of Profit or Loss Data: | | | | | | | | | | | | | | | | | | | |
Net revenue
|
| | | | 461.1 | | | | | | 383.4 | | | | | | 20.3% | | |
Revenue from distance-learning undergraduate courses
|
| | | | 336.3 | | | | | | 259.6 | | | | | | 29.5% | | |
Revenue from continuing education courses
|
| | | | 47.1 | | | | | | 33.0 | | | | | | 42.7% | | |
Revenue from on-campus undergraduate courses
|
| | | | 77.6 | | | | | | 90.8 | | | | | | (14.5)% | | |
Cost of services rendered
|
| | | | (211.5) | | | | | | (184.2) | | | | | | 14.8% | | |
Gross profit
|
| | | | 249.5 | | | | | | 199.3 | | | | | | 25.2% | | |
Selling expenses
|
| | | | (100.9) | | | | | | (70.6) | | | | | | 42.9% | | |
General and administrative expenses
|
| | | | (125.3) | | | | | | (90.7) | | | | | | 38.1% | | |
Net impairment losses on financial assets
|
| | | | (58.2) | | | | | | (44.6) | | | | | | 30.5% | | |
Net impairment losses on financial assets from distance-learning undergraduate courses
|
| | | | (43.7) | | | | | | (31.9) | | | | | | 37.0% | | |
Net impairment losses on financial assets from continuing education courses
|
| | | | (4.0) | | | | | | (3.7) | | | | | | 8.1% | | |
Net impairment losses on financial assets from on-campus undergraduate courses
|
| | | | (10.5) | | | | | | (9.0) | | | | | | 16.7% | | |
Other income (expenses), net
|
| | | | (0.9) | | | | | | (1.0) | | | | | | (10.0)% | | |
Operating expenses
|
| | | | (285.4) | | | | | | (206.9) | | | | | | 37.9% | | |
Operating profit (loss)
|
| | | | (35.9) | | | | | | (7.6) | | | | | | 372.4% | | |
Financial income
|
| | | | 19.2 | | | | | | 22.0 | | | | | | (12.7)% | | |
Financial expenses
|
| | | | (60.4) | | | | | | (64.6) | | | | | | (6.5)% | | |
Financial results
|
| | | | (41.2) | | | | | | (42.6) | | | | | | (3.3)% | | |
Loss before taxes
|
| | | | (77.1) | | | | | | (50.2) | | | | | | 53.6% | | |
Current income taxes
|
| | | | (14.8) | | | | | | (10.6) | | | | | | 39.6% | | |
Deferred income taxes
|
| | | | 25.7 | | | | | | 15.7 | | | | | | 63.7% | | |
Income taxes
|
| | | | 10.9 | | | | | | 5.0 | | | | | | 118.0% | | |
Loss for the year
|
| | | | (66.2) | | | | | | (45.2) | | | | | | 46.5% | | |
| | |
For the Three Months Ended
|
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| | |
March 31,
2018 |
| |
June 30,
2018 |
| |
September 30,
2018 |
| |
December 31,
2018 |
| |
March 31,
2019 |
| |
June 30,
2019 |
| |
September 30,
2019 |
| |
December 31,
2019 |
| |
March 31,
2020 |
| |
June 30,
2020 |
| ||||||||||||||||||||||||||||||
| | |
(in R$ millions, except per share data)
|
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Income Statement Data
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net revenue
|
| | | | 89.8 | | | | | | 102.4 | | | | | | 88.6 | | | | | | 102.6 | | | | | | 106.9 | | | | | | 127.6 | | | | | | 109.4 | | | | | | 117.2 | | | | | | 128.6 | | | | | | 128.1 | | |
Cost of services rendered
|
| | | | (41.8) | | | | | | (51.6) | | | | | | (45.9) | | | | | | (44.8) | | | | | | (49.5) | | | | | | (55.7) | | | | | | (56.3) | | | | | | (50.1) | | | | | | (57.1) | | | | | | (48.9) | | |
Gross profit
|
| | | | 48.0 | | | | | | 50.8 | | | | | | 42.7 | | | | | | 57.8 | | | | | | 57.4 | | | | | | 71.9 | | | | | | 53.1 | | | | | | 67.1 | | | | | | 71.5 | | | | | | 79.2 | | |
Operating expenses | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
General and administrative expenses
|
| | | | (10.9) | | | | | | (10.3) | | | | | | (18.7) | | | | | | (50.8) | | | | | | (14.2) | | | | | | (15.6) | | | | | | (16.3) | | | | | | (79.2) | | | | | | (15.0) | | | | | | (9.4) | | |
Selling expenses
|
| | | | (21.9) | | | | | | (17.5) | | | | | | (14.8) | | | | | | (16.4) | | | | | | (30.1) | | | | | | (17.7) | | | | | | (19.5) | | | | | | (33.7) | | | | | | (32.6) | | | | | | (17.4) | | |
Net impairment losses on
financial and contract assets |
| | | | (15.3) | | | | | | (10.2) | | | | | | (1.3) | | | | | | (17.8) | | | | | | (13.4) | | | | | | (11.9) | | | | | | (6.5) | | | | | | (26.4) | | | | | | (16.6) | | | | | | (18.3) | | |
Other income (expenses),
net |
| | | | 0.3 | | | | | | — | | | | | | (0.7) | | | | | | (0.6) | | | | | | (0.4) | | | | | | — | | | | | | (0.7) | | | | | | 0.3 | | | | | | 3.6 | | | | | | (1.9) | | |
Operating profit
|
| | | | 0.2 | | | | | | 12.8 | | | | | | 7.2 | | | | | | (27.8) | | | | | | (0.7) | | | | | | 26.7 | | | | | | 10.1 | | | | | | (71.9) | | | | | | 10.7 | | | | | | 32.3 | | |
Financial income (expenses)
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Financial income
|
| | | | 5.7 | | | | | | 4.3 | | | | | | 6.9 | | | | | | 5.1 | | | | | | 5.1 | | | | | | 4.3 | | | | | | 5.8 | | | | | | 3.9 | | | | | | 4.1 | | | | | | 5.4 | | |
Financial expenses
|
| | | | (15.7) | | | | | | (20.0) | | | | | | (14.7) | | | | | | (14.2) | | | | | | (15.7) | | | | | | (14.2) | | | | | | (12.6) | | | | | | (17.8) | | | | | | (12.5) | | | | | | (8.3) | | |
Financial income, net
|
| | | | (10.0) | | | | | | (15.7) | | | | | | (7.8) | | | | | | (9.1) | | | | | | (10.6) | | | | | | (9.9) | | | | | | (6.8) | | | | | | (13.9) | | | | | | (8.4) | | | | | | (2.9) | | |
Profit (losses before taxes)
|
| | | | (9.8) | | | | | | (2.9) | | | | | | (0.6) | | | | | | (36.9) | | | | | | (11.3) | | | | | | 16.8 | | | | | | 3.3 | | | | | | (85.8) | | | | | | 2.4 | | | | | | 29.3 | | |
Current income taxes
|
| | | | (2.5) | | | | | | (2.4) | | | | | | (3.2) | | | | | | (2.5) | | | | | | (0.1) | | | | | | (8.5) | | | | | | (2.2) | | | | | | (4.0) | | | | | | (9.7) | | | | | | (9.9) | | |
Deferred income taxes
|
| | | | 3.6 | | | | | | 3.5 | | | | | | 2.7 | | | | | | 5.8 | | | | | | 5.0 | | | | | | 4.4 | | | | | | 2.9 | | | | | | 13.4 | | | | | | 12.0 | | | | | | 28.3 | | |
Net income (loss) for the period
|
| | | | (8.7) | | | | | | (1.8) | | | | | | (1.1) | | | | | | (33.6) | | | | | | (6.4) | | | | | | 12.7 | | | | | | 4.0 | | | | | | (76.4) | | | | | | 4.7 | | | | | | 47.7 | | |
| | |
For the Three Months Ended
|
| |
For the Year
Ended December 31, |
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| | |
March 31,
2018 |
| |
June 30,
2018 |
| |
September 30,
2018 |
| |
December 31,
2018 |
| |
March 31,
2019 |
| |
June 30,
2019 |
| |
September 30,
2019 |
| |
December 31,
2019 |
| |
March 31,
2020 |
| |
June 30,
2020 |
| |
2019
|
| |
2018
|
| ||||||||||||||||||||||||||||||||||||
| | |
(in R$ millions, except percentages)
|
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Tuition (actual)
|
| | | | 114.9 | | | | | | 137.0 | | | | | | 118.7 | | | | | | 202.3 | | | | | | 156.1 | | | | | | 180.7 | | | | | | 164.9 | | | | | | 178.4 | | | | | | 203.1 | | | | | | 198.9 | | | | | | 681.6 | | | | | | 573.1 | | |
| | |
For the Three Months Ended
|
| |
For the Year
Ended December 31, |
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| | |
March 31,
2018 |
| |
June 30,
2018 |
| |
September 30,
2018 |
| |
December 31,
2018 |
| |
March 31,
2019 |
| |
June 30,
2019 |
| |
September 30,
2019 |
| |
December 31,
2019 |
| |
March 31,
2020 |
| |
June 30,
2020 |
| |
2019
|
| |
2018
|
| ||||||||||||||||||||||||||||||||||||
| | |
(in R$ millions)
|
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Reconciliation of Adjusted EBITDA
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net income (loss) for the period
|
| | | | (8.7) | | | | | | (1.8) | | | | | | (1.1) | | | | | | (33.6) | | | | | | (6.5) | | | | | | 12.7 | | | | | | 4.0 | | | | | | (76.4) | | | | | | 4.7 | | | | | | 47.7 | | | | | | (66.2) | | | | | | (45.2) | | |
(+) Deferred and current income tax
|
| | | | (1.1) | | | | | | (1.1) | | | | | | 0.5 | | | | | | (3.4) | | | | | | (4.9) | | | | | | 4.1 | | | | | | (0.7) | | | | | | (9.4) | | | | | | (2.3) | | | | | | (18.4) | | | | | | (10.9) | | | | | | (5.0) | | |
(+) Financial result
|
| | | | 10.0 | | | | | | 15.7 | | | | | | 7.8 | | | | | | 9.1 | | | | | | 10.6 | | | | | | 9.9 | | | | | | 6.8 | | | | | | 13.9 | | | | | | 8.3 | | | | | | 2.9 | | | | | | 41.2 | | | | | | 42.6 | | |
(+) Depreciation and amortization
|
| | | | 13.3 | | | | | | 13.7 | | | | | | 14.0 | | | | | | 15.4 | | | | | | 15.1 | | | | | | 15.4 | | | | | | 15.6 | | | | | | 16.4 | | | | | | 13.8 | | | | | | 10.5 | | | | | | 62.4 | | | | | | 56.3 | | |
(+) Interest on tuition fees paid in arrears
|
| | | | 3.6 | | | | | | 1.8 | | | | | | 2.7 | | | | | | 0.9 | | | | | | 2.6 | | | | | | 1.3 | | | | | | 2.7 | | | | | | 1.7 | | | | | | 3.9 | | | | | | 3.3 | | | | | | 8.3 | | | | | | 8.9 | | |
(+) Impairment of non-current
assets |
| | | | 0.0 | | | | | | 0.0 | | | | | | 0.0 | | | | | | 33.5 | | | | | | 0.0 | | | | | | 0.0 | | | | | | 0.0 | | | | | | 51.0 | | | | | | 0.0 | | | | | | 0.0 | | | | | | 51.0 | | | | | | 33.5 | | |
(+) Share-based compensation plan
|
| | | | 0.3 | | | | | | 0.8 | | | | | | 0.7 | | | | | | 5.6 | | | | | | 1.5 | | | | | | 1.6 | | | | | | 0.7 | | | | | | 22.6 | | | | | | 1.4 | | | | | | (2.0) | | | | | | 26.4 | | | | | | 7.5 | | |
(+) Other income (expenses), net
|
| | | | (0.3) | | | | | | 0.0 | | | | | | 0.7 | | | | | | 0.6 | | | | | | 0.4 | | | | | | — | | | | | | 0.7 | | | | | | (0.2) | | | | | | (3.6) | | | | | | 1.9 | | | | | | 0.9 | | | | | | 1.0 | | |
(+) M&A, pre-offering expenses and restructuring expenses
|
| | | | 1.4 | | | | | | 0.1 | | | | | | 0.7 | | | | | | 6.0 | | | | | | 1.9 | | | | | | 0.2 | | | | | | 2.1 | | | | | | 0.2 | | | | | | 2.6 | | | | | | 0.3 | | | | | | 4.5 | | | | | | 8.2 | | |
Adjusted EBITDA(1)
|
| | | | 18.5 | | | | | | 29.2 | | | | | | 26.0 | | | | | | 34.1 | | | | | | 20.7 | | | | | | 45.2 | | | | | | 31.9 | | | | | | 19.8 | | | | | | 28.8 | | | | | | 46.2 | | | | | | 117.6 | | | | | | 107.8 | | |
| | |
For the Three Months Ended
|
| |
For the Year
Ended December 31, |
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| | |
March 31,
2018 |
| |
June 30,
2018 |
| |
September 30,
2018 |
| |
December 31,
2018 |
| |
March 31,
2019 |
| |
June 30,
2019 |
| |
September 30,
2019 |
| |
December 31,
2019 |
| |
March 31,
2020 |
| |
June 30,
2020 |
| |
2019
|
| |
2018
|
| ||||||||||||||||||||||||||||||||||||
| | |
(in R$ millions)
|
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Reconciliation of Adjusted Net Income
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net income (loss) for the period
|
| | | | (8.7) | | | | | | (1.8) | | | | | | (1.1) | | | | | | (33.6) | | | | | | (6.5) | | | | | | 12.7 | | | | | | 4.0 | | | | | | (76.4) | | | | | | 4.7 | | | | | | 47.7 | | | | | | (66.2) | | | | | | (45.2) | | |
(+) M&A, pre-offering expenses and restructuring expenses
|
| | | | 1.4 | | | | | | 0.1 | | | | | | 0.7 | | | | | | 6.0 | | | | | | 1.9 | | | | | | 0.2 | | | | | | 2.1 | | | | | | 0.2 | | | | | | 2.6 | | | | | | 0.3 | | | | | | 4.5 | | | | | | 8.2 | | |
(+) Impairment of non-current
assets |
| | | | 0.0 | | | | | | 0.0 | | | | | | 0.0 | | | | | | 33.5 | | | | | | 0.0 | | | | | | 0.0 | | | | | | 0.0 | | | | | | 51.0 | | | | | | 0.0 | | | | | | 0.0 | | | | | | 51.0 | | | | | | 33.5 | | |
(+) Share-based compensation plan
|
| | | | 0.3 | | | | | | 0.8 | | | | | | 0.7 | | | | | | 5.6 | | | | | | 1.5 | | | | | | 1.6 | | | | | | 0.7 | | | | | | 22.6 | | | | | | 1.4 | | | | | | (2.0) | | | | | | 26.4 | | | | | | 7.5 | | |
(+) Amortization of intangible
assets from business combinations |
| | | | 9.3 | | | | | | 9.3 | | | | | | 9.3 | | | | | | 9.3 | | | | | | 9.3 | | | | | | 9.3 | | | | | | 9.3 | | | | | | 9.3 | | | | | | 6.1 | | | | | | 2.8 | | | | | | 37.3 | | | | | | 37.3 | | |
(+) Interest accrued on
accounts payable from the acquisition of subsidiaries |
| | | | 7.0 | | | | | | 7.1 | | | | | | 7.2 | | | | | | 5.9 | | | | | | 5.7 | | | | | | 5.8 | | | | | | 5.9 | | | | | | 6.0 | | | | | | 4.4 | | | | | | 4.5 | | | | | | 23.4 | | | | | | 27.1 | | |
(-) Corresponding tax effects
on adjustments |
| | | | (3.2) | | | | | | (3.2) | | | | | | (3.2) | | | | | | (3.4) | | | | | | (3.3) | | | | | | (3.2) | | | | | | (3.3) | | | | | | (8.9) | | | | | | (4.2) | | | | | | (1.8) | | | | | | (18.7) | | | | | | (13.0) | | |
Adjusted Net Income(1)
|
| | | | 4.5 | | | | | | 12.2 | | | | | | 13.7 | | | | | | 25.1 | | | | | | 8.7 | | | | | | 26.4 | | | | | | 18.8 | | | | | | 3.8 | | | | | | 25.6 | | | | | | 43.8 | | | | | | 57.7 | | | | | | 55.4 | | |
| | |
For the Three Months Ended
|
| |
For the Year
Ended December 31, |
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| | |
March 31,
2018 |
| |
June 30,
2018 |
| |
September 30,
2018 |
| |
December 31,
2018 |
| |
March 31,
2019 |
| |
June 30,
2019 |
| |
September 30,
2019 |
| |
December 31,
2019 |
| |
March 31,
2020 |
| |
June 30,
2020 |
| |
2019
|
| |
2018
|
| ||||||||||||||||||||||||||||||||||||
| | |
(in R$ millions, except per share data)
|
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Reconciliation of Adjusted Cash Conversion from Operations
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cash from Operations
|
| | | | 17.8 | | | | | | 23.3 | | | | | | 25.1 | | | | | | 21.9 | | | | | | 20.5 | | | | | | 29.6 | | | | | | 33.3 | | | | | | 14.6 | | | | | | 27.6 | | | | | | 39.6 | | | | | | 98.0 | | | | | | 88.0 | | |
(+) Income tax paid
|
| | | | (2.2) | | | | | | (2.1) | | | | | | (2.8) | | | | | | (2.4) | | | | | | (4.0) | | | | | | (2.8) | | | | | | (2.8) | | | | | | (3.1) | | | | | | (2.3) | | | | | | (7.4) | | | | | | (12.7) | | | | | | (9.4) | | |
Adjusted Cash from Operations
|
| | | | 15.6 | | | | | | 21.2 | | | | | | 22.3 | | | | | | 19.5 | | | | | | 16.5 | | | | | | 26.8 | | | | | | 30.5 | | | | | | 11.5 | | | | | | 25.3 | | | | | | 32.2 | | | | | | 85.3 | | | | | | 78.6 | | |
Adjusted EBITDA(1)
|
| | | | 18.5 | | | | | | 29.2 | | | | | | 26.0 | | | | | | 34.1 | | | | | | 20.7 | | | | | | 45.4 | | | | | | 32.0 | | | | | | 19.5 | | | | | | 28.8 | | | | | | 46.2 | | | | | | 117.6 | | | | | | 107.8 | | |
(-) M&A, pre-offering expenses and restructuring expenses
|
| | | | (1.4) | | | | | | (0.1) | | | | | | (0.7) | | | | | | (6.0) | | | | | | (1.9) | | | | | | (0.2) | | | | | | (2.2) | | | | | | (0.2) | | | | | | (2.6) | | | | | | (0.3) | | | | | | (4.5) | | | | | | (8.2) | | |
Adjusted EBITDA excluding M&A, pre-offering expenses and restructuring expenses
|
| | | | 17.1 | | | | | | 29.1 | | | | | | 25.3 | | | | | | 28.1 | | | | | | 18.8 | | | | | | 45.2 | | | | | | 29.8 | | | | | | 19.3 | | | | | | 26.2 | | | | | | 45.9 | | | | | | 113.1 | | | | | | 99.6 | | |
Adjusted Cash Flow Conversion from Operations(2)
|
| | | | 91% | | | | | | 73% | | | | | | 88% | | | | | | 69% | | | | | | 88% | | | | | | 59% | | | | | | 102% | | | | | | 60% | | | | | | 97% | | | | | | 70% | | | | | | 75% | | | | | | 79% | | |
| | |
For the Six Months Ended
June 30, |
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
| | |
(in R$ millions)
|
| |||||||||
Cash Flow Data | | | | | | | | | | | | | |
Cash flows provided by operating activities
|
| | | | 49.6 | | | | | | 36.5 | | |
Cash flows used in investing activities
|
| | | | (41.9) | | | | | | (35.1) | | |
Cash flows provided by (used in) financing activities
|
| | | | 147.0 | | | | | | (2.9) | | |
| | |
For the Year Ended
December 31, |
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
| | |
(in R$ millions)
|
| |||||||||
Cash Flow Data | | | | | | | | | | | | | |
Cash flows provided by operating activities
|
| | | | 56.0 | | | | | | 50.2 | | |
Cash flows used in investing activities
|
| | | | (49.5) | | | | | | (158.8) | | |
Cash flows provided by (used in) financing activities
|
| | | | (6.5) | | | | | | 108.7 | | |
| | |
Payments Due By Period as of December 31, 2019
|
| |||||||||||||||||||||||||||
| | |
Less than
1 year |
| |
1 – 3 years
|
| |
3 – 5 years
|
| |
More than
5 years |
| |
Total
|
| |||||||||||||||
| | |
(in thousands of reais)
|
| |||||||||||||||||||||||||||
Trade payables
|
| | | | 29,978 | | | | | | — | | | | | | — | | | | | | — | | | | | | 29,978 | | |
Lease liabilities
|
| | | | 21,999 | | | | | | 39,218 | | | | | | 38,430 | | | | | | 93,373 | | | | | | 193,020 | | |
Other leases(1)
|
| | | | 2,804 | | | | | | 1,402 | | | | | | 1,038 | | | | | | 402 | | | | | | 5,646 | | |
Prepayments from customers
|
| | | | 3,186 | | | | | | — | | | | | | — | | | | | | — | | | | | | 3,186 | | |
Accounts payable from acquisition of subsidiaries
|
| | | | 135,233 | | | | | | 281,022 | | | | | | — | | | | | | — | | | | | | 416,255 | | |
Share-based compensation
|
| | | | — | | | | | | — | | | | | | — | | | | | | 78,455 | | | | | | 78,455 | | |
Total | | | | | 193,200 | | | | | | 321,642 | | | | | | 39,468 | | | | | | 172,230 | | | | | | 726,540 | | |
| | | | | | | | | | | |
Increase/decrease in interest rate
|
| ||||||||||||||||||
| | |
Balance as of
December 31, 2019 |
| |
Index — %
per year |
| |
Probable
scenario |
| |
Risk
|
| |
Possible
scenario 25% |
| |
Remote
scenario 75% |
| ||||||||||||
| | |
(in thousands of reais, unless otherwise indicated)
|
| |||||||||||||||||||||||||||
Short-term investments
|
| | | | 72,321 | | | |
99.10% CDI + 5.81%
|
| | | | 4,202 | | | | | | Decrease | | | |
3,151
|
| | | | 1,050 | | |
Accounts payable from acquisition of subsidiaries
|
| | | | 379,540 | | | |
IPCA + 4.31%
|
| | | | 16,358 | | | | | | Increase | | | |
20,448
|
| | | | 28,627 | | |
| | | | | | | | |
Monthly
tuition |
| |||
Average ticket freshman
|
| | | | 1stsemester | | | | | R$ | 250 | | |
| | | | | 2ndsemester | | | | | R$ | 250 | | |
Annual adjustments (Inflation(1) + 2%)
|
| | | | 3rdsemester | | | | | R$ | 263 | | |
New subjects (5% increase)
|
| | | | 4thsemester | | | | | R$ | 276 | | |
Annual adjustments (Inflation(1) + 2%) + New subjects (5% increase)
|
| | | | 5thsemester | | | | | R$ | 303 | | |
| | | | | 6thsemester | | | | | R$ | 303 | | |
Annual adjustments (Inflation(1) + 2%) + New subjects (5% increase)
|
| | | | 7thsemester | | | | | R$ | 334 | | |
| | | | | 8thsemester | | | | | R$ | 334 | | |
Function
|
| |
Number of
Employees |
| |
% of Total
|
| ||||||
Management
|
| | | | 7 | | | | | | 0.1% | | |
Technology and Content Development
|
| | | | 237 | | | | | | 3.7% | | |
Sales and Marketing
|
| | | | 151 | | | | | | 2.5% | | |
Student Support and Academic Staff
|
| | | | 1,893 | | | | | | 29.9% | | |
Local tutors
|
| | | | 3,599 | | | | | | 56.9% | | |
General and Administrative
|
| | | | 437 | | | | | | 6.9% | | |
Total | | | | | 6,324 | | | | | | 100.0% | | |
Name
|
| |
Age
|
| |
Position
|
|
Bruno Augusto Sacchi Zaremba | | |
45
|
| |
Chairman
|
|
Edson Gustavo Georgette Peli | | |
38
|
| |
Director(1)
|
|
Fernando Cezar Dantas Porfírio Borges | | |
50
|
| |
Director
|
|
Lywal Salles Filho | | |
73
|
| |
Director
|
|
Rivadávia Correa Drummond de Alvarenga Neto | | |
51
|
| |
Independent Director(1)
|
|
Claudia Jordão Ribeiro Pagnano | | |
53
|
| |
Independent Director(1)
|
|
Name
|
| |
Age
|
| |
Position
|
|
Pedro Jorge Guterres Quintans Graça | | |
53
|
| |
Chief Executive Officer
|
|
Carlos Henrique Boquimpani de Freitas | | |
44
|
| |
Chief Financial Officer
|
|
Ana Paula Rodrigues | | |
46
|
| |
People and Management and Services Officer
|
|
Luiz Gonzaga Victor Foureaux Neto | | |
42
|
| |
Marketing and Innovation Officer
|
|
| | |
Shares
Beneficially Owned Prior to Offering |
| |
% of
Total Voting Power Before Offering |
| |
Shares to
be Sold in Offering |
| |
Shares
Beneficially Owned After Offering Without Exercise of Underwriters’ Option |
| |
% of Total
Voting Power After Offering Without Exercise of Underwriters’ Option |
| |
Shares
Beneficially Owned After Offering With Full Exercise of Underwriters’ Option |
| |
% of Total
Voting Power After Offering With Full Exercise of Underwriters’ Option |
| |||||||||||||||||||||||||||||||||||||||
| | |
Shares
|
| |
%
|
| |
Shares
|
| |
%
|
| |
Shares
|
| |
%
|
| ||||||||||||||||||||||||||||||||||||||||||
5% Shareholders | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Carlyle(1)
|
| | | | 6,246,471 | | | | | | 36.6% | | | | | | 36.62% | | | | | | 1,873,941 | | | | | | 4,372,530 | | | | | | 18.96% | | | | | | 18.96% | | | | | | 4,091,439 | | | | | | 17.08% | | | | | | 17.08% | | |
Vinci Partners(2)
|
| | | | 6,246,471 | | | | | | 36.6% | | | | | | 36.62% | | | | | | 1,873,941 | | | | | | 4,372,530 | | | | | | 18.96% | | | | | | 18.96% | | | | | | 4,091,439 | | | | | | 17.08% | | | | | | 17.08% | | |
NB Funds(3)
|
| | | | 4,355,932 | | | | | | 25.5% | | | | | | 25.54% | | | | | | 1,306,780 | | | | | | 3,049,152 | | | | | | 13.22% | | | | | | 13.22% | | | | | | 2,853,135 | | | | | | 11.91% | | | | | | 11.91% | | |
Other Selling Shareholders | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Valdir Gomes Barbosa Sobrinho
|
| | | | 17,860 | | | | | | *% | | | | | | *% | | | | | | 15,530 | | | | | | 2,330 | | | | | | *% | | | | | | *% | | | | | | 0 | | | | | | *% | | | | | | *% | | |
Gabriel Simoes Guioto Ribeiro
|
| | | | 1,814 | | | | | | *% | | | | | | *% | | | | | | 1,577 | | | | | | 237 | | | | | | *% | | | | | | *% | | | | | | 0 | | | | | | *% | | | | | | *% | | |
Raphael Ribeiro Rodrigues
|
| | | | 4,763 | | | | | | *% | | | | | | *% | | | | | | 4,142 | | | | | | 621 | | | | | | *% | | | | | | *% | | | | | | 0 | | | | | | *% | | | | | | *% | | |
Herminio Kloch
|
| | | | 10,206 | | | | | | *% | | | | | | *% | | | | | | 8,875 | | | | | | 1,331 | | | | | | *% | | | | | | *% | | | | | | 0 | | | | | | *% | | | | | | *% | | |
Carlos Fabiano Fistarol
|
| | | | 9,861 | | | | | | *% | | | | | | *% | | | | | | 8,575 | | | | | | 1,286 | | | | | | *% | | | | | | *% | | | | | | 0 | | | | | | *% | | | | | | *% | | |
Peter Kim Woo
|
| | | | 4,536 | | | | | | *% | | | | | | *% | | | | | | 3,430 | | | | | | 1,106 | | | | | | *% | | | | | | *% | | | | | | 592 | | | | | | *% | | | | | | *% | | |
Erico Coelho Ribeiro
|
| | | | 30,500 | | | | | | *% | | | | | | *% | | | | | | 26,522 | | | | | | 3,978 | | | | | | *% | | | | | | *% | | | | | | 0 | | | | | | *% | | | | | | *% | | |
Ricardo Grima Fernandes
|
| | | | 6,100 | | | | | | *% | | | | | | *% | | | | | | 5,304 | | | | | | 796 | | | | | | *% | | | | | | *% | | | | | | 0 | | | | | | *% | | | | | | *% | | |
Executive Officers and Directors | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Bruno Augusto Sacchi Zaremba
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Edson Gustavo Georgette Peli
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Fernando Cezar Dantas Porfírio Borges
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Lywal Salles Filho
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Rivadávia Correa Drummond de Alvarenga Neto
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Claudia Jordão Ribeiro Pagnano
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Pedro Jorge Guterres Quintans Graça
|
| | | | 45,359 | | | | | | *% | | | | | | *% | | | | | | 35,498 | | | | | | 9,861 | | | | | | *% | | | | | | *% | | | | | | 4,536 | | | | | | *% | | | | | | *% | | |
Carlos Henrique Boquimpani de Freitas
|
| | | | 25,000 | | | | | | *% | | | | | | *% | | | | | | 21,739 | | | | | | 3,261 | | | | | | *% | | | | | | *% | | | | | | 0 | | | | | | *% | | | | | | *% | | |
Ana Paula Rodrigues
|
| | | | 30,500 | | | | | | *% | | | | | | *% | | | | | | 26,522 | | | | | | 3,978 | | | | | | *% | | | | | | *% | | | | | | 0 | | | | | | *% | | | | | | *% | | |
Luiz Gonzaga Victor Foureaux Neto
|
| | | | 22,680 | | | | | | *% | | | | | | *% | | | | | | 17,750 | | | | | | 4,930 | | | | | | *% | | | | | | *% | | | | | | 2,268 | | | | | | *% | | | | | | *% | | |
All directors and executive officers as a group (ten persons)
|
| | | | 123,539 | | | | | | *% | | | | | | *% | | | | | | 101,509 | | | | | | 22,030 | | | | | | *% | | | | | | *% | | | | | | 6,804 | | | | | | *% | | | | | | *% | | |
| | |
As of and for
the six months ended June 30, 2020 |
| |
As of and for
the year ended December 31, |
| ||||||||||||||||||||||||
| | |
2020(1)
|
| |
2020
|
| |
2019(1)
|
| |
2019
|
| |
2018
|
| |||||||||||||||
| | |
US$
|
| |
R$
|
| |
US$
|
| |
R$
|
| ||||||||||||||||||
| | |
(in millions)
|
| |||||||||||||||||||||||||||
FI Vinci Renda Fixa Crédito Privado | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Short-term investments (balance)
|
| | | | 7.1 | | | | | | 39.0 | | | | | | 7.0 | | | | | | 38.5 | | | | | | 36.6 | | |
Financial income
|
| | | | 0.1 | | | | | | 0.6 | | | | | | 0.4 | | | | | | 2.1 | | | | | | 2.1 | | |
Austral Seguradora S.A. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Prepaid expenses (balance)
|
| | | | 0.1 | | | | | | 0.6 | | | | | | 0.1 | | | | | | 0.8 | | | | | | — | | |
General and administrative expenses
|
| | | | — | | | | | | (0.2) | | | | | | — | | | | | | (0.2) | | | | | | — | | |
Kloch Advocacia | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
General and administrative expenses
|
| | | | — | | | | | | (0.1) | | | | | | — | | | | | | (0.2) | | | | | | (0.2) | | |
Underwriters
|
| |
Number of
Common Shares |
|
Goldman Sachs & Co. LLC(1)
|
| |
|
|
BofA Securities, Inc.(2)
|
| | | |
Itau BBA USA Securities, Inc.(3)
|
| | | |
Morgan Stanley & Co LLC(4)
|
| | | |
Banco Bradesco BBI S.A.(5)
|
| | | |
Banco BTG Pactual S.A.—Cayman Branch(6)
|
| | | |
Credit Suisse Securities (USA) LLC(7)
|
| | | |
Santander Investment Securities Inc.(8)
|
| | | |
XP Investments US, LLC(9)
|
| | | |
Total
|
| | | |
| | |
Total
|
| ||||||
| | |
Per Share
|
| |
No Exercise
|
| |
Full Exercise
|
|
| | |
(US$)
|
| ||||||
Offering Price
|
| | | | | | | | | |
Underwriting discounts and commissions to be paid by us
|
| | | | | | | | | |
Underwriting discounts and commissions to be paid by the selling shareholders
|
| | | | | | | | | |
Proceeds, before expenses, to us
|
| | | | | | | | | |
Proceeds, before expenses, to the selling shareholders
|
| | | | | | | | | |
Expenses
|
| |
Amount
|
|
U.S. Securities and Exchange Commission registration fee
|
| |
US$42,834
|
|
Nasdaq listing fee
|
| |
170,000
|
|
FINRA filing fee
|
| |
47,550
|
|
Printing and engraving expenses
|
| |
150,000
|
|
Legal fees and expenses
|
| |
2,000,000
|
|
Transfer agent and registrar fees
|
| |
25,000
|
|
Accounting fees and expenses
|
| |
1,200,000
|
|
Miscellaneous costs
|
| |
550,000
|
|
Total
|
| |
US$4,185,384
|
|
| | |
Page
|
| |||
Unaudited Interim Condensed Consolidated Financial Statements — Treviso Empreendimentos, Participações e Comércio S.A.
|
| | | | | | |
| | | | F-2 | | | |
| | | | F-4 | | | |
| | | | F-5 | | | |
| | | | F-6 | | | |
| | | | F-7 | | | |
Audited Consolidated Financial Statements — Treviso Empreendimentos, Participações
e Comércio S.A. |
| | | | | | |
| | | | F-28 | | | |
| | | | F-29 | | | |
| | | | F-31 | | | |
| | | | F-32 | | | |
| | | | F-33 | | | |
| | | | F-34 | | |
| | |
Note
|
| |
June, 30
2020 |
| |
December 31,
2019 |
| |||||||||
ASSETS | | | | | | | | | | | | | | | | | | | |
CURRENT ASSETS | | | | | | | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | | 5 | | | | | | 157,158 | | | | | | 2,457 | | |
Short-term investments
|
| | | | | | | | | | 79,970 | | | | | | 72,321 | | |
Trade receivables
|
| | | | 6 | | | | | | 110,274 | | | | | | 88,130 | | |
Income taxes recoverable
|
| | | | 7 | | | | | | — | | | | | | 4,711 | | |
Prepaid expenses
|
| | | | | | | | | | 13,558 | | | | | | 8,938 | | |
Other current assets
|
| | | | | | | | | | 1,124 | | | | | | 1,858 | | |
| | | | | | | | | | | 362,084 | | | | | | 178,415 | | |
Assets classified as held for sale
|
| | | | 8 | | | | | | 35,083 | | | | | | 36,433 | | |
TOTAL CURRENT ASSETS
|
| | | | | | | | | | 397,167 | | | | | | 214,848 | | |
NON-CURRENT ASSETS | | | | | | | | | | | | | | | | | | | |
Trade receivables
|
| | | | | | | | | | 3,326 | | | | | | 3,786 | | |
Indemnification assets
|
| | | | | | | | | | 12,932 | | | | | | 14,801 | | |
Deferred tax assets
|
| | | | 7 | | | | | | 55,305 | | | | | | 37,146 | | |
Other non-current assets
|
| | | | | | | | | | 1,379 | | | | | | 1,359 | | |
Right-of-use assets
|
| | | | 9 | | | | | | 108,972 | | | | | | 88,534 | | |
Property and equipment
|
| | | | 10 | | | | | | 85,087 | | | | | | 70,033 | | |
Intangible assets
|
| | | | 10 | | | | | | 660,487 | | | | | | 658,170 | | |
TOTAL NON-CURRENT ASSETS
|
| | | | | | | | | | 927,488 | | | | | | 873,829 | | |
TOTAL ASSETS
|
| | | | | | | | | | 1,324,655 | | | | | | 1,088,677 | | |
| | |
Note
|
| |
June, 30
2020 |
| |
December 31,
2019 |
| |||||||||
LIABILITIES | | | | | | | | | | | | | | | | | | | |
CURRENT LIABILITIES | | | | | | | | | | | | | | | | | | | |
Trade payables
|
| | | | | | | | | | 28,217 | | | | | | 29,978 | | |
Loans and financing
|
| | | | 11 | | | | | | 2,007 | | | | | | — | | |
Lease liabilities
|
| | | | 9 | | | | | | 20,310 | | | | | | 17,265 | | |
Labor and social obligations
|
| | | | 12 | | | | | | 36,331 | | | | | | 16,784 | | |
Income taxes payable
|
| | | | 7 | | | | | | 5,238 | | | | | | — | | |
Taxes payable
|
| | | | | | | | | | 2,970 | | | | | | 1,657 | | |
Prepayments from customers
|
| | | | | | | | | | 4,746 | | | | | | 3,186 | | |
Accounts payable from acquisition of subsidiaries
|
| | | | 13 | | | | | | 131,801 | | | | | | 128,888 | | |
Other current liabilities
|
| | | | | | | | | | 831 | | | | | | 349 | | |
| | | | | | | | | | | 232,451 | | | | | | 198,107 | | |
Liabilities directly associated with assets classified as held for sale
|
| | | | 8 | | | | | | 24,534 | | | | | | 23,284 | | |
TOTAL CURRENT LIABILITIES
|
| | | | | | | | | | 256,985 | | | | | | 221,391 | | |
NON-CURRENT | | | | | | | | | | | | | | | | | | | |
Loans and financing
|
| | | | 11 | | | | | | 150,000 | | | | | | — | | |
Lease liabilities
|
| | | | 9 | | | | | | 104,848 | | | | | | 85,923 | | |
Share-based compensation
|
| | | | 4 | | | | | | 34,384 | | | | | | 34,950 | | |
Accounts payable from acquisition of subsidiaries
|
| | | | 13 | | | | | | 255,964 | | | | | | 250,652 | | |
Provisions for contingencies
|
| | | | | | | | | | 17,823 | | | | | | 18,403 | | |
Deferred tax liabilities
|
| | | | 7 | | | | | | — | | | | | | 24,958 | | |
Other non-current liabilities
|
| | | | | | | | | | 933 | | | | | | 1,067 | | |
TOTAL NON-CURRENT LIABILITIES
|
| | | | | | | | | | 563,952 | | | | | | 415,953 | | |
TOTAL LIABILITIES
|
| | | | | | | | | | 820,937 | | | | | | 637,344 | | |
EQUITY
|
| | | | 14 | | | | | | | | | | | | | | |
Share capital
|
| | | | | | | | | | 548,380 | | | | | | 548,380 | | |
Capital reserves
|
| | | | | | | | | | (1,248) | | | | | | (1,248) | | |
Revenue reserves
|
| | | | | | | | | | 429 | | | | | | 429 | | |
Accumulated losses
|
| | | | | | | | | | (43,843) | | | | | | (96,228) | | |
TOTAL EQUITY
|
| | | | | | | | | | 503,718 | | | | | | 451,333 | | |
TOTAL LIABILITIES AND EQUITY
|
| | | | | | | | | | 1,324,655 | | | | | | 1,088,677 | | |
| | |
Note
|
| |
2020
|
| |
2019
|
| |||||||||
NET REVENUE
|
| | | | 17 | | | | |
|
256,650
|
| | | |
|
234,460
|
| |
Cost of services rendered
|
| | | | 18 | | | | | | (106,036) | | | | | | (105,152) | | |
GROSS PROFIT
|
| | | | | | | | | | 150,614 | | | | | | 129,308 | | |
General and administrative expenses
|
| | | | 18 | | | | | | (24,355) | | | | | | (61,251) | | |
Selling expenses
|
| | | | 18 | | | | | | (50,047) | | | | | | (47,758) | | |
Net impairment losses on financial assets
|
| | | | 6 | | | | | | (34,896) | | | | | | (25,273) | | |
Other income (expenses), net
|
| | | | 19 | | | | | | 1,673 | | | | | | (444) | | |
Operating expenses
|
| | | | | | | | | | (107,625) | | | | | | (134,726) | | |
OPERATING PROFIT (LOSS)
|
| | | | | | | | | | 42,989 | | | | | | (5,418) | | |
Financial income
|
| | | | 20 | | | | | | 9,535 | | | | | | 9,428 | | |
Financial expenses
|
| | | | 20 | | | | | | (20,779) | | | | | | (29,909) | | |
Financial results
|
| | | | | | | | | | (11,244) | | | | | | (20,481) | | |
PROFIT (LOSS) BEFORE TAXES
|
| | | | | | | | | | 31,745 | | | | | | (25,899) | | |
Current income taxes
|
| | | | 7 | | | | | | (19,618) | | | | | | (8,592) | | |
Deferred income taxes
|
| | | | 7 | | | | | | 40,258 | | | | | | 9,397 | | |
Income taxes
|
| | | | | | | | | | 20,640 | | | | | | 805 | | |
NET INCOME (LOSS) FOR THE PERIOD
|
| | | | | | | | | | 52,385 | | | | | | (25,094) | | |
Other comprehensive income
|
| | | | | | | | |
|
—
|
| | | | | — | | |
TOTAL COMPREHENSIVE INCOME (LOSS)
|
| | | | | | | | | | 52,385 | | | | | | (25,094) | | |
Basic earnings (loss) per share (R$)
|
| | | | 15 | | | | |
|
0.10
|
| | | |
|
(0.05)
|
| |
Diluted earnings (loss) per share (R$)
|
| | |
|
15
|
| | | | | 0.10 | | | | | | (0.05) | | |
| | | | | | | | |
Capital reserves
|
| | | | | | | | | | | | | | | | | | | |||||||||
| | |
Share
capital |
| |
Treasury
Shares |
| |
Share-based
compensation |
| |
Revenue
reserves |
| |
Accumulated
losses |
| |
Total
|
| ||||||||||||||||||
DECEMBER 31, 2018
|
| | | | 546,509 | | | | | | — | | | | | | 2,523 | | | | | | 429 | | | | | | (30,068) | | | | | | 519,393 | | |
Loss for the period
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (25,094) | | | | |
|
(25,094)
|
| |
Employee share program
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Value of employee services
|
| | | | — | | | | | | — | | | | | | 2,671 | | | | | | — | | | | | | — | | | | |
|
2,671
|
| |
JUNE 30, 2019
|
| | | | 546,509 | | | | | | — | | | | | | 5,194 | | | | | | 429 | | | | | | (55,162) | | | | | | 496,970 | | |
DECEMBER 31, 2019
|
| | | | 548,380 | | | | | | (2,238) | | | | | | 990 | | | | | | 429 | | | | | | (96,228) | | | | | | 451,333 | | |
Net income for the period
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 52,385 | | | | |
|
52,385
|
| |
JUNE 30, 2020
|
| | | | 548,380 | | | | | | (2,238) | | | | | | 990 | | | | | | 429 | | | | | | (43,843) | | | | | | 503,718 | | |
| | |
Note
|
| |
2020
|
| |
2019
|
| ||||||
Cash flows from operating activities | | | | | | | | | | | | | | | | |
Income (loss) before taxes
|
| | | | | | | 31,745 | | | | | | (25,899) | | |
Adjustments to reconcile income before taxes to cash provided on operating activities
|
| | | | | | | | | | | | | | | |
Depreciation and amortization
|
| |
9 / 10
|
| | | | 24,269 | | | | | | 30,448 | | |
Impairment of non-current assets
|
| | | | | | | — | | | | | | 31,431 | | |
Net impairment losses on financial assets
|
| |
6
|
| | | | 34,896 | | | | | | 25,273 | | |
Provision for revenue cancellation
|
| |
6
|
| | | | 3,581 | | | | | | 5,353 | | |
Provision for contingencies
|
| | | | | | | 1,675 | | | | | | 2,172 | | |
Accrued interests
|
| | | | | | | 8,670 | | | | | | 19,574 | | |
Share-based compensation
|
| | | | | | | (566) | | | | | | 3,112 | | |
Lease contracts modification and rent concession
|
| |
9
|
| | | | (1,525) | | | | | | — | | |
Changes in operating assets and liabilities:
|
| | | | | | | | | | | | | | | |
Trade receivables
|
| | | | | | | (54,388) | | | | | | (60,327) | | |
Prepayments
|
| | | | | | | (4,504) | | | | | | 987 | | |
Other assets
|
| | | | | | | 726 | | | | | | (2,449) | | |
Trade payables
|
| | | | | | | (1,887) | | | | | | 5,564 | | |
Labor and social obligations
|
| | | | | | | 21,069 | | | | | | 14,824 | | |
Other taxes payable
|
| | | | | | | 1,346 | | | | | | 49 | | |
Prepayments from customers
|
| | | | | | | 1,789 | | | | | | (156) | | |
Other payables
|
| | | | | | | 348 | | | | | | 86 | | |
Cash from operations
|
| | | | | | | 67,244 | | | | | | 50,042 | | |
Income tax paid
|
| | | | | | | (9,669) | | | | | | (6,766) | | |
Interest paid
|
| |
9
|
| | | | (7,566) | | | | | | (6,065) | | |
Contingencies paid
|
| | | | | | | (386) | | | | | | (706) | | |
Net cash provided by operating activities
|
| | | | | | | 49,623 | | | | | | 36,505 | | |
Cash flows from investing activities | | | | | | | | | | | | | | | | |
Purchase of property and equipment
|
| |
10
|
| | | | (19,541) | | | | | | (16,388) | | |
Purchase and capitalization of intangible assets
|
| |
10
|
| | | | (16,522) | | | | | | (5,908) | | |
Acquisition of short-term investments, net
|
| | | | | | | (5,813) | | | | | | (12,799) | | |
Net cash used in investing activities
|
| | | | | | | (41,876) | | | | | | (35,095) | | |
Cash flows from financing activities | | | | | | | | | | | | | | | | |
Payments of lease liabilities
|
| |
9
|
| | | | (3,046) | | | | | | (2,862) | | |
Proceeds from loans and financing
|
| |
11
|
| | | | 150,000 | | | | | | — | | |
Net cash provided by (used in) financing activities
|
| | | | | | | 146,954 | | | | | | (2,862) | | |
Net increase (decrease) in cash and cash equivalents
|
| | | | | | | 154,701 | | | | | | (1,452) | | |
Cash and cash equivalents at the beginning of the period
|
| | | | | | | 2,457 | | | | | | 2,375 | | |
Cash and cash equivalents at the end of the period
|
| | | | | | | 157,158 | | | | | | 923 | | |
| | | | | | | | 154,701 | | | | | | (1,452) | | |
Six months period ended June 30,
|
| |
Distance
learning undergraduate courses |
| |
Continuing
education courses |
| |
On-campus
undergraduate courses |
| |
Total
allocated |
| ||||||||||||
2020 | | | | | | | | | | | | | | | | | | | | | | | | | |
Net revenue
|
| | | | 203,727 | | | | | | 21,280 | | | | | | 31,643 | | | | | | 256,650 | | |
Adjusted EBITDA
|
| | | | 70,669 | | | | | | 16,133 | | | | | | 9,951 | | | | | | 96,753 | | |
% Adjusted EBITDA margin
|
| | | | 34.69% | | | | | | 75.81% | | | | | | 31.45% | | | | | | 37.70% | | |
2019 | | | | | | | | | | | | | | | | | | | | | | | | | |
Net revenue
|
| | | | 170,825 | | | | | | 22,956 | | | | | | 40,679 | | | | | | 234,460 | | |
Adjusted EBITDA
|
| | | | 59,596 | | | | | | 16,961 | | | | | | 12,957 | | | | | | 89,514 | | |
% Adjusted EBITDA margin
|
| | | | 34.89% | | | | | | 73.88% | | | | | | 31.85% | | | | | | 38.18% | | |
| | |
Six months period ended June 30,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Income before taxes
|
| | | | 31,745 | | | | | | (25,899) | | |
(+) Financial result
|
| | | | 11,244 | | | | | | 20,481 | | |
(+) Depreciation and amortization
|
| | | | 24,269 | | | | | | 30,448 | | |
(+) Interest on tuition fees paid in arrears
|
| | | | 7,238 | | | | | | 3,920 | | |
(+) Impairment of non-current assets
|
| | | | — | | | | | | 31,431 | | |
(+) Share-based compensation plan
|
| | | | (566) | | | | | | 3,112 | | |
(+) Other income (expenses), net
|
| | | | (1,673) | | | | | | 444 | | |
(+) Restructuring expenses
|
| | | | 2,894 | | | | | | 2,141 | | |
(+) Other operational expenses unallocated
|
| | | | 21,602 | | | | | | 23,436 | | |
Adjusted EBITDA allocated to segments
|
| | | | 96,753 | | | | | | 89,514 | | |
Six months period ended June 30,
|
| |
Distance
learning undergraduate courses |
| |
Continuing
education courses |
| |
On-campus
undergraduate courses |
| |
Unallocated
|
| |
Total
|
| |||||||||||||||
2020 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net impairment losses on financial assets
|
| | | | 29,461 | | | | | | 1,615 | | | | | | 3,819 | | | | | | — | | | | | | 34,895 | | |
Depreciation and amortization
|
| | | | 15,944 | | | | | | 983 | | | | | | 4,644 | | | | | | 2,698 | | | | | | 24,269 | | |
Interest on tuition fees paid in arrears
|
| | | | 5,410 | | | | | | 236 | | | | | | 1,592 | | | | | | — | | | | | | 7,238 | | |
2019 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net impairment losses on financial assets
|
| | | | 20,535 | | | | | | 1,335 | | | | | | 3,403 | | | | | | — | | | | | | 25,273 | | |
Depreciation and amortization
|
| | | | 18,437 | | | | | | 1,812 | | | | | | 7,490 | | | | | | 2,764 | | | | | | 30,503 | | |
Impairment of non-current assets
|
| | | | — | | | | | | — | | | | | | 31,431 | | | | | | — | | | | | | 31,431 | | |
Interest on tuition fees paid in arrears
|
| | | | 3,350 | | | | | | 9 | | | | | | 562 | | | | | | — | | | | | | 3,921 | | |
| | |
Share-based
compensation |
| |||
Opening balance at December 31, 2019
|
| | | | 34,950 | | |
Gain recognized – general and administrative
|
| | | | (566) | | |
Balance at June 30, 2020
|
| | | | 34,384 | | |
Unobservable inputs
|
| |
Weighted
average inputs |
| |
Relationship with of unobservable inputs to fair value
|
| |||
Net operating revenue growth rate(i)
|
| | | | 19.3% | | | |
Increased growth rate (+200 basis points (bps)) and lower discount rate (-100 bps) would increase FV by R$553; lower growth rate (-200 bps) and higher discount rate (+100 bps) would decrease FV by R$548.
