UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 20-F
(Mark One)
☐ REGISTRATION STATEMENT PURSUANT TO SECTION 12(B) OR 12(G) OF THE SECURITIES EXCHANGE ACT OF 1934
OR
☐ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended __________________
OR
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
OR
☒ SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
Commission File Number:
BROOGE HOLDINGS LIMITED
(Exact name of Registrant as specified in its charter)
Not applicable | Cayman Islands | |
(Translation of Registrant’s name into English) | (Jurisdiction of incorporation or organization) |
c/o Brooge Petroleum and Gas Investment Company FZE
P.O. Box 50170
Fujairah, United Arab Emirates
+971 2 633 3149
(Address of Principal Executive Offices)
Nicolaas L. Paardenkooper
P.O. Box 50170
Fujairah, United Arab Emirates
+971 2 633 3149
nico.paardenkooper@bpgic.com
(Name, Telephone, Email and/or Facsimile number and Address of Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
Title of each class | Name of each exchange on which registered | |
Ordinary shares, $0.0001 par value per share | The Nasdaq Stock Market LLC | |
Warrants to purchase ordinary shares | The Nasdaq Stock Market LLC |
Securities registered or to be registered pursuant to Section 12(g) of the Act: None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act: None
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the shell company report: 109,587,754 ordinary shares
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. Yes ☐ No ☐
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☐ No ☒
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth company. See definition of “large accelerated filer,” “accelerated filer,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ¨ | Accelerated filer ¨ | Non-accelerated filer ☒ |
Emerging growth company ☒ |
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
US GAAP ☐ | International Financial Reporting Standards as issued by the International Accounting Standards Board ☒ | Other ☐ |
If “Other” has been checked in response to the previous question indicate by check mark which financial statement item the registrant has elected to follow. Item 17 ☐ Item 18 ☐
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☐
BROOGE HOLDING LIMITED
TABLE OF CONTENTS
Page | ||
Cautionary Note Regarding Forward-Looking Statements | ii | |
Explanatory Note | iii | |
PART I | ||
Item 1. | Identity of Directors, Senior Management and Advisors | 1 |
Item 2. | Offer Statistics and Expected Timetable | 1 |
Item 3. | Key Information | 1 |
Item 4. | Information on the Company | 2 |
Item 4A. | Unresolved Staff Comments | 3 |
Item 5. | Operating and Financial Review and Prospects | 3 |
Item 6. | Directors, Senior Management and Employees | 3 |
Item 7. | Major Shareholders and Related Party Transactions | 4 |
Item 8. | Financial Information | 6 |
Item 9. | The Offer and Listing | 6 |
Item 10. | Additional Information | 7 |
Item 11. | Quantitative and Qualitative Disclosures About Market Risk | 21 |
Item 12. | Description of Securities Other than Equity Securities | 21 |
PART II | ||
PART III | ||
Item 17. | Financial Statements | 21 |
Item 18. | Financial Statements | 21 |
Item 19. | Exhibits | 21 |
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Shell Company Report on Form 20-F (including information incorporated by reference herein, the “Report”) contains or may contain forward-looking statements as defined in Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934 (the “Exchange Act”) that involve significant risks and uncertainties. All statements other than statements of historical facts are forward-looking statements. These forward-looking statements include information about our possible or assumed future results of operations or our performance. Words such as “expects,” “intends,” “plans,” “believes,” “anticipates,” “estimates,” and variations of such words and similar expressions are intended to identify the forward-looking statements. The risk factors and cautionary language referred to or incorporated by reference in this Report provide examples of risks, uncertainties and events that may cause actual results to differ materially from the expectations described in our forward-looking statements, including among other things, the items identified in the Risk Factors section of the registration statement on Form F-4, which are incorporated by reference into this Report and which was filed with the United States Securities and Exchange Commission (the “SEC”) on September 27, 2019, as subsequently amended.
Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this Report. Although we believe that the expectations reflected in such forward-looking statements are reasonable, there can be no assurance that such expectations will prove to be correct. These statements involve known and unknown risks and are based upon a number of assumptions and estimates which are inherently subject to significant uncertainties and contingencies, many of which are beyond our control. Actual results may differ materially from those expressed or implied by such forward-looking statements. We undertake no obligation to publicly update or revise any forward-looking statements contained in this Report, or the documents to which we refer readers in this Report, to reflect any change in our expectations with respect to such statements or any change in events, conditions or circumstances upon which any statement is based.
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On April 15, 2019, (i) Twelve Seas Investment Company, a Cayman Islands exempted company (“Twelve Seas”), (ii) Brooge Holdings Limited, a Cayman Islands exempted company (the “Company” or “Pubco”), (iii) Brooge Merger Sub Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of the Company (“Merger Sub”), and (iv) Brooge Petroleum And Gas Investment Company FZE, a company formed under the laws of the Fujairah Free Zone, United Arab Emirates (“BPGIC”), entered into that certain Business Combination Agreement, pursuant to which BPGIC Holdings Limited (the “Seller”), a Cayman Islands exempted company also become a party thereafter pursuant to the Assignment and Joinder to Business Combination Agreement dated as of November 19, 2019 (as assignee of Brooge Petroleum and Gas Investment Company (BPGIC) PLC, a company formed under the laws of England and Wales, which became a party to the Business Combination Agreement pursuant to a Joinder to Business Combination Agreement dated as of May 10, 2019) (as amended prior to the date hereof, including by the foregoing joinders and by the First Amendment to Business Combination Agreement, dated as of September 16, 2019, the “Business Combination Agreement”), pursuant to which, subject to the terms and conditions thereof, upon the consummation of the transactions contemplated thereby on December 20, 2019 (the “Closing”), among other matters, (a) Twelve Seas merged with and into Merger Sub, with Twelve Seas continuing as the surviving entity with the name BPGIC International, and as a wholly-owned subsidiary of the Company and with holders of the Twelve Seas’ securities receiving substantially equivalent securities of the Company, and (b) the Company acquired all of the issued and outstanding ordinary shares of BPGIC from the Seller in exchange for ordinary shares of the Company, subject to the withholding of the escrow shares being deposited in the escrow account in accordance with the terms and conditions of the Business Combination Agreement and the escrow agreement, and with BPGIC becoming a wholly-owned subsidiary of the Company (such transactions contemplated by the Business Combination Agreement, collectively, the “Business Combination”).
Upon consummation of the Business Combination pursuant to the terms of the Business Combination Agreement, the Company’s ordinary shares and warrants to purchase ordinary shares became listed on The Nasdaq Stock Market. This report is being filed in connection with the Business Combination.
Unless otherwise indicated, “we,” “us,” “our,” “Pubco,” “the Company” and similar terminology refers to Brooge Holdings Limited, a company organized under the laws of the Cayman Islands, and its subsidiaries subsequent to the Business Combination.
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ITEM 1. IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS
A. Directors and Senior Management
The directors and executive officers upon consummation of the Business Combination are set forth in the Company’s Form F-4 Registration Statement filed with the SEC on September 27, 2019, as amended (the “Form F-4”) in the section entitled “Management of Pubco Following the Business Combination” and incorporated herein by reference. The business address for each of the Company’s directors and senior management is P.O. Box 50170, Fujairah, United Arab Emirates.
B. Advisors
K&L Gates LLP, 599 Lexington Avenue, New York, NY 10022 has acted as U.S. securities counsel for the Company and BPGIC and continues to act as U.S. securities counsel to BPGIC and the Company following the consummation of the Business Combination.
Maples and Calder, P.O. Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands has acted as Cayman Islands counsel for the Company and continues to act as Cayman Islands counsel to the Company following the consummation of the Business Combination.
Hogan Lovells (Middle East) LLP, 19th Floor, Al Fattan Currency Tower, Dubai International Financial Centre, Dubai, United Arab Emirates has acted as counsel for the Company and BPGIC with respect to United Arab Emirates and United Kingdom law and continues to act as counsel for the Company and BPGIC with respect to United Arab Emirates and United Kingdom law following the consummation of the Business Combination.
C. Auditors
Ernst & Young, Nation Tower 2 Corniche, Abu Dhabi, United Arab Emirates, has and continues to act as the Company’s and BPGIC’s independent auditing firm.
ITEM 2. OFFER STATISTICS AND EXPECTED TIMETABLE
Not Applicable.
A. Selected Financial Data
The Company was formed solely to effectuate the Business Combination. Following and as a result of the Business Combination, all of the Company’s business will be conducted through BPGIC. Selected financial information regarding BPGIC is included in the Form F-4 in the section entitled “Selected Historical Financial Information” and is incorporated herein by reference. The financial statements of the Company and BPGIC have been prepared in United States Dollars (“USD”).
B. Capitalization and Indebtedness
The following table sets forth the capitalization on an unaudited, combined basis of the Company as of December 27, 2019 after giving effect to the Business Combination, reflecting that holders of 16,997,181 Twelve Seas ordinary shares exercised their redemption rights.
As of December 27, 2019 | ||||
Bank balances and cash | $ | 20,164,104 | ||
Term loans | $ | 90,459,212 | ||
Total equity | $ | 121,884,240 | ||
Total capitalization | $ | 212,343,452 |
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C. Reasons for the Offer and Use of Proceeds
Not applicable.
D. Risk Factors
The risk factors associated with the Company’s business are described in the Form F-4 in the section entitled “Risk Factors” and are incorporated herein by reference.
ITEM 4. INFORMATION ON THE COMPANY
A. History and development of the Company
The Company’s legal and commercial name is Brooge Holdings Limited. The Company was incorporated solely for the purpose of effectuating the Business Combination. The Company was incorporated under the laws of the Cayman Islands as an exempted company on April 12, 2019. Prior to the Business Combination, the Company owned no material assets and did not operate any business. The mailing address of the Company’s registered office is Maples Corporate Services Limited, P.O. Box 309, Ugland House, Grand Cayman KY1-1104, Cayman Islands. Its principal executive office will be that of BPGIC, located at P.O. Box 50170, Fujairah, United Arab Emirates and its telephone number is +971 2 633 3149.
In accordance with the terms and conditions of the Business Combination Agreement, upon the closing of the Business Combination on December 20, 2019, Twelve Seas merged with Merger Sub and holders of Twelve Seas securities received substantially similar securities of the Company, and Twelve Seas continued as the surviving entity and a wholly-owned subsidiary of the Company under the name BPGIC International, and the Company acquired all of the issued and outstanding ordinary shares of BPGIC from the Seller in exchange for ordinary shares of the Company and BPGIC became a wholly-owned subsidiary of the Company.
The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC which is accessible at http://www.sec.gov. Since we are a “foreign private issuer,” we are exempt from the rules and regulations under the Exchange Act prescribing the furnishing and content of proxy statements, and our officers, directors and principal shareholders are exempt from the reporting and “short-swing” profit recovery provisions contained in Section 16 of the Exchange Act, with respect to their purchase and sale of our shares. In addition, we are not required to file reports and financial statements with the SEC as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act. However, we are required to file with the SEC an Annual Report on Form 20-F containing financial statements audited by an independent accounting firm.
B. Business Overview
Following and as a result of the Business Combination, all of the Company’s business will be conducted through BPGIC. A description of the business is included in the Form F-4 in the sections entitled “Business of BPGIC” and “BPGIC’s Management’s Discussion and Analysis of Financial Condition and Results of Operations” and incorporated herein by reference.
C. Organizational structure
Upon consummation of the Business Combination, both BPGIC and Twelve Seas became wholly-owned subsidiaries of the Company with Twelve Seas being renamed BPGIC International. The Company’s current organizational chart is on page 82 of the Form F-4 and is incorporated herein by reference.
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D. Property, plants and equipment
The Company has its headquarters in Fujairah, United Arab Emirates. The table below summarizes its facilities as of June 30, 2019.
Gross Area
(square |
Lease period | ||||||||||
Country | Location | meter) | Use | Start | End | ||||||
UAE | Port of Fujairah | 153,916.93 | Site of oil storage tanks and administrative building | On or around 3/10/2013 |
On or around 3/31/2073(1) |
(1) | The lease ends on or around 3/31/2073 after giving effect to an automatic 30 year extension after the initial 30 year term ends on or around 3/31/2043. |
Following and as a result of the Business Combination, all of the Company’s business will be conducted through BPGIC. A description of BPGIC’s material tangible fixed assets and its material plans to construct, expand or improve facilities is included in the Form F-4 in the sections entitled “Business of BPGIC” and “BPGIC’s Management’s Discussion and Analysis of Financial Condition and Results of Operations” and incorporated herein by reference.
ITEM 4A. UNRESOLVED STAFF COMMENTS
None.
ITEM 5. OPERATING AND FINANCIAL REVIEW AND PROSPECTS
Following and as a result of the Business Combination, all of the Company’s business will be conducted through BPGIC. The discussion and analysis of the financial condition of BPGIC is included in the Form F-4 in the section entitled “BPGIC’s Management’s Discussion and Analysis of Financial Condition and Results of Operations,” which information is incorporated herein by reference.
A payment of principal and interest due on November 30, 2019 under the Phase I Financing Facilities (as defined in the Form F-4) was not paid as a result of recent discussions between BPGIC and First Abu Dhabi Bank PJSC pertaining to more favorable financing terms. On or around December 29, 2019, BPGIC and First Abu Dhabi Bank PJSC agreed to amend the Phase I Construction Facility (as defined in the Form F-4) to defer the installments due thereunder to later dates. The key changes resulting from the amendment are as follows:
1. | an amount of $5,729,417.50 which was due on November 30, 2019 will now be repayable on February 28, 2020; |
2. | an amount of $1,765,553.50 which was due on January 31, 2020 will now be payable in two installments: $882,776.75 on January 31, 2020 and $882,776.75 on February 28, 2020; and |
3. | the Debt Service Reserve Account to be created by February 28, 2020; and |
4. | testing of the Debt Service Coverage Ratio covenant to start on February 28, 2020 and to be conducted on each subsequent due date. |
ITEM 6. DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES
A. Directors and Executive Officers
Information regarding the directors and executive officers of the Company upon the consummation of the Business Combination is included in the Form F-4 in the section entitled “Management of Pubco Following the Business Combination.” All such information is incorporated herein by reference.
B. Compensation
The executive compensation of the Company’s executive officers and directors is described in the Form F-4 in the section entitled “Executive Compensation,” which description is incorporated herein by reference.
C. Board Practices
Information regarding the Company’s board of directors subsequent to the Business Combination is included in the Form F-4 in the section entitled “Management of Pubco Following the Business Combination,” which information is incorporated herein by reference.
D. Employees
As of November 30, 2019, the Company had 17 employees and 48 contractors.
E. Share Ownership
Ownership of the Company’s shares by its executive officers and directors upon consummation of the Business Combination is set forth in Item 7.A of this Report.
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ITEM 7. MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS
A. Major Shareholders
The following table sets forth information regarding the beneficial ownership based on 109,587,754 ordinary shares outstanding as of December 20, 2019 (subsequent to the closing of the Business Combination) based on information obtained from the persons named below, with respect to the beneficial ownership of our shares by:
● | each person known by us to be the beneficial owner of more than 5% of our outstanding shares; |
● | each of our officers and directors; and |
● | all our officers and directors as a group. |
Except as indicated by the footnotes below, we believe that the persons named below have shared voting and dispositive power with respect to all stock that they beneficially own. The shares owned by the persons named below do not have voting rights different from the shares owned by other holders. We believe that none of the persons named below own shares of record in the United States of America.
Name and Address of Beneficial Owner |
Number
of Shares Beneficially Owned |
%
of
Class(16) |
||||||
Directors and Executive Officers of the Company | ||||||||
Dr. Yousef Alassaf | — | — | ||||||
Abu Bakar Chowdhury | 8,333,333 | (17) | 7.6 | % | ||||
Nicolaas Paardenkooper | 98,718,035 | (1) | 90.1 | % | ||||
Saleh Yammout | — | — | ||||||
Sa’eb El-Zein | — | — | ||||||
Dr. Simon Madgwick | — | — | ||||||
Lina S. Saheb | — | — | ||||||
Faisal Selim | — | — | ||||||
All executive officers and directors as a group (8 individuals) | 98,718,035 | 90.1 | % | |||||
Five Percent Holders | ||||||||
BPGIC Holdings Limited(2) | 98,718,035 | 90.1 | % | |||||
Brooge Petroleum and Gas Investment Company (BPGIC) PLC(3) | 98,718,035 | 90.1 | % | |||||
SBD International LP(4) | 58,152,625 | 53.1 | % | |||||
SD Holding Limited(5) | 58,152,625 | 53.1 | % | |||||
Salman Dawood Salman Al-Ameri(6) | 67,826,992 | 61.9 | % | |||||
HBS Investments LP(7) | 9,674,367 | 8.8 | % | |||||
O2 Investments Limited(8) | 9,674,367 | 8.8 | % | |||||
H Capital International LP(9) | 8,991,043 | 8.2 | % | |||||
Gyan Investments Limited(10) | 8,991,043 | 8.2 | % | |||||
Hind Mohammed Muktar Ahmed(11) | 8,991,043 | 8.2 | % | |||||
His Highness Sheikh Mohammad bin Khalifa bin Zayed Al Nayhan(12) | 21,900,000 | 20.0 | % | |||||
MENA Energy Services Holdings Limited(13) | 8,333,333 | 7.6 | % | |||||
IDB Infrastructure Fund II B.S.C(c)(14) | 8,333,333 | 7.6 | % | |||||
ASMA Capital B.S.C.(c). (15) | 8,333,333 | 7.6 | % |
(1) | Represents the shares held by BPGIC Holdings Limited. Mr. Paardenkooper is the CEO of BPGIC Holdings Limited, consequently, he may be deemed the beneficial owner of 100% of the shares held by BPGIC Holdings Limited. Mr. Paardenkooper disclaims beneficial ownership of any shares other than to the extent he may have a pecuniary interest therein. |
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(2) | 20,000,000 ordinary shares beneficially owned by BPGIC Holdings Limited are held in escrow and subject to forfeiture until the Company satisfies certain milestones. |
(3) | Represents the shares held by BPGIC Holdings Limited. Brooge Petroleum and Gas Investment Company (BPGIC) PLC is the sole shareholder of BPGIC Holdings Limited, consequently, it may be deemed to be the beneficial owner of 100% of the shares held by BPGIC Holdings Limited. Brooge Petroleum and Gas Investment Company (BPGIC) PLC disclaims beneficial ownership of any shares other than to the extent it may have a pecuniary interest therein. |
(4) | SBD International LP holds a controlling interest in Brooge Petroleum and Gas Investment Company (BPGIC) PLC which is the sole shareholder of BPGIC Holdings Limited. Its pro rata percentage of the Company ordinary shares held by BPGIC Holdings Limited is 58.9%, i.e., 58,152,625 ordinary shares. Similarly, SBD International LP’s pro rata portion of the ordinary shares held in escrow is 58.9%. SBD International LP disclaims beneficial ownership of any shares other than to the extent it may have a pecuniary interest therein. |
(5) | Represents the interests of SBD International LP, as a shareholder of Brooge Petroleum and Gas Investment Company (BPGIC) PLC, in the shares held by BPGIC Holdings Limited. SD Holding Limited is the general partner of SBD International LP, consequently, it may be deemed the beneficial owner of 58.9% of the shares held by BPGIC Holdings Limited. SD Holding Limited disclaims beneficial ownership of any shares other than to the extent it may have a pecuniary interest therein. |
(6) | Represents the interests of SBD International LP and HBS Investments LP, as shareholders of Brooge Petroleum and Gas Investment Company (BPGIC) PLC, in the shares held by BPGIC Holdings Limited. Salman Dawood Salman Al-Ameri is the sole shareholder of SD Holding Limited (the general partner of SBD International LP) and the sole shareholder of O2 Investments Limited (the general partner of HBS Investments LP). Consequently, Mr. Al-Ameri may be deemed the beneficial owner of 68.7% of the shares held by BPGIC Holdings Limited. Mr. Al-Ameri disclaims beneficial ownership of any shares other than to the extent he may have a pecuniary interest therein. |
(7) | Represents the interests of HBS Investments LP, as a shareholder of Brooge Petroleum and Gas Investment Company (BPGIC) PLC, in the shares held by BPGIC Holdings Limited. HBS Investments LP’s pro rata portion of the ordinary shares held in escrow is 9.8%. HBS Investments LP disclaims beneficial ownership of any shares other than to the extent it may have a pecuniary interest therein. |
(8) | Represents the interests of HBS Investments LP, as a shareholder of Brooge Petroleum and Gas Investment Company (BPGIC) PLC, in the shares held by BPGIC Holdings Limited. O2 Investments Limited is the general partner of HBS Investments LP, consequently, it may be deemed the beneficial owner of 9.8% of the shares held by BPGIC Holdings Limited. O2 Investments Limited disclaims beneficial ownership of any shares other than to the extent it may have a pecuniary interest therein. |
(9) | Represents the interests of H Capital International LP, as a shareholder of Brooge Petroleum and Gas Investment Company (BPGIC) PLC, in the shares held by BPGIC Holdings Limited. H Capital International LP’s pro rata portion of the ordinary shares held in escrow is 9.1%. H Capital International LP disclaims beneficial ownership of any shares other than to the extent it may have a pecuniary interest therein. |
(10) | Represents the interests of H Capital International LP, as a shareholder of Brooge Petroleum and Gas Investment Company (BPGIC) PLC, in the shares held by BPGIC Holdings Limited. Gyan Investments Limited is the general partner of H Capital International LP, consequently, it may be deemed the beneficial owner of 9.1% of the shares held by BPGIC Holdings Limited. Gyan Investments Limited disclaims beneficial ownership of any shares other than to the extent it may have a pecuniary interest therein. |
(11) | Represents the interest of H Capital International LP, as a shareholder of Brooge Petroleum and Gas Investment Company (BPGIC) PLC, in the shares held by BPGIC Holdings Limited. Mrs. Hind Mohammed Muktar Ahmed is the sole shareholder of Gyan Holdings Limited, the general partner of H Capital International LP, consequently, she may be deemed the beneficial owner of 9.1% of the shares held by BPGIC Holdings Limited. Mrs. Hind Mohammed Muktar Ahmed disclaims beneficial ownership of any shares other than to the extent she may have a pecuniary interest therein. |
(12) | Represents the interests of His Highness Sheikh Mohammad bin Khalifa bin Zayed Al Nayhan, as a shareholder of Brooge Petroleum and Gas Investment Company (BPGIC) PLC, in the shares held by BPGIC Holdings Limited. His Highness Sheikh Mohammad bin Khalifa bin Zayed Al Nayhan’s pro rata portion of the ordinary shares held in escrow will be 22.2%. His Highness Sheikh Mohammad bin Khalifa bin Zayed Al Nayhan disclaims beneficial ownership of any shares other than to the extent he may have a pecuniary interest therein. |
(13) | MENA Energy Services Holdings Limited holds convertible securities in BPGIC Holdings Limited that entitle it to convert its securities in BPGIC Holdings Limited into 8,333,333 of the ordinary shares of the Company owned by BPGIC Holdings Limited. |
(14) | Represents the interest of MENA Energy Services Holdings Limited in the shares held by BPGIC Holdings Limited. IDB Infrastructure Fund II B.S.C(c) is the sole shareholder of MENA Energy Services Holdings Limited, consequently it may be deemed the beneficial owner of the 8,333,333 ordinary shares of the Company that MENA Energy Services Holdings Limited would receive upon conversion of its securities in BPGIC Holdings Limited. IDB Infrastructure Fund II B.S.C(c) disclaims beneficial ownership of any shares other than to the extent it may have a pecuniary interest therein. |
(15) | Represents the interest of MENA Energy Services Holdings Limited in the shares held by BPGIC Holdings Limited. ASMA Capital B.S.C.(c). holds 99% of the equity of IDB Infrastructure Fund II B.S.C(c), the sole shareholder of MENA Energy Services Holdings Limited, consequently it may be deemed the beneficial owner of the 8,333,333 ordinary shares of the Company that MENA Energy Services Holdings Limited would receive upon conversion of its securities in BPGIC Holdings Limited. ASMA Capital B.S.C.(c). disclaims beneficial ownership of any shares other than to the extent it may have a pecuniary interest therein. |
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(16) | Based on 109,587,754 ordinary shares outstanding immediately after the Closing, which reflects: (i) the redemption of 16,997,181 ordinary shares by public shareholders of Twelve Seas in connection with the Business Combination, (ii) the forfeiture of an aggregate of 1,035,000 shares by Twelve Seas Sponsors I LLC, Suneel G. Kaji and Gregory Stoupnitzky, (iii) the issuance of 2,122,900 shares upon conversion of the Twelve Seas’ rights (iv) the issuance of 98,718,035 shares to BPGIC Holdings Limited (the “Exchange Shares”), and (vi) receipt by BPGIC Holdings Limited of cash consideration of $13,225,827.22 in lieu of 1,281,965 ordinary shares. Does not reflect the 21,229,000 ordinary shares issuable upon exercise of the warrants issued in exchange for Twelve Seas warrants. |
(17) | Represents the interest of MENA Energy Services Holdings Limited in the shares held by BPGIC Holdings Limited. Mr. Chowdhury is the Managing Director and Chief Financial Officer of ASMA Capital B.S.C.(c). which will hold 99% of the equity of IDB Infrastructure Fund II B.S.C(c), the sole shareholder of MENA Energy Services Holdings Limited, consequently he may be deemed the beneficial owner of the 8,333,333 ordinary shares of the Company that MENA Energy Services Holdings Limited would receive upon conversion of its securities in BPGIC Holdings Limited. Mr. Chowdhury disclaims beneficial ownership of any shares other than to the extent it may have a pecuniary interest therein. |
B. Related Party Transactions
Related party transactions of the Company are described in the Form F-4 in the sections entitled “Certain Relationships and Related Person Transactions,” and “BPGIC’s Management’s Discussion and Analysis of Financial Condition and Results of Operations¾Related Party Transactions,” which are incorporated by reference herein.
C. Interests of Experts and Counsel
Not Applicable.
A. Consolidated Statements and Other Financial Information
See Item 18 of this Report.
B. Significant Changes
A payment of principal and interest due on November 30, 2019 under the Phase I Financing Facilities (as defined in the Form F-4) was not paid as a result of recent discussions between BPGIC and First Abu Dhabi Bank PJSC pertaining to more favorable financing terms. On or around December 29, 2019, BPGIC and First Abu Dhabi Bank PJSC agreed to amend the Phase I Construction Facility (as defined in the Form F-4) to defer the installments due thereunder to later dates. The key changes resulting from the amendment are as follows:
1. | an amount of $5,729,417.50 which was due on November 30, 2019 will now be repayable on February 28, 2020; |
2. | an amount of $1,765,553.50 which was due on January 31, 2020 will now be payable in two installments: $882,776.75 on January 31, 2020 and $882,776.75 on February 28, 2020; and |
3. | the Debt Service Reserve Account to be created by February 28, 2020; and |
4. | testing of the Debt Service Coverage Ratio covenant to start on February 28, 2020 and to be conducted on each subsequent due date. |
A. Offer and Listing Details
Our ordinary shares and warrants are listed on the Nasdaq Capital Market under the symbols BROG and BROGW, respectively. Holders of our ordinary shares and warrants should obtain current market quotations for their securities.
B. Plan of Distribution
Not applicable.
C. Markets
Our ordinary shares and warrants are listed on the Nasdaq Capital Market under the symbols BROG and BROGW, respectively.
D. Selling Shareholders
Not applicable.
E. Dilution
Not applicable.
F. Expenses of the Issue
Not applicable.
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ITEM 10. ADDITIONAL INFORMATION
A. Share Capital
We are authorized to issue 450,000,000 ordinary shares, $0.0001 par value per share, and 50,000,000 preferred shares, $0.0001 par value per share. Prior to the closing of the Business Combination, the Company was authorized to issue 500,000,000 ordinary shares, $0.0001 par value per share and there was one ordinary share issued and outstanding.
As of December 20, 2019, subsequent to the closing of the Business Combination, there were 109,587,754 ordinary shares of outstanding, and no preferred shares outstanding. There were also 21,229,000 warrants outstanding, each to purchase one ordinary share at a price of $11.50 per share.
No Company warrants issued to persons or entities other than the Initial Twelve Seas Shareholders (as defined below) are exercisable for cash unless the Company has an effective and current registration statement covering the ordinary shares issuable upon exercise of the warrants and a current prospectus relating to such ordinary shares. Notwithstanding the foregoing, if a registration statement covering the shares issuable upon exercise of such warrants is not effective within a specified period following the Closing, warrant holders may, until such time as there is an effective registration statement and during any period when we shall have failed to maintain an effective registration statement, exercise warrants on a cashless basis in the same manner as if we called the warrants for redemption and required all holders to exercise their warrants on a “cashless basis.” In such event, each holder would pay the exercise price by surrendering the warrants for that number of ordinary shares equal to the quotient obtained by dividing (x) the product of the number of shares underlying the warrants, multiplied by the difference between the exercise price of the warrants and the “fair market value” (defined below) by (y) the fair market value. The “fair market value” for this purpose will mean the average reported last sale price of the ordinary shares for the ten (10) trading days ending on the trading day prior to the date of exercise. The Company warrants will become exercisable thirty (30) days after the Closing and will expire on the fifth anniversary of the Closing.
The Company warrants issued to the Initial Twelve Seas Shareholders are identical to the other warrants issued in exchange for Twelve Seas warrants, except that the warrants issued to the Initial Twelve Seas Shareholders are exercisable for cash (even if a registration statement covering the ordinary shares issuable upon exercise of such warrants is not effective) or on a cashless basis, at the holder’s option, and will not be redeemable by us, in each case so long as they are still held by the Initial Twelve Seas Shareholders or their affiliates.
We may call the warrants for redemption (excluding the warrants issued to the Initial Twelve Seas Shareholders provided such warrants are still held by the Initial Twelve Seas Shareholders or their affiliates), in whole and not in part, at a price of $0.01 per warrant,
● | at any time while the warrants are exercisable; |
● | upon not less than 30 days’ prior written notice of redemption to each warrant holder; |
● | if, and only if, the reported last sale price of the ordinary shares equals or exceeds $18.00 per share, for any 20 trading days within a 30-day trading period ending on the third business day prior to the notice of redemption to warrant holders; and |
● | if, and only if, there is a current registration statement in effect with respect to the ordinary shares underlying such warrants commencing five business days prior to the 30-day trading period and continuing each day thereafter until the date of redemption. |
The right to exercise will be forfeited unless the warrants are exercised prior to the date specified in the notice of redemption. On and after the redemption date, a record holder of a warrant will have no further rights except to receive the redemption price for such holder’s warrant upon surrender of such warrant. The redemption criteria for the Company’s warrants have been established at a price which is intended to provide warrant holders a reasonable premium to the initial exercise price and provide a sufficient differential between the then-prevailing share price and the warrant exercise price so that if the share price declines as a result of our redemption call, the redemption will not cause the share price to drop below the exercise price of the warrants.
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If we call the warrants for redemption as described above, our management will have the option to require all holders that wish to exercise warrants to do so on a “cashless basis.” In such event, each holder would pay the exercise price by surrendering the warrants for that number of ordinary shares equal to the quotient obtained by dividing (x) the product of the number of ordinary shares underlying the warrants, multiplied by the difference between the exercise price of the warrants and the “fair market value” (defined below) by (y) the fair market value. In this case, the “fair market value” shall mean the average reported last sale price of the ordinary shares for the 10 trading days ending on the third trading day prior to the date on which the notice of redemption is sent to the holders of warrants. Whether we will exercise our option to require all holders to exercise their warrants on a “cashless basis” will depend on a variety of factors including the price of our ordinary shares at the time the warrants are called for redemption, our cash needs at such time and concerns regarding dilutive stock issuances.
The exercise price and number of ordinary shares issuable on exercise of the warrants may be adjusted in certain circumstances including in the event of a share dividend, extraordinary dividend or our recapitalization, reorganization, merger or consolidation. However, the warrants will not be adjusted for issuances of ordinary shares at a price below their respective exercise prices.
The warrants may be exercised upon surrender of the warrant certificate on or prior to the expiration date at the offices of the warrant agent, with the exercise form on the reverse side of the warrant certificate completed and executed as indicated, accompanied by full payment of the exercise price, by certified or official bank check payable to us, for the number of warrants being exercised. The warrant holders do not have the rights or privileges of holders of ordinary shares and any voting rights until they exercise their warrants and receive ordinary shares. After the issuance of ordinary shares upon exercise of the warrants, each holder will be entitled to one vote for each share held of record on all matters to be voted on by shareholders.
Warrant holders may elect to be subject to a restriction on the exercise of their warrants such that an electing warrant holder would not be able to exercise their warrants to the extent that, after giving effect to such exercise, such holder would beneficially own in excess of 9.8% of the ordinary shares outstanding.
No fractional shares will be issued upon exercise of the warrants. If, upon exercise of the warrants, a holder would be entitled to receive a fractional interest in a share, we will, upon exercise, round up or down to the nearest whole number the number of ordinary shares to be issued to the warrant holder.
Brooge Petroleum and Gas Investment Company (BPGIC) PLC sold $75,000,000 of guaranteed subordinated convertible securities due in 2024 (the “Securities”) to MENA Energy Services Holdings Limited on March 31, 2019. The Securities were issued in nominal amounts of $5,000,000. In connection with a restructuring that occurred prior to the consummation of the Business Combination, the Seller, BPGIC Holdings Limited, assumed the Securities in place of Brooge Petroleum and Gas Investment Company (BPGIC) PLC. All (but not part) of the outstanding Securities can be exchanged for ordinary shares of the Company, Brooge Holdings Limited, that were issued to the Seller in the Business Combination. The Securities are exchangeable for 8,333,333 ordinary shares of the Company.
B. Memorandum and Articles of Association
The Company’s objects are unrestricted and the Company shall have full power and authority to carry out any object not prohibited by the laws of the Cayman Islands. The Company’s objects can be found in paragraph number 3 of the Amended and Restated Memorandum of Association of the Company.
A director is free to vote in respect of any contract or transaction in which he or she is interested provided that the nature of the interest of such director in any such contract or transaction shall be disclosed by him or her at or prior to its consideration and any vote thereon. A director may give a general notice that he or she is a shareholder, director, officer or employee of any specified firm or company and is to be regarded as interested in any transaction with such firm or company. Such general notice is sufficient disclosure for the purposes of voting on a resolution in respect of a contract or transaction in which such director has an interest, and after such general notice, such director does not need to give special notice relating to any particular transaction. The directors’ power to vote compensation to be paid to themselves or any members of their body in the absence of an independent quorum is not restricted. The directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and assets (present and future) and uncalled capital or any part thereof and to issue debentures, debenture stock, mortgages, bonds and other such securities whether outright or as security for any debt, liability or obligation of the Company or of any third party. Such borrowing powers can be varied by an amendment to the Articles of Association. There is no age at which directors are required to retire. A person is not required to hold shares of the Company to serve as a director.
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Ordinary shares
The holders of ordinary shares will be entitled to one vote for each share held of record on all matters to be voted on by shareholders. There is no cumulative voting with respect to the election of directors, with the result that the holders of more than 50% of the shares voted for the election of directors can elect all of the directors. Holders of the Company’s ordinary shares will not have any conversion, preemptive or other subscription rights and there will be no sinking fund or redemption provisions applicable to the ordinary shares.
Preferred Shares
The Amended and Restated Memorandum and Articles of Association of the Company authorize the issuance of up to 50,000,000 blank check preferred shares with such designations, rights and preferences as may be determined from time to time by the Company’s board of directors. Accordingly, the Company’s board of directors will be empowered, without shareholder approval, to issue preferred shares with dividend, liquidation, conversion, voting or other rights which could adversely affect the voting power or other rights of the holders of ordinary shares. In addition, the preferred shares could be utilized as a method of discouraging, delaying or preventing a change in control of the Company.
Variation of Rights of Shareholders
If at any time the share capital of the Company is divided into different classes of shares, all or any of the rights attached to any class (unless otherwise provided by the terms of issue of the shares of that class) may, whether or not the Company is being wound up, be varied without the consent of the holders of the issued shares of that class where such variation is considered by the directors not to have a material adverse effect upon such rights. In all other cases, variations shall be made only with the consent in writing of the holders of not less than two thirds of the issued shares of that class, or with the approval of a resolution passed by a majority of not less than two thirds of the votes cast at a separate meeting of the holders of the shares of that class. For the purposes of a separate class meeting, the directors may treat two or more or all the classes of shares as forming one class of shares if the directors consider that such class of shares would be affected in the same way by the proposals under consideration. The rights conferred upon the holders of the shares of any class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be deemed to be varied by the creation or issue of further shares ranking pari passu therewith.
Meetings of Shareholders
The Company may, but shall not (unless required by Cayman Islands law) be obliged to, in each year hold a general meeting as its annual general meeting, and shall specify the meeting as such in the notices calling it. Any annual general meeting shall be held at such time and place as the directors shall appoint. At these meetings the report of the directors (if any) shall be presented. The directors may call general meetings. The directors are required to convene an extraordinary general meeting upon a requisition deposited by not less than twenty percent of par value of the issued shares which at that date carry the right to vote at general meetings. The requisition must state the objects of the meeting and must be signed by the depositing shareholders. Shareholders seeking to bring business before the annual general meeting or to nominate candidates for election as directors at the annual general meeting must deliver notice to the principal executive offices of the Company not later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the scheduled date of the annual general meeting.
At least five clear days’ notice shall be given of any general meeting. Every notice shall specify the place, the day and the hour of the meeting and the general nature of the business to be conducted at the general meeting and shall be given in the manner hereinafter mentioned or in such other manner if any as may be prescribed by the Company, provided that a general meeting of the Company shall, whether or not the required notice has been given and whether or not the provisions of the Amended and Restated Memorandum and Articles of Association regarding general meetings have been complied with, be deemed to have been duly convened if it is so agreed: (i) in the case of an annual general meeting, by all of the shareholders entitled to attend and vote thereat; and (ii) 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 ninety-five per cent in par value of the shares giving that right. The accidental omission to give notice of a general meeting to, or the non-receipt of notice of a general meeting by, any person entitled to receive such notice shall not invalidate the proceedings of that general meeting.
No business shall be transacted at any general meeting unless a quorum is present. The holders of a majority of the shares being individuals present in person or by proxy or if a corporation or other non-natural person by its duly authorized representative or proxy shall be a quorum. A person may participate at 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. Participation by a person in a general meeting in this manner is treated as presence in person at that meeting. 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 to 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 adjourned 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.
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The chairman may, with the consent of a meeting at which a quorum is present (and shall if so directed by the meeting) adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. When a general meeting is adjourned for thirty days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Otherwise it shall not be necessary to give any such notice of an adjourned meeting.
A resolution put to the vote of the meeting shall be decided on a poll. A poll shall be taken as the chairman directs, and the result of the poll shall be deemed to be the resolution of the general meeting at which the poll was demanded. A poll demanded on the election of a chairman or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such date, time and place as the chairman of the general meeting directs, and any business other than that upon which a poll has been demanded or is contingent thereon may proceed pending the taking of the poll. In the case of an equality of votes the chairman shall be entitled to a second or casting vote.
Limitations on Rights to Own Securities
There are no limitations on the rights to own securities in the Company.
Anti-Takeover Provisions
Certain provisions in the Amended and Restated Memorandum and Articles of Association of the Company, such as the super majority voting requirements for amendments thereto, may discourage unsolicited takeover proposals that the Company’s shareholders may consider to be in their best interest and may make the removal of the Company’s incumbent management more difficult. Other anti-takeover provisions under the Amended and Restated Memorandum and Articles of Association of the Company include:
● | Undesignated Preferred Shares. The Company’s board of directors has the ability to designate and issue preferred shares with voting or other rights or preferences that could deter hostile takeovers or delay changes in its control or management. |
● | Directors Removed Only for Cause. The Company’s Amended and Restated Memorandum and Articles of Association provides that shareholders may remove directors only for cause. |
For discussions on risks associated with the above anti-takeover provisions, please see the section of the Form F-4 entitled “Risk Factors — Provisions in Pubco’s amended and restated memorandum and articles of association may inhibit a takeover of us, which could limit the price investors might be willing to pay in the future for Pubco’s securities and could entrench management.”
Bylaw Provision regarding Ownership Disclosure
There is no bylaw provision requiring shareholder ownership to be disclosed above a certain threshold.
Certain Differences of Cayman Islands Law
The Company’s corporate affairs will be governed by its Amended and Restated Memorandum and Articles of Association, the Cayman Islands Companies Law, and the common law of the Cayman Islands. The rights of shareholders to take action against the directors, actions by non-controlling shareholders and the fiduciary responsibilities of the Company’s directors to the Company under Cayman Islands law are to a large extent governed by the common law of the Cayman Islands. The common law of the Cayman Islands is derived in part from comparatively limited judicial precedent in the Cayman Islands as well as from English common law, which has persuasive, but not binding, authority on a court in the Cayman Islands. Your rights as a shareholders and the fiduciary responsibilities of the Company’s directors under Cayman Islands law are different from under statutes or judicial precedent in some jurisdictions in the United States. In particular, the Cayman Islands has a different body of securities laws from the United States and may provide significantly less protection to investors. In addition, some U.S. states, such as Delaware, have different bodies of corporate law than the Cayman Islands.
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The Company has been advised by its Cayman Islands legal counsel, Maples and Calder, that the courts of the Cayman Islands are unlikely (i) to recognize or enforce against the Company judgments of courts of the United States predicated upon the civil liability provisions of the securities laws of the United States or any State and (ii) in original actions brought in the Cayman Islands, to impose liabilities against the Company predicated upon the civil liability provisions of the securities laws of the United States or any State, so far as the liabilities imposed by those provisions are penal in nature. In those circumstances, although there is no statutory enforcement in the Cayman Islands of judgments obtained in the United States, the courts of the Cayman Islands will recognize and enforce a foreign money judgment of a foreign court of competent jurisdiction without retrial on the merits based on the principle that a judgment of a competent foreign court imposes upon the judgment debtor an obligation to pay the sum for which judgment has been given provided certain conditions are met. For a foreign judgment to be enforced in the Cayman Islands, such judgment must be final and conclusive and for a liquidated sum, and must not be in respect of taxes or a fine or penalty, inconsistent with a Cayman Islands judgment in respect of the same matter, impeachable on the grounds of fraud or obtained in a manner, and/or be of a kind the enforcement of which is, contrary to natural justice or the public policy of the Cayman Islands (awards of punitive or multiple damages may well be held to be contrary to public policy). A Cayman Islands Court may stay enforcement proceedings if concurrent proceedings are being brought elsewhere. There is recent Privy Council authority (which is binding on the Cayman Islands Court) in the context of a reorganization plan approved by the New York Bankruptcy Court which suggests that due to the universal nature of bankruptcy/insolvency proceedings, foreign money judgments obtained in foreign bankruptcy/insolvency proceedings may be enforced without applying the principles outlined above. However, a more recent English Supreme Court authority (which is highly persuasive but not binding on the Cayman Islands Court), has expressly rejected that approach in the context of a default judgment obtained in an adversary proceeding brought in the New York Bankruptcy Court by the receivers of the bankruptcy debtor against a third party, and which would not have been enforceable upon the application of the traditional common law principles summarized above and held that foreign money judgments obtained in bankruptcy/insolvency proceedings should be enforced by applying the principles set out above, and not by the simple exercise of the Courts’ discretion. Those cases have now been considered by the Cayman Islands Court. The Cayman Islands Court was not asked to consider the specific question of whether a judgment of a bankruptcy court in an adversary proceeding would be enforceable in the Cayman Islands, but it did endorse the need for active assistance of overseas bankruptcy proceedings. The Company understands that the Cayman Islands Court’s decision in that case has been appealed and it remains the case that the law regarding the enforcement of bankruptcy/insolvency related judgments is still in a state of uncertainty.
The Company is incorporated in the Cayman Islands and following the Business Combination, will initially conduct all of its operations through its subsidiary, BPGIC, in the United Arab Emirates. All of the Company’s assets are located outside the United States. The Company’s officers and directors are expected to reside outside the United States and a substantial portion of the assets of those persons are located outside of the United States. As a result, it could be difficult or impossible for you to bring an action against the Company or against these individuals in the United States in the event that you believe that your rights have been infringed under the applicable securities laws or otherwise. Even if you are successful in bringing an action of this kind, the laws of the Cayman Islands and of the United Arab Emirates could render you unable to enforce a judgment against the Company’s assets or the assets of the Company’s directors and officers.
Shareholders of Cayman Islands exempted companies such as the Company have no general rights under Cayman Islands law to inspect corporate records and accounts or to obtain copies of lists of shareholders of these companies. The Company’s directors have discretion under Cayman Islands law to determine whether or not, and under what conditions, the Company’s corporate records could be inspected by the Company’s shareholders, but are not obliged to make them available to the Company’s shareholders. This could make it more difficult for you to obtain the information needed to establish any facts necessary for a shareholder motion or to solicit proxies from other shareholders in connection with a proxy contest.
As a result of all of the above, the Company shareholders might have more difficulty in protecting their interests in the face of actions taken by management, members of the board of directors or controlling shareholders than they would as public shareholders of a U.S. company.
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C. Material Contracts
Amended Founders’ Share Escrow Agreement
On June 19, 2018, Twelve Seas entered into the Share Escrow Agreement, by and among Twelve Seas, Twelve Seas Sponsors I LLC (“Twelve Seas Sponsor”), Suneel G. Kaji, Gregory Stoupnitzky (Twelve Seas Sponsor, Suneel G. Kaji and Gregory Stoupnitzky collectively, the “Initial Twelve Seas Shareholders”) and Continental Stock Transfer & Trust Company (“Continental”), as escrow agent (the “Founders’ Share Escrow Agreement”). On December 20, 2019, the Company entered into the Share Escrow Agreement Amendment, by and among the Company, Twelve Seas, the Initial Twelve Seas Shareholders and Continental, as escrow agent (the Founders’ Share Escrow Agreement as amended by the Share Escrow Agreement Amendment, the “Amended Founders’ Share Escrow Agreement”). The Amended Founders’ Share Escrow Agreement provides that 2,587,500 shares held by Twelve Seas Sponsor, (the “Founders’ Lock-Up Shares”) will be held in escrow, with 50% of such Founders’ Lock-Up Shares subject to possible release from escrow upon certain milestones being met prior to one year after the date of Closing, but in any event, all Founders’ Lock-Up Shares to be released one year after the date of the Closing. Further, the Founders’ Lock-Up Shares may also be released prior to one year after the date of Closing, if, subsequent to the Closing, the Company consummates a liquidation, merger, share exchange or other similar transaction which results in all of its shareholders having the right to exchange their ordinary shares for cash, securities or other property. During the Escrow Period (as defined in the Amended Founders’ Share Escrow Agreement), the only permitted transfers of the Founders’ Lock-Up Shares will be (i) for transfers to the Company’s officers, directors or their respective affiliates (including, where an Initial Twelve Seas Shareholder is an entity, as a distribution to partners, members or shareholders of such Initial Twelve Seas Shareholder upon its liquidation and dissolution) (ii) by bona fide gift to a member of the Initial Twelve Seas Shareholder’s immediate family or to a trust, the beneficiary of which is the Initial Twelve Seas Shareholder or a member of the Initial Twelve Seas Shareholder’s immediate family for estate planning purposes, (iii) by virtue of the laws of descent and distribution upon death of the Initial Twelve Seas Shareholder, (iv) pursuant to a qualified domestic relations order, (v) by certain pledges to secure obligations incurred in connection with purchases of the Company’s securities, (vi) by private sales made at or prior to the consummation of the transactions under the Business Combination Agreement at prices no greater than the price at which the Founders’ Lock-Up Shares were originally purchased or (vii) to the Company for cancellation or in connection with the consummation of the transactions under the Business Combination, in each case, except for clause (vii) or with the Company’s prior consent, on the condition that such transfers may be implemented only upon the respective transferee’s written agreement (in a form reasonably acceptable to the Company) to be bound, inter alia, by the terms and conditions of the Amended Founders’ Share Escrow Agreement.
The description of the Amended Founders’ Share Escrow Agreement does not purport to summarize all of the provisions of the agreement and is qualified in its entirety by reference to both the full text of such agreement, a copy of which was filed by Twelve Seas as Exhibit 10.3 to the Current Report on Form 8-K, filed by Twelve Seas with the SEC on June 25, 2018 and is incorporated by reference herein as Exhibit 4.7, and by reference to the full text of the amendment to such agreement, a copy of which is attached hereto and incorporated by reference herein as Exhibit 4.75.