|
|
Pre-tax discount rate(ii)
|
| | | | 13.7% | | | |
Increasing/decreasing the growth rate and the discount rate by +/- 50bps and 100 bps respectively would change the FV by +R$153 / -R$305.
|
|
| | |
June 30,
2020 |
| |
December 31,
2019 |
| ||||||
Short-term deposits
|
| | | | 157,158 | | | | | | 2,457 | | |
| | | | | 157,158 | | | | | | 2,457 | | |
| | |
June 30,
2020 |
| |
December 31,
2019 |
| ||||||
Tuition fees
|
| | | | 190,363 | | | | | | 161,049 | | |
FIES and UNIEDU Guaranteed Credits
|
| | | | 10,180 | | | | | | 7,196 | | |
PEP – Special Installment Payment(i)
|
| | | | 7,569 | | | | | | 8,542 | | |
Provision for revenue cancellation
|
| | | | (7,079) | | | | | | (5,212) | | |
Allowance for expected credit losses of trade receivables
|
| | | | (87,433) | | | | | | (79,659) | | |
Total trade receivables
|
| | | | 113,600 | | | | | | 91,916 | | |
Current
|
| | | | 110,274 | | | | | | 88,130 | | |
Non-current
|
| | | | 3,326 | | | | | | 3,786 | | |
| | |
June 30,
2020 |
| |
December 31,
2019 |
| ||||||
Receivables falling due
|
| | | | 48,380 | | | | | | 72,647 | | |
Receivables past due | | | | | | | | | | | | | |
From 1 to 30 days
|
| | | | 26,849 | | | | | | 22,322 | | |
From 31 to 60 days
|
| | | | 20,615 | | | | | | 15,135 | | |
From 61 to 90 days
|
| | | | 32,036 | | | | | | 13,473 | | |
From 91 to 180 days
|
| | | | 30,556 | | | | | | 27,968 | | |
From 181 to 365 days
|
| | | | 49,676 | | | | | | 25,242 | | |
Provision for revenue cancellation
|
| | | | (7,079) | | | | | | (5,212) | | |
Allowance for estimated credit losses
|
| | | | (87,433) | | | | | | (79,659) | | |
| | | | | 113,600 | | | | | | 91,916 | | |
| | |
June 30,
2020 |
| |
June 30,
2019 |
| ||||||
At the beginning of the year
|
| | | | (5,212) | | | | | | (5,655) | | |
Additions
|
| | | | (3,581) | | | | | | (5,353) | | |
Write-off
|
| | | | 1,714 | | | | | | 6,773 | | |
At the end of the period
|
| | | | (7,079) | | | | | | (4,235) | | |
|
| | |
June 30,
2020 |
| |
June 30,
2019 |
| ||||||
At the beginning of the year
|
| | | | (79,659) | | | | | | (66,199) | | |
Write-off of uncollectible receivables
|
| | | | 27,083 | | | | | | 16,371 | | |
Reversal
|
| | | | 12,818 | | | | | | 1,866 | | |
Allowance for expected credit losses
|
| | | | (47,675) | | | | | | (27,139) | | |
At the end of the period
|
| | | | (87,433) | | | | | | (75,101) | | |
| | |
Six months period ended June 30,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Profit (loss) before taxes
|
| | | | 31,745 | | | | | | (25,899) | | |
Statutory combined income tax rate – %
|
| | | | 34% | | | | | | 34% | | |
Income tax at statutory rates
|
| | | | (10,793) | | | | | | 8,806 | | |
Income exempt from taxation – ProUni benefit(i)
|
| | | | 12,671 | | | | | | 10,175 | | |
Previously unrecognized tax losses used to reduce deferred tax(ii)
|
| | | | 10,632 | | | | | | — | | |
Previously unrecognized temporary differences(ii)
|
| | | | 11,816 | | | | | | — | | |
Unrecognized deferred tax asset on tax losses and temporary differences(ii)
|
| | | | — | | | | | | (3,265) | | |
Impairment of goodwill
|
| | | | — | | | | | | (10,687) | | |
Interest on accounts payable from acquisition of subsidiaries
|
| | | | (3,021) | | | | | | (3,921) | | |
Other non-deductible expenses
|
| | | | (352) | | | | | | (228) | | |
Other
|
| | | | (313) | | | | | | (75) | | |
Total income tax and social contribution
|
| | | | 20,640 | | | | | | 805 | | |
Effective tax rate – %
|
| | | | -65% | | | | | | 3% | | |
Current income tax expense
|
| | | | (19,618) | | | | | | (8,592) | | |
Deferred income tax income
|
| | | | 40,258 | | | | | | 9,397 | | |
| | |
Balance sheet
|
| |
Profit or loss
|
| ||||||||||||||||||
| | |
June 30,
2020 |
| |
December 31,
2019 |
| |
June 30,
2020 |
| |
June 30,
2019 |
| ||||||||||||
Tax loss carryforwards
|
| | | | 7,505 | | | | | | — | | | | | | 7,505 | | | | |
|
—
|
| |
Intangible assets on business combinations
|
| | | | (22,354) | | | | | | (24,958) | | | | | | 2,604 | | | | | | 6,334 | | |
Allowance for expected credit losses
|
| | | | 44,723 | | | | | | 27,362 | | | | | | 17,361 | | | | | | 6,881 | | |
Share-based compensation
|
| | | | 11,691 | | | | | | — | | | | | | 11,691 | | | | | | — | | |
Lease contracts
|
| | | | 6,460 | | | | | | 8,902 | | | | | | (2,442) | | | | | | (648) | | |
Provision for revenue cancellation
|
| | | | 2,401 | | | | | | 1,772 | | | | | | 629 | | | | | | 1,712 | | |
Provision for contingencies
|
| | | | 1,699 | | | | | | 1,225 | | | | | | 474 | | | | | | (308) | | |
Other provisions
|
| | | | 3,180 | | | | | | 744 | | | | | | 2,436 | | | | | | (4,574) | | |
Total | | | | | 55,305 | | | | | | 15,047 | | | | | | 40,258 | | | | | | 9,397 | | |
Deferred tax assets
|
| | | | 55,305 | | | | | | 37,146 | | | | | | | | | | | | | | |
Deferred tax liabilities
|
| | | | — | | | | | | (24,958) | | | | | | | | | | | | | | |
| | |
June 30,
2020 |
| |
December 31,
2019 |
| ||||||
Assets classified as held for sale | | | | | | | | | | | | | |
Trade receivables
|
| | | | 6,453 | | | | | | 7,935 | | |
Income taxes recoverable
|
| | | | 349 | | | | | | 207 | | |
Prepaid expenses
|
| | | | 56 | | | | | | 172 | | |
Other taxes recoverable
|
| | | | 91 | | | | | | 195 | | |
Other assets
|
| | | | 214 | | | | | | 122 | | |
Right-of-use assets
|
| | | | 16,090 | | | | | | 16,090 | | |
Property and equipment
|
| | | | 11,822 | | | | | | 11,704 | | |
Intangible assets
|
| | | | 8 | | | | | | 8 | | |
Total of assets disposal group held for sale
|
| | | | 35,083 | | | | | | 36,433 | | |
Liabilities directly associated with assets classified as held for sale | | | | | | | | | | | | | |
Trade payables
|
| | | | 853 | | | | | | 979 | | |
Lease liabilities
|
| | | | 18,802 | | | | | | 19,210 | | |
Taxes payable
|
| | | | 214 | | | | | | 181 | | |
Labor and social obligations
|
| | | | 4,217 | | | | | | 2,695 | | |
Prepayments from customers
|
| | | | 341 | | | | | | 112 | | |
Provisions for contingencies
|
| | | | 107 | | | | | | 107 | | |
Total liabilities of disposal group held for sale
|
| | | | 24,534 | | | | | | 23,284 | | |
| | |
Right-of-use
assets |
| |
Lease
Liabilities |
| ||||||
As of December 31, 2019
|
| | | | 88,534 | | | | | | 103,188 | | |
New contracts
|
| | | | 32,308 | | | | | | 32,308 | | |
Re-measurement by index(i)
|
| | | | 3,109 | | | | | | 3,109 | | |
Lease modification(ii)
|
| | | | (9,284) | | | | | | (10,148) | | |
Depreciation expense
|
| | | | (5,695) | | | | | | — | | |
Accrued interest
|
| | | | — | | | | | | 7,566 | | |
Payment of principal
|
| | | | — | | | | | | (2,638) | | |
Rent concession(iii)
|
| | | | — | | | | | | (661) | | |
Payment of interest
|
| | | | — | | | | | | (7,566) | | |
As of June 30, 2020
|
| | | | 108,972 | | | | | | 125,158 | | |
Current
|
| | | | — | | | | | | 20,310 | | |
Non-current
|
| | | | 108,972 | | | | | | 104,848 | | |
| | | | | | | | | | | | | | | | | | | | |
June 30, 2020
|
| |||||||||||||||
| | |
Carrying
amount at December 31, 2019 |
| |
Purchase
and capitalization |
| |
Depreciation
and amortization |
| |
Carrying
amount |
| |
Cost
|
| |
Accumulated
depreciation, amortization and impairment |
| ||||||||||||||||||
Leasehold improvements
|
| | | | 34,389 | | | | | | 13,225 | | | | | | (857) | | | | |
|
46,757
|
| | | | | 57,332 | | | | | | (10,575) | | |
Furniture, equipment and facilities
|
| | | | 20,173 | | | | | | 4,842 | | | | | | (1,413) | | | | |
|
23,602
|
| | | | | 42,363 | | | | | | (18,761) | | |
Other property and equipment
|
| | | | 15,471 | | | | | | 1,356 | | | | | | (2,099) | | | | |
|
14,728
|
| | | | | 39,747 | | | | | | (25,019) | | |
Property and equipment
|
| | | | 70,033 | | | | | | 19,423 | | | | | | (4,369) | | | | | | 85,087 | | | | | | 139,442 | | | | | | (54,355) | | |
Software
|
| | | | 20,044 | | | | | | 12,429 | | | | | | (4,628) | | | | |
|
27,845
|
| | | | | 58,552 | | | | | | (30,707) | | |
Internal project development
|
| | | | 19,667 | | | | | | 4,093 | | | | | | (3,017) | | | | |
|
20,743
|
| | | | | 26,333 | | | | | | (5,590) | | |
Goodwill
|
| | | | 304,815 | | | | | | — | | | | | | — | | | | |
|
304,815
|
| | | | | 372,268 | | | | | | (67,453) | | |
Operation licenses for distance learning
|
| | | | 245,721 | | | | | | — | | | | | | — | | | | |
|
245,721
|
| | | | | 245,721 | | | | | | — | | |
Trademarks
|
| | | | 61,102 | | | | | | — | | | | | | (1,779) | | | | |
|
59,323
|
| | | | | 85,163 | | | | | | (25,840) | | |
Customer relationship
|
| | | | 3,251 | | | | | | — | | | | | | (3,251) | | | | |
|
—
|
| | | | | 100,695 | | | | | | (100,695) | | |
Other intangible assets
|
| | | | 3,570 | | | | | | — | | | | | | (1,530) | | | | |
|
2,040
|
| | | | | 18,170 | | | | | | (16,130) | | |
Intangible assets
|
| | | | 658,170 | | | | | | 16,522 | | | | | | (14,205) | | | | | | 660,487 | | | | | | 906,902 | | | | | | (246,415) | | |
Type
|
| |
Interest rate
|
| |
Maturity
|
| |
June 30,
2020 |
| |
December 31,
2019 |
| |||||||||
Standby Letter of Credit
|
| |
CDI + 3.6% p.a.
|
| | | | 2021 | | | | | | 152,007 | | | | | | — | | |
Current
|
| | | | | | | | | | | | | 2,007 | | | | | | — | | |
Non-current
|
| | | | | | | | | | | | | 150,000 | | | | | | — | | |
| | |
Loans and
financing |
| |||
As of December 31, 2019
|
| | | | — | | |
Proceeds from loans and financing(i)
|
| | | | 150,000 | | |
Accrued interest
|
| | | | 2,007 | | |
As of June 30, 2020
|
| | | | 152,007 | | |
| | |
June 30, 2020
|
| |
December 31,
2019 |
| ||||||
Salaries payable
|
| | | | 8,924 | | | | | | 4,235 | | |
Social charges payable(i)
|
| | | | 14,342 | | | | | | 5,906 | | |
Accrued vacation
|
| | | | 13,065 | | | | | | 1,972 | | |
Accrual for bonus
|
| | | | — | | | | | | 4,668 | | |
Other
|
| | | | — | | | | | | 3 | | |
Total | | | | | 36,331 | | | | | | 16,784 | | |
| | |
June 30, 2020
|
| |||||||||
| | |
Number of
shares |
| |
%
|
| ||||||
Fundo Brasil de Internacionalização de empresas Fundos de Investimento em
Participações II |
| | | | 64,546,881 | | | | | | 12.36 | | |
Miquerinos Fundo de Investimento em Participações
|
| | | | 129,093,761 | | | | | | 24.72 | | |
Vinci Capital Partners II Fundo de Investimento em Participações
|
| | | | 193,640,642 | | | | | | 37.07 | | |
NB Pitman Brazil Fundo de Investimentos e Participações Multiestratégia
|
| | | | 135,033,912 | | | | | | 25.85 | | |
| | | | | 522,315,196 | | | | | | 100.00 | | |
Treasury shares
|
| | | | 1,834,105 | | | | | | | | |
Total | | | | | 524,149,301 | | | | | | | | |
| | |
Six months period ended in June 30,
|
| |||||||||
Basic earnings (loss) per share
|
| |
2020
|
| |
2019
|
| ||||||
Net income (loss) attributable to the shareholders of the Company
|
| | | | 52,385 | | | | | | (25,094) | | |
Weighted average number of outstanding common shares (thousands)
|
| | | | 522,315 | | | | | | 522,315 | | |
Basic earnings (loss) per common share (R$)
|
| | | | 0.10 | | | | | | (0.05) | | |
| | |
Six months period ended
in June 30, |
| |||||||||
Diluted earnings (loss) per share
|
| |
2020
|
| |
2019
|
| ||||||
Net income (loss) attributable to the shareholders of the Company
|
| | | | 52,385 | | | | | | (25,094) | | |
Weighted average number of outstanding common shares (thousands)
|
| | | | 545,042 | | | | | | 522,315 | | |
Diluted earnings (loss) per common share (R$)
|
| | | | 0.10 | | | | | | (0.05) | | |
| | |
Balance sheet
|
| |
Profit or loss
|
| ||||||||||||||||||
| | | | | | | | | | | | | | |
Six months period
ended June 30, |
| |||||||||
| | |
June 30,
2020 |
| |
December 31,
2019 |
| |
2020
|
| |
2019
|
| ||||||||||||
FI Vinci Renda Fixa Credito Privado | | | | | | | | | | | | | | | | | | | | | | | | | |
Short-term investments
|
| | | | 39,033 | | | | | | 37,607 | | | | | | | | | | | | | | |
Financial income
|
| | | | | | | | | | | | | | | | 635 | | | | | | 1,104 | | |
Austral Seguradora S/A | | | | | | | | | | | | | | | | | | | | | | | | | |
Prepaid expenses
|
| | | | 607 | | | | | | 8 | | | | | | | | | | | | | | |
General and administrative expenses
|
| | | | | | | | | | | | | | | | (151) | | | | | | (1) | | |
Kloch Advocacia | | | | | | | | | | | | | | | | | | | | | | | | | |
General and administrative expenses
|
| | | | | | | | | | | | | | | | (108) | | | | | | (106) | | |
| | |
Six months period ended June 30,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Gross revenue
|
| | | | 328,556 | | | | | | 297,015 | | |
(-) Cancellation
|
| | | | (3,581) | | | | | | (5,353) | | |
(-) Discounts
|
| | | | (11,184) | | | | | | (9,160) | | |
(-) ProUni scholarships(i)
|
| | | | (48,515) | | | | | | (40,547) | | |
(-) Taxes and contributions on revenue
|
| | | | (8,626) | | | | | | (7,495) | | |
Net revenue
|
| | | | 256,650 | | | | | | 234,460 | | |
Timing of revenue recognition | | | | | | | | | | | | | |
Transferred over time
|
| | | | 256,398 | | | | | | 233,051 | | |
Transferred at a point in time(ii)
|
| | | | 252 | | | | | | 1,409 | | |
Net revenue
|
| | | | 256,650 | | | | | | 234,460 | | |
| | |
Six months period ended June 30,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Payroll(i) | | | | | 91,386 | | | | | | 94,343 | | |
Sales and marketing
|
| | | | 39,134 | | | | | | 28,730 | | |
Depreciation and amortization(ii)
|
| | | | 24,058 | | | | | | 30,503 | | |
Material
|
| | | | 6,515 | | | | | | 10,054 | | |
Impairment losses(iii)
|
| | | | — | | | | | | 31,431 | | |
Consulting and advisory services
|
| | | | 5,724 | | | | | | 5,413 | | |
Maintenance
|
| | | | 4,175 | | | | | | 2,958 | | |
Utilities, cleaning and security
|
| | | | 2,850 | | | | | | 3,546 | | |
Contingencies
|
| | | | 2,070 | | | | | | 2,210 | | |
Leases
|
| | | | 1,802 | | | | | | 2,006 | | |
Taxes
|
| | | | 1,013 | | | | | | 763 | | |
Other expenses
|
| | | | 1,711 | | | | | | 2,204 | | |
Total | | | | | 180,438 | | | | | | 214,161 | | |
Costs of services
|
| | | | 106,036 | | | | | | 105,152 | | |
General and administrative expenses
|
| | | | 24,355 | | | | | | 61,251 | | |
Selling expenses
|
| | | | 50,047 | | | | | | 47,758 | | |
Total | | | | | 180,438 | | | | | | 214,161 | | |
| | |
Six months period
ended June 30, |
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Deductible donations
|
| | | | (150) | | | | | | (150) | | |
Contractual indemnities
|
| | | | — | | | | | | (373) | | |
Lease contracts modification and rent concession
|
| | | | 1,525 | | | | | | — | | |
Other revenues
|
| | | | 320 | | | | | | 187 | | |
Other expenses
|
| | | | (22) | | | | | | (108) | | |
Total | | | | | 1,673 | | | | | | (444) | | |
| | |
Six months period
ended June 30, |
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Financial income | | | | | | | | | | | | | |
Interest on tuition fees paid in arrears
|
| | | | 7,238 | | | | | | 3,921 | | |
Financial investment yield
|
| | | | 1,836 | | | | | | 5,449 | | |
Other
|
| | | | 461 | | | | | | 58 | | |
Total | | | | | 9,535 | | | | | | 9,428 | | |
Financial expenses | | | | | | | | | | | | | |
Interest on accounts payable from acquisition of subsidiaries(i)
|
| | | | (8,225) | | | | | | (22,878) | | |
Interest on lease
|
| | | | (7,566) | | | | | | (6,066) | | |
Interest on loans and financing
|
| | | | (2,007) | | | | | | — | | |
Other
|
| | | | (2,981) | | | | | | (965) | | |
Total | | | | | (20,779) | | | | | | (29,909) | | |
Financial results
|
| | | | (11,244) | | | | | | (20,481) | | |
| | |
Note
|
| |
December, 31
2019 |
| |
December, 31
2018 |
| |
January, 1
2018 |
| |||||||||
| | | | | | | | | | | |
(Restated
Note 2.6) |
| |
(Restated
Note 2.6) |
| ||||||
ASSETS | | | | | | | | | | | | | | | | | | | | | | |
CURRENT ASSETS | | | | | | | | | | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | | | | | 2,457 | | | | | | 2,375 | | | | | | 2,311 | | |
Short-term investments
|
| |
8
|
| | | | 72,321 | | | | | | 164,822 | | | | | | 145,592 | | |
Trade receivables
|
| |
9
|
| | | | 88,130 | | | | | | 71,318 | | | | | | 61,927 | | |
Income taxes recoverable
|
| |
10
|
| | | | 4,711 | | | | | | 5,474 | | | | | | 1,445 | | |
Prepaid expenses
|
| |
11
|
| | | | 8,938 | | | | | | 7,171 | | | | | | 5,947 | | |
Other current assets
|
| | | | | | | 1,858 | | | | | | 1,234 | | | | | | 1,528 | | |
| | | | | | | | 178,415 | | | | | | 252,394 | | | | | | 218,750 | | |
Assets classified as held for sale
|
| |
12
|
| | | | 36,433 | | | | | | — | | | | | | — | | |
TOTAL CURRENT ASSETS
|
| | | | | | | 214,848 | | | | | | 252,394 | | | | | | 218,750 | | |
NON-CURRENT ASSETS | | | | | | | | | | | | | | | | | | | | | | |
Trade receivables
|
| |
9
|
| | | | 3,786 | | | | | | 5,432 | | | | | | 2,909 | | |
Indemnification assets
|
| |
18
|
| | | | 14,801 | | | | | | 16,480 | | | | | | 19,628 | | |
Deferred tax assets
|
| |
10
|
| | | | 37,146 | | | | | | 29,924 | | | | | | 26,678 | | |
Other non-current assets
|
| | | | | | | 1,359 | | | | | | 1,230 | | | | | | 896 | | |
Right-of-use assets
|
| |
13
|
| | | | 88,534 | | | | | | 74,822 | | | | | | 51,534 | | |
Property and equipment
|
| |
14
|
| | | | 70,033 | | | | | | 63,428 | | | | | | 50,330 | | |
Intangible assets
|
| |
15
|
| | | | 658,170 | | | | | | 735,260 | | | | | | 796,944 | | |
TOTAL NON-CURRENT ASSETS
|
| | | | | | | 873,829 | | | | | | 926,576 | | | | | | 948,919 | | |
TOTAL ASSETS
|
| | | | | | | 1,088,677 | | | | | | 1,178,970 | | | | | | 1,167,669 | | |
| | |
Note
|
| |
December, 31
2019 |
| |
December, 31
2018 |
| |
January, 1
2018 |
| |||||||||
| | | | | | | | | | | |
(Restated
Note 2.6) |
| |
(Restated
Note 2.6) |
| ||||||
LIABILITIES | | | | | | | | | | | | | | | | | | | | | | |
CURRENT LIABILITIES | | | | | | | | | | | | | | | | | | | | | | |
Trade payables
|
| | | | | | | 29,978 | | | | | | 17,051 | | | | | | 16,125 | | |
Lease liabilities
|
| |
13
|
| | | | 17,265 | | | | | | 15,397 | | | | | | 10,875 | | |
Labor and social obligations
|
| |
16
|
| | | | 16,784 | | | | | | 16,052 | | | | | | 15,251 | | |
Taxes payable
|
| | | | | | | 1,657 | | | | | | 1,720 | | | | | | 819 | | |
Prepayments from customers
|
| | | | | | | 3,186 | | | | | | 1,194 | | | | | | 3,134 | | |
Accounts payable from acquisition of subsidiaries
|
| |
17
|
| | | | 128,888 | | | | | | 123,310 | | | | | | 118,390 | | |
Other current liabilities
|
| | | | | | | 349 | | | | | | 308 | | | | | | — | | |
| | | | | | | | 198,107 | | | | | | 175,032 | | | | | | 164,594 | | |
Liabilities directly associated with assets classified as held for sale
|
| |
12
|
| | | | 23,284 | | | | | | — | | | | | | — | | |
TOTAL CURRENT LIABILITIES
|
| | | | | | | 221,391 | | | | | | 175,032 | | | | | | 164,594 | | |
NON-CURRENT | | | | | | | | | | | | | | | | | | | | | | |
Lease liabilities
|
| |
13
|
| | | | 85,923 | | | | | | 73,342 | | | | | | 50,764 | | |
Share-based compensation
|
| |
21
|
| | | | 34,950 | | | | | | 7,045 | | | | | | 191 | | |
Accounts payable from acquisition of subsidiaries
|
| |
17
|
| | | | 250,652 | | | | | | 335,225 | | | | | | 416,524 | | |
Provisions for contingencies
|
| |
18
|
| | | | 18,403 | | | | | | 18,034 | | | | | | 22,997 | | |
Deferred tax liabilities
|
| |
10
|
| | | | 24,958 | | | | | | 43,441 | | | | | | 56,108 | | |
Other non-current liabilities
|
| | | | | | | 1,067 | | | | | | 7,458 | | | | | | 4,925 | | |
TOTAL NON-CURRENT LIABILITIES
|
| | | | | | | 415,953 | | | | | | 484,545 | | | | | | 551,509 | | |
TOTAL LIABILITIES
|
| | | | | | | 637,344 | | | | | | 659,577 | | | | | | 716,103 | | |
EQUITY
|
| |
19
|
| | | | | | | | | | | | | | | | | | |
Share capital
|
| | | | | | | 548,380 | | | | | | 546,509 | | | | | | 434,000 | | |
Capital reserves
|
| | | | | | | (1,248) | | | | | | 2,523 | | | | | | 1,927 | | |
Revenue reserves
|
| | | | | | | 429 | | | | | | 429 | | | | | | — | | |
Retained earnings (Accumulated losses)
|
| | | | | | | (96,228) | | | | | | (30,068) | | | | | | 15,639 | | |
TOTAL EQUITY
|
| | | | | | | 451,333 | | | | | | 519,393 | | | | | | 451,566 | | |
TOTAL LIABILITIES AND EQUITY
|
| | | | | | | 1,088,677 | | | | | | 1,178,970 | | | | | | 1,167,669 | | |
| | |
Note
|
| |
2019
|
| |
2018
|
| ||||||
| | | | | | | | | | | |
(Restated
Note 2.6) |
| |||
NET REVENUE
|
| |
23
|
| | |
|
461,067
|
| | | |
|
383,449
|
| |
Cost of services rendered
|
| |
24
|
| | | | (211,547) | | | | | | (184,161) | | |
GROSS PROFIT
|
| | | | | | | 249,520 | | | | | | 199,288 | | |
General and administrative expenses
|
| |
24
|
| | | | (125,344) | | | | | | (90,667) | | |
Selling expenses
|
| |
24
|
| | | | (100,949) | | | | | | (70,646) | | |
Net impairment losses on financial assets
|
| |
9
|
| | | | (58,178) | | | | | | (44,578) | | |
Other income (expenses), net
|
| |
25
|
| | | | (905) | | | | | | (1,041) | | |
Operating expenses
|
| | | | | | | (285,376) | | | | | | (206,932) | | |
OPERATING PROFIT (LOSS)
|
| | | | | | | (35,856) | | | | | | (7,644) | | |
Financial income
|
| |
26
|
| | | | 19,194 | | | | | | 22,026 | | |
Financial expenses
|
| |
26
|
| | | | (60,390) | | | | | | (64,597) | | |
Financial results
|
| | | | | | | (41,196) | | | | | | (42,571) | | |
LOSS BEFORE TAXES
|
| | | | | | | (77,052) | | | | | | (50,215) | | |
Current income taxes
|
| |
10
|
| | | | (14,813) | | | | | | (10,640) | | |
Deferred income taxes
|
| |
10
|
| | | | 25,705 | | | | | | 15,651 | | |
Income taxes
|
| | | | | | | 10,892 | | | | | | 5,011 | | |
LOSS FOR THE YEAR
|
| | | | | | | (66,160) | | | | | | (45,204) | | |
Other comprehensive income
|
| | | | | |
|
—
|
| | | | | — | | |
TOTAL COMPREHENSIVE LOSS
|
| | | | | | | (66,160) | | | | | | (45,204) | | |
Basic and diluted loss per share (R$)
|
| |
20
|
| | | | (0.13) | | | | | | (0.09) | | |
| | | | | | | | |
Capital reserves
|
| | | | | | | |
Retained
earnings |
| | | | | | | ||||||||||||
| | |
Share
capital |
| |
Treasury
Shares |
| |
Share-based
compensation |
| |
Revenue
reserves |
| |
(Accumulated
losses) |
| |
Total
|
| ||||||||||||||||||
DECEMBER 31, 2017
|
| | | | 434,000 | | | | | | — | | | | | | 1,927 | | | | | | — | | | | | | 22,308 | | | | | | 458,235 | | |
Change in accounting policy (Note 2.6)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (6,669) | | | | |
|
(6,669)
|
| |
JANUARY 1,2018
|
| | | | 434,000 | | | | | | — | | | | | | 1,927 | | | | | | — | | | | | | 15,639 | | | | | | 451,566 | | |
Loss for the year
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (45,204) | | | | |
|
(45,204)
|
| |
Capital increase (Note 19.b)
|
| | | | 111,054 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | |
|
111,054
|
| |
Transfer to legal reserve
(Note 19.d) |
| | | | — | | | | | | — | | | | | | — | | | | | | 429 | | | | | | (429) | | | | |
|
—
|
| |
Dividends (Note 19.c)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (74) | | | | |
|
(74)
|
| |
Employee share program (Note 21) Value of employee services
|
| | | | — | | | | | | — | | | | | | 2,821 | | | | | | — | | | | | | — | | | | |
|
2,821
|
| |
Issue of shares to employees
|
| | | | 1,455 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | |
|
1,455
|
| |
Reclassification to cash-settled
|
| | | | — | | | | | | — | | | | | | (2,225) | | | | | | — | | | | | | — | | | | |
|
(2,225)
|
| |
DECEMBER 31, 2018
|
| | | | 546,509 | | | | | | — | | | | | | 2,523 | | | | | | 429 | | | | | | (30,068) | | | | | | 519,393 | | |
Loss for the year
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (66,160) | | | | |
|
(66,160)
|
| |
Employee share program (Note 21)
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Value of employee services
|
| | | | — | | | | | | — | | | | | | 5,372 | | | | | | — | | | | | | — | | | | |
|
5,372
|
| |
Issue of shares to employees
|
| | | | 1,871 | | | | | | — | | | | | | (1,844) | | | | | | — | | | | | | — | | | | |
|
27
|
| |
Share repurchase
|
| | | | — | | | | | | (2,238) | | | | | | 2,238 | | | | | | — | | | | | | — | | | | |
|
—
|
| |
Reclassification to cash-settled
|
| | | | — | | | | | | — | | | | | | (7,299) | | | | | | — | | | | | | — | | | | |
|
(7,299)
|
| |
DECEMBER 31, 2019
|
| | | | 548,380 | | | | | | (2,238) | | | | | | 990 | | | | | | 429 | | | | | | (96,228) | | | | | | 451,333 | | |
| | |
Note
|
| |
2019
|
| |
2018
|
| ||||||
Cash flows from operating activities | | | | | | | | | | | | | | | | |
Income before taxes
|
| | | | | | | (77,052) | | | | | | (50,215) | | |
Adjustments to reconcile income before taxes to cash provided on operating activities
|
| | | | | | | | | | | | | | | |
Depreciation and amortization
|
| |
13 / 14 / 15
|
| | | | 62,445 | | | | | | 56,284 | | |
Impairment of non-current assets
|
| |
15
|
| | | | 51,022 | | | | | | 33,537 | | |
Net impairment losses on financial assets
|
| |
9
|
| | | | 58,178 | | | | | | 44,578 | | |
Provision for revenue cancellation
|
| |
9
|
| | | | 20,890 | | | | | | 16,283 | | |
Provision for contingencies
|
| |
18
|
| | | | 3,781 | | | | | | 3,384 | | |
Accrued interests, net of financial investment yield
|
| |
26
|
| | | | 45,018 | | | | | | 49,577 | | |
Share-based compensation
|
| |
21
|
| | | | 26,372 | | | | | | 7,450 | | |
Loss on sale or disposal of non-current assets
|
| |
14
|
| | | | 2 | | | | | | 1,330 | | |
Changes in operating assets and liabilities:
|
| | | | | | | | | | | | | | | |
Trade receivables
|
| | | | | | | (101,302) | | | | | | (70,880) | | |
Prepayments
|
| | | | | | | (1,939) | | | | | | (1,224) | | |
Other assets
|
| | | | | | | (875) | | | | | | (40) | | |
Trade payables
|
| | | | | | | 13,906 | | | | | | 926 | | |
Labor and social obligations
|
| | | | | | | 3,427 | | | | | | 801 | | |
Other taxes payable
|
| | | | | | | (1,636) | | | | | | (4,586) | | |
Prepayments from customers
|
| | | | | | | 2,104 | | | | | | (1,940) | | |
Other payables
|
| | | | | | | (6,350) | | | | | | 2,767 | | |
Cash from operations
|
| | | | | | | 97,991 | | | | | | 88,032 | | |
Income tax paid
|
| | | | | | | (12,697) | | | | | | (9,444) | | |
Interest paid
|
| |
13 / 17
|
| | | | (27,543) | | | | | | (23,201) | | |
Contingencies paid
|
| |
18
|
| | | | (1,702) | | | | | | (5,237) | | |
Net cash provided by operating activities
|
| | | | | | | 56,049 | | | | | | 50,150 | | |
Cash flows from investing activities | | | | | | | | | | | | | | | | |
Purchase of property and equipment
|
| |
14
|
| | | | (28,470) | | | | | | (23,191) | | |
Purchase and capitalization of intangible assets
|
| |
15
|
| | | | (16,266) | | | | | | (11,769) | | |
Payments for the acquisition of interests in subsidiaries
|
| |
17
|
| | | | (107,988) | | | | | | (117,247) | | |
Proceeds from (acquisition of) short-term investments, net
|
| | | | | | | 103,227 | | | | | | (6,595) | | |
Net cash used in investing activities
|
| | | | | | | (49,497) | | | | | | (158,802) | | |
Cash flows from financing activities | | | | | | | | | | | | | | | | |
Payments of lease liabilities
|
| |
13
|
| | | | (6,103) | | | | | | (3,793) | | |
Capital contributions
|
| |
19
|
| | | | 1,871 | | | | | | 112,509 | | |
Share repurchase
|
| |
19
|
| | | | (2,238) | | | | | | — | | |
Net cash (used in) provided by financing activities
|
| | | | | | | (6,470) | | | | | | 108,716 | | |
Net increase in cash and cash equivalents
|
| | | | | | | 82 | | | | | | 64 | | |
Cash and cash equivalents at the beginning of the year
|
| | | | | | | 2,375 | | | | | | 2,311 | | |
Cash and cash equivalents at the end of the year
|
| | | | | | | 2,457 | | | | | | 2,375 | | |
| | | | | | | | 82 | | | | | | 64 | | |
| | | | | | | | |
Investment
type |
| |
Direct and indirect
interest |
| ||||||||||||
Name
|
| |
Main activities
|
| |
Location
|
| |
2019
|
| |
2018
|
| ||||||||||||
UNIASSELVI –
Sociedade Educacional Leonardo da Vinci S/S Ltda |
| |
Distance learning, on-campus undergraduate and continuing education courses
|
| |
Indaial – SC
|
| | | | Subsidiary | | | | | | 100% | | | | | | 100% | | |
FAMEG – Sociedade Educacional do Vale do Itapocu S/S
Ltda. |
| |
On-campus undergraduate and continuing education courses
|
| |
Guaramirim – SC
|
| | | | Subsidiary | | | | | | 100% | | | | | | 100% | | |
FAIR Educacional Ltda. | | |
On-campus undergraduate and continuing education courses
|
| |
Rondonópolis – MT
|
| | | | Subsidiary | | | | | | 100% | | | | | | 100% | | |
FAC Educacional
Ltda. |
| |
On-campus undergraduate and continuing education courses
|
| |
Cuiabá – MS
|
| | | | Subsidiary | | | | | | 100% | | | | | | 100% | | |
| | |
Annual average rate
|
|
Buildings
|
| |
4%
|
|
IT equipment
|
| |
20%
|
|
Furniture, fittings and facilities
|
| |
10%
|
|
Leasehold improvements
|
| |
4% - 10%
|
|
Library
|
| |
10%
|
|
Statement of financial position (extract)
|
| |
12.31.2019
(IAS 17) |
| |
IFRS 16
|
| |
12.31.2019
as presented |
| |
12.31.2018
as originally presented |
| |
IFRS 16
|
| |
12.31.2018
restated |
| ||||||||||||||||||
Assets classified as held for sale
|
| | | | 20,343 | | | | | | 16,090 | | | | | | 36,433 | | | | | | — | | | | | | — | | | | | | — | | |
Total Current Assets
|
| | | | 198,758 | | | | | | 16,090 | | | | | | 214,848 | | | | | | 252,394 | | | | | | — | | | | | | 252,394 | | |
Right-of-use assets
|
| | | | — | | | | | | 88,534 | | | | | | 88,534 | | | | | | — | | | | | | 74,822 | | | | | | 74,822 | | |
Deferred tax assets
|
| | | | 36,690 | | | | | | 456 | | | | | | 37,146 | | | | | | 25,192 | | | | | | 4,732 | | | | | | 29,924 | | |
Non-current assets
|
| | | | 784,839 | | | | | | 88,990 | | | | | | 873,829 | | | | | | 847,022 | | | | | | 79,554 | | | | | | 926,576 | | |
Total assets
|
| | | | 983,597 | | | | | | 105,080 | | | | | | 1,088,677 | | | | | | 1,099,416 | | | | | | 79,554 | | | | | | 1,178,970 | | |
Lease liabilities
|
| | | | — | | | | | | 17,265 | | | | | | 17,265 | | | | | | — | | | | | | 15,397 | | | | | | 15,397 | | |
Liabilities directly associated with assets classified as held for sale
|
| | | | 4,074 | | | | | | 19,210 | | | | | | 23,284 | | | | | | — | | | | | | — | | | | | | — | | |
Current liabilities
|
| | | | 184,916 | | | | | | 36,475 | | | | | | 221,391 | | | | | | 159,635 | | | | | | 15,397 | | | | | | 175,032 | | |
Lease liabilities
|
| | | | — | | | | | | 85,923 | | | | | | 85,923 | | | | | | — | | | | | | 73,342 | | | | | | 73,342 | | |
Non-current liabilities
|
| | | | 330,030 | | | | | | 85,923 | | | | | | 415,953 | | | | | | 411,203 | | | | | | 73,342 | | | | | | 484,545 | | |
Total liabilities
|
| | | | 514,946 | | | | | | 122,398 | | | | | | 637,344 | | | | | | 570,838 | | | | | | 88,739 | | | | | | 659,577 | | |
Accumulated losses
|
| | | | (78,910) | | | | | | (17,318) | | | | | | (96,228) | | | | | | (20,883) | | | | | | (9,185) | | | | | | (30,068) | | |
Total equity
|
| | | | 468,651 | | | | | | (17,318) | | | | | | 451,333 | | | | | | 528,578 | | | | | | (9,185) | | | | | | 519,393 | | |
Total liabilities and equity
|
| | | | 983,597 | | | | | | 105,080 | | | | | | 1,088,677 | | | | | | 1,099,416 | | | | | | 79,554 | | | | | | 1,178,970 | | |
|
Statement of financial position (extract)
|
| |
01.01.2018
as originally presented |
| |
IFRS 16
|
| |
01.01.2018
restated |
| |||||||||
Right-of-use assets
|
| | | | — | | | | | | 51,534 | | | | | | 51,534 | | |
Deferred tax assets
|
| | | | 23,242 | | | | | | 3,436 | | | | | | 26,678 | | |
Non-current assets
|
| | | | 893,949 | | | | | | 54,970 | | | | | | 948,919 | | |
Total assets
|
| | | | 1,112,699 | | | | | | 54,970 | | | | | | 1,167,669 | | |
Lease liabilities
|
| | | | — | | | | | | 10,875 | | | | | | 10,875 | | |
Current liabilities
|
| | | | 153,719 | | | | | | 10,875 | | | | | | 164,594 | | |
Lease liabilities
|
| | | | — | | | | | | 50,764 | | | | | | 50,764 | | |
Non-current liabilities
|
| | | | 500,745 | | | | | | 50,764 | | | | | | 551,509 | | |
Total liabilities
|
| | | | 654,464 | | | | | | 61,639 | | | | | | 716,103 | | |
Accumulated losses
|
| | | | 22,308 | | | | | | (6,669) | | | | | | 15,639 | | |
Total equity
|
| | | | 458,235 | | | | | | (6,669) | | | | | | 451,566 | | |
Total liabilities and equity
|
| | | | 1,112,699 | | | | | | 54,970 | | | | | | 1,167,669 | | |
Statement of profit and loss
(extract) |
| |
2019
(IAS 17) |
| |
IFRS 16
|
| |
2019
as presented |
| |
2018
as originally presented |
| |
IFRS 16
|
| |
2018
restated |
| ||||||||||||||||||
Cost of services rendered
|
| | | | (219,887) | | | | | | 8,340 | | | | | | (211,547) | | | | | | (191,127) | | | | | | 6,966 | | | | | | (184,161) | | |
Gross profit
|
| | | | 241,180 | | | | | | 8,340 | | | | | | 249,520 | | | | | | 192,322 | | | | | | 6,966 | | | | | | 199,288 | | |
General and administrative expenses
|
| | | | (125,541) | | | | | | 197 | | | | | | (125,344) | | | | | | (90,667) | | | | | | — | | | | | | (90,667) | | |
Operating expenses
|
| | | | (285,573) | | | | | | 197 | | | | | | (285,376) | | | | | | (206,932) | | | | | | — | | | | | | (206,932) | | |
Operating profit
|
| | | | (44,393) | | | | | | 8,537 | | | | | | (35,856) | | | | | | (14,610) | | | | | | 6,966 | | | | | | (7,644) | | |
Financial expenses
|
| | | | (47,996) | | | | | | (12,394) | | | | | | (60,390) | | | | | | (53,819) | | | | | | (10,778) | | | | | | (64,597) | | |
Financial results
|
| | | | (28,802) | | | | | | (12,394) | | | | | | (41,196) | | | | | | (31,793) | | | | | | (10,778) | | | | | | (42,571) | | |
Loss before taxes
|
| | | | (73,195) | | | | | | (3,857) | | | | | | (77,052) | | | | | | (46,403) | | | | | | (3,812) | | | | | | (50,215) | | |
Deferred income taxes
|
| | | | 24,394 | | | | | | 1,311 | | | | | | 25,705 | | | | | | 14,355 | | | | | | 1,296 | | | | | | 15,651 | | |
Income taxes
|
| | | | 9,581 | | | | | | 1,311 | | | | | | 10,892 | | | | | | 3,715 | | | | | | 1,296 | | | | | | 5,011 | | |
Loss for the year
|
| | | | (63,614) | | | | | | (2,546) | | | | | | (66,160) | | | | | | (42,688) | | | | | | (2,516) | | | | | | (45,204) | | |
Other comprehensive income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Total comprehensive loss
|
| | | | (63,614) | | | | | | (2,546) | | | | | | (66,160) | | | | | | (42,688) | | | | | | (2,516) | | | | | | (45,204) | | |
| | |
2019
(IAS 17) |
| |
IFRS 16
|
| |
2019
as presented |
| |
2018
as originally presented |
| |
IFRS 16
|
| |
2018
restated |
| ||||||||||||||||||
Basic and diluted loss per share (R$)
|
| | | | (0.13) | | | | | | — | | | | | | (0.13) | | | | | | (0.09) | | | | | | — | | | | | | (0.09) | | |
Statement of cash flows
(extract) |
| |
2019
(IAS 17) |
| |
IFRS 16
|
| |
2019
as presented |
| |
2018
as originally presented |
| |
IFRS 16
|
| |
2018
restated |
| ||||||||||||||||||
Income before taxes
|
| | | | (73,195) | | | | | | (3,857) | | | | | | (77,052) | | | | | | (46,403) | | | | | | (3,812) | | | | | | (50,215) | | |
Depreciation and amortization
|
| | | | 52,485 | | | | | | 9,960 | | | | | | 62,445 | | | | | | 48,679 | | | | | | 7,605 | | | | | | 56,284 | | |
Accrued interest
|
| | | | 32,625 | | | | | | 12,393 | | | | | | 45,018 | | | | | | 38,799 | | | | | | 10,778 | | | | | | 49,577 | | |
Cash from operations
|
| | | | 79,495 | | | | | | 18,496 | | | | | | 97,991 | | | | | | 73,461 | | | | | | 14,571 | | | | | | 88,032 | | |
Interest paid
|
| | | | (15,150) | | | | | | (12,393) | | | | | | (27,543) | | | | | | (12,423) | | | | | | (10,778) | | | | | | (23,201) | | |
Net cash provided by operating activities
|
| | | | 49,946 | | | | | | 6,103 | | | | | | 56,049 | | | | | | 46,357 | | | | | | 3,793 | | | | | | 50,150 | | |
Payments of lease liabilities
|
| | | | — | | | | | | (6,103) | | | | | | (6,103) | | | | | | — | | | | | | (3,793) | | | | | | (3,793) | | |
Net cash provided by (used in) financing activities
|
| | | | (367) | | | | | | (6,103) | | | | | | (6,470) | | | | | | 112,509 | | | | | | (3,793) | | | | | | 108,716 | | |
Net (decrease) increase in cash and cash equivalents
|
| | | | 82 | | | | | | — | | | | | | 82 | | | | | | 64 | | | | | | — | | | | | | 64 | | |
|
| | |
Distance
learning undergraduate courses |
| |
Continuing
education courses |
| |
On-campus
undergraduate courses |
| |
Total allocated
|
| ||||||||||||
2019 | | | | | | | | | | | | | | | | | | | | | | | | | |
Net revenue
|
| | | | 336,317 | | | | | | 47,103 | | | | | | 77,647 | | | | | | 461,067 | | |
Adjusted EBITDA
|
| | | | 112,919 | | | | | | 33,335 | | | | | | 20,871 | | | | | | 167,125 | | |
% Adjusted EBITDA margin
|
| | | | 33.58% | | | | | | 70.77% | | | | | | 26.88% | | | | | | 36.25% | | |
2018 | | | | | | | | | | | | | | | | | | | | | | | | | |
Net revenue
|
| | | | 259,591 | | | | | | 33,044 | | | | | | 90,814 | | | | | | 383,449 | | |
Adjusted EBITDA
|
| | | | 93,427 | | | | | | 21,175 | | | | | | 28,374 | | | | | | 142,976 | | |
% Adjusted EBITDA margin
|
| | | | 35.99% | | | | | | 64.08% | | | | | | 31.24% | | | | | | 37.29% | | |
| | |
2019
|
| |
2018
|
| ||||||
Loss before taxes
|
| | | | (77,052) | | | | | | (50,215) | | |
(+) Financial result
|
| | | | 41,196 | | | | | | 42,571 | | |
(+) Depreciation and amortization
|
| | | | 62,445 | | | | | | 56,284 | | |
(+) Interest on tuition fees paid in arrears
|
| | | | 8,265 | | | | | | 8,887 | | |
(+) Impairment of non-current assets
|
| | | | 51,022 | | | | | | 33,537 | | |
(+) Share-based compensation plan
|
| | | | 26,372 | | | | | | 7,450 | | |
(+) Other income (expenses), net
|
| | | | 905 | | | | | | 1,041 | | |
(+) M&A expenses and pre-offering costs
|
| | | | — | | | | | | 6,000 | | |
(+) Restructuring expenses
|
| | | | 4,484 | | | | | | 2,231 | | |
(+) Other operational expenses unallocated
|
| | | | 49,488 | | | | | | 35,190 | | |
Adjusted EBITDA allocated to segments
|
| | | | 167,125 | | | | | | 142,976 | | |
| | |
Distance
learning undergraduate courses |
| |
Continuing
education courses |
| |
On-campus
undergraduate courses |
| |
Unallocated
|
| |
Total
|
| |||||||||||||||
2019 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net impairment losses on financial
assets |
| | | | 43,701 | | | | | | 3,958 | | | | | | 10,519 | | | | | | — | | | | | | 58,178 | | |
Depreciation and amortization
|
| | | | 38,402 | | | | | | 4,085 | | | | | | 14,259 | | | | | | 5,699 | | | | | | 62,445 | | |
Impairment of non-current assets
|
| | | | — | | | | | | — | | | | | | 51,022 | | | | | | — | | | | | | 51,022 | | |
2018 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net impairment losses on financial
assets |
| | | | 31,934 | | | | | | 3,672 | | | | | | 8,972 | | | | | | — | | | | | | 44,578 | | |
Depreciation and amortization
|
| | | | 31,981 | | | | | | 3,927 | | | | | | 15,969 | | | | | | 4,407 | | | | | | 56,284 | | |
Impairment of non-current assets
|
| | | | — | | | | | | — | | | | | | 33,537 | | | | | | — | | | | | | 33,537 | | |
| | |
2019
|
| |
2018
|
| ||||||
At amortized cost | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | | 2,457 | | | | | | 2,375 | | |
Short-term investments
|
| | | | 72,321 | | | | | | 164,822 | | |
Trade receivables
|
| | | | 91,916 | | | | | | 76,750 | | |
Total | | | | | 166,694 | | | | | | 243,947 | | |
Current
|
| | | | 162,908 | | | | | | 238,515 | | |
Non-current
|
| | | | 3,786 | | | | | | 5,432 | | |
| | |
2019
|
| |
2018
|
| ||||||
At amortized cost | | | | | | | | | | | | | |
Trade payables
|
| | | | 29,978 | | | | | | 17,051 | | |
Lease liabilities
|
| | | | 103,188 | | | | | | 88,739 | | |
Prepayments from customers
|
| | | | 3,186 | | | | | | 1,194 | | |
Accounts payable from acquisition of subsidiaries
|
| | | | 379,540 | | | | | | 458,535 | | |
At FVPL | | | | | | | | | | | | | |
Share-based compensation
|
| | | | 34,950 | | | | | | 7,045 | | |
Total | | | | | 550,842 | | | | | | 572,564 | | |
Current
|
| | | | 179,317 | | | | | | 156,952 | | |
Non-current
|
| | | | 371,525 | | | | | | 415,612 | | |
| | | | | | | | | | | | | | | | | | | | |
Increase / decrease in
interest rate |
| |||||||||
| | |
Balance as
of 12/31/2019 |
| |
Index – % per year
|
| |
Probable
scenario |
| |
Risk
|
| |
Possible
scenario 25% |
| |
Remote
scenario 75% |
| ||||||||||||
Short-term investments
|
| | | | 72,321 | | | |
99,10% CDI – 5,81%
|
| | | | 4,202 | | | |
Decrease
|
| | | | 3,151 | | | | | | 1,050 | | |
Accounts payable from
acquisition of subsidiaries |
| | | | 379,540 | | | |
IPCA – 4,31%
|
| | | | 16,358 | | | |
Increase
|
| | | | 20,448 | | | | | | 28,627 | | |
As of December 31, 2019
|
| |
Less than
1 year |
| |
1 to 3 years
|
| |
3 to 5 years
|
| |
More than
5 years |
| |
Total
|
| |||||||||||||||
Trade payables
|
| | | | 29,978 | | | | | | — | | | | | | — | | | | | | — | | | | | | 29,978 | | |
Lease liabilities
|
| | | | 21,999 | | | | | | 39,218 | | | | | | 38,430 | | | | | | 93,373 | | | | | | 193,020 | | |
Other leases(i)
|
| | | | 2,804 | | | | | | 1,402 | | | | | | 1,038 | | | | | | 402 | | | | | | 5,646 | | |
Prepayments from customers
|
| | | | 3,186 | | | | | | — | | | | | | — | | | | | | — | | | | | | 3,186 | | |
Accounts payable from acquisition of
subsidiaries |
| | | | 135,233 | | | | | | 281,022 | | | | | | — | | | | | | — | | | | | | 416,255 | | |
Share-based compensation
|
| | | | — | | | | | | — | | | | | | — | | | | | | 78,455 | | | | | | 78,455 | | |
Total | | | | | 193,200 | | | | | | 321,642 | | | | | | 39,468 | | | | | | 172,230 | | | | | | 726,540 | | |
|
As of December 31, 2018
|
| |
Less than
1 year |
| |
1 to 3 years
|
| |
3 to 5 years
|
| |
More than
5 years |
| |
Total
|
| |||||||||||||||
Trade payables
|
| | | | 17,051 | | | | | | — | | | | | | — | | | | | | — | | | | | | 17,051 | | |
Lease liabilities
|
| | | | 16,453 | | | | | | 31,726 | | | | | | 30,988 | | | | | | 84,716 | | | | | | 163,883 | | |
Other leases(i)
|
| | | | 3,796 | | | | | | 1,402 | | | | | | 1,304 | | | | | | 837 | | | | | | 7,339 | | |
Prepayments from customers
|
| | | | 1,194 | | | | | | — | | | | | | — | | | | | | — | | | | | | 1,194 | | |
Accounts payable from acquisition of
subsidiaries |
| | | | 129,653 | | | | | | 259,304 | | | | | | 129,653 | | | | | | — | | | | | | 518,610 | | |
Share-based compensation
|
| | | | — | | | | | | — | | | | | | — | | | | | | 34,644 | | | | | | 34,644 | | |
Total | | | | | 168,147 | | | | | | 292,432 | | | | | | 161,945 | | | | | | 120,197 | | | | | | 742,721 | | |
| | |
Share-based
compensation |
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Opening balance at January 1
|
| | | | 7,045 | | | | | | 191 | | |
Issue of shares to employees
|
| | | | 1,844 | | | | | | — | | |
Settlement in cash
|
| | | | (2,238) | | | | | | — | | |
Reclassification from equity
|
| | | | 7,299 | | | | | | 2,225 | | |
Expenses recognized – general and administrative
|
| | | | 21,000 | | | | | | 4,629 | | |
| | | | | 34,950 | | | | | | 7,045 | | |
| | |
2019
|
| |
2018
|
| ||||||
Investment funds
|
| | | | 72,321 | | | | | | 164,822 | | |
| | | | | 72,321 | | | | | | 164,822 | | |
| | |
2019
|
| |
2018
|
| ||||||
Tuition fees
|
| | | | 161,049 | | | | | | 131,654 | | |
FIES and UNIEDU Guaranteed Credits
|
| | | | 7,196 | | | | | | 4,091 | | |
PEP – Special Installment Payment(i)
|
| | | | 8,542 | | | | | | 12,859 | | |
Provision for revenue cancellation
|
| | | | (5,212) | | | | | | (5,655) | | |
Allowance for expected credit losses of trade receivables
|
| | | | (79,659) | | | | | | (66,199) | | |
Total trade receivables
|
| | | | 91,916 | | | | | | 76,750 | | |
Current
|
| | | | 88,130 | | | | | | 71,318 | | |
Non-current
|
| | | | 3,786 | | | | | | 5,432 | | |
| | |
2019
|
| |
2018
|
| ||||||
Receivables falling due
|
| | | | 72,647 | | | | | | 68,261 | | |
Receivables past due | | | | | | | | | | | | | |
From 1 to 30 days
|
| | | | 22,322 | | | | | | 22,262 | | |
From 31 to 60 days
|
| | | | 15,135 | | | | | | 6,031 | | |
From 61 to 90 days
|
| | | | 13,473 | | | | | | 10,847 | | |
From 91 to 365 days
|
| | | | 53,210 | | | | | | 41,203 | | |
Provision for revenue cancellation
|
| | | | (5,212) | | | | | | (5,655) | | |
Allowance for estimated credit losses
|
| | | | (79,659) | | | | | | (66,199) | | |
| | | | | 91,916 | | | | | | 76,750 | | |
|
| | |
2019
|
| |
2018
|
| ||||||
At the beginning of the year
|
| | | | (5,655) | | | | | | (5,421) | | |
Additions
|
| | | | (20,890) | | | | | | (16,283) | | |
Write-off
|
| | | | 21,333 | | | | | | 16,049 | | |
At the end of the year
|
| | | | (5,212) | | | | | | (5,655) | | |
| | |
2019
|
| |
2018
|
| ||||||
At the beginning of the year
|
| | | | (66,199) | | | | | | (55,649) | | |
Write-off of uncollectible receivables
|
| | | | 39,385 | | | | | | 34,028 | | |
Reversal
|
| | | | 20,739 | | | | | | 22,469 | | |
Reclassified as held for sale
|
| | | | 5,333 | | | | | | — | | |
Allowance for expected credit losses
|
| | | | (78,917) | | | | | | (67,047) | | |
At the end of the year | | | | | (79,659) | | | | | | (66,199) | | |
|
| | |
2019
|
| |
2018
|
| ||||||
Loss before taxes
|
| | | | (77,052) | | | | | | (50,215) | | |
Statutory combined income tax rate – %
|
| | | | 34% | | | | | | 34% | | |
Income tax at statutory rates
|
| | | | 26,198 | | | | | | 17,073 | | |
Income exempt from taxation – ProUni benefit(i)
|
| | | | 19,106 | | | | | | 14,844 | | |
Unrecognized deferred tax asset on tax losses(ii)
|
| | | | (32,505) | | | | | | (26,873) | | |
Non-deductible expenses
|
| | | | (1,902) | | | | | | — | | |
Other
|
| | | | (5) | | | | | | (33) | | |
Total income tax and social contribution
|
| | | | 10,892 | | | | | | 5,011 | | |
Effective tax rate – %
|
| | | | 14% | | | | | | 10% | | |
Current income tax expense
|
| | | | (14,813) | | | | | | (10,640) | | |
Deferred income tax income
|
| | | | 25,705 | | | | | | 15,651 | | |
| | |
Balance Sheet
|
| |
Profit or loss
|
| ||||||||||||||||||
| | |
2019
|
| |
2018
|
| |
2019
|
| |
2018
|
| ||||||||||||
Intangible assets on business combinations
|
| | | | (24,958) | | | | | | (43,441) | | | | | | 18,483 | | | | | | 12,667 | | |
Allowance for expected credit losses
|
| | | | 27,362 | | | | | | 22,449 | | | | | | 5,138 | | | | | | 3,587 | | |
Changes in accounting policies and disclosures
|
| | | | 6,043 | | | | | | 4,732 | | | | | | 1,311 | | | | | | 1,296 | | |
Provision for revenue cancellation
|
| | | | 1,772 | | | | | | 1,923 | | | | | | (151) | | | | | | 79 | | |
Provision for contingencies
|
| | | | 1,225 | | | | | | 528 | | | | | | 697 | | | | | | (617) | | |
Other provisions
|
| | | | 744 | | | | | | 292 | | | | | | 452 | | | | | | (1,361) | | |
Total | | | | | 12,188 | | | | | | (13,517) | | | | | | 25,930 | | | | | | 15,651 | | |
Deferred tax assets
|
| | | | 37,146 | | | | | | 29,924 | | | | | | | | | | | | | | |
Deferred tax liabilities
|
| | | | (24,958) | | | | | | (43,441) | | | | | | | | | | | | | | |
| | |
2019
|
| |
2018
|
| ||||||
Prepayments to employees
|
| | | | 2,513 | | | | | | 2,555 | | |
Prepayments to suppliers
|
| | | | 4,219 | | | | | | 3,927 | | |
Prepayments to hub partners
|
| | | | 905 | | | | | | 28 | | |
Software licensing
|
| | | | 502 | | | | | | 589 | | |
Insurance
|
| | | | 239 | | | | | | 72 | | |
Others
|
| | | | 560 | | | | | | — | | |
Prepaid expenses
|
| | | | 8,938 | | | | | | 7,171 | | |
| Assets classified as held for sale | | | | | | | |
|
Trade receivables
|
| | | | 7,935 | | |
|
Income taxes recoverable
|
| | | | 207 | | |
|
Prepaid expenses
|
| | | | 172 | | |
|
Other taxes recoverable
|
| | | | 195 | | |
|
Other assets
|
| | | | 122 | | |
|
Right-of-use assets
|
| | | | 16,090 | | |
|
Property and equipment
|
| | | | 11,704 | | |
|
Intangible assets
|
| | | | 8 | | |
|
Total of assets disposal group held for sale
|
| | | | 36,433 | | |
| Liabilities directly associated with assets classified as held for sale | | | | | | | |
|
Trade payables
|
| | | | 979 | | |
|
Lease liabilities
|
| | | | 19,210 | | |
|
Taxes payable
|
| | | | 181 | | |
|
Labor and social obligations
|
| | | | 2,695 | | |
|
Prepayments from customers
|
| | | | 112 | | |
|
Provisions for contingencies
|
| | | | 107 | | |
|
Total liabilities of disposal group held for sale
|
| | | | 23,284 | | |
|
| | |
Right-of-use assets
|
| |
Lease Liabilities
|
| ||||||||||||||||||
| | |
2019
|
| |
2018
|
| |
2019
|
| |
2018
|
| ||||||||||||
As of January 1,
|
| | | | 74,822 | | | | | | 51,534 | | | | | | 88,739 | | | | | | 61,639 | | |
New contracts
|
| | | | 36,021 | | | | | | 29,335 | | | | | | 36,021 | | | | | | 29,335 | | |
Re-measurement by index(i)
|
| | | | 3,741 | | | | | | 1,558 | | | | | | 3,741 | | | | | | 1,558 | | |
Depreciation expense
|
| | | | (9,960) | | | | | | (7,605) | | | | | | — | | | | | | — | | |
Accrued interest
|
| | | | — | | | | | | — | | | | | | 12,393 | | | | | | 10,778 | | |
Payment of principal
|
| | | | — | | | | | | — | | | | | | (6,103) | | | | | | (3,793) | | |
Payment of interest
|
| | | | — | | | | | | — | | | | | | (12,393) | | | | | | (10,778) | | |
Classified as held for sale
|
| | | | (16,090) | | | | | | | | | | | | (19,210) | | | | | | | | |
As of December 31,
|
| | | | 88,534 | | | | | | 74,822 | | | | | | 103,188 | | | | | | 88,739 | | |
Current
|
| | | | — | | | | | | — | | | | | | 17,265 | | | | | | 15,397 | | |
Non-current
|
| | | | 88,534 | | | | | | 74,822 | | | | | | 85,923 | | | | | | 73,342 | | |
| | |
IT
equipment |
| |
Furniture,
equipment and facilities |
| |
Library
books |
| |
Leasehold
improvements |
| |
Construction
in progress(i) |
| |
TOTAL
|
| ||||||||||||||||||
At December 31, 2017 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cost
|
| | | | 13,125 | | | | | | 29,896 | | | | | | 20,949 | | | | | | 28,376 | | | | | | 2,668 | | | | | | 95,014 | | |
Accumulated depreciation
|
| | | | (8,424) | | | | | | (17,580) | | | | | | (11,170) | | | | | | (7,510) | | | | | | — | | | | | | (44,684) | | |
Net book value
|
| | | | 4,701 | | | | | | 12,316 | | | | | | 9,779 | | | | | | 20,866 | | | | | | 2,668 | | | | | | 50,330 | | |
Purchases
|
| | | | 3,915 | | | | | | 8,750 | | | | | | 10 | | | | | | 2,216 | | | | | | 8,300 | | | | | | 23,191 | | |
Transfers
|
| | | | — | | | | | | 90 | | | | | | — | | | | | | 1,269 | | | | | | (1,359) | | | | | | — | | |
Disposals
|
| | | | (112) | | | | | | (1,217) | | | | | | — | | | | | | (1) | | | | | | — | | | | | | (1,330) | | |
Depreciation
|
| | | | (2,141) | | | | | | (2,790) | | | | | | (1,933) | | | | | | (1,899) | | | | | | — | | | | | | (8,763) | | |
At December 31, 2018 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net book value
|
| | | | 6,363 | | | | | | 17,149 | | | | | | 7,856 | | | | | | 22,451 | | | | | | 9,609 | | | | | | 63,428 | | |
Cost
|
| | | | 15,357 | | | | | | 35,772 | | | | | | 20,959 | | | | | | 31,860 | | | | | | 9,609 | | | | | | 113,557 | | |
Accumulated depreciation
|
| | | | (8,994) | | | | | | (18,623) | | | | | | (13,103) | | | | | | (9,409) | | | | | | — | | | | | | (50,129) | | |
Purchases
|
| | | | 5,261 | | | | | | 9,520 | | | | | | 36 | | | | | | 4,636 | | | | | | 9,017 | | | | | | 28,470 | | |
Transfers
|
| | | | — | | | | | | — | | | | | | — | | | | | | 17,132 | | | | | | (17,132) | | | | | | — | | |
Disposals
|
| | | | — | | | | | | (2) | | | | | | — | | | | | | — | | | | | | — | | | | | | (2) | | |
Transfer to held for sale
|
| | | | (84) | | | | | | (3,249) | | | | | | (1,192) | | | | | | (7,111) | | | | | | (68) | | | | | | (11,704) | | |
Depreciation
|
| | | | (2,565) | | | | | | (3,245) | | | | | | (1,630) | | | | | | (2,719) | | | | | | — | | | | | | (10,159) | | |
At December 31, 2019 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net book value
|
| | | | 8,975 | | | | | | 20,173 | | | | | | 5,070 | | | | | | 34,389 | | | | | | 1,426 | | | | | | 70,033 | | |
Cost
|
| | | | 19,174 | | | | | | 37,521 | | | | | | 17,789 | | | | | | 44,107 | | | | | | 1,426 | | | | | | 120,017 | | |
Accumulated depreciation
|
| | | | (10,199) | | | | | | (17,348) | | | | | | (12,719) | | | | | | (9,718) | | | | | | — | | | | | | (49,984) | | |
| | |
Software
|
| |
Internal
project development |
| |
Trademarks(i)
|
| |
Operation
licenses for distance learning |
| |
Non-compete
agreements |
| |
Customer
relationship |
| |
Teaching/
learning material - TLM |
| |
Goodwill
|
| |
TOTAL
|
| |||||||||||||||||||||||||||
At December 31, 2017 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cost
|
| | | | 35,701 | | | | | | 4,905 | | | | | | 85,163 | | | | | | 245,721 | | | | | | 10,826 | | | | | | 100,695 | | | | | | 7,344 | | | | | | 372,268 | | | | | | 862,623 | | |
Accumulated amortization
|
| | | | (11,792) | | | | | | (1) | | | | | | (7,435) | | | | | | — | | | | | | (3,684) | | | | | | (40,074) | | | | | | (2,693) | | | | | | — | | | | | | (65,679) | | |
Net book value
|
| | | | 23,909 | | | | | | 4,904 | | | | | | 77,728 | | | | | | 245,721 | | | | | | 7,142 | | | | | | 60,621 | | | | | | 4,651 | | | | | | 372,268 | | | | | | 796,944 | | |
Purchase and capitalization
|
| | | | 1,561 | | | | | | 10,208 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 11,769 | | |
Transfers
|
| | | | 2,619 | | | | | | (2,619) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Amortization
|
| | | | (6,882) | | | | | | (478) | | | | | | (4,055) | | | | | | — | | | | | | (2,165) | | | | | | (24,867) | | | | | | (1,469) | | | | | | — | | | | | | (39,916) | | |
Impairment losses
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (33,537) | | | | | | (33,537) | | |
At December 31, 2018 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net book value
|
| | | | 21,207 | | | | | | 12,015 | | | | | | 73,673 | | | | | | 245,721 | | | | | | 4,977 | | | | | | 35,754 | | | | | | 3,182 | | | | | | 338,731 | | | | | | 735,260 | | |
Cost
|
| | | | 39,881 | | | | | | 12,494 | | | | | | 85,163 | | | | | | 245,721 | | | | | | 10,826 | | | | | | 100,695 | | | | | | 7,344 | | | | | | 372,268 | | | | | | 874,392 | | |
Accumulated amortization and
impairment |
| | | | (18,674) | | | | | | (479) | | | | | | (11,490) | | | | | | — | | | | | | (5,849) | | | | | | (64,941) | | | | | | (4,162) | | | | | | (33,537) | | | | | | (139,132) | | |
Purchase and capitalization
|
| | | | 3,449 | | | | | | 12,817 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 16,266 | | |
Transfers
|
| | | | 3,071 | | | | | | (3,071) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Transfer to held for sale
|
| | | | (8) | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (8) | | |
Amortization
|
| | | | (7,675) | | | | | | (2,094) | | | | | | (4,056) | | | | | | — | | | | | | (2,165) | | | | | | (24,868) | | | | | | (1,468) | | | | | | — | | | | | | (42,326) | | |
Impairment losses
|
| | | | — | | | | | | — | | | | | | (8,515) | | | | | | — | | | | | | (769) | | | | | | (7,635) | | | | | | (187) | | | | | | (33,916) | | | | | | (51,022) | | |
At December 31, 2019 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net book value
|
| | | | 20,044 | | | | | | 19,667 | | | | | | 61,102 | | | | | | 245,721 | | | | | | 2,043 | | | | | | 3,251 | | | | | | 1,527 | | | | | | 304,815 | | | | | | 658,170 | | |
Cost
|
| | | | 46,123 | | | | | | 22,240 | | | | | | 85,163 | | | | | | 245,721 | | | | | | 10,826 | | | | | | 100,695 | | | | | | 7,344 | | | | | | 372,268 | | | | | | 890,380 | | |
Accumulated amortization and
impairment |
| | | | (26,079) | | | | | | (2,573) | | | | | | (24,061) | | | | | | — | | | | | | (8,783) | | | | | | (97,444) | | | | | | (5,817) | | | | | | (67,453) | | | | | | (232,210) | | |
| | |
Distance learning
undergraduate courses |
| |
Continuing education
courses |
| |
On-campus undergraduate
courses |
| |||||||||||||||||||||||||||
Segment Level
|
| |
2019
|
| |
2018
|
| |
2019
|
| |
2018
|
| |
2019
|
| |
2018
|
| ||||||||||||||||||
Allocation of carrying amount:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Goodwill
|
| | | | 285,826 | | | | | | 285,826 | | | | | | 18,989 | | | | | | 18,989 | | | | | | 33,916 | | | | | | 67,453 | | |
Intangible assets with indefinite useful life
|
| | | | 213,406 | | | | | | 213,406 | | | | | | 32,315 | | | | | | 32,315 | | | | |
|
—
|
| | | |
|
—
|
| |
Other intangible assets
|
| | | | 55,893 | | | | | | 82,178 | | | | | | 5,547 | | | | | | 8,910 | | | | | | 29,072 | | | | | | 36,680 | | |
Impairment test result: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Impairment losses
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | 51,022 | | | | | | 33,537 | | |
Key assumptions: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net operating revenue growth rate(i)
|
| | | | 20.3% | | | | | | 14.1% | | | | | | 22.3% | | | | | | 14.1% | | | | | | -6.5% | | | | | | 3.6% | | |
Pre-tax discount rate(ii)
|
| | | | 13.6% | | | | | | 16.9% | | | | | | 13.6% | | | | | | 16.9% | | | | | | 13.6% | | | | | | 16.9% | | |
Long-term growth
rate(iii) |
| | | | 3.5% | | | | | | 4.0% | | | | | | 3.5% | | | | | | 4.0% | | | | | | 3.5% | | | | | | 4.0% | | |
Gross margin(iv)
|
| | | | 69.8% | | | | | | 71.0% | | | | | | 86.8% | | | | | | 86.0% | | | | | | 60.2% | | | | | | 59.0% | | |
| | |
2019
|
| |
2018
|
| ||||||
Salaries payable
|
| | | | 4,235 | | | | | | 3,855 | | |
Social charges payable(i)
|
| | | | 5,906 | | | | | | 6,539 | | |
Accrued vacation
|
| | | | 1,972 | | | | | | 2,396 | | |
Accrual for bonus
|
| | | | 4,668 | | | | | | 3,166 | | |
Other
|
| | | | 3 | | | | | | 96 | | |
Total | | | | | 16,784 | | | | | | 16,052 | | |
| | |
2019
|
| |
2018
|
| ||||||
As at January 1,
|
| | | | 458,535 | | | | | | 534,914 | | |
Accrued Interest
|
| | | | 44,143 | | | | | | 53,291 | | |
Payment of principal
|
| | | | (107,988) | | | | | | (117,247) | | |
Payment of interests
|
| | | | (15,150) | | | | | | (12,423) | | |
As at December 31,
|
| | | | 379,540 | | | | | | 458,535 | | |
Current
|
| | | | 128,888 | | | | | | 123,310 | | |
Non-current
|
| | | | 250,652 | | | | | | 335,225 | | |
Liabilities
|
| |
Civil
|
| |
Labor
|
| |
Total
|
| |||||||||
At December 31, 2017
|
| | | | 2,356 | | | | | | 20,641 | | | | | | 22,997 | | |
Additions
|
| | | | 3,305 | | | | | | 4,750 | | | | | | 8,055 | | |
Accrued interest
|
| | | | 59 | | | | | | 581 | | | | | | 640 | | |
Payments
|
| | | | (390) | | | | | | (5,126) | | | | | | (5,516) | | |
Reversals
|
| | | | (3,477) | | | | | | (4,665) | | | | | | (8,142) | | |
At December 31, 2018
|
| | | | 1,853 | | | | | | 16,181 | | | | | | 18,034 | | |
Additions
|
| | | | 2,924 | | | | | | 6,770 | | | | | | 9,694 | | |
Accrued interest
|
| | | | 71 | | | | | | 481 | | | | | | 552 | | |
Payments
|
| | | | (834) | | | | | | (2,257) | | | | | | (3,091) | | |
Reversals
|
| | | | (42) | | | | | | (6,637) | | | | | | (6,679) | | |
Classified as held for sale
|
| | | | (32) | | | | | | (75) | | | | | | (107) | | |
At December 31, 2019
|
| | | | 3,940 | | | | | | 14,463 | | | | | | 18,403 | | |
Assets
|
| |
Civil
|
| |
Labor
|
| |
Total
|
| |||||||||
At December 31, 2017
|
| | | | 2,210 | | | | | | 17,418 | | | | |
|
19,628
|
| |
Additions
|
| | | | 2,840 | | | | | | 3,580 | | | | |
|
6,420
|
| |
Accrued interest
|
| | | | 56 | | | | | | 546 | | | | |
|
602
|
| |
Realized
|
| | | | (33) | | | | | | (246) | | | | |
|
(279)
|
| |
Reversals
|
| | | | (3,379) | | | | | | (6,512) | | | | |
|
(9,891)
|
| |
At December 31, 2018
|
| | | | 1,694 | | | | | | 14,786 | | | | | | 16,480 | | |
Additions
|
| | | | 131 | | | | | | 4,760 | | | | |
|
4,891
|
| |
Accrued interest
|
| | | | 55 | | | | | | 421 | | | | |
|
476
|
| |
Realized
|
| | | | (77) | | | | | | (1,312) | | | | |
|
(1,389)
|
| |
Reversals
|
| | | | (735) | | | | | | (4,922) | | | | |
|
(5,657)
|
| |
At December 31, 2019
|
| | | | 1,068 | | | | | | 13,733 | | | | | | 14,801 | | |
| | |
2019
|
| |
2018
|
| ||||||
Civil
|
| | | | 11,263 | | | | | | 6,880 | | |
Labor
|
| | | | 15,460 | | | | | | 11,690 | | |
Tax
|
| | | | 30,491 | | | | | | 29,094 | | |
Total | | | | | 57,214 | | | | | | 47,664 | | |
| | |
2019
|
| |
2018
|
| ||||||||||||||||||
| | |
Number of
shares |
| |
%
|
| |
Number of
shares |
| |
%
|
| ||||||||||||
Fundo Brasil de Internacionalização de empresas Fundos de Investimento em Participações II
|
| | | | 64,546,881 | | | | | | 12.31 | | | | | | 64,546,881 | | | | | | 12.36 | | |
Miquerinos Fundo de Investimento em
Participações |
| | | | 129,093,761 | | | | | | 24.63 | | | | | | 129,093,761 | | | | | | 24.72 | | |
Vinci Capital Partners II Fundo de Investimento em Participações
|
| | | | 193,640,642 | | | | | | 36.94 | | | | | | 193,640,642 | | | | | | 37.07 | | |
NB Pitman Brazil Fundo de Investimentos e Participações Multiestratégia
|
| | | | 135,033,912 | | | | | | 25.76 | | | | | | 135,033,912 | | | | | | 25.85 | | |
Treasury shares
|
| | | | 1,834,105 | | | | | | 0.35 | | | | | | — | | | | | | 0.00 | | |
Total | | | | | 524,149,301 | | | | | | 100.00 | | | | | | 522,315,196 | | | | | | 100.00 | | |
| | |
Quantity
|
| |
Amount
|
| ||||||
At December 31, 2018
|
| | | | — | | | | | | — | | |
Share repurchase from share option plan
|
| | | | 1,834,105 | | | | | | (2,238) | | |
At December 31, 2019
|
| | | | 1,834,105 | | | | | | (2,238) | | |
Basic and diluted earnings per share
|
| |
2019
|
| |
2018
|
| ||||||
Loss attributable to the stockholders of the Company
|
| | | | (66,160) | | | | | | (45,204) | | |
Weighted average number of outstanding common shares (thousands)
|
| | | | 522,315 | | | | | | 504,889 | | |
Basic and diluted loss per common share
|
| | | | (0.13) | | | | | | (0.09) | | |
| | |
2019
|
| |
2018
|
| ||||||||||||||||||
| | |
Number of
options |
| |
WAEP
per option |
| |
Number of
options |
| |
WAEP
per option |
| ||||||||||||
As of January 1
|
| | | | 19,863,650 | | | | | | 1.16 | | | | | | 18,595,793 | | | | | | 0.97 | | |
Granted during the year
|
| | | | 5,207,147 | | | | | | 2.06 | | | | | | 5,481,207 | | | | | | 1.74 | | |
Exercised during the year
|
| | | | (1,834,105) | | | | | | 1.02 | | | | | | (1,487,665) | | | | | | 0.98 | | |
Forfeited during the year
|
| | | | (509,474) | | | | | | 1.02 | | | | | | (2,725,685) | | | | | | 1.00 | | |
As of December 31
|
| | | | 22,727,218 | | | | | | 1.49 | | | | | | 19,863,650 | | | | | | 1.16 | | |
Exercisable at December 31
|
| | | | 16,873,011 | | | | | | 1.34 | | | | | | 13,956,380 | | | | | | 1.07 | | |
Repurchased during the year(i)
|
| | | | (1,834,105) | | | | | | 1.22 | | | | | | | | | | | | | | |
| | |
December 31, 2019
|
| |
December 31, 2018
|
|
Weighted average remaining vesting period
|
| |
2.3 years
|
| |
2.3 years
|
|
Weighted average remaining expiring period
|
| |
2.9 years
|
| |
3.9 years
|
|
Purchase option exercise price range
|
| |
R$1.05 – R$3.13
|
| |
R$1.01 – R$1.79
|
|
Weighted average remaining selling period
|
| |
4.9 years
|
| |
5.9 years
|
|
Expected selling / repurchase price
|
| |
R$3.41
|
| |
R$1.58
|
|
| | |
December 31, 2019
|
| |
December 31, 2018
|
|
Grant date
|
| |
September 1, 2019
|
| |
August 1, 2018
|
|
Expiry date
|
| |
March 1, 2025
|
| |
May 1, 2024
|
|
Share price at grant date
|
| |
R$3.02
|
| |
R$3.02
|
|
Exercise price
|
| |
R$3.12
|
| |
R$1.74
|
|
Expected price volatility
|
| |
40.6%
|
| |
42.4%
|
|
Risk-free interest rate
|
| |
5.2%
|
| |
6.9%
|
|
Model used
|
| |
Black-Scholes
|
| |
Black-Scholes
|
|
Expense arising from share-based payment transactions
|
| |
December 31,
2019 |
| |
December 31,
2018 |
| ||||||
Equity-settled
|
| | | | 5,372 | | | | | | 2,821 | | |
Cash-settled
|
| | | | 21,000 | | | | | | 4,629 | | |
| | | | | 26,372 | | | | | | 7,450 | | |
| | |
2019
|
| |
2018
|
| ||||||
Salaries and related charges
|
| | | | 5,967 | | | | | | 5,834 | | |
Share-based compensation
|
| | | | 26,372 | | | | | | 7,450 | | |
Variable compensation(i)
|
| | | | 1,732 | | | | | | 2,665 | | |
Total | | | | | 34,071 | | | | | | 15,949 | | |
| | |
2019
|
| |
2018
|
| ||||||
FI Vinci Renda Fixa Crédito Privado | | | | | | | | | | | | | |
Short-term investments
|
| | | | 38,493 | | | | | | 36,566 | | |
Financial income
|
| | | | 2,136 | | | | | | 2,122 | | |
Austral Seguradora S/A | | | | | | | | | | | | | |
Prepaid expenses
|
| | | | 758 | | | | | | — | | |
General and administrative expenses
|
| | | | (151) | | | | | | — | | |
Kloch Advocacia | | | | | | | | | | | | | |
General and administrative expenses
|
| | | | (214) | | | | | | (178) | | |
| | |
2019
|
| |
2018
|
| ||||||
Gross revenue
|
| | | | 598,344 | | | | | | 497,850 | | |
(-) Cancellation
|
| | | | (20,890) | | | | | | (16,283) | | |
(-) Discounts
|
| | | | (19,104) | | | | | | (16,997) | | |
(-) ProUni scholarships
|
| | | | (82,132) | | | | | | (68,008) | | |
(-) Taxes and contributions on revenue
|
| | | | (15,151) | | | | | | (13,113) | | |
Net revenue
|
| | | | 461,067 | | | | | | 383,449 | | |
Timing of revenue recognition | | | | | | | | | | | | | |
Transferred over time
|
| | | | 459,658 | | | | | | 382,589 | | |
Transferred at a point in time(i)
|
| | | | 1,409 | | | | | | 860 | | |
Net revenue
|
| | | | 461,067 | | | | | | 383,449 | | |
| | |
2019
|
| |
2018
|
| ||||||
Payroll(i) | | | | | 212,683 | | | | | | 159,428 | | |
Depreciation and amortization(ii)
|
| | | | 62,445 | | | | | | 56,284 | | |
Impairment losses(iii)
|
| | | | 51,022 | | | | | | 33,537 | | |
Sales and marketing
|
| | | | 54,212 | | | | | | 36,804 | | |
Material
|
| | | | 17,911 | | | | | | 16,911 | | |
Consulting and advisory services
|
| | | | 11,927 | | | | | | 16,843 | | |
Utilities, cleaning and security
|
| | | | 7,085 | | | | | | 7,013 | | |
Maintenance
|
| | | | 6,420 | | | | | | 5,644 | | |
Leases
|
| | | | 3,796 | | | | | | 6,170 | | |
Contingencies
|
| | | | 3,707 | | | | | | 317 | | |
Taxes
|
| | | | 1,705 | | | | | | 1,235 | | |
Other expenses
|
| | | | 4,927 | | | | | | 5,288 | | |
Total | | | | | 437,840 | | | | | | 345,474 | | |
Costs of services
|
| | | | 211,547 | | | | | | 184,161 | | |
General and administrative expenses
|
| | | | 125,344 | | | | | | 90,667 | | |
Selling expenses
|
| | | | 100,949 | | | | | | 70,646 | | |
Total | | | | | 437,840 | | | | | | 345,474 | | |
| | |
2019
|
| |
2018
|
| ||||||
Deductible donations
|
| | | | (300) | | | | | | (300) | | |
Contractual indemnities
|
| | | | (647) | | | | | | (712) | | |
Other revenues
|
| | | | 437 | | | | | | 332 | | |
Other expenses
|
| | | | (395) | | | | | | (361) | | |
Total | | | | | (905) | | | | | | (1,041) | | |
| | |
2019
|
| |
2018
|
| ||||||
Financial income | | | | | | | | | | | | | |
Interest on tuition fees paid in arrears
|
| | | | 8,265 | | | | | | 8,887 | | |
Financial investment yield
|
| | | | 10,726 | | | | | | 12,635 | | |
Other
|
| | | | 203 | | | | | | 504 | | |
Total | | | | | 19,194 | | | | | | 22,026 | | |
Financial expenses | | | | | | | | | | | | | |
Interest on accounts payable from acquisition of subsidiaries
|
| | | | (44,258) | | | | | | (51,739) | | |
Interest on lease
|
| | | | (12,393) | | | | | | (10,778) | | |
Other
|
| | | | (3,739) | | | | | | (2,080) | | |
Total | | | | | (60,390) | | | | | | (64,597) | | |
Financial results
|
| | | | (41,196) | | | | | | (42,571) | | |
| | | | VITRU LIMITED | |
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By:
/s/ Pedro Jorge Guterres Quintans Graça
Name: Pedro Jorge Guterres Quintans Graça
Title: Chief Executive Officer |
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By:
/s/ Carlos Henrique Boquimpani de Freitas
Name: Carlos Henrique Boquimpani de Freitas
Title: Chief Financial Officer |
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Name
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Title
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Date
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/s/ Pedro Jorge Guterres
Quintans Graça
Pedro Jorge Guterres Quintans Graça
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Chief Executive Officer
(principal executive officer) |
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September 8, 2020
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/s/ Carlos Henrique Boquimpani de Freitas
Carlos Henrique Boquimpani de Freitas
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Chief Financial Officer
(principal financial officer and principal accounting officer) |
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September 8, 2020
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*
Bruno Augusto Sacchi Zaremba
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Director
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September 8, 2020
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*
Edson Gustavo Georgette Peli
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Director
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September 8, 2020
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*
Fernando Cezar Dantas Porfírio Borges
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Director
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September 8, 2020
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*
Lywal Salles Filho
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Director
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September 8, 2020
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Rivadávia Correa Drummond de Alvarenga Neto
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Director
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Claudia Pagnano
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Director
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/s/ Colleen A. De Vries
Name: Colleen A. De Vries
Title: Senior Vice President |
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Cogency Global Inc.
Authorized representative in the United States |
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September 8, 2020
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| *By: | | |
/s/ Pedro Jorge Guterres Quintans Graça
Name: Pedro Jorge Guterres Quintans Graça
Title: Attorney-in-fact |
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| *By: | | |
/s/ Carlos Henrique Boquimpani de Freitas
Name: Carlos Henrique Boquimpani de Freitas
Title: Attorney-in-fact |
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Exhibit 1.1
Vitru Limited
Common Shares, par value U.S.$[●] per share
Underwriting Agreement
[●], 2020
Goldman Sachs & Co. LLC,
BofA Securities, Inc.,
Itau BBA USA Securities, Inc.,
Morgan Stanley & Co. LLC,
As representatives of the several Underwriters named in Schedule I hereto,
c/o Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282-2198
c/o BofA Securities, Inc.
One Bryant Park
New York, New York 10036
c/o Itau BBA USA Securities, Inc.
540 Madison Avenue, 24th Floor
New York, New York 10022
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Vitru Limited, an exempted company incorporated under the laws of the Cayman Islands with limited liability (the “Company”), proposes, subject to the terms and conditions stated in this agreement (the “Agreement”), to issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”) for whom you are acting as representatives (the “Representatives”), an aggregate of [●] common shares, par value U.S.$0.00005 per share (the “Common Shares”) and, at the election of the Underwriters, up to [●] additional Common Shares of the Company solely to cover over-allotments, if any, and the shareholders of the Company named in Schedule II hereto (the “Selling Shareholders”) propose, subject to the terms and conditions stated in this Agreement, to sell to the Underwriters an aggregate of [●] Common Shares and, at the election of the Underwriters, up to [●] additional Common Shares solely to cover over-allotments, if any. The aggregate of [●] Common Shares to be sold by the Company and the Selling Shareholders is herein called the “Firm Shares” and the aggregate of [●] additional Common Shares to be sold by the Company and the Selling Shareholders is herein called the “Optional Shares”. The Firm Shares and the Optional Shares that the Underwriters elect to purchase pursuant to Section 2 hereof are herein collectively called the “Shares.”
1. (a) The Company represents and warrants to, and agrees with, each of the Underwriters that:
(i) A registration statement on Form F-1 (File No. 333-248272) (the “Initial Registration Statement”) in respect of the Shares has been filed with the U.S. Securities and Exchange Commission (the “Commission”); the Initial Registration Statement and any post-effective amendment thereto, each in the form heretofore delivered to you, have been declared effective by the Commission in such form; other than a registration statement, if any, increasing the size of the offering (a “Rule 462(b) Registration Statement”), filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Act”), which became effective upon filing, no other document with respect to the Initial Registration Statement has been filed with the Commission; and no stop order suspending the effectiveness of the Initial Registration Statement, any post-effective amendment thereto or the Rule 462(b) Registration Statement, if any, has been issued and no proceeding for that purpose has been initiated or, to the Company’s knowledge, threatened by the Commission (any preliminary prospectus included in the Initial Registration Statement or filed with the Commission pursuant to Rule 424(a) under the Act is hereinafter called a “Preliminary Prospectus”; the various parts of the Initial Registration Statement and the Rule 462(b) Registration Statement, if any, including all exhibits thereto and including the information contained in the form of final prospectus filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to be part of the Initial Registration Statement at the time it was declared effective, each as amended at the time such part of the Initial Registration Statement became effective or such part of the Rule 462(b) Registration Statement, if any, became or hereafter becomes effective, are hereinafter collectively called the “Registration Statement”; the Preliminary Prospectus relating to the Shares that was included in the Registration Statement immediately prior to the Applicable Time (as defined in Section 1(a)(iii) hereof) is hereinafter called the “Pricing Prospectus”; such final prospectus, in the form first filed pursuant to Rule 424(b) under the Act, is hereinafter called the “Prospectus”; any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Act or Rule 163B under the Act is hereinafter called a “Testing-the-Waters Communication”; and any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Act is hereinafter called a “Written Testing-the-Waters Communication”; and any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Shares is hereinafter called an “Issuer Free Writing Prospectus”);
(ii) (A) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued, or, to the Company’s knowledge, threatened by the Commission, and (B) each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with the Underwriter Information (as defined in Section 9(c) of this Agreement) or any Selling Shareholder Information (as defined in Section 1(b)(vii) of this Agreement);
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(iii) For the purposes of this Agreement, the “Applicable Time” is [●] [a.m.][p.m.] (Eastern time) on the date of this Agreement; the Pricing Prospectus, as supplemented by the information listed on Schedule III(b) hereto, taken together (collectively, the “Pricing Disclosure Package”), as of the Applicable Time, did not, and as of each Time of Delivery (as defined in Section 4(a) of this Agreement) will not, include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus and each Written Testing-the-Waters Communication does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus, and each Issuer Free Writing Prospectus and each Written Testing-the-Waters Communication, as supplemented by and taken together with the Pricing Disclosure Package, as of the Applicable Time, did not, and as of each Time of Delivery, will not, include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements or omissions made in reliance upon and in conformity with the Underwriter Information or any Selling Shareholder Information;
(iv) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement, as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, and as of each Time of Delivery, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with the Underwriter Information or any Selling Shareholder Information;
(v) Neither the Company nor any of its subsidiaries has, since the date of the latest audited consolidated financial statements included in the Pricing Prospectus, (A) sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (B) entered into any transaction or agreement (whether or not in the ordinary course of business) that is material to the Company and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a whole, in each case otherwise than as set forth or contemplated in the Pricing Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there has not been (x) any change in the share capital (other than as a result of (i) the exercise, if any, of share options or the award, if any, of share options or restricted shares in the ordinary course of business pursuant to the Company’s equity plans that are described in the Pricing Prospectus and the Prospectus or (ii) the issuance, if any, of shares upon conversion of Company securities as described in the Pricing Prospectus and the Prospectus) or long-term debt of the Company or any of its subsidiaries or (y) any Material Adverse Effect (as defined below); as used in this Agreement, “Material Adverse Effect” shall mean any material adverse change or effect, or any development involving a prospective material adverse change or effect, in or affecting (i) the condition (financial or other), the business, properties, general affairs, management, financial position, shareholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth or contemplated in the Pricing Prospectus or (ii) the ability of the Company to perform its obligations under this Agreement, including the issuance and sale of the Shares, or to consummate the transactions contemplated in the Pricing Prospectus and the Prospectus;
(vi) The Company and its subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Pricing Prospectus or such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries;
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(vii) Each of the Company and each of its subsidiaries has been (A) duly organized and is validly existing and in good standing (to the extent such concept is applicable) under the laws of its jurisdiction of organization, with power and authority (corporate and other) to own its properties and conduct its business as described in the Pricing Prospectus, and (B) duly qualified as a foreign corporation for the transaction of business and is in good standing (to the extent such concept is applicable) under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except, in the case of this clause (B), where the failure to be so qualified or in good standing would not, individually or in the aggregate, have a Material Adverse Effect; and each subsidiary of the Company has been listed in the Registration Statement;
(viii) The Company has an authorized capitalization as set forth in the Pricing Prospectus under the caption “Capitalization” and all of the issued share capital of the Company, including the Common Shares to be sold by the Selling Shareholders, have been duly and validly authorized and issued and are fully paid and non-assessable and conform to the description of the Company’s share capital contained in the Pricing Disclosure Package and the Prospectus; and all of the issued share capital of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except, in the case of any foreign subsidiary, for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except for such liens or encumbrances described in the Pricing Prospectus and the Prospectus;
(ix) The Shares (A) to be issued and sold by the Company to the Underwriters hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein, and entered in the shareholder register of the Company, will be duly and validly issued and fully paid and non-assessable and will conform to the description of the Company’s share capital contained in the Pricing Disclosure Package and the Prospectus and the issuance of the Shares is not subject to any preemptive or similar rights; and (B) to be sold by the Selling Shareholders are duly and validly issued and are fully paid and non-assessable and conform in all material respects to the descriptions thereof in the Registration Statement, the Pricing Prospectus and the Prospectus;
(x) The issue and sale of the Shares to be sold by the Company and the compliance by the Company with this Agreement and the consummation of the transactions contemplated in this Agreement and the Pricing Prospectus will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, (A) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, except, in the case of this clause (A) for such defaults, breaches, or violations that would not, individually or in the aggregate, have a Material Adverse Effect, (B) the certificate of incorporation or by-laws (or other applicable organizational document) of the Company or any of its subsidiaries, or (C) any statute or any judgment, order, rule or regulation of any court or governmental or regulatory agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental or regulatory agency or body is required for the issue of the Shares to be sold by the Company and the sale of the Shares or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act, the approval by the Financial Industry Regulatory Authority (“FINRA”) of the underwriting terms and arrangements and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters;
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(xi) Neither the Company nor any of its subsidiaries is (A) in violation of its respective certificate of incorporation or by-laws (or other applicable organizational document), (B) in violation of any statute or any judgment, order, rule or regulation of any court or governmental or regulatory agency or body having jurisdiction over the Company or any of its subsidiaries, as the case may be, or any of their properties, or (C) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except, in the case of the foregoing clauses (B) and (C), for such violations or defaults as would not, individually or in the aggregate, have a Material Adverse Effect;
(xii) The statements set forth in the Pricing Prospectus and the Prospectus under the caption [“Description of Share Capital”], insofar as they purport to constitute a summary of the terms of the Company’s share capital, under the caption [“Taxation”], and under the caption [“Underwriting”], insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate, complete and fair in all material respects;
(xiii) Other than as set forth in the Pricing Prospectus, there are no legal, governmental or regulatory proceedings pending to which the Company or any of its subsidiaries or, to the Company’s knowledge, any officer or director of the Company is a party or of which any property of the Company or any of its subsidiaries or, to the Company’s knowledge, any officer or director of the Company (A) is the subject which, if determined adversely to the Company or any of its subsidiaries (or such officer or director), would individually or in the aggregate have a Material Adverse Effect; and, to the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or others against the Company or any of its subsidiaries; (B) that are required to be described in the Registration Statement, Pricing Disclosure Package or the Prospectus and are not so described; and, to the Company’s knowledge, there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, Pricing Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(xiv) The Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof, will not be required to register as an “investment company”, as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”);
(xv) At the time of filing the Initial Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that the Company or any offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Shares, and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405 under the Act;
(xvi) PricewaterhouseCoopers Auditores Independentes (“PwC”), who have audited certain financial statements of the Company and its subsidiaries included in the Registration Statement, Pricing Disclosure Package and Prospectus, is an independent registered public accounting firm as required by the Act and the rules and regulations of the Commission thereunder whose registration has not been suspended or revoked and who have not requested such registration be withdrawn;
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(xvii) The Company maintains a system of internal control over financial reporting that is sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorization, (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with International Financial Reporting Standards, as issued by the International Accounting Standards Board (“IFRS”) and to maintain accountability for assets, (C) access to assets is permitted only in accordance with management’s general or specific authorization and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and, except as disclosed in the Pricing Prospectus and the Prospectus, the Company’s internal control over financial reporting is effective and the Company is not aware of any material weaknesses in its internal control over financial reporting;
(xviii) Since the date of the latest audited consolidated financial statements included in the Pricing Prospectus, there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting;
(xix) The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information relating to the Company and its subsidiaries is made known to the Company’s chief executive officer and chief financial officer by others within those entities; and such disclosure controls and procedures are effective;
(xx) This Agreement has been duly authorized, executed and delivered by the Company;
(xxi) None of the Company or any of its subsidiaries, or any director or officer, nor, to the knowledge of the Company, any agent, employee, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries has (A) taken or will take any action in furtherance of an offer, payment, promise to pay or authorization or approval of the payment or receipt of any unlawful contribution, gift, entertainment or other unlawful expense or made, offered, promised or authorized any direct or indirect unlawful payment; or (B) violated, is in violation of or will violate any provision of the Foreign Corrupt Practices Act of 1977, the Bribery Act 2010 of the United Kingdom, Brazil’s Anticorruption Law (Laws No. 12,846/2013 and 8,429/1992) and Brazilian Decree 8,420/2015 or any other applicable anti-bribery or anti-corruption law, or made any bribe, unlawful rebate, payoff, influence payment, kickback or other unlawful payment. The Company and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintain policies and procedures reasonably designed to promote and achieve compliance with such laws. None of the Company or its subsidiaries will, directly or indirectly, use the proceeds of the sale of the Shares, or lend, contribute or otherwise make available such proceeds to any subsidiary, affiliate, joint venture partner or other person or entity, for the purpose of financing or facilitating any activity that would violate any applicable anti-corruption law or regulation;
(xxii) The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with the requirements of applicable anti-money laundering laws, including, but not limited to, the Bank Secrecy Act of 1970, as amended by the USA PATRIOT ACT of 2001, and the rules and regulations promulgated thereunder, to the extent applicable, and the anti-money laundering laws of the various jurisdictions in which the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules or regulations issued, administered or enforced by any governmental agency having jurisdiction over the Company or any of its subsidiaries (collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental or regulatory agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened;
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(xxiii) None of the Company or any of its subsidiaries, or any director or officer, nor, to the knowledge of the Company, any agent, employee, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries is owned or controlled by one or more individual or entities (“Person”) that is, currently (A) the subject or the target of any sanctions administered or enforced by the U.S. Government, including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury, the Bureau of Industry and Security (“BIS”), or the U.S. Department of State (including, without limitation, the designation as a “specially designated national” or “blocked person”), the European Union, Her Majesty’s Treasury, the United Nations Security Council, or other relevant sanctions authority (collectively, “Sanctions”), (B) otherwise named on any restricted parties list administered by such authorities, including the Denied Persons List or Entity List, or (C) located, organized, or resident in a country or territory that is subject to a general export, import, financial or investment embargo under any Sanctions (currently, Cuba, Iran, North Korea, Syria and the Crimea region of Ukraine) (a “Sanctioned Country”), and the Company will not, and will not permit subsidiaries to, directly or indirectly use all or part of the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (x) to fund or facilitate any activities of or business with any Person, or in any country or territory, that, at the time of such funding, is the subject or the target of Sanctions or (y) in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions or applicable export control laws and regulations administered by BIS, including the Export Administration Regulations (collectively, “Export Controls”). For the past five years, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not knowingly engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions in a manner that would violate Sanctions or Export Controls;
(xxiv) The financial statements, including (A) the audited consolidated financial statements of the Company as of and for the years ended December 31, 2019 and 2018 and (B) the unaudited interim condensed consolidated financial statements of the Company as of June 30, 2020 and for the six months period ended June 30, 2020 and 2019, included in the Registration Statement, the Pricing Prospectus and the Prospectus, together with the related notes, present fairly in all material respects the consolidated financial position of the Company and its subsidiaries at the dates indicated and the statement of operations, shareholders’ equity and cash flows of the Company and its subsidiaries for the periods specified; said financial statements have been prepared in conformity with IAS 34—“Interim Financial Reporting” applied on a consistent basis throughout the periods involved. The selected financial and other data, the summary financial and other data and the quarterly financial data under the caption “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included in the Registration Statement, the Pricing Prospectus and the Prospectus present fairly the information shown therein and have been compiled on a basis consistent with that of the audited consolidated financial statements included therein. Except as included therein, no historical or pro forma financial statements, or other financial statements required by Regulation S-X under the Act, including Rule 3-09 thereof, or supporting schedules are required to be included in the Registration Statement, the Pricing Prospectus or the Prospectus under the Act or the rules and regulations promulgated thereunder. All disclosures contained in the Registration Statement, the Pricing Prospectus and the Prospectus regarding “Non-GAAP Financial Measures” comply with the requirements for “Non-GAAP Financial Measures” under Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Act, to the extent applicable, and the Company and its subsidiaries do not have any material off-balance sheet liabilities and obligations, except as otherwise disclosed in the Pricing Disclosure Package and the Prospectus;
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(xxv) From the time of initial confidential submission of a registration statement relating to the Shares with the Commission (or, if earlier, the first date on which a Testing-the-Waters Communication was made) through the date hereof, the Company has been and is an “emerging growth company” as defined in Section 2(a)(19) of the Act (an “Emerging Growth Company”);
(xxvi) The Company is a “foreign private issuer” as defined in Rule 405 under the Act (a “Foreign Private Issuer”);
(xxvii) Based upon the manner in which the Company currently operates its business, management’s estimates of the Company’s gross income, assets and goodwill for the current taxable year, the Company’s business plans and the Company’s current interpretation of the “passive foreign investment company” (“PFIC”) provisions in the Internal Revenue Code of 1986, as amended (the “Code”) and the Treasury regulations promulgated thereunder, the Company believes that after giving effect to the offering of the Shares it will likely not be treated as a PFIC as defined in Section 1297 of the Code for the current taxable year or for the foreseeable future;
(xxviii) The Company and its subsidiaries own or possess sufficient rights to use all relevant licenses, copyrights, know how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names and other intellectual property (collectively, “Intellectual Property”) used in, held for use in or necessary for the conduct of the business now operated by them, except where the failure to own or possess any of the foregoing would not reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received any written notice or claim alleging any infringement, misappropriation, violation of or conflict with any such rights of others, except in each case as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by any party challenging the validity, scope, enforceability or ownership of any Intellectual Property owned by the Company or its subsidiaries, and all Intellectual Property owned by the Company or its subsidiaries is owned solely by the Company or its subsidiaries, is valid and enforceable, and is owned free and clear of all liens, encumbrances, defects or other restrictions, except for such liens, encumbrances, defects or other restrictions that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(xxix) The Company and its subsidiaries have complied in all material respects with their respective privacy policies and other legal obligations regarding the collection, use, transfer, storage, protection, disposal and disclosure by the Company and its subsidiaries of personal and user information gathered or accessed in the course of their respective operations, and, to the knowledge of the Company, there has been no unauthorized access to or other misuse of such information that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
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(xxx) The Company and its subsidiaries (A) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, individually or in the aggregate, have a Material Adverse Effect;
(xxxi) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, individually or in the aggregate, have a Material Adverse Effect;
(xxxii) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (A) each employee benefit plan (each, a “Plan”), within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which the Company would have any liability has been maintained in compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to, ERISA and the Code, (B) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan that would result in material liability to the Company, excluding transactions effected pursuant to a statutory or administrative exemption, (C) for each Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, the minimum funding standard of Section 412 of the Code or Section 302 of ERISA, as applicable, has been satisfied (without taking into account any waiver thereof or extension of any amortization period) and is, to the knowledge of the Company, reasonably expected to be satisfied in the future (without taking into account any waiver thereof or extension of any amortization period), (D) the fair market value of the assets of each Plan subject to Title IV of ERISA exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan), (E) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or, to the knowledge of the Company, is reasonably expected to occur with respect to any Plan subject to Title IV of ERISA, (F) neither the Company nor any member of the Controlled Group (within the meaning of section 4001(a)(14) of ERISA) has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the PBGC, in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan”, within the meaning of Section 4001(a)(3) of ERISA) and (G) there is no pending audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other governmental agency or any foreign regulatory agency with respect to any Plan that could reasonably be expected to result in material liability to the Company or its subsidiaries;
(xxxiii) The Company and its subsidiaries possess all licenses, permits, certificates and other authorizations from, and have made all declarations and filings with, all governmental and regulatory authorities, required or necessary to own or lease, as the case may be, and to operate their respective properties and to carry on their respective businesses as now or proposed to be conducted as set forth in the Pricing Prospectus (“Permits”), except where the failure to obtain such Permits would not, individually or in the aggregate, have a Material Adverse Effect; neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Permit which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xxxiv) Except as otherwise disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, no person has the right to require the Company or any of its subsidiaries to register any securities for sale under the Act by reason of the filing of the Registration Statement with the Commission, or the issuance and sale of the Shares;
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(xxxv) The Company and each of its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the date of this Agreement or have requested extensions thereof (except where the failure to file would not, individually or in the aggregate, have a Material Adverse Effect) and have paid all taxes required to be paid thereon (except for cases in which the failure to file or pay would not, individually or in the aggregate, have a Material Adverse Effect, or, except as currently being contested in good faith and for which reserves required by IFRS have been created in the financial statements of the Company), and no unpaid tax deficiency has been determined adversely to the Company or any of its subsidiaries which has had a Material Adverse Effect; neither the Company nor any of its subsidiaries have notice or knowledge of any unpaid tax deficiency which is reasonably expected to be determined adversely to the Company or its subsidiaries and would reasonably be expected to have a Material Adverse Effect;
(xxxvi) The Company and its subsidiaries taken as a whole are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are ordinary and customary in the businesses in which they are engaged;
(xxxvii) No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries, on the one hand, and the directors, officers, shareholders, customers, suppliers or other affiliates of the Company or any of its subsidiaries, on the other, that is required by the Act to be described in the Registration Statement or the Prospectus and that is not so described in such documents and in the Pricing Disclosure Package;
(xxxviii) Except for the appointment of the Underwriters, who may engage in stabilization activities and as to whose actions the Company makes no representation, the Company has not taken, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares;
(xxxix) Any market and statistical information provided in the Pricing Disclosure Package and the Prospectus are based on or furnished by sources that the Company in good faith believes to be reliable and accurate in all material respects and, to the extent required, the Company has obtained written consent for the use of such data from such sources;
(xl) No forward-looking statement (within the meaning of Section 27A of the Act and Section 21E of the Exchange Act) contained in any of the Pricing Disclosure Package and the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith;
(xli) There are no contracts, agreements or understandings between the Company and any person (other than this Agreement) that would give rise to a valid claim against the Company or any Underwriter for a broker’s commission, finder’s fee or other like payment in connection with the issuance and sale of the Shares to the Underwriters;
(xlii) Except as described in the Pricing Disclosure Package, the Company has not sold, issued or distributed any Common Shares during the six-month period preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or S of, the Act, other than shares issued pursuant to employee benefit plans, qualified share option plans or other employee compensation plans or pursuant to outstanding options, rights or warrants;
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(xliii) The Company has no reason to believe that the indemnification provisions set forth in Section 9 hereof contravene Cayman Islands or Brazilian law or public policy;
(xliv) Except as otherwise disclosed in the Registration Statement, the Pricing Prospectus and the Prospectus, no stamp or other issuance or transfer taxes or duties and no other similar taxes are payable by or on behalf of the Underwriters, or otherwise imposed on any payments made to the Underwriters, to any Cayman or Brazilian authority or to any political subdivision or taxing authority thereof in connection with the execution, delivery or performance by the Company of this Agreement;
(xlv) Neither the Company nor any of its subsidiaries or their properties or assets has immunity under the laws of the Cayman Islands or Brazil, or U.S. federal or New York state law from any legal action, suit or proceeding, from the giving of any relief in any such legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of the courts of the Cayman Islands or Brazil, or the U.S. federal or New York state court, from service of process, attachment upon or prior to judgment, or attachment in aid of execution of judgment, or from execution of a judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of a judgment, in any such court with respect to their respective obligations, liabilities or any other matter under or arising out of or in connection herewith; and, to the extent that the Company or any of its subsidiaries or any of its properties, assets or revenues may have or may hereafter become entitled to any such right of immunity in any such court in which proceedings arising out of, or relating to the transactions contemplated by this Agreement, may at any time be commenced, the Company has, pursuant to Section 20 of this Agreement, waived, and it will waive, or will cause its subsidiaries to waive, such right to the extent permitted by law;
(xlvi) Any final judgment for a fixed or determined sum of money (other than a sum payable in respect of taxes, fines, penalties or similar charges) or a non-monetary judgment (in respect of which specific performance could be ordered) rendered by any U.S. federal or New York state court located in the State of New York having jurisdiction under its own laws in respect of any suit, action or proceeding against the Company based upon this Agreement would be declared enforceable against the Company by the courts of the Cayman Islands and Brazil, without reconsideration or reexamination of the merits, provided that, in the case of the Cayman Islands, such judgment: (i) is given by a foreign court of competent jurisdiction; (ii) imposes on the judgment debtor a liability to pay a liquidated sum for which the judgment has been given; (iii) is final; (iv) is not in respect of taxes, a fine or a penalty; and (v) was not obtained in a manner and is not of a kind the enforcement of which is contrary to natural justice or the public policy of the Cayman Islands; and (upon recognition of such judgment by the Brazilian Superior Court of Justice) provided that, with respect to Brazil, such judgment (a) fulfills all formalities required for its enforceability under the laws of the country where the foreign judgment was granted; (b) is issued by a competent court and/or authority in the jurisdiction where it was awarded after proper service of process on the parties, which service must be in accordance with Brazilian law if made in Brazil, or after sufficient evidence of the parties’ absence has been given, as required under applicable law; (c) is not against Brazilian public policy, national sovereignty or public morality; (d) is final and conclusive and, therefore, not subject to appeal in the jurisdiction where it was rendered; (e) is authenticated by a Brazilian consular office in the country where the foreign judgment is issued, except if it is apostilled by a competent authority of the State in which the decision was issued, according to the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Document; (f) is translated into Portuguese by a sworn translator in Brazil, unless an exemption is provided by an international treaty to which Brazil is a signatory; (g) such judgment does not conflict with a previous final and binding judgment on the same matter and involving the same parties issued in Brazil (res judicata); and (h) the applicable procedure under the law of Brazil with respect to the enforcement of foreign judgments is complied with;
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(xlvii) The choice of laws of the State of New York as the governing law of this Agreement (the “Governing Law”) is a valid choice of law under the laws of the Cayman Islands and Brazil (to the extent such jurisdiction is applicable for purposes of this Agreement) and will be recognized and given effect by the courts of the Cayman Islands and Brazil (to the extent such jurisdiction is applicable for purposes of this Agreement), provided, with respect to Brazil (to the extent such jurisdiction is applicable for purposes of this Agreement), that (A) the contractual language makes it clear that the New York courts have exclusive jurisdiction; (B) the contract is considered to be international by Brazilian courts; (C) the clause of submission to an exclusive jurisdiction is not considered abusive by Brazilian courts and (D) Brazilian courts do not have exclusive jurisdiction over any dispute arising therefrom and subject to the restrictions described under the caption [“Enforcement of Civil Liabilities”] in the Registration Statement, the Pricing Disclosure Package and the Prospectus and provided that, in the case of the Cayman Islands, such choice of law has been made in good faith and will be upheld by the courts of New York as a matter of the Governing Law. For the purposes of (D) of this paragraph, Brazilian courts have exclusive jurisdiction over matters involving real estate located in Brazil, inventory and legal partition of assets located in Brazil, judicial divorce and distribution of assets located in Brazil and the declaration of bankruptcy by a Brazilian individual or entity. The Company has the power to submit, and pursuant to Section 18 of this Agreement and to the extent permitted by law, has legally, validly, effectively and irrevocably submitted, to the personal jurisdiction of each New York state and United States federal court sitting in the City of New York and has validly and irrevocably waived any objection to the laying of venue of any suit, action or proceeding brought in such court;
(xlviii) The legality, validity, enforceability or admissibility into evidence of this Agreement in any jurisdiction in which the Company is organized or does business is not dependent upon this Agreement being submitted into, filed or recorded with any court or other authority in any such jurisdiction on or before the date hereof or that any tax, imposition or charge be paid in any such jurisdiction on or in respect of this Agreement, other than court costs (including, without limitation, filing fees), except that, (A) Cayman Islands stamp duty would be required to be paid before this Agreement could be admitted into evidence before the courts of the Cayman Islands, and (B) for the purpose of enforcing and admitting this Agreement executed outside Brazil into evidence before the public agencies and courts in Brazil (to the extent such jurisdiction is applicable for purposes of this Agreement): (i)(a) the signatures of the parties executing this Agreement outside Brazil shall have been notarized by a notary public licensed as such under the law of the place of signing and the signature of such notary public shall have been legalized by a Brazilian Consulate; (b) this Agreement shall have been translated into Portuguese by a sworn translator; and (c) this Agreement shall have been registered with the appropriate Registry of Titles and Deeds in Brazil, together with its sworn translations; or (ii) if the state in which this Agreement was executed is party to the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Document, (a) an authority designated by the state in which this Agreement is executed shall have issued a certificate that authenticates the origin of this Agreement (“Apostille”) and (b) the Apostille and this Agreement shall have been translated into the Portuguese language by a sworn translator;
(xlix) (A)(i) There has been no security breach or attack or other compromise of or relating to any of the Company’s and its subsidiaries’ information technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of them), equipment or technology (“IT Systems and Data”), except where such security breach, attack or other compromise would not, individually or in the aggregate, have a Material Adverse Effect and (ii) the Company and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any material security breach, attack or compromise to their IT Systems and Data and (B) the Company and its subsidiaries have complied, and are presently in compliance, with, all applicable laws, statutes or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority and all internal policies and contractual obligations relating to the privacy and security of IT Systems and Data, except where such noncompliance with such laws, statutes, judgment, order, rule or regulations or internal policies or contractual obligations would not, individually or in the aggregate, have a Material Adverse Effect; and
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(l) The Company does not have any debt securities or preferred shares that are rated by any “nationally recognized statistical rating organization,” as defined in Section 3(a)(62) of the Exchange Act.