A&R Founders’ Registration Rights Agreement
The Company entered into the Amended and Restated Founders’ Registration Rights Agreement (the “A&R Founders’ Registration Rights Agreement”), dated as of December 20, 2019, by and among the Company, Twelve Seas, EarlyBirdCapital, Inc. (“EBC”) and the Initial Twelve Seas Shareholders (the Initial Twelve Seas Shareholders and EBC, collectively the “Twelve Seas Insiders” and the securities held by the Twelve Seas Insiders the “Twelve Seas Insider Securities”). Pursuant to the A&R Founders’ Registration Rights Agreement, the holders of a majority-in-interest of the Twelve Seas Insider Securities are entitled to make demands that the Company register such securities, however the Company is not obligated to effect more than an aggregate of two such demand registrations. With respect to such Twelve Seas Insider Securities which are subject to escrow under the Amended Founders’ Share Escrow Agreement, the holders of the majority-in-interest of the Twelve Seas Insider Securities can elect to exercise their registration rights at any time commencing two months prior to the date on which such securities are to be released from escrow under the Amended Founders’ Share Escrow Agreement. With respect to such Twelve Seas Insider Securities which are subject to escrow under the Initial Shareholder Escrow Agreement, the holders of the majority-in-interest of the Twelve Seas Insider Securities can elect to exercise their registration rights when such securities are released from escrow under the Initial Shareholder Escrow Agreement. With respect to such Twelve Seas Insider Securities which are not subject to any escrow, the registration rights may be exercised at any time on or after the date of Closing. Subject to certain exceptions, if the Company proposes to file a registration statement under the Securities Act with respect to the registration of or an offering of equity securities, under the A&R Founders Registration Rights Agreement, the Company shall give notice to the Twelve Seas Insiders and all other holders of Registrable Securities (as defined in the A&R Founders’ Registration Rights Agreement) as to the proposed filing and offer them an opportunity to register the sale of such number of Registrable Securities as requested by the holders in writing, subject to customary cut-backs. In addition, the A&R Founders’ Registration Rights Agreement provides that subject to certain exceptions, the holders of Registrable Securities shall be entitled under the A&R Founders’ Registration Rights Agreement to request in writing that the Company register the resale of any or all of such Registrable Securities on Form F-3 or S-3 and any similar short-form registration that may be available at such time. Under the A&R Founders’ Registration Rights Agreement, the Company agrees to indemnify the holders of Registrable Securities and certain persons or entities related to them, such as their officers, directors, employees, agents and representatives, against any losses or damages resulting from any untrue statement of a material fact or omission of a material fact in any registration statement or prospectus pursuant to which they sell such Registrable Securities, unless such liability arose from the Company’s reliance upon and conformity with information furnished in writing by such holder (or certain persons or entities related to them), for use in such documents. The holders of Registrable Securities will indemnify the Company and certain persons or entities related to the Company, such as its officers and directors and underwriters, against any losses that arise out of or are based upon such untrue statement of a material fact or omission to state a material fact, in any registration statement or prospectus pursuant to which they sell their Registrable Securities, where they were made (or not made) by the Company in reliance upon and in conformity with information furnished in writing to it by such holder.
The description of the A&R Founders’ Registration Rights Agreement does not purport to summarize all of the provisions of the agreement and is qualified in its entirety by reference to the full text of such agreement, a copy of which is attached hereto and incorporated by reference herein as Exhibit 4.74.
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Seller Escrow Agreement
As contemplated by the Business Combination Agreement, at the Closing, Twenty Million (20,000,000) of the Company’s ordinary shares otherwise issuable to Seller at the Closing (together with any equity securities paid as dividends or distributions with respect to such shares or into which such shares are exchanged or converted, the “Seller Escrow Shares”) were instead issued to Seller in escrow, and are held by Continental, as escrow agent for the benefit of Seller, to be held and controlled, along with any other Escrow Property (as defined in the Seller Escrow Agreement and together with the Seller Escrow Shares, the “Seller Escrow Property”) by Continental in a separate segregated escrow account (the “Seller Escrow Account”), and released in accordance with the Escrow Agreement, dated as of May 10, 2019, by and among the Company, Continental and Seller (as assignee of Brooge Petroleum and Gas Investment Company (BPGIC) PLC) as amended by the First Amendment to the Escrow Agreement, dated December 20, 2019, by and among Seller, Continental and the Company (as amended, the “Seller Escrow Agreement”).
While the Seller Escrow Property is held in the Seller Escrow Account, Seller shall have all voting, consent and other rights (other than the rights to dividends, distributions or other income paid or accruing to the Seller Escrow Property). The Seller Escrow Agreement provides, however, that after the Closing, Seller shall be permitted to (i) pledge or otherwise encumber the Seller Escrow Property as collateral security for documented loans entered into by Seller, the Company or its subsidiaries, including BPGIC, after the Closing or (ii) transfer its rights to the Seller Escrow Property to a third party, provided, that (a) in each case of clauses (i) and (ii), that the lender’s or transferee’s rights to any such pledged or transferred Seller Escrow Property shall be subject to the provisions of the Seller Escrow Agreement and the sections of the Business Combination Agreement pertaining to the escrow, including the forfeiture provisions contained therein, and (b) in the event of a pledge or encumbrance of the Seller Escrow Property under clause (i) above, Seller may transfer the Seller Escrow Property to another escrow agent selected by Seller and reasonably acceptable to the Company.
The Seller Escrow Property will only become vested and not subject to forfeiture, and released to Seller, in the event that the Company meets the following performance or milestone requirements during the period commencing from the Closing until the end of the twentieth (20th) fiscal quarter after the commencement date of the first full fiscal quarter beginning after the Closing (such period, the “Seller Escrow Period”):
(i) One-half (½) of the Seller Escrow Property shall become vested and no longer subject to forfeiture, and be released to Seller, in the event that either: (a) the Annualized EBITDA (as defined in the Seller Escrow Agreement) for any full fiscal quarter during the Seller Escrow Period (beginning with the first full fiscal quarter beginning after the Closing) (an “Seller Escrow Quarter”) equals or exceeds $175,000,000 or (b) at any time during the Seller Escrow Period, the closing price of the Company ordinary shares equals or exceeds $12.50 per share (subject to equitable adjustment) for any ten (10) Trading Days (as defined in the Seller Escrow Agreement) within any twenty (20) Trading Day period during the Seller Escrow Period.
(ii) All Seller Escrow Property remaining in the Seller Escrow Account shall become vested and no longer subject to forfeiture, and be released to Seller, in the event that either: (a) the Annualized EBITDA for any Seller Escrow Quarter equals or exceeds $250,000,000 or (b) at any time during the Seller Escrow Period, the closing price of the Company ordinary shares equals or exceeds $14.00 per share (subject to equitable adjustment) for any ten (10) Trading Days within any twenty (20) Trading Day period during the Seller Escrow Period.
The Annualized EBITDA for each fiscal quarter is equal to four times the earnings before interest, income taxes, depreciation and amortization of the Company and its subsidiaries, on a consolidated basis, for such fiscal quarter, as determined in accordance with IFRS, consistently applied, but subject to certain adjustments set forth on Exhibit A to the Seller Escrow Agreement.
At the end of the Seller Escrow Period, if there is any Seller Escrow Property which has not vested and that Seller is not entitled to receive in accordance with the Seller Escrow Agreement and the Business Combination Agreement, such Seller Escrow Property will be forfeited and automatically surrendered by Seller and distributed to the Company from the Seller Escrow Account, for cancellation by the Company. All actions or determinations on behalf of the Company under the Seller Escrow Agreement after the Closing (other than certain reports to be delivered by the Company’s chief financial officer) will be exclusively made and determined by a majority of the independent directors then serving on the Company’s board of directors that are disinterested in the Seller Escrow Property.
The description of the Seller Escrow Agreement does not purport to summarize all of the provisions of the agreement and is qualified in its entirety by reference to both the full text of such agreement, a copy of which was filed by Twelve Seas as Exhibit 10.1 to the Current Report on Form 8-K, filed by Twelve Seas with the SEC on May 13, 2019 and is incorporated by reference herein as Exhibit 4.59, and by reference to the full text of the First Amendment to such agreement, a copy of which is attached hereto and incorporated by reference herein as Exhibit 4.72.
Initial Shareholder Escrow Agreement
As contemplated by the Business Combination Agreement, at the Closing, One Million Five Hundred Fifty-Two Thousand Five Hundred (1,552,500) of the Company’s ordinary shares otherwise issuable to the Initial Twelve Seas Shareholders at the Closing (together with any equity securities paid as dividends or distributions with respect to such shares or into which such shares are exchanged or converted, the “Founders’ Earn-Out Escrow Shares” and together with the Founders’ Lock-Up Shares, the “Founders’ Shares”) were instead issued to the Initial Twelve Seas Shareholders in escrow and are held by Continental, as escrow agent for the benefit of the Initial Twelve Seas Shareholders to be held and controlled, along with any other Founder Escrow Property (as defined in the Initial Shareholder Earn-Out Escrow Agreement and together with the Founders’ Earn-Out Escrow Shares, the “Founders’ Earn-Out Escrow Property”) by Continental in a separate segregated escrow account (the “Founders’ Earn-Out Escrow Account”), and released in accordance with the Escrow Agreement, dated December 20, 2019 by and among the Initial Twelve Seas Shareholders, Continental and the Company (the “Initial Shareholder Escrow Agreement”).
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While the Founders’ Earn-Out Escrow Property is held in the Founders’ Earn-Out Escrow Account, the Initial Twelve Seas Shareholders shall have all voting, consent and other rights (other than the rights to dividends, distributions or other income paid or accruing to the Founders’ Earn-Out Escrow Property). The Initial Shareholder Escrow Agreement provides, however, that each Initial Twelve Seas Shareholder shall be permitted to (i) pledge or otherwise encumber such Initial Twelve Seas Shareholder’s portion of the Founders’ Earn-Out Escrow Property as collateral security for documented loans entered into by such Initial Twelve Seas Shareholder, the Company or its subsidiaries, including BPGIC, after the Closing or (ii) transfer its rights to the Founders’ Earn-Out Escrow Property to a third party, provided, that (a) in each case of clauses (i) and (ii), that the lender’s or transferee’s rights to any such pledged or transferred Founders’ Earn-Out Escrow Property shall be subject to the provisions of the Initial Shareholder Escrow Agreement, the Voting Agreement (as applicable) and the Founder Share Letter (as defined in the Initial Shareholder Escrow Agreement), including the forfeiture provisions contained therein, and (b) in the event of a pledge or encumbrance of the Founders’ Earn-Out Escrow Property under clause (i) above, such Initial Twelve Seas Shareholder may transfer such Initial Twelve Seas Shareholder’s portion of the Founders’ Earn-Out Escrow Property to another escrow agent selected by such Initial Twelve Seas Shareholder and reasonably acceptable to the Company.
The Founders’ Earn-Out Escrow Property will only become vested and not subject to forfeiture, and released to the Initial Twelve Seas Shareholders (on the same proportional basis) upon the same events and milestones triggering, and at the same time as, the release of the Seller Escrow Property.
At the end of the Seller Escrow Period, if there is any Founders’ Earn-Out Escrow Property which has not vested and that the Initial Twelve Seas Shareholders are not entitled to receive in accordance with the Founder Share Letter and the Initial Shareholder Escrow Agreement (which will occur upon a determination being made under the Seller Escrow Agreement and the Business Combination Agreement that forfeitures shall be made with respect to the Seller Escrow Property), such Founders’ Earn-Out Escrow Property will be forfeited and automatically surrendered by the Initial Twelve Seas Shareholders and distributed to the Company from the Founders’ Earn-Out Escrow Account, for cancellation by the Company.
In connection with an agreement between Twelve Seas Sponsor and Magnetar Financial LLC and certain of its affiliates (collectively, “Magnetar”) whereby Twelve Seas Sponsor pledged, inter alia, its Founders’ Earn-Out Escrow Shares to Magnetar as collateral, the Company agreed that, if the other pledged collateral is not sufficient to cover Twelve Seas Sponsor’s obligations to Magnetar, the Company will waive the escrow release conditions and release up to 100% of Twelve Seas Sponsor’s Founders’ Earn-Out Escrow Shares, as necessary, to cover the remainder of Twelve Seas’ Sponsor's obligations to Magnetar (such agreement the “Limited Waiver”).
The description of the Initial Shareholder Escrow Agreement does not purport to summarize all of the provisions of the agreement and is qualified in its entirety by reference to both the full text of such agreement, a copy of which is attached hereto and incorporated by reference herein as Exhibit 4.77 and the Limited Waiver of such agreement, a copy of which is attached hereto and incorporated by reference herein as Exhibit 4.83.
The description of the Limited Waiver does not purport to summarize all of the provisions of the Limited Waiver and is qualified in its entirety by reference to the full text thereof, a copy of which is attached hereto and incorporated by reference herein as Exhibit 4.83.
Seller Registration Rights Agreement
Pursuant to the Business Combination Agreement, the Company and Seller have entered into the registration rights agreement, dated December 20, 2019 (the “Seller Registration Rights Agreement”), which became effective upon the Closing, with respect to the ordinary shares of the Company received by the Seller at the Closing (the “Seller Shares”). Under the Seller Registration Rights Agreement, the Seller has registration rights that obligate the Company to register for resale under the Securities Act all or any portion of the Seller Shares (together with any securities issued as a dividend or distribution with respect thereto or in exchange therefor, the “Seller Registrable Securities”), except that the Company is not obligated to register Seller Registrable Securities subject to the Seller Escrow Agreement until they are released from the Seller Escrow Account. The holders of a majority-in-interest of the Seller Registrable Securities are entitled under the Seller Registration Rights Agreement to make written demands for registration under the Securities Act of all or part of their Seller Registrable Securities (provided, however, that the Company is not obligated to effect more than four (4) of such written demands), and the other holders of Seller Registrable Securities will be entitled to join in such demand registration. Subject to certain exceptions, if the Company proposes to file a registration statement under the Securities Act with respect to the registration of or an offering of equity securities, under the Seller Registration Rights Agreement, the Company shall give notice to the Seller and all other holders of Seller Registrable Securities as to the proposed filing and offer them an opportunity to register the sale of such number of Registrable Securities as requested by the holders in writing, subject to customary cut-backs. In addition, the Seller Registration Rights Agreement provides that subject to certain exceptions, the holders of Seller Registrable Securities shall be entitled under the Seller Registration Rights Agreement to request in writing that the Company register the resale of any or all of such Seller Registrable Securities on Form F-3 or S-3 and any similar short-form registration that may be available at such time. Under the Seller Registration Rights Agreement, the Company agrees to indemnify the holders of Seller Registrable Securities and certain persons or entities related to them, such as their officers, directors, employees, agents and representatives, against any losses or damages resulting from any untrue statement of a material fact or omission of a material fact in any registration statement or prospectus pursuant to which they sell Seller Registrable Securities, unless such liability arose from the Company’s reliance upon and conformity with information furnished in writing by such holder (or certain persons or entities related to them), for use in such documents. The holders of Seller Registrable Securities will indemnify the Company and certain persons or entities related to the Company, such as its officers and directors and underwriters, against any losses that arise out of or are based upon such untrue statement of a material fact or omission to state to material fact, in any registration statement or prospectus pursuant to which they sell their Seller Registrable Securities, where they were made (or not made) by the Company in reliance upon and in conformity with information furnished in writing to it by such holder.
The description of the Seller Registration Rights Agreement does not purport to summarize all of the provisions of the agreement and is qualified in its entirety by reference to the full text of such agreement, a copy of which is attached hereto and incorporated by reference herein as Exhibit 4.76.
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Amendment to Warrant Agreement and Rights Agreement
On June 19, 2018, Twelve Seas entered into both the Warrant Agreement and the Rights Agreement with Continental, pursuant to which Continental agreed to act as Twelve Seas’ warrant agent with respect to the issuance, registration, transfer, exchange, redemption and exercise of Twelve Seas’ warrants, and to act as Twelve Seas’ rights agent with respect to the issuance, registration, transfer and exchange of Twelve Seas’ rights.
On December 20, 2019, the Company, Twelve Seas and Continental entered into the Amendment to Warrant Agreement and Rights Agreement pursuant to which the Company became party to each of the Warrant Agreement and the Rights Agreement and the parties revised the terms of such agreements in order to, amongst other things, reflect the conversion of each Twelve Seas warrant into a warrant of the Company having substantially the same terms and conditions as such original Twelve Seas warrant, and each Twelve Seas right converted into 1/10th of one ordinary share of the Company.
The description of the Amendment to Warrant Agreement and Rights Agreement does not purport to summarize all of the provisions of the agreements and is qualified in its entirety by reference to the full text of (i) the Warrant Agreement, a copy of which was filed by Twelve Seas as Exhibit 4.1 to the Current Report on Form 8- K, filed by Twelve Seas with the SEC on June 25, 2018 and is incorporated by reference herein as Exhibit 2.3, (ii) the Rights Agreement, a copy of which was filed by Twelve Seas as Exhibit 4.2 to the Current Report on Form 8-K, filed by Twelve Seas with the SEC on June 25, 2018 and is incorporated by reference herein as Exhibit 2.4, and (iii) the Amendment to Warrant Agreement and Rights Agreement, a copy of which is attached hereto and incorporated by reference herein as Exhibit 2.5.
Business Combination Marketing Agreement Fee Amendment
Twelve Seas engaged EBC to assist it in connection with Twelve Seas’ initial business combination. Pursuant to this arrangement, EBC assisted Twelve Seas in holding meetings with Twelve Seas shareholders to discuss the Business Combination and BPGIC’s business’ attributes, introduced Twelve Seas to potential investors that may have been interested in purchasing Twelve Seas’ securities in connection with the Business Combination, assisted Twelve Seas in obtaining shareholder approval for the Business Combination and assisted Twelve Seas with its press releases and certain public filings in connection with the Business Combination. Pursuant to the original agreement, Twelve Seas agreed to pay EBC a cash fee equal to 3.5% of the gross proceeds received in its initial public offering for such services upon the consummation of its initial business combination (exclusive of any applicable finders’ fees which might become payable); provided that up to 1.0% of the gross proceeds of initial public offering could be allocated at Twelve Seas’ sole discretion to one or more advisors that assisted Twelve Seas in identifying and consummating an initial business combination. Twelve Seas also agreed to reimburse EBC for up to $20,000 of its reasonable costs and expenses incurred by it (including reasonable fees and disbursements of counsel) in connection with the performance of its services pursuant to the agreement; provided, however, all expenses in excess of $5,000 in the aggregate required Twelve Seas’ prior written approval, which approval would not be unreasonably withheld.
Pursuant to the Business Combination Agreement, on December 20, 2019, Twelve Seas, EBC, and the Company entered into the Business Combination Marketing Agreement Fee Amendment (the “BCMA Fee Amendment”) whereby the Company became party to the Business Combination Marketing Agreement solely with respect to the provision relating to EBC’s fees and EBC’s fees were amended. Pursuant to the Business Combination Marketing Agreement, as amended by the BCMA Fee Amendment, EBC received as full payment for any and all fees under the Business Combination Marketing Agreement, a cash fee equal to $3 million and a $1.5 million non-interest bearing promissory note of the Company due and payable on the earlier of (i) the first anniversary of the Closing and (ii) the consummation by the Company of a follow-on securities offering. After an event of default, the promissory note would bear interest at the rate of 10% per annum.
The description of the BCMA Fee Amendment does not purport to summarize all of the provisions of the agreement and is qualified in its entirety by reference to the full text of (i) the Business Combination Marketing Agreement, a copy of the form of which was filed by Twelve Seas as Exhibit 1.2 to the Registration Statement on Form S-1/A (File No. 001-225352), filed with the SEC on June 14, 2018 and is incorporated by reference herein as Exhibit 4.13, (ii) the BCMA Fee Amendment, a copy of which is attached hereto and incorporated by reference herein as Exhibit 4.78, and (iii) the $1,500,000 Promissory Note issued to EBC, a copy of which is attached hereto and incorporated by reference herein as Exhibit 4.79.
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Voting Agreement
Pursuant to the Business Combination Agreement, Seller and the Initial Twelve Seas Shareholders entered into the Voting Agreement, dated December 20, 2019 in favor of the Seller (the “Voting Agreement”). The Voting Agreement applies to the ordinary shares and other voting securities of the Company issued to the Initial Twelve Seas Shareholders upon the consummation of the Business Combination (including upon the conversion, exercise, exchange of their securities in Twelve Seas) as well as other securities the Initial Twelve Seas Shareholders acquired or agreed to acquire up to and including the time of Closing (collectively, the “Subject Shares”). The Voting Agreement provides that from and after the Closing until the Voting Agreement terminates with respect to each Initial Twelve Seas Shareholder, at each meeting of the shareholders of the Company and in each written consent or resolutions of the Company shareholders in which an Initial Twelve Seas Shareholder is entitled to vote, consent or approve, such Initial Twelve Seas Shareholder unconditionally and irrevocably agrees to be present for such meeting and vote its Subject Shares (in person or by proxy), as directed by Seller, or consent to any action by written consent or resolution with respect to all such matters, as directed by the Seller. The Voting Agreement terminates upon the earlier to occur of (i) the mutual written consent of the Seller and the Initial Twelve Seas Shareholders and (ii) with respect to any Initial Twelve Seas Shareholder, automatically on the date such Initial Twelve Seas Shareholder no longer holds any Subject Shares.
The description of the Voting Agreement does not purport to summarize all of the provisions of the agreement and is qualified in its entirety by reference to the full text of such agreement, a copy of which is attached hereto and incorporated by reference herein as Exhibit 4.73.
Dividend Waivers
Prior to the Closing, the Seller, MENA Energy Services Holdings Limited (“MENA”), the Twelve Seas Insiders and certain assignees of EBC (collectively the “Waiving Holders”) signed and delivered to the Company dividend waivers pursuant to which such Waiving Holders waived, for a period of two years from the date of Closing (the “Waiver Term”), their rights to any dividends with respect to (i) the Exchange Shares, (ii) the Founders’ Shares, and (iii) the ordinary shares issued to EBC and its affiliates in connection with Twelve Seas’ initial public offering. Each dividend waiver terminates upon the earliest to occur of (i) the expiration of the Waiver Term, and (ii) with respect to the Twelve Seas Insiders and EBC, if the Company and/or the Seller or MENA modify their waiver of their rights to dividends in any way.
The description of the Dividend Waiver does not purport to summarize all of the provisions thereof and is qualified in its entirety by reference to the full text of such waiver, a copy of the form of which is attached hereto and incorporated by reference herein as Exhibit 4.80.
Amendment to Phase I Construction Facility Letter
The Amendment to Phase I Construction Facility Letter and the Amendment to the Master Forward Lease Agreement, each dated as of December 29, 2019, each by and between BPGIC and First Abu Dhabi Bank PJSC are described in Item 8.B which description is incorporated herein by reference.
The description of the Amendment to Phase I Construction Facility Letter and the Amendment to the Master Forward Lease Agreement, does not purport to summarize all of the provisions thereof and is qualified in its entirety by reference to the full text of such amendments, copies of which are attached hereto and incorporated by reference herein as Exhibit 4.82 and Exhibit 4.84, respectively.
Other Material Contracts
The Company’s other material contracts governing its business are described in our Form F-4, in the sections entitled “Business of BPGIC”, “BPGIC’s Management’s Discussion and Analysis of Financial Condition and Results of Operations”, and “The Business Combination Proposal” each of which is incorporated by reference herein. BPGIC’s material contracts governing its business are described in our Form F-4, in the section entitled “Business of BPGIC” and “BPGIC’s Management’s Discussion and Analysis of Financial Condition and Results of Operations” each of which is incorporated by reference herein.
The descriptions of the other material contracts in our Form F-4 do not purport to summarize all of the provisions of such other material contracts and are qualified in their entirety by reference to the full text of such agreements, copies of which were attached as exhibits to our Form F-4 and are incorporated herein as exhibits.
D. Exchange Controls and Other Limitations Affecting Security Holders
Under the laws of the Cayman Islands, there are currently no restrictions on the export or import of capital, including foreign exchange controls or restrictions that affect the remittance of dividends, interest or other payments to nonresident holders of our ordinary shares.
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E. Taxation
The following description is not intended to constitute a complete analysis of all tax consequences relating to the ownership and disposition of our securities. You should consult your own tax advisor concerning the tax consequences of your particular situation, as well as any tax consequences that may arise under the laws of any state, local, foreign or other taxing jurisdiction.
United States of America
This section is addressed to U.S. Holders of ordinary shares of the Company. Unless otherwise indicated, “ordinary shares” refers to ordinary shares of the Company.
Taxation of Dividends and Other Distributions on Ordinary Shares
Subject to the passive foreign investment company rules discussed below, the gross amount of distributions made by the Company to you with respect to its ordinary shares (including the amount of any taxes withheld therefrom) will generally be includable in your gross income as dividend income on the date of receipt by you, but only to the extent that the distribution is paid out of the Company’s current or accumulated earnings and profits (as determined under U.S. federal income tax principles). With respect to corporate U.S. Holders, the dividends will generally not be eligible for the dividends-received deduction allowed to corporations in respect of dividends received from other U.S. corporations.
With respect to non-corporate U.S. Holders, including individual U.S. Holders, dividends will be taxed at the lower capital gains rate applicable to qualified dividend income, provided that (1) our ordinary shares are readily tradable on an established securities market in the United States, or the Company is eligible for the benefits of an approved qualifying income tax treaty with the United States that includes an exchange of information program, (2) the Company is not a passive foreign investment company (as discussed below) for either the taxable year in which the dividend is paid or the preceding taxable year, and (3) certain holding period requirements are met. You are urged to consult your tax advisors regarding the availability of the lower rate for dividends paid with respect to the Company’s ordinary shares.
To the extent that the amount of the distribution exceeds the Company’s current and accumulated earnings and profits (as determined under U.S. federal income tax principles), it will be treated first as a tax-free return of your tax basis in your ordinary shares, and to the extent the amount of the distribution exceeds your tax basis, the excess will be taxed as capital gain. We do not intend to calculate the Company’s earnings and profits under U.S. federal income tax principles.
Therefore, a U.S. Holder should expect that a distribution will be treated as a dividend even if that distribution would otherwise be treated as a non-taxable return of capital or as capital gain under the rules described above.
Taxation of Dispositions of the Company’s Ordinary Shares
Subject to the passive foreign investment company rules discussed below, you will recognize taxable gain or loss on any sale, exchange or other taxable disposition of a Company ordinary share equal to the difference between the amount realized (in U.S. dollars) for the ordinary share and your tax basis (in U.S. dollars) in the ordinary share. The gain or loss will be capital gain or loss. If you are a non-corporate U.S. Holder, including an individual U.S. Holder, who has held the ordinary shares for more than one year, you may be eligible for reduced tax rates on any such capital gains. The deductibility of capital losses is subject to limitations.
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Passive Foreign Investment Company
A foreign (i.e., non-U.S.) corporation will be a PFIC for U.S. tax purposes if at least 75% of its gross income in a taxable year of such foreign corporation, including its pro rata share of the gross income of any corporation in which it is considered to own at least 25% of the shares by value, is passive income. Alternatively, a foreign corporation will be a PFIC if at least 50% of its assets in a taxable year, ordinarily determined based on fair market value and averaged quarterly over the year, including its pro rata share of the assets of any corporation in which it is considered to own at least 25% of the shares by value, are held for the production of, or produce, passive income. Passive income generally includes dividends, interest, rents and royalties (other than certain rents or royalties derived from the active conduct of a trade or business) and gains from the disposition of passive assets. In determining the value and composition of its assets for purposes of the PFIC asset test, (1) the cash the Company owns at any time will generally be considered to be held for the production of passive income and (2) the value of the Company’s assets must be determined based on the market value of its ordinary shares from time to time, which could cause the value of its non-passive assets to be less than 50% of the value of all of its assets (including cash) on any particular quarterly testing date for purposes of the asset test.
A determination as to whether the Company is a PFIC with respect to any particular tax year will be made following the end of such tax year. If the Company is a PFIC for any year during which you hold the Company’s ordinary shares, it will continue to be treated as a PFIC for all succeeding years during which you hold ordinary shares. However, if the Company ceases to be a PFIC and you did not previously make a timely “mark-to-market” election as described below, you may avoid some of the adverse effects of the PFIC regime by making a “purging election” (as described below) with respect to the ordinary shares.
If the Company is determined to be a PFIC for any taxable year (or portion thereof) that is included in the holding period of a U.S. Holder of the Company securities and, in the case of the ordinary shares, the U.S. Holder did not make a timely “mark-to-market” election, as described below, such holder generally will be subject to special rules for regular U.S. federal income tax purposes with respect to:
● | any gain recognized by the U.S. Holder on the sale or other disposition of the Company securities; and |
● | any “excess distribution” made to the U.S. Holder (generally, any distributions to such U.S. Holder during a taxable year of the U.S. Holder that are greater than 125% of the average annual distributions received by such U.S. Holder in respect of the Company securities during the three preceding taxable years of such U.S. Holder or, if shorter, such U.S. Holder’s holding period for such securities). |
Under these rules,
● | the U.S. Holder’s gain or excess distribution will be allocated ratably over the U.S. Holder’s holding period for such securities; |
● | the amount allocated to the U.S. Holder’s taxable year in which the U.S. Holder recognized the gain or received the excess distribution, or to the period in the U.S. Holder’s holding period before the first day of the Company’s first taxable year in which it is a PFIC, will be taxed as ordinary income; |
● | the amount allocated to other taxable years (or portions thereof) of the U.S. Holder and included in its holding period will be taxed at the highest tax rate in effect for that year and applicable to the U.S. Holder; and |
● | the interest charge generally applicable to underpayments of tax will be imposed in respect of the tax attributable to each such other taxable year(s) of the U.S. Holder. |
If a U.S. Holder, at the close of its taxable year, owns (or is deemed to own) shares in a PFIC that are treated as marketable shares, the U.S. Holder may make a “mark-to-market” election with respect to such shares for such taxable year. If the U.S. Holder makes a valid mark-to-market election for the first taxable year of the U.S. Holder in which the U.S. Holder holds (or is deemed to hold) Company ordinary shares and for which the Company is determined to be a PFIC, such holder generally will not be subject to the PFIC rules described above in respect to its ordinary shares as long as such shares continue to be treated as marketable shares. Instead, in general, the U.S. Holder will include as ordinary income each year that the Company is treated as a PFIC the excess, if any, of the fair market value of such U.S. Holder’s ordinary shares at the end of its taxable year over the adjusted basis in its ordinary shares. The U.S. Holder also will be allowed to take an ordinary loss in respect of the excess, if any, of the adjusted basis of its Ordinary Shares over the fair market value of such shares at the end of the U.S. Holder’s taxable year (but only to the extent of the net amount of previously included income as a result of the mark-to-market election). The U.S. Holder’s adjusted tax basis in its ordinary shares will be adjusted to reflect any such income or loss amounts, and any further gain recognized on a sale or other taxable disposition of the shares in a taxable year in which the Company is treated as a PFIC will be treated as ordinary income. Special tax rules may also apply if a U.S. Holder makes a mark-to-market election for a taxable year after the first taxable year in which the U.S. Holder holds (or is deemed to hold) ordinary shares and for which the Company is treated as a PFIC.
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The mark-to-market election is available only for stock that is regularly traded on a national securities exchange that is registered with the Securities and Exchange Commission, including NASDAQ Capital Market, or on a foreign exchange or market that the IRS determines has rules sufficient to ensure that the market price represents a legitimate and sound fair market value. U.S. Holders should consult their own tax advisors regarding the availability and tax consequences of a mark-to-market election in respect to the Company’s ordinary shares under their particular circumstances.
Alternatively, a U.S. Holder of stock in a PFIC may make a “qualified electing fund” election with respect to such PFIC to elect out of the tax treatment discussed above. A U.S. Holder who makes a valid qualified electing fund election with respect to a PFIC will generally include in gross income for a taxable year such holder’s pro rata share of the corporation’s earnings and profits for the taxable year. However, the qualified electing fund election is available only if such PFIC provides such U.S. Holder with certain information regarding its earnings and profits as required under applicable U.S. Treasury regulations. The Company does not currently intend to prepare or provide the information that would enable you to make a qualified electing fund election. If you hold ordinary shares in any taxable year in which the Company is a PFIC, you will be required to file U.S. Internal Revenue Service Form 8621 in each such year and provide certain annual information regarding such ordinary shares, including regarding distributions received on the ordinary shares and any gain realized on the disposition of the ordinary shares.
If you do not make a timely “mark-to-market” election (as described above), and if the Company were a PFIC at any time during the period you hold its ordinary shares, then such ordinary shares will continue to be treated as stock of a PFIC with respect to you even if the Company ceases to be a PFIC in a future year, unless you make a “purging election” for the year we cease to be a PFIC. A “purging election” creates a deemed sale of such ordinary shares at their fair market value on the last day of the last year in which the Company is treated as a PFIC. The gain recognized by the purging election will be subject to the special tax and interest charge rules treating the gain as an excess distribution, as described above. As a result of the purging election, you will have a new basis (equal to the fair market value of the ordinary shares on the last day of the last year in which the Company is treated as a PFIC) and holding period (which new holding period will begin the day after such last day) in your ordinary shares for tax purposes.
The rules dealing with PFICs and with the QEF and mark-to-market elections are very complex and are affected by various factors in addition to those described above. Accordingly, you are urged to consult your tax advisors regarding the application of the PFIC rules to your investment in the Company’s ordinary shares and the elections discussed above.
Information Reporting and Backup Withholding
Certain U.S. Holders are required to report information to the IRS relating to an interest in “specified foreign financial assets,” including shares issued by a non-U.S. corporation, for any year in which the aggregate value of all specified foreign financial assets exceeds US$50,000 (or a higher dollar amount prescribed by the IRS), subject to certain exceptions (including an exception for shares held in custodial accounts maintained with a United States financial institution). These rules also impose penalties if a U.S. Holder is required to submit such information to the IRS and fails to do so.
Dividend payments with respect to the Company’s ordinary shares and proceeds from the sale, exchange or redemption of the Company’s ordinary shares may be subject to information reporting to the IRS and possible U.S. backup withholding at a current rate of 24%. Backup withholding will not apply, however, to a U.S. Holder who furnishes a correct taxpayer identification number and makes any other required certification on IRS Form W-9 or who is otherwise exempt from backup withholding. U.S. Holders who are required to establish their exempt status generally must provide such certification on IRS Form W-9. U.S. Holders are urged to consult their tax advisors regarding the application of the U.S. information reporting and backup withholding rules.
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Backup withholding is not an additional tax. Amounts withheld as backup withholding may be credited against your U.S. federal income tax liability, and you may obtain a refund of any excess amounts withheld under the backup withholding rules by timely filing the appropriate claim for refund with the IRS and timely furnishing any required information. Transactions effected through certain brokers or other intermediaries may be subject to withholding taxes (including backup withholding), and such brokers or intermediaries may be required by law to withhold such taxes.
F. Dividends and Paying Agents
Beginning with the first quarter of 2020, the Company intends to pay dividends to the holders of ordinary shares who are holders on or about the last business day of each calendar quarter who have not waived their rights to dividends for such quarter. The Company does not currently have a paying agent.
G. Statement by Experts
The financial statements of Brooge Petroleum and Gas Investment Company FZE (“BPGIC” or the “Company”) at 31 December 2018 and 2017 and for each of the two years in the period ended 31 December 2018, appearing in this Report by incorporation by reference to the Form F-4 have been audited by Ernst & Young (“EY”), independent registered public accounting firm, as set forth in their report (which contains an explanatory paragraph describing conditions that raise substantial doubt about BPGIC’s ability to continue as a going concern as described in Note 2.2 to the financial statements) appearing elsewhere herein.
Prior to the engagement of EY as BPGIC’s independent registered public accounting firm under the standards of the Public Company Accounting Oversight Board (United States) (“PCAOB”), EY provided a loan staffing service whereby an employee of EY inputted data into Company analyses under the direction and supervision of BPGIC management for a three-week period in July 2018 to assist the Company in their assessment of whether they met certain metrics for a potential transaction (the “service”). The service is not permitted under the auditor independence rules of the U.S. Securities and Exchange Commission (“SEC”) and the PCAOB. The transaction did not ultimately materialize and, as a result, the Company did not use the results generated from this service and the service did not affect the financial statements of BPGIC nor EY’s related audits. Fees for the service were not significant to EY or BPGIC. The professional who provided the service is not a member of the EY audit engagement team with respect to the audits of BPGIC’s financial statements.
After careful consideration of the facts and circumstances and the applicable independence rules, EY has concluded that (i) the aforementioned matter does not impair EY’s ability to exercise objective and impartial judgment in connection with its audits of BPGIC’s financial statements and (ii) a reasonable investor with knowledge of all relevant facts and circumstances would conclude that EY has been and is capable of exercising objective and impartial judgement on all issues encompassed within its audits of BPGIC’s financial statements. After considering this matter, BPGIC’s management and those charged with governance over BPGIC concur with EY’s conclusions.
The financial statements of Twelve Seas for the periods from November 30, 2017 (inception) through December 31, 2017 and for the year ended December 31, 2018, appearing in this Report by incorporation by reference to the Form F-4 have been audited by UHY LLP, independent registered public accounting firm, as set forth in their report thereon appearing elsewhere herein.
The financial statements of Brooge Holdings Limited at 30 June 2019 and for the period from 12 April 2019 (inception) to 30 June 2019, appearing in this Report by incorporation by reference to the Form F-4 have been audited by EY, independent registered public accounting firm, as set forth in their report appearing elsewhere herein.
H. Documents on Display
We are subject to certain of the informational filing requirements of the Exchange Act. Since we are a “foreign private issuer,” we are exempt from the rules and regulations under the Exchange Act prescribing the furnishing and content of proxy statements, and our officers, directors and principal shareholders are exempt from the reporting and “short-swing” profit recovery provisions contained in Section 16 of the Exchange Act, with respect to their purchase and sale of our shares. In addition, we are not required to file reports and financial statements with the SEC as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act. However, we are required to file with the SEC an Annual Report on Form 20-F containing financial statements audited by an independent accounting firm. The SEC also maintains a website at http://www.sec.gov that contains reports and other information that we file with or furnish electronically with the SEC. You may read and copy any report or document we file, including the exhibits, at the SEC’s public reference room located at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room.
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I. Subsidiary Information
Not applicable.
ITEM 11. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISKS
The information set forth in the section entitled “BPGIC’s Management’s Discussion and Analysis of Financial Condition and Results of Operations - Quantitative and Qualitative Disclosure about Market Risk” in the Form F-4 is incorporated herein by reference.
ITEM 12. DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES
Not applicable.
Not applicable.
See Item 18.
The financial statements of the Company, BPGIC and Twelve Seas are included in the Form F-4, and are incorporated herein by reference.
Unaudited Pro Forma Combined Financial Statements of the Company are attached to this Report as Exhibit 15.6 and are incorporated herein by reference.
EXHIBIT INDEX
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* | Filed Herewith |
# | Certain information has been redacted from this exhibit pursuant to Item 4 of the Instructions As To Exhibits of Form 20-F because it is both not material and would likely cause competitive harm to the registrant if publicly disclosed. The Registrant hereby agrees to furnish an unredacted copy of the exhibit and its materiality and competitive harm analyses to the Commission upon request. |
† | Schedules to this exhibit have been omitted pursuant to the Instructions As To Exhibits of Form 20-F. The Registrant hereby agrees to furnish a copy of any omitted schedules to the Commission upon request. |
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SIGNATURES
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this report on its behalf.
BROOGE HOLDINGS LIMITED | |||
December 30, 2019 | By: | /s/ Nicolaas L. Paardenkooper | |
Name: | Nicolaas L. Paardenkooper | ||
Title: | Chief Executive Officer |
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Exhibit 1.1
THE COMPANIES LAW (2018 Revision)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
BROOGE HOLDINGS LIMITED
(adopted by special resolution dated 20 December 2019)
THE COMPANIES LAW (2018 Revision)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
MEMORANDUM OF ASSOCIATION
OF
BROOGE HOLDINGS LIMITED
(adopted by special resolution dated 20 December 2019)
1 | The name of the Company is Brooge Holdings Limited |
2 | The Registered Office of the Company shall be at the offices 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 | The objects for which the Company is established are unrestricted and the Company shall have full power and authority to carry out any object not prohibited by the laws of the Cayman Islands. |
4 | The liability of each Member is limited to the amount unpaid on such Member’s shares. |
5 | The share capital of the Company is US$50,000 divided into 450,000,000 ordinary shares of a par value of US$0.0001 each and 50,000,000 preferred shares of a par value of US$0.0001 each. |
6 | The Company has power to register by way of continuation as a body corporate limited by shares under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman Islands. |
7 | Capitalised terms that are not defined in this Memorandum of Association bear the respective meanings given to them in the Articles of Association of the Company. |
THE COMPANIES LAW (2018 Revision)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
BROOGE HOLDINGS LIMITED
(ADOPTED BY SPECIAL RESOLUTION DATED 20 DECEMBER 2019)
1 | Interpretation |
1.1 | In the Articles Table A in the First Schedule to the Statute does not apply and, unless there is something in the subject or context inconsistent therewith: |
“Articles” | means these articles of association of the Company. | ||
“Audit Committee” | means the audit committee of the Company formed pursuant to the Articles, or any successor audit committee. | ||
“Auditor” | means the person for the time being performing the duties of auditor of the Company (if any). | ||
“clearing house” | a clearing house recognised by the laws of the jurisdiction in which the Shares (or depositary receipts therefor) are listed or quoted on a stock exchange or interdealer quotation system in such jurisdiction. | ||
“Company” | means the above named company. | ||
“Designated Stock Exchange” | means any national securities exchange including NASDAQ Capital Market or NASDAQ. | ||
“Directors” | means the directors for the time being of the Company. | ||
“Dividend” | means any dividend (whether interim or final) resolved to be paid on Shares pursuant to the Articles. | ||
“Electronic Record” | has the same meaning as in the Electronic Transactions Law. |
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“Electronic Transactions Law” | means the Electronic Transactions Law (2003 Revision) of the Cayman Islands. | ||
“Member” | has the same meaning as in the Statute. | ||
“Memorandum” | means the memorandum of association of the Company. | ||
“Ordinary Resolution” | means a resolution passed by a simple majority of the Members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting. In computing the majority when a poll is demanded regard shall be had to the number of votes to which each Member is entitled by the Articles. | ||
“Ordinary Share” | means an ordinary share of a par value of US$0.0001 in the share capital of the Company. | ||
“Preferred Share” | means a preferred share of a par value of US$0.0001 in the share capital of the Company. | ||
“Register of Members” | means the register of Members maintained in accordance with the Statute and includes (except where otherwise stated) any branch or duplicate register of Members. | ||
“Registered Office” | means the registered office for the time being of the Company. | ||
“Seal” | means the common seal of the Company and includes every duplicate seal. | ||
“SEC” | means the United States Securities and Exchange Commission. | ||
“Share” | means an Ordinary Share or a Preferred Share and includes a fraction of a share in the Company. | ||
“Special Resolution” | has the same meaning as in the Statute. | ||
“Statute” | means the Companies Law (2018 Revision) of the Cayman Islands. | ||
“Treasury Share” | means a Share held in the name of the Company as a treasury share in accordance with the Statute. |
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1.2 | In the Articles: |
(a) | words importing the singular number include the plural number and vice versa; |
(b) | words importing the masculine gender include the feminine gender; |
(c) | words importing persons include corporations as well as any other legal or natural person; |
(d) | “written” and “in writing” include all modes of representing or reproducing words in visible form, including in the form of an Electronic Record; |
(e) | “shall” shall be construed as imperative and “may” shall be construed as permissive; |
(f) | references to provisions of any law or regulation shall be construed as references to those provisions as amended, modified, re-enacted or replaced; |
(g) | any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; |
(h) | the term “and/or” is used herein to mean both “and” as well as “or.” The use of “and/or” in certain contexts in no respects qualifies or modifies the use of the terms “and” or “or” in others. The term “or” shall not be interpreted to be exclusive and the term “and” shall not be interpreted to require the conjunctive (in each case, unless the context otherwise requires); |
(i) | headings are inserted for reference only and shall be ignored in construing the Articles; |
(j) | any requirements as to delivery under the Articles include delivery in the form of an Electronic Record; |
(k) | any requirements as to execution or signature under the Articles including the execution of the Articles themselves can be satisfied in the form of an electronic signature as defined in the Electronic Transactions Law; |
(l) | sections 8 and 19(3) of the Electronic Transactions Law shall not apply; |
(m) | the term “clear days” in relation to the period of a notice means that period excluding the day when the notice is received or deemed to be received and the day for which it is given or on which it is to take effect; and |
(n) | the term “holder” in relation to a Share means a person whose name is entered in the Register of Members as the holder of such Share. |
2 | Commencement of Business |
2.1 | The business of the Company may be commenced as soon after incorporation of the Company as the Directors shall see fit. |
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2.2 | 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 | Issue of Shares |
3.1 | Subject to the provisions, if any, in the Memorandum (and to any direction that may be given by the Company in general meeting) and, where applicable, the rules of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority, and without prejudice to any rights attached to any existing Shares, the Directors may allot, issue, grant options over or otherwise dispose of Shares (including fractions of a Share) with or without preferred, deferred or other rights or restrictions, whether in regard to Dividend or other distribution, voting, return of capital or otherwise and to such persons, at such times and on such other terms as they think proper, and may also (subject to the Statute and the Articles) vary such rights. |
3.2 | The Company may issue rights, options, warrants or convertible securities or securities of similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any class of Shares or other securities in the Company on such terms as the Directors may from time to time determine. |
3.3 | The Company shall not issue Shares to bearer. |
4 | Register of Members |
4.1 | The Company shall maintain or cause to be maintained the Register of Members in accordance with the Statute. |
4.2 | The Directors may determine that the Company shall maintain one or more branch registers of Members in accordance with the Statute. The Directors may also determine which register of Members shall constitute the principal register and which shall constitute the branch register or registers, and to vary such determination from time to time. |
5 | Fixing Record Date |
The Directors shall fix in advance a date as the record date for any such determination of Members entitled to notice of, or to vote at any meeting of the Members or any adjournment thereof, or for the purpose of determining the Members entitled to receive payment of any Dividend or other distribution, or in order to make a determination of Members for any other purpose.
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6 | Certificates for Shares |
6.1 | A Member shall only be entitled to a share certificate if the Directors resolve that share certificates shall be issued. Share certificates representing Shares, if any, shall be in such form as the Directors may determine. Share certificates shall be signed by one or more Directors or other person authorised by the Directors. The Directors may authorise certificates to be issued with the authorised signature(s) affixed by mechanical process. All certificates for Shares shall be consecutively numbered or otherwise identified and shall specify the Shares to which they relate. All certificates surrendered to the Company for transfer shall be cancelled and, subject to the Articles, 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 | The Company shall not be bound to issue more than one certificate for Shares held jointly by more than one person and delivery of a certificate to one joint holder shall be a sufficient delivery to all of them. |
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 on the payment of such expenses reasonably incurred by the Company in investigating evidence, as the Directors may prescribe, and (in the case of defacement or wearing out) upon delivery of the old certificate. |
6.4 | Every share certificate sent in accordance with the Articles will be sent at the risk of the Member or other person entitled to the certificate. The Company will not be responsible for any share certificate lost or delayed in the course of delivery. |
6.5 | Share certificates shall be issued within the relevant time limit as prescribed by the Statute, if applicable, or as the Designated Stock Exchange may from time to time determine, whichever is shorter, after the allotment or, except in the case of a Share transfer which the Company is for the time being entitled to refuse to register and does not register, after lodgement of a Share transfer with the Company. |
7 | Transfer of Shares |
7.1 | Subject to the terms of the Articles, any Member may transfer all or any of his Shares by an instrument of transfer provided that such transfer complies with applicable rules of the Designation Stock Exchange and the SEC and federal and state securities laws of the United States. If the Shares in question were issued in conjunction with rights, options or warrants issued pursuant to Article 3 on terms that one cannot be transferred without the other, the Directors shall refuse to register the transfer of any such Share without evidence satisfactory to them of the like transfer of such option or warrant. |
7.2 | The instrument of transfer of any Share shall be in writing in the usual or common form or in a form prescribed by the Designated Stock Exchange and the SEC or in any other form approved by the Directors and shall be executed by or on behalf of the transferor (and if the Directors so require, signed by or on behalf of the transferee) and may be under hand or, if the transferor or transferee is a clearing house or its nominee(s), by hand or by machine imprinted signature or by such other manner of execution as the Directors may approve from time to time. The transferor shall be deemed to remain the holder of a Share until the name of the transferee is entered in the Register of Members. |
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8 | Redemption, Repurchase and Surrender of Shares |
8.1 | Subject to the provisions of the Statute, and, where applicable, the rules of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority, the Company may issue Shares that are to be redeemed or are liable to be redeemed at the option of the Member or the Company. The redemption of such Shares shall be effected in such manner and upon such other terms as the Company may, by Special Resolution, determine before the issue of the Shares. |
8.2 | Subject to the provisions of the Statute, and, where applicable, the rules of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority, the Company may purchase its own Shares (including any redeemable Shares) in such manner and on such other terms as the Directors may agree with the relevant Member. |
8.3 | The Company may make a payment in respect of the redemption or purchase of its own Shares in any manner permitted by the Statute, including out of capital. |
8.4 | The Directors may accept the surrender for no consideration of any fully paid Share. |
9 | Treasury Shares |
9.1 | The Directors may, prior to the purchase, redemption or surrender of any Share, determine that such Share shall be held as a Treasury Share. |
9.2 | 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). |
10 | Variation of Rights of Shares |
10.1 | If at any time the share capital of the Company is divided into different classes of Shares, all or any of the rights attached to any class (unless otherwise provided by the terms of issue of the Shares of that class) may, whether or not the Company is being wound up, be varied without the consent of the holders of the issued Shares of that class where such variation is considered by the Directors not to have a material adverse effect upon such rights; otherwise, any such variation shall be made only with the consent in writing of the holders of not less than two thirds of the issued Shares of that class, or with the approval of a resolution passed by a majority of not less than two thirds of the votes cast at a separate meeting of the holders of the Shares of that class. For the avoidance of doubt, the Directors reserve the right, notwithstanding that any such variation may not have a material adverse effect, to obtain consent from the holders of Shares of the relevant class. To any such meeting all the provisions of the Articles relating to general meetings shall apply mutatis mutandis. |
10.2 | For the purposes of a separate class meeting, the Directors may treat two or more or all the classes of Shares as forming one class of Shares if the Directors consider that such class of Shares would be affected in the same way by the proposals under consideration, but in any other case shall treat them as separate classes of Shares. |
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10.3 | The rights conferred upon the holders of the Shares of any class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the Shares of that class, be deemed to be varied by the creation or issue of further Shares ranking pari passu therewith. |
11 | Commission on Sale of Shares |
The Company may, in so far as the Statute 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 absolutely or conditionally) for any Shares. Such commissions may be satisfied by the payment of cash and/or the issue of fully or partly paid-up Shares. The Company may also on any issue of Shares pay such brokerage as may be lawful.