(b) Each of the Selling Shareholders, severally and not jointly, represents and warrants to, and agrees with, each of the Underwriters and the Company that:
(i) Each of this Agreement, with respect to each Selling Shareholder other than NB Verrocchio LP, Mundi Holdings I, L.L.C., Mundi Holdings II, L.L.C. and the Vinci Entities (as defined in Section 7 hereof), the Power of Attorney and, with respect to each Selling Shareholder other than Mundi Holdings I, L.L.C. and Mundi Holdings II, L.L.C., the Custody Agreement has been duly authorized, executed and delivered by or on behalf of such Selling Shareholder;
(ii) The execution and delivery by or on behalf of such Selling Shareholder of, and performance by such Selling Shareholder of its obligations under this Agreement, with respect to each Selling Shareholder other than NB Verrocchio LP, Mundi Holdings I, L.L.C., Mundi Holdings II, L.L.C. and the Vinci Entities, the Power of Attorney and, with respect to each Selling Shareholder other than Mundi Holdings I, L.L.C. and Mundi Holdings II, L.L.C., the Custody Agreement, and the consummation of the transactions herein and therein contemplated, as applicable, will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which such Selling Shareholder is a party or by which such Selling Shareholder is bound or to which any of the property or assets of such Selling Shareholder is subject, (B) with respect to each Selling Shareholder other than a natural person, result in any violation of the provisions of the charter, by-laws, partnership agreement, or similar organizational documents of such Selling Shareholder or (C) result in any conflict, breach or violation of any statute or any judgment, order, rule or regulation of any court or governmental or regulatory agency or body having jurisdiction over such Selling Shareholder or any of its properties; except, in the case of clauses (A) and (C) above, for any such conflict, breach, violation or default that would not, individually or in the aggregate, materially and adversely affect the sale of the Shares to be sold by such Selling Shareholder and the performance by such Selling Shareholder of any of its obligations under this Agreement; and no consent, approval, authorization or order of, or registration or qualification with any such court or governmental or regulatory agency having jurisdiction over such Selling Shareholder is required for the performance by such Selling Shareholder of its obligations under this Agreement and, as applicable, the Power of Attorney and the Custody Agreement and the consummation by such Selling Shareholder of the transactions contemplated by this Agreement and, as applicable, the Power of Attorney and the Custody Agreement in connection with the Shares to be sold by such Selling Shareholder hereunder, except (i) such consents, approvals, authorizations, orders and registrations or qualifications as may be required by FINRA or the Exchange, (ii) the registration under the Act of the Shares and (iii) such consents, approvals, authorizations, orders, registrations or qualifications (x) as may be required under the Exchange Act or applicable state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters, (y) that have already been obtained or (z) for which failure to obtain such consents, approvals, authorizations, orders, registrations or qualifications would not reasonably be expected to materially impact the ability of such Selling Shareholder to perform its obligations under this Agreement;
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(iii) Such Selling Shareholder has, and at the Time of Delivery will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the Uniform Commercial Code then in effect in the State of New York (the “UCC”) in respect of, the Shares to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances;
(iv) Upon payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement, delivery of such Shares, as directed by the Representatives, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim”, within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Shareholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its Memorandum and Articles of Association and applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to Section 8-501 of the UCC.
(v) On or prior to the date of the Pricing Prospectus, such Selling Shareholder has executed and delivered to the Underwriters an agreement substantially in the form of Annex VI hereto;
(vi) Such Selling Shareholder has not taken and will not take, directly or indirectly, any action that is designed to or that has constituted or might reasonably be expected to cause or result in stabilization or manipulation of the price of the Shares to facilitate the sale or resale of the Shares;
(vii) Solely to the extent that any statements or omissions made in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto are made in reliance upon and in conformity with written information furnished to the Company by such Selling Shareholder expressly for use therein, it being understood and agreed upon that the only such information furnished by any Selling Shareholder consists of the following information: the name, address and the number of Common Shares owned by such Selling Shareholder before and after the offering contemplated hereby and the other information relating to such Selling Shareholder (other than percentages) that appears in the table and corresponding footnotes under the caption “Principal and Selling Shareholders” in the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto (such information, the “Selling Shareholder Information”), such Registration Statement and Preliminary Prospectus did, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will, when they become effective or are filed with the Commission, as the case may be, not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
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(viii) Further, each Selling Shareholder listed in Schedule V hereto (each a “Management Selling Shareholder”) represents, warrants to, and agrees with, each of the Underwriters and the Company that such Registration Statement and Preliminary Prospectus did, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will, when they become effective or are filed with the Commission, as the case may be, conform in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder and not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(ix) If requested by the Representatives or their counsel with reasonable advance notice, in order to facilitate the Underwriters’ documentation of their compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the transactions herein contemplated, such Selling Shareholder will deliver to you prior to or at the First Time of Delivery a properly completed and executed United States Treasury Department Form W-8 or a properly completed and executed United States Treasury Department Form W-9 (or other applicable form or statement specified by the United States Treasury Department regulations in lieu thereof);
(x) Excluding Mundi Holdings I, L.L.C. and Mundi Holdings II, L.L.C., each other Selling Shareholder agrees that certificates in negotiable form or book-entry securities entitlements representing all of the Shares to be sold by such Selling Shareholder hereunder have been placed in custody under a Custody Agreement, in the form heretofore furnished to you (the “Custody Agreement”), duly executed and delivered by such Selling Shareholder to [●], as custodian (the “Custodian”), and excluding NB Verrocchio LP, Mundi Holdings I, L.L.C., Mundi Holdings II, L.L.C. and the Vinci Entities, each Selling Shareholder has duly executed and delivered a Power of Attorney, in the form heretofore furnished to you (the “Power of Attorney”), appointing the persons indicated in Schedule II hereto, and each of them, as such Selling Shareholder’s attorneys-in-fact (the “Attorneys-in-Fact”) with authority to execute and deliver this Agreement on behalf of such Selling Shareholder, to determine the purchase price to be paid by the Underwriters to the Selling Shareholders as provided in Section 2 hereof, to authorize the delivery of the Shares to be sold by such Selling Shareholder hereunder and otherwise to act on behalf of such Selling Shareholder in connection with the transactions contemplated by this Agreement and the Custody Agreement; and
(xi) Excluding Mundi Holdings I, L.L.C. and Mundi Holdings II, L.L.C., each other Selling Shareholder agrees that the Shares held in custody for such Selling Shareholder under the Custody Agreement are subject to the interests of the Underwriters hereunder; the arrangements made by such Selling Shareholder for such custody, and, as applicable, the appointment by such Selling Shareholder of the Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable; the obligations of the Selling Shareholders hereunder shall not be terminated by operation of law, whether by the death or incapacity of any individual Selling Shareholder or, in the case of an estate or trust, by the death or incapacity of any executor or trustee or the termination of such estate or trust, or in the case of a partnership or corporation, by the dissolution of such partnership, limited liability company or corporation, or by the occurrence of any other event; if any individual Selling Shareholder or any such executor or trustee should die or become incapacitated, or if any such estate or trust should be terminated, or if any such partnership, limited liability company or corporation should be dissolved, or if any other such event should occur, before the delivery of the Shares to be sold by such Selling Shareholder hereunder, certificates or book-entry securities representing the Shares to be sold by such Selling Shareholder hereunder shall be delivered by or on behalf of such Selling Shareholder in accordance with the terms and conditions of this Agreement and, as applicable, of the Custody Agreements; and actions taken by the Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid as if such death, incapacity, termination, dissolution or other event had not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of such death, incapacity, termination, dissolution or other event.
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2. Subject to the terms and conditions herein set forth, (a) the Company agrees to issue and sell and each of the Selling Shareholders agree, severally and not jointly, to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and each of the Selling Shareholders, at a purchase price per share of U.S.$[●], the number of Firm Shares (to be adjusted by you so as to eliminate fractional shares) determined by multiplying the aggregate number of Firm Shares to be sold by the Company and each of the Selling Shareholders as set forth opposite their respective names in Schedule II hereto by a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all of the Underwriters from the Company and all of the Selling Shareholders hereunder and (b) in the event and to the extent that the Underwriters shall exercise the election to purchase Optional Shares as provided below, the Company and each of the Selling Shareholders, as and to the extent indicated in Schedule II hereto agree, severally and not jointly, to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company and each of the Selling Shareholders, at the purchase price per share set forth in clause (a) of this Section 2 (provided that the purchase price per Optional Share shall be reduced by an amount per share equal to any dividends or distributions declared by the Company and payable on the Firm Shares but not payable on the Optional Shares), that portion of the number of Optional Shares as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional shares) determined by multiplying such number of Optional Shares by a fraction, the numerator of which is the maximum number of Optional Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the maximum number of Optional Shares that all of the Underwriters are entitled to purchase hereunder.
The Company and the Selling Shareholders, as and to the extent indicated in Schedule II hereto, hereby grant, severally and not jointly, to the Underwriters the right to purchase at their election up to [●] Optional Shares, at the purchase price per share set forth in the paragraph above, for the sole purpose of covering sales of shares in excess of the number of Firm Shares, provided that the purchase price per Optional Share shall be reduced by an amount per share equal to any dividends or distributions declared by the Company and payable on the Firm Shares but not payable on the Optional Shares. Any such election to purchase Optional Shares shall be made in proportion to the maximum number of Optional Shares to be sold by the Company and all Selling Shareholders as set forth in Schedule II hereto. Any such election to purchase Optional Shares may be exercised only by written notice from the Representatives to the Company, Mundi Holdings I, L.L.C., Mundi Holdings II, L.L.C., NB Verrocchio LP, the Vinci Entities and the Attorneys-in-Fact, given within a period of 30 calendar days after the date of this Agreement and setting forth the aggregate number of Optional Shares to be purchased and the date on which such Optional Shares are to be delivered, as determined by the Representatives but in no event earlier than the First Time of Delivery (as defined in Section 4(a) hereof) or, unless the Representatives and the Company, Mundi Holdings I, L.L.C. and Mundi Holdings II, L.L.C., NB Verrocchio LP, the Vinci Entities and the Attorneys-in-Fact otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the several Underwriters propose to offer the Firm Shares for sale upon the terms and conditions set forth in the Prospectus.
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4. (a) The Shares to be purchased by each Underwriter hereunder, in definitive or book-entry form, and registered in such names as the Representatives may request upon at least forty-eight hours’ prior notice to the Company and the Selling Shareholders shall be delivered by or on behalf of the Company and the Selling Shareholders to the Representatives, through the facilities of DTC, for the account of such Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the accounts specified by the Company and the Custodian to the Representatives at least forty-eight hours in advance. The Company and the Selling Shareholders will cause the certificates, if any, representing the Shares to be made available for checking and packaging at least twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at the office of DTC or its designated custodian (the “Designated Office”). The time and date of such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York time, on [●], 2020 or such other time and date as the Representatives, the Company, Mundi Holdings I, L.L.C., Mundi Holdings II, L.L.C., NB Verrocchio LP, the Vinci Entities and the Attorneys-in-Fact may agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New York time, on the date specified by the Representatives in each written notice given by the Representatives of the Underwriters’ election to purchase such Optional Shares, or such other time and date as the Representatives, the Company, Mundi Holdings I, L.L.C., Mundi Holdings II, L.L.C., NB Verrocchio LP, the Vinci Entities and the Attorneys-in-Fact may agree upon in writing. Such time and date for delivery of the Firm Shares is herein called the “First Time of Delivery”, each such time and date for delivery of the Optional Shares, if not the First Time of Delivery, is herein called a “Subsequent Time of Delivery”, and each such time and date for delivery is herein called a “Time of Delivery”.
(b) The documents to be delivered at each Time of Delivery by or on behalf of the parties hereto pursuant to Section 8 hereof, including the cross receipt for the Shares and any additional documents requested by the Underwriters pursuant to Section 8(q) hereof will be delivered at the offices of White & Case LLP, 1221 Avenue of the Americas, New York, NY 10020 (the “Closing Location”), and the Shares will be delivered at the Designated Office, all at such Time of Delivery. A meeting will be held at the Closing Location at [4:00] p.m., New York City time, on the New York Business Day next preceding such Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the purposes of this Section 4, “New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York City are generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Time of Delivery which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish you with copies thereof; to file promptly all material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of the Shares, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order;
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(b) Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Shares and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus in order to comply with the Act, to notify you and upon your request to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance; and in case any Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Shares at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as practicable, but in any event not later than sixteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(e) (i) During the period beginning from the date hereof and continuing to and including the date 180 days after the date of the Prospectus (the “Company Lock-Up Period”), not to (1) offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise transfer or dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any securities of the Company that are substantially similar to the Shares, including but not limited to any options or warrants to purchase Common Shares or any securities that are convertible into or exchangeable for, or that represent the right to receive, Common Shares or any such substantially similar securities or (2) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Shares or any such other securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Shares or such other securities, in cash or otherwise (other than the Shares to be sold hereunder or pursuant to employee share option plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement), or to publicly disclose the intention to undertake any of the transactions described in clause (1) or (2) above, without the prior written consent of Goldman Sachs & Co. LLC and BofA Securities, Inc. The restrictions contained in the preceding sentence shall not apply to (a) the Shares to be sold hereunder; (b) the grant by the Company of any options, warrants or shares, provided that, if such options or warrants are exercised, the recipients of the shares shall be bound by the terms of the letter, substantially in the form of Annex VI, or the issuance by the Company of Common Shares upon the exercise of an option or warrant or under the Company’s long-term incentive plan described in the Registration Statement, the Pricing Prospectus and the Prospectus, provided that, for the avoidance of doubt, the recipients of such Common Shares who are directors or executive officers of the Company shall be bound by the terms of the letter or letters, substantially in the form of Annex VI hereto; (c) the issuance by the Company of Common Shares upon the conversion of a security, described in the Registration Statement, the Pricing Prospectus, and the Prospectus, outstanding on the date hereof, provided that, for the avoidance of doubt, the recipient of such Common Shares shall be bound by the terms of the letter or letters, substantially in the form of Annex VI hereto; (d) any issuance by the Company of Common Shares in connection with a merger, acquisition, joint venture or strategic participation entered into by the Company, provided that the aggregate number of Common Shares issued or issuable under this clause (d) shall not exceed (i) 5% of the total number of Common Shares issued and outstanding as of the date of such merger, acquisition, joint venture or strategic participation, as the case may be, and (ii) the recipient of such Common Shares shall have executed and delivered to the Underwriters a letter or letters, substantially in the form of Annex VI hereto, (e) the filing by the Company of any registration statement on Form S-8 or a successor form thereto relating to the Company’s long term incentive plans described in the Registration Statement, the Pricing Prospectus and the Prospectus or (f) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Common Shares, provided that (i) such trading plan does not provide for the transfer of Common Shares during the Company Lock-up Period and (ii) no public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by the Company regarding the establishment of such plan;
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(ii) If Goldman Sachs & Co. LLC and BofA Securities, Inc., in their sole discretion, agree to release or waive the restrictions set forth in the lock-up letter described in Section 8(o) hereof and provide the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Annex V hereto through a major news service at least two business days before the effective date of the release or waiver;
(f) To furnish to its shareholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, shareholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), to make available to its shareholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the effective date of the Registration Statement, to furnish to you copies of all reports or other communications (financial or other) furnished to shareholders, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its shareholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the Shares pursuant to this Agreement in the manner specified in the Pricing Prospectus under the caption “Use of Proceeds”;
(i) To use its best efforts to list for trading, subject to official notice of issuance, the Shares on the NASDAQ Stock Market (the “Exchange”);
(j) To file with the Commission such information on Form 20-F as may be required by Rule 463 under the Act;
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(k) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 3a(c) of the Commission’s Informal and Other Procedures (16 CFR 202.3a);
(l) Upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares (the “License”); provided, however, that the License shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred;
(m) To promptly notify you if the Company ceases to be an Emerging Growth Company or a Foreign Private Issuer at any time prior to the later of (i) completion of the distribution of the Shares within the meaning of the Act and (ii) the completion of the Company Lock-Up Period referred to in Section 5(e) hereof; and
(n) If requested by the Representatives or their counsel with reasonable advance notice, the Company and each Selling Shareholder will deliver to each Underwriter (or its agent), on the date of execution of this Agreement, a properly completed and executed “Certification Regarding Beneficial Owners of Legal Entity Customers”, together with copies of identifying documentation, and the Company undertakes to provide such additional supporting documentation as each Underwriter may reasonably request in connection with the verification of the foregoing certification.
6. (a) The Company represents and agrees that, without the prior consent of the Representatives, it has not made and will not make any offer relating to the Shares that would constitute a “free writing prospectus” as defined in Rule 405 under the Act; each Selling Shareholder represents and agrees that, without the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Shares that would constitute a free writing prospectus; and each Underwriter represents and agrees that, without the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Shares that would constitute a free writing prospectus required to be filed with the Commission; any such free writing prospectus the use of which has been consented to by the Company and the Representatives is listed on Schedule III(a) hereto;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending; and the Company represents that it has satisfied and agrees that it will satisfy the conditions under Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show;
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus or Written Testing-the-Waters Communication any event occurred or occurs as a result of which such Issuer Free Writing Prospectus or Written Testing-the-Waters Communication would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will give prompt notice thereof to the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus, Written Testing-the-Waters Communication or other document which will correct such conflict, statement or omission; provided however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with the Underwriter Information or any Selling Shareholder Information;
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(d) The Company and each Selling Shareholder represents and agrees that (i) it has not engaged in, or authorized any other person other than the Representatives to engage in, any Testing-the-Waters Communications, other than Testing-the-Waters Communications with the prior consent of the Representatives with entities that the Company or such Selling Shareholder reasonably believes are qualified institutional buyers as defined in Rule 144A under the Act or institutions that are accredited investors as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Act; and (ii) it has not distributed, or authorized any other person to distribute, any Written Testing-the-Waters Communications, other than those distributed with the prior consent of the Representatives that are listed on Schedule III hereto; and the Company reconfirms that the Underwriters have been authorized to act on its behalf in engaging in Testing-the-Waters Communications;
(e) Each Selling Shareholder, severally and not jointly, covenants with each Underwriter that such Selling Shareholder will not, directly or, knowingly, indirectly use all or part of the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (x) to fund or facilitate any activities of or business with any Person, or in any country or territory, that, at the time of such funding or facilitation, is the subject or the target of Sanctions or (y) in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions or Export Controls; and
(f) Each Underwriter represents and agrees that any Testing-the-Waters Communications undertaken by it were with entities that such Underwriter reasonably believes are qualified institutional buyers as defined in Rule 144A under the Act or institutions that are accredited investors as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8).
7. The Company and each of the Selling Shareholders covenant and agree with one another and with the several Underwriters that the Company will pay or cause to be paid the following: (a) the fees, disbursements and expenses of the Company’s counsels and accountants in connection with the registration and sale of the Shares under the Act and all other expenses in connection with the preparation, printing, reproduction and filing of the Registration Statement, any Preliminary Prospectus, any Written Testing-the-Waters Communication, any Issuer Free Writing Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (b) the cost of printing or producing any agreement among Underwriters, this Agreement, the Blue Sky Memorandum, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Shares; (c) all expenses in connection with the qualification of the Shares for offering and sale under state securities laws as provided in Section 5(b) hereof, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey; (d) all fees and expenses in connection with listing the Shares on the Exchange; (e) the filing fees incident to, and the fees and disbursements of counsel for the Underwriters in connection with, any required review by FINRA of the terms of the sale of the Shares; (f) the cost of preparing share certificates; if applicable; (g) the cost and charges of any transfer agent or registrar, (h) all expenses of the Company incurred in connection with any “road show” presentation to potential investors, excluding the expenses incurred by the Underwriters in connection therewith; (i) the fees and expenses of the Attorneys in Fact and the Custodian; (j) all expenses and taxes incident to the sale and delivery of the Shares to be sold to the Underwriters hereunder; (k) any fees and expenses of counsel for the Selling Shareholders, provided that notwithstanding the foregoing, the fees and expenses of Debevoise & Plimpton LLP shall be borne solely by Mundi Holdings I, L.L.C. and Mundi Holdings II, L.L.C. the fees and expenses of Haynes and Boone, LLP shall be borne solely by NB Verrocchio LP, and the fees and expenses of Mayer Brown LLP and Tauil & Chequer Advogados a Mayer Brown shall be borne solely by Vinci Capital Partners II J Beta Fundo de Investimento Em Participações Multiestratégia, Agresti Investments LLC, Botticelli Investments LLC, Caravaggio Investments LLC and Raffaello Investments LLC (collectively, the “Vinci Entities”); and (l) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. Furthermore, it is understood that the Company shall bear, and the Selling Shareholders shall not be required to pay or to reimburse the Company for, the cost of any other matters not directly relating to the sale and purchase of the Shares pursuant to this Agreement, and that except as provided in this Section 7, and Sections 9 and 12, the Underwriters will pay all of their own costs and expenses, including the fees and disbursements of their counsel, share transfer taxes on resale of any of the Shares by them, “road show” and other out of pocket expenses payable by the Underwriters and any advertising expenses connected with any offers they may make.
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8. The obligations of the Underwriters hereunder, as to the Shares to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all respective representations and warranties and other statements of the Company and the Selling Shareholders herein are, at and as of the Applicable Time and such Time of Delivery, true and correct, the condition that the Company and the Selling Shareholders shall have performed all of its and their respective obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all materials required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission no stop order suspending or preventing the use of the Pricing Prospectus, Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) White & Case LLP, U.S. counsel for the Underwriters, shall have furnished to you its opinion and negative assurance letter, dated such Time of Delivery, in form and substance satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) Trench, Rossi e Watanabe Advogados, Brazilian counsel for the Underwriters, shall have furnished to you its opinion and negative assurance letter, dated such Time of Delivery, in form and substance satisfactory to you with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(d) Conyers Dill & Pearman, Cayman counsel for the Underwriters, shall have furnished to you its opinion, dated such Time of Delivery, in form and substance satisfactory to you with respect to such matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(e) Davis Polk & Wardwell LLP, U.S. counsel for the Company, shall have furnished to you its opinion and negative assurance letter, dated such Time of Delivery, in form and substance previously agreed upon and satisfactory to you;
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(f) Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados, Brazilian counsel for the Company, shall have furnished to you its opinion and negative assurance letter, dated such Time of Delivery, in form and substance previously agreed upon and satisfactory to you;
(g) Maples and Calder, Cayman counsel for the Company, shall have furnished to you its opinion, dated such Time of Delivery, in form and substance previously agreed upon and satisfactory to you;
(h) The respective counsel for each of the Selling Shareholders, as indicated in Schedule II hereto, each shall have furnished to you their written opinion with respect to each of the Selling Shareholders for whom they are acting as counsel, dated such Time of Delivery, in form and substance reasonably satisfactory to you;
(i) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, PwC shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus; provided that the letter delivered on a Time of Delivery shall use a “cut-off date” no more than three business days prior to the date of this Agreement, the Closing Date or such Subsequent Closing Date, as the case may be;
(j) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time and also at each Time of Delivery, the Underwriters shall have received a certificate, dated the respective dates of delivery thereof, in form and substance satisfactory to you, signed by the Chief Financial Officer of the Company;
(k) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited consolidated financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental or regulatory action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the share capital or long-term debt of the Company or any of its subsidiaries or any change or effect, or any development involving a prospective change or effect, in or affecting (x) the business, properties, general affairs, management, financial position, shareholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole, or (y) the ability of the Company to perform its obligations under this Agreement, including the issuance and sale of the Shares, or to consummate the transactions contemplated in the Pricing Prospectus and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus and the Prospectus;
(l) There are no debt or preferred securities issued, or guaranteed, by the Company or its subsidiaries that are rated by any “nationally recognized statistical rating organization”, as defined in Section 3(a)(62) of the Exchange Act;
(m) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the Nasdaq Global Market Exchange (“Nasdaq”) or the New York Stock Exchange (“NYSE”); (ii) a suspension or material limitation in trading in the Company’s securities on the Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus and the Prospectus;
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(n) The Shares to be sold at such Time of Delivery shall have been duly listed, subject to official notice of issuance, on the Exchange;
(o) The Company shall have obtained and delivered to the Underwriters executed copies of an agreement from each Selling Shareholder, director, officer and security holder (including those holding options) of the Company listed on Schedule IV hereto, substantially to the effect set forth in Annex VI hereto;
(p) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; and
(q) The Company and each Selling Shareholder shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company and of such Selling Shareholder, respectively, reasonably satisfactory to you as to the accuracy of the representations and warranties of the Company and such Selling Shareholder, respectively, herein at and as of such Time of Delivery, as to the performance by the Company and such Selling Shareholder of all of their respective obligations hereunder to be performed at or prior to such Time of Delivery, as to such other matters as you may reasonably request, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a) and (k) of this Section 8.
9. (a) The Company will indemnify and hold harmless each of the Underwriters , each of Mundi Holdings I, L.L.C., Mundi Holdings II, L.L.C., NB Verrocchio LP, the Vinci Entities (collectively, the “Fund Selling Shareholders”), and each of their respective officers, partners, members, directors and affiliates and each person, if any, who controls any such Underwriter and Fund Selling Shareholder, as applicable, within the meaning of Section 15 of the Act and Section 20 of the Exchange Act against any losses, claims, damages or liabilities, joint or several, to which such Underwriter or Fund Selling Shareholder may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus, any “roadshow” as defined in Rule 433(h) under the Act (a “roadshow”), or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act or any Written Testing-the-Waters Communication, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter and Fund Selling Shareholder for any legal or other expenses reasonably incurred by such Underwriter and Fund Selling Shareholder in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus or any Written Testing-the-Waters Communication, in reliance upon and in conformity with the Underwriter Information (as defined below) or the Selling Shareholder Information, as applicable.
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(b) Each Selling Shareholder, severally and not jointly, will indemnify and hold harmless each of the Underwriters and each of their respective officers, partners, members, directors and affiliates and each person, if any, who controls any such Underwriter within the meaning of Section 15 of the Act and Section 20 of the Exchange Act against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus, any “roadshow” or any Written Testing-the-Waters Communication, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that a Selling Shareholder shall be liable only with respect to untrue statements or alleged untrue statements, or omissions or alleged omissions, made in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or any roadshow or any Written Testing-the-Waters Communication, in reliance upon and in conformity with the applicable Selling Shareholder Information; provided, further, that a Selling Shareholder shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or any roadshow or any Written Testing-the-Waters Communication, in reliance upon and in conformity with the Underwriter Information; and provided, further, that the liability under this subsection of each Selling Shareholder shall be limited to an amount equal to the net proceeds (after deducting underwriting commissions and discounts, but before expenses) received by such Selling Shareholder from the sale of Shares sold by such Selling Shareholder hereunder (in relation to each such Selling Shareholder, the “Selling Shareholder Proceeds”).
(c) Each Underwriter, severally and not jointly, will indemnify and hold harmless the Company, each Selling Shareholder, their respective officers, partners, members, directors and their respective affiliates and each person, if any, who controls the Company or any Selling Shareholder, as applicable, within the meaning of Section 15 of the Act and Section 20 of the Exchange Act, against any losses, claims, damages or liabilities to which such indemnified party may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or any roadshow, or any Written Testing-the-Waters Communication, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or any roadshow, or any Written Testing-the-Waters Communication, in reliance upon and in conformity with the Underwriter Information; and will reimburse the Company and each Selling Shareholder for any legal or other expenses reasonably incurred by the Company or such Selling Shareholder in connection with investigating or defending any such action or claim as such expenses are incurred. As used in this Agreement with respect to an Underwriter and an applicable document, “Underwriter Information” shall mean the written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; it being understood and agreed upon that the only such information furnished by any Underwriter consists of the following information in the Prospectus furnished on behalf of each Underwriter: the name of each Underwriter, the concession and reallowance figures appearing in the [sixth] paragraph under the caption “Underwriting” and the information contained in the [sixth] and [fourteenth] paragraphs under the caption “Underwriting”.
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(d) Promptly after receipt by an indemnified party under subsection (a), (b) or (c) of this Section 9 of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; provided that the failure to notify the indemnifying party shall not relieve it from any liability that it may have under the preceding paragraphs of this Section 9 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under the preceding paragraphs of this Section 9. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation unless (i) such indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying party, (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party, or (iii) the named parties in any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interest between them. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a), (b) or (c) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and/or the Selling Shareholders, as applicable on the one hand and the Underwriters on the other from the offering of the Shares and with the proportion among the Company and the Selling Shareholders to reflect the relative fault of the Company and the Selling Shareholders. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and/or the Selling Shareholders, as applicable, on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations and with the proportion among the Company and the Selling Shareholders to reflect the relative fault of the Company and the Selling Shareholders. The relative benefits received by the Company and/or the Selling Shareholders, as applicable, on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company and/or the Selling Shareholders, as applicable, bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Selling Shareholders on the one hand or the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, each of the Selling Shareholders and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (e) were determined by pro rata allocation (even if the Selling Shareholders or Underwriters, as applicable, were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (e) shall be deemed to include any documented legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (e), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and no Selling Shareholder shall be required to contribute any amount in excess of the amount by which its Selling Shareholder Proceeds exceeds any damages which such Selling Shareholder has otherwise been required to pay by reason of untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (e) to contribute are several in proportion to their respective underwriting obligations and not joint. Notwithstanding the provisions of this subsection (e), each Selling Shareholder’s obligation to contribute any amount under this subsection (e) is limited in the manner and to the extent set forth in Section 9(b) hereof and in no event shall the aggregate liability of each Selling Shareholder under this Section 9 exceed the limit set forth in Section 9(b).
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(f) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each employee, officer and director of each Underwriter or Selling Shareholder and each person, if any, who controls any Underwriter or Selling Shareholder within the meaning of the Act and the Exchange Act and each broker-dealer or other affiliate of any Underwriter or Selling Shareholder; the obligations of the Selling Shareholders under this Section 9 shall be in addition to any liability which the respective Selling Shareholder may otherwise have and shall extend, upon the same terms and conditions, to each Underwriter and each person, if any, who controls any Underwriter within the meaning of the Act and the Exchange Act and each broker-dealer or other affiliate of any Underwriter; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and the Selling Shareholders (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company) and to each person, if any, who controls the Company or any Selling Shareholder within the meaning of the Act and the Exchange Act and any affiliate of the Selling Shareholders.
10. (a) If any Underwriter shall default in its obligation to purchase the Shares that it has agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for you or another party or other parties to purchase such Shares on the terms contained herein. If within thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such Shares, then the Company and the Selling Shareholders shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to you to purchase such Shares on such terms. In the event that, within the respective prescribed periods, you notify the Company and the Selling Shareholders that you have so arranged for the purchase of such Shares, or the Company or a Selling Shareholder notifies you that it has so arranged for the purchase of such Shares, you or the Company or the Selling Shareholders shall have the right to postpone such Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in your opinion may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any person substituted under this Section 10 with like effect as if such person had originally been a party to this Agreement with respect to such Shares.
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(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you, the Company and the Selling Shareholders as provided in subsection 10(a) above, the aggregate number of such Shares which remains unpurchased does not exceed one-eleventh of the aggregate number of all the Shares to be purchased at such Time of Delivery, then the Company and the Selling Shareholders shall have the right to require each non-defaulting Underwriter to purchase the number of Shares which such Underwriter agreed to purchase hereunder at such Time of Delivery and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares which such Underwriter agreed to purchase hereunder) of the Shares of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you, the Company and the Selling Shareholders as provided in subsection 10(a) above, the aggregate number of such Shares which remains unpurchased exceeds one-eleventh of the aggregate number of all of the Shares to be purchased at such Time of Delivery, or if the Company and the Selling Shareholders shall not exercise the right described in subsection 10(b) above to require non-defaulting Underwriters to purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement (or, with respect to a Subsequent Time of Delivery, the obligations of the Underwriters to purchase and of the Company and the Selling Shareholders to sell the Optional Shares) shall thereupon terminate, without liability on the part of any non-defaulting Underwriter, the Company or the Selling Shareholders, except for the expenses to be borne by the Company, the Selling Shareholders and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
11. The indemnity and contribution provisions contained in Section 9, the agreements regarding expense reimbursement and the respective representations, warranties and other statements of the Company, the Selling Shareholders and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any of the Selling Shareholders, or any officer or director or controlling person of the Company, or any controlling person of any Selling Shareholder, and shall survive delivery of and payment for the Shares.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, neither the Company nor the Selling Shareholders shall then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but, if for any other reason any Shares are not delivered by or on behalf of the Company and the Selling Shareholders as provided herein, or the Underwriters decline to purchase the Shares for any reason permitted under this Agreement, the Company will reimburse the Underwriters through you for all out-of-pocket expenses approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Shares not so delivered, but the Company and the Selling Shareholders shall then be under no further liability to any Underwriter except as provided in Sections 7 and 9 hereof.
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13. In all dealings hereunder, the Representatives shall act jointly on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by you jointly as the Representatives; and in all dealings with any Selling Shareholder hereunder, you and the Company shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of such Selling Shareholder made or given by any or all of the Attorneys-in-Fact for such Selling Shareholder, if any.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company and the Selling Shareholders, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, e-mail, telex or facsimile transmission to you as the Representatives at (i) Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282-2198, Attention: Registration Department; (ii) BofA Securities, Inc., One Bryant Park, New York, New York 10036, Facsimile: (646) 855-3073, Attention: Syndicate Department, with a copy to facsimile: (212) 230-8730, Attention: ECM Legal; (iii) Itau BBA USA Securities, Inc., 540 Madison Avenue, 24th Floor, New York, NY 10022-3263, Attention: Chief Compliance Officer; and (iv) Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036, Attention: Equity Syndicate Desk, with a copy to the Legal Department; if to any Selling Shareholder shall be delivered or sent by mail, e-mail, telex or facsimile transmission to such Selling Shareholder at its address set forth in Schedule II hereto; if to the Company shall be delivered or sent by mail, e-mail, telex or facsimile transmission to the address of the Company set forth on the cover of the Registration Statement, Attention: [Secretary]; and if to any shareholder that has delivered a lock-up letter described in Section 8(o) hereof shall be delivered or sent by mail to his or her respective address provided in Schedule IV hereto or such other address as such shareholder provides in writing to the Company; provided, however, that any notice to an Underwriter pursuant to Section 9(d) hereof shall be delivered or sent by mail, e-mail, telex or facsimile transmission to such Underwriter at its address set forth in its Underwriter’s Questionnaire or telex constituting such Questionnaire, which address will be supplied to the Company or the Selling Shareholders by you on request; provided further that notices under subsection 5(e) shall be in writing, and if to the Underwriters shall be delivered or sent by mail, e-mail, telex or facsimile transmission to you as Representatives at (i) Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282-2198, Attention: Control Room; (ii) BofA Securities, Inc., One Bryant Park, New York, New York 10036, Facsimile: (646) 855-3073, Attention: Syndicate Department, with a copy to facsimile: (212) 230-8730, Attention: ECM Legal; (iii) Itau BBA USA Securities, Inc., 540 Madison Avenue, 24th Floor, New York, NY 10022-3263, Attention: Chief Compliance Officer; and (iv) Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036, Attention: Equity Syndicate Desk, with a copy to the Legal Department. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and the Selling Shareholders and, to the extent provided in Sections 9 and 11 hereof, the officers and directors of the Company and each person who controls the Company, any Selling Shareholder or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Shares from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
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15. Time shall be of the essence of this Agreement. As used herein, the term “business day” shall mean any day when the Commission’s office in Washington, D.C. is open for business.
16. The Company and the Selling Shareholders, severally and not jointly, acknowledge and agree that (i) the purchase and sale of the Shares pursuant to this Agreement is an arm’s-length commercial transaction between the Company and the Selling Shareholders, on the one hand, and the several Underwriters, on the other, and does not constitute a recommendation, investment advice, or solicitation of any action by the Underwriters, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company or any Selling Shareholder, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the Company or any Selling Shareholders with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or any Selling Shareholder on other matters) or any other obligation to the Company or any Selling Shareholder except the obligations expressly set forth in this Agreement, (iv) the Company and each Selling Shareholder has consulted its own respective legal and financial advisors to the extent it deemed appropriate, and (v) none of the activities of the Underwriters in connection with the transactions contemplated herein constitutes a recommendation, investment advice or solicitation of any action by the Underwriters with respect to any entity or natural person. The Company and each Selling Shareholder agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company or any Selling Shareholder, in connection with such transaction or the process leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company, the Selling Shareholders and the Underwriters, or any of them, with respect to the subject matter hereof.
18. THIS AGREEMENT AND ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THAT WOULD RESULT IN THE APPLICATION OF ANY OTHER LAW THAN THE LAWS OF THE STATE OF NEW YORK. The Company and each Selling Shareholder agree that any suit or proceeding arising in respect of this Agreement or any transaction contemplated by this Agreement will be tried exclusively in the U.S. District Court for the Southern District of New York or, if that court does not have subject matter jurisdiction, in any state court located in The City and County of New York and the Company and each Selling Shareholder agree to submit to the jurisdiction of, and to venue in, such courts. The Company waives any objection which it may now or hereafter have to the laying of venue of any such suit or proceeding in such courts. The Company agrees that final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Company and may be enforced in any court to the jurisdiction in which the Company is subject by a suit upon such judgment. The Company and each Selling Shareholder irrevocably appoints Cogency Global Inc., located at 122 East 42nd Street, 18th Floor, New York, NY, 10168, as its authorized agent to receive service of process or other legal summons for purposes of any suit or proceeding, and agrees that service of process upon such authorized agent, and written notice of such service to the Company or each Selling Shareholder, as the case may be, by the person serving the same to the address provided in this Section 18, shall be deemed in every respect effective service of process upon the Company or such Selling Shareholder in any such suit or proceeding. The Company and each Selling Shareholder hereby represents and warrants that such authorized agent has accepted such appointment and has agreed to act as such authorized agent for service of process. The Company and each Selling Shareholder further agrees to take any and all action as may be necessary to maintain such designation and appointment of such authorized agent in full force and effect for a period of seven years from the date of this Agreement.
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19. The Company and the Selling Shareholders, severally and not jointly, agree to indemnify each Underwriter, its directors, officers, affiliates and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any loss incurred by such Underwriter as a result of any judgment or order being given or made for any amount due hereunder and such judgment or order being expressed and paid in a currency (the “judgment currency”) other than U.S. dollars and as a result of any variation as between (i) the rate of exchange at which the U.S. dollar amount is converted into the judgment currency for the purpose of such judgment or order, and (ii) the rate of exchange at which such indemnified person is able to purchase U.S. dollars with the amount of the judgment currency actually received by the indemnified person. The foregoing indemnity shall constitute a separate and independent obligation of the Company and the Selling Shareholders and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The foregoing indemnity made by each Selling Shareholder is made only with respect to any judgment or order against such Selling Shareholder and only to the extent of the loss directly attributable to such judgment or order. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency.
20. To the extent that the Company has or hereafter may acquire any immunity (sovereign or otherwise) from jurisdiction of any court of (i) the Cayman Islands, or any political subdivision thereof, (ii) Brazil, or any political subdivision thereof, (iii) the United States or the State of New York, or (iv) any jurisdiction in which it owns or leases property or assets or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution, set-off or otherwise) with respect to itself or its property and assets or this Agreement, the Company hereby irrevocably waives such immunity in respect of its obligations under this Agreement to the fullest extent permitted by applicable law.