12 | Non Recognition of Trusts |
The Company shall not be bound by or compelled to recognise in any way (even when notified) any equitable, contingent, future or partial interest in any Share, or (except only as is otherwise provided by the Articles or the Statute) any other rights in respect of any Share other than an absolute right to the entirety thereof in the holder.
13 | Lien on Shares |
13.1 | The Company shall have a first and paramount lien on all Shares (whether fully paid-up or not) registered in the name of a Member (whether solely or jointly with others) for all debts, liabilities or engagements to or with the Company (whether presently payable or not) by such Member or his estate, either alone or jointly with any other person, whether a Member or not, but the Directors may at any time declare any Share to be wholly or in part exempt from the provisions of this Article. The registration of a transfer of any such Share shall operate as a waiver of the Company’s lien thereon. The Company’s lien on a Share shall also extend to any amount payable in respect of that Share. |
13.2 | The Company may sell, in such manner as the Directors think fit, 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 clear days after notice has been received or deemed to have been received by the holder of the Shares, 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. |
13.3 | To give effect to any such sale the Directors may authorise any person to execute an instrument of transfer of the Shares sold to, or in accordance with the directions of, the purchaser. The purchaser or his nominee shall be registered as the holder of the Shares comprised in any such transfer, and he shall not be bound to see to the application of the purchase money, nor shall his title to the Shares be affected by any irregularity or invalidity in the sale or the exercise of the Company’s power of sale under the Articles. |
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13.4 | The net proceeds of such sale after payment of costs, shall be applied in payment of such part of the amount in respect of which the lien exists as is presently payable and any balance shall (subject to a like lien for sums not presently payable as existed upon the Shares before the sale) be paid to the person entitled to the Shares at the date of the sale. |
14 | Call on Shares |
14.1 | Subject to the terms of the allotment and issue of any Shares, the Directors may make calls upon the Members in respect of any monies unpaid on their Shares (whether in respect of par value or premium), and each Member shall (subject to receiving at least fourteen clear days’ notice specifying the time or times of payment) pay to the Company at the time or times so specified the amount called on the Shares. A call may be revoked or postponed, in whole or in part, as the Directors may determine. A call may be required to be paid by instalments. 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. |
14.2 | A call shall be deemed to have been made at the time when the resolution of the Directors authorising such call was passed. |
14.3 | The joint holders of a Share shall be jointly and severally liable to pay all calls in respect thereof. |
14.4 | If a call remains unpaid after it has become due and payable, the person from whom it is due shall pay interest on the amount unpaid from the day it became due and payable until it is paid at such rate as the Directors may determine (and in addition all expenses that have been incurred by the Company by reason of such non-payment), but the Directors may waive payment of the interest or expenses wholly or in part. |
14.5 | An amount payable in respect of a Share on issue or allotment or at any fixed date, whether on account of the par value of the Share or premium or otherwise, shall be deemed to be a call and if it is not paid all the provisions of the Articles shall apply as if that amount had become due and payable by virtue of a call. |
14.6 | The Directors may issue Shares with different terms as to the amount and times of payment of calls, or the interest to be paid. |
14.7 | The Directors may, if they think fit, receive an amount from any Member willing to advance all or any part of the monies uncalled and unpaid upon any Shares held by him, and may (until the amount would otherwise become payable) pay interest at such rate as may be agreed upon between the Directors and the Member paying such amount in advance. |
14.8 | No such amount paid in advance of calls shall entitle the Member paying such amount to any portion of a Dividend or other distribution payable in respect of any period prior to the date upon which such amount would, but for such payment, become payable. |
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15 | Forfeiture of Shares |
15.1 | If a call or instalment of a call remains unpaid after it has become due and payable the Directors may give to the person from whom it is due not less than fourteen clear days’ notice requiring payment of the amount unpaid together with any interest which may have accrued and any expenses incurred by the Company by reason of such non-payment. The notice shall specify 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. |
15.2 | 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. Such forfeiture shall include all Dividends, other distributions or other monies payable in respect of the forfeited Share and not paid before the forfeiture. |
15.3 | A forfeited Share may be sold, re-allotted or otherwise disposed of on such terms and in such manner as the Directors think fit and at any time before a sale, re-allotment or 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 some person to execute an instrument of transfer of the Share in favour of that person. |
15.4 | A person any of whose Shares have been forfeited shall cease to be a Member in respect of them and shall surrender to the Company for cancellation the certificate for the Shares forfeited and shall remain liable to pay to the Company all monies which at the date of forfeiture were payable by him to the Company in respect of those Shares together with interest at such rate as the Directors may determine, but his liability shall cease if and when the Company shall have received payment in full of all monies due and payable by him in respect of those Shares. |
15.5 | A certificate in writing under the hand of one Director or officer of the Company 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. The certificate shall (subject to the execution of an instrument of transfer) constitute a good title to the Share and the person to whom the Share is sold or otherwise disposed of shall not be bound to see to the application of the purchase money, if any, nor shall his title to the Share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the Share. |
15.6 | The provisions of the Articles as to forfeiture shall apply in the case of non payment of any sum which, by the terms of issue of a Share, becomes payable at a fixed time, whether on account of the par value of the Share or by way of premium as if it had been payable by virtue of a call duly made and notified. |
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16 | Transmission of Shares |
16.1 | If a Member dies, the survivor or survivors (where he was a joint holder), or his legal personal representatives (where he was a sole holder), shall be the only persons recognised by the Company as having any title to his Shares. The estate of a deceased Member is not thereby released from any liability in respect of any Share, for which he was a joint or sole holder. |
16.2 | Any person becoming entitled to a Share in consequence of the death or bankruptcy or liquidation or dissolution of a Member (or in any other way than by transfer) may, upon such evidence being produced as may be required by the Directors, elect, by a notice in writing sent by him to the Company, either to become the holder of such Share or to have some person nominated by him registered as the holder of such Share. If he elects to have another person registered as the holder of such Share he shall sign an instrument of transfer of that Share to that person. The Directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by the relevant Member before his death or bankruptcy or liquidation or dissolution, as the case may be. |
16.3 | A person becoming entitled to a Share by reason of the death or bankruptcy or liquidation or dissolution of a Member (or in any other case than by transfer) shall be entitled to the same Dividends, other distributions and other advantages to which he would be entitled if he were the holder of such Share. However, he shall not, before becoming a Member in respect of a Share, be entitled in respect of it to exercise any right conferred by membership in relation to general meetings of the Company and the Directors may at any time give notice requiring any such person to elect either to be registered himself or to have some person nominated by him be registered as the holder of the Share (but the Directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by the relevant Member before his death or bankruptcy or liquidation or dissolution or any other case than by transfer, as the case may be). If the notice is not complied with within ninety days of being received or deemed to be received (as determined pursuant to the Articles), the Directors may thereafter withhold payment of all Dividends, other distributions, bonuses or other monies payable in respect of the Share until the requirements of the notice have been complied with. |
17 | Amendments of Memorandum and Articles of Association and Alteration of Capital |
17.1 | The Company may by Ordinary Resolution: |
(a) | increase its share capital by such sum as the Ordinary Resolution shall prescribe and with such rights, priorities and privileges annexed thereto, as the Company in general meeting may determine; |
(b) | consolidate and divide all or any of its share capital into Shares of larger amount than its existing Shares; |
(c) | convert all or any of its paid-up Shares into stock, and reconvert that stock into paid-up Shares of any denomination; |
(d) | by subdivision of its existing Shares or any of them divide the whole or any part of its share capital into Shares of smaller amount than is fixed by the Memorandum or into Shares without par value; and |
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(e) | cancel any Shares that at the date of the passing of the Ordinary 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. |
17.2 | All new Shares created in accordance with the provisions of the preceding Article shall be subject to the same provisions of the Articles with reference to the payment of calls, liens, transfer, transmission, forfeiture and otherwise as the Shares in the original share capital. |
17.3 | Subject to the provisions of the Statute, the provisions of the Articles as regards the matters to be dealt with by Ordinary Resolution, the Company may by Special Resolution: |
(a) | change its name; |
(b) | alter or add to the Articles; |
(c) | alter or add to the Memorandum with respect to any objects, powers or other matters specified therein; and |
(d) | reduce its share capital or any capital redemption reserve fund. |
18 | Offices and Places of Business |
Subject to the provisions of the Statute, the Company may by resolution of the Directors change the location of its Registered Office. The Company may, in addition to its Registered Office, maintain such other offices or places of business as the Directors determine.
19 | General Meetings |
19.1 | All general meetings other than annual general meetings shall be called extraordinary general meetings. |
19.2 | The Company may, but shall not (unless required by the Statute) be obliged to, in each year hold a general meeting as its annual general meeting, and shall specify the meeting as such in the notices calling it. Any annual general meeting shall be held at such time and place as the Directors shall appoint. At these meetings the report of the Directors (if any) shall be presented. |
19.3 | The Directors may call general meetings, and they shall on a Members’ requisition forthwith proceed to convene an extraordinary general meeting of the Company. |
19.4 | A Members’ requisition is a requisition of Members holding at the date of deposit of the requisition not less than twenty per cent in par value of the issued Shares which as at that date carry the right to vote at general meetings of the Company. |
19.5 | The Members’ requisition must state the objects of the meeting and must be signed by the requisitionists and deposited at the Registered Office, and may consist of several documents in like form each signed by one or more requisitionists. |
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19.6 | If there are no Directors as at the date of the deposit of the Members’ requisition or if the Directors do not within twenty-one days from the date of the deposit of the Members’ requisition duly proceed to convene a general meeting to be held within a further twenty-one 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 months after the expiration of the said twenty-one day period. |
19.7 | A general meeting convened as aforesaid by requisitionists shall be convened in the same manner as nearly as possible as that in which general meetings are to be convened by Directors. |
19.8 | Members seeking to bring business before the annual general meeting or to nominate candidates for election as Directors at the annual general meeting must deliver notice to the principal executive offices of the Company not later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the scheduled date of the annual general meeting. |
20 | Notice of General Meetings |
20.1 | At least five clear days’ notice shall be given of any general meeting. Every notice shall specify the place, the day and the hour of the meeting and the general nature of the business to be conducted at the general meeting and shall be given in the manner hereinafter mentioned or in such other manner if any as may be prescribed by the Company, provided that a general meeting of the Company shall, whether or not the notice specified in this Article has been given and whether or not the provisions of the Articles regarding general meetings have been complied with, be deemed to have been duly convened if it is so agreed: |
(a) | in the case of an annual general meeting, by all of the Members entitled to attend and vote thereat; and |
(b) | in the case of an extraordinary general meeting, by a majority in number of the Members having a right to attend and vote at the meeting, together holding not less than ninety-five per cent in par value of the Shares giving that right. |
20.2 | The accidental omission to give notice of a general meeting to, or the non receipt of notice of a general meeting by, any person entitled to receive such notice shall not invalidate the proceedings of that general meeting. |
21 | Proceedings at General Meetings |
21.1 | No business shall be transacted at any general meeting unless a quorum is present. The holders of a majority of the Shares being individuals present in person or by proxy or if a corporation or other non-natural person by its duly authorised representative or proxy shall be a quorum. |
21.2 | A person may participate at 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. Participation by a person in a general meeting in this manner is treated as presence in person at that meeting. |
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21.3 | If a quorum is not present within half an hour from the time appointed for the meeting to commence or if during such a meeting a quorum ceases to be present, the meeting, if convened upon a Members’ requisition, shall be dissolved and in any other case it shall stand adjourned to 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 adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting to commence, the Members present shall be a quorum. |
21.4 | The Directors may, at any time prior to the time appointed for the meeting to commence, appoint any person to act as chairman of a general meeting of the Company or, if the Directors do not make any such appointment, the chairman, if any, of the board of Directors shall preside as chairman at such general meeting. If there is no such chairman, or if he shall not be present within fifteen minutes after the time appointed for the meeting to commence, or is unwilling to act, the Directors present shall elect one of their number to be chairman of the meeting. |
21.5 | If no Director is willing to act as chairman or if no Director is present within fifteen minutes after the time appointed for the meeting to commence, the Members present shall choose one of their number to be chairman of the meeting. |
21.6 | The chairman may, with the consent of a meeting at which a quorum is present (and shall if so directed by the meeting) adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. |
21.7 | When a general meeting is adjourned for thirty days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Otherwise it shall not be necessary to give any such notice of an adjourned meeting. |
21.8 | A resolution put to the vote of the meeting shall be decided on a poll. |
21.9 | A poll shall be taken as the chairman directs, and the result of the poll shall be deemed to be the resolution of the general meeting at which the poll was demanded. |
21.10 | A poll demanded on the election of a chairman or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such date, time and place as the chairman of the general meeting directs, and any business other than that upon which a poll has been demanded or is contingent thereon may proceed pending the taking of the poll. |
21.11 | In the case of an equality of votes the chairman shall be entitled to a second or casting vote. |
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22 | Votes of Members |
22.1 | Subject to any rights or restrictions attached to any Shares, every Member present in any such manner shall have one vote for every Share of which he is the holder. |
22.2 | In the case of joint holders the vote of the senior holder who tenders a vote, whether in person or by proxy (or, in the case of a corporation or other non-natural person, by its duly authorised representative or proxy), shall be accepted to the exclusion of the votes of the other joint holders, and seniority shall be determined by the order in which the names of the holders stand in the Register of Members. |
22.3 | A Member of unsound mind, or in respect of whom an order has been made by any court, having jurisdiction in lunacy, may vote by his committee, receiver, curator bonis, or other person on such Member’s behalf appointed by that court, and any such committee, receiver, curator bonis or other person may vote by proxy. |
22.4 | No person shall be entitled to vote at any general meeting unless he is registered as a Member on the record date for such meeting nor unless all calls or other monies then payable by him in respect of Shares have been paid. |
22.5 | No objection shall be raised as to the qualification of any voter except at the general meeting or adjourned general meeting at which the vote objected to is given or tendered and every vote not disallowed at the meeting shall be valid. Any objection made in due time in accordance with this Article shall be referred to the chairman whose decision shall be final and conclusive. |
22.6 | Votes may be cast either personally or by proxy (or in the case of a corporation or other non-natural person by its duly authorised representative or proxy). A Member may appoint more than one proxy or the same proxy under one or more instruments to attend and vote at a meeting. Where a Member appoints more than one proxy the instrument of proxy shall specify the number of Shares in respect of which each proxy is entitled to exercise the related votes. |
22.7 | A Member holding more than one Share need not cast the votes in respect of his Shares in the same way on any resolution and therefore may vote a Share or some or all such Shares either for or against a resolution and/or abstain from voting a Share or some or all of the Shares and, subject to the terms of the instrument appointing him, a proxy appointed under one or more instruments may vote a Share or some or all of the Shares in respect of which he is appointed either for or against a resolution and/or abstain from voting a Share or some or all of the Shares in respect of which he is appointed. |
23 | Proxies |
23.1 | The instrument appointing a proxy shall be in writing and shall be executed under the hand of the appointor or of his attorney duly authorised in writing, or, if the appointor is a corporation or other non natural person, under the hand of its duly authorised representative. A proxy need not be a Member. |
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23.2 | The Directors may, in the notice convening any meeting or adjourned meeting, or in an instrument of proxy sent out by the Company, specify the manner by which the instrument appointing a proxy shall be deposited and the place and the time (being not later than the time appointed for the commencement of the meeting or adjourned meeting to which the proxy relates) at which the instrument appointing a proxy shall be deposited. In the absence of any such direction from the Directors in the notice convening any meeting or adjourned meeting or in an instrument of proxy sent out by the Company, the instrument appointing a proxy shall be deposited physically at the Registered Office not less than 48 hours before the time appointed for the meeting or adjourned meeting to commence at which the person named in the instrument proposes to vote. |
23.3 | The chairman may in any event at his discretion declare that an instrument of proxy shall be deemed to have been duly deposited. An instrument of proxy that is not deposited in the manner permitted, or which has not been declared to have been duly deposited by the chairman, shall be invalid. |
23.4 | The instrument appointing a proxy may be in any usual or common form (or such other form as the Directors may approve) and may be expressed to be for a particular meeting or any adjournment thereof or generally until revoked. An instrument appointing a proxy shall be deemed to include the power to demand or join or concur in demanding a poll. |
23.5 | Votes given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the previous death or insanity of the principal or revocation of the proxy or of the authority under which the proxy was executed, or the transfer of the Share in respect of which the proxy is given unless notice in writing of such death, insanity, revocation or transfer was received by the Company at the Registered Office before the commencement of the general meeting, or adjourned meeting at which it is sought to use the proxy. |
24 | Corporate Members |
24.1 | Any corporation or other non-natural person which is a Member may in accordance with its constitutional documents, or in the absence of such provision by resolution of its directors or other governing body, authorise such person as it thinks fit to act as its representative at any meeting of the Company or of any class of Members, and the person so authorised shall be entitled to exercise the same powers on behalf of the corporation which he represents as the corporation could exercise if it were an individual Member. |
24.2 | If a clearing house (or its nominee(s)), being a corporation, is a Member, it may authorise such persons as it sees fit to act as its representative at any meeting of the Company or at any meeting of any class of Members provided that the authorisation shall specify the number and class of Shares in respect of which each such representative is so authorised. Each person so authorised under the provisions of this Article shall be deemed to have been duly authorised without further evidence of the facts and be entitled to exercise the same rights and powers on behalf of the clearing house (or its nominee(s)) as if such person was the registered holder of such Shares held by the clearing house (or its nominee(s)). |
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25 | Shares that May Not be Voted |
Shares in the Company that are beneficially owned by the Company shall not be voted, directly or indirectly, at any meeting and shall not be counted in determining the total number of outstanding Shares at any given time.
26 | Directors |
There shall be a board of Directors consisting of not less than one person provided however that the Company may by Ordinary Resolution increase or reduce the limits in the number of Directors.
27 | Powers of Directors |
27.1 | Subject to the provisions of the Statute, the Memorandum and the Articles and to any directions given by Special Resolution, the business of the Company shall be managed by the Directors who may exercise all the powers of the Company. No alteration of the Memorandum or Articles and no such direction shall invalidate any prior act of the Directors which would have been valid if that alteration had not been made or that direction had not been given. A duly convened meeting of Directors at which a quorum is present may exercise all powers exercisable by the Directors. |
27.2 | All cheques, promissory notes, drafts, bills of exchange and other negotiable or transferable instruments and all receipts for monies paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed as the case may be in such manner as the Directors shall determine by resolution. |
27.3 | The Directors on behalf of the Company may pay a gratuity or pension or allowance on retirement to any Director who has held any other salaried office or place of profit with the Company or to his widow or dependants and may make contributions to any fund and pay premiums for the purchase or provision of any such gratuity, pension or allowance. |
27.4 | The Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and assets (present and future) and uncalled capital or any part thereof and to issue debentures, debenture stock, mortgages, bonds and other such securities whether outright or as security for any debt, liability or obligation of the Company or of any third party. |
28 | Appointment and Removal of Directors |
28.1 | The Company may by Ordinary Resolution appoint any person to be a Director or may by Ordinary Resolution remove any Director. |
28.2 | The Directors may appoint any person to be a Director, either to fill a vacancy or as an additional Director provided that the appointment does not cause the number of Directors to exceed any number fixed by or in accordance with the Articles as the maximum number of Directors. |
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29 | Vacation of Office of Director |
The office of a Director shall be vacated if:
(a) | the Director gives notice in writing to the Company that he resigns the office of Director; or |
(b) | the Director absents himself (for the avoidance of doubt, without being represented by proxy) from three consecutive meetings of the board of Directors without special leave of absence from the Directors, and the Directors pass a resolution that he has by reason of such absence vacated office; or |
(c) | the Director dies, becomes bankrupt or makes any arrangement or composition with his creditors generally; or |
(d) | the Director is found to be or becomes of unsound mind; or |
(e) | all of the other Directors (being not less than two in number) determine that he should be removed as a Director, either by a resolution passed by all of the other Directors at a meeting of the Directors duly convened and held in accordance with the Articles or by a resolution in writing signed by all of the other Directors. |
30 | Proceedings of Directors |
30.1 | The quorum for the transaction of the business of the Directors may be fixed by the Directors, and unless so fixed shall be two if there are two or more Directors, and shall be one if there is only one Director. |
30.2 | Subject to the provisions of the Articles, the Directors may regulate their proceedings as they think fit. Questions arising at any meeting shall be decided by a majority of votes. In the case of an equality of votes, the chairman shall have a second or casting vote. |
30.3 | 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. Unless otherwise determined by the Directors, the meeting shall be deemed to be held at the place where the chairman is located at the start of the meeting. |
30.4 | A resolution in writing (in one or more counterparts) signed by all the Directors or all the members of a committee of the Directors or, in the case of a resolution in writing relating to the removal of any Director or the vacation of office by any Director, all of the Directors other than the Director who is the subject of such resolution shall be as valid and effectual 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. |
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30.5 | A Director may, or other officer of the Company on the direction of a Director shall, call a meeting of the Directors by at least two days’ notice in writing to every Director which notice shall set forth the general nature of the business to be considered unless notice is waived by all the Directors either at, before or after the meeting is held. To any such notice of a meeting of the Directors all the provisions of the Articles relating to the giving of notices by the Company to the Members shall apply mutatis mutandis. |
30.6 | 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. |
30.7 | The Directors may elect a chairman of their board and determine the period for which he is to hold office; but if no such chairman is elected, or if at any meeting the chairman is not present within five minutes after the time appointed for the meeting to commence, the Directors present may choose one of their number to be chairman of the meeting. |
30.8 | All acts done by any meeting of the Directors or of a committee of the Directors shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment of any 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 and/or had not vacated their office and/or had been entitled to vote, as the case may be. |
30.9 | A Director may be represented at any meetings of the board of Directors by a proxy appointed in writing by him. The proxy shall count towards the quorum and the vote of the proxy shall for all purposes be deemed to be that of the appointing Director. |
31 | Presumption of Assent |
A Director who is present at a meeting of the board of 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 chairman or secretary of the meeting before the adjournment thereof or shall forward such dissent by registered post to such person immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Director who voted in favour of such action.
32 | Directors’ Interests |
32.1 | A Director may hold any other office or place of profit under the Company (other than the office of Auditor) in conjunction with his office of Director for such period and on such terms as to remuneration and otherwise as the Directors may determine. |
32.2 | A Director may act by himself or by, through or on behalf of his firm in a professional capacity for the Company and he or his firm shall be entitled to remuneration for professional services as if he were not a Director. |
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32.3 | A Director may be or become a director or other officer of or otherwise interested in any company promoted by the Company or in which the Company may be interested as a shareholder, a contracting party or otherwise, and no such Director shall be accountable to the Company for any remuneration or other benefits received by him as a director or officer of, or from his interest in, such other company. |
32.4 | No person shall be disqualified from the office of Director or prevented by such office from contracting with the Company, either as vendor, purchaser or otherwise, nor shall any such contract or any contract or transaction entered into by or on behalf of the Company in which any Director shall be in any way interested be or be liable to be avoided, nor shall any Director so contracting or being so interested be liable to account to the Company for any profit realised by or arising in connection with any such contract or transaction by reason of such Director holding office or of the fiduciary relationship thereby established. A Director shall be at liberty to vote in respect of any contract or transaction in which he is interested provided that the nature of the interest of any Director in any such contract or transaction shall be disclosed by him at or prior to its consideration and any vote thereon. |
32.5 | A general notice that a Director is a shareholder, director, officer or employee of any specified firm or company and is to be regarded as interested in any transaction with such firm or company shall be sufficient disclosure for the purposes of voting on a resolution in respect of a contract or transaction in which he has an interest, and after such general notice it shall not be necessary to give special notice relating to any particular transaction. |
33 | Minutes |
The Directors shall cause minutes to be made in books kept for the purpose of recording all appointments of officers made by the Directors, all proceedings at meetings of the Company or the holders of any class of Shares and of the Directors, and of committees of the Directors, including the names of the Directors present at each meeting.
34 | Delegation of Directors’ Powers |
34.1 | The Directors may delegate any of their powers, authorities and discretions, including the power to sub-delegate, to any committee consisting of one or more Directors. Any such delegation may be made subject to any conditions the Directors may impose and either collaterally with or to the exclusion of their own powers and any such delegation may be revoked or altered by the Directors. Subject to any such conditions, the proceedings of a committee of Directors shall be governed by the Articles regulating the proceedings of Directors, so far as they are capable of applying. |
34.2 | The Directors may establish any committees, local boards or agencies or appoint any person to be a manager or agent for managing the affairs of the Company and may appoint any person to be a member of such committees, local boards or agencies. Any such appointment may be made subject to any conditions the Directors may impose, and either collaterally with or to the exclusion of their own powers and any such appointment may be revoked or altered by the Directors. Subject to any such conditions, the proceedings of any such committee, local board or agency shall be governed by the Articles regulating the proceedings of Directors, so far as they are capable of applying. |
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34.3 | The Directors may by power of attorney or otherwise appoint any person to be the agent of the Company on such conditions as the Directors may determine, provided that the delegation is not to the exclusion of their own powers and may be revoked by the Directors at any time. |
34.4 | The Directors may by power of attorney or otherwise appoint any company, firm, person or body of persons, whether nominated directly or indirectly by the Directors, to be the attorney or authorised signatory of the Company for such purpose and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors under the Articles) and for such period and subject to such conditions as they may think fit, and any such powers of attorney or other appointment may contain such provisions for the protection and convenience of persons dealing with any such attorneys or authorised signatories as the Directors may think fit and may also authorise any such attorney or authorised signatory to delegate all or any of the powers, authorities and discretions vested in him. |
34.5 | The Directors may appoint such officers of the Company (including, for the avoidance of doubt and without limitation, any chairman of the board of Directors, chief executive officer, president, chief financial officer, vice-presidents, secretary, assistant secretary, treasurer or any other officers as may be determined by the Directors) as they consider necessary on such terms, at such remuneration and to perform such duties, and subject to such provisions as to disqualification and removal as the Directors may think fit. Unless otherwise specified in the terms of his appointment an officer of the Company may be removed by resolution of the Directors or Members. An officer of the Company may vacate his office at any time if he gives notice in writing to the Company that he resigns his office. |
35 | No Minimum Shareholding |
The Company in general meeting may fix a minimum shareholding required to be held by a Director, but unless and until such a shareholding qualification is fixed a Director is not required to hold Shares.
36 | Remuneration of Directors |
36.1 | The remuneration to be paid to the Directors, if any, shall be such remuneration as the Directors shall determine. The Directors shall also be entitled to be paid all travelling, hotel and other expenses properly incurred by them in connection with their attendance at meetings of Directors or committees of Directors, or general meetings of the Company, or separate meetings of the holders of any class of Shares or debentures of the Company, or otherwise in connection with the business of the Company or the discharge of their duties as a Director, or to receive a fixed allowance in respect thereof as may be determined by the Directors, or a combination partly of one such method and partly the other. |
36.2 | The Directors may by resolution approve additional remuneration to any Director for any services which in the opinion of the Directors go beyond his ordinary routine work as a Director. Any fees paid to a Director who is also counsel, attorney or solicitor to the Company, or otherwise serves it in a professional capacity shall be in addition to his remuneration as a Director. |
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37 | Seal |
37.1 | 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 the Directors authorised by the Directors. Every instrument to which the Seal has been affixed shall be signed by at least one person who shall be either a Director or some officer of the Company or other person appointed by the Directors for the purpose. |
37.2 | The Company may have for use in any place or places outside the Cayman Islands a duplicate Seal or Seals each of which shall be a facsimile of the common Seal of the Company and, if the Directors so determine, with the addition on its face of the name of every place where it is to be used. |
37.3 | A Director or officer, representative or attorney of the Company may without further authority of the Directors affix the Seal over his signature alone to any document of the Company required to be authenticated by him under seal or to be filed with the Registrar of Companies in the Cayman Islands or elsewhere wheresoever. |
38 | Dividends, Distributions and Reserve |
38.1 | Subject to the Statute and this Article and except as otherwise provided by the rights attached to any Shares, the Directors may resolve to pay Dividends and other distributions on Shares in issue and authorise payment of the Dividends or other distributions out of the funds of the Company lawfully available therefor. A Dividend shall be deemed to be an interim Dividend unless the terms of the resolution pursuant to which the Directors resolve to pay such Dividend specifically state that such Dividend shall be a final Dividend. No Dividend or other distribution shall be paid except out of the realised or unrealised profits of the Company, out of the share premium account or as otherwise permitted by law. |
38.2 | Except as otherwise provided by the rights attached to any Shares, all Dividends and other distributions shall be paid according to the par value of the Shares that a Member holds. 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. |
38.3 | The Directors may deduct from any Dividend or other distribution payable to any Member all sums of money (if any) then payable by him to the Company on account of calls or otherwise. |
38.4 | The Directors may resolve that any Dividend or other distribution be paid wholly or partly by the distribution of specific assets and in particular (but without limitation) by the distribution of shares, debentures, or securities of any other company or in any one or more of such ways and where any difficulty arises in regard to such distribution, the Directors may settle the same as they think expedient and in particular may issue fractional Shares and may fix the value for distribution of such specific assets or any part thereof and may determine that cash payments shall be made to any Members upon the basis of the value so fixed in order to adjust the rights of all Members and may vest any such specific assets in trustees in such manner as may seem expedient to the Directors. |
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38.5 | Except as otherwise provided by the rights attached to any Shares, Dividends and other distributions may be paid in any currency. The Directors may determine the basis of conversion for any currency conversions that may be required and how any costs involved are to be met. |
38.6 | The Directors may, before resolving to pay any Dividend or other distribution, set aside such sums as they think proper as a reserve or reserves which shall, at the discretion of the Directors, be applicable for any purpose of the Company and pending such application may, at the discretion of the Directors, be employed in the business of the Company. |
38.7 | Any Dividend, other distribution, interest or other monies payable in cash in respect of Shares may be paid by wire transfer to the holder or by cheque or warrant sent through the post directed to the registered address of the holder or, in the case of joint holders, to the registered address of the holder who is first named on the Register of Members or to such person and to such address as such holder or joint holders may in writing direct. Every such cheque or warrant shall be made payable to the order of the person to whom it is sent. Any one of two or more joint holders may give effectual receipts for any Dividends, other distributions, bonuses, or other monies payable in respect of the Share held by them as joint holders. |
38.8 | No Dividend or other distribution shall bear interest against the Company. |
38.9 | Any Dividend or other distribution which cannot be paid to a Member and/or which remains unclaimed after six months from the date on which such Dividend or other distribution becomes payable may, in the discretion of the Directors, be paid into a separate account in the Company’s name, provided that the Company shall not be constituted as a trustee in respect of that account and the Dividend or other distribution shall remain as a debt due to the Member. Any Dividend or other distribution which remains unclaimed after a period of six years from the date on which such Dividend or other distribution becomes payable shall be forfeited and shall revert to the Company. |
39 | Capitalisation |
The Directors may at any time capitalise any sum standing to the credit of any of the Company’s reserve accounts or funds (including the share premium account and capital redemption reserve fund) or any sum standing to the credit of the profit and loss account or otherwise available for distribution; appropriate such sum to Members in the proportions in which such sum would have been divisible amongst such Members had the same been a distribution of profits by way of Dividend or other distribution; and apply such sum on their behalf in paying up in full unissued Shares for allotment and distribution credited as fully paid-up to and amongst them in the proportion aforesaid. In such event the Directors shall do all acts and things required to give effect to such capitalisation, with full power given to the Directors to make such provisions as they think fit in the case of Shares becoming distributable in fractions (including provisions whereby the benefit of fractional entitlements accrue to the Company rather than to the Members concerned). The Directors may authorise any person to enter on behalf of all of the Members interested into an agreement with the Company providing for such capitalisation and matters incidental or relating thereto and any agreement made under such authority shall be effective and binding on all such Members and the Company.
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40 | Books of Account |
40.1 | The Directors shall cause proper books of account (including, where applicable, material underlying documentation including contracts and invoices) to be kept with respect to all sums of money received and expended by the Company and the matters in respect of which the receipt or expenditure takes place, all sales and purchases of goods by the Company and the assets and liabilities of the Company. Such books of account must be retained for a minimum period of five years from the date on which they are prepared. Proper books shall not be deemed to be kept if there are not kept such books of account as are necessary to give a true and fair view of the state of the Company’s affairs and to explain its transactions. |
40.2 | The Directors shall determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company or any of them shall be open to the inspection of Members not being Directors and no Member (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by Statute or authorised by the Directors or by the Company in general meeting. |
40.3 | The Directors may cause to be prepared and to be laid before the Company in general meeting profit and loss accounts, balance sheets, group accounts (if any) and such other reports and accounts as may be required by law. |
41 | Audit |
41.1 | The Directors may appoint an Auditor of the Company who shall hold office on such terms as the Directors determine. |
41.2 | Without prejudice to the freedom of the Directors to establish any other committee, if the Shares (or depositary receipts therefor) are listed or quoted on the Designated Stock Exchange, and if required by the Designated Stock Exchange, the Directors shall establish and maintain an Audit Committee as a committee of the Directors and shall adopt a formal written Audit Committee charter and review and assess the adequacy of the formal written charter on an annual basis. The composition and responsibilities of the Audit Committee shall comply with the rules and regulations of the SEC and the Designated Stock Exchange. The Audit Committee shall meet at least once every financial quarter, or more frequently as circumstances dictate. |
41.3 | If the Shares (or depositary receipts therefor) are listed or quoted on the Designated Stock Exchange, the Company shall conduct an appropriate review of all related party transactions on an ongoing basis and shall utilise the Audit Committee for the review and approval of potential conflicts of interest. |
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41.4 | The remuneration of the Auditor shall be fixed by the Audit Committee (if one exists). |
41.5 | If the office of Auditor becomes vacant by resignation or death of the Auditor, or by his becoming incapable of acting by reason of illness or other disability at a time when his services are required, the Directors shall fill the vacancy and determine the remuneration of such Auditor. |
41.6 | Every Auditor of the Company shall have a right of access at all times to the books and accounts and vouchers of the Company and shall be entitled to require from the Directors and officers of the Company such information and explanation as may be necessary for the performance of the duties of the Auditor. |
41.7 | Auditors shall, if so required by the Directors, make a report on the accounts of the Company during their tenure of office at the next annual general meeting following their appointment in the case of a company which is registered with the Registrar of Companies as an ordinary company, and at the next extraordinary general meeting following their appointment in the case of a company which is registered with the Registrar of Companies as an exempted company, and at any other time during their term of office, upon request of the Directors or any general meeting of the Members. |
42 | Notices |
42.1 | Notices shall be in writing and may be given by the Company to any Member either personally or by sending it by courier, post, cable, telex, fax or e-mail to him or to his address as shown in the Register of Members (or where the notice is given by e-mail by sending it to the e-mail address provided by such Member). Notice may also be served in accordance with the requirements of the Designated Stock Exchange. |
42.2 | Where a notice is sent by courier, service of the notice shall be deemed to be effected by delivery of the notice to a courier company, and shall be deemed to have been received on the third day (not including Saturdays or Sundays or public holidays) following the day on which the notice was delivered to the courier. Where a notice is sent by post, service of the notice shall be deemed to be effected by properly addressing, pre paying and posting a letter containing the notice, and shall be deemed to have been received on the fifth day (not including Saturdays or Sundays or public holidays in the Cayman Islands) following the day on which the notice was posted. Where a notice is sent by cable, telex or fax, service of the notice shall be deemed to be effected by properly addressing and sending such notice and shall be deemed to have been received on the same day that it was transmitted. Where a notice is given by e-mail service shall be deemed to be effected by transmitting the e-mail to the e-mail address provided by the intended recipient and shall be deemed to have been received on the same day that it was sent, and it shall not be necessary for the receipt of the e-mail to be acknowledged by the recipient. |
42.3 | A notice may be given by the Company to the person or persons which the Company has been advised are entitled to a Share or Shares in consequence of the death or bankruptcy of a Member in the same manner as other notices which are required to be given under the Articles and shall be addressed to them by name, or by the title of representatives of the deceased, or trustee of the bankrupt, or by any like description at the address supplied for that purpose by the persons claiming to be so entitled, or at the option of the Company by giving the notice in any manner in which the same might have been given if the death or bankruptcy had not occurred. |
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42.4 | Notice of every general meeting shall be given in any manner authorised by the Articles to every holder of Shares carrying an entitlement to receive such notice on the record date for such meeting except that in the case of joint holders the notice shall be sufficient if given to the joint holder first named in the Register of Members and every person upon whom the ownership of a Share devolves by reason of his being a legal personal representative or a trustee in bankruptcy of a Member where the Member but for his death or bankruptcy would be entitled to receive notice of the meeting, and no other person shall be entitled to receive notices of general meetings. |
43 | Winding Up |
43.1 | If the Company shall be wound up, the liquidator shall apply the assets of the Company in satisfaction of creditors’ claims in such manner and order as such liquidator thinks fit. Subject to the rights attaching to any Shares, in a winding up: |
(a) | if the assets available for distribution amongst the Members shall be insufficient to repay the whole of the Company’s issued share capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the Members in proportion to the par value of the Shares held by them; or |
(b) | if the assets available for distribution amongst the Members shall be more than sufficient to repay the whole of the Company’s issued share capital at the commencement of the winding up, the surplus shall be distributed amongst the Members in proportion to the par value of the Shares held by them at the commencement of the winding up subject to a deduction from those Shares in respect of which there are monies due, of all monies payable to the Company for unpaid calls or otherwise. |
43.2 | If the Company shall be wound up the liquidator may, subject to the rights attaching to any Shares and with the approval of a Special Resolution of the Company and any other approval required by the Statute, divide amongst the Members in kind the whole or any part of the assets of the Company (whether such assets shall consist of property of the same kind or not) and may for that purpose value any assets and determine how the division shall be carried out as between the Members or different classes of Members. The liquidator may, with the like approval, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the Members as the liquidator, with the like approval, shall think fit, but so that no Member shall be compelled to accept any asset upon which there is a liability. |
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44 | Indemnity and Insurance |
44.1 | Every Director and officer of the Company (which for the avoidance of doubt, shall not include auditors of the Company), together with every former Director and former officer of the Company (each an “Indemnified Person”) shall be indemnified out of the assets of the Company against any liability, action, proceeding, claim, demand, costs, damages or expenses, including legal expenses, whatsoever which they or any of them may incur as a result of any act or failure to act in carrying out their functions other than such liability (if any) that they may incur by reason of their own actual fraud or wilful default. No Indemnified Person shall be liable to the Company for any loss or damage incurred by the Company as a result (whether direct or indirect) of the carrying out of their functions unless that liability arises through the actual fraud or wilful default of such Indemnified Person. No person shall be found to have committed actual fraud or wilful default under this Article unless or until a court of competent jurisdiction shall have made a finding to that effect. |
44.2 | The Company shall advance to each Indemnified Person reasonable attorneys’ fees and other costs and expenses incurred in connection with the defence of any action, suit, proceeding or investigation involving such Indemnified Person for which indemnity will or could be sought. In connection with any advance of any expenses hereunder, the Indemnified Person shall execute an undertaking to repay the advanced amount to the Company if it shall be determined by final judgment or other final adjudication that such Indemnified Person was not entitled to indemnification pursuant to this Article. If it shall be determined by a final judgment or other final adjudication that such Indemnified Person was not entitled to indemnification with respect to such judgment, costs or expenses, then such party shall not be indemnified with respect to such judgment, costs or expenses and any advancement shall be returned to the Company (without interest) by the Indemnified Person. |
44.3 | The Directors, on behalf of the Company, may purchase and maintain insurance for the benefit of any Director or other officer of the Company against any liability which, by virtue of any rule of law, would otherwise attach to such person in respect of any negligence, default, breach of duty or breach of trust of which such person may be guilty in relation to the Company. |
45 | Financial Year |
Unless the Directors otherwise prescribe, the financial year of the Company shall end on 31st December in each year and, following the year of incorporation, shall begin on 1st January in each year.
46 | Transfer by Way of Continuation |
If the Company is exempted as defined in the Statute, it shall, subject to the provisions of the Statute and with the approval of a Special Resolution, have the power to register by way of continuation as a body corporate under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman Islands.
47 | Mergers and Consolidations |
The Company shall have the power to merge or consolidate with one or more other constituent companies (as defined in the Statute) upon such terms as the Directors may determine and (to the extent required by the Statute) with the approval of a Special Resolution.
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Exhibit 2.5
Execution Copy
AMENDMENT TO WARRANT AGREEMENT AND RIGHTS AGREEMENT
THIS AMENDMENT TO WARRANT AGREEMENT AND RIGHTS AGREEMENT (this “Amendment”) is made and entered into as of December 20, 2019, by and among (i) Twelve Seas Investment Company, a Cayman Island exempted company (the “Company”), (ii) Brooge Holdings Limited, a Cayman Islands exempted company (“Pubco”), and (iii) Continental Stock Transfer & Trust Company, a New York corporation, as both warrant agent and rights agent (the “Agent”). Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Warrant Agreement (as defined below) or the Rights Agreement (as defined below), as applicable, (and if such term is not defined in the Warrant Agreement or the Rights Agreement, then the Business Combination Agreement (as defined below)).
RECITALS
WHEREAS, the Company and the Agent are parties to that certain Warrant Agreement, dated as of June 19, 2018 (as amended, including without limitation by this Amendment, the “Warrant Agreement”), pursuant to which the Agent agreed to act as the Company’s warrant agent with respect to the issuance, registration, transfer, exchange, redemption and exercise of (i) warrants to purchase ordinary shares underlying the units of the Company issued in the Company’s initial public offering (“IPO”) (the “Public Warrants”), (ii) warrants to purchase ordinary shares underlying the units of the Company acquired by Twelve Seas Sponsor I, LLC, the Company’s sponsor (“Sponsor”), in a private placement concurrent with the IPO (the “Private Warrants”), and (iii) warrants to purchase ordinary shares underlying the units issuable to the Sponsor or an affiliate of the Sponsor or certain officers and directors of the Company upon conversion of working capital loans of up to $500,000 (the “Working Capital Warrants” and together with the Public Warrants and the Private Warrants, the “Warrants”);
WHEREAS, the Company and the Agent are parties to that certain Rights Agreement, dated as of June 19, 2018 (as amended, including without limitation by this Amendment, the “Rights Agreement”), pursuant to which the Agent agreed to act as the Company’s rights agent with respect to the issuance, registration, transfer and exchange of (i) rights to receive one-tenth (1/10) of an ordinary share underlying each of the units issued by the Company in the IPO (the “Public Rights”) and (ii) rights to receive one-tenth (1/10) of an ordinary share underlying each of the units acquired by the Sponsor in a private placement concurrently with the IPO (the “Private Rights”, and together with the Public Rights, the “Rights”);
WHEREAS, on April 15, 2019 (i) Pubco, (ii) the Company, (iii) Brooge Merger Sub Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Pubco (“Merger Sub”), and (iv) Brooge Petroleum And Gas Investment Company FZE, a company formed under the laws of the Fujairah Free Zone, UAE (“BPGIC”), entered into that certain Business Combination Agreement, pursuant to which BPGIC Holdings Limited, a Cayman Islands exempted company, also become a party thereafter pursuant to the Assignment and Joinder to Business Combination Agreement dated as of November 19, 2019 (as assignee of Brooge Petroleum and Gas Investment Company (BPGIC) PLC, a company formed under the laws of England and Wales, which became a party to the Business Combination Agreement pursuant to a Joinder to Business Combination Agreement dated as of May 10, 2019) (the “Seller”) (as amended prior to the date hereof, including without limitation by the foregoing joinders and by the First Amendment to Business Combination Agreement, dated as of September 16, 2019, and as it may be amended after the date hereof, the “Business Combination Agreement”);
WHEREAS, pursuant to the Business Combination Agreement, subject to the terms and conditions thereof, among other matters, upon the consummation of the transactions contemplated by the Business Combination Agreement (the “Closing”), (a) the Company will merge with and into Merger Sub, with the Company continuing as the surviving entity and a wholly-owned subsidiary of Pubco (the “Merger”), and with holders of the Company’s securities receiving substantially equivalent securities of Pubco, and (b) Pubco will (the “Share Exchange” and together with the Merger and the other transactions contemplated by the Business Combination Agreement, the “Transactions”) acquire all of the issued and outstanding capital shares of BPGIC from the Seller in exchange for ordinary shares of Pubco, with BPGIC becoming a wholly-owned subsidiary of Pubco;
WHEREAS, pursuant to the Business Combination Agreement, at the effective time of the Merger (the “Effective Time”), (i) each outstanding Public Warrant will be converted into one Pubco Public Warrant, with each Pubco Public Warrant having substantially the same terms and conditions as set forth in the Public Warrants, (ii) each outstanding Private Warrant will be converted into one Pubco Private Warrant, with each Pubco Private Warrant having substantially the same terms and conditions as set forth in the Private Warrants, except in each case that the Pubco Public Warrants and the Pubco Public Warrants will represent the right to receive ordinary shares of Pubco in lieu of ordinary shares of the Company, and (iii) each outstanding Right will be automatically be converted into the number of ordinary shares of Pubco that would have been received by the holder thereof if the Right had been converted into ordinary shares of the Company upon the consummation of a business combination in accordance with the Company’s Organizational Documents, the IPO Prospectus and the Rights Agreement, but for such purposes treating it as if such Business Combination had occurred immediately prior to the Effective Time and the ordinary shares of the Company issued upon conversion of the Rights had then been automatically been converted into ordinary shares of Pubco in accordance with the terms of the Business Combination Agreement; and
WHEREAS, the parties hereto desire to amend the Warrant Agreement and the Rights Agreement to add Pubco as a party to each of the Warrant Agreement and the Rights Agreement and to revise the terms of such agreements in order to reflect the transactions contemplated by the Business Combination Agreement, including without limitation the automatic conversion thereunder of the Warrants into Pubco Warrants and the issuance of Pubco ordinary shares upon exchange of the Rights.
NOW, THEREFORE, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties and covenants herein contained, and intending to be legally bound hereby, the parties hereto agree as follows:
1. Addition of Pubco as a Party to the Warrant Agreement and the Rights Agreement.
(a) The parties hereby agree to add Pubco as a party to the Warrant Agreement. The parties further agree that, from and after the Closing, (i) all of the rights and obligations of the Company under the Warrant Agreement shall be, and hereby are, assigned and delegated to Pubco as if it were the original “Company” party thereto, and (ii) all references to the Company under the Warrant Agreement relating to periods from and after the Closing shall instead be a reference to Pubco. By executing this Amendment, Pubco hereby agrees to be bound by and subject to all of the terms and conditions of the Warrant Agreement, as amended by this Amendment, from and after the Closing as if it were the original “Company” party thereto.
(b) The parties hereby agree to add Pubco as a party to the Rights Agreement. The parties further agree that, from and after the Closing, (i) all of the rights and obligations of the Company under the Rights Agreement shall be, and hereby are, assigned and delegated to Pubco as if it were the original “Company” party thereto, and (ii) all references to the Company under the Rights Agreement relating to periods from and after the Closing shall instead be a reference to Pubco. By executing this Amendment, Pubco hereby agrees to be bound by and subject to all of the terms and conditions of the Rights Agreement, as amended by this Amendment, from and after the Closing as if it were the original “Company” party thereto.
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2. Amendments to Warrant Agreement. The parties hereto hereby agree to the following amendments to the Warrant Agreement:
(a) The defined terms in this Amendment, including in the preamble and recitals hereto, and the definitions incorporated by reference from the Business Combination Agreement, are hereby added to the Warrant Agreement as if they were set forth therein.