21. The Company, each Selling Shareholder and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
22. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
23. Notwithstanding anything herein to the contrary, the Company and the Selling Shareholders are authorized to disclose to any persons the U.S. federal and state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided to the Company and the Selling Shareholders relating to that treatment and structure, without the Underwriters imposing any limitation of any kind. However, any information relating to the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any person to comply with securities laws. For this purpose, “tax structure” is limited to any facts that may be relevant to that treatment.
24. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
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(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
(c) As used in this section:
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
If the foregoing is in accordance with your understanding, please sign and return to us counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof shall constitute a binding agreement among each of the Underwriters, the Company and each of the Selling Shareholders. It is understood that your acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority set forth in a form of agreement among Underwriters, the form of which shall be submitted to the Company and the Selling Shareholders for examination, upon request, but without warranty on your part as to the authority of the signers thereof.
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Very truly yours, | ||
Vitru Limited | ||
By: | ||
Name: | ||
Title: |
Very truly yours, | ||
NB Verrocchio LP | ||
By: | ||
Name: | ||
Title: |
2
SIGNED for and on behalf of MUNDI HOLDINGS I, L.L.C., by: | ) | ||
) | |||
) | Duly Authorised Signatory | ||
) | |||
) | Name: | ||
) | |||
) | Title: | Officer |
SIGNED for and on behalf of MUNDI HOLDINGS II, L.L.C., by: | ) | ||
) | |||
) | Duly Authorised Signatory | ||
) | |||
) | Name: | ||
) | |||
) | Title: | Officer |
3
Very truly yours, | ||
Vinci Capital Partners II J Beta Fundo de | ||
Investimento Em Participações | ||
Multiestratégia | ||
By: | ||
Name: | ||
Title: | ||
Agresti Investments LLC | ||
By: | ||
Name: | ||
Title: | ||
Botticelli Investments LLC | ||
By: | ||
Name: | ||
Title: | ||
Caravaggio Investments LLC | ||
By: | ||
Name: | ||
Title: | ||
Raffaello Investments LLC | ||
By: | ||
Name: | ||
Title: |
Any person executing and delivering this Agreement as Attorney-in-Fact for a Selling Shareholder represents by so doing that he has been duly appointed as Attorney-in-Fact by such Selling Shareholder pursuant to a validly existing and binding Power of Attorney that authorizes such Attorney-in-Fact to take such action.
Pedro Jorge Guterres Quintans Graça |
By: | ||
Name: Pedro Jorge Guterres Quintans Graça | ||
Title: Chief Executive Officer |
Carlos Henrique Boquimpani de Freitas |
By: | ||
Name: Carlos Henrique Boquimpani de Freitas | ||
Title: Chief Financial Officer |
As Attorney-in-Fact acting on behalf of each of the Selling Shareholders named in Schedule II to this Agreement other than Mundi Holdings I, L.L.C, Mundi Holdings II, L.L.C, NB Verrocchio LP and the Vinci Entities. |
Accepted as of the date hereof
in New York, New York.
Goldman Sachs & Co. LLC
By: | ||
Name: | ||
Title: |
On behalf of each of the Underwriters
2
BofA Securities, Inc.
By: | ||
Name: | ||
Title: |
On behalf of each of the Underwriters
3
Itau BBA USA Securities, Inc.
By: | ||
Name: | ||
Title: |
On behalf of each of the Underwriters
4
Morgan Stanley & Co. LLC
By: | ||
Name: | ||
Title: |
On behalf of each of the Underwriters
5
Schedule I
Underwriter |
Total Number of Firm
Shares to be Purchased |
Number of Optional
Shares to be Purchased if Maximum Option Exercised |
|||
Goldman Sachs & Co. LLC | |||||
BofA Securities, Inc. | |||||
Itau BBA USA Securities Inc.. | |||||
Morgan Stanley & Co LLC. | |||||
Banco Bradesco BBI S.A. | |||||
Banco BTG Pactual S.A.—Cayman Branch | |||||
Credit Suisse Securities (USA) LLC | |||||
Santander Investment Securities Inc. | |||||
XP Investimentos Corretora de Câmbio, Títulos e Valores Mobiliários S.A. | |||||
Total |
6
Schedule II
Total Number of
Firm Shares to be Sold |
Number of Optional
Shares to be Sold if Maximum Option Exercised |
||||
The Company. | |||||
The Selling Shareholder(s): | |||||
Mundi Holdings I, L.L.C.(a) | |||||
Mundi Holdings II, L.L.C.(a) | |||||
NB Verrocchio LP(b) | |||||
Vinci Capital Partners II J Beta Fundo de Investimento Em Participações Multiestratégia (c) | |||||
Agresti Investments LLC(c) | |||||
Botticelli Investments LLC(c) | |||||
Caravaggio Investments LLC(c) | |||||
Raffaello Investments LLC(c) | |||||
Pedro Jorge Guterres Quintans Graça(d) | |||||
Carlos Henrique Boquimpani de Freitas(d) | |||||
Luiz Gonzaga Victor Foureaux Neto(d) | |||||
Ana Paula Rodrigues(d) | |||||
Valdir G. Barbosa Sobrinho(d) | |||||
Gabriel Simoes Guioto Ribeiro(d) | |||||
Raphael Ribeiro Rodrigues(d) | |||||
Herminio Kloch(d) | |||||
Carlos Fabiano Fistarol(d) | |||||
Peter Kim Woo(d) | |||||
Erico Coelho Ribeiro(d) | |||||
Ricardo Grima(d) | |||||
Total |
(a) This Selling Shareholder is represented by Debevoise & Plimpton LLP and Walkers. Any notice to this Selling Shareholder as contemplated by Section 13 of this Agreement shall be delivered to c/o The Carlyle Group, 1001 Pennsylvania Avenue NW, Washington, DC 20004-2505, Attention: Robert Rosen (Robert.Rosen@carlyle.com),with a copy (which shall not constitute notice) to Debevoise & Plimpton LLP, 919 Third Avenue, New York, NY 10022, Attention: Paul M. Rodel (pmrodel@debevoise.com).
(b) For purposes of the written opinion contemplated by Section 8(h), this Selling Shareholder is represented by Haynes and Boone, LLP and Maples and Calder. Any notice to this Selling Shareholder as contemplated by Section 13 shall be delivered to NB Verrocchio LP, 325 N. Saint Paul Street, Suite 4900, Dallas, TX 75201, Attention: NB Alternatives Legal (Email: NB.Alts.Legal@nb.com), with a copy (which shall not constitute notice) to Haynes and Boone, LLP, 2323 Victory Avenue, Suite 700, Dallas, Texas 75219, Attention: Matthew L. Fry (Email: matt.fry@haynesboone.com).
(c) This Selling Shareholder is represented by Mayer Brown LLP and Tauil & Chequer Advogados Associado a Mayer Brown.
(d) This Selling Shareholder is represented by Davis Polk & Wardwell LLP and has appointed Pedro Jorge Guterres Quintans Graça and Carlos Henrique Boquimpani de Freitas, and each of them, as the Attorneys-in-Fact for such Selling Shareholder.
7
Schedule III
(a) | Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package |
[Electronic Roadshow dated [●].]
(b) | Information other than the Pricing Prospectus that comprise the Pricing Disclosure Package |
(i) | The initial public offering price per share for the Shares is U.S.$[●] (“Public Offering Price”); [and] |
(ii) | The aggregate number of Shares purchased by the Underwriters is [●]. |
(iii) | [●]. |
(c) | Written Testing-the-Waters Communications |
[None.]
8
Schedule IV
Names of parties signing lock-up agreement
Bruno Augusto Sacchi Zaremba
Edson Gustavo Georgetti Peli
Fernando Cezar Dantas Porfírio Borges
Lywall Salles Filho
Rivadávia Correa Drummond de Alvarenga Neto
Claudia Jordão Ribeiro Pagnano
Mundi Holdings I, L.L.C.
Mundi Holdings II, L.L.C.
Vinci Capital Partners II J Beta Fundo de Investimento Em Participações Multiestratégia
Agresti Investments LLC
Botticelli Investments LLC
Caravaggio Investments LLC
Raffaello Investments LLC
NB Verrocchio LP
Pedro Jorge Guterres Quintans Graça
Carlos Henrique Boquimpani de Freitas
Luiz Gonzaga Victor Foureaux Neto
Ana Paula Rodrigues
Valdir G. Barbosa Sobrinho
Gabriel Simoes Guioto Ribeiro
Raphael Ribeiro Rodrigues
Herminio Kloch
Carlos Fabiano Fistarol
Peter Kim Woo
Erico Coelho Ribeiro
Ricardo Grima
9
Schedule V
Name of Shareholder | Position | ||
Pedro Jorge Guterres Quintans Graça | Chief Executive Officer | ||
Carlos Henrique Boquimpani de Freitas | Chief Financial Officer | ||
Luiz Gonzaga Victor Foureaux Neto | Marketing and Innovation Officer | ||
Ana Paula Rodrigues | People and Management and Services Officer |
Annex V
FORM OF PRESS RELEASE
Vitru Limited
[Date]
Vitru Limited, an exempted company incorporated under the laws of the Cayman Islands with limited liability (the “Company”) announced today that Goldman Sachs & Co. LLC and BofA Securities, Inc., the Global Coordinators in the recent public sale of [●] shares of the Company’s Common Shares, are [waiving] [releasing] a lock-up restriction with respect to [●] shares of the Company’s Common Shares held by [certain officers or directors] [an officer or director] of the Company. The [waiver] [release] will take effect on [●], 2020, and the shares may be sold on or after such date.
This press release is not an offer for sale of the securities in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.
Annex VI
FORM OF LOCK-UP AGREEMENT
[Date]
Goldman Sachs & Co. LLC,
c/o Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282-2198
BofA Securities, Inc.
c/o BofA Securities, Inc.
One Bryant Park
New York, New York 10036
Itau BBA USA Securities, Inc.
c/o Itau BBA USA Securities, Inc.
540 Madison Avenue, 24nd Floor
New York, New York 10022
Morgan Stanley & Co. LLC
c/o Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
Re: Vitru Limited - Lock-Up Agreement
Ladies and Gentlemen:
The undersigned (as listed on Annex A hereto) understands that you, as representatives (the “Representatives”), propose to enter into an underwriting agreement (the “Underwriting Agreement”) on behalf of the several Underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with Vitru Limited, an exempted company incorporated under the laws of the Cayman Islands with limited liability (the “Company”), and the Selling Shareholders named in Schedule II to such agreement, providing for the initial public offering (the “Initial Public Offering”) of common shares of the Company, par value U.S.$0.00005 per share (the “Common Shares”) pursuant to a Registration Statement on Form F-1 filed with the Securities and Exchange Commission. Capitalized terms used but not defined herein shall have the respective meanings given to them in the Underwriting Agreement.
In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, during the period beginning from the date of this lock-up agreement (this “Lock-Up Agreement”) and continuing to and including the date 180 days after the date set forth on the final prospectus used to sell the Shares (the “Lock-Up Period”), the undersigned shall not, directly or indirectly, (i) offer, sell, contract to sell, pledge, grant any option to purchase, lend or otherwise dispose of any Common Shares, or any options or warrants to purchase any Common Shares, or any securities convertible into, exchangeable for or that represent the right to receive Common Shares (such options, warrants or other securities, collectively, “Derivative Instruments”), including without limitation any such Common Shares or Derivative Instruments now owned or hereafter acquired by the undersigned, (ii) engage in any hedging or other transaction or arrangement (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) which is designed to or which reasonably could be expected to lead to or result in a sale, loan, pledge or other disposition (whether by the undersigned or someone other than the undersigned), or transfer of any of the economic consequences of ownership, in whole or in part, directly or indirectly, of any Common Shares or Derivative Instruments, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Common Shares or other securities, in cash or otherwise or (iii) otherwise publicly announce any intention to engage in or cause any action or activity described in clause (i) above or transaction or arrangement described in clause (ii) above. For the avoidance of doubt, the undersigned agrees that the foregoing provisions shall be equally applicable to any issuer-directed or other Common Shares the undersigned may purchase in the Initial Public Offering.
If the undersigned is an officer or director of the Company, (i) Goldman Sachs & Co. LLC and BofA Securities, Inc. (the “Releasing Underwriters”) agree that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of Common Shares, the Releasing Underwriters will notify the Company of the impending release or waiver, and (ii) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two business days before the effective date of the release or waiver. Any release or waiver granted by the Releasing Underwriters hereunder to any such officer or director shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this letter to the extent and for the duration that such terms remain in effect at the time of the transfer.
Notwithstanding the foregoing, and provided that the undersigned is (x) not required to and does not voluntarily effect any public filing or report regarding such transfers described in clauses (i) through (iii), and (y) not required to and does not voluntarily effect any public filing or report regarding such transfers described in clauses (v) through (viii) other than filings under Section 13 of the Exchange Act, the undersigned may transfer the undersigned’s Common Shares, directly or indirectly:
(i) as a bona fide gift or gifts, provided that the donee or donees thereof agree to be bound in writing by the restrictions set forth herein;
(ii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, provided that the trustee of the trust agrees to be bound in writing by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value (for purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin);
(iii) if such transfer occurs by reason of a will or under the laws of descent, or pursuant to statutes governing the effects of a qualified domestic order or divorce settlement, provided that the transferee agrees to be bound in writing by the restrictions set forth herein;
(iv) in transactions relating to the Common Shares or other securities acquired in open market transactions after the completion of the Initial Public Offering, provided that no public filings shall be required or shall be voluntarily made in connection with subsequent sales of Common Shares or other securities acquired in such open market transactions;
(v) after the consummation of the Initial Public Offering, pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction made to all holders of the Company’s share capital involving a change of control of the Company that has been approved by the Company’s board of directors, provided that in the event that such tender offer, merger, consolidation or other such transaction is not completed, the undersigned’s Common Shares shall remain subject to the provisions of this Lock-Up Agreement, and provided further that “change of control” as used herein, shall mean a change in ownership of not less than 50.1% of all of the voting shares of the Company;
(vi) pursuant to the Underwriting Agreement and any reclassification, conversion or exchange in connection with such sale of the Shares;
(vii) as a result of the operation of law, or pursuant to an order of a court or regulatory agency; or
(viii) with the prior written consent of the Releasing Underwriters.
In addition, notwithstanding the foregoing, the undersigned may transfer the undersigned’s Common Shares (i) if the undersigned is an entity, to any subsidiary or “affiliate” (as such term is defined under the Securities Act of 1933, as amended) of such entity (including without limitation, if the undersigned is a fund, to funds under common management or control), (ii) if the undersigned is an entity, as a distribution to direct or indirect partners, members, shareholders or holders of similar equity interests in the undersigned, and (iii) if the undersigned is an individual, to any immediate family member or any entity controlled by the undersigned; provided, however, that in any such case, it shall be a condition to the transfer that the transferee execute an agreement stating that the transferee is receiving and holding such Common Shares subject to the provisions of this Lock-Up Agreement and there shall be no further transfer of such Common Shares except in accordance with this Lock-Up Agreement, and provided further that (1) any such transfer shall not involve a disposition for value and (2) the undersigned is not required to and does not voluntarily effect any public filing or report regarding such transfers other than filings under Section 13 of the Exchange Act.
In addition, notwithstanding the foregoing, this Lock-Up Agreement shall not restrict (i) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Common Shares, provided that (a) such plan does not provide for the transfer of Common Shares during the Lock-Up Period and (b) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made during the Lock-Up Period by or on behalf of the undersigned or the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Common Shares may be made under such plan during the Lock-Up Period or (ii) any third-party pledge in a bona fide transaction as collateral to secure the obligations pursuant to lending or other arrangements between such third parties (or their affiliates or designees) and the undersigned and its affiliates; provided, that (a) any such pledgee or other party shall, upon foreclosure on the pledged Common Shares, execute and deliver an agreement stating that the transferee is receiving and holding such Common Shares subject to the provisions of this Lock-Up Agreement and (b) none of the Company, the undersigned, nor such pledgee or other party shall effect any public filing or report regarding such pledge, foreclosure or otherwise relating to the pledge.
In addition, notwithstanding the foregoing, if the undersigned is a director or officer of the Company, without the prior written consent of the Releasing Underwriters, the undersigned may exercise any rights to purchase, exchange or convert any stock options granted to the undersigned pursuant to the Company’s equity incentive plans referred to in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or any options, warrants or other securities convertible into or exercisable or exchangeable for Common Shares, which options, warrants or other securities are described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, provided that (1) no filings shall be required or made during the Lock-Up Period, (2) the underlying Common Shares continue to be subject to the restrictions set forth in this Lock-Up Agreement, and (3) neither the Company nor the undersigned otherwise voluntarily effects any other public filings, announcements or reports regarding such exercise during the Lock-Up Period.
[The undersigned now has, and, except in the case of permitted transfers as contemplated above, for the duration of this Lock-Up Agreement will have, good and marketable title to the undersigned’s Common Shares, free and clear of all liens, encumbrances, and claims whatsoever.]1 The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Common Shares except in compliance with the foregoing restrictions.
1 To be inserted for lock-up parties other than NB Verrocchio LP, Mundi Holdings I, L.L.C, Mundi Holdings II, L.L.C. and the Vinci Entities.
The Releasing Underwriters agree that should a discretionary release or waiver be granted to any officer or director, or any holder of 1% or more of the Common Shares as measured immediately prior to the Initial Public Offering, other than the undersigned, then the undersigned will be released from the restrictions set forth in this Lock-Up Agreement subject to the same terms and conditions as the releasee and as to the same percentage of Common Shares held by the undersigned as is held by the releasee. The Releasing Underwriters shall provide at least three business days’ written notice to the Chief Financial Officer of the Company prior to the effective date of any such release or waiver under this Lock-Up Agreement (the effective date of such release or waiver, the “Release Date”), stating the percentage of Common Shares held by such person or entity to be released; provided that the failure to provide such notice shall not give rise to any claim or liability against the Releasing Underwriters or the other Underwriters. The Company shall, within four business days thereafter, send written notice to the undersigned stating the same percentage of Common Shares held by the undersigned as is held by the releasee that shall be released from the restrictions set forth herein on the Release Date. Notwithstanding the foregoing, the provisions of this paragraph will not apply (i) if the release or waiver is effected solely to permit a transfer not involving a disposition for value and (ii) if the transferee agrees in writing to be bound by the same terms described in this Lock-Up Agreement to the extent and for the duration that such terms remain in effect at the time of transfer. Notwithstanding any other provisions of this Lock-Up Agreement, if the Releasing Underwriters in their sole judgment determine that a record or beneficial owner of any securities should be granted an early release from this Lock-Up Agreement due to circumstances of an emergency or hardship, then the undersigned shall not have any right to be granted an early release pursuant to the terms of this paragraph.
This Lock-Up Agreement shall automatically terminate, and the undersigned will be released from all obligations hereunder, upon the earliest to occur, if any, of (a) the date on which the Company, or the Representatives on behalf of the Underwriters, advises the other party in writing, prior to the execution of the Underwriting Agreement, that it has determined not to proceed with the Initial Public Offering, (b) termination of the Underwriting Agreement before the closing of the Initial Public Offering, (c) October 31, 2020, in the event that the Underwriting Agreement has not been executed by such date, (d) if the Company files an application to withdraw the Registration Statement with respect to the Initial Public Offering, the date that the Securities and Exchange Commission consents to the withdrawal of the Registration Statement, or (e) the date that NB Verrocchio LP exercises its right to veto the Initial Public Offering pursuant to Section 7.1 of the Shareholders’ Agreement dated June 15, 2018.
The undersigned understands that the Company and the Underwriters are relying upon this Lock-Up Agreement in proceeding toward consummation of the Initial Public Offering. The undersigned further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors, and assigns. This Lock-Up Agreement may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or www.echosign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
The undersigned acknowledges and agrees that the underwriters have not provided any recommendation or investment advice nor have the underwriters solicited any action from the undersigned with respect to the offering of the securities and the undersigned has consulted their own legal, accounting, financial, regulatory and tax advisors to the extent deemed appropriate.
This Lock-Up Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
Very truly yours, | |
Exact Name of Shareholder | |
Authorized Signature | |
Title |
Annex A
Names of parties signing lock-up agreement
Bruno Augusto Sacchi Zaremba
Edson Gustavo Georgetti Peli
Fernando Cezar Dantas Porfírio Borges
Lywall Salles Filho
Rivadávia Correa Drummond de Alvarenga Neto
Claudia Jordão Ribeiro Pagnano
Mundi Holdings I, L.L.C.
Mundi Holdings II, L.L.C.
Vinci Capital Partners II J Beta Fundo de Investimento Em Participações Multiestratégia
Agresti Investments LLC
Botticelli Investments LLC
Caravaggio Investments LLC
Raffaello Investments LLC
NB Verrocchio LP
Pedro Jorge Guterres Quintans Graça
Carlos Henrique Boquimpani de Freitas
Luiz Gonzaga Victor Foureaux Neto
Ana Paula Rodrigues
Valdir G. Barbosa Sobrinho
Gabriel Simoes Guioto Ribeiro
Raphael Ribeiro Rodrigues
Herminio Kloch
Carlos Fabiano Fistarol
Peter Kim Woo
Erico Coelho Ribeiro
Ricardo Grima
Exhibit 3.1
THE COMPANIES LAW (AS REVISED)
EXEMPTED COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
VITRU LIMITED
(adopted by Special Resolution passed on 2 September 2020)
THE COMPANIES LAW (AS REVISED)
EXEMPTED COMPANY LIMITED BY SHARES
AMENDED AND RESTATED MEMORANDUM OF ASSOCIATION
OF
VITRU LIMITED
(adopted by Special Resolution passed on 2 September 2020)
1 | The name of the Company is Vitru Limited. |
2 | The registered office of the Company shall be at the offices of of Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands, or at such other place within the Cayman Islands as the Directors may decide. |
3 | Subject to the following provisions of this Memorandum, the objects for which the Company is established are unrestricted. |
4 | Subject to the following provisions of this Memorandum, the Company shall have and be capable of exercising all the functions of a natural person of full capacity irrespective of any question of corporate benefit, as provided by Section 27(2) of the Companies Law. |
5 | Nothing in this Memorandum shall permit the Company to carry on a business for which a licence is required under the laws of the Cayman Islands unless duly licensed. |
6 | The Company shall not trade in the Cayman Islands with any person, firm or corporation except in furtherance of the business of the Company carried on outside the Cayman Islands; provided that nothing in this clause shall be construed as to prevent the Company effecting and concluding contracts in the Cayman Islands, and exercising in the Cayman Islands all of its powers necessary for the carrying on of its business outside the Cayman Islands. |
7 | The liability of each Shareholder is limited to the amount from time to time unpaid on such Shareholder's shares. |
8 | The share capital of the Company is US$50,000 divided into 1,000,000,000 shares of a nominal or par value of US$0.00005 each, of such class or classes (howsoever designated) and having the rights as the Board may determine from time to time in accordance with Article 4 of the Articles of Association of the Company, PROVIDED THAT, subject to the Law and the Articles of Association, the Company shall have the power to issue all or any part of its capital, whether original, redeemed, increased or reduced, with or without any preference, priority, special privilege or other rights or subject to any postponement of rights or to any condition or restriction whatsoever and so that, unless the conditions of issue shall otherwise expressly provide, every issue of shares, whether stated to be common, preference or otherwise shall be subject to the powers on the part of the Company hereinbefore provided. |
2
9 | The Company may exercise the power contained in the Law to deregister in the Cayman Islands and be registered by way of continuation in another jurisdiction. |
10 | The Shareholders acknowledge and agree that: |
(a) the Shareholders’ Agreements are in full force and effect as of the date of adoption of this Memorandum of Association and the Articles of Association, and shall remain in full force and effect until terminated in accordance with their respective terms;
(b) until the Trigger Date, in the event of any conflict or disagreement between the provisions of the Shareholders’ Agreements and this Memorandum of Association or the Articles of Association, the provisions of the Shareholders’ Agreements shall prevail;
(c) until the Trigger Date, the Shareholders shall take all actions available to them to ensure that the Shareholders’ Agreements control, including voting to amend any conflicting provisions in this Memorandum of Association or the Articles of Association; and
(d) the Shareholders’ Agreements are governed by and construed in accordance with Brazilian law and that any and all disputes arising out of or related to the Shareholders’ Agreements shall be settled in the manner set forth in the Shareholders’ Agreements.
11 | Capitalised terms that are not defined in this Memorandum of Association bear the meaning given in the Articles of Association of the Company. |
3
THE COMPANIES LAW (AS REVISED)
EXEMPTED COMPANY LIMITED BY SHARES
AMENDED AND RESTATED ARTICLES OF ASSOCIATION
OF
VITRU LIMITED
(adopted by Special Resolution passed on 2 September 2020)
1 | Preliminary |
1.1 | The regulations contained in Table A in the First Schedule of the Law shall not apply to the Company and the following regulations shall be the Articles of Association of the Company. |
1.2 | In these Articles: |
(a) | the following terms shall have the meanings set opposite if not inconsistent with the subject or context: |
4
“Clearing House” | a clearing house recognized by the laws of the jurisdiction in which shares in the capital of the Company (or depository receipts thereof) are listed or quoted on a stock exchange or interdealer quotation system in such jurisdiction; |
“Common Shares” | Common Shares and shares of such other classes as may from time to time be designated by the Board pursuant to these Articles as being common shares; |
“Company” | the above named company; |
“Company’s Website” | the website of the Company and/or its web-address or domain name; |
“Designated Stock Exchange” |
the Nasdaq Global Market and any other stock exchange or interdealer quotation system listed in Schedule 4 of the Law on which shares in the capital of the Company are listed or quoted; |
“Directors” | the Directors for the time being of the Company or, as the case may be, those Directors assembled as a Board or as a committee of the Board; |
“Dividend” | includes a distribution or interim dividend or interim distribution; |
“Electronic” | has the same meaning as in the Electronic Transactions Law (as revised); |
“Electronic Communication” | a communication sent by electronic means, including electronic posting to the Company’s Website, transmission to any number, address or internet website (including the SEC’s website) or other electronic delivery methods as otherwise decided and approved by the Board; |
“Electronic Record” | has the same meaning as in the Electronic Transactions Law (as revised); |
“Electronic Signature” | has the same meaning as in the Electronic Transactions Law (as revised); |
“Exchange Act” | the Securities Exchange Act of 1934, as amended of the United States of America; |
“Executed” | includes any mode of execution; |
“Holder” | in relation to any share, the Shareholder whose name is entered in the Register of Shareholders as the holder of the share; |
“Indemnified Person” | every Director, alternate Director, Secretary or other officer for the time being or from time to time of the Company; |
“Independent Director” | a Director who is an independent director as defined in the rules of any Designated Stock Exchange or in Rule 10A-3 under the Exchange Act, as the case may be; |
“Initial Public Offering” | an initial underwritten public offering of Shares pursuant to a registration statement filed in accordance with the Securities Act; |
5
“Islands” | the British Overseas Territory of the Cayman Islands; |
“Law” | the Companies Law (as revised); |
“Memorandum” | the memorandum of association of the Company as from time to time amended; |
“Month” | a calendar month; |
“Neuberger Berman Group” | means the funds and accounts, and other entities associated with, managing or controlling NB Verrocchio LP or any of its affiliates; |
“Nominating and Corporate Governance Committee” |
the nominating and corporate governance committee of the Company formed by the Board pursuant to Article 24 hereof, or any successor of the nominating and corporate governance committee; |
“Officer” | includes a Director and any Secretary; |
“Ordinary Resolution” | a resolution (i) of a duly constituted general meeting of the Company passed by a simple majority of the votes cast by, or on behalf of, the Shareholders entitled to vote present in person or by proxy and voting at the meeting, or (ii) approved in writing by all of the Shareholders entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Shareholders and the effective date of the resolution so adopted shall be the date on which the instrument, or the last of such instruments, if more than one, is executed; |
“Other Indemnitors” | persons or entities other than the Company that may provide indemnification, advancement of expenses and/or insurance to the Indemnified Persons in connection with such Indemnified Persons’ involvement in the management of the Company; |
“Paid up” | paid up as to the par value of the shares and includes credited as paid up; |
“Person” | any individual, corporation, general or limited partnership, limited liability company, joint stock company, joint venture, estate, trust, association, organization or any other entity or governmental entity; |
“Register of Shareholders” | the register of Shareholders required to be kept pursuant to the Law; |
“Seal” | the common seal of the Company including every duplicate seal; |
“SEC” | the Securities and Exchange Commission of the United States of America or any other federal agency for the time being administering the Securities Act; |
“Secretary” | any person appointed by the Directors to perform any of the duties of the secretary of the Company, including a joint, assistant or deputy secretary; |
6
“Securities Act” | the Securities Act of 1933 of the United States of America, as amended, or any similar federal statute and the rules and regulations of the SEC thereunder, all as the same shall be in effect at the time; |
“Share” | a share in the share capital of the Company, and includes stock (except where a distinction between shares and stock is expressed or implied) and includes a fraction of a share; |
“Shareholder” | has the same meaning as "member" in the Law; |
“Shareholders’ Agreements” | means (i) that certain Acordo de Acionistas e Outras Avenças, dated February 29, 2016, by and among Mundi Holdings II, L.L.C (as successor thereunder to Fundo Brasil de Internacionalização de Empresas Fundo de Investimento em Participações II), Mundi Holdings I, L.L.C (as successor thereunder to Miquerinos Fundo de Investimento em Participações), Vinci Capital Partners II J Beta Fundo de Investimento em Participações Multiestratégia, Agresti Investments LLC, Botticelli Investments LLC, Caravaggio Investments LLC and Raffaello Investments LLC (as successors thereunder to Vinci Capital Partners II J Fundo de Investimento em Participações) and the Company (as successor thereunder to Treviso Empreendimentos e Participações S.A.), as amended from time to time, and (ii) that certain Shareholders’ Agreement, dated June 15, 2018, by and among Mundi Holdings II, L.L.C (as successor thereunder to Fundo Brasil de Internacionalização de Empresas Fundo de Investimento em Participações II), Mundi Holdings I, L.L.C (as successor thereunder to Miquerinos Fundo de Investimento em Participações), Vinci Capital Partners II J Beta Fundo de Investimento em Participações Multiestratégia, Agresti Investments LLC, Botticelli Investments LLC, Caravaggio Investments LLC and Raffaello Investments LLC (as successors thereunder to Vinci Capital Partners II J Fundo de Investimento em Participações), NB Verrocchio LP (as successor thereunder to NB Pitman Brazil Fundo de Investimento em Participações Multiestratégia) and the Company (as successor thereunder to Treviso Empreendimentos e Participações S.A.), as amended from time to time; |
“Signed” | includes an electronic signature or a representation of a signature affixed by mechanical means; |
“Special Resolution” | has the same meaning as in the Law (thus requiring a two-thirds majority) and includes a unanimous written resolution of all Shareholders entitled to vote and expressed to be a special resolution; |
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“Subsidiary” | a company is a subsidiary of another company if that other company: (i) holds a majority of the voting rights in it; (ii) is a member of it and has the right to appoint or remove a majority of its board of directors; or (iii) is a member of it and controls alone, pursuant to an agreement with other members, a majority of the voting rights in it; or if it is a subsidiary of a company which is itself a subsidiary of that other company. For the purpose of this definition the expression “company” includes any body corporate established in or outside of the Islands; |
“Treasury Share” | a share held in the name of the Company as a treasury share in accordance with the Law; |
“Trigger Date” | the closing date of the Initial Public Offering; |
“U.S. Person” | a Person who is a citizen or resident of the United States of America; |
“Vinci Group” | means Vinci Capital Partners II J Beta Fundo de Investimento Em Participações Multiestratégia, Agresti Investments LLC, Botticelli Investments LLC, Caravaggio Investments LLC and Raffaello Investments LLC and any of their affiliates; |
“Vinci Director” | means a director appointed by Vinci in accordance with Article 21.1; and |
“Written and in Writing” | includes all modes of representing or reproducing words in visible form including in the form of an electronic record. |
(b) | unless the context otherwise requires, words or expressions defined in the Law shall have the same meanings herein but excluding any statutory modification thereof not in force when these Articles become binding on the Company; |
(c) | unless the context otherwise requires: (i) words importing the singular number shall include the plural number and vice-versa; (ii) words importing the masculine gender only shall include the feminine gender; and (iii) words importing persons only shall include companies or associations or bodies of person whether incorporated or not; |
(d) | the word “may” shall be construed as permissive and the word “shall” shall be construed as imperative; |
(e) | the headings herein are for convenience only and shall not affect the construction of these Articles; |
(f) | references to statutes are, unless otherwise specified, references to statutes of the Islands and, subject to paragraph (b) above, include any statutory modification or re-enactment thereof for the time being in force; and |
(g) | where an Ordinary Resolution is expressed to be required for any purpose, a Special Resolution is also effective for that purpose. |
2 | Formation Expenses |
The Directors may pay, out of the capital or any other monies of the Company, all expenses incurred in or about the formation and establishment of the Company including the expenses of registration.
3 | Situation of offices of the Company |
3.1 | The registered office of the Company shall be at such address in the Islands as the Board shall from time to time determine. |
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3.2 | The Company, in addition to its registered office, may establish and maintain such other offices, places of business and agencies in the Islands and elsewhere as the Board may from time to time determine. |
4 | Shares |
4.1 | (a) | Subject to the rules of any Designated Stock Exchange and to the provisions, if any, in the Memorandum and these Articles, the Board has general and unconditional authority to allot, grant options over, offer or otherwise deal with or dispose of any unissued shares in the capital of the Company without the approval of Shareholders (whether forming part of the original or any increased share capital), either at a premium or at par, with or without preferred, deferred or other special rights or restrictions, whether in regard to dividend, voting, return of capital or otherwise and to such persons, on such terms and conditions, and at such times as the Board may decide, but so that no share shall be issued at a discount, except in accordance with the provisions of the Law. |
(b) | In particular and without prejudice to the generality of paragraph (a) above, the Board is hereby empowered to authorise by resolution or resolutions from time to time and without the approval of Shareholders; |
(i) | the creation of one or more classes or series of preferred shares, to cause to be issued such preferred shares and to fix the designations, powers, preferences and relative participating, optional and other rights, if any, and the qualifications, limitations and restrictions thereof, if any, including, without limitation, the number of shares constituting each such class or series, dividend rights, conversion rights, redemption privileges, voting rights and powers (including full or limited or no voting rights or powers) and liquidation preferences, and to increase or decrease the number of shares comprising any such class or series (but not below the number of shares of any class or series of preferred shares then outstanding) to the extent permitted by law. Without limiting the generality of the foregoing, the resolution or resolutions providing for the establishment of any class or series of preferred shares may, to the extent permitted by law, provide that such class or series shall be superior to, rank equally with or be junior to the preferred shares of any other class or series; |
(ii) | to designate for issuance as Common Shares from time to time any or all of the authorised but unissued shares of the Company which have not at that time been designated by the Memorandum or by the Directors as being shares of a particular class; and |
(iii) | to create one or more further classes of shares which represent common shares for the purposes of Article 5.2. |
(c) | The Company shall not issue shares or warrants to bearer. |
(d) | Subject to the rules of any Designated Stock Exchange, the Board shall have general and unconditional authority to issue options, warrants or convertible securities of similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any class of shares or securities in the capital of the Company to such persons, on such terms and conditions and at such times as the Board may decide. |
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4.2 | Notwithstanding Article 4.1: (i) no non voting Shares shall be issued without such issuance first being approved by an Ordinary Resolution; and (ii) the Company shall not issue participation certificates (partes beneficiárias) or any equivalent securities. |
4.3 | The Company may issue fractions of a share of any class and a fraction of a share shall be subject to and carry the corresponding fraction of liabilities (whether with respect to nominal or par value, premium, contribution, calls or otherwise howsoever), limitations, preferences, privileges, qualifications, restrictions, rights and other attributes of a whole share of that class of shares. |
4.4 | The Company may, in so far as the Law permits, pay a commission to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, or procuring or agreeing to procure subscriptions (whether absolute or conditional) for any shares in the capital of the Company. Such commissions may be satisfied by the payment of cash or the allotment of fully or partly paid up shares or partly in one way and partly in the other. The Company may also, on any issue of shares, pay such brokerage fees as may be lawful. |
4.5 | Except as required by law, no person shall be recognised by the Company as holding any share upon any trust and the Company shall not be bound by or be compelled in any way to recognise (even when having notice thereof) any equitable, contingent, future or partial interest in any share (except only as by these Articles or by law otherwise provided) or any other rights in respect of any share except an absolute right to the entirety thereof in the holder. |
4.6 | (a) | If at any time the share capital is divided into different classes of shares, the rights attached to any class of shares (unless otherwise provided by these Articles or the terms of issue of the shares of that class) may be varied with the consent in writing of the holders of two-thirds of the issued shares of that class or with the sanction of a Special Resolution passed at a separate general meeting of the holders of the shares of that class. To every such separate general meeting, the provisions of these Articles relating to general meetings shall mutatis mutandis apply, but so that the necessary quorum shall be any one or more persons holding or representing by proxy not less than one-third of the issued shares of the class and that any holder of shares of the class present in person or by proxy may demand a poll; |
(b) | For the purposes of Article 4.6, the Directors may treat all classes of shares or any two or more classes of shares as forming one class if they consider that all such classes would be affected in the same way by the proposals under consideration. |
(c) | The rights conferred upon the holders of the shares of any class shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be deemed to be varied by: |
(i) | the creation or issue of further shares ranking pari passu therewith; |
(ii) | by the redemption or purchase of any shares of any class by the Company; |
(iii) | the cancellation of authorised but unissued shares of that class; or |
(iv) | the creation or issue of shares with preferred or other rights including, without limitation, the creation of any class or issue of shares with enhanced or weighted voting rights. |
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4.7 | The Directors may accept contributions to the capital of the Company otherwise than in consideration of the issue of shares and the amount of any such contribution may, unless otherwise agreed at the time such contribution is made, be treated by the Company as a distributable reserve, subject to the provisions of the Law and these Articles. |
5 | Common Shares |
5.1 | Holders of Common Shares have the right to receive notice of, attend, speak and vote at general meetings of the Company. Holders of Common Shares shall at all times vote together as one class on all resolutions submitted to a vote by the Shareholders in general meetings. Each Common Share shall entitle the holder to one (1) vote on all matters subject to a vote at general meetings of the Company. |
5.2 | Without prejudice to any special rights conferred thereby on the holders of any other shares or class of shares established pursuant to the Memorandum and/or these Articles from time to time, holders of Common Shares shall: |
(a) | Be entitled to such dividends as the Board may from time to time declare; |
(b) | In the event of a winding-up or dissolution of the Company, whether voluntary or involuntary or for the purposes of a reorganization or otherwise or upon any distribution of capital, be entitled to the surplus assets of the Company; and |
(c) | Generally be entitled to enjoy all of the rights attaching to shares. |
6 | Share Certificates |
6.1 | A Shareholder shall only be entitled to a share certificate if the Directors resolve that share certificates shall be issued. Share certificates representing Shares, if any, shall be in such form as the Directors may determine. Share certificates shall be signed by one or more Directors or other person authorised by the Directors. The Directors may authorise certificates to be issued with the authorised signature(s) affixed by mechanical process. All certificates for Shares shall be consecutively numbered or otherwise identified and shall specify the Shares to which they relate. All certificates surrendered to the Company for transfer or conversion shall be cancelled and subject to the Articles and, save as provided in Articles 6.3, 7 and 8 below, no new certificate shall be issued until the former certificate representing a like number of relevant Shares shall have been surrendered and cancelled. |
6.2 | Every share certificate of the Company shall bear legends required under the applicable laws, including the Securities Act. |
6.3 | If a share certificate is defaced, worn-out, lost or destroyed, it may be renewed on such terms (if any) as to evidence and indemnity and payment of the expenses reasonably incurred by the Company in investigating evidence as the Directors may determine but otherwise free of charge, and (in the case of defacement or wearing-out) on delivery to the Company of the old certificate. |
7 | Lien |
7.1 | The Company shall have a first and paramount lien on every share (not being a share which is fully paid as to its par value and share premium) for all moneys (whether presently payable or not) payable at a fixed time or called in respect of that share (including any premium payable). The Directors may at any time declare any share to be wholly or in part exempt from the provisions of this Article. The Company’s lien on a share shall extend to any amount in respect of it. |
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7.2 | The Company may sell in such manner as the Directors determine any shares on which the Company has a lien if a sum in respect of which the lien exists is presently payable and is not paid within fourteen (14) clear days after notice has been given to the holder of the share or to the person entitled to it in consequence of the death or bankruptcy of the holder, demanding payment and stating that if the notice is not complied with the shares may be sold. |
7.3 | To give effect to a sale, the Directors may authorise some person to execute an instrument of transfer of the shares sold to, or in accordance with the directions of, the purchaser. The title of the transferee to the shares shall not be affected by any irregularity or invalidity in the proceedings in reference to the sale. |
7.4 | The net proceeds of the sale, after payment of the costs, shall be applied in payment of so much of the sum for which the lien exists as is presently payable, and any residue shall (upon surrender to the Company for cancellation of the certificate for the shares sold, if any, and subject to a like lien for any moneys not presently payable as existed upon the shares before the sale) be paid to the person entitled to the shares at the date of the sale. |
8 | Calls on Shares and Forfeiture |
8.1 | Subject to the terms of allotment, the Directors may make calls upon the Shareholders in respect of any moneys unpaid on their shares (whether in respect of nominal value or premium) and each Shareholder shall (subject to receiving at least fourteen (14) clear days’ notice specifying when and where payment is to be made) pay to the Company as required by the notice the amount called on his shares. A call may be required to be paid by instalments. A call may, before receipt by the Company of any sum due thereunder, be revoked in whole or in part and payment of a call may be postponed in whole or in part. A person upon whom a call is made shall remain liable for calls made upon him notwithstanding the subsequent transfer of the shares in respect of which the call was made. |
8.2 | A call shall be deemed to have been made at the time when the resolution of the Directors authorising the call was passed. |
8.3 | The joint holders of a share shall be jointly and severally liable to pay all calls in respect of the share. |
8.4 | If a call remains unpaid after it has become due and payable, the person from whom it is due and payable shall pay interest on the amount unpaid from the day it became due and payable until it is paid at the rate fixed by the terms of allotment of the share or in the notice of the call or, if no rate is fixed, at an annual rate of ten percent (10%), but the Directors may waive payment of the interest wholly or in part. |
8.5 | An amount payable in respect of a share on allotment or at any fixed date, whether in respect of nominal value or premium or as an instalment of a call, shall be deemed to be a call, and if it is not paid when due, all the provisions of the Articles shall apply as if that amount had become due and payable by virtue of a call. |
8.6 | Subject to the terms of allotment, the Directors may make arrangements on the issue of shares for a difference between the holders in the amounts and times of payment of calls on their shares. |
8.7 | If a call remains unpaid after it has become due and payable, the Directors may give to the person from whom it is due not less than fourteen (14) clear days’ notice requiring payment of the amount unpaid, together with any interest which may have accrued. The notice shall name the place where payment is to be made and shall state that if the notice is not complied with the shares in respect of which the call was made will be liable to be forfeited. |
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8.8 | If the notice is not complied with, any share in respect of which it was given may, before the payment required by the notice has been made, be forfeited by a resolution of the Directors and the forfeiture shall include all dividends or other moneys payable in respect of the forfeited shares and not paid before the forfeiture. |
8.9 | Subject to the provisions of the Law, a forfeited share may be sold, re-allotted or otherwise disposed of on such terms and in such manner as the Directors determine either to the person who was before the forfeiture the holder or to any other person, and at any time before a sale, re-allotment or other disposition, the forfeiture may be cancelled on such terms as the Directors think fit. Where, for the purposes of its disposal a forfeited share is to be transferred to any person, the Directors may authorise any person to execute an instrument of transfer of the share to that person. |
8.10 | A person any of whose shares have been forfeited shall cease to be a Shareholder in respect of them and shall surrender to the Company for cancellation the certificate for the shares forfeited, if any, but shall remain liable to the Company for all moneys which at the date of forfeiture were presently payable by him to the Company in respect of those shares with interest at the rate at which interest was payable on those moneys before the forfeiture or, if no interest was so payable, at an annual rate of ten percent (10%), from the date of forfeiture until payment but the Directors may waive payment wholly or in part or enforce payment without any allowance for the value of the shares at the time of forfeiture or for any consideration received on their disposal. |
8.11 | A statutory declaration by a Director or the Secretary that a share has been forfeited on a specified date shall be conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the share and the declaration shall (subject to the execution of an instrument of transfer if necessary) constitute a good title to the share and the person to whom the share is disposed of shall not be bound to see to the application of the consideration, if any, nor shall his title to the share be affected by any irregularity in or invalidity of the proceedings in reference to the forfeiture or disposal of the share. |
9 | Transfer of Shares |
9.1 | Subject to these Articles, any Shareholder may transfer all or any of his shares by an instrument of transfer in the usual or common form or in a form prescribed by any Designated Stock Exchange or in any other form approved by the Board and may be under hand or, if the transferor or transferee is a Clearing House, by hand or by electronic signature or by such other manner of execution as the Board may approve from time to time. Without prejudice to the generality of the foregoing, title to listed shares of the Company may be evidenced and transferred in accordance with the laws applicable to and the rules and regulations of the Designated Stock Exchange on which such shares are listed. |
9.2 | The instrument of transfer shall be executed by or on behalf of the transferor and the transferee provided that the Board may dispense with the execution of the instrument of transfer by the transferee in any case which it thinks fit in its discretion to do so. Without prejudice to Article 9.1, the Board may also resolve, either generally or in any particular case, upon request by either the transferor or transferee, to accept mechanically executed transfers including, where applicable, in accordance with the laws and rules applicable to the Designated Stock Exchange. The transferor shall be deemed to remain the holder of the share until the name of the transferee is entered in the Register of Shareholders in respect thereof. Nothing in these Articles shall preclude the Board from recognizing a renunciation of the allotment or provisional allotment of any share by the allottee in favour of some other person. |
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9.3 | The Board may in its absolute discretion and without giving any reason therefor, refuse to register a transfer of any share: |
(a) | that is not fully paid up (as to both par value and any premium) to a person of whom it does not approve; |
(b) | issued under any share incentive scheme for employees upon which a restriction on transfer imposed thereby still subsists; |
(c) | to more than four joint holders; or |
(d) | on which the Company has a lien. |
9.4 | Without limiting the generality of Article 9.3, the Board may also decline to recognise any instrument of transfer unless: |
(a) | a fee of such maximum sum as any Designated Stock Exchange may determine to be payable or such lesser sum as the Board may from time to time require is paid to the Company in respect thereof; |
(b) | the instrument of transfer is in respect of only one class of shares; |
(c) | the Shares are fully paid (as to both par value and any premium) and free of any lien; |
(d) | the instrument of transfer is lodged at the registered office or such other place at which the Register of Shareholders is kept in accordance with the Law accompanied by any relevant share certificate(s), if any, and/or such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer (and, if the instrument of transfer is executed by some other person on his behalf, the authority of that person so to do); and |
(e) | if applicable, the instrument of transfer is duly and properly stamped. |
9.5 | If the Directors refuse to register a transfer of a share, they shall within two (2) months after the date on which the transfer was lodged with the Company send to the transferee notice of the refusal. |
9.6 | The registration of transfers of shares or of any class of shares may, after compliance with any notice requirement of any Designated Stock Exchange, be suspended and the Register of Shareholders be closed at such times and for such periods (not exceeding in the whole thirty (30) days in any year) as the Board may determine. |
9.7 | The Company shall be entitled to retain any instrument of transfer which is registered, but any instrument of transfer which the Directors refuse to register shall be returned to the person lodging it when notice of the refusal is given. |
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10 | Transmission of Shares |
10.1 | If a Shareholder dies, the survivor, or survivors where he was a joint holder, and his personal representatives where he was a sole holder or the only survivor of joint holders shall be the only persons recognised by the Company as having any title to his interest; but nothing in these Articles shall release the estate of a deceased Shareholder from any liability in respect of any share which had been jointly held by him. |
10.2 | A person becoming entitled to a share in consequence of the death or bankruptcy of a Shareholder may, upon such evidence being produced as the Directors may properly require, elect either to become the holder of the share or to have some person nominated by him registered as the transferee. If he elects to become the holder he shall give notice to the Company to that effect. If he elects to have another person registered he shall execute an instrument of transfer of the share to that person. All the Articles relating to the transfer of shares shall apply to the notice or instrument of transfer as if it were an instrument of transfer executed by the Shareholder and the death or bankruptcy of the Shareholder had not occurred. |
10.3 | A person becoming entitled to a share by reason of the death or bankruptcy of a Shareholder shall have the rights to which he would be entitled if he were the holder of the share, except that he shall not, before being registered as the holder of the share, be entitled in respect of such share to attend or vote at any meeting of the Company or at any separate meeting of the holders of any class of shares in the Company. |
11 | Changes of Capital |
11.1 | (a) | Subject to and in so far as permitted by the provisions of the Law and these Articles, the Company may from time to time by Ordinary Resolution alter or amend the Memorandum to: |
(i) | increase its share capital by such sum, to be divided into shares of such amount, as the resolution shall prescribe; |
(ii) | consolidate and divide all or any of its share capital into shares of larger amounts than its existing shares; |
(iii) | convert all or any of its paid up shares into stock and reconvert that stock into paid up shares of any denomination; |
(iv) | sub-divide its existing shares, or any of them, into shares of smaller amounts than is fixed by the Memorandum provided that in the subdivision, the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived; and |
(v) | cancel any shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so cancelled. |
(b) | Except so far as otherwise provided by the conditions of issue, the new shares shall be subject to the same provisions with reference to the payment of calls, lien, transfer, transmission, forfeiture and otherwise as the shares in the original share capital. |
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11.2 | Whenever as a result of a consolidation of shares any Shareholders would become entitled to fractions of a share, the Directors may, on behalf of those Shareholders, sell the shares representing the fractions for the best price reasonably obtainable to any person (including, subject to the provisions of the Law, the Company) and distribute the net proceeds of sale in due proportion among those Shareholders, and the Directors may authorise some person to execute an instrument of transfer of the shares to, or in accordance with the directions of, the purchaser. The transferee shall not be bound to see to the application of the purchase money nor shall his title to the shares be affected by any irregularity in or invalidity of the proceedings in reference to the sale. |
11.3 | The Company may by Special Resolution reduce its share capital and any capital redemption reserve in any manner and with and subject to any incident, consent, order or other matter required by law. |
12 | Redemption and Purchase of Own Shares |
12.1 | Subject to the provisions of the Law and these Articles, the Company may: |
(a) | issue shares on terms that they are to be redeemed or are liable to be redeemed at the option of the Company or the Shareholder on such terms and in such manner as the Directors may, before the issue of shares, determine; |
(b) | purchase its own shares (including any redeemable shares) in such manner and on such terms as the Directors may determine and agree with the relevant Shareholder; and |
(c) | make a payment in respect of the redemption or purchase of its own shares in any manner authorised by the Law, including out of capital. |
12.2 | The Directors may, when making a payment in respect of the redemption or purchase of shares, if so authorised by the terms of issue of the shares (or otherwise by agreement with the holder of such shares) make such payment in cash or in specie (or partly in one and partly in the other). |
12.3 | Upon the date of redemption or purchase of a share, the holder shall cease to be entitled to any rights in respect thereof (excepting always the right to receive (i) the price therefor and (ii) any dividend which had been declared in respect thereof prior to such redemption or purchase being effected) and accordingly his name shall be removed from the Register of Shareholders with respect thereto and the share shall be cancelled. |
13 | Treasury Shares |
13.1 | The Directors may, prior to the purchase, redemption or surrender of any Share, determine that such Share shall be held as a Treasury Share. |
13.2 | The Directors may determine to cancel a Treasury Share or transfer a Treasury Share on such terms as they think proper (including, without limitation, for nil consideration). |
14 | Register of Shareholders |
14.1 | The Company shall maintain or cause to be maintained an overseas or local Register of Shareholders in accordance with the Law. |
14.2 | The Directors may determine that the Company shall maintain one or more branch registers of Shareholders in accordance with the Law. The Directors may also determine which Register of Shareholders shall constitute the principal register and which shall constitute the branch register or registers, and to vary such determination from time to time. |
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15 | Closing Register of Shareholders or Fixing Record Date |
15.1 | For the purpose of determining Shareholders entitled to notice of, or to vote at any meeting of Shareholders or any adjournment thereof, or Shareholders entitled to receive payment of any dividend or other distribution, or in order to make a determination of Shareholders for any other purpose, the Directors may provide that the Register of Shareholders shall be closed for transfers for a stated period which shall not in any case exceed thirty (30) days. If the Register shall be so closed for the purpose of determining those Shareholders that are entitled to receive notice of, attend or vote at a meeting of Shareholders, the Register shall be so closed for at least ten (10) clear days immediately preceding such meeting and the record date for such determination shall be the date of the closure of the Register. |
15.2 | In lieu of, or apart from, closing the Register of Shareholders, the Directors may fix, in advance or in arrears, a date as the record date for any such determination of Shareholders entitled to notice of, or to vote at any meeting of the Shareholders or any adjournment thereof, or for the purpose of determining the Shareholders entitled to receive payment of any dividend or other distribution, or in order to make a determination of Shareholders for any other purpose, provided that such a record date shall not exceed forty (40) clear days prior to the date where the determination will be made. |
15.3 | If the Register of Shareholders is not so closed and no record date is fixed for the determination of Shareholders entitled to notice of, or to vote at, a meeting of Shareholders or Shareholders entitled to receive payment of a dividend or other distribution, the date on which notice of the meeting is sent or posted or the date on which the resolution of the Directors resolving to pay such dividend or other distribution is passed, as the case may be, shall be the record date for such determination of Shareholders. When a determination of Shareholders entitled to vote at any meeting of Shareholders has been made as provided in this Article, such determination shall apply to any adjournment thereof. |
16 | General Meetings |
16.1 | An annual general meeting of the Company may at the discretion of the Board be held in the year in which these Articles were adopted and shall be held in each year thereafter at such time as determined by the Board and the Company may, but shall not (unless required by the Law) be obliged to, in each year hold any other general meeting. |
16.2 | The agenda of the annual general meeting shall be set by the Board and shall include the presentation of the Company’s annual accounts and the report of the Directors (if any). |
16.3 | Annual general meetings may be held in any place as the Directors may determine. |
16.4 | All general meetings other than annual general meetings shall be called extraordinary general meetings and the Company shall specify the meeting as such in the notices calling it. |
16.5 | The Directors may, whenever they think fit, convene an extraordinary general meeting of the Company, and they shall on a Shareholders’ requisition in accordance with these Articles forthwith proceed to convene an extraordinary general meeting of the Company. |
16.6 | A Shareholders’ requisition is a requisition of one or more Shareholders holding at the date of deposit of the requisition shares representing in the aggregate not less than one-third of the votes entitled to be cast at general meetings of the Company. |
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16.7 | The Shareholders’ requisition must state the objects of the meeting and must be signed by the requisitionists and deposited at the registered office, and may consist of several documents in like form each signed by one or more requisitionists. |
16.8 | If there are no Directors as at the date of the deposit of the Shareholders’ requisition or if the Directors do not within fourteen (14) days from the date of the deposit of the Shareholders’ requisition duly proceed to convene a general meeting to be held within a further fourteen (14) days, the requisitionists, or any of them representing more than one-half of the total voting rights of all of the requisitionists, may themselves convene a general meeting, but any meeting so convened shall be held no later than the day which falls three (3) months after the expiration of the first said fourteen (14) day period. |
16.9 | A general meeting convened as aforesaid by requisitionists shall be convened in as close to the same manner as possible as that in which general meetings are to be convened by Directors. |
16.10 | Save as set out in Articles 16.1 to 16.9, the Shareholders have no right to propose resolutions to be considered or voted upon at annual general meetings or extraordinary general meetings of the Company. |
17 | Notice of General Meetings |
17.1 | At least ten (10) clear days’ notice specifying the place, the day and the hour of each general meeting and the general nature of such business to be transacted thereat shall be given in the manner hereinafter provided, including, but not limited to, as described in Article 36, or in such other manner (if any) as may be prescribed by Ordinary Resolution, to such persons as are entitled to vote or may otherwise be entitled under these Articles to receive such notices from the Company; provided that a general meeting of the Company shall, whether or not the notice specified in this Article has been given and whether or not the provisions of the Articles regarding general meetings have been complied with, be deemed to have been duly convened if it is so agreed: |
(a) | in the case of an annual general meeting, by all of the Shareholders entitled to attend and vote thereat; and |
(b) | in the case of an extraordinary general meeting, by a majority in number of the Shareholders having a right to attend and vote at the meeting, together holding not less than 95%, in par value of the Shares giving that right. |
17.2 | The accidental omission to give notice of a general meeting to, or the non-receipt of notice of a meeting by, any person entitled to receive notice shall not invalidate the proceedings at that general meeting. |
18 | Proceedings at General Meetings |
18.1 | No business shall be transacted at any meeting unless a quorum is present at the time when the meeting proceeds to business. One or more Shareholders holding not less than one-third in aggregate of the voting power of all Shares in issue and entitled to vote, present in person or by proxy or, if a corporation or other non-natural person, by its duly authorised representative, shall represent a quorum. |
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18.2 | If a quorum is not present within half an hour from the time appointed for the meeting to commence or if during such a meeting a quorum ceases to be present, the meeting, if convened upon a Shareholders’ requisition, shall be dissolved and in any other case it shall stand adjourned and shall reconvene on the same day in the next week at the same time and/or place or to such other day, time and/or place as the Directors may determine, and if at the reconvened meeting a quorum is not present within half an hour from the time appointed for the meeting to commence, the Shareholders present shall be a quorum. |
18.3 | A person may participate in a general meeting by conference telephone or other communications equipment by means of which all the persons participating in the meeting can communicate with each other at the same time. Participation by a Shareholder in a meeting in this manner is treated as presence in person at that meeting and is counted in a quorum and entitled to vote. |
18.4 | The Chairman or in his absence the vice-chairman of the Board (if any) shall preside as chairman of the meeting, but if neither the Chairman nor such vice-chairman (if any) is present within fifteen (15) minutes after the time appointed for holding the meeting and willing to act, the Directors present shall elect one of their number to be chairman and, if there is only one Director present and willing to act, he shall be chairman. If no Director is willing to act as chairman, or if no Director is present within fifteen (15) minutes after the time appointed for holding the meeting, the Shareholders present in person or by proxy and entitled to vote shall choose one of their number to be chairman. |
18.5 | The order of business at each such meeting shall be as determined by the chairman of the meeting. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of the meeting, including, without limitation, the establishment of procedures for the maintenance of order and safety, limitations on the time allotted to questions or comments on the affairs of the Company, restrictions on entry to such meeting after the time prescribed for the commencement thereof, and the opening and closing of the polls. The chairman of the meeting shall announce at each such meeting the date and time of the opening and the closing of the polls for each matter upon which the Shareholders will vote at such meeting. |
18.6 | A Director shall, notwithstanding that he is not a Shareholder, be entitled to attend and speak at any general meeting and at any separate meeting of the holders of any class of shares in the Company. |
18.7 | The chairman of the meeting may, with the consent of any meeting at which a quorum is present (and shall if so directed by the meeting), adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than business which might properly have been transacted at the meeting had the adjournment not taken place. When a meeting is adjourned for fourteen (14) days or more, at least seven (7) clear days’ notice shall be given in the manner herein provided, including, but not limited to, as described in Article 36, specifying the time and place of the adjourned meeting and the general nature of the business to be transacted. Otherwise it shall not be necessary to give any such notice. |
18.8 | At each meeting of the Shareholders, all corporate actions, including the election of Directors, to be taken by vote of the Shareholders (except as otherwise required by applicable law and except as otherwise provided in these Articles) shall be authorised by Ordinary Resolution. Where a separate vote by a class or classes or series is required, save as provided in Article 4.6, the affirmative vote of the majority of Shares of such class or classes or series present in person or represented by proxy at the meeting and voting shall be the act of such class or series (unless provided otherwise in the resolutions providing for the issuance of such class or series). |
18.9 | At any general meeting a resolution put to the vote of the meeting shall be decided on a poll. |
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18.10 | A poll shall be taken in such manner as the chairman directs and he may appoint scrutineers (who need not be Shareholders) and fix a place and time for declaring the result of the poll. The result of the poll shall be deemed to be the resolution of the meeting at which the poll was taken. |
18.11 | In the case of equality of votes, the chairman of the meeting shall be entitled to a casting vote in addition to any other vote he may have. |
18.12 | If for so long as the Company has only one Shareholder: |
(a) | in relation to a general meeting, the sole Shareholder or a proxy for that Shareholder or (if the Shareholder is a corporation) a duly authorised representative of that Shareholder is a quorum and Article 18.1 is modified accordingly; |
(b) | the sole Shareholder may agree that any general meeting be called by shorter notice than that provided for by the Articles; and |
(c) | all other provisions of the Articles apply with any necessary modification (unless the provision expressly provides otherwise). |
19 | Votes of Shareholders |
19.1 | Subject to any rights or restrictions attached to any shares, every Shareholder who (being an individual) is present in person or by proxy or (being a corporation) is present by a duly authorised representative (not being himself a Shareholder entitled to vote) or by proxy, shall on a poll have one vote for every share of which he is the holder. |
19.2 | In the case of joint holders, the vote of the senior joint holder who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders; and seniority shall be determined by the order in which the names of the holders stand in the Register of Shareholders. |
19.3 | A Shareholder in respect of whom an order has been made by any court having jurisdiction (whether in the Islands or elsewhere) in matters concerning mental disorder may vote, by his receiver, curator bonis or other person authorised in that behalf appointed by that court, and any such receiver, curator bonis or other person may vote by proxy. Evidence to the satisfaction of the Directors of the authority of the person claiming to exercise the right to vote shall be received at the registered office of the Company, or at such other place as is specified in accordance with these Articles for the deposit or delivery of forms of appointment of a proxy, or in any other manner specified in these Articles for the appointment of a proxy, not less than forty-eight (48) hours before the time appointed for holding the meeting or adjourned meeting at which the right to vote is to be exercised and in default the right to vote shall not be exercisable. |
19.4 | No Shareholder shall, unless the Directors otherwise determine, be entitled to vote at any general meeting or at any separate meeting of the holders of any class of shares in the Company, either in person or by proxy or by a corporate representative, in respect of any share held by him unless all moneys presently payable by him in respect of that share have been paid. |
19.5 | No objection shall be raised to the qualification of any voter except at the meeting or adjourned meeting at which the vote objected to is tendered, and every vote not disallowed at the meeting shall be valid. Any objection made in due time shall be referred to the chairman of the meeting whose decision shall be final and conclusive. |
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19.6 | Votes may be given either personally or by proxy. Deposit or delivery of a form of appointment of a proxy does not preclude a Shareholder from attending and voting at the meeting or at any adjournment of it, save that only the Shareholder or his proxy may cast a vote. |
19.7 | A Shareholder entitled to more than one vote need not, if he votes, use all his votes or cast all votes he uses the same way. |
19.8 | Subject as set out herein, an instrument appointing a proxy shall be in writing in any usual form or in any other form which the Directors may approve and shall be executed by or on behalf of the appointor save that, subject to the Law, the Directors may accept the appointment of a proxy received in an electronic communication at an address specified for such purpose, on such terms and subject to such conditions as they consider fit. The Directors may require the production of any evidence which they consider necessary to determine the validity of any appointment pursuant to this Article. |
19.9 | Subject to Article 19.10 below, the form of appointment of a proxy and any authority under which it is executed or a copy of such authority certified notarially or in some other way approved by the Directors may: |
(a) | in the case of an instrument in writing, be left at or sent by post to the registered office of the Company or such other place within the Islands or elsewhere as is specified in the notice convening the meeting or in any form of appointment of proxy sent out by the Company in relation to the meeting at any time before the time for holding the meeting or adjourned meeting at which the person named in the form of appointment of proxy proposes to vote; |
(b) | in the case of an appointment of a proxy contained in an electronic communication, where an address has been specified by or on behalf of the Company for the purpose of receiving electronic communications: |
(i) | in the notice convening the meeting; or |
(ii) | in any form of appointment of a proxy sent out by the Company in relation to the meeting; or |
(iii) | in any invitation contained in an electronic communication to appoint a proxy issued by the Company in relation to the meeting; |
be received at such address at any time before the time for holding the meeting or adjourned meeting at which the person named in the form of appointment of proxy proposes to vote;
(c) | in the case of a poll taken more than forty-eight (48) hours after it is demanded, be deposited or delivered as required by paragraphs (a) or (b) of this Article after the poll has been demanded and at any time before the time appointed for the taking of the poll; or |
(d) | where the poll is taken immediately but is taken not more than forty-eight (48) hours after it was demanded, be delivered at the meeting at which the poll was demanded to the chairman of the meeting or to the secretary or to any Director; |
and a form of appointment of proxy which is not deposited or delivered in accordance with this Article or Article 19.10 is invalid.