(b) The parties hereby agree that the term “Warrants” as used in the Warrant Agreement shall include any and all warrants of Pubco into which the Warrants automatically convert upon the Effective Time. The parties further agree that any reference (as applicable and as appropriate) in the Warrant Agreement to a Warrant will instead refer to the warrants of Pubco (and any warrants of Pubco or any successor entity issued in consideration of or in exchange for any of such warrants).
(c) The parties further agree that any reference (as applicable and as appropriate) in the Warrant Agreement to Ordinary Shares will instead refer to the ordinary shares of Pubco (and any other securities of Pubco or any successor entity issued in consideration of (including as a stock split, dividend or distribution) or in exchange for any of such securities).
(d) Section 9.2 of the Warrant Agreement is hereby amended to delete the address of the Company for notices under the Warrant Agreement and instead add the following address for notices to Pubco under the Warrant Agreement as the “Company” party thereunder:
If to Pubco to:
c/o
Brooge Petroleum And Gas Investment Company FZE
|
with a copy (which will not constitute notice) to:
K&L
Gates LLP
New
York, NY 10022
|
3. Amendments to Rights Agreement. The parties hereto hereby agree to the following amendments to the Rights Agreement:
(a) The defined terms in this Amendment, including in the preamble and recitals hereto, and the definitions incorporated by reference from the Business Combination Agreement, are hereby added to the Rights Agreement as if they were set forth therein.
(b) The parties hereby agree that for purposes of the Rights Agreement, each outstanding Right will automatically be converted into the number of ordinary shares of Pubco that would have been received by the holder thereof if the Right had been converted into ordinary shares of the Company upon the consummation of a business combination in accordance with the Company’s Organizational Documents, the IPO Prospectus and the Rights Agreement, but for such purposes treating it as if such Business Combination had occurred immediately prior to the Effective Time and the ordinary shares of the Company issued upon conversion of the Rights had then been automatically been converted into ordinary shares of Pubco in accordance with the terms of the Business Combination Agreement.
(c) The parties further agree that any reference (as applicable and as appropriate) in the Rights Agreement to Ordinary Shares for periods from and after the Closing will instead refer to the ordinary shares of Pubco (and any other securities of Pubco or any successor entity issued in consideration of (including as a stock split, dividend or distribution) or in exchange for any of such securities).
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(d) Section 7.2 of the Rights Agreement is hereby amended to delete the address of the Company for notices under the Rights Agreement and instead add the following address for notices to Pubco under the Rights Agreement as the “Company” party thereunder:
If to Pubco to:
c/o
Brooge Petroleum And Gas Investment Company FZE
Fujairah,
United Arab Emirates
|
with a copy (which will not constitute notice) to:
K&L
Gates LLP
New
York, NY 10022
|
4. Working Capital Loans. The Company acknowledges and confirms that each holder of loans made to the Company that are otherwise convertible into Working Capital Warrants in accordance with the Registration Statement (“Working Capital Loans”) has, prior to the Closing, unconditionally and irrevocably waived their conversion rights with respect to their pro rata share of the Working Capital Loans, including any conversion into securities of the Company or Pubco. The Company also has, at or prior to the Closing, provided Pubco with copies of executed forms of any such waivers or releases (whether in the form of an amendment or otherwise) evidencing such holder’s relinquishment of any conversion rights with respect to the Working Capital Loans.
5. Effectiveness. Notwithstanding anything to the contrary contained herein, this Amendment shall only become effective upon the Closing. In the event that the Business Combination Agreement is terminated in accordance with its terms prior to the Closing, this Amendment and all rights and obligations of the parties hereunder shall automatically terminate and be of no further force or effect.
6. Miscellaneous. Except as expressly provided in this Amendment, all of the terms and provisions in the Warrant Agreement and the Rights Agreement are and shall remain in full force and effect, on the terms and subject to the conditions set forth therein. This Amendment does not constitute, directly or by implication, an amendment or waiver of any provision of the Warrant Agreement or the Rights Agreement, or any other right, remedy, power or privilege of any party thereto, except as expressly set forth herein. Any reference to the Warrant Agreement in the Warrant Agreement or any other agreement, document, instrument or certificate entered into or issued in connection therewith and any reference to the Rights Agreement in the Rights Agreement or any other agreement, document, instrument or certificate entered into or issued in connection therewith, shall hereinafter mean the Warrant Agreement or the Rights Agreement, as the case may be, as amended by this Amendment (or as such agreement may be further amended or modified in accordance with the terms thereof). The terms of this Amendment shall be governed by, enforced and construed and interpreted in a manner consistent with the provisions of (i) the Warrant Agreement, as it applies to the amendments to the Warrant Agreement herein, including without limitation Section 9 of the Warrant Agreement, and (ii) the Rights Agreement, as its applies to the amendments to the Rights Agreement herein, including without limitation Section 7 of the Rights Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, each party hereto has caused this Amendment to Warrant Agreement and Rights Agreement to be signed and delivered by its respective duly authorized officer as of the date first above written.
The Company: | ||
TWELVE SEAS INVESTMENT COMPANY | ||
By: | /s/ Bryant Edwards | |
Name: | Bryant Edwards | |
Title: | Chief Operating Officer | |
Pubco: | ||
BROOGE HOLDINGS LIMITED | ||
By: | /s/ Meclomen Maramot | |
Name: | Meclomen Maramot | |
Title: | Director | |
Agent: | ||
CONTINENTAL STOCK TRANSFER & TRUST COMPANY | ||
By: | /s/ Isaac J. Kagan | |
Name: | Isaac J. Kagan | |
Title: | Vice President |
[Signature Page to Amendment to Warrant Agreement and Rights Agreement]
The undersigned hereby consents, effective as of the date first set forth above, to the foregoing amendments and modifications to the Rights Agreement and the Warrant Agreement:
EarlyBirdCapital, Inc.
By: | /s/ Michael Powell | |
Name: | Michael Powell | |
Title: | Managing Director |
[Signature Page to Amendment to Warrant Agreement and Rights Agreement]
Exhibit 4.72
Execution Copy
FIRST AMENDMENT TO ESCROW AGREEMENT
This First Amendment (this “First Amendment”) to the Escrow Agreement (as defined below) is made and entered into effective as of December 20, 2019, by and among (i) BPGIC Holdings Limited, a Cayman Islands exempted company (together with its successors, “Seller”), (ii) Brooge Holdings Limited, a Cayman Islands exempted company (“Pubco”), and (iii) Continental Stock Transfer & Trust Company, as escrow agent (the “Escrow Agent”). Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Escrow Agreement.
WHEREAS, Twelve Seas Investment Company, a Cayman Islands exempted company (“Purchaser”), Pubco, Brooge Merger Sub Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Pubco, and Brooge Petroleum And Gas Investment Company FZE, a company formed under the laws of the Fujairah Free Zone, UAE (the “Company”), entered into a Business Combination Agreement on April 15, 2019, to which Brooge Petroleum and Gas Investment Company (BPGIC) PLC (“PLC”), a company formed under the laws of England and Wales, joined such Business Combination Agreement on May 10, 2019 by way of Joinder to Business Combination Agreement, such Business Combination Agreement later amended by the First Amendment to Business Combination Agreement on September 16, 2019, and subsequent to which, PLC assigned all of its rights, title and interest therein to Seller by way of Assignment and Joinder to Business Combination Agreement entered into on November 19, 2019 (the Business Combination Agreement, as amended, modified or supplemented pursuant to the foregoing and as it may further be amended, modified or supplemented from time to time, the “Business Combination Agreement”);
WHEREAS, PLC, Pubco and Escrow Agent were parties to that certain Escrow Agreement made and entered into as of May 10, 2019 (as amended by the Joinder (defined below), the “Original Agreement”);
WHEREAS, Seller became a party to the Original Agreement by executing and delivering an Assignment and Joinder to Escrow Agreement (the “Joinder”) to PLC, Pubco and Escrow Agent on November 19, 2019 and pursuant to the terms of the Joinder, replacing PLC as the “Seller” party thereunder, and with Pubco and Escrow Agent remaining as continuing parties thereunder; and
WHEREAS, the parties desire to amend the Original Agreement on the terms and conditions set forth herein (as amended, including by this First Amendment, the “Escrow Agreement”).
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in accordance with the terms of the Escrow Agreement, the parties hereto, intending to be legally bound, do hereby agree as follows:
1. Recitals. The third paragraph of the Escrow Agreement is hereby amended to delete the phrase “in the name of the Escrow Agent (for the benefit of Seller)” and replace it with the following “in the name of the Seller”.
2. Issuance of Escrow Shares. Section 2 of the Escrow Agreement is hereby amended to delete the phrase “in the name of the Escrow Agent for the benefit of Seller” and is replaced with “in the name of Seller, to be held by the Escrow Agent”.
3. Maintenance of the Escrow Shares and other Escrow Property.
(a) The fourth to the last line in Section 3(a) of the Escrow Agreement is hereby amended to add immediately after the phrase “the Escrow Agent” the following “, if Seller is unable to do so itself (for whatever reason),”.
(b) The second to last and last lines in Section 3(b) of the Escrow Agreement are hereby amended to delete the phrase “(including transferring any Escrow Shares to the name of such new escrow agent (for the benefit of Seller))” and is replaced with “(including transferring any Escrow Shares which are to be recorded in Seller’s name, to be held by such new escrow agent)”.
4. Definitions.
(a) The definition given to the defined term “Disinterested Independent Director” in Section 5(f)(iii) is hereby deleted and replaced with “means an independent director serving on Pubco’s board of directors that is disinterested in the Escrow Property (i.e., such independent director has no direct or indirect economic interest in the Escrow Property), including any such independent director who also serves on Seller’s board of directors (or on the board of directors of any of Seller’s Affiliates), notwithstanding such service on Seller’s board of directors or that of any of Seller’s Affiliates, so long as such independent director has no direct or indirect economic interest in the Escrow Property.”
(b) The definition given to the defined term “Disinterested Independent Director Majority” in Section 5(f)(iv) of the Escrow Agreement is hereby amended to add the following at the end thereof, immediately prior to the period at the end of such definition: “, provided, where there is only one Disinterested Independent Director, then with the consent of that sole Disinterested Independent Director”.
5. Tax Matters. The first sentence of Section 6 of the Escrow Agreement is hereby deleted in its entirety and replaced with the following: “Pubco and Seller agree and acknowledge that, for all U.S. and foreign tax purposes, except as required by applicable Law, Seller shall be treated as the owner of the Escrow Property while held in the Escrow Account until released in accordance with this Agreement and the Business Combination Agreement, and all interest, earnings or income, if any, earned with respect to the Escrow Property while held by the Escrow Agent shall be treated as earned by Seller until released in accordance with this Agreement and the Business Combination Agreement.”
6. Duties. The last sentence of Section 7 of the Escrow Agreement is hereby entirely deleted and replaced with the following: “There are no third party beneficiaries to this Agreement.”
7. Amending Authorized Parties; Reliance. Section 9 of the Escrow Agreement is hereby amended to delete the last sentence and replace it with “Notwithstanding the above, any notice or instruction to be provided or document required to be executed under this Agreement by persons listed in Exhibit B (including any future persons, as such Exhibit B is amended from time to time) of this Agreement on behalf of either Pubco or Seller (respectively), shall only be valid when provided or executed by any two of such authorized signers, acting jointly, on behalf of either Pubco or Seller (respectively), as identified in Exhibit B (as it may be amended from time to time). The Escrow Agent shall be entitled to rely on and shall be fully protected in relying on, the instructions and notices from any two of the authorized signers, acting jointly, on behalf of either Pubco or Seller (respectively) as identified in Exhibit B (as it may be amended from time to time) to this Agreement after the Closing, until such time as their authority is revoked in writing, or until successors have been appointed and identified by notice in the manner described in Section 15 below. The requirement in this Section 9 of there being two authorized signers acting jointly shall only apply to either Pubco or Seller when there are at least two people who are listed as serving as authorized signers (respectively) as so provided for in Exhibit B (as it may be amended from time to time) of this Agreement. Where there is only one authorized signer for either Pubco or Seller (respectively) as named in Exhibit B (as it may be amended from time to time) of this Agreement, then such sole authorized signer’s notices, instructions or documents executed pursuant to the terms of this Agreement shall be valid and the reliance and protections afforded in this Section 9 shall be available to the Escrow Agent until such time as the sole authorized signer’s authority is revoked in writing, or until successors have been appointed and identified by notice in the manner described in Section 15 below.”
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8. Correction of Notices. To the extent not already amended in the Joinder, Section 15 of the Escrow Agreement is hereby amended such that the numbers provided as a Facsimile No are deleted entirely, and the Telephone No. for (i) Nicolaas Paardenkooper on behalf of Pubco, Seller or the Company, is replaced with “+971-56-284-2828”; and (ii) Meclomen Maramot on behalf of Pubco, is deleted and replaced with ““+971-56-284-2828”, respectively. Additionally, the mailing address of each of Pubco and Seller after the Closing is hereby changed to: “c/o Brooge Petroleum And Gas Investment Company FZE, P.O. Box 50170, Fujairah, United Arab Emirates, Attn: Nicolaas Paardenkooper”.
9. Conflicts. The second sentence in Section 17 of the Escrow Agreement is hereby amended to add the following at the end thereof, immediately prior to the period at the end of such sentence: “provided that, as between Pubco and Seller, in the event of any conflict or inconsistency between Sections 2, 3, 4 or 5 of this Agreement and the related provisions of the Business Combination Agreement, the terms of this Agreement shall control and govern to the extent of any such conflict or inconsistency.”
10. Amending Further Assurances. Section 20 of the Escrow Agreement is hereby amended to add the following sentence at the end of such Section: “Pubco agrees that upon the release of the Escrow Shares from the Escrow Account to the Seller hereunder, Pubco shall promptly remove or take all necessary actions to cause its transfer agent to remove any applicable legend relating to this Agreement from the Escrow Shares.”
11. Authorized Pubco Signers. Pursuant to Schedule A of this First Amendment, Exhibit B of the Escrow Agreement is hereby updated with respect to the “Authorized Pubco Signers”. The “Authorized Seller Signers” in Exhibit B of the Escrow Agreement shall remain unchanged.
12. Miscellaneous. Except as expressly provided in this First Amendment, all of the terms and provisions in the Original Agreement are and shall remain unchanged and in full force and effect, on the terms and subject to the conditions set forth therein. This First Amendment does not constitute, directly or by implication, an amendment or waiver of any provision of the Original Agreement, or any other right, remedy, power or privilege of any party, except as expressly set forth herein. Any reference to the Escrow Agreement in the Escrow Agreement, Business Combination Agreement or any other agreement, document, instrument or certificate entered into or issued in connection therewith shall hereinafter mean the Original Agreement, as amended by this First Amendment (or as the Escrow Agreement may be further amended or modified after the date hereof in accordance with the terms thereof). The Original Agreement, as amended by this First Amendment, and the documents or instruments attached hereto or thereto or referenced herein or therein, constitutes the entire agreement between the parties with respect to the subject matter of the Escrow Agreement, and supersedes all prior agreements and understandings, both oral and written, between the parties with respect to its subject matter. If any provision of the Original Agreement is inconsistent with any provision of this First Amendment, the provision of this First Amendment shall control, and the provision of the Original Agreement shall, to the extent of such inconsistency, be disregarded. Sections 15, 18, 19, 20 and 22 through 27 of the Original Agreement are hereby incorporated herein by reference as if fully set forth herein, and such provisions apply to this First Amendment as if all references to the “Agreement” contained therein were instead references to this First Amendment. This First Amendment amends and modifies the Original Agreement in accordance with Section 18 of the Original Agreement.
{The remainder of this page is intentionally blank; the next page is the signature page.}
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Escrow Agreement as of the date first written above.
Seller: | |||
BPGIC HOLDINGS LIMITED | |||
By: | /s/ Nicolaas L. Paardenkooper | ||
Name: | Nicolaas L. Paardenkooper | ||
Title: | Director | ||
Pubco: | |||
BROOGE HOLDINGS LIMITED | |||
By: | /s/ Meclomen Maramot | ||
Name: | Meclomen Maramot | ||
Title: | Director | ||
Escrow Agent: | |||
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Escrow Agent | |||
By: | /s/ Isaac J. Kagan | ||
Name: | Isaac J. Kagan | ||
Title: | Vice President |
Accepted and agreed by the undersigned, effective as of the date set forth above:
Purchaser: | |||
TWELVE SEAS INVESTMENT COMPANY | |||
By: | /s/ Stephen N. Cannon | ||
Name: | Stephen N. Cannon | ||
Title: | Chief Financial Officer | ||
Company: | |||
BROOGE PETROLEUM AND GAS INVESTMENT COMPANY FZE | |||
By: | /s/ Nicolaas L. Paardenkooper | ||
Name: | Nicolaas L. Paardenkooper | ||
Title: | Chief Executive Officer |
Exhibit 4.73
Execution Copy
VOTING AGREEMENT
This Voting Agreement (this “Agreement”) is made as of December 20, 2019 by and among (i) BPGIC Holdings Limited, a Cayman Islands exempted company (“Seller”), (ii) Twelve Seas Sponsors I LLC, a Delaware limited liability company, the sponsor of Purchaser (“Sponsor”), (iii) Gregory Stoupnitzky (“Stoupnitzky”) and (iv) Suneel G. Kaji (“Kaji”, and collectively with Sponsor and Stoupnitzky, the “Holders”, and each individually, a “Holder”). Any capitalized term used but not defined in this Agreement will have the meaning ascribed to such term in the Business Combination Agreement (defined below).
WHEREAS, (i) Twelve Seas Investment Company, a Cayman Islands exempted company (“Purchaser”), (ii) Brooge Holdings Limited, a Cayman Islands exempted company (“Pubco”), (iii) Brooge Merger Sub Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Pubco (“Merger Sub”), (iv) Brooge Petroleum And Gas Investment Company FZE, a company formed under the laws of the Fujairah Free Zone, UAE (the “Company”), and (v) Seller (as assignee of Brooge Petroleum and Gas Investment Company (BPGIC) PLC, a company formed under the laws of England and Wales, pursuant to the Assignment and Joinder to Business Combination Agreement dated as of November 19, 2019) are parties to that certain Business Combination Agreement, dated as of April 15, 2019 (as amended from time to time in accordance with the terms thereof, including without limitation by the First Amendment to Business Combination Agreement, dated as of September 16, 2019, the “Business Combination Agreement”), pursuant to which, among other matters, (a) Purchaser will merge with and into Merger Sub, with Purchaser continuing as the surviving entity, and (b) Pubco will acquire all of the issued and outstanding ordinary shares of the Company from Seller in exchange for ordinary shares of Pubco, all upon the terms and subject to the conditions set forth in the Business Combination Agreement and in accordance with the applicable provisions of the Cayman Act;
WHEREAS, the Holders currently own an aggregate of 5,175,000 Purchaser Ordinary Shares (the “Founder Shares”), which shares were originally issued to Sponsor in a private placement prior to Purchaser’s initial public offering (the “IPO”);
WHEREAS, pursuant to the letter agreement, dated as of April 15, 2019 (the “Founder Share Letter”), by and among Purchaser, the Company and the Holders, the Holders agreed to forfeit 20% of the Founder Shares held by them (the “Forfeited Shares”) upon the closing of the transactions contemplated by the Business Combination Agreement (the “Closing”), and to deposit another 30% of such Founder Shares in escrow upon the Closing (the “Founder Escrow Shares”), with such Founder Escrow Shares subject to potential forfeiture in the event and to the extent that Seller does not achieve its earnout under the Business Combination Agreement and the related escrow agreement;
WHEREAS, simultaneously with the IPO, Sponsor purchased an aggregate of 529,000 of the Purchaser’s units in a private placement (the “Purchaser Private Units”), which Purchaser Private Units each consisted of (i) one Purchaser Ordinary Share, (ii) one warrant exercisable for one Purchaser Ordinary Share at $11.50 per share (a “Purchaser Private Warrant”), and (iii) one right to receive 1/10 of a Purchaser Ordinary Share upon consumption of the Business Combination (the “Purchaser Private Right”) (such securities comprising the Purchaser Private Units, including the shares underlying the Purchaser Private Warrants and the Purchaser Private Rights, collectively, the “Private Placement Securities”);
WHEREAS, the Business Combination Agreement requires as a condition of the Company, Pubco, Seller and Purchaser to consummate the Closing thereunder that the Holders be bound by the voting requirements set forth in this Agreement with respect to the Founder Shares owned by them (after giving effect to the forfeiture of the Forfeited Shares), the Private Placement Securities, and any securities of Purchaser or Pubco that the Holders or their Affiliates acquire or agree to acquire for any purpose up to and including the time of the Closing (such securities, collectively, the “Subject Shares”), and the Holders are willing to accept the terms of this Agreement with respect to such Subject Shares.
NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated in this Agreement as if fully set forth below, and intending to be legally bound hereby, the parties hereby agree as follows:
1. Covenant to Vote as Directed By Seller.
(a) Each Holder agrees, with respect to any of the Subject Shares owned by the Holder or its Affiliate, that from and after the Closing until the termination of this Agreement in accordance with the terms hereof (the “Voting Period”):
(i) at each meeting of the stockholders of Pubco (the “Pubco Stockholders”), and in each written consent or resolutions of Pubco Stockholders in which such Holder or its Affiliate holding Subject Shares (a “Covered Affiliate”) is entitled to vote, consent or approve, such Holder hereby unconditionally and irrevocably agrees to, and to cause its Covered Affiliates to, be present (whether in person or by proxy) for such meeting and vote their Subject Shares (in person or by proxy), as directed by Seller, or consent to any action by written consent or resolution with respect to all such matters, as directed by Seller; provided however, for the avoidance of doubt, Seller’s right to direct the consent or approval of the Private Placement Securities shall exclude any consent or approval rights with respect to the Purchaser Private Warrants unless and until they are exercised into Pubco Ordinary Shares;
(ii) Holder hereby appoints, and agrees to cause any Covered Affiliates to appoint, Seller as such Holder’s or its Covered Affiliates’ proxy and attorney-in-fact, with full power and resubstitution, to vote or act by written consent with respect to the Subject Shares owned by Holder or its Covered Affiliate, such proxy and limited power of attorney granted hereunder to be irrevocable and durable during the Voting Period, surviving the bankruptcy, death or incapacity of such Holder or its Covered Affiliate, and revoking any and all prior proxies granted by such Holder or its Covered Affiliate with respect to the matters contemplated hereunder; provided, that for the avoidance of doubt, the proxy and power of attorney granted hereunder will automatically terminate upon the end of the Voting Period;
(iii) to, and to cause its Covered Affiliates to, execute and deliver all reasonable and customary related documentation and take such other necessary reasonable and customary action in order to carry out the terms and provision of Sections 1(a)(i) and 1(a)(ii) above, including executing any actions by written consent of the Pubco Stockholders presented to such Holder or its Affiliate with respect to their Subject Shares during the Voting Period; and
(iv) not to deposit, and to cause its Covered Affiliates not to deposit, except as provided in this Agreement, any Subject Shares owned by such Holder or its Covered Affiliates in a voting trust or subject any of its Subject Shares to any arrangement or agreement with respect to the voting of such Subject Shares without the prior written consent of Seller (for the avoidance of doubt, the foregoing will not prevent Transfers to Affiliates or family trusts, so long as the Affiliate or family trust complies with the requirements of Section 2(a) below).
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(b) Notwithstanding anything to the contrary contained in this Agreement, the restrictions set forth in this Agreement shall not apply to any Subject Shares that are transferred to an unaffiliated third party in a bona fide sale on the open market (an “Open Market Sale”). For the avoidance of doubt, the restrictions set forth in this Agreement will not apply to any (y) Forfeited Shares that are forfeited upon the Closing; or (z) any Founder Escrow Shares from the time upon which they are deemed forfeited under the relevant escrow agreement (i.e. the restrictions and requirements under this Agreement shall apply to such Founder Escrow Shares up until the time of such forfeiture). If any share certificates for the Subject Shares include any legends relating to the restrictions set forth in this Agreement, in the event that Holder notifies Pubco that it desires to effect an Open Market Sale not subject to the requirements of Section 2(a) below, Pubco shall promptly remove or cause its transfer agent to remove only such relevant restrictive legends on the share certificates for the Subject Shares subject to such Open Market Sale.
2. Other Covenants.
(a) Transfers. Each Holder agrees that during the Voting Period in the event of any sale, transfer, assignment or other disposition (including by gift, pledge or grant of security interest) other than an Open Market Sale (“Transfers”) (i) the restrictions in Section 1 above shall continue to apply to such Subject Shares during the Voting Period and (ii) such assignee or transferee, as a condition to such Transfer, shall assume in writing the obligations herein and agree to be bound by the terms of this Agreement with respect to such Subject Shares as if it were an original Holder hereunder.
(b) Changes to Subject Shares. In the event of a stock dividend or distribution paid in shares, or any change in the shares of capital stock of Pubco by reason of any stock dividend or distribution, stock split, recapitalization, combination, conversion, exchange of shares or the like, the term “Subject Shares” shall be deemed to refer to and include the Subject Shares as well as all such shares issued in payment of stock dividends and distributions and any securities into which or for which any or all of the Subject Shares may be changed or exchanged or which are received in such transaction.
3. Representations, Warranties and Covenants of Holders. Each Holder hereby represents and warrants, severally but not jointly, to Seller as follows:
(a) Binding Agreement. If such Holder is an entity, (i) such Holder is duly organized and validly existing under the laws of the jurisdiction of its organization, (ii) such Holder has all necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby and (iii) the execution and delivery of this Agreement, the performance of its obligations hereunder and the consummation of the transactions contemplated hereby by such Holder has been duly authorized by all necessary action on the part of such Holder. This Agreement, assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of such Holder, enforceable against such Holder in accordance with its terms (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditor’s rights, and to general equitable principles).
(b) Ownership of Subject Shares. As of the date hereof, each Holder has beneficial ownership over the type and number of the Subject Shares set forth under such Holder’s name on the signature page hereto, is the lawful owner of such Subject Shares and has the sole power to vote or cause to be voted such Subject Shares.
(c) No Conflicts. No filing with, or notification to, any Governmental Authority, and no consent, approval, authorization or permit of any other Person is necessary for the execution of this Agreement by such Holder, the performance of its obligations hereunder or the consummation by it of the transactions contemplated hereby. None of the execution and delivery of this Agreement by such Holder, the performance of its obligations hereunder or the consummation by it of the transactions contemplated hereby shall, (i) if such Holder is an entity, conflict with or result in any breach of the Organizational Documents of such Holder, (ii) result in, or give rise to, a violation or breach of or a default under any of the terms of any material Contract to which such Holder is a party or by which such Holder or any of the Subject Shares may be bound, or (iii) violate any applicable Law or Order, except for any of the foregoing in clauses (i) through (iii) as would not reasonably be expected to impair such Holder’s ability to perform its obligations under this Agreement in any material respect.
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(d) No Inconsistent Agreements. Each Holder hereby covenants and agrees that, except for this Agreement, such Holder (i) has not entered into, nor will enter into at any time while this Agreement remains in effect, any voting agreement or voting trust with respect to the Subject Shares inconsistent with such Holder’s obligations pursuant to this Agreement, and (ii) has not granted, nor will grant at any time while this Agreement remains in effect, a proxy, a consent or power of attorney with respect to the Subject Shares.
4. Miscellaneous.
(a) Termination. Notwithstanding anything to the contrary contained herein, this Agreement (along with any proxies or powers of attorney granted pursuant to this Agreement) shall automatically terminate, as between Seller and Holder, and neither Seller nor any Holder shall have any rights or obligations hereunder, upon the earlier to occur of (y) the mutual written consent of Seller and the Holders, and (z) with respect to any Holder, the date on which such Holder and its Affiliates no longer owns any Subject Shares. The termination of this Agreement shall not prevent any party hereunder from seeking any remedies (at law or in equity) against another party hereto or relieve such party from liability for such party’s breach of any terms of this Agreement prior to termination. To be clear, the terms of this Agreement shall continue as between Seller and any transferee further to Section 2(a) hereof.
(b) Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement and all obligations of each Holder are personal to such Holder and may not be assigned, transferred or delegated by a Holder without the prior written consent of Seller, and any purported assignment, transfer or delegation without such consent shall be null and void ab initio, provided that no such assignment shall relieve the assigning Party of its obligations hereunder; provided, that the foregoing will not restrict (i) any Open Market Sale on the terms and conditions of Section 1(b) or (ii) subject to the terms and conditions of Section 2(a) hereof, Transfers of Subject Shares.
(c) Third Parties. Nothing contained in this Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any Person that is not a party hereto or thereto or a successor or permitted assign of such a party.
(d) Governing Law; Jurisdiction. This Agreement and any dispute or controversy arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of law principles thereof.
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(e) Arbitration. Any and all disputes, controversies and claims (other than applications for a temporary restraining order, preliminary injunction, permanent injunction or other equitable relief or application for enforcement of a resolution under this paragraph) arising out of, related to, or in connection with this Agreement (a “Dispute”) shall be governed by this paragraph. A party must, in the first instance, provide written notice of any Disputes to the other parties subject to such Dispute, which notice must provide a reasonably detailed description of the matters subject to the Dispute. The parties involved in such Dispute shall seek to resolve the Dispute on an amicable basis within ten (10) business days of the notice of such Dispute being received by such other parties subject to such Dispute (the “Resolution Period”); provided, that if any Dispute would reasonably be expected to have become moot or otherwise irrelevant if not decided within sixty (60) days after the occurrence of such Dispute, then there shall be no Resolution Period with respect to such Dispute. Any Dispute that is not resolved during the Resolution Period may immediately be referred to and finally resolved by arbitration pursuant to the then-existing rules and procedures (including any expedited procedures) of the ICC (the “ICC Procedures”). Any party involved in such Dispute may submit the Dispute to the ICC to commence the proceedings after the Resolution Period. To the extent that the ICC Procedures and this Agreement are in conflict, the terms of this Agreement shall control. The arbitration shall be conducted by one arbitrator nominated by the ICC promptly (but in any event within five (5) business days) after the submission of the Dispute to the ICC and reasonably acceptable to each party subject to the Dispute, which arbitrator shall be a commercial lawyer with substantial experience arbitrating disputes under voting, shareholder and similar agreements. The arbitrator shall accept his or her appointment and begin the arbitration process promptly (but in any event within five (5) business days) after his or her nomination and acceptance by the parties subject to the Dispute. The proceedings shall be streamlined and efficient. The arbitrator shall decide the Dispute in accordance with the substantive law of the state of New York. Time is of the essence. Each party subject to the Dispute shall submit a proposal for resolution of the Dispute to the arbitrator within twenty (20) days after confirmation of the appointment of the arbitrator. The arbitrator shall have the power to order any party subject to the Dispute to do, or to refrain from doing, anything consistent with this Agreement and applicable Law, including to perform its contractual obligation(s) and providing injunctive and other equitable relief; provided, that the arbitrator shall be limited to ordering pursuant to the foregoing power (and, for the avoidance of doubt, shall order) the relevant party (or parties, as applicable) to comply with only one or the other of the proposals. The arbitrator’s award shall be in writing and shall include a reasonable explanation of the arbitrator’s reason(s) for selecting one or the other proposal. The seat of arbitration shall be in London, United Kingdom. The language of the arbitration shall be English.
(f) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4(f).
(g) Interpretation. The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement. In this Agreement, unless the context otherwise requires: (i) any pronoun used shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) “including” (and with correlative meaning “include”) shall be deemed in each case to be followed by the words “without limitation”; (iii) the words “herein,” “hereto,” and “hereby” and other words of similar import shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or other subdivision of this Agreement; and (iv) the term “or” means “and/or”. The parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
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(h) Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (i) in person, (ii) by facsimile or other electronic means, with affirmative confirmation of receipt, (iii) one (1) Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable party at the following addresses (or at such other address for a party as shall be specified by like notice):
(i) Amendments and Waivers. This Agreement may be amended, supplemented or modified only by execution of a written instrument signed by Seller and the Holders. The terms of this Agreement may only be waived in a writing signed by the party against whom enforcement of such waiver is sought. No failure or delay by a party in exercising any right hereunder shall operate as a waiver thereof. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.
(j) Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction.
(k) Specific Performance. Each party acknowledges that its obligations under this Agreement are unique, and recognizes that in the event of a breach of this Agreement by such party, money damages may be inadequate and the non-breaching party may not have adequate remedy at law. Accordingly, each party shall be entitled to seek an injunction or restraining order to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to prove that money damages would be inadequate, this being in addition to any other right or remedy to which such party may be entitled under this Agreement, at law or in equity.
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(l) No Partnership, Agency or Joint Venture. This Agreement is intended to create a contractual relationship between the Holders, on one hand, and Seller, on the other hand, and is not intended to create, and does not create, any agency, partnership, joint venture or any like relationship among any of the parties hereto. Without limiting the generality of the foregoing sentence, each Holder (i) is entering into this Agreement solely on its own behalf and shall not have any obligation to perform on behalf of any other Holder or any other holder of Purchaser Ordinary Shares or Pubco Ordinary Shares or securities that have the right to acquire, convert into or that are exchangeable for the foregoing securities, or any liability (regardless of the legal theory advanced) for any breach of this Agreement by any other Holder or any other holder of any of the foregoing securities, and (ii) by entering into this Agreement does not intend to form a “group” for purposes of Rule 13d-5(b)(1) of the Exchange Act or any other similar provision of applicable law. Each Holder has acted independently regarding its decision to enter into this Agreement. Nothing contained in this Agreement shall be deemed to vest in Seller any direct or indirect ownership or incidence of ownership of or with respect to any Subject Shares.
(m) Entire Agreement. This Agreement (together with the Business Combination Agreement to the extent referred to herein) constitutes the full and entire understanding and agreement among the parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the parties is expressly canceled; provided, that, for the avoidance of doubt, the foregoing shall not affect the post-Closing rights and obligations of the parties under the Business Combination Agreement or any Ancillary Document. Notwithstanding the foregoing, nothing in this Agreement shall limit any of the rights or remedies of Seller or any of the obligations of any Holder under any other agreement between a Holder and Seller or any certificate or instrument executed by any Holder in favor of Seller, and nothing in any other agreement, certificate or instrument shall limit any of the rights or remedies of Seller or any of the obligations of the Holders under this Agreement.
(n) Counterparts; Email. This Agreement may also be executed by electronic signature and delivered by email in portable document format in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
{Remainder of Page Intentionally Left Blank; Signature Page Follows}
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IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of the date first written above.
Seller: | ||
BPGIC HOLDINGS LIMITED | ||
By: | /s/ Nicolaas L. Paardenkooper | |
Name: | Nicolaas L. Paardenkooper | |
Title: | Director |
{Signature Page to Voting Agreement}
Holders: |
TWELVE SEAS SPONSORS I LLC |
By: | /s/ Bryant Edwards | |
Name: | Bryant Edwards | |
Title: | Chief Operating Officer |
Number and Type of Subject Shares:
Founder Shares: 5,075,000 (prior to forfeiture of the Forfeited Shares under the Founder Share Letter) Private Placement Securities:
- 529,000 Purchaser Ordinary Shares
- 529,000 Purchaser Rights that convert into 52,900 Purchaser Ordinary Shares at the Closing
- 529,000 Purchaser Private Warrants to acquire 529,000 Purchaser Ordinary Shares
Other Purchaser Securities Owned At or Prior to the Closing: 0
Address for Notice:
Address: | 135 East 57th Street, 18th Floor |
New York, New York 10022 | |
Attention: | Stephen N. Cannon |
Tel. No.: | +852 9500 2922 |
Email: | steve@twelveseascapital.com |
with a copy (which will not constitute notice) to:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas, 11th Floor
New York, New York 10105, USA
Attention: | Stuart Neuhauser, Esq. and Matthew A. Gray, Esq. |
Fax No.: | (212) 370-7889 |
Tel. No.: | (212) 370-1300 |
Email: | sneuhauser@egsllp.com and mgray@egsllp.com |
{Signature Page to Voting Agreement}
/s/ Gregory Stoupnitzky | ||
Name: | Gregory Stoupnitzky |
Number and Type of Subject Shares:
Founder Shares: 50,000 (prior to forfeiture of the Forfeited Shares under the Founder Share Letter)
Private Placement Securities: ___________
Other Purchaser Securities Owned At or Prior to the Closing: 0
Address for Notice:
Address: |
Facsimile No.: | ||
Telephone No.: | ||
Email: |
with a copy (which will not constitute notice) to:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas, 11th Floor
New York, New York 10105, USA
Attention: | Stuart Neuhauser, Esq. and Matthew A. Gray, Esq. |
Fax No.: | (212) 370-7889 |
Tel. No.: | (212) 370-1300 |
Email: | sneuhauser@egsllp.com and mgray@egsllp.com |
{Signature Page to Voting Agreement}
/s/ Suneel G. Kaji | ||
Name: | Suneel G. Kaji |
Number and Type of Subject Shares:
Founder Shares: 50,000 (prior to forfeiture of the Forfeited Shares under the Founder Share Letter)
Private Placement Securities: ____________
Other Purchaser Securities Owned At or Prior to the Closing: 0
Address for Notice:
Address: |
Facsimile No.: | ||
Telephone No.: | ||
Email: |
with a copy (which will not constitute notice) to:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas, 11th Floor
New York, New York 10105, USA
Attention: | Stuart Neuhauser, Esq. and Matthew A. Gray, Esq. |
Fax No.: | (212) 370-7889 |
Tel. No.: | (212) 370-1300 |
Email: | sneuhauser@egsllp.com and mgray@egsllp.com |
{Signature Page to Voting Agreement}
Exhibit 4.74
Execution Copy
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of the 20th of December, 2019, by and among Brooge Holdings Limited, a Cayman Islands exempted company (including any successor entity thereto, the “Company”), and the undersigned parties listed under Investor on the signature page hereto and their respective successors and permitted assigns (each, an “Investor” and collectively, the “Investors”). Any capitalized term used but not defined in this Agreement will have the meaning ascribed to such term in the Business Combination Agreement (defined below).
WHEREAS, Twelve Seas Investment Company, a Cayman Islands exempted company (“12 Seas”), Twelve Seas Sponsors I LLC (“Sponsor”), Gregory Stoupnitsky (“Stoupnitsky”), Suneel G Kaji (“Kaji” and collectively with Sponsor and Stoupnitsky, the “Initial Shareholders”) and EarlyBirdCapital. Inc., a Delaware corporation (“EarlyBird”), are parties to that certain Registration Rights Agreement, dated as of June 19, 2018 (the “Original Agreement”), pursuant to which 12 Seas granted certain registration rights to the Iniitial Shareholders and EarlyBird with respect to the 12 Seas’ securities;
WHEREAS, on April 15, 2019, (i) the Company, (ii) 12 Seas, (iii) Brooge Merger Sub Limited, Cayman Islands exempted company and a wholly-owned subsidiary of the Company (“Merger Sub”), and (iv) Brooge Petroleum And Gas Investment Company FZE, a company formed under the laws of the Fujairah Free Zone, UAE (“BPGIC”), entered into that certain Business Combination Agreement, pursuant to which BPGIC Holdings Limited, a Cayman Islands exempted company (“Seller”), also become a party thereafter pursuant to the Assignment and Joinder to Business Combination Agreement dated as of November 19, 2019 (as assignee of Brooge Petroleum and Gas Investment Company (BPGIC) PLC, a company formed under the laws of England and Wales, which became a party to the Business Combination Agreement pursuant to a Joinder to Business Combination Agreement dated as of May 10, 2019) (as amended prior to the date hereof, including by the foregoing joinders and by the First Amendment to Business Combination Agreement, dated as of September 16, 2019, and as it may be amended after the date hereof, the “Business Combination Agreement”);
WHEREAS, pursuant to the Business Combination Agreement, subject to the terms and conditions thereof, among other matters, upon the consummation of the transactions contemplated thereby (the “Closing”), (i) 12 Seas will merge with and into Merger Sub, with 12 Seas continuing as the surviving entity and a wholly-owned subsidiary of the Company, and with holders of 12 Seas’ securities receiving substantially equivalent securities of the Company (the “Merger”), and (ii) the Company will acquire all of the issued and outstanding capital shares of BPGIC from Seller in exchange for ordinary shares of the Company, with BPGIC becoming a wholly-owned subsidiary of the Company;
WHEREAS, the parties hereto desire to amend and restate the Original Agreement in its entirety to add the Company as a party to thereto and to revise the terms hereof in order to reflect the transactions contemplated by the Business Combination Agreement, including the issuance of the ordinary shares of the Company and the warrants of the Company thereunder, and for certain other matters as set forth herein; and
WHEREAS, pursuant to Section 6.7 of the Original Agreement, the Original Agreement can be amended with the written consent of 12 Seas and the holders of a majority of the Registrable Securities (as defined in the Original Agreement) at the time in question, which must include the consent of EarlyBird.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. The following capitalized terms used herein have the following meanings:
“12 Seas” is defined in the recitals to this Agreement.
“Agreement” means this Agreement, as amended, restated, supplemented, or otherwise modified from time to time.
“BPGIC” is defined in the recitals to this Agreement.
“BPGIC Registration Rights Agreement” means that certain Registration Rights Agreement by and between the Company and Seller, to be entered into in connection with the consummation of the transactions contemplated by the Business Combination Agreement.
“BPGIC Securities” means those securities included in the definition of “Registrable Securities” specified in the BPGIC Registration Rights Agreement.
“Business Combination” means the acquisition of direct or indirect ownership through a merger, share exchange, asset acquisition, share purchase, recapitalization, reorganization or other similar type of transaction, of one or more businesses or entities having a collective fair market value of at least 80% of the balance in 12 Seas’ trust account at the time of the execution of a definitive agreement for such transaction.
“Business Combination Agreement” is defined in the recitals to this Agreement.
“Closing” is defined in the recitals to this Agreement.
“Closing Date” means the date on which the Closing occurs.
“Commission” means the Securities and Exchange Commission, or any other Federal agency then administering the Securities Act or the Exchange Act.
“Company” is defined in the preamble to this Agreement, and shall include the Company’s successors by merger, acquisition, reorganization or otherwise.
“Demand Registration” is defined in Section 2.1.1.
“Demanding Holder” is defined in Section 2.1.1.
“Dispute” is defined in Section 6.9.
“EarlyBird” is defined in the recitals to this Agreement.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in effect at the time.
“Founder Share Escrow Agreement” means the Share Escrow Agreement, dated as of June 19, 2018 (as amended, including by the Amendment to Share Escrow Agreement on December 20, 2019), by and among 12 Seas, the Company, the Initial Shareholders and Continental Stock Transfer & Trust Company, as escrow agent.
“ICC” means the International Chamber of Commerce Arbitration or any successor entity conducting arbitrations.
“ICC Procedures” is defined in Section 6.9.
“Indemnified Party” is defined in Section 4.3.
“Indemnifying Party” is defined in Section 4.3.
“Initial Shareholder Escrow Agreement” means the Initial Shareholder Escrow Agreement, dated as of December 20, 2019, as amended, by and among the Company, the Initial Shareholders and Continental Stock Transfer & Trust Company, as escrow agent.
“Initial Shareholders” is defined in the recitals to this Agreement.
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“Initial Shares” means the outstanding Ordinary Shares of the Company issued or issuable in the Merger in exchange for the ordinary shares of 12 Seas that were issued by 12 Seas prior to the consummation of the IPO, and includes any warrants, share capital or other securities of the Company or successor entity issued as a dividend or other distribution with respect to or in exchange for or in replacement of the foregoing securities.
“Investor(s)” is defined in the preamble to this Agreement, and include any transferee of the Registrable Securities (so long as they remain Registrable Securities) of an Investor permitted under this Agreement.
“Investor Indemnified Party” is defined in Section 4.1.
“IPO” means the initial public offering of 12 Seas.
“Kaji” is defined in the recitals to this Agreement.
“Maximum Number of Shares” is defined in Section 2.1.4.
“Merger” is defined in the recitals to this Agreement.
“Merger Sub” is defined in the recitals to this Agreement.
“Ordinary Shares” means the ordinary shares, par value $0.0001 per share, of the Company, along with any equity securities paid as dividends or distributions after the Closing with respect to such shares or into which such shares are exchanged or converted after the Closing.
“Original Agreement” is defined in the recitals to this Agreement.
“Piggy-Back Registration” is defined in Section 2.2.1.
“Private Securities” means the Ordinary Shares and private warrants of the Company (and the Ordinary Shares underlying such private warrants) issued or issuable in the Merger (including the Ordinary Shares issuable for the 12 Seas’ rights upon the Closing) in exchange for the 529,000 units of 12 Seas that were issued to the Sponsor in a private placement that closed concurrently with the closing of the IPO and the private placement over-allotment units issued thereafter, and includes any warrants, share capital or other securities of the Company or successor entity issued as a dividend or other distribution with respect to or in exchange for or in replacement of the foregoing securities.
“Pro Rata” is defined in Section 2.1.4.
“Register,” “Registered” and “Registration” mean a registration or offering effected by preparing and filing a registration statement or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.
“Registrable Securities” means (i) the Initial Shares, (ii) the Private Securities (and all underlying securities), and (iii) the Representative Securities, including any securities held in escrow under the Founder Share Escrow Agreement, the Initial Shareholder Escrow Agreement or other escrow arrangements that an Investor may have with respect to all or a portion of the foregoing securities. Registrable Securities include any warrants, shares of capital stock or other securities of the Company or any successor entity issued as a dividend or other distribution with respect to or in exchange for or in replacement of the foregoing securities. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when: (a) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (b) such securities shall have been otherwise transferred, new certificates for them not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of them shall not require registration under the Securities Act; (c) such securities shall have ceased to be outstanding, or (d) the Registrable Securities are freely saleable under Rule 144 without volume limitations. Notwithstanding anything to the contrary contained herein, a Person shall be deemed to be an “Investor holding Registrable Securities” (or words to that effect) under this Agreement only if they are an Investor or a permitted transferee of the applicable Registrable Securities (so long as they remain Registrable Securities) of any Investor permitted under this Agreement, the Founder Share Escrow Agreement and the Initial Shareholder Escrow Agreement.
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“Registration Statement” means a registration statement filed by the Company with the Commission in compliance with the Securities Act and the rules and regulations promulgated thereunder for a public offering and sale or resale of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities, including all amendments thereto (other than a registration statement on Form S-4, F-4 or Form S-8, or their successors, or any registration statement covering only securities proposed to be issued in exchange for securities or assets of another entity).
“Release Date” means with respect to any applicable Initial Shares, the date on which such Initial Shares are disbursed from escrow pursuant to Section 3 of the Founder Share Escrow Agreement and, if applicable, Section 5 of the Initial Shareholder Escrow Agreement; provided that with respect to the Initial Shares transferred to the escrow account under the Initial Shareholder Escrow Agreement, such Initial Shares shall instead have a Release Date of the date that such Initial Shares are released from escrow to the Initial Shareholders (or their assignees) under the Initial Shareholder Escrow Agreement if later than the date that they would have otherwise been disbursed under the Founder Share Escrow Agreement.
“Representative Securities” mean the outstanding Ordinary Shares of the Company issued or issuable in the Merger in exchange for the ordinary shares of 12 Seas that were issued by 12 Seas to EarlyBird or its designees in connection with the IPO, and includes any warrants, share capital or other securities of the Company or successor entity issued as a dividend or other distribution with respect to or in exchange for or in replacement of the foregoing securities.
“Resolution Period” is defined in Section 6.9.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in effect at the time.
“Seller” is defined in the recitals to this Agreement.
“Short Form Registration” is defined in Section 2.3.
“Sponsor” is defined in the recitals to this Agreement.
“Stoupnitsky” is defined in the recitals to this Agreement.
“Underwriter” means a securities dealer who purchases any Registrable Securities as principal in an underwritten offering and not as part of such dealer’s market-making activities.
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2. REGISTRATION RIGHTS.
2.1 Demand Registration.
2.1.1 Request for Registration. Subject to Sections 2.4 and 3.5, at any time and from time to time on or after (i) the Closing Date with respect to the Registrable Securities other than Initial Shares or (ii) the Release Date with respect to Registrable Securities that are Initial Shares (or, solely with respect to Initial Shares that are subject to the Founder Share Escrow Agreement, but not the Initial Shareholder Escrow Agreement, if earlier than the Release Date, ten (10) months after the Closing Date), Investors holding a majority-in-interest of the Registrable Securities then issued and outstanding (for the avoidance of any doubt, any Registrable Securities held in escrow under the terms of the Founder Share Escrow Agreement or the Initial Shareholder Escrow Agreement shall be counted towards any majority-in-interest determination on behalf of the Investors under this Agreement) may make a written demand for registration under the Securities Act of all or part of their Registrable Securities (a “Demand Registration”). Any demand for a Demand Registration shall specify the number of Registrable Securities proposed to be sold and the intended method(s) of distribution thereof. Within thirty (30) days following receipt of any request for a Demand Registration, the Company will notify all other Investors holding Registrable Securities of the demand, and each Investor holding Registrable Securities who wishes to include all or a portion of such Investor’s Registrable Securities in the Demand Registration (each such Investor including Registrable Securities in such registration, a “Demanding Holder”) shall so notify the Company within fifteen (15) days after the receipt by the Investor of the notice from the Company. Upon any such request, the Demanding Holders shall be entitled to have their Registrable Securities included in the Demand Registration, subject to Section 2.1.4 and the provisos set forth in Section 3.1.1. The Company shall not be obligated to effect more than an aggregate of two (2) Demand Registrations under this Section 2.1.1 in respect of all Registrable Securities. Notwithstanding anything in this Section 2.1 to the contrary, the Company shall not be obligated to effect a Demand Registration, (i) if a Piggy-Back Registration had been available to the Demanding Holder(s) within the one hundred twenty (120) days preceding the date of request for the Demand Registration, including because the Company has sent a notice under Section 2.2.1 that it proposes to file a Registration Statement for an offering for a capital raise on behalf of the Company, (ii) within sixty (60) days after the effective date of a previous registration effected with respect to the Registrable Securities pursuant this Section 2.1 or (iii) during any period (not to exceed one hundred eighty (180) days) following the closing of the completion of an offering of securities by the Company if such Demand Registration would cause the Company to breach a “lock-up” or similar provision contained in the underwriting agreement for such offering.
2.1.2 Effective Registration. A registration will not count as a Demand Registration until the Registration Statement filed with the Commission with respect to such Demand Registration has been declared effective and the Company has complied with all of its obligations in all material respects under this Agreement with respect thereto; provided, however, that if, after such Registration Statement has been declared effective, the offering of Registrable Securities pursuant to a Demand Registration is interfered with by any stop order or injunction of the Commission or any other governmental agency or court, the Registration Statement with respect to such Demand Registration will be deemed not to have been declared effective, unless and until, (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of the Demanding Holders thereafter elect to continue the offering; provided, further, that the Company shall not be obligated to file a second Registration Statement until a Registration Statement that has been filed is counted as a Demand Registration or is terminated.
2.1.3 Offering. If a majority-in-interest of the Demanding Holders so elect and advise the Company as part of their written demand for a Demand Registration, the offering of such Registrable Securities pursuant to such Demand Registration shall either be in the form of an underwritten offering or a non-underwritten offering. In the case of a form of underwritten offering, then the right of any Demanding Holder to include its Registrable Securities in such registration shall be conditioned upon such Demanding Holder’s participation in such underwriting and the inclusion of such Demanding Holder’s Registrable Securities in the underwriting to the extent provided herein. All Demanding Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the Underwriter or Underwriters selected for such underwriting by a majority-in-interest of the Investors initiating the Demand Registration. Any Underwriter or Underwriters selected hereunder shall be at the sole and absolute discretion of the Company.
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2.1.4 Reduction of Offering. If the managing Underwriter or Underwriters for a Demand Registration that is to be an underwritten offering, in good faith, advises the Company and the Demanding Holders in writing that the dollar amount or number of Registrable Securities which the Demanding Holders desire to sell, taken together with all other Ordinary Shares or other securities which the Company desires to sell and the Ordinary Shares or other securities, if any, as to which registration by the Company has been requested pursuant to written contractual piggy-back registration rights held by other security holders of the Company who desire to sell, exceeds the maximum dollar amount or maximum number of shares that can be sold in such offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of shares, as applicable, the “Maximum Number of Shares”), then the Company shall include in such registration: (i) first, the Registrable Securities as to which Demand Registration has been requested by the Demanding Holders, and the BPGIC Securities for the account of any Persons who have exercised demand registration rights pursuant to the BPGIC Registration Rights Agreement during the period under which the Demand Registration hereunder is ongoing (all pro rata in accordance with the number of securities that each applicable Person has requested be included in such registration, regardless of the number of securities held by each such Person (as long as they do not request to include more securities than they own) (such proportion is referred to herein as “Pro Rata”)) that can be sold without exceeding the Maximum Number of Shares; (ii) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (i), the Ordinary Shares or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (iii) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i) and (ii), the Registrable Securities of Investors as to which registration has been requested pursuant to Section 2.2 and the BPGIC Securities as to which registration has been requested pursuant to the applicable written contractual piggy-back registration rights under the BPGIC Registration Rights Agreement, Pro Rata among the holders thereof based on the number of securities requested by such holders to be included in such registration, that can be sold without exceeding the Maximum Number of Shares; and (iv) fourth, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i), (ii) and (iii), the Ordinary Shares or other equity securities for the account of other Persons that the Company is obligated to register pursuant to written contractual arrangements with such Persons that can be sold without exceeding the Maximum Number of Shares. In the event that Company securities that are convertible into Ordinary Shares are included in the offering, the calculations under this Section 2.1.4 shall include such Company securities on an as-converted to Ordinary Share basis. Notwithstanding anything to the contrary herein, in the event that an offering under a Demand Registration is not underwritten, but the Company’s board of directors reasonably determines in good faith that the dollar amount or number of Registrable Securities which the Demanding Holders desire to sell, taken together with all other Ordinary Shares or other securities which the Company desires to sell and the Ordinary Shares or other securities, if any, as to which registration by the Company has been requested pursuant to written contractual piggy-back registration rights held by other security holders of the Company who desire to sell, exceeds the Maximum Number of Shares, then the number of securities include in such registration shall be reduced in the same priority as underwritten offerings under this Section 2.1.4.
2.1.5 Withdrawal. If a majority-in-interest of the Demanding Holders disapprove of the terms of any offering or sale (whether underwritten or otherwise) or are not entitled to include all of their Registrable Securities in any offering, such majority-in-interest of the Demanding Holders may elect to withdraw from such offering by giving written notice to the Company and the Underwriter or Underwriters of their request to withdraw prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Demand Registration. If the majority-in-interest of the Demanding Holders withdraws from a proposed offering relating to a Demand Registration in such event, then such registration shall not count as a Demand Registration provided for in Section 2.1.
2.2 Piggy-Back Registration.
2.2.1 Piggy-Back Rights. Subject to Sections 2.4 and 3.5, if at any time on or after the Closing Date, the Company proposes to file a Registration Statement under the Securities Act with respect to the registration of or an offering of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities, by the Company for its own account or for security holders of the Company for their account (or by the Company and by security holders of the Company including pursuant to Section 2.1), other than a Registration Statement (i) filed in connection with any employee stock option or other benefit plan, (ii) for an exchange offer or offering of securities solely to the Company’s existing security holders, (iii) for an offering of debt that is convertible into equity securities of the Company or (iv) for a dividend reinvestment plan, then the Company shall (x) give written notice of such proposed filing to Investors holding Registrable Securities as soon as practicable but in no event less than ten (10) Business Days before the anticipated filing date, which notice shall describe the amount and type of securities to be included in such registration or offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, of the offering, and (y) offer to Investors holding Registrable Securities in such notice the opportunity to register the sale of such number of Registrable Securities as such Investors may request in writing within five (5) Business Days following receipt of such notice (a “Piggy-Back Registration”). To the extent permitted by applicable securities laws with respect to such registration by the Company or another demanding security holder, the Company shall use its best efforts to cause such Registrable Securities to be included in such registration and shall use its best efforts to cause the managing Underwriter or Underwriters of a proposed underwritten offering to permit the Registrable Securities requested to be included in a Piggy-Back Registration on the same terms and conditions as any similar securities of the Company and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. All Investors holding Registrable Securities proposing to distribute their securities through a Piggy-Back Registration that involves an Underwriter or Underwriters shall enter into an underwriting agreement in customary form with the Underwriter or Underwriters selected for such Piggy-Back Registration.
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2.2.2 Reduction of Offering. If the managing Underwriter or Underwriters for a Piggy-Back Registration that is to be an underwritten offering advises, in good faith, the Company and Investors holding Registrable Securities proposing to distribute their Registrable Securities through such Piggy-Back Registration in writing that the dollar amount or number of Ordinary Shares or other Company securities which the Company desires to sell, taken together with the Ordinary Shares or other Company securities, if any, as to which registration has been demanded pursuant to written contractual arrangements with Persons other than the Investors holding Registrable Securities hereunder, the Registrable Securities as to which registration has been requested under this Section 2.2, and the Ordinary Shares or other Company securities, if any, as to which registration has been requested pursuant to the written contractual piggy-back registration rights of other security holders of the Company, exceeds the Maximum Number of Shares, then the Company shall include in any such registration:
(a) If the registration is undertaken for the Company’s account: (i) first, the Ordinary Shares or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (ii) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (i), the Registrable Securities of Investors as to which registration has been requested pursuant to this Section 2.2 and the BPGIC Securities as to which registration has been requested pursuant to the applicable written contractual piggy-back registration rights under the BPGIC Registration Rights Agreement, Pro Rata among the holders thereof based on the number of securities requested by such holders to be included in such registration, that can be sold without exceeding the Maximum Number of Shares; and (iii) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i) and (ii), the Ordinary Shares or other equity securities for the account of other Persons that the Company is obligated to register pursuant to separate written contractual arrangements with such Persons that can be sold without exceeding the Maximum Number of Shares;
(b) If the registration is a “demand” registration undertaken at the demand of Demanding Holders pursuant to Section 2.1: (i) first, the Ordinary Shares or other securities for the account of the Demanding Holders that can be sold without exceeding the Maximum Number of Shares; (ii) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (i), the Ordinary Shares or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (iii) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i) and (ii), the Registrable Securities of Investors as to which registration has been requested pursuant to this Section 2.2 and the BPGIC Securities as to which registration has been requested pursuant to the applicable written contractual piggy-back registration rights under the BPGIC Registration Rights Agreement, Pro Rata among the holders thereof based on the number of securities requested by such holders to be included in such registration, that can be sold without exceeding the Maximum Number of Shares; and (iv) fourth, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i), (ii) and (iii), the Ordinary Shares or other equity securities for the account of other Persons that the Company is obligated to register pursuant to separate written contractual arrangements with such Persons that can be sold without exceeding the Maximum Number of Shares;
(c) If the registration is a “demand” registration undertaken at the demand of holders of BPGIC Securities under the BPGIC Registration Rights Agreement: (i) first, the BPGIC Securities for the account of the demanding holders, Pro Rata among such holders based on the number of BPGIC Securities requested by such holders to be included in such registration, that can be sold without exceeding the Maximum Number of Shares; (ii) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (i), the Ordinary Shares or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (iii) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i) and (ii), the Registrable Securities of Investors as to which registration has been requested pursuant to this Section 2.2 and the BPGIC Securities as to which registration has been requested pursuant to the applicable written contractual piggy-back registration rights under the BPGIC Registration Rights Agreement, Pro Rata among the holders thereof based on the number of securities requested by such holders to be included in such registration, that can be sold without exceeding the Maximum Number of Shares; and (iv) fourth, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i), (ii) and (iii), the Ordinary Shares or other equity securities for the account of other Persons that the Company is obligated to register pursuant to separate written contractual arrangements with such Persons that can be sold without exceeding the Maximum Number of Shares; and
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(d) If the registration is a “demand” registration undertaken at the demand of Persons other than either Demanding Holders under Section 2.1 or the holders of BPGIC Securities exercising demand registration rights under the BPGIC Registration Rights Agreement: (i) first, the Ordinary Shares or other securities for the account of the demanding Persons that can be sold without exceeding the Maximum Number of Shares; (ii) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (i), the Ordinary Shares or other securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Shares; ((iii) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i) and (ii), the Registrable Securities of Investors as to which registration has been requested pursuant to this Section 2.2 and the BPGIC Securities as to which registration has been requested pursuant to the applicable written contractual piggy-back registration rights under the BPGIC Registration Rights Agreement, Pro Rata among the holders thereof based on the number of securities requested by such holders to be included in such registration, that can be sold without exceeding the Maximum Number of Shares; and (iv) fourth, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i), (ii) and (iii), the Ordinary Shares or other equity securities for the account of other Persons that the Company is obligated to register pursuant to separate written contractual arrangements with such Persons that can be sold without exceeding the Maximum Number of Shares.
In the event that Company securities that are convertible into Ordinary Shares are included in the offering, the calculations under this Section 2.2.2 shall include such Company securities on an as-converted to Ordinary Share basis. Notwithstanding anything to the contrary above, to the extent that the registration of an Investor’s Registrable Securities would prevent the Company or the demanding shareholders from effecting such registration and offering, such Investor shall not be permitted to exercise Piggy Back Registration rights with respect to such registration and offering. Notwithstanding anything to the contrary herein, in the event that an offering pursuant to a Piggy-Back Registration is not underwritten, but the Company’s board of directors reasonably determines in good faith that the dollar amount or number of Registrable Securities which the Investors desire to sell, taken together with all other Ordinary Shares or other securities which the Company desires to sell and the Ordinary Shares or other securities, if any, as to which registration by the Company has been requested pursuant to written contractual piggy-back registration rights held by other security holders of the Company who desire to sell, exceeds the Maximum Number of Shares, then the number of securities include in such registration shall be reduced in the same priority as underwritten offerings under this Section 2.2.2.
2.2.3 Withdrawal. Any Investor holding Registrable Securities may elect to withdraw such Investor’s request for inclusion of Registrable Securities in any Piggy-Back Registration by giving written notice to the Company of such request to withdraw prior to the effectiveness of the Registration Statement. The Company (whether on its own determination or as the result of a withdrawal by Persons making a demand pursuant to written contractual obligations) may withdraw a Registration Statement at any time prior to the effectiveness of such Registration Statement without any liability to the applicable Investor, subject to the next sentence and the provisions of Section 4. Notwithstanding any such withdrawal, the Company shall pay all expenses incurred in connection with such Piggy-Back Registration as provided in Section 3.3 (subject to the limitations set forth therein) by Investors holding Registrable Securities that requested to have their Registrable Securities included in such Piggy-Back Registration.
2.2.4 Unlimited Piggy-Back Registration Rights. For purposes of clarity, any registration effected pursuant to Section 2.2 hereof shall not be counted as a registration pursuant to a Demand Registration effected under Section 2.1 hereof.
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2.3 Short Form Registrations. After the Closing Date, subject to Section 2.4, Investors holding Registrable Securities may at any time and from time to time, request in writing that the Company register the resale of any or all of such Registrable Securities on Form S-3 or F-3 or any similar short-form registration which may be available at such time (“Short Form Registration”); provided, however, that the Company shall not be obligated to effect such request through an underwritten offering. Upon receipt of such written request, the Company will promptly give written notice of the proposed registration to all other Investors holding Registrable Securities, and, as soon as practicable thereafter, effect the registration of all or such portion of such Investors’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities, if any, of any other Investors joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from the Company; provided, however, that the Company shall not be obligated to effect any such registration pursuant to this Section 2.3: (i) if Short Form Registration is not available to the Company for such offering; or (ii) if Investors holding Registrable Securities, together with the holders of any other securities of the Company entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at any aggregate price to the public of less than $2,000,000. Registrations effected pursuant to this Section 2.3 shall not be counted as Demand Registrations effected pursuant to Section 2.1.
2.4 Restriction of Offerings. Notwithstanding anything to the contrary contained in this Agreement (except as set forth in clause (ii) of the first sentence of Section 2.1.1 with respect to Initial Shares that are subject to the Founder Share Escrow Agreement, but not the Initial Shareholder Escrow Agreement), the Company shall not be obligated to effect, or to take any action to effect, any registration (including any Demand Registration or Piggy-Back Registration) pursuant to this Section 2 with respect to any Registrable Securities that are escrow shares while they are held in the escrow accounts in accordance with the Founder Share Escrow Agreement Amendment or the Initial Shareholder Escrow Agreement and not yet distributed to the Investors.
3. REGISTRATION PROCEDURES.
3.1 Filings; Information. Whenever the Company is required to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the registration and sale of such Registrable Securities in accordance with the intended method(s) of distribution thereof as expeditiously as practicable, and in connection with any such request:
3.1.1 Filing Registration Statement. The Company shall use its best efforts to, as expeditiously as possible after receipt of a request for a Demand Registration pursuant to Section 2.1, prepare and file with the Commission a Registration Statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of all Registrable Securities to be registered thereunder in accordance with the intended method(s) of distribution thereof, and shall use its reasonable efforts to cause such Registration Statement to become effective and use its reasonable efforts to keep it effective for the period required by Section 3.1.3; provided, however, that the Company shall have the right to defer any Demand Registration for up to thirty (30) days, and any Piggy-Back Registration for such period as may be applicable to deferment of any demand registration to which such Piggy-Back Registration relates, in each case if the Company shall furnish to Investors requesting to include their Registrable Securities in such registration a certificate signed by the Chairman, Chief Executive Officer or Chief Financial Officer of the Company stating that, in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company and its shareholders for such Registration Statement to be effected at such time or the filing would require premature disclosure of material information which is not in the interests of the Company to disclose at such time; provided further, however, that the Company shall not have the right to exercise the right set forth in the immediately preceding proviso more than twice in any 365-day period in respect of a Demand Registration hereunder.
3.1.2 Copies. The Company shall, prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to Investors holding Registrable Securities included in such registration, and such Investors’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such Registration Statement (including each preliminary prospectus), and such other documents as Investors holding Registrable Securities included in such registration or legal counsel for any such Investors may request in order to facilitate the disposition of the Registrable Securities owned by such Investors.
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3.1.3 Amendments and Supplements. The Company shall prepare and file with the Commission such amendments, including post-effective amendments, and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective and in compliance with the provisions of the Securities Act until all Registrable Securities and other securities covered by such Registration Statement have been disposed of in accordance with the intended method(s) of distribution set forth in such Registration Statement or such securities have been withdrawn or until such time as the Registrable Securities cease to be Registrable Securities as defined by this Agreement.
3.1.4 Notification. After the filing of a Registration Statement, the Company shall promptly, and in no event more than five (5) Business Days after such filing, notify Investors holding Registrable Securities included in such Registration Statement of such filing, and shall further notify such Investors promptly and confirm such advice in writing in all events within five (5) Business Days after the occurrence of any of the following: (i) when such Registration Statement becomes effective; (ii) when any post-effective amendment to such Registration Statement becomes effective; (iii) the issuance or threatened issuance by the Commission of any stop order (and the Company shall take all actions required to prevent the entry of such stop order or to remove it if entered); and (iv) any request by the Commission for any amendment or supplement to such Registration Statement or any prospectus relating thereto or for additional information or of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of the securities covered by such Registration Statement, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and promptly make available to Investors holding Registrable Securities included in such Registration Statement any such supplement or amendment; except that before filing with the Commission a Registration Statement or prospectus or any amendment or supplement thereto, including documents incorporated by reference, the Company shall furnish to Investors holding Registrable Securities included in such Registration Statement and to the legal counsel for any such Investors, copies of all such documents proposed to be filed sufficiently in advance of filing to provide such Investors and legal counsel with a reasonable opportunity to review such documents and comment thereon; provided that such Investors and their legal counsel must provide any comments promptly (and in any event within five (5) Business Days) after receipt of such documents. Notwithstanding the aforementioned, the Company shall be able to file a Registration Statement or prospectus or amendment or supplement thereto, including documents incorporated by reference; provided, however, where such Investors holding a majority-in-interest of the Registrable Securities included in such Registration Statement or their legal counsel shall object in good faith, the Company must first, in good faith, reasonably consult with such Investors and their legal counsel prior to any such filing, to address any concerns; and provided further that any resultant failure to file shall not be a breach of the Company’s obligations under this Agreement.
3.1.5 State Securities Laws Compliance. The Company shall use its reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as Investors holding Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable Investors holding Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph or take any action which it would be subject to general service of process or to taxation in any such jurisdiction where it is not then otherwise subject.
3.1.6 Agreements for Disposition. Only to the extent required by the underwriting agreement or similar agreements, the Company shall enter into reasonable customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities. The representations, warranties and covenants of the Company in any underwriting agreement which are made to or for the benefit of any Underwriters, to the extent applicable, shall also be made to and for the benefit of the Investors holding Registrable Securities included in such Registration Statement. No Investor holding Registrable Securities included in such Registration Statement shall be required to make any representations or warranties in the underwriting agreement except, if applicable, with respect to such Investor’s organization, good standing, authority, title to Registrable Securities, lack of conflict of such sale with such Investor’s material agreements and organizational documents, and with respect to written information relating to such Investor that such Investor has furnished in writing expressly for inclusion in such Registration Statement.
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3.1.7 Cooperation. The principal executive officer of the Company, the principal financial officer of the Company, the principal accounting officer of the Company and all other officers and members of the management of the Company shall reasonably cooperate in any offering of Registrable Securities hereunder, which cooperation shall include the preparation of the Registration Statement with respect to such offering and all other offering materials and related documents, and participation in meetings with Underwriters, attorneys, accountants and potential investors.
3.1.8 Records. The Company shall make available for inspection by Investors holding Registrable Securities included in such Registration Statement, any Underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other professional retained by any Investor holding Registrable Securities included in such Registration Statement or any Underwriter, all financial and other records, pertinent corporate documents and properties of the Company, as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any of them in connection with such Registration Statement, provided that the Company may require execution of a reasonable confidentiality agreement prior to sharing any such information.
3.1.9 Opinions and Comfort Letters. The Company shall request its counsel and accountants to provide customary legal opinions and customary comfort letters, to the extent so reasonably required by any underwriting agreement.
3.1.10 Earnings Statement. The Company shall comply with all applicable rules and regulations of the Commission and the Securities Act, and make available to its shareholders if reasonably required, as soon as reasonably practicable, an earnings statement covering a period of twelve (12) months, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
3.1.11 Listing. The Company shall use its reasonable best efforts to cause all Registrable Securities that are Ordinary Shares (or convertible into Ordinary Shares) included in any registration to be listed on such exchanges or otherwise designated for trading in the same manner as similar securities issued by the Company are then listed or designated (for the avoidance of doubt, Registrable Securities that are convertible into Ordinary Shares will only be required to be listed if such convertible securities themselves are then listed) or, if no such similar securities are then listed or designated, in a manner satisfactory to Investors holding a majority-in-interest of the Registrable Securities included in such registration.
3.1.12 Road Show. If the registration involves the registration of Registrable Securities involving gross proceeds in excess of $10,000,000, the Company shall use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any underwritten offering.
3.2 Obligation to Suspend Distribution. Upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.1.4(iv), or, in the case of a resale registration on a Short Form Registration pursuant to Section 2.3 hereof, upon any suspension by the Company, pursuant to a written insider trading compliance program adopted by the Company’s Board of Directors, of the ability of all “insiders” covered by such program to transact in the Company’s securities because of the existence of material non-public information, each Investor holding Registrable Securities included in any registration shall immediately discontinue disposition of such Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such Investor receives the supplemented or amended prospectus contemplated by Section 3.1.4(iv) or the restriction on the ability of “insiders” to transact in the Company’s securities is removed, as applicable, and, if so directed by the Company, each such Investor will deliver to the Company all copies, other than permanent file copies then in such Investor’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice.
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3.3 Registration Expenses. Subject to Section 4, the Company shall bear all reasonable costs and expenses incurred in connection with any Demand Registration pursuant to Section 2.1, any Piggy-Back Registration pursuant to Section 2.2, and any registration on a Short Form Registration effected pursuant to Section 2.3, and all reasonable expenses incurred in performing or complying with its other obligations under this Agreement, whether or not the Registration Statement becomes effective, including: (i) all registration and filing fees; (ii) fees and expenses of compliance with securities or “blue sky” laws (including fees and disbursements of counsel in connection with blue sky qualifications of the Registrable Securities); (iii) printing expenses; (iv) the Company’s internal expenses (including all salaries and expenses of its officers and employees); (v) the fees and expenses incurred in connection with the listing of the Registrable Securities as required by Section 3.1.11; (vi) Financial Industry Regulatory Authority fees; (vii) fees and disbursements of counsel for the Company and fees and expenses for independent certified public accountants retained by the Company (including the expenses or costs associated with the delivery of any opinions or comfort letters requested pursuant to Section 3.1.9); (viii) the reasonable fees and expenses of any special experts retained by the Company in connection with such registration; and (ix) the reasonable fees and expenses (up to a maximum of $15,000 in the aggregate in connection with such Registration) of one legal counsel selected by Investors holding a majority-in-interest of the Registrable Securities included in such Registration for such legal counsel’s review, comment and finalization of the proposed Registration Statement and other relevant documents. The Company shall have no obligation to pay any underwriting discounts or selling commissions attributable to the Registrable Securities being sold by the holders thereof, which underwriting discounts or selling commissions shall be borne by such holders. Additionally, in an underwritten offering, all selling security holders and the Company shall bear the expenses of the Underwriter pro rata in proportion to the respective amount of securities each is selling in such offering.
3.4 Information. Investors holding Registrable Securities included in any Registration Statement shall provide such information as may reasonably be requested by the Company, or the managing Underwriter, if any, in connection with the preparation of such Registration Statement, including amendments and supplements thereto, in order to effect the registration of any Registrable Securities under the Securities Act pursuant to Section 2 and in connection with the obligation to comply with federal and applicable state securities laws. Investors selling Registrable Securities in any offering must provide all questionnaires, powers of attorney, custody agreements, stock powers, and other documentation reasonably requested by the Company or the managing Underwriter.
3.5 Limitations on Registration Rights. Notwithstanding anything herein to the contrary, (i) an Investor holding Representative Securities may not exercise its rights under Sections 2.1 and 2.2 hereunder after five (5) and seven (7) years after the effective date of the Registration Statement relating to the IPO, respectively, and (ii) Investors holding Representative Securities may not exercise their rights under Section 2.1 with respect to Representative Securities more than one time.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1 Indemnification by the Company. Subject to Section 4.5 and the provisions of this Section 4.1 below, the Company agrees to indemnify and hold harmless each Investor, and each Investor’s officers, employees, affiliates, directors, partners, members, attorneys and agents, and each Person, if any, who controls an Investor (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) (each, an “Investor Indemnified Party”), from and against any expenses, losses, judgments, claims, damages or liabilities, whether joint or several, arising out of or based upon any untrue statement of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to such Registration Statement, or arising out of or based upon any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by the Company of the Securities Act or any rule or regulation promulgated thereunder applicable to the Company and relating to action or inaction required of the Company in connection with any such registration; (provided, however, that the indemnity agreement contained in this Section 4.1 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the consent of the Company, such consent not to be unreasonably withheld, delayed or conditioned); and the Company shall promptly reimburse the Investor Indemnified Party for any legal and any other expenses reasonably incurred by such Investor Indemnified Party in connection with investigating and defending any such expense, loss, judgment, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case, to the extent that any such expense, loss, claim, damage or liability arises out of or is based upon any untrue statement or omission made in such Registration Statement, preliminary prospectus, final prospectus, or summary prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to the Company, in writing, by such Investor Indemnified Party expressly for use therein. The Company also shall indemnify any Underwriter of the Registrable Securities, their officers, affiliates, directors, partners, members and agents and each Person who controls such Underwriter on substantially the same basis as that of the indemnification provided above in this Section 4.1.
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4.2 Indemnification by Investors Holding Registrable Securities. Subject to Section 4.5 and the provisions of this Section 4.2 below, each Investor selling Registrable Securities will, in the event that any registration is being effected under the Securities Act pursuant to this Agreement of any Registrable Securities held by such selling Investor, indemnify and hold harmless the Company, each of its directors and officers and each Underwriter (if any), and each other selling holder and each other Person, if any, who controls another selling holder or such Underwriter within the meaning of the Securities Act, against any losses, claims, judgments, damages or liabilities, whether joint or several, insofar as such losses, claims, judgments, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to the Registration Statement, or arise out of or are based upon any omission to state a material fact required to be stated therein or necessary to make the statement therein not misleading, if the statement or omission was made in reliance upon and in conformity with information furnished in writing to the Company by such selling Investor expressly for use therein (provided, however, that the indemnity agreement contained in this Section 4.2 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the consent of the indemnifying Investor, such consent not to be unreasonably withheld, delayed or conditioned),, and shall reimburse the Company, its directors and officers, and each other selling holder or controlling Person for any legal or other expenses reasonably incurred by any of them in connection with investigation or defending any such loss, claim, damage, liability or action. Each selling Investor’s indemnification obligations hereunder shall be several and not joint and shall be limited to the amount of any net proceeds actually received by such selling Investor.
4.3 Conduct of Indemnification Proceedings. Promptly after receipt by any Person of any notice of any loss, claim, damage or liability or any action in respect of which indemnity may be sought pursuant to Section 4.1 or 4.2, such Person (the “Indemnified Party”) shall, if a claim in respect thereof is to be made against any other Person for indemnification hereunder, notify such other Person (the “Indemnifying Party”) in writing of the loss, claim, judgment, damage, liability or action; provided, however, that the failure by the Indemnified Party to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which the Indemnifying Party may have to such Indemnified Party hereunder, except and solely to the extent the Indemnifying Party is actually prejudiced by such failure. If the Indemnified Party is seeking indemnification with respect to any claim or action brought against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in such claim or action, and, to the extent that it wishes, jointly with all other Indemnifying Parties, to assume control of the defense thereof with counsel satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of such claim or action, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that in any action in which both the Indemnified Party and the Indemnifying Party are named as defendants, the Indemnified Party shall have the right to employ separate counsel (but no more than one such separate counsel) to represent the Indemnified Party and its controlling Persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Indemnified Party against the Indemnifying Party, with the fees and expenses of such counsel to be paid by such Indemnifying Party if, based upon the written opinion of counsel of such Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. No Indemnifying Party shall, without the prior written consent of the Indemnified Party (acting reasonably), consent to entry of judgment or effect any settlement of any claim or pending or threatened proceeding in respect of which the Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such judgment or settlement includes an unconditional release of such Indemnified Party from all liability arising out of such claim or proceeding.
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4.4 Contribution.
4.4.1 Subject to Section 4.5, if the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3 is unavailable to any Indemnified Party in respect of any loss, claim, damage, liability or action referred to herein, then each such Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage, liability or action in such proportion as is appropriate to reflect the relative fault of the Indemnified Parties and the Indemnifying Parties in connection with the actions or omissions which resulted in such loss, claim, damage, liability or action, as well as any other relevant equitable considerations. The relative fault of any Indemnified Party and any Indemnifying Party shall be determined by reference to, among other things, whether the untrue statement of a material fact or the omission to state a material fact relates to information supplied by such Indemnified Party or such Indemnifying Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
4.4.2 Subject to Section 4.5, the parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding Section 4.4.1.
4.4.3 Subject to Section 4.5, the amount paid or payable by an Indemnified Party as a result of any loss, claim, damage, liability or action referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 4.4, no Investor holding Registrable Securities shall be required to contribute any amount in excess of the dollar amount of the net proceeds (after payment of any underwriting fees, discounts, commissions or taxes) actually received by such Investor from the sale of Registrable Securities which gave rise to such contribution obligation. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
4.5 Limitation of Liability. Notwithstanding anything under the terms of this Agreement, including this Section 4, any liability an Investor or the Company may have for any expenses, losses, judgments, claims, damages, liabilities, actions pursuant to the terms of this Agreement shall be against the Investor itself or the Company, as an entity only, respectively, and the following Persons shall have no liability whatsoever, and be subject to no Actions, to the maximum extent allowable under applicable Law: (a) officers, directors, managers, employees, representatives, or contractors of the Investor or the Company; (b) officers, directors, managers, employees, representatives or contractors of any Affiliate or related party of the Investor or the Company, including any of their respective direct or indirect investors; and (c) any Affiliate or related party of the Investor or the Company, including any direct or indirect investors (but for the avoidance of any doubt, in each case of clauses (a) through (c), excluding the relevant Investor or the Company, respectively).
5. RULE 144.
5.1 Rule 144. The Company covenants that it shall file any reports required to be filed by it under the Securities Act and the Exchange Act and shall take such further action as Investors holding Registrable Securities may reasonably request, all to the extent required from time to time to enable such Investors to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 under the Securities Act, as such Rule 144 may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission.
6. MISCELLANEOUS.
6.1 Other Registration Rights. The Company represents and warrants that as of the date of this Agreement, no Person, other than the holders of (i) the Registrable Securities and (ii) BPGIC Securities, has any right to require the Company to register any of the Company’s share capital for sale or to include the Company’s share capital in any registration filed by the Company for the sale of share capital for its own account or for the account of any other Person.
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6.2 Assignment; No Third Party Beneficiaries. This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part, unless the Company first provides Investors holding Registrable Securities at least ten (10) Business Days prior written notice; provided that no assignment or delegation by the Company will relieve the Company of its obligations under this Agreement unless Investors holding a majority-in-interest of the Registrable Securities provide their prior written consent, which consent must not be unreasonably withheld, delayed or conditioned. This Agreement and the rights, duties and obligations of Investors holding Registrable Securities hereunder may be freely assigned or delegated by such Investor in conjunction with and to the extent of any transfer of Registrable Securities by such Investor which is permitted by the Founder Share Escrow Agreement or the Initial Shareholder Escrow Agreement. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties, to the permitted assigns of the Investors or of any assignee of the Investors. This Agreement is not intended to confer any rights or benefits on any Persons that are not party hereto other than as expressly set forth in Section 4 and this Section 6.2. No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless and until the Company shall have received (i) written notice of such assignment and (ii) the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement).
6.3 Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (i) in person, (ii) by facsimile or other electronic means, with affirmative confirmation of receipt, (iii) one Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable party at the following addresses (or at such other address for a party as shall be specified by like notice):
6.4 Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible that is valid and enforceable.
6.5 Entire Agreement. This Agreement (together with the Business Combination Agreement, the Founder Share Escrow Agreement and the Initial Shareholder Escrow Agreement to the extent incorporated herein, and including all agreements entered into pursuant hereto or thereto or referenced herein or therein and all certificates and instruments delivered pursuant hereto or thereto) constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, understandings, negotiations and discussions between the parties, whether oral or written, relating to the subject matter hereof, including the Original Agreement; provided, that, for the avoidance of doubt, the foregoing shall not affect the rights and obligations of the parties under the Business Combination Agreement or any other Ancillary Document or the rights or obligations of the parties under the BPGIC Registration Rights Agreement. This Agreement supersedes the Original Agreement in its entirety, and upon the effectiveness of this Agreement, the Original Agreement shall no longer have any force or effect.
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6.6 Interpretation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement. In this Agreement, unless the context otherwise requires: (i) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; (iii) the words “herein,” “hereto,” and “hereby” and other words of similar import in this Agreement shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or other subdivision of this Agreement; and (iv) the term “or” means “and/or”. The parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
6.7 Amendments; Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written agreement or consent of the Company and Investors holding a majority-in-interest of the Registrable Securities; provided, that any amendment or waiver of this Agreement which affects an Investor in a manner materially and adversely disproportionate to other Investors will also require the consent of such Investor. No failure or delay by a party in exercising any right hereunder shall operate as a waiver thereof. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.
6.8 Remedies Cumulative. In the event a party fails to observe or perform any covenant or agreement to be observed or performed under this Agreement, the other parties may proceed to protect and enforce its rights by suit in equity or action at law, whether for specific performance of any term contained in this Agreement or for an injunction against the breach of any such term or in aid of the exercise of any power granted in this Agreement or to enforce any other legal or equitable right, or to take any one or more of such actions, without being required to post a bond. None of the rights, powers or remedies conferred under this Agreement shall be mutually exclusive, and each such right, power or remedy shall be cumulative and in addition to any other right, power or remedy, whether conferred by this Agreement or now or hereafter available at law, in equity, by statute or otherwise.
6.9 Arbitration. Any and all disputes, controversies and claims (other than applications for a temporary restraining order, preliminary injunction, permanent injunction or other equitable relief or application for enforcement of a resolution under this Section 6.9) arising out of, related to, or in connection with this Agreement or the transactions contemplated hereby (a “Dispute”) shall be governed by this this Section 6.9. A party must, in the first instance, provide written notice of any Disputes to the other parties subject to such Dispute, which notice must provide a reasonably detailed description of the matters subject to the Dispute. The parties involved in such Dispute shall seek to resolve the Dispute on an amicable basis within ten (10) Business Days of the notice of such Dispute being received by such other parties subject to such Dispute (the “Resolution Period”); provided, that if any Dispute would reasonably be expected to have become moot or otherwise irrelevant if not decided within sixty (60) days after the occurrence of such Dispute, then there shall be no Resolution Period with respect to such Dispute. Any Dispute that is not resolved during the Resolution Period may immediately be referred to and finally resolved by arbitration pursuant to the then-existing rules and procedures (including any expedited procedures) of the ICC (the “ICC Procedures”). Any party involved in such Dispute may submit the Dispute to the ICC to commence the proceedings after the Resolution Period. To the extent that the ICC Procedures and this Agreement are in conflict, the terms of this Agreement shall control. The arbitration shall be conducted by one arbitrator nominated by the ICC promptly (but in any event within five (5) Business Days) after the submission of the Dispute to the ICC and reasonably acceptable to each party subject to the Dispute, which arbitrator shall be a commercial lawyer with substantial experience arbitrating disputes under acquisition agreements. The arbitrator shall accept his or her appointment and begin the arbitration process promptly (but in any event within five (5) Business Days) after his or her nomination and acceptance by the parties subject to the Dispute. The proceedings shall be streamlined and efficient. The arbitrator shall decide the Dispute in accordance with the substantive law of the state of New York. Time is of the essence. Each party subject to the Dispute shall submit a proposal for resolution of the Dispute to the arbitrator within twenty (20) days after confirmation of the appointment of the arbitrator. The arbitrator shall have the power to order any party subject to the Dispute to do, or to refrain from doing, anything consistent with this Agreement, the Ancillary Documents and applicable Law, including to perform its contractual obligation(s) and providing injunctive and other equitable relief; provided, that the arbitrator shall be limited to ordering pursuant to the foregoing power (and, for the avoidance of doubt, shall order) the relevant party (or parties, as applicable) to comply with only one or the other of the proposals. The arbitrator’s award shall be in writing and shall include a reasonable explanation of the arbitrator’s reason(s) for selecting one or the other proposal. The seat of arbitration shall be in London, United Kingdom. The language of the arbitration shall be English.
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6.10 Governing Law. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of New York without regard to the conflict of laws principles thereof.
6.11 WAIVER OF TRIAL BY JURY. WITHOUT DEROGATING FROM THE AGREEMENT TO ARBITRATE IN SECTION 6.9, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, COUNTERCLAIM OR OTHER PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE INVESTORS IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
6.12 Termination of Business Combination Agreement. This Agreement shall be binding upon each party upon such party’s execution and delivery of this Agreement, but this Agreement shall only become effective upon the Closing. In the event that the Business Combination Agreement is validly terminated in accordance with its terms prior to the Closing, this Agreement shall automatically terminate and become null and void and be of no further force or effect, and the parties shall have no obligations hereunder, and the Original Agreement shall automatically be reinstated and become in full force and effect in accordance with its terms as in effect prior to the execution and delivery of this Agreement by the parties hereto without any further action of the parties hereunder.
6.13 Counterparts. This Agreement may be executed in multiple counterparts (including by facsimile or pdf or other electronic document transmission), each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Amended and Restated Registration Rights Agreement to be executed and delivered by their duly authorized representatives as of the date first written above.
COMPANY: | ||
BROOGE HOLDINGS LIMITED | ||
By: | /s/ Meclomen Maramot | |
Name: | Meclomen Maramot | |
Title: | Director | |
INVESTORS: | ||
TWELVE SEAS SPONSORS I LLC | ||
By: | /s/ Bryant Edwards | |
Name: | Bryant Edwards | |
Title: | Chief Operating Officer |
/s/ Gregory Stoupnitzky | |
Gregory Stoupnitzky | |
/s/ Suneel G. Kaji | |
Suneel G. Kaji |
EARLYBIRDCAPITAL, INC. | ||
By: | /s/ Michael Powell | |
Name: | Michael Powell | |
Title: | Managing Director |
The undersigned hereby consents to the amendment and restatement of the Original Agreement set forth herein, effective as of the date first set forth above:
TWELVE SEAS INVESTMENT COMPANY
By: | /s/ Bryant Edwards | |
Name: | Bryant Edwards | |
Title: | Chief Operating Officer |
Exhibit 4.75
Execution Copy
AMENDMENT TO SHARE ESCROW AGREEMENT
THIS AMENDMENT TO SHARE ESCROW AGREEMENT (this “Amendment”) is made and entered into as of December 20, 2019, by and among (i) Twelve Seas Investment Company, a Cayman Island exempted company (the “Company”), (ii) Brooge Holdings Limited, a Cayman Islands exempted company (“Pubco”), (iii) the individuals and entities listed under Initial Shareholders on the signature page hereto (each an “Initial Shareholder” and, collectively, the “Initial Shareholders”) and (iv) Continental Stock Transfer & Trust Company, a New York corporation, as escrow agent (the “Escrow Agent”). Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Share Escrow Agreement (as defined below) (and if such term is not defined in the Share Escrow Agreement, then the Business Combination Agreement (as defined below)).
RECITALS
WHEREAS, the Company, the Initial Shareholders and Escrow Agent are parties to that certain Share Escrow Agreement, dated as of June 19, 2018 (as amended, including by this Amendment, the “Share Escrow Agreement”), pursuant to which the Initial Shareholders, as a condition to the Company’s underwriting agreement with Early Bird Capital, Inc., agreed to deposit 5,175,000 ordinary shares of the Company, par value $0.0001 per share (“Insider Shares”), into escrow with the Escrow Agent;
WHEREAS, on April 15, 2019 (i) Pubco, (ii) the Company, (iii) Brooge Merger Sub Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Pubco (“Merger Sub”), and (iv) Brooge Petroleum And Gas Investment Company FZE, a company formed under the laws of the Fujairah Free Zone, UAE (“BPGIC”), entered into that certain Business Combination Agreement, pursuant to which BPGIC Holdings Limited, a Cayman Islands exempted company, also become a party thereafter pursuant to the Assignment and Joinder to Business Combination Agreement dated as of November 19, 2019 (as assignee of Brooge Petroleum and Gas Investment Company (BPGIC) PLC, a company formed under the laws of England and Wales, which became a party to the Business Combination Agreement pursuant to a Joinder to Business Combination Agreement dated as of May 10, 2019) (together with its permitted assigns, and successors, the “Seller”) (as amended prior to the date hereof, including by the foregoing joinders, and as it may be amended after the date hereof, the “Business Combination Agreement”);
WHEREAS, pursuant to the Business Combination Agreement, subject to the terms and conditions thereof, among other matters, upon the consummation of the transactions contemplated by the Business Combination Agreement (the “Closing”), (a) the Company will merge with and into Merger Sub, with the Company continuing as the surviving entity and a wholly-owned subsidiary of Pubco (the “Merger”), and with holders of the Company’s securities receiving substantially equivalent securities of Pubco, and (b) Pubco will (the “Securities Exchange” and together with the Merger and the other transactions contemplated by the Business Combination Agreement, the “Transactions”) acquire all of the issued and outstanding capital shares of BPGIC from the Seller in exchange for ordinary shares of Pubco, with BPGIC becoming a wholly-owned subsidiary of Pubco;
WHEREAS, in connection with the Business Combination Agreement, on April 15, 2019, the Initial Shareholders entered into that certain letter agreement (as it may be amended from time to time in accordance with the terms thereof, the “Founder Share Letter”) with the Company and BPGIC, pursuant to which the Initial Shareholders agreed effective upon the Closing, on a pro rata basis amongst the Initial Shareholders based on the number of Insider Shares owned by each of them, to (i) forfeit twenty percent (20%) of the Insider Shares owned by the Initial Shareholders and (ii) subject thirty percent (30%) of the Insider Shares owned by the Initial Shareholders as of the Closing (including any Pubco Ordinary Shares issued in exchange therefor in the Merger) to potential vesting and forfeiture obligations, and to deposit such shares (together with any equity securities paid as dividends or distributions with respect to such shares or into which such shares are exchanged or converted, the “Insider Escrow Shares”) into escrow with the Escrow Agent pursuant to a separate escrow agreement, dated as of December 20, 2019 (as it may be amended from time to time, the “Initial Shareholder Escrow Agreement”) by and among Pubco, the Initial Shareholders and the Escrow Agent as escrow agent thereunder (in such capacity, the “Founder Escrow Agent”), with each Initial Shareholder depositing its pro rata share of such Insider Escrow Shares, to be held, along with any other dividends, distributions or other income on the Insider Escrow Shares, in a segregated escrow account with the Founder Escrow Agent, where such escrow property shall be subject to potential forfeiture, and
WHEREAS, the parties hereto desire to amend the Share Escrow Agreement to add Pubco as a party to the Share Escrow Agreement and to revise the terms thereof in order to reflect the transactions contemplated by the Business Combination Agreement, including the issuance thereunder of ordinary shares of Pubco in exchange for the Company’s outstanding shares.
NOW, THEREFORE, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties and covenants herein contained, and intending to be legally bound hereby, the parties hereto agree as follows:
1. Addition of Pubco as a Party to the Share Escrow Agreement. The parties hereby agree to add Pubco as a party to the Share Escrow Agreement. The parties further agree that, from and after the Closing, (i) all of the rights and obligations of the Company under the Share Escrow Agreement shall be, and hereby are, assigned and delegated to Pubco as if it were the original “Company” party thereto, and (ii) all references to the Company under the Share Escrow Agreement relating to periods from and after the Closing shall instead be a reference to Pubco. By executing this Amendment, Pubco hereby agrees to be bound by and subject to all of the terms and conditions of the Share Escrow Agreement, as amended by this Amendment, from and after the Closing as if it were the original “Company” party thereto.
2. Amendments to Share Escrow Agreement. The parties hereto hereby agree to the following amendments to the Share Escrow Agreement:
(a) The defined terms in this Amendment, including in the preamble and recitals hereto, and the definitions incorporated by reference from the Business Combination Agreement, are hereby added to the Share Escrow Agreement as if they were set forth therein.
(b) The parties hereby agree that the term “Escrow Shares” as used in the Share Escrow Agreement shall include those ordinary shares of Pubco into which the Insider Shares on deposit with the Escrow Agent automatically convert upon the effectiveness of the Merger into ordinary shares of Pubco (and any other securities of Pubco or any successor entity issued in consideration of (including as a stock split, dividend or distribution) or in exchange for any of such securities), which ordinary shares of Pubco shall continue to be held as Escrow Shares after the Closing in accordance with the terms and conditions of the Share Escrow Agreement, the Founder Share Letter and as further subject to and adjusted by Section 3 below. The parties further agree that any reference in the Share Escrow Agreement to Ordinary Shares will instead refer to the ordinary shares of Pubco (and any other securities of Pubco or any successor entity issued in consideration of (including as a stock split, dividend or distribution) or in exchange for any of such securities).
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(c) Section 3.1 of the Share Escrow Agreement is hereby amended by adding the phrase “and subject to Section 3.3,” immediately after the phrase “Upon completion of the Escrow Period,” at the beginning of the third sentence thereof.
(d) Section 3 of the Share Escrow Agreement is hereby amended by adding the following as a new Section 3.3:
“3.3 Notwithstanding Section 3.1, any disbursement of Escrow Shares hereunder will only be made in accordance with (i) joint written instructions executed by Pubco and the Initial Shareholders, delivered to the Escrow Agent, or (ii) a copy of a final non-appealable judgment or order from a court of competent jurisdiction (including an order to enforce an arbitral award) establishing the rights of a party in accordance with this Agreement, the Founder Share Letter and the Business Combination Agreement to such Escrow Shares, together with written delivery instructions from the applicable payee. Pubco and the Initial Shareholders each agree that they will promptly and in good faith deliver joint written instructions to the Escrow Agent to disburse any Escrow Shares upon such Escrow Shares no longer being subject to Section 3.1. The Escrow Agent agrees and understands that any instruction to be delivered by or on behalf of Pubco pursuant to Section 3 will only be valid where such instruction is provided by at least two authorized signers of Pubco (acting jointly), unless the Escrow Agent is notified otherwise by Pubco (the names of such authorized signers shall be provided by Pubco and may be updated from time to time).”
(e) Section 4.1 of the Share Escrow Agreement is hereby amended by replacing the word “shares” with “Escrow Shares” at the end of the sentence.
(f) Section 4.3 of the Share Escrow Agreement is hereby amended by:
(i) deleting the following phrase at the end of the last sentence of such Section “the respective transferee’s written agreement to be bound by the terms and conditions of this Agreement and of the Insider Letter (as defined below) signed by the Initial Shareholder transferring the Escrow Shares” and replacing it with the following: “the respective transferee’s written agreement (in a form (i.e., form for execution) reasonably acceptable to the Company, such acceptance (and any execution) not to be unreasonably withheld, delayed or conditioned) to be bound by the terms and conditions of this Agreement, any relevant applicable restrictions pursuant to the transaction documents with respect to the Company’s Business Combination, and the Insider Letter (as defined below) signed by the Initial Shareholder transferring the Escrow Shares and such transferee, and upon execution, such form to be promptly delivered to the Company.”
(ii) adding the following sentence at the end of the Section: “Upon the completion of a permitted transfer in accordance with the requirements of this Section 4.3, including without limitation the requirements of the preceding sentence, the transferee shall thereafter be deemed to be an Initial Shareholder under this Agreement with respect to any subsequent permitted transfer of the Escrow Shares. The Company agrees that upon the disbursement of Escrow Shares in accordance with Sections 3.1 and 3.3, it shall promptly remove or cause its transfer agent to remove any restrictive legends (but only as they strictly pertain to the restrictions under this Agreement) on the share certificates for such Escrow Shares.”