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19.10 | Notwithstanding Article 19.9 above, the Directors may by way of note to or in any document accompanying the notice of a general meeting (or adjourned meeting) fix the latest time by which the appointment of a proxy must be communicated to or received by the Company (being not more than 48 hours before the relevant meeting). |
19.11 | A vote or poll demanded by proxy or by the duly authorised representative of a corporation shall be valid notwithstanding the previous determination of the authority of the person voting or demanding a poll unless notice of the determination was received by the Company at the registered office of the Company or, in the case of a proxy, any other place specified for delivery or receipt of the form of appointment of proxy or, where the appointment of a proxy was contained in an electronic communication, at the address at which the form of appointment was received, before the commencement of the meeting or adjourned meeting at which the vote is given or the poll demanded or (in the case of a poll taken otherwise than on the same day as the meeting or adjourned meeting) the time appointed for taking the poll. |
19.12 | Any corporation or other non-natural person which is a Shareholder of the Company may in accordance with its constitutional documents, or, in the absence of such provision, by resolution of its directors or other governing body, authorise such person as it thinks fit to act as its representative at any meeting of the Company or of any class of Shareholders, and the person so authorised shall be entitled to exercise the same powers on behalf of the corporation which he represents as the corporation could exercise if it were an individual Shareholder. |
19.13 | If a Clearing House (or its nominee(s)) or depositary (or its nominee(s)) is a Shareholder of the Company, it may, by resolution of its directors or other governing body or by power or attorney, authorise such Person(s) as it thinks fit to act as its representative(s) at any general meeting of the Company or of any class of shareholders of the Company, provided that, if more than one Person is so authorised, the authorisation shall specify the number and class of shares in respect of which such Person is so authorised. A Person so authorised pursuant to this Article shall be entitled to exercise the same powers on behalf of the recognized clearing house (or its nominee(s)) or depositary (or its nominee(s)) which he represents as that recognized clearing house (or its nominee(s)) or depositary (or its nominee(s)) could exercise if it were an individual Shareholder holding the number and class of shares specified in such authorisation. |
20 | Number of Directors and Chairman |
20.1 | Subject to Article 21.4, the Board shall consist of such number of Directors as a majority of the Directors then in office may, with the consent of: (i) The Carlyle Group; and (ii) the Vinci Group, in each case for so long as it enjoys director appointment rights under Article 21.1, determine from time to time (it being understood that The Carlyle Group and the Vinci Group shall consent to an increase in the size of the Board if necessary to accommodate the right of the Neuberger Berman Group to appoint a Director pursuant to Article 21.1), provided that, unless otherwise determined by the Shareholders acting by Special Resolution, the Board shall consist of not less than four (4) Directors and not more than nine (9) Directors; provided, further, that notwithstanding any resolution adopted by the Board or the Shareholders which determines the number of Directors constituting the whole Board, the size of the Board shall not be increased above nine (9) Directors without the consent of each of The Carlyle Group and the Vinci Group so long as The Carlyle Group or the Vinci Group, as applicable, has the right to designate at least one Director pursuant to Article 21.1 (it being understood that The Carlyle Group and the Vinci Group shall consent to an increase in the size of the Board above nine (9) Directors if necessary to accommodate the right of the Neuberger Berman Group to appoint a Director pursuant to Article 21.1). |
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20.2 | The Board of Directors shall have a chairman of the Board of Directors elected and appointed by the Directors. The Directors may also elect a vice-chairman of the Board of Directors. The period for which the Chairman and the vice-chairman shall hold office shall also be determined by the Directors. The Chairman shall preside as chairman at every meeting of the Board of Directors at which he is present. Where the Chairman is not present at a meeting of the Board of Directors, the vice-chairman of the Board of Directors (if any) shall act as chairman, or in his absence, the attending Directors may choose one Director to be the chairman of the meeting. |
21 | Appointment, Disqualification and Removal of Directors |
21.1 | Each of The Carlyle Group and the Vinci Group, for so long as it holds not less than 15 per cent of the voting Shares in issue, shall be entitled to appoint up to two persons to act as Directors by notice in writing addressed to the Company from time to time and the other holders of Shares shall not vote their Shares so as to remove those Directors from office. Each of The Carlyle Group and the Vinci Group, for so long as it holds not less than 5 per cent and not more than 15 per cent of the voting Shares in issue, shall be entitled to appoint one person to act as a Director by notice in writing addressed to the Company from time to time and the other holders of Shares shall not vote their Shares so as to remove those Directors from office. Each of The Carlyle Group and the Vinci Group shall be entitled to remove any of the Directors so appointed at any time by notice in writing addressed to the Company. If (a) the Trigger Date does not occur on or before June 15, 2021 or (b) prior to the Trigger Date, the Company grants the right to appoint a Director (other than an Independent Director) to any Person other than The Carlyle Group or the Vinci Group, then the Neuberger Berman Group shall, for so long as it holds not less than 435,593 Common Shares, be entitled to appoint one person to act as a Director by notice in writing addressed to the Company from time to time and the other holders of Shares shall not vote their Shares so as to remove such Director from office. The Neuberger Berman Group shall be entitled to remove any Director so appointed at any time by notice in writing addressed to the Company. |
21.2 | Each Director shall be appointed for a two-year term, unless they resign, are removed or their office is vacated earlier, provided, however, that such term shall be extended beyond two years in the event that no successor has been appointed (in which case such term shall be extended to the date on which such successor has been appointed). Directors are eligible for re-election. |
21.3 | Any vacancies on the Board arising other than upon the removal of a Director by resolution passed at a general meeting can be filled by the remaining Director(s) (notwithstanding that the remaining Director(s) may constitute fewer than the number of Directors required by Article 20.1 or fewer than is required for a quorum pursuant to Article 28.1). Any such appointment shall be as an interim Director to fill such vacancy until the next annual general meeting of Shareholders (and such appointment shall terminate at the commencement of the annual general meeting). |
21.4 | Additions to the existing Board (subject to the maximum provided for in Article 20.1 and to Article 21.1 above) may be made by Ordinary Resolution. |
21.5 | Prior to the Trigger Date, the Neuberger Berman Group shall be entitled to appoint one person to act as an observer to the Board and any committee of the Board established from time to time. From and after the Trigger Date, for so long as the Neuberger Berman Group holds not less than 5 per cent of the voting Shares in issue, the Neuberger Berman Group shall be entitled to appoint an observer to the Board and any committee of the Board established from time to time. In each case, the observer shall be entitled to attend and speak at all such meetings and receive copies of all board papers as if they were a Director but shall not be entitled to vote on any resolutions proposed at a board meeting. |
21.6 | There is no age limit for Directors of the Company. |
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21.7 | No shareholding qualification shall be required for a Director. A Director who is not a Shareholder shall nevertheless be entitled to receive notice of and to attend and speak at general meetings of the Company. |
21.8 | While any shares of the Company are admitted to trading on a Designated Stock Exchange, the Board must at all times comply with the residency and citizenship requirements of securities laws of the United States applicable to foreign private issuers and shall at no time have a majority of Directors who are U.S. Persons. Notwithstanding any other provision in these Articles, no appointment or election of a U.S. Person as a Director shall be permitted if such appointment or election would have the effect of creating a majority of Directors who are U.S. Persons, and any such appointment or election shall be disregarded for all purposes. |
21.9 | Subject to Article 21.1, Directors may be removed (with or without cause) by Ordinary Resolution of Shareholders. The notice of general meeting must contain a statement of the intention to remove the Director and must be served on the Director not less than ten (10) calendar days before the meeting. The director is entitled to attend the meeting and be heard on the motion for his removal. |
21.10 | The office of a Director shall be vacated automatically if: |
(a) | he or she becomes prohibited by law from being a Director in any jurisdiction; |
(b) | he or she becomes bankrupt or makes any arrangement or composition with his creditors generally; |
(c) | he or she dies or is, in the opinion of all his co-Directors, incapable by reason of mental disorder of discharging his duties as Director; |
(d) | he or she wilfully performs (or fails to perform) any actions that, in the opinion of all his co-Directors, are considered to be a breach of the performance of his or her duties and/or obligations, including: (i) the uninterrupted or repeated omission or refusal to perform the duties and/or obligations established in these Articles or by applicable law; and/or (ii) he or she is unable to comply with such duties and/or obligations as a result of an alcohol or drug addiction; |
(e) | he or she wilfully performs (or fails to perform) any actions that, in the opinion of all his co-Directors, cause material damages to or adversely affects the financial situation or commercial reputation of the Company; |
(f) | he or she resigns his or her office by notice to the Company; or |
(g) | he or she has for more than six (6) months been absent without permission of the Directors from meetings of Directors held during that period and the remaining Directors resolve that his or her office be vacated. |
22 | Alternate Directors |
22.1 | Any Director (but not an alternate Director) may by writing appoint any other Director, or any other person willing to act, to be an alternate Director and by writing may remove from office an alternate Director so appointed by him. |
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22.2 | An alternate Director shall be entitled to receive notice of all meetings of Directors and of all meetings of committees of Directors of which his appointor is a member, to attend and vote at every such meeting at which the Director appointing him is not personally present, to sign any written resolution of the Directors (in place of his appointor) and generally to perform all the functions of his appointor as a Director in his absence. |
22.3 | An alternate Director shall cease to be an alternate Director if his appointor ceases to be a Director. |
22.4 | Any appointment or removal of an alternate Director shall be by written notice to the Company at its registered office, signed by the Director making or revoking the appointment, or in any other manner approved by the Directors. |
22.5 | Subject to the provisions of these Articles, an alternate Director shall be deemed for all purposes to be a Director and shall alone be responsible for his own acts and defaults and shall not be deemed to be the agent of the Director appointing him. |
23 | Powers of Directors |
23.1 | Subject to the provisions of the Law, to the Memorandum and the Articles, to any directions given by Ordinary Resolution and to the listing rules of any Designated Stock Exchange, the business of the Company shall be managed by the Directors who may exercise all the powers of the Company. No alteration of the Memorandum or Articles and no such direction shall invalidate any prior act of the Directors which would have been valid if that alteration had not been made or that direction had not been given. The powers given by this Article shall not be limited by any special power given to the Directors by the Articles and a meeting of Directors at which a quorum is present may exercise all powers exercisable by the Directors. |
23.2 | The Board may exercise all the powers of the Company to raise capital or borrow money and to mortgage or charge all or any part of the undertaking, property and assets (present and future) and uncalled capital of the Company and, subject to the Law, to issue debentures, bonds and other securities, whether outright or as collateral security for any debt, liability or obligation of the Company or of any third party. |
24 | Delegation of Directors' Powers |
24.1 | Subject to these Articles, the Directors may from time to time appoint any Person, whether or not a director of the Company, to hold such office in the Company as the Directors may think necessary for the administration of the Company, including without prejudice to the foregoing generality, the offices of chief executive officer, chief operating officer and chief financial officer, one or more vice presidents, managers or controllers, and for such term and at such remuneration (whether by way of salary or commission or participation in profits or partly in one way and partly in another) and with such powers and duties as the Directors may think fit. |
24.2 | Without limiting the generality of Article 24.1, the Directors may appoint one or more of their body to the office of managing Director or to any other executive office under the Company, and the Company may enter into an agreement or arrangement with any Director for his/her employment, subject to applicable law and any listing rules of the SEC or any Designated Stock Exchange, or for the provision by him of any services outside the scope of the ordinary duties of a Director. Any such appointment, agreement or arrangement may be made upon such terms as the Directors determine and they may remunerate any such Director for his services as they think fit. Any appointment of a Director to an executive office shall terminate automatically if he ceases to be a Director but without prejudice to any claim to damages for breach of the contract of service between the Director and the Company. |
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24.3 | The Directors may, by power of attorney or otherwise, appoint any person to be the agent of the Company for such purposes and on such conditions as they determine, including authority for the agent to delegate all or any of his powers. |
24.4 | Subject to applicable law and the listing rules of any Designated Stock Exchange, the Directors may delegate any of their powers to any committee consisting of one or more Directors. They may also delegate to any executive officer or committee of executive officers such of their powers as they consider desirable to be exercised by him or them. Any such delegation may be made subject to any conditions the Directors may impose, and either collaterally with or to the exclusion of its own powers and may be revoked or altered. Subject to any such conditions, the proceedings of a committee with two or more members shall be governed by the provisions of the Articles regulating the proceedings of Directors so far as they are capable of applying. Where a provision of the Articles refers to the exercise of a power, authority or discretion by the Directors and that power, authority or discretion has been delegated by the Directors to a committee, the provision shall be construed as permitting the exercise of the power, authority or discretion by the committee. |
24.5 | Without limiting the generality of Article 24.4, the Board shall establish a permanent Audit Committee. Where any committees are established, the Board may adopt formal written charters for such committees and, if so, shall review and assess the adequacy of such formal written charters on an annual basis. Each of these committees shall be empowered to do all things necessary to exercise the rights of such committee set forth in these Articles and shall have such powers as the Board may delegate pursuant to Article 24.4 and as required by the rules of the Designated Stock Exchange or applicable law. Each of these committees, if established, shall consist of such number of directors as the Board shall from time to time determine (or such minimum number as may be required from time to time by any Designated Stock Exchange). For so long as any class of Shares is listed on a Designated Stock Exchange, the Audit Committee shall be made up of such number of Independent Directors as is required from time to time by the rules of the Designated Stock Exchange or otherwise required by applicable law. |
24.6 | At least one (1) member of the Audit Committee will be an audit committee financial expert as determined by the rules adopted by the Designated Stock Exchange. Such financial expert shall have a special past employment experience in finance or accounting, requisite professional certification in accounting, or any other comparable experience or background which results in the individual’s financial sophistication |
25 | Remuneration and Expenses of Directors |
25.1 | The Directors shall be entitled to such remuneration as the Board may determine and, unless otherwise determined, the remuneration shall be deemed to accrue from day to day. |
25.2 | Members of the Audit Committee may be paid annual compensation in the form of a fixed salary in such amount as the Board may determine. |
25.3 | A Director who at the request of the Directors goes or resides outside of the Islands, makes a special journey or performs a special service on behalf of the Company may be paid such reasonable additional remuneration (whether by way of salary, percentage of profits or otherwise) and expenses as the Directors may decide. |
25.4 | The Directors may be paid all traveling, hotel and other expenses properly incurred by them in connection with their attendance at meetings of Directors or committees of Directors or general meetings or separate meetings of the holders of any class of shares or of debentures of the Company or otherwise in connection with the discharge of their duties. |
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26 | Directors' Gratuities and Pensions |
The Directors may cause the Company to provide benefits, whether by the payment of gratuities or pensions or by insurance or otherwise, for any existing Director or any Director who has held but no longer holds any executive office or employment with the Company or with any body corporate which is or has been a subsidiary of the Company or a predecessor in business of the Company or of any such subsidiary, and for any member of his family (including a spouse and a former spouse) or any person who is or was dependent on him, and may (as well before as after he ceases to hold such office or employment) contribute to any fund and pay premiums for the purchase or provision of any such benefit.
27 | Directors' Interests |
27.1 | Subject to the Law and listing rules of any Designated Stock Exchange, if a Director has disclosed to the other Directors the nature and extent of any direct or indirect interest which the Director has in any transaction or arrangement with the Company, a Director notwithstanding his office: |
(a) | may be a party to or otherwise interested in any transaction or arrangement with the Company or in which the Company is otherwise interested; |
(b) | may be a Director or other officer of, or employed by, or a party to any transaction or arrangement with, or otherwise interested in, any body corporate promoted by the Company or in which the Company is otherwise interested; and |
(c) | shall not by reason of his office be accountable to the Company for any benefit which he derives from any such office or employment or from any such transaction or arrangement or from any interest in any such body corporate and no such transaction or arrangement shall be liable to be avoided on the ground of any such interest or benefit. |
27.2 | For the purposes of Article 27.1: |
(a) | a general notice given to the Directors to the effect that (1) a Director is a member or officer of a specified company or firm and is to be regarded as having an interest in any transaction or arrangement which may after the date of the notice be made with that company or firm; or (2) a Director is to be regarded as interested in any transaction or arrangement which may after the date of the notice be made with a specified person who is connected with him or her shall be deemed to be a sufficient disclosure that the Director has an interest of the nature and extent so specified; and |
(b) | an interest of which a Director has no knowledge and of which it is unreasonable to expect him to have knowledge shall not be treated as an interest of his. |
27.3 | A Director must disclose any direct or indirect interest in any transaction or arrangement with the Company, and following a declaration being made pursuant to the Articles, subject to any separate requirement for Audit Committee approval under applicable law or the listing rules of any Designated Stock Exchange, and unless disqualified by the chairman of the relevant meeting, a Director may vote in respect of any such transaction or arrangement in which such Director is interested and may be counted in the quorum at such meeting. |
27.4 | Notwithstanding the foregoing, no “Independent Director” (as defined herein) and with respect of whom the Board has determined constitutes an “Independent Director” for purposes of compliance with applicable law or the Company’s listing requirements, shall without the consent of the Audit Committee take any of the foregoing actions or any other action that would reasonably be likely to affect such Director’s status as an “Independent Director” of the Company. |
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28 | Proceedings of Directors |
28.1 | The quorum for the transaction of the business of the Directors shall be a simple majority of the Directors then in office (subject to there being a minimum of two (2) Directors present), provided that, for so long as The Carlyle Group or the Vinci Group, as applicable, has the right to designate Directors pursuant to Article 21.1, such a majority must include at least one Carlyle Director and one Vinci Director. If such a quorum is not present within half an hour from the time appointed for the meeting, or if during a meeting such quorum ceases to be present, the meeting shall stand adjourned to the same day in the next week at the same time and place or at such time and place as determined by the Directors present at such meeting. If a quorum is not present at any such adjourned meeting within half an hour from the time appointed, then the meeting shall proceed. A person who holds office as an alternate Director shall, if his appointor is not present, be counted in the quorum. A Director who also acts as an alternate Director shall, if his appointor is not present, count twice towards the quorum, but one such Director shall not constitute a quorum on his own. |
28.2 | Subject to the provisions of the Articles, the Directors may regulate their proceedings as they determine is appropriate. Questions arising at any meeting shall be decided by a majority of votes. In the case of an equality of votes, the chairman of the meeting shall have a second or casting vote. A Director who is also an alternate Director shall be entitled in the absence of his appointor to a separate vote on behalf of his appointor in addition to his own vote. |
28.3 | A person may participate in a meeting of the Directors or any committee of Directors by conference telephone or other communications equipment by means of which all the persons participating in the meeting can communicate with each other at the same time. Participation by a person in a meeting in this manner is treated as presence in person at that meeting and is counted in a quorum and entitled to vote. |
28.4 | A resolution in writing (in one or more counterparts) signed by all the Directors or all the members of a committee of the Directors (an alternate Director being entitled to sign such a resolution on behalf of his appointor and if such alternate Director is also a Director, being entitled to sign such resolution both on behalf of his appointor and in his capacity as a Director) shall be as valid and effective as if it had been passed at a meeting of the Directors, or committee of Directors as the case may be, duly convened and held. Unless otherwise provided by its terms, such a resolution shall be effective from the date and time of the last signature. |
28.5 | A Director or alternate Director may, and another officer of the Company on the direction of a Director or alternate Director shall, call a meeting of the Directors by at least five (5) clear days’ notice in writing to every Director and alternate Director which notice shall set forth the general nature of the business to be considered unless notice is waived by all the Directors (or their alternates) either at, before or after the meeting is held. To any such notice of a meeting of the Directors all the provisions of the Articles relating to the giving of notices by the Company to the Shareholders shall apply mutatis mutandis. |
28.6 | Notwithstanding Article 28.5, if all Directors so agree to the meeting, a Director or alternate Director may, or other officer of the Company on the direction of a Director or alternate Director may, call a meeting of the Directors on shorter notice than is provided for in Article 28.5 by notice in writing to every Director and alternate Director, which notice shall set forth the general nature of the business to be considered. |
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28.7 | The continuing Directors (or a sole continuing Director, as the case may be) may act notwithstanding any vacancy in their body, but if and so long as their number is reduced below the number fixed by or pursuant to the Articles as the necessary quorum of Directors, the continuing Directors or Director may act for the purpose of increasing the number of Directors to be equal to such fixed number, or of summoning a general meeting of the Company, but for no other purpose. |
28.8 | All acts done by any meeting of the Directors or of a committee of the Directors (including any person acting as an alternate Director) shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment of any Director or alternate Director, and/or that they or any of them were disqualified, and/or had vacated their office and/or were not entitled to vote, be as valid as if every such person had been duly appointed and/or not disqualified to be a Director or alternate Director and/or had not vacated their office and/or had been entitled to vote, as the case may be. |
28.9 | A Director who is present at a meeting of the Directors at which action on any Company matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent from such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Company immediately after the conclusion of the meeting. Such right to dissent shall not apply to a Director who voted in favour of such action. |
29 | Secretary and Other Officers |
The Directors may by resolution appoint a Secretary and may by resolution also appoint such other officers as may from time to time be required upon such terms as to the duration of office, remuneration and otherwise as they may think fit PROVIDED THAT, the Directors may only appoint persons as directors of the Company in accordance with Article 21.3. Such Secretary or other officers need not be Directors and in the case of the other officers may be ascribed such titles as the Directors may decide. The Directors may by resolution remove from that position any Secretary or other officer appointed pursuant to this Article.
30 | Minutes |
The Directors shall cause minutes to be made in books kept for the purposes of recording:
(a) | all appointments of officers made by the Directors; and |
(b) | all resolutions and proceedings of meetings of the Company, of the holders of any class of shares in the Company and of the Directors and of committees of Directors, including the names of the Directors present at each such meeting. |
31 | Seal |
31.1 | The Company may, if the Directors so determine, have a Seal. The Seal shall only be used by the authority of the Directors or of a committee of Directors authorised by the Directors. The Directors may determine who shall sign any instrument to which the Seal is affixed, and unless otherwise so determined every such instrument shall be signed by a Director or by such other person as the Directors may authorise. |
31.2 | The Company may have for use in any place or places outside the Islands a duplicate Seal or Seals, each of which shall be a reproduction of the Seal of the Company and, if the Directors so determine, shall have added on its face the name of every place where it is to be used. |
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31.3 | The Directors may by resolution determine (i) that any signature required by this Article need not be manual but may be affixed by some other method or system of reproduction or mechanical or electronic signature and/or (ii) that any document may bear a printed reproduction of the Seal in lieu of affixing the Seal thereto. |
31.4 | No document or deed otherwise duly executed and delivered by or on behalf of the Company shall be regarded as invalid merely because at the date of the delivery of the deed or document, the Director, Secretary or other officer or person who shall have executed the same or affixed the Seal thereto, as the case may be, for and on behalf of the Company shall have ceased to hold such office and authority on behalf of the Company. |
32 | Dividends |
32.1 | Subject to the provisions of the Law, the Company may by Ordinary Resolution declare dividends (including interim dividends) in accordance with the respective rights of the Shareholders, but no dividend shall exceed the amount recommended by the Directors. |
32.2 | Subject to the provisions of the Law, the Directors may declare dividends in accordance with the respective rights of the Shareholders and authorise payment of the same out of the funds of the Company lawfully available therefor. If at any time the share capital is divided into different classes of shares, the Directors may pay dividends on shares which confer deferred or non-preferred rights with regard to dividends as well as on shares which confer preferential rights with regard to dividends, but no dividend shall be paid on shares carrying deferred or non-preferred rights if, at the time of payment, any preferential dividend is in arrears. The Directors may also pay at intervals settled by them any dividend payable at a fixed rate if it appears that there are sufficient funds of the Company lawfully available for distribution to justify the payment. Provided the Directors act in good faith they shall not incur any liability to the holders of shares conferring preferred rights for any loss they may suffer by the lawful payment of a dividend on any shares having deferred or non-preferred rights. |
32.3 | The Directors may, before recommending or declaring any dividend, set aside out of the funds legally available for distribution such sums as they think proper as a reserve or reserves which shall, at the discretion of the Directors, be applicable for meeting contingencies, or for equalising dividends or for any other purpose to which those funds may be properly applied and pending such application may, at the like discretion, either be employed in the business of the Company or be invested in such investments (other than shares in the capital of the Company) as the Directors may from time to time think fit. |
32.4 | Except as otherwise provided by the rights attached to shares and subject to Article 15, all dividends shall be paid in proportion to the number of shares a Shareholder holds as of the date the dividend is declared; save that (a) if any share is issued on terms providing that it shall rank for dividend as from a particular date, that share shall rank for dividend accordingly; and (b) where the Company has shares in issue which are not fully paid up (as to par value) the Company may pay dividends in proportion to the amount paid up on each share. |
32.5 | The Directors may deduct from a dividend or other amounts payable to a person in respect of a share any amounts due from him to the Company on account of a call or otherwise in relation to a share. |
32.6 | Any Ordinary Resolution or Directors’ resolution declaring a dividend may direct that it shall be satisfied wholly or partly by the distribution of assets and, where any difficulty arises in regard to such distribution, the Directors may settle the same and in particular may issue fractional certificates and fix the value for distribution of any assets and may determine that cash shall be paid to any Shareholder upon the footing of the value so fixed in order to adjust the rights of Shareholders and may vest any assets in trustees. |
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32.7 | Any dividend or other moneys payable on or in respect of a share may be paid by cheque sent by post to the registered address of the person entitled or, if two or more persons are the holders of the share or are jointly entitled to it by reason of the death or bankruptcy of the holder, to the registered address of that one of those persons who is first named in the Register of Shareholders or to such person and to such address as the person or persons entitled may in writing direct. Subject to any applicable law or regulations, every cheque shall be made payable to the order of the person or persons entitled or to such other person as the person or persons entitled may in writing direct and payment of the cheque shall be a good discharge to the Company. Any joint holder or other person jointly entitled to a share as aforesaid may give receipts for any dividend or other moneys payable in respect of the share. |
32.8 | No dividend or other moneys payable in respect of a share shall bear interest against the Company unless otherwise provided by the rights attached to the share. |
32.9 | Any dividend which has remained unclaimed for six years from the date when it became due for payment shall, if the Directors so resolve, be forfeited and cease to remain owing by the Company. |
33 | Financial Year, Accounting Records and Audit |
33.1 | Unless the Directors otherwise prescribe, the financial year of the Company shall end on 31 December in each year and, following the year of incorporation, shall begin on 1 January each year. |
33.2 | The books of account relating to the Company’s affairs shall be kept in such manner as may be determined from time to time by the Directors. The books of account shall be kept at the registered office or at such other place or places as the Directors think fit, and shall always be open to the inspection of the Directors. |
33.3 | No Shareholder shall be entitled to require discovery of or any information with respect to any detail of the Company’s trading or any matter which is or may be in the nature of a trade secret or secret process which may relate to the conduct of the business of the Company and which in the opinion of the Directors it will be inexpedient in the interests of the Shareholders of the Company to communicate to the public. |
33.4 | The Directors may from time to time determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books and corporate records of the Company or any of them shall be open to the inspection of Shareholders not being Directors, and no Shareholder (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by applicable law, the listing rules of any Designated Stock Exchange or authorised by the Directors. |
33.5 | Subject to Articles 33.4, and 33.6 a printed copy of the Directors’ report, if any, accompanied by the consolidated statements of financial position, profit or loss, comprehensive income (loss), cash flows and changes in shareholders’ equity, including every document required by the Law to be annexed thereto, made up to the end of the applicable financial year, shall be sent to the Shareholders before the date of the general meeting and laid before the Company at the annual general meeting held in accordance with Article 16.2, provided that this Article 33.5 shall not require a copy of those documents to be sent to any person whose address the Company is not aware of or to more than one of the joint holders of any shares. |
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33.6 | The requirement to send to a person referred to in Article 33.5 the documents referred to in that Article shall be deemed satisfied where, in accordance with all applicable laws, rules and regulations, including, without limitation, the rules of any Designated Stock Exchange, the Company publishes copies of the documents referred to in Article 33.5 on the Company’s Website, transmits it to SEC’s website or in any other permitted manner (including by sending any other form of electronic communication), and that person has agreed or is deemed by the Company to have agreed to treat the publication or receipt of such documents in such manner as discharging the Company’s obligation to send to him a copy of such documents. |
33.7 | Subject to applicable law and to the rules of any Designated Stock Exchange, the accounts relating to the Company’s affairs shall be audited in such manner as may be determined from time to time by the Directors. |
33.8 | The Directors, having considered the recommendations of the Audit Committee, shall appoint an auditor of the Company who shall hold office until removed from office by a resolution of the Board, and shall fix his or their remuneration. |
34 | Capitalisation of Profits |
34.1 | The Directors may: |
(a) | subject as provided in this Article, resolve to capitalize any undivided profits of the Company not required for paying any preferential dividend (whether or not they are available for distribution) or any sum standing to the credit of the Company’s share premium account or capital redemption reserve; |
(b) | appropriate the sum resolved to be capitalised to the Shareholders who would have been entitled to it if it were distributed by way of dividend and in the same proportions and apply such sum on their behalf either in or towards paying up the amounts, if any, for the time being unpaid on any shares held by them respectively, or in paying up in full unissued shares or debentures of the Company of a nominal amount equal to such sum, and allot the shares or debentures credited as fully paid to those Shareholders, or as they may direct, in those proportions, or partly in one way and partly in the other; |
(c) | resolve that any shares so allotted to any Shareholder in respect of a holding by him of any partly-paid shares rank for dividend, so long as such shares remain partly paid, only to the extent that such partly paid shares rank for dividend; |
(d) | make such provision by the issue of fractional certificates or by payment in cash or otherwise as they determine in the case of shares or debentures becoming distributable under this Article in fractions; and |
(e) | authorise any person to enter on behalf of all the Shareholders concerned into an agreement with the Company providing for the allotment to them respectively, credited as fully paid, of any shares or debentures to which they may be entitled upon such capitalization, any agreement made under such authority being binding on all such Shareholders. |
35 | Share Premium Account |
35.1 | The Directors shall in accordance with Section 34 of the Law establish a share premium account and shall carry to the credit of such account from time to time a sum equal to the amount or value of the premium paid on the issue of any share or capital contributed as described in Article 4.6. |
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35.2 | There shall be debited to any share premium account: |
(a) | on the redemption or purchase of a share the difference between the nominal value of such share and the redemption or purchase price provided always that at the discretion of the Directors such sum may be paid out of the profits of the Company or, if permitted by Section 37 of the Law, out of capital; and |
(b) | any other amounts paid out of any share premium account as permitted by Section 34 of the Law. |
36 | Notices |
36.1 | Except as otherwise provided in these Articles and subject to the rules of any Designated Stock Exchange, any notice or document may be served by the Company or by the Person entitled to give notice to any Shareholder either personally or by posting it airmail or by air courier service in a prepaid letter addressed to such Shareholder at his address as appearing in the Register of Shareholders, or by electronic mail to any electronic mail address such Shareholder may have specified in writing for the purpose of such service of notices, or by advertisement in appropriate newspapers in accordance with the requirements of any Designated Stock Exchange, or by facsimile or by placing it on the Company’s Website. In the case of joint holders of a Share, all notices shall be given to that one of the joint holders whose name stands first in the Register of Shareholders in respect of the joint holding, and notice so given shall be sufficient notice to all the joint holders. |
36.2 | Notices posted to addresses outside the Cayman Islands shall be forwarded by prepaid airmail. |
36.3 | Any notice or other document, if served by: |
(a) | post, shall be deemed to have been served five days after the time when the letter containing the same is posted; |
(b) | facsimile, shall be deemed to have been served upon production by the transmitting facsimile machine of a report confirming transmission of the facsimile in full to the facsimile number of the recipient; |
(c) | recognized courier service, shall be deemed to have been served 48 hours after the time when the letter containing the same is delivered to the courier service; |
(d) | electronic mail, shall be deemed to have been served immediately upon the time of the transmission by electronic mail; or |
(e) | placing it on the Company’s Website, shall be deemed to have been served one (1) hour after the notice or document is placed on the Company’s Website. |
In proving service by post or courier service it shall be sufficient to prove that the letter containing the notice or documents was properly addressed and duly posted or delivered to the courier service.
36.4 | A Shareholder present, either in person or by proxy, at any meeting of the Company or of the holders of any class of shares in the Company shall be deemed to have received notice of the meeting, and, where requisite, of the purpose for which it was called. |
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36.5 | Any notice or document delivered or sent by post to or left at the registered address of any Shareholder in accordance with the terms of these Articles shall notwithstanding that such Shareholder 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 Shareholder 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 Shareholders as the holder of the Share, and such service shall for all purposes be deemed a sufficient service of such notice or document on all Persons interested (whether jointly with or as claiming through or under him) in the Share. |
36.6 | Notice of every general meeting of the Company shall be given to: |
(a) | all Shareholders holding Shares with the right to receive notice and who have supplied to the Company an address, facsimile number or email address for the giving of notices to them; and |
(b) | every Person entitled to a Share in consequence of the death or bankruptcy of a Shareholder, who but for his death or bankruptcy would be entitled to receive notice of the meeting. |
No other Person shall be entitled to receive notices of general meetings
37 | Winding Up |
37.1 | The Board shall have the power in the name and on behalf of the Company to present a petition to the court for the Company to be wound up. |
37.2 | If the Company is wound up, the liquidator may, with the sanction of a Special Resolution and any other sanction required by the Law, divide among the Shareholders in specie the whole or any part of the assets of the Company and may, for that purpose, value any assets and determine how the division shall be carried out as between the Shareholders or different classes of Shareholders. The liquidator may, with the like sanction, vest the whole or any part of the assets in trustees upon such trusts for the benefit of the Shareholders as he with the like sanction determines, but no Shareholder shall be compelled to accept any assets upon which there is a liability. |
37.3 | If the Company shall be wound up and the assets available for distribution amongst the Shareholders as such shall be insufficient to repay the whole of the paid up capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the Shareholders in proportion to the capital paid up, or which ought to have been paid up, at the commencement of the winding up, on the shares held by them respectively. If in a winding up the assets available for distribution amongst the Shareholders shall be more than sufficient to repay the whole of the capital paid up at the commencement of the winding up, the excess shall be distributed pari passu amongst the Shareholders in proportion to the capital paid up at the commencement of the winding up on the shares held by them respectively. This Article is to be without prejudice to the rights of the holders of shares issued upon special terms and conditions. |
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38 | Indemnity |
38.1 | Every Indemnified Person for the time being and from time to time of the Company and the personal representatives of the same shall be indemnified and secured harmless out of the assets and funds of the Company against all actions, proceedings, costs, charges, expenses, losses, damages, liabilities, judgments, fines, settlements and other amounts (including reasonable attorneys’ fees and expenses and amounts paid in settlement and costs of investigation (collectively “Losses”) incurred or sustained by him otherwise than by reason of his own dishonesty, willful default or fraud in or about the conduct of the Company’s business or affairs (including as a result of any mistake of judgment) or in the execution or discharge of his duties, powers, authorities or discretions, including without prejudice to the generality of the foregoing, any Losses incurred by him in defending or investigating (whether successfully or otherwise) any civil, criminal, investigative and administrative proceedings concerning or in any way related to the Company or its affairs in any court whether in the Islands or elsewhere. Such Losses incurred in defending or investigating any such proceeding shall be paid by the Company as they are incurred upon receipt, in each case, of an undertaking by or on behalf of the Indemnified Person to repay such amounts if it is ultimately determined by a non-appealable order of a court of competent jurisdiction that such Indemnified Person is not entitled to indemnification hereunder with respect thereto. |
38.2 | No such Indemnified Person of the Company and the personal representatives of the same shall be liable (i) for the acts, receipts, neglects, defaults or omissions of any other Director or officer or agent of the Company or (ii) by reason of his having joined in any receipt for money not received by him personally or in any other act to which he was not a direct party for conformity or (iii) for any loss on account of defect of title to any property of the Company or (iv) on account of the insufficiency of any security in or upon which any money of the Company shall be invested or (v) for any loss incurred through any bank, broker or other agent or any other party with whom any of the Company’s property may be deposited or (vi) for any loss, damage or misfortune whatsoever which may happen in or arise from the execution or discharge of the duties, powers, authorities or discretions of his office or in relation thereto or (vii) for any loss occasioned by any negligence, default, breach of duty, breach of trust, error of judgement or oversight on such Person’s part, unless he has acted dishonestly, with willful default or through fraud. |
38.3 | The Company hereby acknowledges that certain Indemnified Persons may have certain rights to indemnification, advancement of expenses and/or insurance from or against (other than directors’ and officers’ or similar insurance obtained or maintained by or on behalf of the Company or any of its subsidiaries, including any such insurance obtained or maintained pursuant to Article 38.4 hereof) Other Indemnitors. The Company hereby agrees that: (i) it is the indemnitor of first resort (i.e., its obligations to an Indemnified Person are primary and any obligation of any Other Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such Indemnified Person are secondary); (ii) it shall be required to advance the full amount of expenses incurred by an Indemnified Person and shall be liable for the full amount of all Losses to the extent legally permitted and as required by the terms of these Articles (or any other agreement between the Company and an Indemnified Person) without regard to any rights an Indemnified Person may have against any Other Indemnitors; and (iii) it irrevocably waives, relinquishes and releases any Other Indemnitors from any and all claims against the Other Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Company further agrees that no advancement or payment by any Other Indemnitors on behalf of an Indemnified Person with respect to any claim for which such Indemnified Person has sought indemnification from the Company shall affect the foregoing, and without prejudice to Article 39 below, Other Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnified Person against the Company. For the avoidance of doubt, no Person or entity providing Directors’ or officers’ or similar insurance obtained or maintained by or on behalf of the Company or any of its subsidiaries, including any Person providing such insurance obtained or maintained pursuant to Article 38.4 hereof, shall be an Other Indemnitor. |
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38.4 | The Directors may exercise all the powers of the Company to purchase and maintain insurance for the benefit of a Person who is or was (whether or not the Company would have the power to indemnify such Person against such liability under the provisions of this Article 38 or under applicable law): (a) a Director, alternate Director, Secretary or auditor of the Company or of a company which is or was a subsidiary of the Company or in which the Company has or had an interest (whether direct or indirect); or (b) the trustee of a retirement benefits scheme or other trust in which a person referred to in Article 38.1 is or has been interested, indemnifying him against any liability which may lawfully be insured against by the Company. |
39 | Claims Against the Company |
Notwithstanding Article 38.3, unless otherwise determined by a majority of the Board, in the event that (i) any Shareholder (the “Claiming Party”) initiates or asserts any claim or counterclaim (“Claim”) or joins, offers substantial assistance to or has a direct financial interest in any Claim against the Company and (ii) the Claiming Party (or the third party that received substantial assistance from the Claiming Party or in whose Claim the Claiming Party had a direct financial interest) does not obtain a judgment on the merits in which the Claiming Party prevails, then each Claiming Party shall, to the fullest extent permissible by law, be obligated jointly and severally to reimburse the Company for all fees, costs and expenses (including, but not limited to, all reasonable attorneys’ fees and other litigation expenses) that the Company may incur in connection with such Claim.
40 | Untraceable Shareholders |
40.1 | Without prejudice to the rights of the Company under Article 40.2, the Company may cease sending cheques for dividend entitlements or dividend warrants by post if such cheques or warrants have been left uncashed on two (2) consecutive occasions. However, the Company may exercise the power to cease sending cheques for dividend entitlements or dividend warrants after the first occasion on which such a cheque or warrant is returned undelivered. |
40.2 | The Company shall have the power to sell, in such manner as the Board thinks fit, any shares of a Shareholder who is untraceable, but no such sale shall be made unless: |
(a) | all cheques or warrants in respect of dividends of the shares in question, being not less than three (3) in total number, for any sum payable in cash to the holder of such shares in respect of them sent during the relevant period in the manner authorised by the Articles of the Company have remained uncashed; |
(b) | so far as it is aware at the end of the relevant period, the Company has not at any time during the relevant period received any indication of the existence of the Shareholder who is the holder of such shares or of a person entitled to such shares by death, bankruptcy or operation of law; and |
(c) | the Company, if so required by the rules governing the listing of shares on the Designated Stock Exchange, has given notice to, and caused advertisement in newspapers to be made in accordance with the requirements of, the Designated Stock Exchange of its intention to sell such shares in the manner required by the Designated Stock Exchange, and a period of three (3) months or such shorter period as may be allowed by the Designated Stock Exchange has elapsed since the date of such advertisement. |
For the purposes of the foregoing, the “relevant period” means the period commencing twelve (12) years before the date of publication of the advertisement referred to in this Article 40.2 and ending at the expiry of the period referred to in that paragraph.
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40.3 | To give effect to any such sale the Board may authorise some person to transfer the said shares and an instrument of transfer signed or otherwise executed by or on behalf of such persons shall be as effective as if it had been executed by the registered holder or the person entitled by transmission to such shares, and the purchaser shall not be bound to see to the application of the purchase money nor shall his title to the shares be affected by any irregularity or invalidity in the proceedings relating to the sale. The net proceeds of the sale will belong to the Company and upon receipt by the Company of such net proceeds it shall become indebted to the former Shareholder for an amount equal to such net proceeds. No trust shall be created in respect of such debt and no interest shall be payable in respect of it and the Company shall not be required to account for any money earned from the net proceeds which may be employed in the business of the Company or as it thinks fit. Any sale under this Article shall be valid and effective notwithstanding that the Shareholder holding the shares sold is dead, bankruptcy or otherwise under any legal disability or incapacity. |
41 | Amendment of Memorandum of Articles |
41.1 | Subject to the Law, the Company may by Special Resolution change its name or change the provisions of the Memorandum with respect to its objects, powers or any other matter specified therein. |
41.2 | Subject to the Law and as provided in these Articles, the Company may at any time and from time to time by Special Resolution, alter or amend these Articles in whole or in part. |
42 | Transfer by Way of Continuation |
The Company may by Special Resolution resolve to be registered by way of continuation in a jurisdiction outside the Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing. In furtherance of a resolution adopted pursuant to this Article, the Directors may cause an application to be made to the Registrar of Companies to deregister the Company in the Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing and may cause all such further steps as they consider appropriate to be taken to effect the transfer by way of continuation of the Company.
43 | Disclosure of Information |
The Company may provide Shareholders that are incorporated under Brazilian laws and subject to Brazilian Exchange Commission regulations '"Brazilian Shareholders" or otherwise copies of any and all: (i) agreements entered into by the Company with its related parties; (ii) shareholders’ agreements entered into by the Company; (iii) stock option or other securities-based remuneration programs of the Company; and (iv) any other information required by Brazilian law or the Brazilian Exchange Commission, provided that, in the case of item (iv), it is duly demonstrated by the Brazilian Shareholder in its written request.
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44 | Business Opportunities |
To the fullest extent permitted by applicable law and except as may be otherwise expressly agreed in writing by the Company, on the one hand, and The Carlyle Group, the Vinci Group or the Neuberger Berman Group, on the other hand, the Company, on behalf of itself and its subsidiaries, renounces and waives any interest or expectancy of the Company and its subsidiaries in, or in being offered an opportunity to participate in, directly or indirectly, any potential transactions, matters or business opportunities (including, without limitation, any business activities or lines of business that are the same as or similar to those pursued by, or competitive with, the Company or any of its subsidiaries or any dealings with customers or clients of the Company or any of its subsidiaries) that are from time to time presented to The Carlyle Group, the Vinci Group or the Neuberger Berman Group or any of their respective officers, directors, employees, agents, stockholders, members, partners, affiliates or subsidiaries (other than the Company and its subsidiaries), even if the transaction, matter or opportunity is one that the Company or its subsidiaries might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so. None of The Carlyle Group, the Vinci Group nor the Neuberger Berman Group, nor any of their respective officers, directors, employees, agents, stockholders, members, partners, affiliates or subsidiaries shall be liable to the Company or any of its subsidiaries for breach of any fiduciary or other duty, as a director or officer or otherwise, by reason of the fact that such person pursues, acquires or participates in such business opportunity, directs such business opportunity to another person or fails to present such business opportunity, or information regarding such business opportunity, to the Company or its subsidiaries, unless, in the case of any such person who is a Director or officer of the Company, such business opportunity is expressly offered to such Director or officer in writing solely in his or her capacity as a Director or officer of the Company.
Any person purchasing or otherwise acquiring any interest in any shares of capital stock of the Company shall be deemed to have notice of and have consented to the provisions of this Article 44. Neither the alteration, amendment or repeal of this Article 44, nor the adoption of any provision of this Memorandum inconsistent with this Article 44, nor, to the fullest extent permitted by applicable law, any modification of law, shall eliminate or reduce the effect of this Article 44 in respect of any business opportunity first identified or any other matter occurring, or any cause of action, suit or claim that, but for this Article 44, would accrue or arise, prior to such alteration, amendment, repeal, adoption or modification. If any provision or provisions of this Article 44 shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (a) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article 44 (including, without limitation, each portion of any paragraph of this Article 44 containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (b) to the fullest extent possible, the provisions of this Article 44 (including, without limitation, each such portion of any paragraph of this Article 44 containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Company to protect its directors, officers, employees and agents from personal liability in respect of their good faith service to or for the benefit of the Company to the fullest extent permitted by law. This Article 44 shall not limit any protections or defenses available to, or indemnification or advancement rights of, any director or officer of the Company under this Memorandum, applicable law, any agreement or otherwise.
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Exhibit 5.1
Our ref: FWO/769489-000001/63858476v3
To: | Vitru Limited |
PO Box 309, Ugland House | |
Grand Cayman KY1-1104 | |
Cayman Islands |
8 September 2020
Dear Sirs
Vitru Limited
We have acted as counsel as to Cayman Islands law to Vitru Limited (the "Company") in connection with the Company's registration statement on Form F-1, including all amendments or supplements thereto (including, without limitation, the registration statement filed in accordance with Rule 462(b) of the United States Securities Act of 1933), filed with the United States Securities and Exchange Commission (the "SEC") on the date hereof under the United States Securities Act of 1933, as amended (the "Securities Act") (including its exhibits, the "Registration Statement") related to common shares of US$0.00005 par value each in the capital of the Company (the “Shares”) to be issued and sold by the Company, as well as the common shares of US$0.0005 par value each in the capital of the Company (the "Selling Shareholder Shares") to be sold by the selling shareholders (the "Selling Shareholders") pursuant to an Underwriting Agreement to be entered into among the Company, Goldman Sachs & Co. LLC, BofA Securities, Inc., Itau BBA USA Securities, Inc., Morgan Stanley & Co. LLC, as representatives of the several underwriters named in Schedule 1 thereto (the "Underwriting Agreement"). This opinion letter is given in accordance with the terms of the Legal Matters section of the Registration Statement.
1 | Documents Reviewed |
We have reviewed originals, copies, drafts or conformed copies of the following documents:
1.1 | The certificate of incorporation dated 5 March 2020 and the amended and restated memorandum and articles of association of the Company adopted by special resolution passed on 2 September 2020 (the "Memorandum and Articles") |
1.2 | The written resolutions of the board of directors of the Company dated 7 September 2020 (the "Resolutions") and the corporate records of the Company maintained at its registered office in the Cayman Islands. |
1.3 | A certificate of good standing with respect to the Company issued by the Registrar of Companies dated 7 September 2020 (the "Certificate of Good Standing"). |
1.4 | A certificate from a director of the Company a copy of which is attached to this opinion letter (the "Director's Certificate"). |
1.5 | A draft of the Underwriting Agreement. |
1.6 | The Registration Statement. |
1.7 | A copy of the register of members of the Company dated 7 September 2020 (the "Register of Members"). |
2 | Assumptions |
The following opinions are given only as to, and based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate to the laws of the Cayman Islands which are in force on the date of this opinion letter. In giving the following opinions, we have relied (without further verification) upon the completeness and accuracy, as at the date of this opinion letter, of the Director's Certificate and the Certificate of Good Standing. We have also relied upon the following assumptions, which we have not independently verified:
2.1 | Copies of documents, conformed copies or drafts of documents provided to us are true and complete copies of, or in the final forms of, the originals, and translations of documents provided to us are complete and accurate. |
2.2 | All signatures, initials and seals are genuine. |
2.3 | There is no contractual or other prohibition or restriction (other than as arising under Cayman Islands law) binding on the Company prohibiting or restricting it from entering into and performing its obligations under the Registration Statement or the Underwriting Agreement. |
2.4 | The completeness and accuracy of the Register of Members. |
2.5 | There is nothing under any law (other than the laws of the Cayman Islands) which would or might affect the opinions set out below. Specifically, we have made no independent investigation of the laws of the State of New York or the laws of Brazil. |
2.6 | The Company will receive money or money's worth in consideration for the issue of the Shares, and none of the Shares were or will be issued for less than par value. |
2.7 | The Shares that will be issued and sold pursuant to the Underwriting Agreement will be duly registered, and will continue to be registered, in the Company’s register of members (shareholders). |
2.8 | No invitation has been or will be made by or on behalf of the Company to the public in the Cayman Islands to subscribe for any of the Shares. |
Save as aforesaid we have not been instructed to undertake and have not undertaken any further enquiry or due diligence in relation to the transaction the subject of this opinion letter.
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3 | Opinions |
Based upon, and subject to, the foregoing assumptions and the qualifications set out below, and having regard to such legal considerations as we deem relevant, we are of the opinion that:
3.1 | The Company has been duly incorporated as an exempted company with limited liability and is validly existing and in good standing with the Registrar of Companies under the laws of the Cayman Islands. |
3.2 | Based solely of our inspection of the Register of Members, the Selling Shareholders have valid title to their respective Selling Shareholder Shares and such Selling Shareholder Shares have been duly authorised, legally issued and are fully paid and non-assessable and there are no entries or notations indicating any third party interests, including any security interest as at the date hereof. |
3.3 | The Shares to be issued by the Company as contemplated by the Registration Statement and the Underwriting Agreement have been authorised and when such Shares are issued by the Company in accordance with the Memorandum and Articles and upon payment in full being made therefor as contemplated in the Registration Statement and the Underwriting Agreement and such Shares being entered as fully-paid on the Register of Members of the Company, such Shares will be legally issued, fully-paid and non-assessable. As a matter of Cayman Islands law, a share is only issued when it has been entered in the register of members (shareholders). |
4 | Qualifications |
The opinions expressed above are subject to the following qualifications:
4.1 | To maintain the Company in good standing with the Registrar of Companies under the laws of the Cayman Islands, annual filing fees must be paid and returns made to the Registrar of Companies within the time frame prescribed by law. |
4.2 | Under Cayman Islands law, the register of members (shareholders) is prima facie evidence of title to shares and this register would not record a third party interest in such shares. However, there are certain limited circumstances where an application may be made to a Cayman Islands court for a determination on whether the register of members reflects the correct legal position. Further, the Cayman Islands court has the power to order that the register of members maintained by a company should be rectified where it considers that the register of members does not reflect the correct legal position. As far as we are aware, such applications are rarely made in the Cayman Islands and there are no circumstances or matters of fact known to us on the date of this opinion letter which would properly form the basis for an application for an order for rectification of the register of members of the Company, but if such an application were made in respect of the Shares, then the validity of such shares may be subject to re-examination by a Cayman Islands court. |
4.3 | In this opinion letter, the phrase "non-assessable" means, with respect to the issuance of shares, that a shareholder shall not, in respect of the relevant shares and in the absence of a contractual arrangement, or an obligation pursuant to the memorandum and articles of association, to the contrary, have any obligation to make further contributions to the Company's assets (except in exceptional circumstances, such as involving fraud, the establishment of an agency relationship or an illegal or improper purpose or other circumstances in which a court may be prepared to pierce or lift the corporate veil). |
4.4 | We express no opinion as to the meaning, validity or effect of any references to foreign (i.e. non-Cayman Islands) statutes, rules, regulations, codes, judicial authority or any other promulgations and any references to them in the Registration Statement. |
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We express no view as to the commercial terms of the Registration Statement or the Underwriting Agreement or whether such terms represent the intentions of the parties and make no comment with regard to warranties or representations that may be made by the Company.
We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to our firm under the heading "Legal Matters" in the prospectus included in the Registration Statement. In providing our consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the SEC thereunder.
The opinions in this opinion letter are strictly limited to the matters contained in the opinions section above and do not extend to any other matters. We have not been asked to review and we therefore have not reviewed any of the ancillary documents relating to the Shares and express no opinion or observation upon the terms of any such document.
Yours faithfully
/s/ Maples and Calder
Maples and Calder
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Vitru Limited
PO Box 309, Ugland House
Grand Cayman KY1-1104
Cayman Islands
8 September 2020
To: | Maples and Calder |
PO Box 309, Ugland House | |
Grand Cayman | |
KY1-1104 | |
Cayman Islands |
Dear Sirs
Vitru Limited (the "Company")
I, the undersigned, being duly authorised by the Resolutions, am aware that you are being asked to provide an opinion letter (the "Opinion") in relation to certain aspects of Cayman Islands law. Unless otherwise defined herein, capitalised terms used in this certificate have the respective meanings given to them in the Opinion. I hereby certify that:
1 | The Memorandum and Articles remain in full force and effect and are unamended. |
2 | The Company has not entered into any mortgages or charges over its property or assets other than those entered in the register of mortgages and charges of the Company. |
3 | The Resolutions were duly passed in the manner prescribed in the Company’s memorandum and articles of association in effect at the time (including, without limitation, with respect to the disclosure of interests (if any) by directors of the Company) and have not been amended, varied or revoked in any respect. |
4 | The shareholders of the Company (the "Shareholders") have not restricted the powers of the directors of the Company in any way. |
5 | There is no contractual or other prohibition or restriction (other than as arising under Cayman Islands law) binding on the Company prohibiting or restricting it from entering into and performing its obligations under the Registration Statement. |
6 | The directors of the Company at the date of Resolutions and at the date of this certificate were and are as follows: Andre Street de Aguiar, Ali Mazanderani, Thomas A. Patterson, Roberto Moses Thompson Motta, Silvio José Morais, and Luciana Ibiapina Lira Aguia. |
7 | The authorised share capital of the Company is US$50,000 divided into 1,000,000,000 shares of a nominal or par value of US$0.00005 each, of such class or classes (howsoever designated) and having the rights as the Board may determine from time to time in accordance with Article 4 of the Articles of Association of the Company. |
8 | The issued share capital of the Company prior to the issue of the Shares is 17,058,053 Common Shares of a par value of US$0.00005 each, which have been issued as fully paid and non assessable. |
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9 | The minute book and corporate records of the Company as maintained at its registered office in the Cayman Islands and made available to you are complete and accurate in all material respects, and all minutes and resolutions filed therein represent a complete and accurate record of all meetings of the Shareholders and directors (or any committee thereof) of the Company (duly convened in accordance with the Memorandum and Articles) and all resolutions passed at the meetings or passed by written resolution or consent, as the case may be. |
10 | Prior to, at the time of, and immediately following the approval of the transactions the subject of the Registration Statement the Company was, or will be, able to pay its debts as they fell, or fall, due and has entered, or will enter, into the transactions the subject of the Registration Statement for proper value and not with an intention to defraud or wilfully defeat an obligation owed to any creditor or with a view to giving a creditor a preference. |
11 | Each director of the Company considers the transactions contemplated by the Registration Statement to be of commercial benefit to the Company and has acted in good faith in the best interests of the Company, and for a proper purpose of the Company, in relation to the transactions which are the subject of the Opinion. |
12 | The Company has received or will receive money or money's worth in consideration for the issue of the Shares and none of the Shares will be issued for less than par value. |
13 | To the best of my knowledge and belief, having made due inquiry, the Company is not the subject of legal, arbitral, administrative or other proceedings in any jurisdiction. Nor have the directors or Shareholders taken any steps to have the Company struck off or placed in liquidation, nor have any steps been taken to wind up the Company. Nor has any receiver been appointed over any of the Company's property or assets. |
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I confirm that you may continue to rely on this certificate as being true and correct on the day that you issue the Opinion unless I shall have previously notified you in writing personally to the contrary.
Signature: | /s/ Edson Gustavo Georgette Peli | |
Name: | Edson Gustavo Georgette Peli | |
Title: | Director |
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Exhibit 10.2
This Indemnity Agreement is made on the [•] day of [•] 2020.
Between:
(1) | Vitru Limited, an exempted company incorporated in the Cayman Islands (the "Company"); and |
(2) | [●], a director and/or officer of the Company (the "Indemnitee"). |
Whereas:
(A) | The Indemnitee serves as a director and/or officer of the Company. |
(B) | The Indemnitee will perform valuable services to the Company. |
(C) | The substantial increase in corporate litigation subjects directors and officers to expensive litigation risks at the same time that the availability of directors’ and officers’ liability insurance has been severely limited. |
(D) | It is a condition to the appointment of the Indemnitee as a director and/or officer of the Company that the Company indemnify the Indemnitee so as to provide him with the maximum possible protection permitted by law. |
(E) | The Company wishes to indemnify the Indemnitee on the terms of this Agreement. |
Now it is agreed as follows:
1 | Definitions |
In this Agreement the following capitalised words and expressions shall have the following meanings:
1.1 | In this Agreement: |
(a) | the term "Proceeding" shall include any threatened, pending or completed action, suit, arbitration, alternative dispute resolution mechanism, investigation, inquiry, administrative hearing or proceeding, whether brought by or in the right of the Company or otherwise and whether of a civil, criminal, administrative, regulatory or investigative nature and whether formal or informal, including any appeal therefrom, and the term "decided in a Proceeding" shall mean a decision by a court, arbitrator(s), hearing officer or other judicial agent having the requisite legal authority to make such a decision, which decision has become final and from which no appeal or other review proceeding is permissible; |
(b) | the term "Expenses" shall include, but is not limited to, all losses, liabilities, damages, judgments, fines, penalties, awards, amounts paid in settlement (including all interest, taxes, assessments and other charges in connection therewith) by or on behalf of the Indemnitee, expenses of investigations, judicial or administrative proceedings or appeals, reasonable attorney’s fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and disbursements and any expenses of establishing a right to indemnification under this Agreement; and |
(c) | the terms "Director" and "Director of the Company" shall include the Indemnitee’s service at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise as well as a director or officer of the Company. |
2 | Indemnity of Director |
Subject only to the limitations set forth in Clause 3, the Company hereby agrees to indemnify and hold harmless the Indemnitee in respect of and to pay on behalf of the Indemnitee all Expenses actually and reasonably incurred by the Indemnitee because of any claim or claims made against him in a Proceeding by reason of the fact that he is or was a Director of the Company, in each case whether or not serving in such capacity as a Director of the Company at the time any liability or Expense is incurred for which indemnification, reimbursement or advancement of expenses can be provided under this Agreement.
If the Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for a portion of any Expenses but not for the total amount thereof, the Company shall nevertheless indemnify the Indemnitee for such portion.
Without limiting the foregoing, in the event any Proceeding is initiated by the Indemnitee, the Company or any other person to enforce or interpret this Agreement or any rights of the Indemnitee to indemnification or advancement of Expenses, or any other related obligations of the Indemnitee, under the Company’s articles of association or instruments or any other agreement to which the Indemnitee or the Company is party, Cayman Islands or any other applicable law or any liability insurance policy, to the fullest extent allowable under applicable law, the Company shall indemnify the Indemnitee against Expenses incurred by the Indemnitee or on the Indemnitee’s behalf in connection with such proceeding in proportion to the success achieved by the Indemnitee in such Proceeding, as determined by the court presiding over such Proceeding.
3 | Limitations on Indemnity |
The Company shall not be obligated under this Agreement to make any payment of Expenses to the Indemnitee if:
(a) | such payment is prohibited by applicable law; |
(b) | such payment is actually made to the Indemnitee under an insurance policy, except in respect of any excess beyond the amount of payment under such insurance; |
(c) | the Indemnitee is indemnified by the Company otherwise than pursuant to this Agreement; |
(d) | such payment would result in the Indemnitee gaining any personal profit or advantage to which he or she was not legally entitled; and |
(e) | it is decided in a Proceeding that such payment is brought about or contributed to by the dishonesty, wilful default or actual fraud of the Indemnitee seeking payment hereunder; however, notwithstanding the foregoing, the Indemnitee shall be indemnified under this Agreement as to any claims upon which suit may be brought against him by reason of any alleged dishonesty on his part, unless it shall be decided in a Proceeding that he committed acts of active and deliberate dishonesty with actual dishonest purpose and intent, and which acts were material to the cause of action so adjudicated. |
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4 | Advance Payment of Costs |
4.1 | Expenses incurred by the Indemnitee in defending a claim against him in a Proceeding shall be paid by the Company as incurred and in advance of the final disposition of such Proceeding and without regard to whether the Indemnitee will ultimately be entitled to be indemnified for such Expenses and without regard to whether any determination as to whether indemnification of the Indemnitee is proper in the circumstances has been made. |
4.2 | The Company agrees that for purposes of any advancement of Expenses for which the Indemnitee has made a demand to the Company, all Expenses included in such demand that are certified by affidavit of the Indemnitee’s counsel as being reasonable shall be presumed conclusively to be reasonable. |
4.3 | The Indemnitee hereby agrees and undertakes to repay such amounts advanced by the Company if it shall be decided in a Proceeding that he is not entitled to be indemnified by the Company pursuant to this Agreement or otherwise. Such repayment obligation shall be unsecured and shall not bear interest. |
4.4 | If a claim under this Agreement is not paid by the Company, or on its behalf, within thirty (30) days after a written claim has been received by the Company, the Indemnitee may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim and if successful in whole or in part, the Indemnitee shall also be entitled to be paid the Expenses of prosecuting such claim. |
5 | Enforcement |
The Company expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on it hereby in order to induce the Indemnitee to serve as a Director of the Company, and the Company acknowledges that the Indemnitee is relying upon this Agreement in serving as a Director of the Company, provided that nothing contained herein shall be construed as giving the Indemnitee any right to be retained as a director or in the employ of the Company. For the avoidance of doubt, the indemnification and advancement of Expenses provided under this Agreement shall continue as to the Indemnitee even though such Indemnitee may have ceased to be a director or officer of the Company.
6 | 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 papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
7 | Procedure for Indemnification; Notification and Defense of Claim. |
7.1 | Promptly after receipt by Indemnitee of notice of the commencement of any action, suit or proceeding, Indemnitee shall, if a claim in respect thereof is to be made against the Company hereunder, notify the Company in writing of the commencement thereof. The failure to promptly notify the Company of the commencement of the action, suit or proceeding, or of Indemnitee’s request for indemnification, will not relieve the Company from any liability that it may have to Indemnitee hereunder, except to the extent the Company is actually and materially prejudiced in its defense of such action, suit or proceeding as a result of such failure. To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request therefor including such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to enable the Company to determine whether and to what extent Indemnitee is entitled to indemnification. |
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7.2 | With respect to any action, suit or proceeding of which the Company is so notified as provided in this Agreement, the Company shall, subject to the last two sentences of this paragraph, be entitled to assume the defense of such action, suit or proceeding, with counsel reasonably acceptable to Indemnitee, upon the delivery to Indemnitee of written notice of its election to do so. After delivery of such notice, approval of such counsel by Indemnitee and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any subsequently-incurred fees of separate counsel engaged by Indemnitee with respect to the same action, suit or proceeding unless the employment of separate counsel by Indemnitee has been previously authorized in writing by the Company. Notwithstanding the foregoing, if Indemnitee, based on the advice of his or her counsel, shall have reasonably concluded (with written notice being given to the Company setting forth the basis for such conclusion) that, in the conduct of any such defense, there is or is reasonably likely to be a conflict of interest or position between the Company and Indemnitee with respect to a significant issue, then the Company will not be entitled, without the written consent of Indemnitee, to assume such defense. In addition, the Company will not be entitled, without the written consent of Indemnitee, to assume the defense of any claim brought by or in the right of the Company. |
7.3 | To the fullest extent permitted by applicable law, the Company’s assumption of the defense of an action, suit or proceeding in accordance with paragraph 7.2 above will constitute an irrevocable acknowledgement by the Company that any loss and liability suffered by Indemnitee and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement by or for the account of Indemnitee incurred in connection therewith are indemnifiable by the Company under Section 2 of this Agreement unless such Indemnitee is ineligible for indemnification pursuant to Section 3. |
7.4 | The determination whether to grant Indemnitee’s indemnification request shall be made promptly and in any event within 60 days following the Company’s receipt of a request for indemnification in accordance with Section 7.1. If the Company determines that Indemnitee is entitled to such indemnification or, as contemplated by paragraph 7.3 above, the Company has acknowledged such entitlement, the Company will make payment to Indemnitee of the indemnifiable amount within such 60-day period. If the Company is not deemed to have so acknowledged such entitlement or the Company’s determination of whether to grant Indemnitee’s indemnification request shall not have been made within such 60-day period, the requisite determination of entitlement to indemnification shall, subject to Section 3, and to the fullest extent permitted by law, nonetheless be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law. |
7.5 | In the event that (i) the Company determines in accordance with this Section 7 that Indemnitee is not entitled to indemnification, in whole or in part, under this Agreement, (ii) the Company fails to respond or make a determination of entitlement to indemnification required by law within 60 days following receipt of a request for indemnification as described above, (iii) payment of indemnification is not made within such 60-day period, (iv) advancement of expenses is not timely made in accordance with Section 4, or (v) the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or proceeding designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be provided to Indemnitee hereunder, Indemnitee shall be entitled to an adjudication in any court of competent jurisdiction of his or her entitlement to such indemnification or advancement of expenses. Indemnitee’s expenses (including attorneys’ fees) incurred in connection with successfully establishing Indemnitee’s right to indemnification or advancement of expenses, in whole or in part, in any such proceeding or otherwise shall also be indemnified by the Company to the fullest extent permitted by applicable law. |
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8 | Contribution |
8.1 | The Company hereby agrees to fully indemnify and hold the Indemnitee harmless from any claims of contribution which may be brought by officers, directors or employees of the Company, other than the Indemnitee, who may be jointly liable with the Indemnitee. |
8.2 | To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to the Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying the Indemnitee, shall contribute to the amount of Expenses incurred by the Indemnitee in connection with any Proceeding 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 as a result of the event(s) and/or transaction(s) giving cause to such Proceeding and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and the Indemnitee in connection with such event(s) and/or transaction(s). |
9 | Notice |
9.1 | Notice to the Company shall be given at its principal office and shall be directed to the Company’s chief executive officer (or such other address as the Company shall designate in writing to the Indemnitee from time to time). |
9.2 | Notice shall be deemed received if (i) delivered by hand, on the date so delivered, or (ii) sent by overnight courier, on the next business day after being so sent, or (iii) sent by facsimile, on the date so sent, or (iv) if sent by e-mail, upon receipt of a confirmation of receipt e-mail. |
10 | Directors and Officers Liability Insurance |
10.1 | So long as the Company maintains liability insurance for any directors, officers, employees or agents of any such person, the Company shall ensure that the Indemnitee is covered by such insurance in such a manner as to provide the Indemnitee the same rights and benefits as are accorded to the most favorably insured of the Company’s then current directors and officers. If at any date (i) such insurance ceases to cover acts and omissions occurring during all or any part of the period of the Indemnitee serving as a Director of the Company or (ii) the Company no longer maintains any such insurance, the Company shall ensure that Indemnitee is covered, with respect to acts and omissions prior to such date, for at least six years (or such shorter period as is available on commercially reasonable terms) from such date, by other directors and officers liability insurance, in amounts and on terms (including the portion of the period of the Indemnitee serving as a Director of the Company) no less favorable to Indemnitee than the amounts and terms of the liability insurance maintained by the Company on the date hereof. |
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10.2 | Upon receipt of notice of a Proceeding pursuant to Section 8.1, the Company shall give or cause to be given prompt notice of such Proceeding to all insurers providing liability insurance in accordance with the procedures set forth in all applicable or potentially applicable policies. The Company shall thereafter take all necessary action to cause such insurers to pay all amounts payable in accordance with the terms of such policies, unless the Company shall have paid in full all indemnification, advancement and other obligations payable to the Indemnitee under this Agreement. |
11 | Saving Clause |
If this Agreement or any portion thereof shall be invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee to the full extent permitted by any applicable portion of this Agreement that shall not have been invalidated or by any other applicable law.
12 | Indemnification Hereunder Not Exclusive |
Nothing herein shall be deemed to diminish or otherwise restrict the Indemnitee’s right to indemnification under any provision of the constitutional documents of the Company, under Cayman Islands law, any other agreement, any vote of shareholders or directors or any liability insurance policy; provided that the obligation of the Company hereunder shall be primary and the obligations of such other indemnitors secondary.
13 | Coverage and Continuation of Indemnification |
13.1 | The indemnification under this Agreement is intended to and shall extend to the Indemnitee’s service as a Director prior to and after the date of the Agreement. |
13.2 | The indemnification under this Agreement shall continue as to the Indemnitee even though he may have ceased to be a Director and shall inure to the benefit of the heirs and personal representatives of the Indemnitee. |
14 | Successors and Assigns |
This Agreement shall be binding upon the Company and its successors and assigns, and inure to the benefit of the Indemnitee and Indemnitee’s heirs, legal representatives and assigns.
15 | Counterparts |
This Agreement may be executed in any number of counterparts, each of which shall constitute the original.
16 | Applicable Law |
The terms and conditions of this Agreement and the rights of the parties hereunder shall be governed by and construed in all respects in accordance with the laws of the Cayman Islands. The parties to this Agreement hereby irrevocably agree that the courts of the Cayman Islands shall have exclusive jurisdiction in respect of any dispute, suit, action, arbitration or proceedings which may arise out of or in connection with this Agreement and waive any objection to such proceedings in the courts of the Cayman Islands on the grounds of venue or on the basis that they have been brought in an inconvenient forum.
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17 | Entire Agreement |
This agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof.
[Remainder of page left intentionally blank]
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In witness whereof the parties hereto have entered into this Agreement on the day and year first above written.
SIGNED for and on behalf of | ) | |
Vitru Limited | ) | |
by: | ) | |
) | ||
Authorised Signatory | ||
SIGNED by: | ) | |
) | ||
) | ||
) | ||
[●] |
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Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT
VITRU LIMITED
dated as of September [●], 2020
Exhibit A — Joinder Agreement
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of [●], 2020 by and among Vitru Limited, a Cayman Islands exempted company (the “Issuer”), Mundi Holdings I and Mundi Holdings II (collectively, “Carlyle”), Vinci Capital Partners II J Beta Fundo de Investimento Em Participações Multiestratégia, Agresti Investments LLC, Botticelli Investments LLC, Caravaggio Investments LLC and Raffaello Investments LLC (collectively, “Vinci” and, together with Carlyle, the “Principal Investors” and each, a “Principal Investor”) and NB Verrocchio LP (“Neuberger” and, together with Carlyle and Vinci, each, an “Investor” and collectively, the “Investors”), and any Person who becomes a party hereto pursuant to Section 10(e). Capitalized terms used herein shall have the meaning assigned to such terms in the text of this Agreement or in Section 1.
WHEREAS, the Parties desire to provide the Holders with rights to registration under the Securities Act of Registrable Securities, on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises hereinafter set forth, the Parties agree as follows:
AGREEMENT
1. Definitions and Interpretations
(a) Definitions. As used in this Agreement, the following capitalized terms shall have the following respective meanings:
“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with, such person as of the date on which, or at any time during the period for which, the determination of affiliation is being made (including any investment fund the primary investment advisor to which is such Person or an Affiliate thereof); provided, that for purposes of this Agreement, no Holder shall be deemed an Affiliate of the Issuer or any of its Subsidiaries.
“Agreement” has the meaning given to such term in the Preamble, as the same may be amended, supplemented or restated from time to time.
“Automatic Shelf Registration Statement” has the meaning given to such term in Section 3(f)(iii).
“Board” means the Board of Directors of the Issuer.
“Business Day” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by law to be closed in New York City.
“Common Shares” means any and all common shares, par value US$0.00005 per share, of the Issuer.
“control” (including the terms “controlling”, “controlled by” and “under common control with”), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, as trustee or executor, by contract or otherwise.
“Covered Person” has the meaning given to such term in Section 6(a).
“Demand Follow-Up Notice” has the meaning given to such term in Section 3(a).
“Demand Notice” has the meaning given to such term in Section 3(a).
“Demand Registration” has the meaning given to such term in Section 3(a).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor statute thereto and the rules and regulations of the SEC promulgated thereunder.
“FINRA” means the Financial Industry Regulatory Authority.
“Free Writing Prospectus” has the meaning given to such term in Section 4(a).
“Holdback Period” means, except as otherwise set forth in Section 10(b), in connection with a registered offering covered by this Agreement, ninety (90) days after and during the seven (7) days before, the effective date of the related Registration Statement or, in the case of a takedown from a Shelf Registration Statement that is a Shelf Underwritten Offering, ninety (90) days after the date of the Prospectus supplement filed with the SEC in connection with such takedown and during such prior period (not to exceed seven (7) days) as the Issuer has given reasonable written notice to the holder of Registrable Securities; provided, however, that references in this definition to “ninety (90) days” shall be replaced with (i) “forty-five (45) days” for the second offering covered by this Agreement and (ii) “thirty (30) days” for the third and subsequent offerings covered by this Agreement; provided further, that notwithstanding this definition, a shorter period of time may be negotiated in the lock-up agreement for the Underwritten Offering if all Holders are subject to the same reduced lock-up period.
“Holder” means (i) any of the Investors, (ii) any other Person entitled to incidental or piggyback registration rights hereunder upon entering into a Joinder Agreement substantially in the form of Exhibit A hereto or (iii) any direct or indirect transferee of a Holder who has acquired Registrable Securities from a Holder and who has entered into a Joinder Agreement substantially in the form of Exhibit A hereto.
“Indemnified Party” has the meaning given to such term in Section 6(c).
“Indemnifying Party” has the meaning given to such term in Section 6(c).
“Indemnitors” has the meaning given to such term in Section 6(h).
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“Inspector” has the meaning given to such term in Section 4(p).
“Investor” and “Investors” have the meaning given to such terms in the Preamble.
“Issuer” has the meaning given to such term in the Preamble.
“Losses” has the meaning given to such term in Section 6(a).
“Opt-Out Notice” has the meaning given to such term in Section 10(c).
“Parties” means the parties to this Agreement.
“Permitted Transferee” means, with respect to any Holder, (x) an Affiliate (other than any “portfolio company” described below) of such Holder, and (y) in the case of a Holder that is a partnership, limited liability company or any foreign equivalent thereof, any partner, member or foreign equivalent thereof of such Holder (provided that such Transfer is made in a pro rata distribution in accordance with the applicable partnership agreement, limited liability company agreement or foreign equivalent thereof, as the case may be); provided, however, that any such transferee shall agree in a writing in the form attached as Exhibit A hereto to be bound by and to comply with all applicable provisions of this Agreement; provided, further, however, that in no event shall (A) the Issuer or any of its Subsidiaries or (B) any “portfolio company” (as such term is customarily used among institutional investors) of any Holder or any entity controlled by a portfolio company of any Holder constitute a “Permitted Transferee”.
“Person” means any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated organization, government or any department or agency thereof or any other entity.
“Principal Investor” and “Principal Investors” have the meaning given to such terms in the Preamble.
“Prospectus” means the prospectus included in any Registration Statement (including, without limitation, a prospectus that discloses information previously omitted from a prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, relating to Registrable Securities, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such prospectus.
“Records” has the meaning given to such term in Section 4(p).
“Registrable Securities” means any Common Shares held by a Holder and any Common Shares issued or issuable, directly or indirectly, with respect to the Common Shares held by a Holder by way of exchange thereof or stock dividends, stock splits or in connection with a combination of shares, reclassification, recapitalization, merger, consolidation or other reorganization. As to any particular Registrable Securities, once issued such securities shall cease to be Registrable Securities when (i) they are disposed of pursuant to an effective Registration Statement under the Securities Act, (ii) they are sold to the public pursuant to Rule 144 (or other exemption from registration under the Securities Act), (iii) they shall have ceased to be outstanding, or (iv) they have been sold in a private transaction in which the transferor’s rights under this Agreement are not assigned to the transferee of the securities.
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“Registration Statement” means any registration statement of the Issuer filed with the SEC under the Securities Act which covers any of the Registrable Securities pursuant to the provisions of this Agreement, including any Prospectus, Free Writing Prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits and all material incorporated by reference or deemed to be incorporated by reference in such registration statement.
“Rule 144” means Rule 144 under the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
“Rule 158” means Rule 158 under the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
“Rule 163B” means Rule 163B under the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
“Rule 405” means Rule 405 under the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
“Rule 415” means Rule 415 under the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
“Rule 424” means Rule 424 under the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
“Rule 430A” means Rule 430A under the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
“Rule 430B” means Rule 430B under the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
“Rule 433” means Rule 433 under the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
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“SEC” means the U.S. Securities and Exchange Commission or any other federal agency at the time administering the Securities Act or the Exchange Act.
“Securities Act” means the Securities Act of 1933, as amended, and any successor statute thereto and the rules and regulations of the SEC promulgated thereunder.
“Shelf Registration Statement” has the meaning given to such term in Section 3(f)(i).
“Shelf Underwritten Offering” has the meaning given to such term in Section 3(g).
“Short-Form Registration” has the meaning given to such term in Section 3(f)(i).
“Subsidiary” means (i) any corporation of which a majority of the securities entitled to vote generally in the election of directors thereof, at the time as of which any determination is being made, are owned by another entity, either directly or indirectly and (ii) any joint venture, general or limited partnership, limited liability company or other legal entity in which an entity is the record or beneficial owner, directly or indirectly, of a majority of the voting interests or the general partner.
“Suspension Event” has the meaning given to such term in Section 3(e).
“Take-Down Notice” has the meaning given to such term in Section 3(g).
“Testing-the-Waters Communication” has the meaning given to such term in Section 6(a).
“Transfer” means, directly or indirectly, to sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any Common Shares beneficially owned by a Person or any interest in any Common Shares beneficially owned by a Person. In the event that any Holder that is a corporation, partnership, limited liability company or other legal entity (other than an individual, trust or estate) ceases to be, directly or indirectly, controlled by the Person controlling such Holder as of the date hereof or a Permitted Transferee thereof, such event shall be deemed to constitute a “Transfer” subject to the restrictions on Transfer contained or referenced herein; provided, however that, with respect to any Investor or any Affiliate thereof that is an investment fund, a change of control of the direct or indirect general partner or investment advisor of such investment fund shall not constitute a Transfer.
“Underwritten Offering” means an offering registered under the Securities Act in which Common Shares are sold to one or more underwriters for reoffering to the public.
“WKSI” has the meaning given to such term in Section 3(f)(iii).
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(b) Interpretations. For purposes of this Agreement, unless otherwise noted:
(i) All references to laws, rules, regulations and forms in this Agreement shall be deemed to be references to such laws, rules, regulations and forms, as amended from time to time or, to the extent replaced, the comparable successor laws, rules, regulations and forms thereto in effect at the time.
(ii) All references to agencies, self-regulatory organizations or governmental entities in this Agreement shall be deemed to be references to the comparable successor thereto.
(iii) All references to agreements and other contractual instruments shall be deemed to be references to such agreements or other instruments as they may be amended, waived, supplemented or modified from time to time.
(iv) All references to any amount of securities (including Registrable Securities) shall be deemed to be a reference to such amount measured on an as-converted or as-exercised basis.
2. Incidental Registrations.
(a) Right to Include Registrable Securities. If the Issuer determines to register its Common Shares under the Securities Act (other than pursuant to a Registration Statement filed by the Issuer on Form F-4 or S-8, or any successor or other forms promulgated for similar purposes or filed solely in connection with an exchange offer or any employee benefit or dividend reinvestment plan), whether or not for sale for its own account, in a manner which would permit registration of Registrable Securities for sale to the public under the Securities Act, it will, at each such time, give prompt written notice to all Holders of Registrable Securities of its intention to do so and of such Holders’ rights under this Section 2. Upon the written request of any such Holder made within fifteen (15) days after the receipt of any such notice (which request shall specify the Registrable Securities intended to be disposed of by such Holder and the intended method or methods of disposition thereof), the Issuer will use its reasonable best efforts to effect the registration under the Securities Act of all Registrable Securities which the Issuer has been so requested to register by the Holders thereof; provided that (i) if, at any time after giving written notice of its intention to register any securities and prior to the effective date of the Registration Statement filed in connection with such registration, the Issuer shall determine for any reason not to proceed with the proposed registration of the securities to be sold by it, the Issuer may, at its election, give written notice of such determination to each Holder of Registrable Securities and, thereupon, shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from its obligation to pay the expenses in connection therewith) without prejudice to the rights of the Holders to request that such registration be effected as a registration under Section 3, and (ii) if such registration involves an Underwritten Offering, all Holders of Registrable Securities requesting to be included in the Issuer’s registration must sell their Registrable Securities to the underwriters selected by the Issuer on the same terms and conditions as apply to the Issuer and the other Holders selling Registrable Securities in such Underwritten Offering, with such differences, including any with respect to indemnification, as may be customary or appropriate in combined primary and secondary offerings, provided, further that (x) no Holder shall be required to make any representations or warranties other than those related to title and ownership of, and power and authority to transfer, shares and as to the accuracy and completeness of statements made in a Registration Statement, Prospectus or other document in reliance upon, and in conformity with, written information prepared and furnished to the Issuer or the managing underwriter(s) by such Person pertaining exclusively to such Holder and (y) no Holder shall be required to agree to any indemnification obligations on the part of such Holder that are greater than its obligations pursuant to Section 6 hereof. The Issuer shall not be required to maintain the effectiveness of the Registration Statement for a registration requested pursuant to this Section 2(a) beyond the earlier to occur of (i) 180 days after the effective date thereof and (ii) consummation of the distribution by the Holders of the Registrable Securities included in such Registration Statement. Any Holder of Registrable Securities who has elected to sell Registrable Securities in an offering pursuant to this Section 2 shall be permitted to withdraw from such registration by written notice to the Issuer at least two (2) business days prior to the anticipated pricing date.
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(b) Priority in Incidental Registrations. The Issuer shall use reasonable efforts to cause the managing underwriter(s) of a proposed Underwritten Offering to permit Holders of Registrable Securities who have requested to include Registrable Securities in such offering to include in such offering all Registrable Securities so requested to be included on the same terms and conditions as any other shares of capital stock, if any, of the Issuer included in the offering. Notwithstanding the foregoing, if the managing underwriter(s) of such Underwritten Offering have informed the Issuer in writing that in its good faith opinion the total number or dollar amount of securities that such Holders and the Issuer intend to include in such offering is such as to likely have a material adverse effect on the timing, price or distribution of such offering, then there shall be included in such Underwritten Offering the number or dollar amount of Registrable Securities that in the good faith opinion of such managing underwriter(s) can be sold without adversely affecting such offering, and such number of Registrable Securities shall be allocated as follows: first, all securities of the Issuer requested to be included by the Issuer in such registration; second, all securities of the Issuer requested to be included by each Investor and its Affiliates, pro rata among such Holders on the basis of the percentage of Registrable Securities requested to be included in such registration by such Holders; and third, all securities of the Issuer requested to be included by the Holders of Registrable Securities (other than any Investor and its Affiliates) requesting such registration, pro rata among such Holders on the basis of the percentage of the Registrable Securities requested to be included in such registration by such Holders.
3. Registration on Request.
(a) Request by the Demand Party. Subject to Section 3(d), each of the Principal Investors and its Affiliates that is a Holder of Registrable Securities shall have the right to require the Issuer to register, pursuant to the terms of this Agreement, under and in accordance with the provisions of the Securities Act, the number of Registrable Securities of such Holder and its Affiliates requested to be so registered pursuant to this Agreement, in each case by delivering written notice to the Issuer (any such written notice, a “Demand Notice” and any such registration, a “Demand Registration”). Subject to Section 3(d), following receipt of a Demand Notice for a Demand Registration in accordance with this Section 3(a), the Issuer shall use its reasonable best efforts to file a Registration Statement as promptly as practicable, but no later than within forty-five (45) days, and to cause such Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing thereof.
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No Demand Registration shall be deemed to have occurred for purposes of the first sentence of the preceding paragraph if (i) the Registration Statement relating thereto (x) does not become effective, (y) is not maintained effective for the period required pursuant to this Section 3, or (z) the offering of the Registrable Securities pursuant to such Registration Statement is subject to a stop order, injunction, or similar order or requirement of the SEC during such period, (ii) more than 90% of the Registrable Securities requested by the demanding Holder to be included in such registration are not so included pursuant to Section 3(b) or (iii) the conditions to closing specified in any underwriting agreement, purchase agreement or similar agreement entered into in connection with the registration relating to such request are not satisfied (other than as a result of a material default or breach thereunder by such demanding Holder or its Affiliates) or otherwise waived by such demanding Holder.
Within five (5) Business Days after receipt by the Issuer of a Demand Notice in accordance with this Section 3(a), the Issuer shall give written notice (the “Demand Follow-Up Notice”) of such Demand Notice to all other Holders of Registrable Securities and shall, subject to the provisions of Section 3(b) hereof, include in such registration all Registrable Securities with respect to which the Issuer received written requests for inclusion therein within five (5) Business Days after such Demand Follow-Up Notice is given by the Issuer to such Holders.
All requests made pursuant to this Section 3 will specify the number of Registrable Securities to be registered and the intended method or methods of disposition thereof.
The Issuer shall be required to maintain the effectiveness of the Registration Statement with respect to any Demand Registration for a period of at least 180 days after the effective date thereof or such shorter period during which all Registrable Securities included in such Registration Statement have actually been sold; provided, however, that such period shall be extended for a period of time equal to the period the Holder of Registrable Securities refrains from selling any securities included in such Registration Statement at the request of the Issuer or an underwriter of the Issuer pursuant to the provisions of this Agreement.
(b) Priority on Demand Registration. If any of the Registrable Securities registered pursuant to a Demand Registration are to be sold in an Underwritten Offering, and the managing underwriter(s), after consultation with external legal counsel and the Issuer, advise the Holders of such securities that in its good faith opinion the total number or dollar amount of Registrable Securities proposed to be sold in such offering (including, without limitation, securities proposed to be included by other Holders of securities entitled to include securities in such Registration Statement pursuant to incidental or piggyback registration rights) is such as to adversely affect the success of such offering, then there shall be included in such Underwritten Offering the number or dollar amount of Registrable Securities that in the good faith opinion of such managing underwriter(s) can be sold without adversely affecting such offering, and such number of Registrable Securities shall be allocated as follows:
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(i) first, to each Investor and its Affiliates requesting such registration (whether pursuant to a Demand Notice or pursuant to incidental or piggyback registration rights) pro rata among such Holders on the basis of the percentage of Registrable Securities requested to be included in such registration by such Holders, until with respect to each such Holder, all Registrable Securities requested for registration by such Holders have been included in such registration;
(ii) second, among the Holders of Registrable Securities (other than any Investor and its Affiliates) requesting such registration pursuant to incidental or piggyback registration rights, pro rata on the basis of the percentage of Registrable Securities requested to be included in such Registration Statement by such Holders, until, with respect to each such Holder, all Registrable Securities requested for registration by such Holders have been included in such registration; and
(iii) third, the securities for which inclusion in such Demand Registration was requested by the Issuer.
(c) Cancellation of a Demand Registration. Each Holder that submitted a Demand Notice pursuant to a particular offering and the Holders of a majority of the Registrable Securities that are to be registered in a particular offering pursuant to this Section 3 shall have the right, prior to the effectiveness of the Registration Statement, to notify the Issuer that it or they, as the case may be, have determined that the Registration Statement be abandoned or withdrawn, in which event the Issuer shall abandon or withdraw such Registration Statement. Any Holder of Registrable Securities who has elected to sell Registrable Securities in an Underwritten Offering pursuant to this Section 3 (including the Holder who delivered the Demand Notice of such registration) shall be permitted to withdraw from such registration by written notice to the Issuer at least two (2) Business Days prior to the effective date of the Registration Statement filed in connection with such registration, or, in the case of an Underwritten Offering, at least two (2) Business Days prior to the anticipated pricing date.