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(g) Section 6.1 of the Share Escrow Agreement is hereby amended by deleting it in its entirety and replacing it with the following:
“6.1 Arbitration. Any and all disputes, controversies and claims (other than applications for a temporary restraining order, preliminary injunction, permanent injunction or other equitable relief or application for enforcement of a resolution under this Section 6.1) arising out of, related to, or in connection with this Agreement or the transactions contemplated hereby (a “Dispute”) shall be governed by this Section 6.1 A party must, in the first instance, provide written notice of any Disputes to the other parties subject to such Dispute, which notice must provide a reasonably detailed description of the matters subject to the Dispute. The parties involved in such Dispute shall seek to resolve the Dispute on an amicable basis within ten (10) Business Days of the notice of such Dispute being received by such other parties subject to such Dispute (the “Resolution Period”); provided, that if any Dispute would reasonably be expected to have become moot or otherwise irrelevant if not decided within sixty (60) days after the occurrence of such Dispute, then there shall be no Resolution Period with respect to such Dispute. Any Dispute that is not resolved during the Resolution Period may immediately be referred to and finally resolved by arbitration pursuant to the then-existing rules and procedures (including any expedited procedures) of the ICC (the “ICC Procedures”). Any party involved in such Dispute may submit the Dispute to the ICC to commence the proceedings after the Resolution Period. To the extent that the ICC Procedures and this Agreement are in conflict, the terms of this Agreement shall control. The arbitration shall be conducted by one arbitrator nominated by the ICC promptly (but in any event within five (5) Business Days) after the submission of the Dispute to the ICC and reasonably acceptable to each party subject to the Dispute, which arbitrator shall be a commercial lawyer with substantial experience arbitrating disputes under acquisition agreements. The arbitrator shall accept his or her appointment and begin the arbitration process promptly (but in any event within five (5) Business Days) after his or her nomination and acceptance by the parties subject to the Dispute. The proceedings shall be streamlined and efficient. The arbitrator shall decide the Dispute in accordance with the substantive law of the state of New York. Time is of the essence. Each party subject to the Dispute shall submit a proposal for resolution of the Dispute to the arbitrator within twenty (20) days after confirmation of the appointment of the arbitrator. The arbitrator shall have the power to order any party subject to the Dispute to do, or to refrain from doing, anything consistent with this Agreement and applicable Law, including to perform its contractual obligation(s) and providing injunctive and other equitable relief; provided, that the arbitrator shall be limited to ordering pursuant to the foregoing power (and, for the avoidance of doubt, shall order) the relevant party (or parties, as applicable) to comply with only one or the other of the proposals. The arbitrator’s award shall be in writing and shall include a reasonable explanation of the arbitrator’s reason(s) for selecting one or the other proposal. The seat of arbitration shall be in London, United Kingdom. The language of the arbitration shall be English.”
(h) Section 6.3 of the Share Escrow Agreement is hereby amended by deleting it in its entirety and replacing it with the following:
“6.3 Entire Agreement; Amendment and Waiver. This Agreement, together with the Insider Letters and the other documents and agreements referenced herein, contains the entire agreement of the parties hereto with respect to the subject matter hereof. This Agreement may be amended or modified only by a written instrument duly signed by the parties hereto. Any provision hereof may be waived only by a written instrument duly signed by the party against whom enforcement of such waiver is sought; provided, for the avoidance of any doubt, that any amendment, supplement or modification of this Agreement after the Closing does not require the consent of Twelve Seas Investment Company, a Cayman Islands exempted company.”
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(i) Section 6.6 of the Share Escrow Agreement is hereby amended to delete the address of the Company for notices under the Share Escrow Agreement and instead add the following address for Pubco as the “Company” party thereunder:
If to Pubco to:
c/o Brooge Petroleum And Gas Investment Company FZE
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with a copy (which will not constitute notice) to:
K&L Gates LLP
New York, NY 10022
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(j) Section 6 of the Share Escrow Agreement is hereby amended by adding the following as a new Section 6.8 and the current Section 6.8 is renumbered to be Section 6.9:
“6.8 Disputes. If a controversy arises between the parties hereto as to whether or not or to whom the Escrow Agent shall transfer all or any portion of any Escrow Shares, or as to any other matter arising out of or relating to this Agreement or any Escrow Shares, the Escrow Agent shall not be required to determine the same, shall not make any transfer of and shall retain the Escrow Shares in dispute without liability to anyone until the rights of the parties to the dispute shall have finally been determined in accordance with Section 6.1, mutual written agreement of Pubco and the Initial Shareholders, or by a final non-appealable judgment or order of a court of competent jurisdiction (including an order to enforce an arbitral award), but the Escrow Agent shall be under no duty whatsoever to institute or defend any such proceedings. The Escrow Agent shall be entitled to assume that no such controversy has arisen unless it has received notice of such controversy or conflicting written notices from the parties to this Agreement. Any disputes arising out of, related to, or in connection with, this Agreement between Pubco and the Initial Shareholders, including a dispute arising from a party’s failure or refusal to sign a joint written notice hereunder, shall be determined by arbitration conducted in accordance with the provisions of Section 6.1 of this Agreement (other than applications for a temporary restraining order, preliminary injunction, permanent injunction or other equitable relief, including specific performance, or application for enforcement of a resolution pursuant to this Section 6.8 or Section 6.1 of this Agreement).”
(k) Section 6 of the Share Escrow Agreement is hereby amended by adding the following as a new Section 6.10:
“6.10 Severability. In the event that any provision of this Agreement or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.”
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(l) Section 6 of the Share Escrow Agreement is hereby amended by adding the following as a new Section 6.11:
“6.11 Interpretation. The parties acknowledge and agree that: (a) this Agreement is the result of negotiations between the parties and will not be deemed or construed as having been drafted by any one party, (b) each party and its counsel have reviewed and negotiated the terms and provisions of this Agreement (including any Exhibits attached hereto) and have contributed to its revision and (c) the rule of construction to the effect that any ambiguities are resolved against the drafting party will not be employed in the interpretation of this Agreement. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. In this Agreement, unless the context otherwise requires: (i) words of the masculine, feminine or neuter gender will include the masculine, neuter or feminine gender, and words in the singular number or in the plural number will each include, as applicable, the singular number or the plural number; (ii) reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity; (iii) reference to any law means such law as amended, modified codified or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder; (iv) any agreement or instrument defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement or instrument as from time to time amended, modified or supplemented, including by waiver or consent and references to all attachments thereto and instruments incorporated therein; (v) the words “herein, “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision; (vi) the words “include,” “includes” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation”; (vii) any reference herein to “dollars” or “$” shall mean United States dollars; and (viii) reference to any Section or Exhibit means such Section hereof or Exhibit hereto.”
(m) Section 6 of the Share Escrow Agreement is hereby amended by adding the following as a new Section 6.12:
“6.12 Successors and Assigns. This Agreement and the rights and obligations hereunder may not be assigned without the prior written consent of each of the parties hereto, and any purported assignment without such consent shall be null and void ab initio. This Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.”
(n) Section 6 of the Share Escrow Agreement is hereby amended by adding the following as a new Section 6.13:
“6.13 Governing Law. This Agreement shall be governed by, interpreted under, and construed in accordance with the internal laws of the State of New York applicable to agreements made and to be performed within the State of New York, without giving effect to any choice-of-law provisions thereof that would compel the application of the substantive laws of any other jurisdiction.”
(o) Section 6 of the Share Escrow Agreement is hereby amended by adding the following as a new Section 6.14:
“6.14 Waiver of Jury Trial. WITHOUT DEROGATING FROM THE AGREEMENT TO ARBITRATE IN SECTION 6.1, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, COUNTERCLAIM OR OTHER PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE PARTIES IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.”
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3. Consent to Founder Share Letter and Escrow Release. The parties hereby consent to the Founder Share Letter and agree to release from escrow under the Share Escrow Agreement at the Closing (i) the Forfeited Shares (as defined in the Founder Share Letter), and deliver the Forfeited Shares to Pubco and the transfer agent, for cancellation, and (ii) the Insider Escrow Shares, and deliver the Insider Escrow Shares to the Founder Escrow Agent to be held in escrow by the Founder Escrow Agent in accordance with the Initial Shareholder Escrow Agreement. The parties further acknowledge and agree that, notwithstanding anything to the contrary in the Share Escrow Agreement, upon the release of the Insider Escrow Shares from escrow under the Share Escrow Agreement at the Closing, the Insider Escrow Shares will no longer be subject to the terms and conditions of the Share Escrow Agreement and will not be Escrow Shares thereunder (except to the extent described in the last sentence of this paragraph), but will instead be subject to the terms of the Initial Shareholder Escrow Agreement. The number of Escrow Shares under Section 3.1 of the Share Escrow Agreement subject to early release thereunder under clause (i) thereof will be determined solely using 50% of the remaining Escrow Shares still retained in escrow under the Share Escrow Agreement after giving effect to the transfers required by the Founder Share Letter. The parties further acknowledge that in accordance with the terms of the Initial Shareholder Escrow Agreement, in the event that any of the Insider Escrow Shares are released from the escrow under the Initial Shareholder Escrow Agreement prior to the end of the Escrow Period under the Share Escrow Agreement, to the extent that such Insider Escrow Shares would otherwise have been subject to the requirements of Section 3.1 of the Share Escrow Agreement if they had not been transferred to the Founder Escrow Agent at the Closing, upon such release they will be delivered to the Escrow Agent as additional Escrow Shares under the Share Escrow Agreement to be held and disbursed in accordance with the requirements of the Share Escrow Agreement.
4. Effectiveness. Notwithstanding anything to the contrary contained herein, this Amendment shall only become effective upon the Closing. In the event that the Business Combination Agreement is terminated in accordance with its terms prior to the Closing, this Amendment and all rights and obligations of the parties hereunder shall automatically terminate and be of no further force or effect.
5. Miscellaneous. Except as expressly provided in this Amendment, all of the terms and provisions in the Share Escrow Agreement are and shall remain in full force and effect, on the terms and subject to the conditions set forth therein. This Amendment does not constitute, directly or by implication, an amendment or waiver of any provision of the Share Escrow Agreement, or any other right, remedy, power or privilege of any party thereto, except as expressly set forth herein. Any reference to the Share Escrow Agreement in the Share Escrow Agreement or any other agreement, document, instrument or certificate entered into or issued in connection therewith shall hereinafter mean the Share Escrow Agreement, as amended by this Amendment (or as the Share Escrow Agreement may be further amended or modified in accordance with the terms thereof). The terms of this Amendment shall be governed by, enforced and construed and interpreted in a manner consistent with the provisions of the Share Escrow Agreement, including without limitation Section 6.1 thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, each party hereto has caused this Amendment to Share Escrow Agreement to be signed and delivered by its respective duly authorized officer as of the date first above written.
The Company: | |||
TWELVE SEAS INVESTMENT COMPANY | |||
By: | /s/ Bryant Edwards | ||
Name: | Bryant Edwards | ||
Title: | Chief Operating Officer | ||
Pubco: | |||
BROOGE HOLDINGS LIMITED | |||
By: | /s/ Meclomen Maramot | ||
Name: | Meclomen Maramot | ||
Title: | Director | ||
Initial Shareholders: | |||
TWELVE SEAS SPONSOR I LLC | |||
By: | /s/ Bryant Edwards | ||
Name: | Bryant Edwards | ||
Title: | Chief Operating Officer | ||
/s/ Gregory Stoupnitzky | |||
Gregory Stoupnitzky | |||
/s/ Suneel G. Kaji | |||
Suneel G. Kaji | |||
Escrow Agent: | |||
CONTINENTAL STOCK TRANSFER & TRUST COMPANY | |||
By: | /s/ Isaac J. Kagan | ||
Name: | Isaac J. Kagan | ||
Title: | Vice President |
[Signature Page to Amendment to Share Escrow Agreement]
The undersigned hereby consents, effective as of the date first set forth above, to the foregoing amendments and modifications to the Share Escrow Agreement:
EarlyBirdCapital, Inc. | |||
By: | /s/ Michael Powell | ||
Name: | Michael Powell | ||
Title: | Managing Director |
[Signature Page to Amendment to Share Escrow Agreement]
Exhibit 4.76
Execution Copy
BPGIC REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of December 20, 2019, by and between (i) Brooge Holdings Limited, a Cayman Islands exempted company (including any successor entity thereto “Pubco”), and (ii) BPGIC Holdings Limited, a Cayman Islands exempted company (the “Investor”, and together with its permitted assigns, the “Investors”). Any capitalized term used but not defined in this Agreement will have the meaning ascribed to such term in the Business Combination Agreement (defined below).
WHEREAS, on April 15, 2019, (i) Pubco, (ii) Twelve Seas Investment Company, a Cayman Islands exempted company (together with its successors, “Purchaser”), (iii) Brooge Merger Sub Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Pubco (“Merger Sub”), and (iv) Brooge Petroleum And Gas Investment Company FZE, a company formed under the laws of the Fujairah Free Zone, UAE (the “Company”), entered into that certain Business Combination Agreement, pursuant to which the Investor also become a party thereafter pursuant to the Assignment and Joinder to Business Combination Agreement dated as of November 19, 2019 (as assignee of Brooge Petroleum and Gas Investment Company (BPGIC) PLC, a company formed under the laws of England and Wales, which became a party to the Business Combination Agreement pursuant to a Joinder to Business Combination Agreement dated as of May 10, 2019) (as amended prior to the date hereof, including by the foregoing joinders and by the First Amendment to Business Combination Agreement, dated as of September 16, 2019, and as it may be amended after the date hereof, the “Business Combination Agreement”), pursuant to which, subject to the terms and conditions thereof, upon the consummation of the transactions contemplated thereby (the “Closing”), among other matters, (a) Purchaser will merge with and into Merger Sub, with Purchaser continuing as the surviving entity and a wholly-owned subsidiary of Pubco, and with holders of Purchaser’s securities receiving substantially equivalent securities of Pubco, and (b) Pubco will acquire all of the issued and outstanding capital shares of the Company from the Investor in exchange for ordinary shares of Pubco, subject to the withholding of the Escrow Shares being deposited in the Escrow Account in accordance with the terms and conditions of the Business Combination Agreement and the Escrow Agreement, and with the Company becoming a wholly-owned subsidiary of Pubco; and
WHEREAS, the parties desire to enter into this Agreement to provide the Investors with certain rights relating to the registration of the Exchange Shares received by the Investors (including any Escrow Shares upon their release from escrow to the Investors);
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. The following capitalized terms used herein have the following meanings:
“Agreement” means this Agreement, as amended, restated, supplemented, or otherwise modified from time to time.
“Business Combination Agreement” is defined in the recitals to this Agreement.
“Closing” is defined in the recitals to this Agreement.
“Closing Date” means the date on which the Closing occurs.
“Company” is defined in the recitals to this Agreement.
“Demand Registration” is defined in Section 2.1.1.
“Demanding Holder” is defined in Section 2.1.1.
“Dispute” is defined in Section 6.9.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in effect at the time.
“Founder Registration Rights Agreement” means that certain Amended and Restated Registration Rights Agreement, dated as of December 20, 2019, by and among Pubco, and the investors named therein, as it is to be amended in accordance with the terms thereof.
“Founder Securities” means those securities included in the definition of “Registrable Securities” in the Founder Registration Rights Agreement.
“ICC” means the International Chamber of Commerce Arbitration or any successor entity conducting arbitrations.
“ICC Procedures” is defined in Section 6.9.
“Indemnified Party” is defined in Section 4.3.
“Indemnifying Party” is defined in Section 4.3.
“Investor(s)” is defined in the preamble to this Agreement, and include any transferee of the Registrable Securities (so long as they remain Registrable Securities) of an Investor permitted under this Agreement.
“Investor Indemnified Party” is defined in Section 4.1.
“Maximum Number of Shares” is defined in Section 2.1.4.
“Piggy-Back Registration” is defined in Section 2.2.1.
“Pro Rata” is defined in Section 2.1.4.
“Pubco” is defined in the preamble to this Agreement, and shall include Pubco’s successors by merger, acquisition, reorganization or otherwise.
“Purchaser” is defined in the recitals to this Agreement.
“Register,” “Registered” and “Registration” mean a registration or offering effected by preparing and filing a registration statement or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.
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“Registrable Securities” means all of the Exchange Shares, including any shares held in escrow as Escrow Shares pursuant to the Escrow Agreement or other escrow arrangements that an Investor may have with respect to all or a portion of the foregoing securities. Registrable Securities include any warrants, shares of capital stock or other securities of Pubco or any successor entity issued as a dividend or other distribution with respect to or in exchange for or in replacement of the foregoing securities. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when: (a) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (b) such securities shall have been otherwise transferred, new certificates for them not bearing a legend restricting further transfer shall have been delivered by Pubco and subsequent public distribution of them shall not require registration under the Securities Act; (c) such securities shall have ceased to be outstanding or (d) the Registrable Securities are freely saleable under Rule 144 without volume limitations. Notwithstanding anything to the contrary contained herein, a Person shall be deemed to be an “Investor holding Registrable Securities” (or words to that effect) under this Agreement only if they are an Investor or a transferee of the applicable Registrable Securities (so long as they remain Registrable Securities) of any Investor permitted under this Agreement and the Escrow Agreement.
“Registration Statement” means a registration statement filed by Pubco with the SEC in compliance with the Securities Act and the rules and regulations promulgated thereunder for a public offering and sale or resale of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities, including all amendments thereto (other than a registration statement on Form S-4, F-4 or Form S-8, or their successors, or any registration statement covering only securities proposed to be issued in exchange for securities or assets of another entity).
“Resolution Period” is defined in Section 6.9.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“SEC” means the United States Securities and Exchange Commission or any successor thereto.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in effect at the time.
“Short Form Registration” is defined in Section 2.3.
“Underwriter” means a securities dealer who purchases any Registrable Securities as principal in an underwritten offering and not as part of such dealer’s market-making activities.
2. REGISTRATION RIGHTS.
2.1 Demand Registration.
2.1.1 Request for Registration. Subject to Section 2.4, at any time and from time to time on or after the Closing Date, Investors holding a majority-in-interest of the Registrable Securities then issued and outstanding (for the avoidance of any doubt, Escrow Shares as held under the terms of the Escrow Agreement or other escrow arrangements shall be counted towards any majority-in-interest determination on behalf of the Investors under this Agreement) may make a written demand for registration under the Securities Act of all or part of their Registrable Securities (a “Demand Registration”). Any demand for a Demand Registration shall specify the number of Registrable Securities proposed to be sold and the intended method(s) of distribution thereof. Within thirty (30) days following receipt of any request for a Demand Registration, Pubco will notify all other Investors holding Registrable Securities of the demand, and each Investor holding Registrable Securities who wishes to include all or a portion of such Investor’s Registrable Securities in the Demand Registration (each such Investor including Registrable Securities in such registration, a “Demanding Holder”) shall so notify Pubco within fifteen (15) days after the receipt by the Investor of the notice from Pubco. Upon any such request, the Demanding Holders shall be entitled to have their Registrable Securities included in the Demand Registration, subject to Section 2.1.4 and the provisos set forth in Section 3.1.1. Pubco shall not be obligated to effect more than an aggregate of four (4) Demand Registrations under this Section 2.1.1 in respect of all Registrable Securities. Notwithstanding anything in this Section 2.1 to the contrary, Pubco shall not be obligated to effect a Demand Registration, (i) if a Piggy-Back Registration had been available to the Demanding Holder(s) within the one hundred twenty (120) days preceding the date of request for the Demand Registration, including because Pubco has sent a notice under Section 2.2.1 that it proposes to file a Registration Statement for an offering for a capital raise on behalf of Pubco, (ii) within sixty (60) days after the effective date of a previous registration effected with respect to the Registrable Securities pursuant this Section 2.1 or (iii) during any period (not to exceed one hundred eighty (180) days) following the closing of the completion of an offering of securities by Pubco if such Demand Registration would cause Pubco to breach a “lock-up” or similar provision contained in the underwriting agreement for such offering.
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2.1.2 Effective Registration. A registration will not count as a Demand Registration until the Registration Statement filed with the SEC with respect to such Demand Registration has been declared effective and Pubco has complied with all of its obligations in all material respects under this Agreement with respect thereto; provided, however, that if, after such Registration Statement has been declared effective, the offering of Registrable Securities pursuant to a Demand Registration is interfered with by any stop order or injunction of the SEC or any other governmental agency or court, the Registration Statement with respect to such Demand Registration will be deemed not to have been declared effective, unless and until, (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of the Demanding Holders thereafter elect to continue the offering; provided, further, that Pubco shall not be obligated to file a second Registration Statement until a Registration Statement that has been filed is counted as a Demand Registration or is terminated.
2.1.3 Offering. If a majority-in-interest of the Demanding Holders so elect and advise Pubco as part of their written demand for a Demand Registration, the offering of such Registrable Securities pursuant to such Demand Registration shall either be in the form of an underwritten offering or a non-underwritten offering. In the case of a form of underwritten offering, then the right of any Demanding Holder to include its Registrable Securities in such registration shall be conditioned upon such Demanding Holder’s participation in such underwriting and the inclusion of such Demanding Holder’s Registrable Securities in the underwriting to the extent provided herein. All Demanding Holders proposing to distribute their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the Underwriter or Underwriters selected for such underwriting by a majority-in-interest of the Investors initiating the Demand Registration. Any Underwriter or Underwriters selected hereunder shall be at the sole and absolute discretion of Pubco.
2.1.4 Reduction of Offering. If the managing Underwriter or Underwriters for a Demand Registration that is to be an underwritten offering, in good faith, advises Pubco and the Demanding Holders in writing that the dollar amount or number of Registrable Securities which the Demanding Holders desire to sell, taken together with all other Pubco Ordinary Shares or other securities which Pubco desires to sell and the Pubco Ordinary Shares or other securities, if any, as to which registration by Pubco has been requested pursuant to written contractual piggy-back registration rights held by other security holders of Pubco who desire to sell, exceeds the maximum dollar amount or maximum number of shares that can be sold in such offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of shares, as applicable, the “Maximum Number of Shares”), then Pubco shall include in such registration: (i) first, the Registrable Securities as to which Demand Registration has been requested by the Demanding Holders, and the Founder Securities for the account of any Persons who have exercised demand registration rights pursuant to the Founder Registration Rights Agreement during the period under which the Demand Registration hereunder is ongoing (all pro rata in accordance with the number of securities that each applicable Person has requested be included in such registration, regardless of the number of securities held by each such Person (as long as they do not request to include more securities than they own) (such proportion is referred to herein as “Pro Rata”)) that can be sold without exceeding the Maximum Number of Shares; (ii) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (i), the Pubco Ordinary Shares or other securities that Pubco desires to sell that can be sold without exceeding the Maximum Number of Shares; (iii) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i) and (ii), the Registrable Securities of Investors as to which registration has been requested pursuant to Section 2.2 and the Founder Securities as to which registration has been requested pursuant to the applicable written contractual piggy-back registration rights under the Founder Registration Rights Agreement, Pro Rata among the holders thereof based on the number of securities requested by such holders to be included in such registration, that can be sold without exceeding the Maximum Number of Shares; and (iv) fourth, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i), (ii) and (iii), the Pubco Ordinary Shares or other equity securities for the account of other Persons that Pubco is obligated to register pursuant to written contractual arrangements with such Persons that can be sold without exceeding the Maximum Number of Shares. In the event that Pubco securities that are convertible into Pubco Ordinary Shares are included in the offering, the calculations under this Section 2.1.4 shall include such Pubco securities on an as-converted to Pubco Ordinary Share basis. Notwithstanding anything to the contrary herein, in the event that an offering under a Demand Registration is not underwritten, but Pubco’s board of directors reasonably determines in good faith that the dollar amount or number of Registrable Securities which the Demanding Holders desire to sell, taken together with all other Pubco Ordinary Shares or other securities which Pubco desires to sell and the Pubco Ordinary Shares or other securities, if any, as to which registration by Pubco has been requested pursuant to written contractual piggy-back registration rights held by other security holders of Pubco who desire to sell, exceeds the Maximum Number of Shares, then the number of securities include in such registration shall be reduced in the same priority as underwritten offerings under this Section 2.1.4.
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2.1.5 Withdrawal. If a majority-in-interest of the Demanding Holders disapprove of the terms of any offering or sale (whether underwritten or otherwise) or are not entitled to include all of their Registrable Securities in any offering, such majority-in-interest of the Demanding Holders may elect to withdraw from such offering by giving written notice to Pubco and the Underwriter or Underwriters of their request to withdraw prior to the effectiveness of the Registration Statement filed with the SEC with respect to such Demand Registration. If the majority-in-interest of the Demanding Holders withdraws from a proposed offering relating to a Demand Registration in such event, then such registration shall not count as a Demand Registration provided for in Section 2.1.
2.2 Piggy-Back Registration.
2.2.1 Piggy-Back Rights. Subject to Section 2.4, if at any time on or after the Closing Date, Pubco proposes to file a Registration Statement under the Securities Act with respect to the registration of or an offering of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into, equity securities, by Pubco for its own account or for security holders of Pubco for their account (or by Pubco and by security holders of Pubco including pursuant to Section 2.1), other than a Registration Statement (i) filed in connection with any employee stock option or other benefit plan, (ii) for an exchange offer or offering of securities solely to Pubco’s existing security holders, (iii) for an offering of debt that is convertible into equity securities of Pubco or (iv) for a dividend reinvestment plan, then Pubco shall (x) give written notice of such proposed filing to Investors holding Registrable Securities as soon as practicable but in no event less than ten (10) Business Days before the anticipated filing date, which notice shall describe the amount and type of securities to be included in such registration or offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, of the offering, and (y) offer to Investors holding Registrable Securities in such notice the opportunity to register the sale of such number of Registrable Securities as such Investors may request in writing within five (5) Business Days following receipt of such notice (a “Piggy-Back Registration”). To the extent permitted by applicable securities laws with respect to such registration by Pubco or another demanding security holder, Pubco shall use its best efforts to cause such Registrable Securities to be included in such registration and shall use its best efforts to cause the managing Underwriter or Underwriters of a proposed underwritten offering to permit the Registrable Securities requested to be included in a Piggy-Back Registration on the same terms and conditions as any similar securities of Pubco and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. All Investors holding Registrable Securities proposing to distribute their securities through a Piggy-Back Registration that involves an Underwriter or Underwriters shall enter into an underwriting agreement in customary form with the Underwriter or Underwriters selected for such Piggy-Back Registration.
2.2.2 Reduction of Offering. If the managing Underwriter or Underwriters for a Piggy-Back Registration that is to be an underwritten offering advises, in good faith, Pubco and Investors holding Registrable Securities proposing to distribute their Registrable Securities through such Piggy-Back Registration in writing that the dollar amount or number of Pubco Ordinary Shares or other Pubco securities which Pubco desires to sell, taken together with the Pubco Ordinary Shares or other Pubco securities, if any, as to which registration has been demanded pursuant to written contractual arrangements with Persons other than the Investors holding Registrable Securities hereunder, the Registrable Securities as to which registration has been requested under this Section 2.2, and the Pubco Ordinary Shares or other Pubco securities, if any, as to which registration has been requested pursuant to the written contractual piggy-back registration rights of other security holders of Pubco, exceeds the Maximum Number of Shares, then Pubco shall include in any such registration:
(a) If the registration is undertaken for Pubco’s account: (i) first, the Pubco Ordinary Shares or other securities that Pubco desires to sell that can be sold without exceeding the Maximum Number of Shares; (ii) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (i), the Registrable Securities of Investors as to which registration has been requested pursuant to this Section 2.2 and the Founder Securities as to which registration has been requested pursuant to the applicable written contractual piggy-back registration rights under the Founder Registration Rights Agreement, Pro Rata among the holders thereof based on the number of securities requested by such holders to be included in such registration, that can be sold without exceeding the Maximum Number of Shares; and (iii) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i) and (ii), the Pubco Ordinary Shares or other equity securities for the account of other Persons that Pubco is obligated to register pursuant to separate written contractual arrangements with such Persons that can be sold without exceeding the Maximum Number of Shares;
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(b) If the registration is a “demand” registration undertaken at the demand of Demanding Holders pursuant to Section 2.1: (i) first, the Pubco Ordinary Shares or other securities for the account of the Demanding Holders that can be sold without exceeding the Maximum Number of Shares; (ii) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (i), the Pubco Ordinary Shares or other securities that Pubco desires to sell that can be sold without exceeding the Maximum Number of Shares; (iii) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i) and (ii), the Registrable Securities of Investors as to which registration has been requested pursuant to this Section 2.2 and the Founder Securities as to which registration has been requested pursuant to the applicable written contractual piggy-back registration rights under the Founder Registration Rights Agreement, Pro Rata among the holders thereof based on the number of securities requested by such holders to be included in such registration, that can be sold without exceeding the Maximum Number of Shares; and (iv) fourth, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i), (ii) and (iii), the Pubco Ordinary Shares or other equity securities for the account of other Persons that Pubco is obligated to register pursuant to separate written contractual arrangements with such Persons that can be sold without exceeding the Maximum Number of Shares;
(c) If the registration is a “demand” registration undertaken at the demand of holders of Founder Securities under the Founder Registration Rights Agreement: (i) first, the Founder Securities for the account of the demanding holders, Pro Rata among such holders based on the number of Founder Securities requested by such holders to be included in such registration, that can be sold without exceeding the Maximum Number of Shares; (ii) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (i), the Pubco Ordinary Shares or other securities that Pubco desires to sell that can be sold without exceeding the Maximum Number of Shares; (iii) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i) and (ii), the Registrable Securities of Investors as to which registration has been requested pursuant to this Section 2.2 and the Founder Securities as to which registration has been requested pursuant to the applicable written contractual piggy-back registration rights under the Founder Registration Rights Agreement, Pro Rata among the holders thereof based on the number of securities requested by such holders to be included in such registration, that can be sold without exceeding the Maximum Number of Shares; and (iv) fourth, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i), (ii) and (iii), the Pubco Ordinary Shares or other equity securities for the account of other Persons that Pubco is obligated to register pursuant to separate written contractual arrangements with such Persons that can be sold without exceeding the Maximum Number of Shares; and
(d) If the registration is a “demand” registration undertaken at the demand of Persons other than either Demanding Holders under Section 2.1 or the holders of Founder Securities exercising demand registration rights under the Founder Registration Rights Agreement: (i) first, the Pubco Ordinary Shares or other securities for the account of the demanding Persons that can be sold without exceeding the Maximum Number of Shares; (ii) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing clause (i), the Pubco Ordinary Shares or other securities that Pubco desires to sell that can be sold without exceeding the Maximum Number of Shares; (iii) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i) and (ii), the Registrable Securities of Investors as to which registration has been requested pursuant to this Section 2.2 and the Founder Securities as to which registration has been requested pursuant to the applicable written contractual piggy-back registration rights under the Founder Registration Rights Agreement, Pro Rata among the holders thereof based on the number of securities requested by such holders to be included in such registration, that can be sold without exceeding the Maximum Number of Shares; and (iv) fourth, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (i), (ii) and (iii), the Pubco Ordinary Shares or other equity securities for the account of other Persons that Pubco is obligated to register pursuant to separate written contractual arrangements with such Persons that can be sold without exceeding the Maximum Number of Shares.
In the event that Pubco securities that are convertible into Pubco Ordinary Shares are included in the offering, the calculations under this Section 2.2.2 shall include such Pubco securities on an as-converted to Pubco Ordinary Share basis. Notwithstanding anything to the contrary above, to the extent that the registration of an Investor’s Registrable Securities would prevent Pubco or the demanding shareholders from effecting such registration and offering, such Investor shall not be permitted to exercise Piggy Back Registration rights with respect to such registration and offering. Notwithstanding anything to the contrary herein, in the event that an offering pursuant to a Piggy-Back Registration is not underwritten, but Pubco’s board of directors reasonably determines in good faith that the dollar amount or number of Registrable Securities which the Investors desire to sell, taken together with all other Pubco Ordinary Shares or other securities which Pubco desires to sell and the Pubco Ordinary Shares or other securities, if any, as to which registration by Pubco has been requested pursuant to written contractual piggy-back registration rights held by other security holders of Pubco who desire to sell, exceeds the Maximum Number of Shares, then the number of securities include in such registration shall be reduced in the same priority as underwritten offerings under this Section 2.2.2.
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2.2.3 Withdrawal. Any Investor holding Registrable Securities may elect to withdraw such Investor’s request for inclusion of Registrable Securities in any Piggy-Back Registration by giving written notice to Pubco of such request to withdraw prior to the effectiveness of the Registration Statement. Pubco (whether on its own determination or as the result of a withdrawal by Persons making a demand pursuant to written contractual obligations) may withdraw a Registration Statement at any time prior to the effectiveness of such Registration Statement without any liability to the applicable Investor, subject to the next sentence and the provisions of Section 4. Notwithstanding any such withdrawal, Pubco shall pay all expenses incurred in connection with such Piggy-Back Registration as provided in Section 3.3 (subject to the limitations set forth therein) by Investors holding Registrable Securities that requested to have their Registrable Securities included in such Piggy-Back Registration.
2.2.4 Unlimited Piggy-Back Registration Rights. For purposes of clarity, any registration effected pursuant to Section 2.2 hereof shall not be counted as a registration pursuant to a Demand Registration effected under Section 2.1 hereof.
2.3 Short Form Registrations. After the Closing Date, subject to Section 2.4, Investors holding Registrable Securities may at any time and from time to time, request in writing that Pubco register the resale of any or all of such Registrable Securities on Form S-3 or F-3 or any similar short-form registration which may be available at such time (“Short Form Registration”); provided, however, that Pubco shall not be obligated to effect such request through an underwritten offering. Upon receipt of such written request, Pubco will promptly give written notice of the proposed registration to all other Investors holding Registrable Securities, and, as soon as practicable thereafter, effect the registration of all or such portion of such Investors’ Registrable Securities as are specified in such request, together with all or such portion of the Registrable Securities, if any, of any other Investors joining in such request as are specified in a written request given within fifteen (15) days after receipt of such written notice from Pubco; provided, however, that Pubco shall not be obligated to effect any such registration pursuant to this Section 2.3: (i) if Short Form Registration is not available to Pubco for such offering; or (ii) if Investors holding Registrable Securities, together with the holders of any other securities of Pubco entitled to inclusion in such registration, propose to sell Registrable Securities and such other securities (if any) at any aggregate price to the public of less than $2,000,000. Registrations effected pursuant to this Section 2.3 shall not be counted as Demand Registrations effected pursuant to Section 2.1.
2.4 Restriction of Offerings. Notwithstanding anything to the contrary contained in this Agreement, Pubco shall not be obligated to effect, or to take any action to effect, any registration (including any Demand Registration or Piggy-Back Registration) pursuant to this Section 2 with respect to any Registrable Securities that are Escrow Shares while they are held in the Escrow Account in accordance with the Escrow Agreement and not yet distributed to the Investors.
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3. REGISTRATION PROCEDURES.
3.1 Filings; Information. Whenever Pubco is required to effect the registration of any Registrable Securities pursuant to Section 2, Pubco shall use its best efforts to effect the registration and sale of such Registrable Securities in accordance with the intended method(s) of distribution thereof as expeditiously as practicable, and in connection with any such request:
3.1.1 Filing Registration Statement. Pubco shall use its best efforts to, as expeditiously as possible after receipt of a request for a Demand Registration pursuant to Section 2.1, prepare and file with the SEC a Registration Statement on any form for which Pubco then qualifies or which counsel for Pubco shall deem appropriate and which form shall be available for the sale of all Registrable Securities to be registered thereunder in accordance with the intended method(s) of distribution thereof, and shall use its reasonable efforts to cause such Registration Statement to become effective and use its reasonable efforts to keep it effective for the period required by Section 3.1.3; provided, however, that Pubco shall have the right to defer any Demand Registration for up to thirty (30) days, and any Piggy-Back Registration for such period as may be applicable to deferment of any demand registration to which such Piggy-Back Registration relates, in each case if Pubco shall furnish to Investors requesting to include their Registrable Securities in such registration a certificate signed by the Chairman, Chief Executive Officer or Chief Financial Officer of Pubco stating that, in the good faith judgment of the Board of Directors of Pubco, it would be materially detrimental to Pubco and its shareholders for such Registration Statement to be effected at such time or the filing would require premature disclosure of material information which is not in the interests of Pubco to disclose at such time; provided further, however, that Pubco shall not have the right to exercise the right set forth in the immediately preceding proviso more than twice in any 365-day period in respect of a Demand Registration hereunder.
3.1.2 Copies. Pubco shall, prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to Investors holding Registrable Securities included in such registration, and such Investors’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such Registration Statement (including each preliminary prospectus), and such other documents as Investors holding Registrable Securities included in such registration or legal counsel for any such Investors may request in order to facilitate the disposition of the Registrable Securities owned by such Investors.
3.1.3 Amendments and Supplements. Pubco shall 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 as may be necessary to keep such Registration Statement effective and in compliance with the provisions of the Securities Act until all Registrable Securities and other securities covered by such Registration Statement have been disposed of in accordance with the intended method(s) of distribution set forth in such Registration Statement or such securities have been withdrawn or until such time as the Registrable Securities cease to be Registrable Securities as defined by this Agreement.
3.1.4 Notification. After the filing of a Registration Statement, Pubco shall promptly, and in no event more than five (5) Business Days after such filing, notify Investors holding Registrable Securities included in such Registration Statement of such filing, and shall further notify such Investors promptly and confirm such advice in writing in all events within five (5) Business Days after the occurrence of any of the following: (i) when such Registration Statement becomes effective; (ii) when any post-effective amendment to such Registration Statement becomes effective; (iii) the issuance or threatened issuance by the SEC of any stop order (and Pubco shall take all actions required to prevent the entry of such stop order or to remove it if entered); and (iv) any request by the SEC for any amendment or supplement to such Registration Statement or any prospectus relating thereto or for additional information or of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of the securities covered by such Registration Statement, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and promptly make available to Investors holding Registrable Securities included in such Registration Statement any such supplement or amendment; except that before filing with the SEC a Registration Statement or prospectus or any amendment or supplement thereto, including documents incorporated by reference, Pubco shall furnish to Investors holding Registrable Securities included in such Registration Statement and to the legal counsel for any such Investors, copies of all such documents proposed to be filed sufficiently in advance of filing to provide such Investors and legal counsel with a reasonable opportunity to review such documents and comment thereon; provided that such Investors and their legal counsel must provide any comments promptly (and in any event within five (5) Business Days) after receipt of such documents. Notwithstanding the aforementioned, Pubco shall be able to file a Registration Statement or prospectus or amendment or supplement thereto, including documents incorporated by reference; provided, however, where such Investors holding a majority-in-interest of the Registrable Securities included in such Registration Statement or their legal counsel shall object in good faith, Pubco must first, in good faith, reasonably consult with such Investors and their legal counsel prior to any such filing, to address any concerns; and provided further that any resultant failure to file shall not be a breach of Pubco’s obligations under this Agreement.
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3.1.5 State Securities Laws Compliance. Pubco shall use its reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as Investors holding Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of Pubco and do any and all other acts and things that may be necessary or advisable to enable Investors holding Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that Pubco shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph or take any action to which it would be subject to general service of process or to taxation in any such jurisdiction where it is not then otherwise subject.
3.1.6 Agreements for Disposition. Only to the extent required by the underwriting agreement or similar agreements, Pubco shall enter into reasonable customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities. The representations, warranties and covenants of Pubco in any underwriting agreement which are made to or for the benefit of any Underwriters, to the extent applicable, shall also be made to and for the benefit of the Investors holding Registrable Securities included in such Registration Statement. No Investor holding Registrable Securities included in such Registration Statement shall be required to make any representations or warranties in the underwriting agreement except, if applicable, with respect to such Investor’s organization, good standing, authority, title to Registrable Securities, lack of conflict of such sale with such Investor’s material agreements and organizational documents, and with respect to written information relating to such Investor that such Investor has furnished in writing expressly for inclusion in such Registration Statement.
3.1.7 Cooperation. The principal executive officer of Pubco, the principal financial officer of Pubco, the principal accounting officer of Pubco and all other officers and members of the management of Pubco shall reasonably cooperate in any offering of Registrable Securities hereunder, which cooperation shall include the preparation of the Registration Statement with respect to such offering and all other offering materials and related documents, and participation in meetings with Underwriters, attorneys, accountants and potential investors.
3.1.8 Records. Pubco shall make available for inspection by Investors holding Registrable Securities included in such Registration Statement, any Underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other professional retained by any Investor holding Registrable Securities included in such Registration Statement or any Underwriter, all financial and other records, pertinent corporate documents and properties of Pubco, as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause Pubco’s officers, directors and employees to supply all information reasonably requested by any of them in connection with such Registration Statement; provided that Pubco may require execution of a reasonable confidentiality agreement prior to sharing any such information.
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3.1.9 Opinions and Comfort Letters. Pubco shall request its counsel and accountants to provide customary legal opinions and customary comfort letters, to the extent so reasonably required by any underwriting agreement.
3.1.10 Earnings Statement. Pubco shall comply with all applicable rules and regulations of the SEC and the Securities Act, and make available to its shareholders if reasonably required, as soon as reasonably practicable, an earnings statement covering a period of twelve (12) months, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
3.1.11 Listing. Pubco shall use its reasonable best efforts to cause all Registrable Securities that are Pubco Ordinary Shares (or convertible into Pubco Ordinary Shares) included in any registration to be listed on such exchanges or otherwise designated for trading in the same manner as similar securities issued by Pubco are then listed or designated (for the avoidance of doubt, Registrable Securities that are convertible into Pubco Ordinary Shares will only be required to be listed if such convertible securities themselves are then listed) or, if no such similar securities are then listed or designated, in a manner satisfactory to Investors holding a majority-in-interest of the Registrable Securities included in such registration.
3.1.12 Road Show. If the registration involves the registration of Registrable Securities involving gross proceeds in excess of $50,000,000, Pubco shall use its reasonable efforts to make available senior executives of Pubco to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any underwritten offering.
3.2 Obligation to Suspend Distribution. Upon receipt of any notice from Pubco of the happening of any event of the kind described in Section 3.1.4(iv), or, in the case of a resale registration on a Short Form Registration pursuant to Section 2.3 hereof, upon any suspension by Pubco, pursuant to a written insider trading compliance program adopted by Pubco’s Board of Directors, of the ability of all “insiders” covered by such program to transact in Pubco’s securities because of the existence of material non-public information, each Investor holding Registrable Securities included in any registration shall immediately discontinue disposition of such Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such Investor receives the supplemented or amended prospectus contemplated by Section 3.1.4(iv), or the restriction on the ability of “insiders” to transact in Pubco’s securities is removed, as applicable, and, if so directed by Pubco, each such Investor will deliver to Pubco all copies, other than permanent file copies then in such Investor’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice.
3.3 Registration Expenses. Subject to Section 4, Pubco shall bear all reasonable costs and expenses incurred in connection with any Demand Registration pursuant to Section 2.1, any Piggy-Back Registration pursuant to Section 2.2, and any registration on a Short Form Registration effected pursuant to Section 2.3, and all reasonable expenses incurred in performing or complying with its other obligations under this Agreement, whether or not the Registration Statement becomes effective, including: (i) all registration and filing fees; (ii) fees and expenses of compliance with securities or “blue sky” laws (including fees and disbursements of counsel in connection with blue sky qualifications of the Registrable Securities); (iii) printing expenses; (iv) Pubco’s internal expenses (including all salaries and expenses of its officers and employees); (v) the fees and expenses incurred in connection with the listing of the Registrable Securities as required by Section 3.1.11; (vi) Financial Industry Regulatory Authority fees; (vii) fees and disbursements of counsel for Pubco and fees and expenses for independent certified public accountants retained by Pubco (including the expenses or costs associated with the delivery of any opinions or comfort letters requested pursuant to Section 3.1.9); (viii) the reasonable fees and expenses of any special experts retained by Pubco in connection with such registration; and (ix) the reasonable fees and expenses (up to a maximum of $15,000 in the aggregate in connection with such Registration) of one legal counsel selected by Investors holding a majority-in-interest of the Registrable Securities included in such Registration for such legal counsel’s review, comment and finalization of the proposed Registration Statement and other relevant documents. Pubco shall have no obligation to pay any underwriting discounts or selling commissions attributable to the Registrable Securities being sold by the holders thereof, which underwriting discounts or selling commissions shall be borne by such holders. Additionally, in an underwritten offering, all selling security holders and Pubco shall bear the expenses of the Underwriter pro rata in proportion to the respective amount of securities each is selling in such offering.
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3.4 Information. Investors holding Registrable Securities included in any Registration Statement shall provide such information as may reasonably be requested by Pubco, or the managing Underwriter, if any, in connection with the preparation of such Registration Statement, including amendments and supplements thereto, in order to effect the registration of any Registrable Securities under the Securities Act pursuant to Section 2 and in connection with the obligation to comply with federal and applicable state securities laws. Investors selling Registrable Securities in any offering must provide all questionnaires, powers of attorney, custody agreements, stock powers, and other documentation reasonably requested by Pubco or the managing Underwriter.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1 Indemnification by Pubco. Subject to Section 4.5 and the provisions of this Section 4.1 below, Pubco agrees to indemnify and hold harmless each Investor, and each Investor’s officers, employees, affiliates, directors, partners, members, attorneys and agents, and each Person, if any, who controls an Investor (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) (each, an “Investor Indemnified Party”), from and against any expenses, losses, judgments, claims, damages or liabilities, whether joint or several, arising out of or based upon any untrue statement of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to such Registration Statement, or arising out of or based upon any omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by Pubco of the Securities Act or any rule or regulation promulgated thereunder applicable to Pubco and relating to action or inaction required of Pubco in connection with any such registration (provided, however, that the indemnity agreement contained in this Section 4.1 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the consent of Pubco, such consent not to be unreasonably withheld, delayed or conditioned); and Pubco shall promptly reimburse the Investor Indemnified Party for any legal and any other expenses reasonably incurred by such Investor Indemnified Party in connection with investigating and defending any such expense, loss, judgment, claim, damage, liability or action; provided, however, that Pubco will not be liable in any such case to the extent that any such expense, loss, claim, damage or liability arises out of or is based upon any untrue statement or omission made in such Registration Statement, preliminary prospectus, final prospectus, or summary prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to Pubco, in writing, by such Investor Indemnified Party expressly for use therein. Pubco also shall indemnify any Underwriter of the Registrable Securities, their officers, affiliates, directors, partners, members and agents and each Person who controls such Underwriter on substantially the same basis as that of the indemnification provided above in this Section 4.1.
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4.2 Indemnification by Investors Holding Registrable Securities. Subject to Section 4.5 and the provisions of this Section 4.2 below, each Investor selling Registrable Securities will, in the event that any registration is being effected under the Securities Act pursuant to this Agreement of any Registrable Securities held by such selling Investor, indemnify and hold harmless Pubco, each of its directors and officers and each Underwriter (if any), and each other selling holder and each other Person, if any, who controls another selling holder or such Underwriter within the meaning of the Securities Act, against any losses, claims, judgments, damages or liabilities, whether joint or several, insofar as such losses, claims, judgments, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement of a material fact contained in any Registration Statement under which the sale of such Registrable Securities was registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to the Registration Statement, or arise out of or are based upon any omission to state a material fact required to be stated therein or necessary to make the statement therein not misleading, if the statement or omission was made in reliance upon and in conformity with information furnished in writing to Pubco by such selling Investor expressly for use therein (provided, however, that the indemnity agreement contained in this Section 4.2 shall not apply to amounts paid in settlement of any such claim, loss, damage, liability or action if such settlement is effected without the consent of the indemnifying Investor, such consent not to be unreasonably withheld, delayed or conditioned), and shall reimburse Pubco, its directors and officers, and each other selling holder or controlling Person for any legal or other expenses reasonably incurred by any of them in connection with investigation or defending any such loss, claim, damage, liability or action. Each selling Investor’s indemnification obligations hereunder shall be several and not joint and shall be limited to the amount of any net proceeds actually received by such selling Investor.
4.3 Conduct of Indemnification Proceedings. Promptly after receipt by any Person of any notice of any loss, claim, damage or liability or any action in respect of which indemnity may be sought pursuant to Section 4.1 or 4.2, such Person (the “Indemnified Party”) shall, if a claim in respect thereof is to be made against any other Person for indemnification hereunder, notify such other Person (the “Indemnifying Party”) in writing of the loss, claim, judgment, damage, liability or action; provided, however, that the failure by the Indemnified Party to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which the Indemnifying Party may have to such Indemnified Party hereunder, except and solely to the extent the Indemnifying Party is actually prejudiced by such failure. If the Indemnified Party is seeking indemnification with respect to any claim or action brought against the Indemnified Party, then the Indemnifying Party shall be entitled to participate in such claim or action, and, to the extent that it wishes, jointly with all other Indemnifying Parties, to assume control of the defense thereof with counsel satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume control of the defense of such claim or action, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that in any action in which both the Indemnified Party and the Indemnifying Party are named as defendants, the Indemnified Party shall have the right to employ separate counsel (but no more than one such separate counsel) to represent the Indemnified Party and its controlling Persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Indemnified Party against the Indemnifying Party, with the fees and expenses of such counsel to be paid by such Indemnifying Party if, based upon the written opinion of counsel of such Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. No Indemnifying Party shall, without the prior written consent of the Indemnified Party (acting reasonably), consent to entry of judgment or effect any settlement of any claim or pending or threatened proceeding in respect of which the Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such judgment or settlement includes an unconditional release of such Indemnified Party from all liability arising out of such claim or proceeding.