(d) Limitations on Demand Registrations. The Principal Investors and their Affiliates shall, collectively, be entitled to initiate no more than three (3) Demand Registrations (other than Short-Form Registrations and shelf take-downs to effect a Shelf Underwritten Offering), provided that neither Carlyle or its Affiliates that are Holders of Registrable Securities, on the one hand, nor Vinci or its Affiliates that are Holders of Registrable Securities, on the other hand, may request more than two (2) of such three (3) Demand Registrations, unless otherwise agreed to by Carlyle and Vinci. With respect to each Demand Registration, the Registrable Securities requested to be registered pursuant to Section 3(a) (including, for the avoidance of doubt, the Registrable Securities requested to be registered in addition to the Registrable Securities of the demanding Holder) must represent the lesser of (i) an aggregate offering price of Registrable Securities that is reasonably expected to equal at least US$25,000,000 or (ii) all of the remaining Registrable Securities owned by the demanding Principal Investor and its Affiliates that are Holders of Registrable Securities.
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(e) Postponements in Requested Registrations. If the filing, initial effectiveness or continued use of a Registration Statement, including a Shelf Registration Statement, with respect to a Demand Registration would require the Issuer to make a public disclosure of material non-public information, which disclosure in the good faith judgment of the Issuer (after consultation with external legal counsel) (i) would be required to be made in any Registration Statement so that such Registration Statement would not contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading, (ii) would not be required to be made at such time but for the filing, effectiveness or continued use of such Registration Statement and (iii) would reasonably be expected to have a material adverse effect on the Issuer or its business or on the Issuer’s ability to effect a bona fide material proposed acquisition, disposition, financing, reorganization, recapitalization or similar transaction (collectively, “Suspension Events”), and the Issuer furnishes to the Holders a certificate signed by the Chief Executive Officer or any other senior executive officer of the Issuer stating such, then the Issuer may, upon giving prompt written notice of such action to the Holders participating in such registration, delay the filing or initial effectiveness (but not the preparation) of, or suspend use of, such Registration Statement; provided that (i) the Issuer shall be permitted to do so on only two (2) occasions in any 6-month period for a period not to exceed the earlier of (A) the termination of any such Suspension Event and (B) forty-five (45) days following notice of any such Suspension Event and (ii) the Issuer may not postpone or suspend for periods exceeding, in the aggregate, sixty (60) days during any 12-month period. In the event that the Issuer exercises its rights under the preceding sentence, such Holders agree to suspend, promptly upon receipt of the notice referred to above, the use of any Prospectus relating to such registration in connection with any sale or offer to sell Registrable Securities. Issuer covenants and agrees that it shall not deliver a suspension notice with respect to a suspension period unless all of Issuer’s employees, officers and directors who are subject to Issuer’s insider trading policy, and who are prohibited by the terms thereof from effecting any public sales of securities of Issuer beneficially owned by them, are so prohibited for the duration of such suspension period. If the Issuer so postpones the filing of a Prospectus or the effectiveness of a Registration Statement, the demanding Holder shall be entitled to withdraw such request and, if such request is withdrawn, such registration request shall not count for the purposes of the limitations set forth in Section 3(d). The Issuer shall promptly give the Holders requesting registration thereof pursuant to this Section 3 written notice of any postponement made in accordance with the preceding sentence.
(f) Short-Form Registrations.
(i) The Issuer shall use its reasonable best efforts to qualify for registration on Form F-3 or any comparable or successor form or forms or any similar short-form registration (a “Short-Form Registration”), and, if requested by any Investor or its Affiliates that are Holders of Registrable Securities and available to the Issuer, such Short-Form Registration shall be a “shelf” registration statement providing for the registration of, and the sale on a continuous or delayed basis of, the Registrable Securities, pursuant to Rule 415 or otherwise (a “Shelf Registration Statement”). Each Principal Investor and its Affiliates that are Holders of Registrable Securities shall be entitled to request an unlimited number of Short-Form Registrations, if available to the Issuer, with respect to the Registrable Securities held by such requesting Holder and its Affiliates in addition to the other registration rights provided in Section 2 and this Section 3; provided, however, that the Principal Investors and their Affiliates that are Holders of Registrable Securities may not require the Issuer to effect more than three (3) Short-Form Registrations collectively in any 12-month period, if at least one (1) such Short-Form Registration in such 12-month period was initiated by Carlyle or its Affiliates that are Holders of Registrable Securities and at least one (1) such Short-Form Registration in such 12-month period was initiated by Vinci or its Affiliates that are Holders of Registrable Securities. In addition, Neuberger shall be entitled to request one (1) Short-Form Registration by means of a Shelf Registration Statement, if available to the Issuer, with respect to the Registrable Securities held by Neuberger and its Affiliates. If any Demand Registration is proposed by the demanding Holder to be a Short-Form Registration and an Underwritten Offering, and if the managing underwriter(s) shall advise the Issuer and the Holders that, in its good faith opinion, it is of material importance to the success of such proposed offering to file a registration statement on Form F-1 (or any successor or similar registration statement) or to include in such registration statement information not required to be included in a Short-Form Registration, then the Issuer shall file a registration statement on Form F-1 or supplement the Short-Form Registration as reasonably requested by such managing underwriter(s). No such registration nor any other Short-Form Registration shall count as a Demand Registration for purposes of calculating how many Demand Registrations the Principal Investors and their Affiliates have initiated pursuant to the provisions of Section 3.
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(ii) Upon filing any Short-Form Registration, the Issuer shall use its reasonable best efforts to keep such Short-Form Registration effective with the SEC at all times and to re-file such Short-Form Registration upon its expiration, and to cooperate in any shelf take-down, whether or not underwritten, by amending or supplementing any Prospectus related to such Short-Form Registration as may be reasonably requested by any Investor or any of its Affiliates that is a Holder of Registrable Securities or as otherwise required, until such time as all Registrable Securities that could be sold in such Short-Form Registration have been sold or are no longer outstanding. To the extent that the Issuer becomes ineligible to use Form F-3, the Issuer shall file a “shelf” registration statement on Form F-1 not later than forty-five (45) days after the date of such ineligibility and use its reasonable best efforts to have such registration statement declared effective as promptly as practicable.
(iii) To the extent the Issuer is a well-known seasoned issuer (as defined in Rule 405) (a “WKSI”) at the time any Demand Notice for a Short-Form Registration is submitted to the Issuer and such Demand Notice requests that the Issuer file a Shelf Registration Statement, the Issuer shall file an automatic shelf registration statement (as defined in Rule 405) on Form F-3 (an “Automatic Shelf Registration Statement”) in accordance with the requirements of the Securities Act and the rules and regulations of the SEC thereunder, which covers the number or class of Registrable Securities which are requested to be registered. If registering a number of Registrable Securities, the Issuer shall pay the registration fee for all Registrable Securities to be registered pursuant to an Automatic Shelf Registration Statement at the time of filing of the Automatic Shelf Registration Statement and shall not elect to pay any portion of the registration fee on a deferred basis. The Issuer shall use its reasonable best efforts to remain a WKSI (and not to become an ineligible issuer (as defined in Rule 405)) during the period during which any Automatic Shelf Registration Statement is effective. If at any time following the filing of an Automatic Shelf Registration Statement when the Issuer is required to re-evaluate its WKSI status the Issuer determines that it is not a WKSI, the Issuer shall use its reasonable best efforts to post-effectively amend the Automatic Shelf Registration Statement to a Shelf Registration Statement on Form F-3 or file a new Shelf Registration Statement on Form F-3 or, if such form is not available, Form F-1, have such Shelf Registration Statement declared effective by the SEC and keep such Registration Statement effective during the period during which such Short-Form Registration is required to be kept effective in accordance with Section 3(f)(ii). To the extent that the Issuer is eligible to file an Automatic Shelf Registration Statement and a Principal Investor or any of its Affiliates that is a Holder of Registrable Securities notifies the Issuer that it wishes to engage in a block sale off of such an Automatic Shelf Registration Statement and the Issuer does not have an Automatic Shelf Registration Statement related to the Registrable Securities, the Issuer shall use its commercially reasonable efforts to file an Automatic Shelf Registration Statement within five (5) days of such notification by such Holder or such other period of time as agreed between such Holder and the Issuer to the extent that the five-day filing is impracticable.
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(g) Shelf Take-Downs. At any time that a Shelf Registration Statement covering Registrable Securities is effective, if any Principal Investor or its Affiliates delivers a notice to the Issuer (a “Take-Down Notice”) stating that it intends to effect an Underwritten Offering of all or part of its Registrable Securities included by it on the shelf registration statement (a “Shelf Underwritten Offering”), then the Issuer shall amend or supplement the Shelf Registration Statement as may be necessary in order to enable such Registrable Securities to be distributed pursuant to the Shelf Underwritten Offering (taking into account the inclusion of Registrable Securities by any other Holders pursuant to Section 3(g)(i)). Any Principal Investor and its Affiliates that are Holders of Registrable Securities shall be entitled to request an unlimited number of shelf take-downs to effect a Shelf Underwritten Offering, if available to the Issuer, with respect to the Registrable Securities held by such requesting Holder and its Affiliates in addition to the other registration rights provided in Section 2 and this Section 3. In connection with any Shelf Underwritten Offering:
(i) the Issuer shall also deliver the Take-Down Notice to all other Holders with securities included on such shelf registration statement (which Take-Down Notice shall be held in confidence by such Holders until the offering is publicly disclosed) and permit each such Holder to include its Registrable Securities included on the shelf registration statement in the Shelf Underwritten Offering if such Holder notifies the proposing Holder and the Issuer within (x) three (3) Business Days after distribution or dissemination (including via e-mail, if available) of the Take-Down Notice to such Holder or (y) in the event that such Take-Down Notice is for a block sale (including a block sale off of a Shelf Registration Statement or an effective Automatic Shelf Registration Statement, or in connection with the registration of a Holder’s Registrable Securities under an Automatic Shelf Registration Statement for purposes of effectuating a block sale), two (2) Business Days after distribution or dissemination (including via e-mail, if available) of the Take-Down Notice to such Holder;
(ii) in the event that the underwriter advises such requesting Holder and the Issuer in its good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering is such as to adversely affect the success of such offering (including, without limitation, adversely affect the per share offering price), then the underwriter may limit the number of shares which would otherwise be included in such take-down offering in the same manner as described in Section 3(b) with respect to a limitation of shares to be included in a registration; and
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(iii) If at any time or from time to time, a Principal Investor desires to sell Registrable Securities in an Underwritten Offering pursuant to a Shelf Underwritten Offering, the underwriters, including the managing underwriter, shall be selected by such Principal Investor.
(h) Registration Statement Form. If any registration requested pursuant to this Section 3 which is proposed by the Issuer to be effected by the filing of a Registration Statement on Form F-3 (or any successor or similar short-form registration statement) shall be in connection with an underwritten public offering, and if the managing underwriter(s) shall advise the Issuer that, in its good faith opinion, the use of another form of Registration Statement is of material importance to the success of such proposed offering or is otherwise required by applicable law, then such registration shall be effected on such other form.
(i) Selection of Underwriters. If any Principal Investor or its Affiliates intends that the Registrable Securities requested to be covered by a Demand Registration requested by such Holder shall be distributed by means of an Underwritten Offering, such demanding Holder shall so advise the Issuer as a part of the Demand Notice, and the Issuer shall include such information in the Notice sent by the Issuer to the other Holders with respect to such Demand Registration. In such event, the lead underwriter to administer the offering shall be chosen by the demanding Holder following consultation with the Issuer. If the offering is underwritten, the right of any Holder to registration pursuant to this Section 3 will be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting (unless otherwise agreed by the demanding Holder) and each such Holder will (together with the Issuer and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter(s) selected for such underwriting (including, without limitation, pursuant to the terms of any over-allotment or “green shoe” option requested by the managing underwriter(s)), provided that (A) no Holder shall be required to sell more than the number of Registrable Securities that such Holder has requested the Issuer to include in any registration and (B) if any Holder disapproves of the terms of the underwriting, such Holder may elect to withdraw therefrom by written notice to the Issuer, the managing underwriter(s) and, in connection with an underwritten registration pursuant to this Section 3, the demanding Holder, provided further that no such Person (other than the Issuer) shall be required to make any representations or warranties other than those related to title and ownership of, and power and authority to transfer, shares and as to the accuracy and completeness of statements made in a Registration Statement, Prospectus or other document in reliance upon, and in conformity with, written information prepared and furnished to the Issuer or the managing underwriter(s) by such Person pertaining exclusively to such Holder. Notwithstanding the foregoing, no Holder shall be required to agree to any indemnification obligations on the part of such Holder that are greater than its obligations pursuant to Section 6.
4. Registration Procedures. If and whenever the Issuer is required to use its reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Section 2 and Section 3, the Issuer shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Issuer shall cooperate in the sale of such Registrable Securities and shall, as expeditiously as reasonably possible:
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(a) prepare and file, in each case as promptly as practicable, with the SEC a Registration Statement or Registration Statements on such form as shall be available for the sale of the Registrable Securities by the Holders thereof or by the Issuer in accordance with the intended method or methods of distribution thereof, make all required filings with FINRA, and, if such Registration Statement is not automatically effective upon filing, use its reasonable best efforts to cause such Registration Statement to be declared effective as soon as practicable and to remain effective as provided herein; provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including free writing prospectuses under Rule 433 (each a “Free Writing Prospectus”)) and, to the extent reasonably practicable, documents that would be incorporated by reference or deemed to be incorporated by reference in a Registration Statement filed pursuant to a Demand Notice (other than a Shelf Registration Statement), the Issuer shall furnish or otherwise make available to the Holders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter(s), if any, copies of all such documents proposed to be filed (including exhibits thereto), which documents will be subject to the reasonable review and comment of such counsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC, and, if requested by such counsel, provide such counsel reasonable opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein and such other opportunities to conduct a reasonable investigation within the meaning of the Securities Act, including reasonable access to the Issuer’s books and records, officers, accountants and other advisors. The Issuer will include comments to any Registration Statement and any amendments or supplements thereto from Holders of a majority in aggregate principal amount of the Registrable Securities covered by such Registration Statement, or their counsel, or the managing underwriters, if any, as reasonably requested on a timely basis. The Issuer shall not file any such Registration Statement or Prospectus, or any amendments or supplements thereto (including such documents that, upon filing, would be incorporated or deemed incorporated by reference therein and including Free Writing Prospectuses) with respect to a Demand Registration to which the demanding Holder or the Holders of a majority of the Registrable Securities covered by such Registration Statement (or their counsel) or the managing underwriter(s), if any, shall reasonably object, in writing, on a timely basis, unless, in the opinion of the Issuer, such filing is necessary to comply with applicable law;
(b) except in the case of a Shelf Registration Statement, prepare and file with the SEC such amendments, including post-effective amendments, and supplements to such Registration Statement and the Prospectus used in connection therewith and such Free Writing Prospectuses and Exchange Act reports as may be necessary to keep such Registration Statement continuously effective during the period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement; and cause the related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of the securities covered by such Registration Statement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act in each case, until such time as all of such securities have been disposed of in accordance with the intended method or methods of disposition by the seller or sellers thereof set forth in such Registration Statement;
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(c) in the case of a Shelf Registration Statement, prepare and file with the SEC such amendments, including post-effective amendments, and supplements to such Shelf Registration Statement and the Prospectus used in connection therewith and such Free Writing Prospectuses and Exchange Act reports as may be necessary to keep such Shelf Registration Statement effective and to comply in all material respects with the provision of the Securities Act with respect to the disposition of the Registrable Securities subject thereto for the maximum period permitted by the rules of the SEC, and shall replace any Shelf Registration Statement at or before expiration.
(d) notify each selling Holder of Registrable Securities, its counsel and the managing underwriter(s), if any, promptly after the Issuer receives notice thereof (i) when a Prospectus or any Prospectus supplement or post-effective amendment or any Free Writing Prospectus has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceedings for that purpose, (iv) if at any time the Issuer has reason to believe that the representations and warranties of the Issuer contained in any agreement (including any underwriting agreement) contemplated by Section 4(o) below cease to be true and correct, (v) of the receipt by the Issuer of any notification with respect to the suspension of the qualification or exemption from qualification of such Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, and (vi) of the happening of any event that makes any statement made in such Registration Statement or related Prospectus, Free Writing Prospectus, amendment or supplement thereto, or any document incorporated or deemed to be incorporated therein by reference, as then in effect, untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (which notice shall notify the selling Holders only of the occurrence of such an event and shall provide no additional information regarding such event to the extent such information would constitute material non-public information);
(e) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction at the earliest date reasonably practical;
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(f) if requested by the managing underwriter(s), if any, a Holder making a Demand Notice with respect to such offering or the Holders of a majority of the then issued and outstanding Registrable Securities being sold in connection with an Underwritten Offering, promptly include in a Prospectus supplement or post-effective amendment such information as the managing underwriter(s), if any, or such Holder or Holders, as the case may be, may reasonably request in order to facilitate the disposition of the Registrable Securities in accordance with the intended method or methods of distribution of such securities set forth in the Registration Statement and make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Issuer has received such request; provided, however, that the Issuer shall not be required to take any actions under this Section 4(f) that are not, in the opinion of counsel for the Issuer, in compliance with applicable law;
(g) deliver to each selling Holder of Registrable Securities, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of Prospectus) and each amendment or supplement thereto (including any Free Writing Prospectus) as such Persons may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities in accordance with the intended method or methods of disposition thereof; and the Issuer, subject to the last paragraph of this Section 4, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any such amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any other action that may be necessary or advisable to enable such Holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdiction in accordance with the intended method or methods of disposition thereof; provided, however, that the Issuer will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4(h), (ii) subject itself to taxation in any jurisdiction wherein it is not so subject or (iii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject (other than service of process in connection with such registration or qualification or any sale of Registrable Securities in connection therewith);
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(i) cooperate with the selling Holders of Registrable Securities and the managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends unless required under applicable law) representing Registrable Securities to be sold, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter(s), if any, or Holders may request at least two (2) Business Days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) Business Days prior to having to issue the securities;
(j) use its reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary in light of the business or operations of the Issuer to enable the seller or sellers thereof or the managing underwriter(s), if any, to consummate the disposition of such Registrable Securities, in accordance with the intended method or methods thereof, except as may be required solely as a consequence of the nature of such selling Holder’s business, in which case the Issuer will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities in accordance with the intended method or methods thereof;
(k) upon the occurrence of any event contemplated by Section 4(d)(vi) above, promptly prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(l) prior to the effective date of the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities;
(m) provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities from and after the effective date of such Registration Statement. In connection therewith, if required by the Issuer’s transfer agent, the Issuer will promptly after the effective date of the Registration Statement, cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to and maintained with such transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any such legend upon sale by the Holder or the underwriter or managing underwriter of an Underwritten Offering of Registrable Securities, if any, of such Registrable Securities under the Registration Statement;
(n) use its reasonable best efforts to cause all shares of Registrable Securities covered by such Registration Statement to be listed on a national securities exchange if shares of the particular class of Registrable Securities are at that time listed on such exchange, prior to the effectiveness of such Registration Statement;
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(o) enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in Underwritten Offerings) and take all such other customary actions reasonably requested by a Holder submitting a Demand Notice with respect to such offering or the Holders of a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriter(s), if any) to expedite or facilitate the disposition of such Registrable Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the Holders of such Registrable Securities and the underwriters, if any, with respect to the business of the Issuer and its Subsidiaries, and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, in form, substance and scope as are customarily made by issuers to underwriters in Underwritten Offerings, and, if true, confirm the same if and when reasonably requested, (ii) use its reasonable best efforts to furnish to the selling Holders of such Registrable Securities opinions of outside counsel (and/or internal counsel if acceptable to the managing underwriter(s)) to the Issuer and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriter(s), if any, and counsels to the selling Holders of the Registrable Securities), addressed to each selling Holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in Underwritten Offerings and such other matters as may be reasonably requested by such counsel and underwriters, (iii) use its reasonable best efforts to obtain “cold comfort” letters and updates thereof from an independent registered public accounting firm with respect to the Issuer (and, if necessary, any other independent certified public accountants of any Subsidiary of the Issuer or of any business acquired by the Issuer for which financial statements and financial data are, or are required to be, included in the Registration Statement) who have certified the financial statements included in such Registration Statement, addressed to each selling Holder of Registrable Securities (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in “cold comfort” letters in connection with Underwritten Offerings, (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures that are customary for underwriting agreements in connection with Underwritten Offerings except as otherwise agreed by the parties thereto and (v) deliver such documents and certificates as may be reasonably requested by a Holder making a Demand Notice with respect to such offering, the Holders of a majority of the Registrable Securities being sold pursuant to such Registration Statement, its or their counsel, as the case may be, or the managing underwriter(s), if any, to evidence the continued validity of the representations and warranties made pursuant to Section 4(o)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Issuer. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder;
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(p) upon reasonable notice, make available for inspection by a representative of the selling Holders of Registrable Securities, the underwriters participating in any such disposition of Registrable Securities, if any, and any attorneys or accountants retained by such selling Holders or underwriter (collectively, the “Inspectors”) at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Issuer and its Subsidiaries (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the officers, directors and employees of the Issuer and its Subsidiaries to supply all information in each case reasonably requested by any such representative, underwriter, attorney or accountant in connection with such Registration Statement; provided, however, that any information and Records that are not generally publicly available at the time of delivery of such information shall be kept confidential by the Inspectors unless (i) disclosure of such information or Records is required by court or administrative order, (ii) disclosure of such information or Records, in the opinion of counsel to such Inspector, is required by law or applicable legal process, (iii) such information or Records become generally available to the public other than as a result of a disclosure or failure to safeguard by such Inspector, (iv) such information or Records becomes available to such Inspector on a non-confidential basis from a source other than the Issuer or (v) such information or Records is independently developed by such Inspector. In the case of a proposed disclosure pursuant to (i) or (ii) above, such Inspector shall be required to give the Issuer written notice of the proposed disclosure prior to such disclosure and, if requested by the Issuer, assist the Issuer in seeking to prevent or limit the proposed disclosure;
(q) cause its officers to use their reasonable best efforts to support the marketing of the Registrable Securities covered by the Registration Statement (including, without limitation, participation in such number of “road shows” as the underwriter(s) reasonably request);
(r) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the FINRA;
(s) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first day of the Issuer’s first full calendar quarter after the effective date of the Registration Statement, which earnings statement will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; and
(t) take no direct or indirect action prohibited by Regulation M under the Exchange Act; provided, that, to the extent that any prohibition is applicable to the Issuer, the Issuer will take all reasonable action to make such prohibition inapplicable.
The Issuer may require each Holder of Registrable Securities as to which any registration is being effected to furnish to the Issuer in writing such information required in connection with such registration regarding such seller and the distribution of such Registrable Securities as the Issuer may, from time to time, reasonably request and the Issuer may exclude from such registration the Registrable Securities of any Holder who unreasonably fails to furnish such information within a reasonable time after receiving such request.
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The Issuer agrees not to file or make any amendment to any Registration Statement with respect to any Registrable Securities, or any amendment of or supplement to the Prospectus or any Free Writing Prospectus used in connection therewith, that refers to any Holder covered thereby by name, or otherwise identifies such Holder as the holder of any securities of the Issuer, without the consent of such Holder, such consent not to be unreasonably withheld or delayed, unless and to the extent such disclosure is required by law, rule or regulation, in which case the Issuer shall provide prompt written notice to such Holders prior to the filing of such amendment to any Registration Statement or amendment of or supplement to the Prospectus or any Free Writing Prospectus.
If the Issuer files any Shelf Registration Statement for the benefit of the holders of any of its securities other than the Holders, the Issuer agrees that it shall use its reasonable best efforts to include in such registration statement such disclosures as may be required by Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders) in order to ensure that the Holders may be added to such Shelf Registration Statement at a later time through the filing of a Prospectus supplement rather than a post-effective amendment.
Each Holder of Registrable Securities agrees if such Holder has Registrable Securities covered by such Registration Statement that, upon receipt of any notice from the Issuer of the happening of any event of the kind described in Section 4(d)(ii), 4(d)(iii), 4(d)(iv), 4(d)(v) and 4(d)(vi) hereof, such Holder will promptly discontinue disposition of such Registrable Securities covered by such Registration Statement or Prospectus until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 4(k) hereof, or until it is advised in writing by the Issuer that the use of the applicable Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus; provided, however, that the time periods under Section 3 with respect to the length of time that the effectiveness of a Registration Statement must be maintained shall automatically be extended by the amount of time the Holder is required to discontinue disposition of such securities.
5. Hedging Transactions. The Parties agree that the provisions of this Agreement relating to the registration, offer and sale of Registrable Securities apply also to (i) any transaction which Transfers some or all of the economic risk of ownership of Registrable Securities, including any forward contract, equity swap, put or call, put or call equivalent position, collar, margin loan, sale of exchangeable security or similar transaction (including the registration, offer and sale under the Securities Act of Registrable Securities pledged to the counterparty to such transaction or of securities of the same class as the underlying Registrable Securities by the counterparty to such transaction in connection therewith), and that the counterparty to such transaction shall be selected in the sole discretion of the Holders and (ii) any derivative transactions in which a broker-dealer, other financial institution or unaffiliated Person may sell Registrable Securities covered by any Prospectus and the applicable prospectus supplement including short sale transactions using Registrable Securities pledged by a Holder or borrowed from the Holder or others and Registrable Securities loaned, pledged or hypothecated to any such party. The Prospectus shall permit, in connection with derivative transactions, a broker-dealer, other financial institution or third party to sell shares of the Registrable Securities covered by such Prospectus and the applicable prospectus supplement, including in short sale transactions.
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6. Indemnification.
(a) Indemnification by the Issuer. The Issuer shall, without limitation as to time, indemnify and hold harmless, to the fullest extent permitted by law, each Holder of Registrable Securities whose Registrable Securities are covered by a Registration Statement or Prospectus, the officers, directors, partners, members, managers, shareholders, accountants, attorneys, agents and employees of each of them, each Person who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) each such Holder and the officers, directors, partners, members, managers, shareholders, accountants, attorneys, agents and employees of each such controlling person, each underwriter, if any, and each Person who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such underwriter (each such person being referred to herein as a “Covered Person”), from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, costs of preparation and reasonable attorneys’ fees and any legal or other fees or expenses incurred by such party in connection with any investigation or proceeding), expenses, judgments, fines, penalties, charges and amounts paid in settlement (collectively, “Losses”), as incurred, arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Prospectus, offering circular, or other document (including any related Registration Statement, notification, or the like, any Free Writing Prospectus, any “roadshow” as defined in Rule 433(h) or any oral or written communication with potential investors in reliance on Section 5(d) of the Securities Act or Rule 163B (a “Testing-the-Waters Communication”) or any amendment or supplement to any of the foregoing or any document incorporated by reference therein) incident to any such registration, qualification, or compliance, or based on any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by the Issuer of the Securities Act, the Exchange Act, any state securities law, or any rule or regulation thereunder applicable to the Issuer and relating to any action or inaction in connection with the related offering of Registrable Securities, and will reimburse each such Covered Person for any legal and any other expenses reasonably incurred in connection with investigating and defending or settling any such Loss, provided that the Issuer will not be liable in any such case to the extent that any such Loss arises out of or is based on any untrue statement or omission by such Covered Person relating to such Covered Person or its Affiliates (other than the Issuer or any of its Subsidiaries), but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such Registration Statement, Prospectus, offering circular, Free Writing Prospectus, roadshow, Testing-the-Waters Communication or any amendment or supplement to any of the foregoing, or any document incorporated by reference therein, or other document in reliance upon and in conformity with written information furnished to the Issuer by such Covered Person with respect to such Covered Person for use therein. It is agreed that the indemnity agreement contained in this Section 6(a) shall not apply to amounts paid in settlement of any such Loss or action if such settlement is effected without the consent of the Issuer (which consent shall not be unreasonably withheld).
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(b) Indemnification by Holder of Registrable Securities. As a condition to including any Registrable Securities in any Registration Statement filed in accordance with Section 4 hereof, the Issuer shall have received an undertaking reasonably satisfactory to it from the prospective seller of such Registrable Securities to indemnify, to the fullest extent permitted by law, severally and not jointly with any other Holders of Registrable Securities, the Issuer, its directors and officers and each Person who controls (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) the Issuer and all other prospective sellers, from and against all Losses arising out of or based on any untrue or alleged untrue statement of a material fact contained in any such Registration Statement, Prospectus, Free Writing Prospectus, offering circular, or other document, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Issuer, such directors, controlling persons and prospective sellers for any legal or any other expenses reasonably incurred in connection with investigating or defending any such Loss, in each case to the extent, but only to the extent, that such untrue statement or omission is made in such Registration Statement, Prospectus, Free Writing Prospectus, offering circular, or other document in reliance upon and in conformity with written information furnished to the Issuer by such Holder with respect to such Holder for inclusion in such Registration Statement, Prospectus, offering circular or other document; provided, however, that the obligations of such Holder hereunder shall not apply to amounts paid in settlement of any such Losses (or actions in respect thereof) if such settlement is effected without the consent of such Holder (which consent shall not be unreasonably withheld); and provided, further, that the liability of such Holder of Registrable Securities shall be limited to the net proceeds after underwriting commissions and discounts (but before any taxes and expenses which may be payable by such Holder) received by such selling Holder from the sale of Registrable Securities covered by such Registration Statement.
(c) Conduct of Indemnification Proceedings. If any Person shall be entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall give prompt notice to the party from which such indemnity is sought (the “Indemnifying Party”) of any claim or of the commencement of any proceeding with respect to which such Indemnified Party seeks indemnification or contribution pursuant hereto; provided, however, that the delay or failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any obligation or liability except to the extent that the Indemnifying Party has been materially prejudiced by such delay or failure. The Indemnifying Party shall have the right, exercisable by giving written notice to an Indemnified Party promptly after the receipt of written notice from such Indemnified Party of such claim or proceeding, to, unless in the Indemnified Party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, assume, at the Indemnifying Party’s expense, the defense of any such claim or proceeding, with counsel reasonably satisfactory to such Indemnified Party; provided, however, that an Indemnified Party shall have the right to employ separate counsel in any such claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless: (i) the Indemnifying Party agrees to pay such fees and expenses; or (ii) the Indemnifying Party fails promptly to assume, or in the event of a conflict of interest cannot assume, the defense of such claim or proceeding or fails to employ counsel reasonably satisfactory to such Indemnified Party; in which case the Indemnified Party shall have the right to employ counsel and to assume the defense of such claim or proceeding at the Indemnifying Party’s expense; provided, further, however, that the Indemnifying Party shall not, in connection with any one (1) such claim or proceeding or separate but substantially similar or related claims or proceedings in the same jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one (1) firm of attorneys (together with appropriate local counsel) at any time for all of the Indemnified Parties, or for fees and expenses that are not reasonable. Whether or not such defense is assumed by the Indemnifying Party, such Indemnifying Party will not be subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld or delayed). The Indemnifying Party shall not consent to entry of any judgment or enter into any settlement that (x) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release, in form and substance reasonably satisfactory to the Indemnified Party, from all liability in respect of such claim or litigation for which such Indemnified Party would be entitled to indemnification hereunder or (y) involves the imposition of equitable remedies or the imposition of any obligations on the Indemnified Party or adversely affects such Indemnified Party other than as a result of financial obligations for which such Indemnified Party would be entitled to indemnification hereunder.
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(d) Contribution. If the indemnification provided for in this Section 6 is unavailable to an Indemnified Party in respect of any Losses (other than in accordance with its terms), then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party, on the one hand, and such Indemnified Party, on the other hand, in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party, on the one hand, and Indemnified Party, on the other hand, 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, has been made (or omitted) by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission.
The Parties agree that it would not be just and equitable if contribution pursuant to this Section 6(d) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 6(d), an Indemnifying Party that is a selling Holder of Registrable Securities shall not be required to contribute any amount in excess of the amount that such Indemnifying Party has otherwise been, or would otherwise be, required to pay pursuant to Section 6(b) by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement entered into in connection with the underwritten public offering are more favorable to the Holders than the foregoing provisions, the provisions in the underwriting agreement shall control.
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(e) Deemed Underwriter. To the extent that any of the Holders is, or would be expected to be, deemed to be an underwriter of Registrable Securities pursuant to any SEC comments or policies or any court of law or otherwise, the Issuer agrees that (i) the indemnification and contribution provisions contained in this Section 6 shall be applicable to the benefit of such Holder in its role as deemed underwriter in addition to its capacity as a Holder (so long as the amount for which any other Holder is or becomes responsible does not exceed the amount for which such Holder would be responsible if the Holder were not deemed to be an underwriter of Registrable Securities) and (ii) such Holder and its representatives shall be entitled to conduct the due diligence which would normally be conducted in connection with an offering of securities registered under the Securities Act, including receipt of customary opinions and comfort letters.
(f) Other Indemnification. Indemnification similar to that specified in the preceding provisions of this Section 6 (with appropriate modifications) shall be given by the Issuer and each seller of Registrable Securities with respect to any required registration or other qualification of securities under any federal or state law or regulation or governmental authority other than the Securities Act.
(g) Non-Exclusivity. The obligations of the Parties under this Section 6 shall be in addition to any liability which any party may otherwise have to any other party.
(h) Primacy of Indemnification. The Issuer hereby acknowledges that certain of the Investors have certain rights to indemnification, advancement of expenses and/or insurance provided by certain of their affiliates (collectively, the “Indemnitors”). The Issuer hereby agrees that (i) it is the indemnitor of first resort (i.e., its obligations to the Investors are primary and any obligation of the Indemnitors to advance expenses or to provide indemnification for the same Losses incurred by any of the Investors are secondary to any such obligation of the Issuer), (ii) that it shall be liable for the full amount of all Losses to the extent legally permitted and as required by the terms of this Agreement and the articles and other organizational documents of the Issuer (or any other agreement between the Issuer and the relevant Investor), without regard to any rights any Investor may have against the Indemnitors, and (iii) it irrevocably waives, relinquishes and releases the Indemnitors from any and all claims (x) against the Indemnitors for contribution, indemnification, subrogation or any other recovery of any kind in respect thereof and (y) that any Investor must seek indemnification from any Indemnitor before the Issuer must perform its indemnification obligations under this Agreement. No advancement or payment by the Indemnitors on behalf of any Investor with respect to any claim for which such Investor has sought indemnification from the Issuer hereunder shall affect the foregoing. The Indemnitors shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery which any Investor would have had against the Issuer if the Indemnitors had not advanced or paid any amount to or on behalf of such Investor. The Issuer and the Investors agree that the Indemnitors are express third party beneficiaries of this Section 6.
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7. Registration Expenses. All reasonable fees and expenses incurred in the performance of or compliance with this Agreement by the Issuer including, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses with respect to (A) filings required to be made with the SEC, all applicable securities exchanges and/or FINRA and (B) compliance with securities or blue sky laws, including, without limitation, any reasonable fees and disbursements of counsel for the underwriters in connection with blue sky qualifications of the Registrable Securities pursuant to Section 4(h)), (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities in a form eligible for deposit with The Depository Trust Company and of printing Prospectuses if the printing of Prospectuses is requested by the managing underwriter(s), if any, or by a Holder making a Demand Notice with respect to such offering or the Holders of a majority of the Registrable Securities included in any Registration Statement), (iii) messenger, telephone and delivery expenses of the Issuer, (iv) fees and disbursements of counsel for the Issuer, (v) expenses of the Issuer incurred in connection with any road show, (vi) fees and disbursements of all independent registered public accounting firms referred to in Section 4(o) hereof (including, without limitation, the expenses of any “cold comfort” letters required by this Agreement) and any other persons, including special experts retained by the Issuer and (vii) fees and disbursements of separate counsel (including any required local counsel) for each Investor and its Affiliates if any of them is participating in the offering (which counsel shall be selected by such Investor) shall be borne by the Issuer whether or not any Registration Statement is filed or becomes effective. In addition, the Issuer shall pay its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit, the fees and expenses incurred in connection with the listing of the securities to be registered on any securities exchange on which similar securities issued by the Issuer are then listed and rating agency fees and the fees and expenses of any Person, including special experts, retained by the Issuer.
The Issuer shall not be required to pay (i) fees and disbursements of any counsel retained by any Holder of Registrable Securities or by any underwriter (except as set forth above in this Section 7), (ii) any underwriter’s fees (including discounts, commissions or fees of underwriters, selling brokers, dealer managers or similar securities industry professionals) relating to the distribution of the Registrable Securities (other than with respect to Registrable Securities sold by the Issuer), or (iii) any other expenses of the Holders of Registrable Securities not specifically required to be paid by the Issuer pursuant to the first paragraph of this Section 7.
8. Rule 144. The Issuer covenants that it will file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder (or, if the Issuer is not required to file such reports, it will, upon the request of any Holder, make publicly available such information so long as necessary to permit sales of Registrable Securities pursuant to Rule 144), and it will take such further action as any Holder of Registrable Securities (or, if the Issuer is not required to file reports as provided above, any Holder) may reasonably request, all to the extent required from time to time to enable such Holder to sell shares of Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144. Upon the request of any Holder of Registrable Securities, the Issuer will deliver to such Holder a written statement as to whether it has complied with such requirements and, if not, the specifics thereof.
9. Certain Additional Agreements. If any Registration Statement or comparable statement under state blue sky laws refers to any Holder by name or otherwise as the Holder of any securities of the Issuer, then such Holder shall have the right to require (a) the insertion therein of language, in form and substance satisfactory to such Holder and the Issuer, to the effect that the holding by such Holder of such securities is not to be construed as a recommendation by such Holder of the investment quality of the Issuer’s securities covered thereby and that such holding does not imply that such Holder will assist in meeting any future financial requirements of the Issuer, or (b) in the event that such reference to such Holder by name or otherwise is not in the judgment of the Issuer required by the Securities Act or any similar federal statute or any state blue sky or securities law then in force, the deletion of the reference to such Holder.
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10. Miscellaneous.
(a) Termination. The provisions of this Agreement shall terminate upon the earliest to occur of (i) its termination by the written agreement of all Parties or their respective successors in interest, (ii) with respect to a Holder, the date on which all Common Shares held by such Holder have ceased to be Registrable Securities (except to the extent certain provisions are terminated earlier by delivery of an Opt-Out Notice in accordance with Section 10(c)), (iii) with respect to the Issuer, the date on which all Common Shares have ceased to be Registrable Securities and (iv) the dissolution, liquidation or winding up of the Issuer. Nothing herein shall relieve any party from any liability for the breach of any of the agreements set forth in this Agreement. The provisions of Sections 6 and 7 shall survive any termination of this Agreement.
(b) Holdback Agreement. In consideration for the Issuer agreeing to its obligations under this Agreement, each Holder agrees in connection with any registration of the Issuer’s securities (whether or not such Holder is participating in such registration) upon the request of the underwriter(s) managing any Underwritten Offering of the Issuer’s securities, not to effect (other than pursuant to such registration) any public sale or distribution of Registrable Securities, including, but not limited to, any sale pursuant to Rule 144, or make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of, or enter into any swap or other arrangement that transfers to another Person any of the economic consequences of ownership of, any Registrable Securities, any other equity securities of the Issuer or any securities convertible into or exchangeable or exercisable for any equity securities of the Issuer without the prior written consent of such underwriters during the Holdback Period. If, during the applicable Holdback Period, any Holder is released from a lock-up obligation by such underwriters, then all other Holders shall be released from their lock-up obligations on a pro rata basis.
If any registration pursuant to Section 3 of this Agreement shall be in connection with any underwritten public offering, the Issuer will not effect any public sale or distribution of any common equity (or securities convertible into or exchangeable or exercisable for common equity) (other than a registration statement (i) on Form F-4, Form S-8 or any successor forms promulgated for similar purposes, (ii) filed in connection with an exchange offer or any employee benefit or dividend reinvestment plan) for its own account, during the Holdback Period.
Notwithstanding anything to the contrary set forth in this Section 10(b), in connection with an Underwritten Offering that is a block sale, (i) no Holder shall be subject to a lock-up agreement, other than, if requested by the managing underwriter for such offering, a Holder that is (A) participating in such block sale or (B) a Holder of five percent (5%) or more of the equity securities of the Issuer then outstanding, and (ii) such Holdback Period shall not exceed sixty (60) days in connection with any block sale. Notwithstanding anything to the contrary set forth in this Section 10(b), no Holder shall be required to be subject to a lock-up agreement in connection with an Underwritten Offering that is a block sale in which such Holder does not participate (a “Skipped Block Sale”), if during the preceding twelve (12) month period, such Holder has twice been subject to a lock-up agreement in connection with Skipped Block Sales.
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(c) Opt-Out Notice. Any Holder may, at any time, deliver to the Issuer a notice terminating certain of its rights and obligations set forth herein (an “Opt-Out Notice”). Following the delivery of the Opt-Out Notice to the Issuer, all of such Holder’s rights and obligations under Sections 2, 3, 4, 5 and 10(b) of this Agreement shall terminate automatically, and without further action by the Issuer or any other Person; provided, however, that any applicable lock-up restrictions then currently in effect at the time of delivery of the Opt-Out Notice to the Issuer shall remain in effect until the expiration of the applicable Holdback Period. For the avoidance of doubt, no transferee in a transfer of shares from a Holder that has delivered a valid Opt-Out Notice shall be required to become a party to this Agreement.
(d) Amendments and Waivers. This Agreement may be amended and the Issuer may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if any such amendment, action or omission to act, has received the written consent of the Issuer, and each of the Investors and its Affiliates that is a Holder of Registrable Securities, or if no such Holders remain, the Holders of a majority of the Registrable Securities; provided that this Agreement may not be amended in a manner that would, by its terms, adversely affect the rights or obligations of any of the Investors or its Affiliates that is a Holder of Registrable Securities without the consent of such Holders. The failure of any party to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms. Any Holder may waive (in writing) the benefit of any provision of this Agreement with respect to itself for any purpose. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the Holder granting such waiver in any other respect or at any other time.
(e) Successors, Assigns and Transferees. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the Parties and their respective successors and assigns who agree in writing to be bound by the provisions of this Agreement. In addition, and whether or not any express assignment shall have been made, the provisions of this Agreement which are for the benefit of Holders shall also be for the benefit of and enforceable by any subsequent Holder of any Registrable Securities, subject to the provisions contained herein. The rights of a Holder hereunder may be assigned (but only with all related obligations set forth below) in connection with a Transfer of Registrable Securities effected in accordance with the terms of this Agreement to a Permitted Transferee of that Holder. Without prejudice to any other or similar conditions imposed hereunder with respect to such Transfer, no assignment permitted under the terms of this Section 10(e) will be effective unless and until the Permitted Transferee to which the assignment is being made, if not a Holder, has delivered to the Issuer the executed Joinder Agreement in the form attached as Exhibit A hereto agreeing to be bound by, and be party to, this Agreement. A Permitted Transferee to whom rights are transferred pursuant to this Section 10(e) may not again Transfer those rights to any other Permitted Transferee, other than as provided in this Section 10(e).
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(f) Notices. All notices, requests and other communications to any party hereunder shall be in writing (including facsimile transmission) and e-mail transmission if confirmed by telephone or return e-mail (including automated return receipt) and shall be given:
If to the Issuer, to:
Rodovia José Carlos Daux,
5500, Torre Jurerê A,
2nd floor, Saco Grande, Florianópolis,
State of Santa Catarina, 88032-005, Brazil
Attention: Pedro Jorge Guterres Quintans Graça
(pedro.graca@uniasselvi.com.br)
Fax: [●]
with a copy (which shall not constitute notice) to:
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
United States of America
Attention: Manuel Garciadiaz (manuel.garciadiaz@davispolk.com)
Fax: +55-11-4871-8501
if to Carlyle, to:
Robert Rosen
c/o The Carlyle Group
1001 Pennsylvania Avenue NW
Washington, DC 20004-2505
+1 (202) 729-5626
Robert.Rosen@carlyle.com
with a copy (which shall not constitute notice) to:
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Attention: Paul M. Rodel (pmrodel@debevoise.com)
Fax: (212) 909-6836
if to Vinci, to:
Bruno Zaremba, Director
T. +55 21 2159 6000
Av. Bartolomeu Mitre, 336, 5º andar – Leblon
bzaremba@vincipartners.com
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Marco Antonio Franklin, Principal
T. +55 21 2159 6000
Av. Bartolomeu Mitre, 336, 5º andar – Leblon
mafranklin@vincipartners.com
and
juridico@vincipartners.com
with a copy (which shall not constitute notice) to:
Mayer Brown LLP
1221 Avenue of the Americas
10020-1001
New York, NY, United States of America
Attention: John P. Berkery (jberkery@mayerbrown.com)
T: +1 (212) 506-255
Tauil & Chequer Advogados associado a Mayer Brown
Av. Juscelino Kubitschek, 1455 - 5º, 6º e 7º andares
Vila Nova Conceição - 04543-011
São Paulo – SP, Brazil
Attention: Carlos Motta (cmotta@mayerbrown.com)
T: +55 11 2504-4204
if to Neuberger, to:
NB Verrocchio LP
325 N. Saint Paul Street, Suite 4900
Dallas, TX 75201
Attention: NB Alternatives Legal
Email: NB.Alts.Legal@nb.com
with a copy (which shall not constitute notice) to:
Haynes and Boone LLP
2323 Victory Avenue, Suite 700
Dallas, TX 75219
Attention: Matthew Fry
Email: matt.fry@haynesboone.com
or such other address, facsimile number or e-mail address as such party may hereafter specify for the purpose by notice to the other Parties.
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If to any other Holder of Registrable Securities, to the e-mail or physical address of such other Holder as shown in the stock record book of the Issuer. Each Holder shall provide the Issuer with an updated e-mail address or physical address if such address changes by notice to the Issuer pursuant to this Section 10(f). The e-mail address or physical address shown on the stock record books of the Issuer shall be presumed to be current for purposes of giving any notice under this Agreement.
All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:30 p.m. on a Business Day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed to have been received on the next succeeding Business Day in the place of receipt.
(g) Further Assurances. At any time or from time to time after the date hereof, the Parties agree to cooperate with each other, and at the request of any other party, to execute and deliver any further instruments or documents and to take all such further action as the other party may reasonably request in order to evidence or effectuate the consummation of the transactions contemplated hereby and to otherwise carry out the intent of the Parties hereunder.
(h) Preservation of Rights. The Issuer will not enter into any agreement with any holder or prospective holder of any securities of the Issuer giving such holder or prospective holder any registration rights the terms of which are more favorable than or inconsistent with the registration rights granted to the Investors under this Agreement, or which would reduce the amount of Registrable Securities any of the Investors or its Affiliates can include in any Registration Statement.
(i) Entire Agreement; No Third Party Beneficiaries. This Agreement (i) constitutes the entire agreement among the Parties with respect to the subject matter of this Agreement and supersede any prior discussions, correspondence, negotiation, proposed term sheet, agreement, understanding or agreement and there are no agreements, understandings, representations or warranties between the Parties other than those set forth or referred to in this Agreement and (ii) except as provided in Section 6 with respect to an Indemnified Party, is not intended to confer in or on behalf of any Person not a party to this Agreement (and their successors and assigns) any rights, benefits, causes of action or remedies with respect to the subject matter or any provision hereof.
(j) Governing Law; Jurisdiction and Forum; Waiver of Jury Trial.
(i) This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts executed and to be performed wholly within such State and without reference to the choice-of-law principles that would result in the application of the laws of a different jurisdiction.
(ii) Each party to this Agreement irrevocably submits to the jurisdiction of the United States District Court for the Southern District of New York or any court of the State of New York located in such district any suit, action or other proceeding arising out of or relating to this Agreement, and hereby irrevocably agrees that all claims in respect of such suit, action or proceeding may be heard and determined in such court. Each party to this Agreement hereby irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of such suit, action or other proceeding. The Parties further agree, to the extent permitted by law, that final and unappealable judgment against any of them in any suit, action or other proceeding contemplated above shall be conclusive and may be enforced in any other jurisdiction within or outside the United States by suit on the judgment, a certified copy of which shall be conclusive evidence of the fact and amount of such judgment.
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(iii) EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(k) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto. Upon such a determination, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
(l) Enforcement. Each party hereto acknowledges that money damages would not be an adequate remedy in the event that any of the covenants or agreements in this Agreement are not performed in accordance with its terms, and it is therefore agreed that in addition to and without limiting any other remedy or right it may have, the non-breaching party will have the right to an injunction, temporary restraining order or other equitable relief in any court of competent jurisdiction enjoining any such breach and enforcing specifically the terms and provisions hereof.
(m) Titles and Subtitles. The titles of the sections and subsections of this Agreement are for convenience of reference only and will not affect the meaning or interpretation of this Agreement.
(n) No Recourse. Notwithstanding anything that may be expressed or implied in this Agreement, the Issuer and each Holder (other than the Investors) covenant, agree and acknowledge that no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement shall be had against any current or future director, officer, employee, shareholder, general or limited partner or member of any of the Investors or of any Affiliate or assignee thereof, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any current or future director, officer, employee, shareholder, general or limited partner or member of any of the Investors or of any Affiliate or assignee thereof, as such for any obligation of any of the Investors under this Agreement or any documents or instruments delivered in connection with this Agreement for any claim based on, in respect of or by reason of such obligations or their creation.
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(o) Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts (including via facsimile and electronic transmission), each of which shall be an original, but all of which together shall constitute one instrument. This Agreement may be executed by facsimile signature(s).
[Remainder of page left intentionally blank]
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IN WITNESS WHEREOF, each of the undersigned has executed this Agreement or caused this Agreement to be duly executed on its behalf as of the date first written above.
VITRU LIMITED | ||
By: | ||
Name: | ||
Title: | ||
Mundi Holdings I | ||
By: | ||
Name: | ||
Title: | ||
Mundi Holdings II | ||
By: | ||
Name: | ||
Title: | ||
VINCI CAPITAL PARTNERS II J BETA FUNDO DE INVESTIMENTO EM PARTICIPAÇÕES MULTIESTRATÉGIA | ||
By: | ||
Name: | ||
Title: | ||
AGRESTI INVESTMENTS LLC | ||
By: | ||
Name: | ||
Title: | ||
BOTTICELLI INVESTMENTS LLC | ||
By: | ||
Name: | ||
Title: |
[Signature Page to Registration Rights Agreement]
CARAVAGGIO INVESTMENTS LLC | ||
By: | ||
Name: | ||
Title: | ||
RAFFAELLO INVESTMENTS LLC | ||
By: | ||
Name: | ||
Title: | ||
NB VERROCCHIO LP | ||
By: | ||
Name: | ||
Title: |
[Signature Page to Registration Rights Agreement]
Exhibit A
JOINDER AGREEMENT
Reference is made to the Registration Rights Agreement, dated as of September [●], 2020 (as amended from time to time, the “Registration Rights Agreement”), by and among Vitru Limited and the other parties thereto, if any. The undersigned agrees, by execution hereof, to become a party to, and to be subject to the rights and obligations under the Registration Rights Agreement.
[NAME]
By: | ||
Name: | ||
Title: |
Date:
Address:
Acknowledged by: | ||
VITRU LIMITED | ||
By: | ||
Name: | ||
Title: |
A-1
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the use in this Registration Statement on Form F-1 of Vitru Limited of our report dated March 28, 2020 relating to the financial statements of Treviso Empreendimentos, Participações e Comércio S.A., which appears in this Registration Statement. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers Auditores Independentes
Florianópolis, Brazil
September 8, 2020