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4.4 Contribution.
4.4.1 Subject to Section 4.5, if the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3 is unavailable to any Indemnified Party in respect of any loss, claim, damage, liability or action referred to herein, then each such Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage, liability or action in such proportion as is appropriate to reflect the relative fault of the Indemnified Parties and the Indemnifying Parties in connection with the actions or omissions which resulted in such loss, claim, damage, liability or action, as well as any other relevant equitable considerations. The relative fault of any Indemnified Party and any Indemnifying Party shall be determined by reference to, among other things, whether the untrue statement of a material fact or the omission to state a material fact relates to information supplied by such Indemnified Party or such Indemnifying Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
4.4.2 Subject to Section 4.5, the parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding Section 4.4.1.
4.4.3 Subject to Section 4.5, the amount paid or payable by an Indemnified Party as a result of any loss, claim, damage, liability or action referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 4.4, no Investor holding Registrable Securities shall be required to contribute any amount in excess of the dollar amount of the net proceeds (after payment of any underwriting fees, discounts, commissions or taxes) actually received by such Investor from the sale of Registrable Securities which gave rise to such contribution obligation. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
4.5 Limitation of Liability. Notwithstanding anything under the terms of this Agreement, including this Section 4, any liability an Investor or Pubco may have for any expenses, losses, judgments, claims, damages, liabilities, actions pursuant to the terms of this Agreement shall be against the Investor itself or Pubco, as an entity only, respectively, and the following Persons shall have no liability whatsoever, and be subject to no Actions, to the maximum extent allowable under applicable Law: (a) officers, directors, managers, employees, representatives, or contractors of the Investor or Pubco; (b) officers, directors, managers, employees, representatives or contractors of any Affiliate or related party of the Investor or Pubco, including any of their respective direct or indirect investors; and (c) any Affiliate or related party of the Investor or Pubco, including any direct or indirect investors (but for the avoidance of any doubt, in each case of clauses (a) through (c), excluding the relevant Investor or Pubco, respectively).
5. RULE 144.
5.1 Rule 144. Pubco covenants that it shall file any reports required to be filed by it under the Securities Act and the Exchange Act and shall take such further action as Investors holding Registrable Securities may reasonably request, all to the extent required from time to time to enable such Investors to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 under the Securities Act, as such Rule 144 may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
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6. MISCELLANEOUS.
6.1 Other Registration Rights. Pubco represents and warrants that as of the date of this Agreement, no Person, other than the holders of (i) the Registrable Securities and (ii) Founder Securities, has any right to require Pubco to register any of Pubco’s share capital for sale or to include Pubco’s share capital in any registration filed by Pubco for the sale of share capital for its own account or for the account of any other Person.
6.2 Assignment; No Third Party Beneficiaries. This Agreement and the rights, duties and obligations of Pubco hereunder may not be assigned or delegated by Pubco in whole or in part, unless Pubco first provides Investors holding Registrable Securities at least ten (10) Business Days prior written notice; provided that no assignment or delegation by Pubco will relieve Pubco of its obligations under this Agreement unless Investors holding a majority-in-interest of the Registrable Securities provide their prior written consent, which consent must not be unreasonably withheld, delayed or conditioned. This Agreement and the rights, duties and obligations of Investors holding Registrable Securities hereunder may be freely assigned or delegated by such Investor in conjunction with and to the extent of any transfer of Registrable Securities by such Investor which is permitted by the Escrow Agreement. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties, to the permitted assigns of the Investors or of any assignee of the Investors. This Agreement is not intended to confer any rights or benefits on any Persons that are not party hereto other than as expressly set forth in Section 4 and this Section 6.2. No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate Pubco unless and until Pubco shall have received (i) written notice of such assignment and (ii) the written agreement of the assignee, in a form reasonably satisfactory to Pubco, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement).
6.3 Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (i) in person, (ii) by facsimile or other electronic means, with affirmative confirmation of receipt, (iii) one Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable party at the following addresses (or at such other address for a party as shall be specified by like notice):
6.4 Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible that is valid and enforceable.
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6.5 Entire Agreement. This Agreement (together with the Business Combination Agreement and the Escrow Agreement to the extent incorporated herein, and including all agreements entered into pursuant hereto or thereto or referenced herein or therein and all certificates and instruments delivered pursuant hereto or thereto) constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, understandings, negotiations and discussions between the parties, whether oral or written, relating to the subject matter hereof; provided, that, for the avoidance of doubt, the foregoing shall not affect the rights and obligations of the parties under the Business Combination Agreement or any other Ancillary Document or the rights or obligations of the parties under the Founder Registration Rights Agreement.
6.6 Interpretation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement. In this Agreement, unless the context otherwise requires: (i) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; (iii) the words “herein,” “hereto,” and “hereby” and other words of similar import in this Agreement shall be deemed in each case to refer to this Agreement as a whole and not to any particular section or other subdivision of this Agreement; and (iv) the term “or” means “and/or”. The parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
6.7 Amendments; Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written agreement or consent of Pubco and Investors holding a majority-in-interest of the Registrable Securities; provided, that any amendment or waiver of this Agreement which affects an Investor in a manner materially and adversely disproportionate to other Investors will also require the consent of such Investor. No failure or delay by a party in exercising any right hereunder shall operate as a waiver thereof. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.
6.8 Remedies Cumulative. In the event a party fails to observe or perform any covenant or agreement to be observed or performed under this Agreement, the other parties may proceed to protect and enforce its rights by suit in equity or action at law, whether for specific performance of any term contained in this Agreement or for an injunction against the breach of any such term or in aid of the exercise of any power granted in this Agreement or to enforce any other legal or equitable right, or to take any one or more of such actions, without being required to post a bond. None of the rights, powers or remedies conferred under this Agreement shall be mutually exclusive, and each such right, power or remedy shall be cumulative and in addition to any other right, power or remedy, whether conferred by this Agreement or now or hereafter available at law, in equity, by statute or otherwise.
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6.9 Arbitration. Any and all disputes, controversies and claims (other than applications for a temporary restraining order, preliminary injunction, permanent injunction or other equitable relief or application for enforcement of a resolution under this Section 6.9) arising out of, related to, or in connection with this Agreement or the transactions contemplated hereby (a “Dispute”) shall be governed by this this Section 6.9. A party must, in the first instance, provide written notice of any Disputes to the other parties subject to such Dispute, which notice must provide a reasonably detailed description of the matters subject to the Dispute. The parties involved in such Dispute shall seek to resolve the Dispute on an amicable basis within ten (10) Business Days of the notice of such Dispute being received by such other parties subject to such Dispute (the “Resolution Period”); provided, that if any Dispute would reasonably be expected to have become moot or otherwise irrelevant if not decided within sixty (60) days after the occurrence of such Dispute, then there shall be no Resolution Period with respect to such Dispute. Any Dispute that is not resolved during the Resolution Period may immediately be referred to and finally resolved by arbitration pursuant to the then-existing rules and procedures (including any expedited procedures) of the ICC (the “ICC Procedures”). Any party involved in such Dispute may submit the Dispute to the ICC to commence the proceedings after the Resolution Period. To the extent that the ICC Procedures and this Agreement are in conflict, the terms of this Agreement shall control. The arbitration shall be conducted by one arbitrator nominated by the ICC promptly (but in any event within five (5) Business Days) after the submission of the Dispute to the ICC and reasonably acceptable to each party subject to the Dispute, which arbitrator shall be a commercial lawyer with substantial experience arbitrating disputes under acquisition agreements. The arbitrator shall accept his or her appointment and begin the arbitration process promptly (but in any event within five (5) Business Days) after his or her nomination and acceptance by the parties subject to the Dispute. The proceedings shall be streamlined and efficient. The arbitrator shall decide the Dispute in accordance with the substantive law of the state of New York. Time is of the essence. Each party subject to the Dispute shall submit a proposal for resolution of the Dispute to the arbitrator within twenty (20) days after confirmation of the appointment of the arbitrator. The arbitrator shall have the power to order any party subject to the Dispute to do, or to refrain from doing, anything consistent with this Agreement, the Ancillary Documents and applicable Law, including to perform its contractual obligation(s) and providing injunctive and other equitable relief; provided, that the arbitrator shall be limited to ordering pursuant to the foregoing power (and, for the avoidance of doubt, shall order) the relevant party (or parties, as applicable) to comply with only one or the other of the proposals. The arbitrator’s award shall be in writing and shall include a reasonable explanation of the arbitrator’s reason(s) for selecting one or the other proposal. The seat of arbitration shall be in London, United Kingdom. The language of the arbitration shall be English.
6.10 Governing Law. This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of New York without regard to the conflict of laws principles thereof.
6.11 WAIVER OF TRIAL BY JURY. WITHOUT DEROGATING FROM THE AGREEMENT TO ARBITRATE IN SECTION 6.9. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, COUNTERCLAIM OR OTHER PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE INVESTORS IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
6.12 Termination of Business Combination Agreement. This Agreement shall be binding upon each party upon such party’s execution and delivery of this Agreement, but this Agreement shall only become effective upon the Closing. In the event that the Business Combination Agreement is validly terminated in accordance with its terms prior to the Closing, this Agreement shall automatically terminate and become null and void and be of no further force or effect, and the parties shall have no obligations hereunder.
6.13 Counterparts. This Agreement may be executed in multiple counterparts (including by facsimile or pdf or other electronic document transmission), each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument.
{REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW}
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IN WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be executed and delivered as of the date first written above.
Pubco: | ||
BROOGE HOLDINGS LIMITED | ||
By: | /s/ Meclomen Maramot | |
Name: | Meclomen Maramot | |
Title: | Director | |
Investor: | ||
BPGIC HOLDINGS LIMITED | ||
By: | /s/ Nicolaas L. Paardenkooper | |
Name: | Nicolaas L. Paardenkooper | |
Title: | Director | |
Address for Notice: | ||
c/o
Brooge Petroleum And Gas Investment
Company FZE |
||
P.O. Box 50170 | ||
Fujairah, United Arab Emirates | ||
Attn: Nicolaas Paardenkooper | ||
Telephone No.: +971-56-284-2828 | ||
Email: nico.paardenkooper@bpgic.com |
{Signature Page to Registration Rights Agreement}
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Exhibit 4.77
Execution Copy
INITIAL SHAREHOLDER ESCROW AGREEMENT
This INITIAL SHAREHOLDER ESCROW AGREEMENT (this “Agreement”) is made and entered into as of December 20, 2019 by and among (i) Brooge Holdings Limited, a Cayman Islands exempted company (“Pubco”), (ii) Continental Stock Transfer & Trust Company (“CST”), as escrow agent (the “Escrow Agent”), (iii) Twelve Seas Sponsors I LLC, a Delaware limited liability company (“Sponsor”), Gregory Stoupnitzky (“Stoupnitzky”) and Suneel G. Kaji (“Kaji”, and collectively with Stoupnitzky and Sponsor, the “Initial Shareholders”). Capitalized terms used but not otherwise defined herein shall have the meaning given to such terms in the Business Combination Agreement (as defined below) and the Founder Share Letter (as defined below).
WHEREAS, on June 19, 2018, in connection with its initial public offering (the “IPO”), Twelve Seas Investment Company, a Cayman Islands exempted company (the “Company”), the Initial Shareholders and CST as escrow agent thereunder (in such capacity, the “Lock-Up Escrow Agent”), entered into that certain escrow agreement (as later amended, including by the Amendment to Share Escrow Agreement dated on or about the date hereof, the “Lock-Up Escrow Agreement”), pursuant to which the Initial Shareholders deposited the 5,175,000 ordinary shares of the Company, par value $0.0001 per share, initially purchased by the Initial Shareholders in a private placement prior to the IPO (the “Founder Shares”) into an escrow account with the Lock-Up Escrow Agent (the “Lock-Up Escrow Account”) to be held during a specified period set forth therein (the “Lock-Up Escrow Period”);
WHEREAS, (i) the Company, (ii) Pubco, (iii) Brooge Merger Sub Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Pubco (“Merger Sub”), (iv) Brooge Petroleum And Gas Investment Company FZE, a company formed under the laws of the Fujairah Free Zone, UAE (“BPGIC”), and (v) BPGIC Holdings Limited, a Cayman Islands exempted company, pursuant to the Assignment and Joinder to Business Combination Agreement dated as of November 19, 2019 (as assignee of Brooge Petroleum and Gas Investment Company (BPGIC) PLC, a company formed under the laws of England and Wales (“PLC”), which became a party to the Business Combination Agreement pursuant to a Joinder to Business Combination Agreement dated as of May 10, 2019) (“Seller”), are parties to that certain Business Combination Agreement, dated as of April 15, 2019 (as amended from time to time in accordance with the terms thereof, including by the First Amendment to Business Combination Agreement, dated as of September 16, 2019, and the foregoing joinders, the “Business Combination Agreement”), pursuant to which, among other matters, (a) the Company will merge with and into Merger Sub, with the Company continuing as the surviving entity (the “Merger”), and (b) Pubco will acquire all of the issued and outstanding ordinary shares of BPGIC from Seller in exchange for ordinary shares of Pubco (the “Share Exchange” and, together with the Merger and the other transactions contemplated by the Business Combination Agreement, the “Transactions”), all upon the terms and subject to the conditions set forth in the Business Combination Agreement and in accordance with the applicable provisions of the Cayman Act;
WHEREAS, Seller (as assignee of PLC pursuant to the Assignment and Joinder to Escrow Agreement, dated as of November 19, 2019), Pubco and CST, as escrow agent thereunder (in such capacity, the “BCA Escrow Agent”), are parties to that certain Escrow Agreement (as amended, including by such joinder and the First Amendment to Escrow Agreement dated on or about the date hereof, the “BCA Escrow Agreement"), pursuant to which Pubco and Seller agreed to deposit 20,000,000 of the Pubco Ordinary Shares otherwise deliverable to Seller at the Closing (together with any equity securities paid as dividends or distributions with respect to such shares or into which such shares are exchanged or converted, the “BCA Escrow Shares”) into a segregated escrow account (the “BCA Escrow Account”), to be held in the BCA Escrow Account, along with any dividends, distributions or other income paid on or otherwise accruing to such BCA Escrow Shares (the foregoing, together with the BCA Escrow Shares, and as reduced by any releases of such BCA Escrow Shares or dividends, distributions or other income from the BCA Escrow Account by the BCA Escrow Agent in accordance with the terms of the BCA Escrow Agreement and the Business Combination Agreement, the “BCA Escrow Property”), and released therefrom in accordance with the BCA Escrow Agreement;
WHEREAS, in connection with the execution of the Business Combination Agreement, on April 15, 2019, the Initial Shareholders entered that certain letter agreement (as it may be amended from time to time in accordance with the terms thereof, the “Founder Share Letter”) with the Company and BPGIC relating to the Founder Shares, pursuant to which the Initial Shareholders agreed effective upon the closing under the Business Combination Agreement (the “Closing”), on a pro rata basis amongst the Initial Shareholders based on the number of Founder Shares owned by each of them, to (i) forfeit twenty percent (20%) of the Founder Shares owned by the Initial Shareholders and (ii) subject thirty percent (30%) of the Founder Shares owned by the Initial Shareholders as of the Closing (including any Pubco Ordinary Shares issued to the Initial Shareholders in exchange therefor in the Merger) to potential vesting and forfeiture obligations, and to deposit such shares (together with any equity securities paid as dividends or distributions with respect to such shares or into which such shares are exchanged or converted, the “Founder Escrow Shares”) into escrow with the Escrow Agent to be held and controlled, along with any other Founder Escrow Property (as defined below), by the Escrow Agent in a separate segregated escrow account (the “Founder Escrow Account”) and released therefrom in accordance with this Agreement; and
WHEREAS, the Escrow Agent is willing to administer the escrow under the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and of the mutual covenants and agreements contained herein, the parties hereto hereby agree as follows:
Section 1. Appointment. Pubco and the Initial Shareholders hereby appoint the Escrow Agent as their escrow agent for the purposes set forth herein, effective upon and subject to the Closing, and the Escrow Agent hereby agrees to perform the duties as escrow agent under this Agreement. The escrow services to be rendered by the Escrow Agent under this Agreement will not begin until the Closing has occurred and the Escrow Agent has received the documentation necessary to establish the Founder Escrow Account on its books and has received the Founder Escrow Shares in accordance with this Agreement.
Section 2. Issuance of Founder Escrow Shares. Pursuant to Section 2 of the Founder Share Letter, at the Closing, Pubco shall deposit with the Escrow Agent share certificate(s) representing the Founder Escrow Shares, with each such certificate being issued in the name of the Initial Shareholders (per each Initial Shareholder’s Founder Pro Rata Share); provided that Pubco may alternatively have the Escrow Agent and Pubco’s transfer agent account for and record any of the Founder Escrow Shares in book entry form. Pubco shall instruct the registrar of Pubco not to register a transfer of the Founder Escrow Shares without the written consent of the Escrow Agent for as long as this Escrow Agreement remains in force.
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Section 3. Maintenance of the Founder Escrow Shares and other Founder Escrow Property.
(a) So long as any Founder Escrow Shares are being held in the Founder Escrow Account subject to the terms of this Agreement and are not released in accordance with this Agreement, any dividends, distributions or other income paid on or otherwise accruing to such Founder Escrow Shares (the foregoing, together with the Founder Escrow Shares, and as reduced by any releases of such Founder Escrow Shares or dividends, distributions or other income from the Founder Escrow Account by the Escrow Agent in accordance with the terms of this Agreement and the Business Combination Agreement, the “Founder Escrow Property”), shall be held by the Escrow Agent in the Founder Escrow Account in accordance with the terms of this Agreement and be subject to the same terms as the Founder Escrow Shares hereunder. During the term of this Agreement, subject to Section 3(b) below, the Escrow Agent shall hold the Founder Escrow Property in the Founder Escrow Account and shall not sell, transfer, dispose of, lend or otherwise subject to a Lien any of the Founder Escrow Property except until and to the extent that they are released in accordance with Section 4. Except as Pubco and the Initial Shareholders may otherwise agree in joint written instructions executed and delivered to the Escrow Agent, no part of the Founder Escrow Property may be withdrawn except as expressly provided in this Agreement. While the Founder Escrow Property is held in the Founder Escrow Account or otherwise subject to this Agreement, each Initial Shareholder shall have all voting, consent and other rights with respect to its Founder Pro Rata Share (as defined in the Founder Share Letter) of the Founder Escrow Property (other than the rights to dividends, distributions or other income paid on or otherwise accruing to such Founder Escrow Property, which amounts will be held in the Founder Escrow Account until released in accordance with this Agreement and the Business Combination Agreement), subject to the terms and conditions of the Voting Agreement entered into by the Initial Shareholders, EBC and the Seller in connection with the Closing (the “Voting Agreement”), and, if the Initial Shareholders are unable to do so themselves (for whatever reason), the Escrow Agent agrees to vote such Founder Escrow Shares (or other Founder Escrow Property) and otherwise provide such consents or exercise such other legal rights (other than the rights to dividends, distributions or other income paid on or otherwise accruing to such Founder Escrow Property) as directed in writing by the applicable Initial Shareholder, subject to the terms of this Agreement and the Voting Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, after the Closing each Initial Shareholder shall be permitted to (i) pledge or otherwise encumber its Founder Pro Rata Share of the Founder Escrow Property as collateral security for documented loans entered into by such Initial Shareholder, Pubco or its Subsidiaries, including BPGIC, after the Closing or (ii) transfer its rights to its Founder Pro Rata Share of the Founder Escrow Property to a third party, provided, that (A) in each case of clauses (i) and (ii), that the lender’s or transferee’s rights to any such pledged or transferred Founder Escrow Property shall be subject to the provisions of this Agreement, the Voting Agreement if applicable under the terms thereof, the Founder Share Letter and other relevant applicable restrictions pursuant to the Transactions, including the forfeiture provisions herein and therein, and such lender or transferee must acknowledge such in writing to Pubco and the Escrow Agent prior to the granting of any such pledge or the making of any such transfer, and (B) in event of a pledge or encumbrance under clause (i), such Initial Shareholder may transfer such Founder Escrow Property, including physical possession of documentation evidencing such Initial Shareholder’s Founder Pro Rata Share of the Founder Escrow Property (including a share certificate or book entry, if any), to another escrow agent (including one affiliated with such lender), as selected by such Initial Shareholder and reasonably acceptable to Pubco, to hold the Founder Escrow Property in a segregated escrow account on substantially the same terms and conditions as the Escrow Agent under this Agreement is required to hold such Founder Escrow Property (other than adjustments to the fees and expenses of such escrow agent as reasonably acceptable to Pubco), and upon receiving written notice of such new escrow agent from such Initial Shareholder and Pubco, the Escrow Agent shall promptly transfer the Founder Escrow Property to the new escrow agent to be held in accordance with such new escrow agreement (including transferring any Founder Escrow Shares which are to be recorded in the Initial Shareholders’ names, to be held by such new escrow agent).
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Section 4. Release of the Founder Escrow Property. The Escrow Agent shall hold the Founder Escrow Property in the Founder Escrow Account and shall release and deliver the Founder Escrow Property (or such portion thereof) to either Pubco (with any Founder Escrow Shares delivered to Pubco in certificated or book entry form surrendered by the Initial Shareholders for cancellation by Pubco, and for the avoidance of any doubt, only where the Founder Escrow Property is subject to forfeiture under this Agreement) or to the Initial Shareholders (or, if during the Lock-Up Escrow Period, to the Lock-Up Escrow Account in accordance with Section 5(b) below), as applicable (including further to Section 5 of this Agreement), in accordance with (i) joint written instructions executed by Pubco and the Initial Shareholders, or (ii) a copy of a final non-appealable judgment or order from a court of competent jurisdiction (including an order to enforce an arbitral award) establishing the rights of a party in accordance with this Agreement, the Founder Share Letter and the Business Combination Agreement to such Founder Escrow Property, together with written delivery instructions from the applicable payee. Notwithstanding the release of all or a portion of the Founder Escrow Shares from the Founder Escrow Account, such Founder Escrow Shares shall remain subject to the then applicable restrictions in the Voting Agreement, Dividend Waiver, dated as of December 20, 2019, by the Initial Shareholders, and the BCA Escrow Agreement, if such agreements remain in effect at the time of such release.
Section 5. Vesting and Forfeiture of Founder Escrow Property by Initial Shareholders.
(a) The Founder Escrow Property shall become vested and no longer be subject to forfeiture at the same time, and based on the same proportion, that the Seller’s rights to the BCA Escrow Property has been determined to have become vested and no longer be subject to forfeiture under Section 2.5 of the Business Combination Agreement and the BCA Escrow Agreement, and such Founder Escrow Property shall be released from the Founder Escrow Account to the Initial Shareholders (based on each Initial Shareholder’s Founder Pro Rata Share) concurrently with the release of the BCA Escrow Property from the BCA Escrow Account under Section 2.5 of the Business Combination Agreement and the BCA Escrow Agreement. Only upon an actual release under the BCA Escrow Agreement to the Seller (or its designee), the Initial Shareholders may provide written instructions to the Founder Escrow Agent, directing the account to which to deliver such released Founder Escrow Property hereunder, and no joint written instructions shall be required, subject to Section 5(b) below.
(b) Notwithstanding anything to the contrary contained herein or in the Founder Share Letter, in the event an escrow release of Founder Escrow Shares under this Agreement occurs prior to the end of the Lock-Up Escrow Period under the Lock-Up Escrow Agreement, and to the extent that such Founder Escrow Shares would otherwise have been subject to the requirements of Section 3.1 of the Lock-Up Escrow Agreement if they had not been transferred to the Escrow Agent at the Closing in accordance with the terms of this Agreement, then upon such release they will be delivered to the Lock-Up Escrow Agent as additional “Escrow Shares” under the Lock-Up Escrow Agreement to be held and disbursed in accordance with the requirements of the Lock-Up Escrow Agreement.
(c) Notwithstanding anything to the contrary contained herein or in the Founder Share Letter, no fractional Founder Escrow Share shall be transferred from the Founder Escrow Account, and in the event that an escrow release would otherwise result in a fraction of a Founder Escrow Share being released to an Initial Shareholder by virtue of this Section 5, the number of Founder Escrow Shares to be released to the Initial Shareholder shall instead be rounded up to the nearest whole Founder Escrow Share.
Section 6. Tax Matters. Pubco and the Initial Shareholders agree and acknowledge that, for all U.S. and foreign tax purposes, except as required by applicable Law, the Initial Shareholders (based on each Initial Shareholder’s Founder Pro Rata Share) shall be treated as the owner of the Founder Escrow Property while held in the Founder Escrow Account until released in accordance with this Agreement and the Business Combination Agreement, and all interest, earnings or income, if any, earned with respect to the Founder Escrow Property while held by the Escrow Agent shall be treated as earned by the Initial Shareholders (based on each Initial Shareholder’s Founder Pro Rata Share) until released in accordance with this Agreement and the Business Combination Agreement. The Escrow Agent shall have the right to deduct and withhold taxes from any payments to be made hereunder if such withholding is required by law and to request and receive any necessary tax forms, including Form W-9 or the appropriate series of Form W-8, as applicable, or any similar information, from the applicable recipient of Founder Escrow Property.
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Section 7. Duties. The Escrow Agent’s duties are entirely ministerial and not discretionary, and the Escrow Agent will be under no duty or obligation to do or to omit the doing of any action with respect to any Founder Escrow Property, except to give notice, provide monthly reports, make releases, keep an accurate record of all transactions with respect to the Founder Escrow Property, hold the Founder Escrow Property in accordance with the terms of this Agreement and to comply with any other duties expressly set forth in this Agreement. The Escrow Agent shall not have any interest in any Founder Escrow Property, but shall serve as escrow holder only and have only possession thereof. Subject to the following sentence, nothing contained herein shall be construed to create any obligation or liability whatsoever on the part of the Escrow Agent to anyone other than the parties to this Agreement. There are no third party beneficiaries to this Agreement.
Section 8. Monthly Reports Upon Request. From and after the Closing, the Escrow Agent shall provide monthly account statements to Pubco and the Initial Shareholders with respect to the Founder Escrow Account. Pubco and the Initial Shareholders have one hundred twenty (120) days to object in writing to such reports. If no written notice detailing a party’s objections has been received by the Escrow Agent within this period, an acceptance of such reports shall be deemed to have occurred.
Section 9. Authorized Parties; Reliance. Pubco agrees to provide on Exhibit A (as it may be amended from time to time by Pubco) to this Agreement the names and specimen signatures of those persons who are authorized on behalf of Pubco after the Closing to issue notices and instructions to the Escrow Agent and execute required documents under this Agreement. Each Initial Shareholder agrees to provide on Exhibit A (as it may be amended from time to time by such Initial Shareholder) to this Agreement the names and specimen signatures of those persons who are authorized on behalf of such Initial Shareholder to issue notices and instructions to the Escrow Agent and execute required documents under this Agreement. The Escrow Agent may rely and shall be protected in acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties. Notwithstanding the above, any notice or instruction to be provided or document required to be executed under this Agreement by persons listed in Exhibit A (including any future persons, as such Exhibit A is amended from time to time) of this Agreement on behalf of Pubco (but not the Initial Shareholders) shall only be valid when provided or executed by any two of such authorized signers, acting jointly, on behalf of Pubco. The Escrow Agent shall be entitled to rely on and shall be fully protected in relying on, the instructions and notices from (i) any two of the authorized signers, acting jointly, on behalf of Pubco as identified in Exhibit A (as it may be amended from time to time) to this Agreement after the Closing, and (ii) any one of the authorized signers of an Initial Shareholder as identified on the attached Exhibit A (as it may be amended from time to time) to this Agreement after the Closing, acting alone (and for the avoidance of doubt, if a joint written instruction is required under this Agreement, then the Escrow Agent must receive instructions from the Persons required by both of clauses (i) and (ii)), until such time, in the case of either clauses (i) or (ii), as their authority is revoked in writing, or until successors have been appointed and identified by notice in the manner described in Section 15 below. The requirement in this Section 9 of there being two authorized signers acting jointly on behalf of Pubco shall only apply to Pubco when there are at least two people who are listed as serving as authorized signers as so provided for in Exhibit A (as it may be amended from time to time) of this Agreement. Where there is only one authorized signer for Pubco as named in Exhibit A (as it may be amended from time to time) of this Agreement, then such sole authorized signer’s notices, instructions or documents executed pursuant to the terms of this Agreement shall be valid and the reliance and protections afforded in this Section 9 shall be available to the Escrow Agent until such time as the sole authorized signer’s authority is revoked in writing, or until successors have been appointed and identified by notice in the manner described in Section 15 below.
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Section 10. Good Faith. The Escrow Agent shall not be liable for any action taken by it in good faith and reasonably believed by it to be authorized or within the rights or powers conferred upon it by this Agreement and may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel.
Section 11. Right to Resign. The Escrow Agent may resign and be discharged from its duties or obligations hereunder by giving such notice in writing of such resignation to each of the other parties specifying a date when such resignation shall take effect, which shall be a date not less than sixty (60) days after the date of the notice of such resignation, and shall be conditioned upon the appointment of a replacement Escrow Agent in accordance with this Section 11. Similarly, the Escrow Agent may be removed and replaced following the giving of ten (10) days’ notice to the Escrow Agent by all of the other parties hereto; provided that such removal shall not take effect prior to the appointment of a replacement Escrow Agent in accordance with this Section 11. In either event, Pubco and the Initial Shareholders (by determination of Initial Shareholders holding in the aggregate a majority of the Founder Pro Rata Share held by all Initial Shareholders (an “Initial Shareholder Majority”)) shall agree upon a successor Escrow Agent (however for the avoidance of any doubt, this Section 11 does not apply to the Initial Shareholders’ unilateral right to transfer the Founder Escrow Property to another escrow agent or lender under the terms of Section 3(b) of this Agreement). If the Initial Shareholders and Pubco are unable to agree upon a successor Escrow Agent or shall have failed to appoint a successor Escrow Agent prior to the expiration of sixty (60) days following the date of resignation or ten (10) days following the date of removal, the then-acting Escrow Agent may petition any court of competent jurisdiction for the appointment of a successor escrow agent or otherwise appropriate relief, and any such resulting appointment shall be binding upon all of the parties hereto. Any successor Escrow Agent shall execute and deliver to the predecessor Escrow Agent, Pubco and the Initial Shareholders an instrument accepting such appointment and the transfer of the Founder Escrow Property and agreeing to the terms of this Agreement.
Section 12. Compensation. The Escrow Agent shall be entitled to receive the fees as set forth on Exhibit B for the services to be rendered hereunder, and to be paid or reimbursed for all reasonable documented out-of-pocket expenses, disbursements and advances, including reasonable documented out-of-pocket attorneys’ fees, incurred or paid in connection with carrying out its duties hereunder, such amounts to be paid by Pubco.
Section 13. Indemnification. Pubco hereby agrees to indemnify the Escrow Agent for, and to hold it harmless against any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Escrow Agent, arising out of or in connection with its entering into this Agreement and carrying out its duties hereunder.
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Section 14. Disputes. If a controversy arises between the parties hereto as to whether or not or to whom the Escrow Agent shall transfer all or any portion of any Founder Escrow Property, or as to any other matter arising out of or relating to this Agreement or any Founder Escrow Property, the Escrow Agent shall not be required to determine the same, shall not make any transfer of and shall retain the Founder Escrow Property in dispute without liability to anyone until the rights of the parties to the dispute shall have finally been determined by mutual written agreement of Pubco and the Initial Shareholders, or by a final non-appealable judgment or order of a court of competent jurisdiction (including an order to enforce an arbitral award), but the Escrow Agent shall be under no duty whatsoever to institute or defend any such proceedings. The Escrow Agent shall be entitled to assume that no such controversy has arisen unless it has received notice of such controversy or conflicting written notices from the parties to this Agreement. Any disputes arising out of, related to, or in connection with, this Agreement between Pubco and the Initial Shareholders, including a dispute arising from a party’s failure or refusal to sign a joint written notice hereunder, shall be determined by arbitration conducted in accordance with the provisions of Section 11.5 of the Business Combination Agreement (other than applications for a temporary restraining order, preliminary injunction, permanent injunction or other equitable relief, including specific performance, or application for enforcement of a resolution pursuant to this Section 14 or Section 11.5 of the Business Combination Agreement).
Section 15. Notices. Except to the extent expressly set forth herein, all notices and communications hereunder shall be in writing and shall be deemed to be given if (a) delivered personally, (b) sent by facsimile or email (with affirmative confirmation of receipt), (c) sent by recognized overnight courier that issues a receipt or other confirmation of delivery or (d) sent by registered or certified mail, return receipt requested, postage prepaid to the parties as follows:
If to Pubco, to:
c/o Brooge Petroleum And Gas Investment Company FZE
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with a copy (which will not constitute notice) to:
K&L Gates LLP
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If to any Initial Shareholder, to:
the address of such Initial Shareholder as set forth underneath such Initial Shareholder’s name on the signature page hereto. |
with a copy (which will not constitute notice) to:
Ellenoff Grossman & Schole LLP
Matthew A. Gray, Esq.
Facsimile No.: (212) 370-7889
mgray@egsllp.com |
If to the Escrow Agent, to:
Continental Stock Transfer & Trust Company
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or at such other address as any of the above may have furnished to the other parties in a notice duly given as provided herein. Any such notice or communication given in the manner specified in this Section 15 shall be deemed to have been given (i) on the date personally delivered or transmitted by facsimile or email (with affirmative confirmation of receipt), (ii) one (1) Business Day after the date sent by recognized overnight courier that issues a receipt or other confirmation of delivery or (iii) three (3) Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid.
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Section 16. Term. This Agreement shall terminate upon the final, proper and complete distribution of all Founder Escrow Property in accordance with the terms hereof; provided, that Pubco’s obligations under Section 13 hereof shall survive any termination of this Agreement. Notwithstanding the foregoing or anything to the contrary contained herein, in the event that the Business Combination Agreement is validly terminated in accordance with its terms prior to the Closing, this Agreement shall automatically terminate and become null and void, and the parties shall have no obligations hereunder.
Section 17. Entire Agreement. The terms and provisions of this Agreement (including the Exhibits hereto, all of which are hereby incorporated by reference herein) and the other documents referenced herein constitute the entire agreement between the Escrow Agent and the other parties hereto with respect to the subject matter hereof. Notwithstanding the foregoing, as between Pubco and the Initial Shareholders, the terms of the Founder Share Letter shall control and govern over the terms of this Agreement in the event of any conflict or inconsistency between this Agreement and the Founder Share Letter (unless there is an express intention otherwise in this Agreement), provided that, as between Pubco and the Initial Shareholders, in the event of any conflict or inconsistency between Sections 2, 3, 4 or 5 of this Agreement and the related provisions of the Founder Share Letter, the terms of this Agreement shall control and govern to the extent of any such conflict or inconsistency. The actions of the Escrow Agent shall be governed solely by this Agreement.
Section 18. Amendment; Waiver. Without limiting the first sentence of Section 9, this Agreement may be amended or modified only by a written instrument duly signed by the parties hereto. Without limiting the first sentence of Section 9, any provision hereof may be waived only by a written instrument duly signed by the party against whom enforcement of such waiver is sought.
Section 19. Severability. In the event that any provision of this Agreement or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
Section 20. Further Assurances. From time to time on and after the date hereof, Pubco and each Initial Shareholder shall deliver or cause to be delivered to the Escrow Agent such further documents and instruments and shall do and cause to be done such further acts as the Escrow Agent shall reasonably request (it being understood that the Escrow Agent shall have no obligation to make any such request) to carry out more effectively the provisions and purposes of this Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder. Pubco agrees that upon the release of the Founder Escrow Shares from the Founder Escrow Account to an Initial Shareholder hereunder, Pubco shall promptly remove or take all necessary actions to cause its transfer agent to remove any applicable legend relating to this Agreement from the Founder Escrow Shares (but for the avoidance of doubt, other legends or restrictions would continue to remain, including those with respect to dividend waivers).
Section 21. Accounting. In the event of the resignation or removal of the Escrow Agent, upon the termination of this Agreement or upon demand at any time of either Pubco or the Initial Shareholders (by an Initial Shareholder Majority) under reasonable circumstances, the Escrow Agent shall render to Pubco, the Initial Shareholders and the successor escrow agent (if any) an accounting (free of charge) in writing of the property constituting the Founder Escrow Property.
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Section 22. Interpretation. The parties acknowledge and agree that: (a) this Agreement is the result of negotiations between the parties and will not be deemed or construed as having been drafted by any one party, (b) each party and its counsel have reviewed and negotiated the terms and provisions of this Agreement (including any Exhibits attached hereto) and have contributed to its revision and (c) the rule of construction to the effect that any ambiguities are resolved against the drafting party will not be employed in the interpretation of this Agreement. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. In this Agreement, unless the context otherwise requires: (i) words of the masculine, feminine or neuter gender will include the masculine, neuter or feminine gender, and words in the singular number or in the plural number will each include, as applicable, the singular number or the plural number; (ii) reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity; (iii) reference to any law means such law as amended, modified codified or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder; (iv) any agreement or instrument defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement or instrument as from time to time amended, modified or supplemented, including by waiver or consent and references to all attachments thereto and instruments incorporated therein; (v) the words “herein, “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision; (vi) the words “include,” “includes” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation”; (vii) any reference herein to “dollars” or “$” shall mean United States dollars; and (viii) reference to any Section or Exhibit means such Section hereof or Exhibit hereto.
Section 23. Successors and Assigns. This Agreement and the rights and obligations hereunder may not be assigned without the prior written consent of each of the parties hereto, and any purported assignment without such consent shall be null and void ab initio; provided, that without such consent, an Initial Shareholder may assign all of its Founder Escrow Shares and other Founder Escrow Property and its rights and obligations under this Agreement to a person to whom an Initial Shareholder is permitted to transfer its Lock-Up Escrow Shares as a permitted transfer under Section 4.3 of the Lock-Up Escrow Agreement, so long as the recipient enters into a written agreement (in a form (i.e., a form for execution) reasonably acceptable to Pubco, such acceptance (and any execution) not to be unreasonably withheld, delayed or conditioned) to take such Founder Escrow Shares and other Founder Escrow Property subject to the escrow hereunder and otherwise be bound by the terms and conditions of this Agreement, the Voting Agreement if applicable under the terms thereof and other relevant applicable restrictions pursuant to the Transactions, with respect to such transferred Founder Escrow Property, signed by the Initial Shareholder and such recipient, and promptly delivered to Pubco. This Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.
Section 24. Failure or Indulgence Not Waiver; Remedies Cumulative. No failure or delay on the part of any party hereto in the exercise of any right hereunder will impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty, covenant or agreement herein, nor will any single or partial exercise of any such right preclude any other (or further) exercise thereof or of any other right. All rights and remedies existing under this Agreement are cumulative to, and not exclusive to or exclusive of, any rights or remedies otherwise available to a party hereunder.
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Section 25. Governing Law. This Agreement shall be governed by, construed and enforced in accordance with the Laws of the State of New York without regard to the conflict of laws principles thereof.
Section 26. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 27. Counterparts. This Agreement may be executed simultaneously in two or more counterparts (including by facsimile or other electronic transmission), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Section 28. U.S. Patriot Act. Pubco and each Initial Shareholder agree to provide the Escrow Agent with the information reasonably requested by the Escrow Agent to verify and record Pubco’s and such Initial Shareholder’s respective identities pursuant to the Escrow Agent’s procedures for compliance with the U.S. Patriot Act and any other applicable laws.
Section 29. Representations of the Parties. Each of Pubco, the Initial Shareholders and the Escrow Agent hereby represents and warrants that as of the date hereof: (a) it has the power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and all such actions have been duly and validly authorized by all necessary proceedings; and (b) this Agreement has been duly authorized, executed and delivered by it, and constitutes a legal, valid and binding agreement of it.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first written above.
Pubco: | ||
BROOGE HOLDINGS LIMITED | ||
By: | /s/ Meclomen Maramot | |
Name: | Meclomen Maramot | |
Title: | Director | |
The Escrow Agent: | ||
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as escrow agent | ||
By: | /s/ Isaac J. Kagan | |
Name: | Isaac J. Kagan | |
Title: | Vice President | |
Initial Shareholders: | ||
TWELVE SEAS SPONSORS I LLC | ||
By: | /s/ Bryant Edwards | |
Name: | Bryant Edwards | |
Title: | Chief Operating Officer | |
Address for Notice: | ||
135 East 57th Street, 18th Floor | ||
New York, New York 10022 | ||
Attn: Chief Executive Officer | ||
/s/ Gregory Stoupnitzky | ||
Gregory Stoupnitzky | ||
Address for Notice: | ||
/s/ Suneel G. Kaji | ||
Suneel G. Kaji | ||
Address for Notice: | ||
B-1
Exhibit 4.78
EXECUTION COPY
Business Combination Marketing Agreement Fee Amendment
This Business Combination Marketing Agreement Fee Amendment (this “Amendment”) is entered into as of December 20, 2019, by and among EarlyBirdCapital, Inc. (“Advisor”), Twelve Seas Investment Company (the “Company”), and Brooge Holdings Limited (“Pubco”).
WHEREAS, the Advisor and the Company entered into that certain Business Combination Marketing Agreement, dated June 19, 2018 whereby the Advisor agreed to assist the Company in connection with the Company’s business combination with one or more businesses or entities as described in the Company’s Registration Statement on Form S-1 (File No. 333-225352);
WHEREAS, on April 15, 2019, (i) the Company, (ii) Pubco, (iii) Brooge Merger Sub Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of Pubco (“Merger Sub”), and (iv) Brooge Petroleum And Gas Investment Company FZE, a company formed under the laws of the Fujairah Free Zone, UAE (the “BPGIC”), entered into that certain Business Combination Agreement, pursuant to which BPGIC Holdings Limited (“Seller”), a Cayman Islands exempted company also become a party thereafter pursuant to the Assignment and Joinder to Business Combination Agreement dated as of November 19, 2019 (as assignee of Brooge Petroleum and Gas Investment Company (BPGIC) PLC, a company formed under the laws of England and Wales, which became a party to the Business Combination Agreement pursuant to a Joinder to Business Combination Agreement dated as of May 10, 2019) (as amended prior to the date hereof, including by the foregoing joinders and by the First Amendment to Business Combination Agreement, dated as of September 16, 2019, and as it may be amended after the date hereof, the “Business Combination Agreement”), pursuant to which, subject to the terms and conditions thereof, upon the consummation of the transactions contemplated thereby (the “Closing”), among other matters, (a) the Company will merge with and into Merger Sub, with the Company continuing as the surviving entity and a wholly-owned subsidiary of Pubco, and with holders of the Company’s securities receiving substantially equivalent securities of Pubco, and (b) Pubco will acquire all of the issued and outstanding ordinary shares of BPGIC from the Seller in exchange for ordinary shares of Pubco, subject to the withholding of the escrow shares being deposited in the escrow account in accordance with the terms and conditions of the Business Combination Agreement and the escrow agreement, and with BPGIC becoming a wholly-owned subsidiary of Pubco;
WHEREAS, a condition to the obligations of the BPGIC, Pubco, Merger Sub and Seller is the receipt by BPGIC and Pubco of a copy of a Business Combination Marketing Agreement Fee Amendment to reduce the fee payable to the Advisor thereunder by an amount as mutually reasonably determined by BPGIC and the Company; and
WHEREAS, the Company, BPGIC, Pubco and the Advisor have agreed to amend the fee payable to the Advisor under the Business Combination Marketing Agreement to provide that the Advisor shall receive, in full satisfaction of any and all fees owed to it under the Business Combination Marketing Agreement, (i) $3,000,000 at the Closing, and (ii) a $1,500,000 promissory note of Pubco, in substantially the form attached hereto as Exhibit A, to be paid on the earlier of (a) the one year anniversary of the Closing and (b) the consummation of a follow-on securities offering by Pubco (the “Note”), and in connection with such amendment the parties hereto desire to add Pubco as a party to the Business Combination Marketing Agreement solely with respect to Section 1(b)(ii).
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NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:
1. Fees.
1.1 Advisor, Company and Pubco hereby agree that no portion of the Fee (defined below) will be paid to any other advisor pursuant to the Business Combination Marketing Agreement for assisting the Company in consummating the Business Combination.
1.2 Section 1(b) of the Business Combination Marketing Agreement is hereby amended to delete such section in its entirety and replace it with the following:
(b) As compensation for the foregoing services:
(i) the Company will pay the Advisor a cash fee equal to $3,000,000 by wire transfer at the Closing; and
(ii) Brooge Holdings Limited (“Pubco”) will deliver the Note in the amount of $1,500,000 in substantially the form attached hereto as Exhibit A, payable on the earlier of (a) the one year anniversary of the Closing and (b) the consummation of a follow-on securities offering by Pubco (the compensation described in subclauses (i) and (ii) collectively, the “Fee”).
2. Addition of Pubco as a Party to the Business Combination Marketing Agreement. The parties hereby agree to add Pubco as a party to the Business Combination Marketing Agreement, as amended by this Amendment, solely with respect to Section 1(b)(ii). By executing this Amendment, Pubco hereby agrees to be bound by and subject to all of the terms and conditions of Section 1(b)(ii) of the Business Combination Marketing Agreement, as amended by this Amendment, from and after the Closing.
3. Notices. Section 10 is hereby amended to add at the end of the section the following:
Provided, that notice to Pubco shall be addressed to the following address or to such other address as Pubco may from time to time designate in a notice given pursuant to this Section:
c/o Brooge Petroleum And Gas Investment Company FZE
P.O. Box 50170 Fujairah, UAE Attn: Nicolaas Paardenkooper Telephone No.: +971-56-284-2828 Email: nico.paardenkooper@bpgic.com |
with a copy (which will not constitute notice) to:
K&L Gates LLP
New York, NY 10022
|
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4. Effectiveness. Notwithstanding anything to the contrary contained herein, this Amendment shall only become effective upon the Closing. In the event that the Business Combination Agreement is terminated in accordance with its terms prior to the Closing, this Amendment and all rights and obligations of the parties hereunder shall automatically terminate and be of no further force or effect.
5. Arbitration. Section 13 of the Business Combination Marketing Agreement is hereby amended to delete such section in its entirety and replace it with the following:
Any and all disputes, controversies and claims (other than applications for a temporary restraining order, preliminary injunction, permanent injunction or other equitable relief or application for enforcement of a resolution under this Section 13) arising out of, related to, or in connection with this Note (a “Dispute”) shall be governed by this Section 13. A party must, in the first instance, provide written notice of any Disputes to the other party subject to such Dispute, which notice must provide a reasonably detailed description of the matters subject to the Dispute. The parties shall seek to resolve the Dispute on an amicable basis within ten (10) business days of the notice of such Dispute being received by the other party subject to such Dispute (the “Resolution Period”); provided, that if any Dispute would reasonably be expected to have become moot or otherwise irrelevant if not decided within sixty (60) days after the occurrence of such Dispute, then there shall be no Resolution Period with respect to such Dispute. Any Dispute that is not resolved during the Resolution Period may immediately be referred to and finally resolved by arbitration pursuant to the then-existing rules and procedures (including any expedited procedures) of the International Arbitration Rules of the American Arbitration Association (“AAA”). In the event the dispute is brought before the AAA, the arbitration shall be brought before the AAA International Center for Dispute Resolution’s offices in New York City, New York, will be conducted in English and will be decided by a panel of three arbitrators selected from the AAA Commercial Disputes Panel. Each of the parties agrees that the decision and/or award made by the arbitrators shall be final and enforceable by any court having jurisdiction over the party from whom enforcement is sought. Furthermore, the parties to any such arbitration shall be entitled to make one motion for summary judgment within 60 days of the commencement of the arbitration, which shall be decided by the arbitrator[s] prior to the commencement of the hearings.
6. Agent for Process. Notwithstanding anything to the contrary in the final paragraph of Section 13 prior to the amendment in Section 5 hereof, effective upon Closing, the Company, with the consent of the Advisor, hereby revokes the appointment of Ellenoff Gross & Schole LLP, 1345 Avenue of the Americas, New York, New York 10105, Fax No.: (212) 370-1300, Attn: Stuart Neuhauser, Esq, as its agent to accept and acknowledge on its behalf service of any and all process which may be served in any arbitration, action, proceeding or counterclaim in any way relating to or arising out of the Business Combination Marketing Agreement. Effective upon Closing, the Company hereby appoints K&L Gates LLP, 599 Lexington Avenue, New York, New York 10022, Attn.: Robert S. Matlin, Esq., as its agent to accept and acknowledge on its behalf service of any and all process which may be served in any arbitration, action, proceeding or counterclaim in any way relating to or arising out of the Business Combination Marketing Agreement, as amended by this Amendment.
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7. WAIVER OF TRIAL BY JURY. The Business Combination Marketing Agreement is hereby amended to add Section 15. WAIVER OF TRIAL BY JURY as follows:
WAIVER OF TRIAL BY JURY. WITHOUT DEROGATING FROM THE AGREEMENT TO ARBITRATE IN SECTION 13. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, COUNTERCLAIM OR OTHER PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH OR RELATING TO THIS AGREEMENT, AS AMENDED, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE PARTIES IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
8. Miscellaneous. Except as expressly provided in this Amendment, all of the terms and provisions in the Business Combination Marketing Agreement are and shall remain in full force and effect, on the terms and subject to the conditions set forth therein. This Amendment does not constitute, directly or by implication, an amendment or waiver of any provision of the Business Combination Marketing Agreement, or any other right, remedy, power or privilege of any party thereto, except as expressly set forth herein. This Amendment may be executed in any number of original or facsimile counterparts, each one of which shall constitute an original, and together shall constitute but one instrument.
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IN WITNESS WHEREOF, each party hereto has caused this Business Combination Marketing Agreement Fee Amendment to be signed and delivered by its respective duly authorized officer as of the date first above written.
The Company: | ||
TWELVE SEAS INVESTMENT COMPANY | ||
By: | /s/ Stephen N. Cannon | |
Name: Stephen N. Cannon | ||
Title: Chief Financial Officer | ||
Pubco: | ||
BROOGE HOLDINGS LIMITED | ||
By: | /s/ Meclomen Maramot | |
Name: Meclomen Maramot | ||
Title: Chief Executive Officer | ||
The Advisor: | ||
EARLYBIRDCAPITAL, INC. | ||
By: | /s/ Michael Powell | |
Name: Michael Powell | ||
Title: Managing Member |
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EXHIBIT A
FORM OF PUBCO NOTE
THIS PROMISSORY NOTE (“NOTE”) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF THE RESALE THEREOF UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
PROMISSORY NOTE
Principal Amount: $1,500,000.00
December [20], 2019
Brooge Holdings Limited, a Cayman Islands exempted company (“Maker”), promises to pay to the order of EarlyBirdCapital, Inc. or its registered assigns or successors in interest or order (“Payee”), the principal sum of One Million Five Hundred Thousand Dollars ($1,500,000.00) in lawful money of the United States of America, on the terms and conditions described below. All payments on this Note shall be made by check or wire transfer of immediately available funds to such account as Payee may from time to time designate by written notice in accordance with the provisions of this Note.
1. Repayment. The principal balance of this Note shall be payable on the earliest to occur of (i) the first anniversary of the closing the Maker’s business combination with Twelve Seas Investment Company and (ii) the date that the Maker consummates a follow-on securities offering (such date, the “Maturity Date”). The principal balance may be prepaid at any time, at the election of Maker.
2. Interest. This Note shall be non-interest bearing unless there is an Event of Default (as defined below).
3. Events of Default. The following shall constitute an event of default (“Event of Default”):
(a) | Failure to Make Required Payments. Failure by Maker to pay the principal amount due pursuant to this Note within five (5) business days of the Maturity Date. |
(b) | Voluntary Bankruptcy, etc. The commencement by Maker of a voluntary case under any applicable bankruptcy, insolvency, reorganization, rehabilitation or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of Maker or for any substantial part of its property, or the making by it of any assignment for the benefit of creditors, or the failure of Maker generally to pay its debts as such debts become due, or the taking of corporate action by Maker in furtherance of any of the foregoing. |
(c) | Involuntary Bankruptcy, Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of Maker in an involuntary case under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of Maker or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days. |
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4. Remedies.
(a) | Upon the occurrence of an Event of Default specified in Section 3(a) hereof, Payee may, by written notice to Maker, declare this Note to be due immediately and payable, whereupon the unpaid principal amount of this Note and all other amounts payable hereunder, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the documents evidencing the same to the contrary notwithstanding. |
(b) | Upon the occurrence of an Event of Default specified in Sections 3(b) and 3(c) hereof, the unpaid principal balance of this Note and all other amounts payable hereunder, shall automatically and immediately become due and payable, in all cases without any action on the part of Payee. |
(c) | Following the occurrence and during the continuance of an Event of Default, the Company shall pay interest on the outstanding principal balance of this Note in an amount equal to ten percent (10%) per annum, and all outstanding obligations under this Note, including unpaid interest, shall continue to accrue interest at such additional interest rate from the date of such Event of Default until the date such Event of Default is cured or waived. |
5. Waivers. Maker and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand, notice of dishonor, protest, and notice of protest with regard to this Note, all errors, defects and imperfections in any proceedings instituted by Payee under the terms of this Note, and all benefits that might accrue to Maker by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and Maker agrees that any real or personal property that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued hereon, may be sold upon any such writ in whole or in part in any order desired by Payee.
6. Unconditional Liability. Maker hereby waives all notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, and agrees that its liability shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by Payee with respect to the payment or other provisions of this Note, and agrees that additional makers, endorsers, guarantors, or sureties may become parties hereto without affecting Maker’s liability hereunder.
7. Notices. All notices, statements or other documents which are required or contemplated by this Note shall be: (i) in writing and delivered personally or sent by first class registered or certified mail, overnight courier service or facsimile or electronic transmission to the address designated in writing, (ii) by facsimile to the number most recently provided to such party or such other address or fax number as may be designated in writing by such party and (iii) by electronic mail, to the electronic mail address most recently provided to such party or such other electronic mail address as may be designated in writing by such party. Any notice or other communication so transmitted shall be deemed to have been given on the day of delivery, if delivered personally, on the business day following receipt of written confirmation, if sent by facsimile or electronic transmission, one (1) business day after delivery to an overnight courier service or five (5) days after mailing if sent by mail.
8. Construction. THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
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9. Arbitration. Any and all disputes, controversies and claims (other than applications for a temporary restraining order, preliminary injunction, permanent injunction or other equitable relief or application for enforcement of a resolution under this Section 9) arising out of, related to, or in connection with this Note (a “Dispute”) shall be governed by this Section 9. A party must, in the first instance, provide written notice of any Disputes to the other party subject to such Dispute, which notice must provide a reasonably detailed description of the matters subject to the Dispute. The parties shall seek to resolve the Dispute on an amicable basis within ten (10) business days of the notice of such Dispute being received by the other party subject to such Dispute (the “Resolution Period”); provided, that if any Dispute would reasonably be expected to have become moot or otherwise irrelevant if not decided within sixty (60) days after the occurrence of such Dispute, then there shall be no Resolution Period with respect to such Dispute. Any Dispute that is not resolved during the Resolution Period may immediately be referred to and finally resolved by arbitration pursuant to the then-existing rules and procedures (including any expedited procedures) of the International Arbitration Rules of the American Arbitration Association (“AAA”). In the event the dispute is brought before the AAA, the arbitration shall be brought before the AAA International Center for Dispute Resolution’s offices in New York City, New York, will be conducted in English and will be decided by a panel of three arbitrators selected from the AAA Commercial Disputes Panel. Each of the parties agrees that the decision and/or award made by the arbitrators shall be final and enforceable by any court having jurisdiction over the party from whom enforcement is sought. Furthermore, the parties to any such arbitration shall be entitled to make one motion for summary judgment within 60 days of the commencement of the arbitration, which shall be decided by the arbitrator[s] prior to the commencement of the hearings.
10. WAIVER OF TRIAL BY JURY. WITHOUT DEROGATING FROM THE AGREEMENT TO ARBITRATE IN SECTION 10. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, COUNTERCLAIM OR OTHER PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH OR RELATING TO THIS NOTE, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE PARTIES IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
11. Severability. Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
12. Amendment; Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent of Maker and Payee.
13. Assignment. No assignment or transfer of this Note or any rights or obligations hereunder may be made by any party hereto (by operation of law or otherwise) without the prior written consent of the other party hereto and any attempted assignment without the required consent shall be void.
[Signature Page Follows]
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IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first above written.
BROOGE HOLDINGS LIMITED | ||
By: | ||
Name: Meclomen Maramot | ||
Title: Chief Executive Officer |
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Exhibit 4.79
EXECUTION COPY
THIS PROMISSORY NOTE (“NOTE”) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF THE RESALE THEREOF UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
PROMISSORY NOTE
Principal Amount: $1,500,000.00
December 20, 2019
Brooge Holdings Limited, a Cayman Islands exempted company (“Maker”), promises to pay to the order of EarlyBirdCapital, Inc. or its registered assigns or successors in interest or order (“Payee”), the principal sum of One Million Five Hundred Thousand Dollars ($1,500,000.00) in lawful money of the United States of America, on the terms and conditions described below. All payments on this Note shall be made by check or wire transfer of immediately available funds to such account as Payee may from time to time designate by written notice in accordance with the provisions of this Note.
1. Repayment. The principal balance of this Note shall be payable on the earliest to occur of (i) the first anniversary of the closing the Maker’s business combination with Twelve Seas Investment Company and (ii) the date that the Maker consummates a follow-on securities offering (such date, the “Maturity Date”). The principal balance may be prepaid at any time, at the election of Maker.
2. Interest. This Note shall be non-interest bearing unless there is an Event of Default (as defined below).
3. Events of Default. The following shall constitute an event of default (“Event of Default”):
(a) | Failure to Make Required Payments. Failure by Maker to pay the principal amount due pursuant to this Note within five (5) business days of the Maturity Date. |
(b) | Voluntary Bankruptcy, etc. The commencement by Maker of a voluntary case under any applicable bankruptcy, insolvency, reorganization, rehabilitation or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of Maker or for any substantial part of its property, or the making by it of any assignment for the benefit of creditors, or the failure of Maker generally to pay its debts as such debts become due, or the taking of corporate action by Maker in furtherance of any of the foregoing. |
(c) | Involuntary Bankruptcy, Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of Maker in an involuntary case under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of Maker or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days. |
4. Remedies.
(a) | Upon the occurrence of an Event of Default specified in Section 3(a) hereof, Payee may, by written notice to Maker, declare this Note to be due immediately and payable, whereupon the unpaid principal amount of this Note and all other amounts payable hereunder, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the documents evidencing the same to the contrary notwithstanding. |
(b) | Upon the occurrence of an Event of Default specified in Sections 3(b) and 3(c) hereof, the unpaid principal balance of this Note and all other amounts payable hereunder, shall automatically and immediately become due and payable, in all cases without any action on the part of Payee. |
(c) | Following the occurrence and during the continuance of an Event of Default, the Company shall pay interest on the outstanding principal balance of this Note in an amount equal to ten percent (10%) per annum, and all outstanding obligations under this Note, including unpaid interest, shall continue to accrue interest at such additional interest rate from the date of such Event of Default until the date such Event of Default is cured or waived. |
5. Waivers. Maker and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand, notice of dishonor, protest, and notice of protest with regard to this Note, all errors, defects and imperfections in any proceedings instituted by Payee under the terms of this Note, and all benefits that might accrue to Maker by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and Maker agrees that any real or personal property that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued hereon, may be sold upon any such writ in whole or in part in any order desired by Payee.
6. Unconditional Liability. Maker hereby waives all notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, and agrees that its liability shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by Payee with respect to the payment or other provisions of this Note, and agrees that additional makers, endorsers, guarantors, or sureties may become parties hereto without affecting Maker’s liability hereunder.
7. Notices. All notices, statements or other documents which are required or contemplated by this Note shall be: (i) in writing and delivered personally or sent by first class registered or certified mail, overnight courier service or facsimile or electronic transmission to the address designated in writing, (ii) by facsimile to the number most recently provided to such party or such other address or fax number as may be designated in writing by such party and (iii) by electronic mail, to the electronic mail address most recently provided to such party or such other electronic mail address as may be designated in writing by such party. Any notice or other communication so transmitted shall be deemed to have been given on the day of delivery, if delivered personally, on the business day following receipt of written confirmation, if sent by facsimile or electronic transmission, one (1) business day after delivery to an overnight courier service or five (5) days after mailing if sent by mail.
8. Construction. THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
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9. Arbitration. Any and all disputes, controversies and claims (other than applications for a temporary restraining order, preliminary injunction, permanent injunction or other equitable relief or application for enforcement of a resolution under this Section 9) arising out of, related to, or in connection with this Note (a “Dispute”) shall be governed by this Section 9. A party must, in the first instance, provide written notice of any Disputes to the other party subject to such Dispute, which notice must provide a reasonably detailed description of the matters subject to the Dispute. The parties shall seek to resolve the Dispute on an amicable basis within ten (10) business days of the notice of such Dispute being received by the other party subject to such Dispute (the “Resolution Period”); provided, that if any Dispute would reasonably be expected to have become moot or otherwise irrelevant if not decided within sixty (60) days after the occurrence of such Dispute, then there shall be no Resolution Period with respect to such Dispute. Any Dispute that is not resolved during the Resolution Period may immediately be referred to and finally resolved by arbitration pursuant to the then-existing rules and procedures (including any expedited procedures) of the International Arbitration Rules of the American Arbitration Association (“AAA”). In the event the dispute is brought before the AAA, the arbitration shall be brought before the AAA International Center for Dispute Resolution’s offices in New York City, New York, will be conducted in English and will be decided by a panel of three arbitrators selected from the AAA Commercial Disputes Panel. Each of the parties agrees that the decision and/or award made by the arbitrators shall be final and enforceable by any court having jurisdiction over the party from whom enforcement is sought. Furthermore, the parties to any such arbitration shall be entitled to make one motion for summary judgment within 60 days of the commencement of the arbitration, which shall be decided by the arbitrator[s] prior to the commencement of the hearings.
10. WAIVER OF TRIAL BY JURY. WITHOUT DEROGATING FROM THE AGREEMENT TO ARBITRATE IN SECTION 10. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, COUNTERCLAIM OR OTHER PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH OR RELATING TO THIS NOTE, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE PARTIES IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
11. Severability. Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
12. Amendment; Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent of Maker and Payee.
13. Assignment. No assignment or transfer of this Note or any rights or obligations hereunder may be made by any party hereto (by operation of law or otherwise) without the prior written consent of the other party hereto and any attempted assignment without the required consent shall be void.
[Signature Page Follows]
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IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first above written.
BROOGE HOLDINGS LIMITED
By: | /s/ Meclomen Maramot | |
Name: | Meclomen Maramot | |
Title: | Chief Executive Officer |
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Exhibit 4.80
DIVIDEND WAIVER
Reference is hereby made to that certain Business Combination Agreement, dated as of April 15, 2019 (as amended, the “Agreement”), by and among Twelve Seas Investment Company (“Twelve Seas”), Brooge Merger Sub Limited, Brooge Holdings Limited (“Pubco”), Brooge Petroleum And Gas Investment Company FZE, and the Seller party thereto. Capitalized terms used herein but not defined shall have the meanings ascribed to them in the Agreement.
In connection with the closing of the transactions contemplated by the Agreement (the “Closing”), Pubco has announced its intention to declare and pay a dividend in favor of the holders of ordinary shares of par value $0.0001 each of Pubco (“Ordinary Shares”) of $0.25 per Ordinary Share who are holders on or about the last business day of each calendar quarter following the Closing (the “Dividends”), subject to the discretion and approval of Pubco’s board of directors and applicable law, and assuming the Seller, the Sponsor, EarlyBirdCapital, Inc. (“EBC”), the Initial Purchaser Shareholders, and MENA Energy Services Holdings Limited (“MENA”) (collectively the “Waiving Shareholders” and together with Pubco, the “Interested Parties”) agree to waive their rights to receive the Dividends for the first two years following the Closing (the “Waiver Term”)
The undersigned, being a holder of Ordinary Shares upon the Closing, hereby acknowledges and agrees that it hereby irrevocably waives, for the Waiver Term, any and all rights that it may otherwise have to any of the Dividends with respect to (i) the Exchange Shares (including any Escrow Shares to which it otherwise has a direct or indirect interest and any Ordinary Shares received upon conversion of securities held in Seller), (ii) the Ordinary Shares issued in exchange for the Founder Shares, and (iii) the Ordinary Shares issued to EBC and its affiliates in connection with Twelve Seas’ initial public offering (collectively, the “Non-Dividend Shares”).
The undersigned hereby further agrees that upon any sale, transfer, or otherwise disposition of, or hypothecation or other grant of any interest in or to, any of the Non-Dividend Shares prior to the conclusion of the Waiver Term, the transferee must acknowledge in writing that they agree to be bound by the terms of this Dividend Waiver with respect to any Non-Dividend Shares transferred to such transferee.
The undersigned further agrees that a legend may be placed on any certificate representing the Non-Dividend Shares (if any) or instructions placed on Pubco’s transfer agent’s records (including the register of members of Pubco) to record the restrictions set forth in this Dividend Waiver.
No rights, interests, or restrictions hereunder may be amended or released without the prior written consent of Pubco, and any action taken in violation of the foregoing shall be null and void ab initio. This Dividend Waiver inure to the benefit of Pubco and shall be binding on the undersigned and its successors and permitted assigns.
The provisions of this Dividend Waiver shall terminate upon the earliest to occur of (i) the Agreement being terminated in accordance with its terms prior to the Closing, (ii) the expiration of the Waiver Term, and (iii) with respect to the Initial Purchaser Shareholders and EBC, if Pubco and/or the Seller or MENA modify their waiver of the rights to the Dividends in any way. Upon any such termination, (a) this Dividend Waiver shall be null and void and of no effect whatsoever, (b) any restrictive legends on certificates or instructions placed on Pubco’s transfer agent’s records (including the register of members of Pubco) relating to this Dividend Waiver shall be automatically removed (and Pubco shall take all necessary actions to cause such legends and restrictions to be removed), and (c) the undersigned shall have no obligations hereunder.
This Dividend Waiver shall be governed by, construed and enforced in accordance with the Laws of the State of New York without regard to the conflict of laws principles thereof.
Any and all disputes, controversies and claims (other than applications for a temporary restraining order, preliminary injunction, permanent injunction or other equitable relief or application for enforcement of a resolution under this paragraph) arising out of, related to, or in connection with this Dividend Waiver (a “Dispute”) shall be governed by this paragraph. The undersigned must, in the first instance, provide written notice of any Disputes to the other Interested Parties subject to such Dispute, which notice must provide a reasonably detailed description of the matters subject to the Dispute. The Interested Parties involved in such Dispute shall seek to resolve the Dispute on an amicable basis within ten (10) business days of the notice of such Dispute being received by such other Interested Parties subject to such Dispute (the “Resolution Period”); provided, that if any Dispute would reasonably be expected to have become moot or otherwise irrelevant if not decided within sixty (60) days after the occurrence of such Dispute, then there shall be no Resolution Period with respect to such Dispute. Any Dispute that is not resolved during the Resolution Period may immediately be referred to and finally resolved by arbitration pursuant to the then-existing rules and procedures (including any expedited procedures) of the ICC (the “ICC Procedures”). Any Interested Party involved in such Dispute may submit the Dispute to the ICC to commence the proceedings after the Resolution Period. To the extent that the ICC Procedures and this Dividend Waiver are in conflict, the terms of this Dividend Waiver shall control. The arbitration shall be conducted by one arbitrator nominated by the ICC promptly (but in any event within five (5) business days) after the submission of the Dispute to the ICC and reasonably acceptable to each Interested Party subject to the Dispute, which arbitrator shall be a commercial lawyer with substantial experience arbitrating disputes under shareholder and similar agreements. The arbitrator shall accept his or her appointment and begin the arbitration process promptly (but in any event within five (5) business days) after his or her nomination and acceptance by the Interested Parties subject to the Dispute. The proceedings shall be streamlined and efficient. The arbitrator shall decide the Dispute in accordance with the substantive law of the state of New York. Time is of the essence. Each Interested Party subject to the Dispute shall submit a proposal for resolution of the Dispute to the arbitrator within twenty (20) days after confirmation of the appointment of the arbitrator. The arbitrator shall have the power to order any Interested Party subject to the Dispute to do, or to refrain from doing, anything consistent with this Dividend Waiver and applicable Law, including to perform its contractual obligation(s) and providing injunctive and other equitable relief; provided, that the arbitrator shall be limited to ordering pursuant to the foregoing power (and, for the avoidance of doubt, shall order) the relevant Interested Party (or Interested Parties, as applicable) to comply with only one or the other of the proposals. The arbitrator’s award shall be in writing and shall include a reasonable explanation of the arbitrator’s reason(s) for selecting one or the other proposal. The seat of arbitration shall be in London, United Kingdom. The language of the arbitration shall be English.
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THE UNDERSIGNED HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS DIVIDEND WAIVER. THE UNDERSIGNED (A) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER INTERESTED PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER INTERESTED PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT FOREGOING WAIVER OF JURY TRIAL AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS DIVIDEND WAIVER, AND THE OTHER WAIVING SHAREHOLDERS HAVE BEEN INDUCED TO ENTER INTO THEIR RESPECTIVE DIVIDEND WAIVERS, BY AMONG OTHER THINGS, THE MUTUAL WAIVERS BY EACH OTHER WAIVING SHAREHOLDER OF ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS DIVIDEND WAIVER.
Dated: December ___, 2019
Name of Shareholder: ______________________________
By: | ||
Name: | ||
Title: |
3
Exhibit 4.81
|
Twelve Seas Sponsors I LLC
135 E. 57th Street, 8th Floor New York, NY 10022 |
December 20, 2019
CONFIDENTIAL
Twelve Seas Investment Company
135 E. 57th Street, 8th Floor
New York, NY 10022
Re: | Amendment of Promissory Notes |
Dear Sirs;
Twelve Seas Investment Company, a Cayman Islands exempted company (“Maker”), promised to pay to the order of Twelve Seas Sponsors I LLC or its registered assigns or successors in interest or order (“Payee”), the amounts borrowed the certain Promissory Note dated April 4, 2019 (the “$500k Note”) and the certain Promissory Note dated October 21, 2019 (the “$265k Note”), and collectively the “Notes”. The terms of both Notes are contained within the Notes, and any defined terms herein shall have the meaning as provided within the Notes themselves.
The parties hereby agree to amend the $500k Note, as follows:
Section 1. Repayment. The Maturity Date of the $500k Note is amended to be the earlier of (i) the Company’s completion of a follow-on offering of its common stock, or (ii) June 30, 2020. The principal balance may continue to be prepaid at any time, at the election of Maker.
Section 2. Interest. The $500k Note shall continue to be non-interest bearing through the revised Maturity Date.
Section 14. Assignment. Payee shall be permitted to assign the $500k Note.
Section 15. Conversion. This section is hereby deleted, and the $500k Note shall no longer have the option to convert into equity securities of the Company.
The parties hereby agree to amend the $265k Note, as follows:
Section 1. Repayment. The Maturity Date of the $265k Note is amended to be January 31, 2020.
Section 2. Interest. The $265k Note shall continue to be non-interest bearing through the revised Maturity Date.
Section 14. Assignment. Payee shall be permitted to assign the $265k Note.
This agreement shall satisfy the waiver requirements of Section 13 for both Notes with respect to all amendments and consents contained herein.
[Signature page follows]
|
Twelve Seas Sponsors I LLC
135 E. 57th Street, 8th Floor New York, NY 10022 |
Please execute a copy of this letter of intent to signify your agreement with the foregoing.
Sincerely, | |||
TWELVE SEAS SPONSORS I LLC | |||
By: | /s/ Stephen A. Vogel | ||
Name: | Stephen A. Vogel | ||
Title: | Managing Member | ||
By: | /s/ Bryant B. Edwards | ||
Name: | Bryant B. Edwards | ||
Title: | Managing Member |
Agreed to and accepted as of this 20th day of December 2019:
Twelve Seas Investment Company | ||
By: | /s/ Stephen N. Cannon | |
Name: | Stephen N. Cannon | |
Title: | Chief Financial Officer |
Exhibit 4.82
Exhibit 4.83
|
Twelve Seas Sponsors I LLC 135 E. 57th Street, 8th Floor New York, NY 10022 |
December 17, 2019
Brooge Holdings Limited
Re: | Waiver of Earn-Out Provisions |
Ladies and Gentlemen:
This letter is to inform you that Twelve Seas Sponsors I LLC (the “Sponsor”), the sponsor of Twelve Seas Investment Company (“Twelve Seas”), is entering into an agreement with Magnetar Financial LLC (the “Investor”), pursuant to which, among other things, (i) the Investor will purchase 2,000,000 publicly-traded ordinary shares of Twelve Seas (the “Purchased Shares”) at $10.32 per share for an aggregate purchase price of $20,640,000 in a private transaction, (ii) the Investor shall undertake and take actions necessary so that the Purchased Shares will not be redeemed, (iii) the Sponsor will guarantee a rate of return (the “Guaranteed Return”) to the Investor on the Purchased Shares at 15% (compounded annually) having any dividends received by Investor to count towards the Guaranteed Return, and will use all of the Founder Shares and Private Placement Units (the “Collateral Securities”) as collateral for such guarantee, and (iv) the Investor agrees to not sell the Purchase Shares at prices less than $10.32 for the first 12 months, except if sold in an underwritten offering consummated by Brooge Holdings Limited within the first year and the underwriters allowed their shares to be sold in that offering.
We hereby confirm that Brooge Holdings Limited, its directors, officers, and advisors and/or any of its affiliates, subsidiaries, related parties are not held liable to the abovementioned arrangement and are held harmless of any damages, losses or claims which might arise from the execution of such arrangement with the Investor and that the same would be subject to closing our planned business combination pursuant to our Business Combination Agreement.
As you are aware, three-eighths (3/8) of the founder shares (the “Earn-Out Shares”) are currently subject to forfeiture if certain financial or stock price performances are not satisfied within 5 years (the “Benchmarks”). The Investor has asked us to get your agreement that if the Collateral Securities (other than the Earn-Out Shares) are not sufficient to cover the Guaranteed Return (the “Shortage”), then you will waive, with respect to the portion of the Earn-Out Shares necessary to satisfy the Guaranteed Return, the requirement to meet the Benchmarks and release such Earn-Out Shares, subject to the Investor providing you with all supporting documents and calculations proving the Shortage. Any such waiver and release of Earn-Out Shares shall be in proportion with the amount needed to cover the Shortage.
[Signature page follows]
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|
Twelve Seas Sponsors I LLC 135 E. 57th Street, 8th Floor New York, NY 10022 |
Please execute a copy of this letter to signify your agreement with the foregoing.
Sincerely, | |||
TWELVE SEAS SPSORS I LLC | |||
By: | /s/ Stephen A. Vogel | ||
Name: | Stephen A. Vogel | ||
Title: | Managing Member |
By: | /s/ Bryant B. Edwards | ||
Name: | Bryant B. Edwards | ||
Title: | Managing Member |
Agreed to as of this 17 day of December 2019:
BROOGE HOLDINGS LIMITED | |||
By: | /s/ Meclomen Maramot | ||
Name: | Meclomen Maramot | ||
Title: | Director |
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Exhibit 4.84
Exhibit 8.1
Subsidiaries of the Registrant
Name of Subsidiary | Jurisdiction of Organization | |
Brooge Petroleum and Gas Investment Company FZE | Fujairah Free Zone, United Arab Emirates | |
BPGIC International | Cayman Islands |
Exhibit 11.1
Code of Ethics and Business Conduct
of
Brooge Holdings Limited
Adopted: December 13, 2019
1. Introduction
1.1 | The Board of Directors of Brooge Holdings Limited (together with its subsidiaries, the “Company”) has adopted this Code of Ethics and Business Conduct (the “Code”) in order to: |
(a) | promote honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest; |
(b) | promote full, fair, accurate, timely and understandable disclosure in reports and documents that the Company files with, or submits to, the Securities and Exchange Commission (the “SEC”) and in other public communications made by the Company; |
(c) | promote compliance with applicable governmental laws, rules and regulations; |
(d) | promote the protection of Company assets, including corporate opportunities and confidential information; |
(e) | promote fair dealing practices; |
(f) | deter wrongdoing; and |
(g) | ensure accountability for adherence to the Code. |
1.2 | All directors, officers and employees are required to be familiar with the Code, comply with its provisions and report any suspected violations as described below in Section 10, Reporting and Enforcement. |
2. Honest and Ethical Conduct
2.1 | The Company’s policy is to promote high standards of integrity by conducting its affairs honestly and ethically. |
2.2 | Each director, officer and employee must act with integrity and observe the highest ethical standards of business conduct in his or her dealings with the Company’s customers, suppliers, partners, service providers, competitors, employees and anyone else with whom he or she has contact in the course of performing his or her job. |
3. Conflicts of Interest
3.1 | This Section 3 overlaps with and supplements the Company’s separate Related Party Transactions Policy. A copy of the Company’s Related Party Transactions Policy may be obtained from the Corporate Secretary. |
3.2 | A conflict of interest occurs when an individual’s private interest (or the interest of a member of his or her family) interferes, or even appears to interfere, with the interests of the Company as a whole. A conflict of interest can arise when an employee, officer or director (or a member of his or her family) takes actions or has interests that may make it difficult to perform his or her work for the Company objectively and effectively. Conflicts of interest also arise when an employee, officer or director (or a member of his or her family) receives improper personal benefits as a result of his or her position in the Company. |
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3.3 | Loans by the Company to, or guarantees by the Company of obligations of, employees or their family members are of special concern and could constitute improper personal benefits to the recipients of such loans or guarantees, depending on the facts and circumstances. Loans by the Company to, or guarantees by the Company of obligations of, any director or officer or their family members are expressly prohibited. |
3.4 | Whether or not a conflict of interest exists or will exist can be unclear. Conflicts of interest should be avoided unless specifically authorized as described in Section 3.5. |
3.5 | Persons other than directors and executive officers who have questions about a potential conflict of interest or who become aware of an actual or potential conflict should discuss the matter with, and seek a determination and prior authorization or approval from, their supervisor or the Corporate Secretary. A supervisor may not authorize or approve conflict of interest matters or make determinations as to whether a problematic conflict of interest exists without first providing the Corporate Secretary with a written description of the activity and seeking the Corporate Secretary’s written approval. If the supervisor is himself or herself involved in the potential or actual conflict, the matter should instead be discussed directly with the Corporate Secretary. |
3.6 | Directors and executive officers must seek determinations and prior authorizations or approvals of potential conflicts of interest exclusively from the Audit Committee. |
4. Compliance
4.1 | Employees, officers and directors should comply, both in letter and spirit, with all applicable laws, rules and regulations in the cities, states and countries in which the Company operates. |
4.2 | Although not all employees, officers and directors are expected to know the details of all applicable laws, rules and regulations, it is important to know enough to determine when to seek advice from appropriate personnel. Questions about compliance should be addressed to the Corporate Secretary. |
4.3 | No director, officer or employee may purchase or sell any Company securities while in possession of material nonpublic information regarding the Company, nor may any director, officer or employee purchase or sell another company’s securities while in possession of material nonpublic information regarding that company. It is against Company policies and illegal for any director, officer or employee to use material nonpublic information regarding the Company or any other company to: |
(a) | obtain profit for himself or herself; or |
(b) | directly or indirectly “tip” others who might make an investment decision on the basis of that information. |
5. Disclosure
5.1 | The Company’s periodic reports and other documents filed with the SEC, including all financial statements and other financial information, must comply with applicable federal securities laws and SEC rules. |
5.2 | Each director, officer and employee who contributes in any way to the preparation or verification of the Company’s financial statements and other financial information must ensure that the Company’s books, records and accounts are accurately maintained. Each director, officer and employee must cooperate fully with the Company’s accounting and internal audit departments, as well as the Company’s independent public accountants and counsel. Each director, officer and employee who is involved in the Company’s disclosure process must: |
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(a) | be familiar with and comply with the Company’s disclosure controls and procedures and its internal control over financial reporting; and |
(b) | take all necessary steps to ensure that all filings with the SEC and all other public communications about the financial and business condition of the Company provide full, fair, accurate, timely and understandable disclosure. |
6. Protection and Proper Use of Company Assets
6.1 | All directors, officers and employees should protect the Company’s assets and ensure their efficient use. Theft, carelessness and waste have a direct impact on the Company’s profitability and are prohibited. |
6.2 | All Company assets should be used only for legitimate business purposes. Any suspected incident of fraud or theft should be reported for investigation immediately. |
6.3 | The obligation to protect Company assets includes the Company’s proprietary information. Proprietary information includes intellectual property such as trade secrets, patents, trademarks, and copyrights, as well as business and marketing plans, engineering and manufacturing ideas, designs, databases, records and any nonpublic financial data or reports. Unauthorized use or distribution of this information is prohibited and could also be illegal and result in civil or criminal penalties. |
7. Corporate Opportunities
7.1 | All directors, officers and employees owe a duty to the Company to advance its interests when the opportunity arises. Directors, officers and employees are prohibited from taking for themselves personally (or for the benefit of friends or family members) opportunities that are discovered through the use of Company assets, property, information or position. Directors, officers and employees may not use Company assets, property, information or position for personal gain (including gain of friends or family members). In addition, no director, officer or employee may compete with the Company. |
8. Confidentiality
8.1 | Directors, officers and employees should maintain the confidentiality of information entrusted to them by the Company or by its customers, suppliers or partners, except when disclosure is expressly authorized or is required or permitted by law. Confidential information includes all nonpublic information (regardless of its source) that might be of use to the Company’s competitors or harmful to the Company or its customers, suppliers or partners if disclosed. |
9. Fair Dealing
9.1 | Each director, officer and employee must deal fairly with the Company’s customers, suppliers, partners, service providers, competitors, employees and anyone else with whom he or she has contact in the course of performing his or her job. No director, officer or employee may take unfair advantage of anyone through manipulation, concealment, abuse or privileged information, misrepresentation of facts or any other unfair dealing practice. |
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10. Reporting and Enforcement
10.1 Reporting and Investigation of Violations
(a) | Actions prohibited by this Code involving directors or executive officers must be reported to the Audit Committee. |
(b) | Actions prohibited by this Code involving anyone other than a director or executive officer must be reported to the reporting person’s supervisor and/or the Corporate Secretary. |
(c) | After receiving a report of an alleged prohibited action, the Audit Committee, the relevant supervisor or Corporate Secretary must promptly take all appropriate actions necessary to investigate. |
(d) | All directors, officers and employees are expected to cooperate in any internal investigation of misconduct. |
10.2 Enforcement
(a) | The Company must ensure prompt and consistent action against violations of this Code. |
(b) | If, after investigating a report of an alleged prohibited action by a director or executive officer, the Audit Committee determines that a violation of this Code has occurred, the Audit Committee will report such determination to the Board of Directors. |
(c) | If, after investigating a report of an alleged prohibited action by any other person, the relevant supervisor or Corporate Secretary determines that a violation of this Code has occurred, the supervisor or Corporate Secretary will report such determination to the Board of Directors. |
(d) | Upon receipt of a determination that there has been a violation of this Code, the Board of Directors will take such preventative or disciplinary action as it deems appropriate, including, but not limited to, reassignment, demotion, dismissal and, in the event of criminal conduct or other serious violations of the law, notification of appropriate governmental authorities. |
10.3 Waivers
(a) | The Board of Directors may, in its discretion, waive any violation of this Code. |
(b) | Any waiver for a director or an executive officer shall be disclosed as required by SEC and NASDAQ rules. |
10.4 Prohibition on Retaliation
The Company does not tolerate acts of retaliation against any director, officer or employee who makes a good faith report of known or suspected acts of misconduct or other violations of this Code.
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Acknowledgment of Receipt and Review
Acknowledgment of Receipt and Review
To be signed and returned to the Corporate Secretary.
I, _______________________, acknowledge that I have received and read a copy of the Brooge Holdings Limited Code of Ethics and Business Conduct. I understand the contents of the Code and I agree to comply with the policies and procedures set out in the Code.
I understand that I should approach the Corporate Secretary if I have any questions about the Code generally or any questions about reporting a suspected conflict of interest or other violation of the Code.
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Signature | |
Please print name |
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Date |
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Exhibit 15.1
CHARTER OF THE AUDIT COMMITTEE
OF
BROOGE HOLDINGS LIMITED
Membership
The Audit Committee (the “Committee”) of the board of directors (the “Board”) of Brooge Holdings Limited (the “Company”) shall consist of three or more directors. Each member of the Committee shall be independent in accordance with the requirements of Rule 10A-3 of the Securities Exchange Act of 1934 and the rules of the Nasdaq Stock Market. No member of the Committee can have participated in the preparation of the Company’s or any of its subsidiaries’ financial statements at any time during the past three years.
Each member of the Committee must be able to read and understand fundamental financial statements, including the Company’s balance sheet, income statement and cash flow statement. At least one member of the Committee must have past employment experience in finance or accounting, requisite professional certification in accounting or other comparable experience or background that leads to financial sophistication. At least one member of the Committee must be an “audit committee financial expert” as defined in Item 16A of Form 20-F. A person who satisfies this definition of audit committee financial expert will also be presumed to have financial sophistication.
The members of the Committee shall be appointed by the Board. The members of the Committee shall serve for such term or terms as the Board may determine or until earlier resignation or death. The Board may remove any member from the Committee at any time with or without cause.
Purpose
The purpose of the Committee is to oversee the Company’s accounting and financial reporting processes and the audit of the Company’s financial statements.
The primary role of the Committee is to oversee the financial reporting and disclosure process. To fulfill this obligation, the Committee relies on: management for the preparation and accuracy of the Company’s financial statements; both management and the Company’s internal audit department/management for establishing effective internal controls and procedures to ensure the Company’s compliance with accounting standards, financial reporting procedures and applicable laws and regulations; and the Company’s independent auditors for an unbiased, diligent audit or review, as applicable, of the Company’s financial statements and the effectiveness of the Company’s internal controls. The members of the Committee are not employees of the Company and are not responsible for conducting the audit or performing other accounting procedures.
Duties and Responsibilities
The Committee shall have the following authority and responsibilities:
To (1) select and retain an independent registered public accounting firm to act as the Company’s independent auditors for the purpose of auditing the Company’s annual financial statements, books, records, accounts and internal controls over financial reporting, subject to ratification by the Company’s stockholders of the selection of the independent auditors, (2) set the compensation of the Company’s independent auditors, (3) oversee the work done by the Company’s independent auditors and (4) terminate the Company’s independent auditors, if necessary.
To select, retain, compensate, oversee and terminate, if necessary, any other registered public accounting firm engaged for the purpose of preparing or issuing an audit report or performing other audit, review or attest services for the Company.
To approve all audit engagement fees and terms; and to pre-approve all audit and permitted non-audit and tax services that may be provided by the Company’s independent auditors or other registered public accounting firms, and establish policies and procedures for the Committee’s pre-approval of permitted services by the Company’s independent auditors or other registered public accounting firms on an on-going basis.
At least annually, to obtain and review a report by the Company’s independent auditors that describes (1) the accounting firm’s internal quality control procedures, (2) any issues raised by the most recent internal quality control review, peer review or Public Company Accounting Oversight Board review or inspection of the firm or by any other inquiry or investigation by governmental or professional authorities in the past five years regarding one or more audits carried out by the firm and any steps taken to deal with any such issues, and (3) all relationships between the firm and the Company or any of its subsidiaries; and to discuss with the independent auditors this report and any relationships or services that may impact the objectivity and independence of the auditors.
To review and discuss with the Company’s independent auditors (1) the auditors’ responsibilities under generally accepted auditing standards and the responsibilities of management in the audit process, (2) the overall audit strategy, (3) the scope and timing of the annual audit, (4) any significant risks identified during the auditors’ risk assessment procedures and (5) when completed, the results, including significant findings, of the annual audit.
To review and discuss with the Company’s independent auditors (1) all critical accounting policies and practices to be used in the audit; (2) all alternative treatments of financial information within generally accepted accounting principles (“GAAP”) that have been discussed with management, the ramifications of the use of such alternative treatments and the treatment preferred by the auditors; and (3) other material written communications between the auditors and management.
To review with management and the Company’s independent auditors: any major issues regarding accounting principles and financial statement presentation, including any significant changes in the Company’s selection or application of accounting principles; any significant financial reporting issues and judgments made in connection with the preparation of the Company’s financial statements, including the effects of alternative GAAP methods; and the effect of regulatory and accounting initiatives and off-balance sheet structures on the Company’s financial statements.
To keep the Company’s independent auditors informed of the Committee’s understanding of the Company’s relationships and transactions with related parties that are significant to the company; and to review and discuss with the Company’s independent auditors the auditors’ evaluation of the Company’s identification of, accounting for, and disclosure of its relationships and transactions with related parties, including any significant matters arising from the audit regarding the Company’s relationships and transactions with related parties.
2
To review with management, the internal audit department and the Company’s independent auditors the adequacy and effectiveness of the Company’s financial reporting processes, internal control over financial reporting and disclosure controls and procedures, including any significant deficiencies or material weaknesses in the design or operation of, and any material changes in, the Company’s processes, controls and procedures and any special audit steps adopted in light of any material control deficiencies, and any fraud involving management or other employees with a significant role in such processes, controls and procedures, and review and discuss with management and the Company’s independent auditors disclosure relating to the Company’s financial reporting processes, internal control over financial reporting and disclosure controls and procedures, the independent auditors’ report on the effectiveness of the Company’s internal control over financial reporting and the required management certifications to be included in or attached as exhibits to the Company’s annual report on Form 20-F.
To review and discuss with the Company’s independent auditors any other matters required to be discussed by applicable requirements of the PCAOB and the SEC.
To review and discuss with the Company’s independent auditors and management the Company’s annual audited financial statements (including the related notes), the form of audit opinion to be issued by the auditors on the financial statements and the disclosure under “Management’s Discussion and Analysis of Financial Condition and Results of Operations” to be included in the Company’s annual report on Form 20-F before the Form 20-F is filed.
To recommend to the Board that the audited financial statements and the MD&A section be included in the Company’s Form 20-F and whether the Form 20-F should be filed with the SEC; and to produce the audit committee report required to be included in the Company’s proxy statement.
To review, discuss with the Company’s independent auditors, and approve the functions of the Company’s internal audit department, including its purpose, authority, organization, responsibilities, budget and staffing; and to review the scope and performance of the department’s internal audit plan, including the results of any internal audits, any reports to management and management’s response to those reports.
To review and discuss with management and the Company’s independent auditors: the Company’s earnings press releases, including the type of information to be included and its presentation and the use of any pro forma, adjusted or other non-GAAP financial information; and any financial information and earnings guidance provided to analysts and ratings agencies, including the type of information to be disclosed and type of presentation to be made.
To establish and oversee procedures for the receipt, retention and treatment of complaints received by the Company regarding accounting, internal accounting controls or auditing matters and the confidential, anonymous submission by Company employees of concerns regarding questionable accounting or auditing matters.
To monitor compliance with the Company’s Code of Business Conduct and Ethics (the “Code”), to investigate any alleged breach or violation of the Code, and to enforce the provisions of the Code.
3
To review with outside legal counsel, legal and regulatory matters, including legal cases against or regulatory investigations of the Company and its subsidiaries, that could have a significant impact on the Company’s financial statements.
To review, approve and oversee any transaction between the Company and any related person (as defined in Item 404 of Regulation S-K) and any other potential conflict of interest situations on an ongoing basis, in accordance with Company policies and procedures.
Outside Advisors
The Committee shall have the authority, in its sole discretion, to retain and obtain the advice and assistance of independent outside counsel and such other advisors as it deems necessary to fulfill its duties and responsibilities under this Charter. The Committee shall set the compensation, and oversee the work, of any outside counsel and other advisors.
The Committee shall receive appropriate funding from the Company, as determined by the Committee in its capacity as a committee of the Board, for the payment of compensation to the Company’s independent auditors, any other accounting firm engaged to perform services for the Company, any outside counsel and any other advisors to the Committee.
Structure and Operations
The Board shall designate a member of the Committee as the chairperson. The Committee shall meet at least three times a year at such times and places as it deems necessary to fulfill its responsibilities. The Committee shall report regularly to the Board on its discussions and actions, including any significant issues or concerns that arise at its meetings, and shall make recommendations to the Board as appropriate. The Committee is governed by the same rules regarding meetings (including meetings in person or by telephone or other similar communications equipment), action without meetings, notice, waiver of notice, and quorum and voting requirements as are applicable to the Board.
The Committee shall review this Charter at least annually and recommend any proposed changes to the Board for approval.
Delegation of Authority
The Committee shall have the authority to delegate any of its responsibilities, along with the authority to take action in relation to such responsibilities, to one or more subcommittees as the Committee may deem appropriate in its sole discretion.
Performance Evaluation
The Committee shall conduct an annual evaluation of the performance of its duties under this Charter and shall present the results of the evaluation to the Board. The Committee shall conduct this evaluation in such manner as it deems appropriate.
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Exhibit 15.2
CHARTER OF THE COMPENSATION COMMITTEE
OF
BROOGE HOLDINGS LIMITED
Membership
The Compensation Committee (the “Committee”) of the board of directors (the “Board”) of Brooge Holdings Limited (the “Company”) shall consist of three or more directors.
The members of the Committee shall be appointed by the Board shall serve for such term or terms as the Board may determine or until earlier resignation or death. The Board may remove any member from the Committee at any time with or without cause.
Purpose
The purpose of the Committee is to carry out the responsibilities delegated by the Board relating to the review and determination of executive compensation.
Duties and Responsibilities
The Committee shall have the following authority and responsibilities:
To review and approve annually the corporate goals and objectives applicable to the compensation of the chief executive officer (“CEO”), evaluate at least annually the CEO’s performance in light of those goals and objectives, and determine and approve the CEO’s compensation level based on this evaluation. In determining the long-term incentive component of CEO compensation, the Committee may consider the Company’s performance and relative stockholder return, the value of similar incentive awards given to CEOs at comparable companies and the awards given to the Company’s CEO in past years. The Committee’s decisions regarding performance goals and objectives and the compensation of the CEO are reviewed and ratified by all independent directors on the board of the directors. The CEO cannot be present during any voting or deliberations by the Committee on his or her compensation.
To review and approve the compensation of all other executive officers.
To review, and approve and, when appropriate, recommend to the Board for approval, incentive compensation plans and equity-based plans, and where appropriate or required, recommend for approval by the stockholders of the Company, which includes the ability to adopt, amend and terminate such plans. The Committee shall also have the authority to administer the Company’s incentive compensation plans and equity-based plans, including designation of the employees to whom the awards are to be granted, the amount of the award or equity to be granted and the terms and conditions applicable to each award or grant, subject to the provisions of each plan.
To review, and approve and, when appropriate, recommend to the Board for approval, any employment agreements and any severance arrangements or plans, including any benefits to be provided in connection with a change in control, for the CEO and other executive officers, which includes the ability to adopt, amend and terminate such agreements, arrangements or plans.
To review all director compensation and benefits for service on the Board and Board committees at least once a year and to recommend any changes to the Board as necessary.
To oversee, in conjunction with the Board engagement with stockholders and proxy advisory firms on executive compensation matters.
Outside Advisors
The Committee shall have the authority, in its sole discretion, to select, retain and obtain the advice of a compensation consultant as necessary to assist with the execution of its duties and responsibilities as set forth in this Charter. The Committee shall set the compensation, and oversee the work, of the compensation consultant. The Committee shall have the authority, in its sole discretion, to retain and obtain the advice and assistance of outside legal counsel and such other advisors as it deems necessary to fulfill its duties and responsibilities under this Charter. The Committee shall set the compensation, and oversee the work, of its outside legal counsel and other advisors. The Committee shall receive appropriate funding from the Company, as determined by the Committee in its capacity as a committee of the Board, for the payment of compensation to its compensation consultants, outside legal counsel and any other advisors. However, the Committee shall not be required to implement or act consistently with the advice or recommendations of its compensation consultant, legal counsel or other advisor to the compensation committee, and the authority granted in this Charter shall not affect the ability or obligation of the Committee to exercise its own judgment in fulfillment of its duties under this Charter.
In retaining or seeking advice from compensation consultants, outside counsel and other advisors (other than the Company’s in-house counsel), the Committee must take into consideration the factors specified in Nasdaq Stock Market Rule 5605(d)(3)(D). The Committee may retain, or receive advice from, any compensation advisor they prefer, including ones that are not independent, after considering the specified factors. The Committee is not required to assess the independence of any compensation consultant or other advisor that acts in a role limited to consulting on any broad-based plan that does not discriminate in scope, terms or operation in favor of executive officers or directors and that is generally available to all salaried employees or providing information that is not customized for a particular company or that is customized based on parameters that are not developed by the consultant or advisor, and about which the consultant or advisor does not provide advice.
The Committee shall evaluate whether any compensation consultant retained or to be retained by it has any conflict of interest in accordance with Item 407(e)(3)(iv) of Regulation S-K.
Structure and Operations
The Board shall designate a member of the Committee as the chairperson. The Committee shall meet at least three times a year at such times and places as it deems necessary to fulfill its responsibilities. The Committee shall report regularly to the Board regarding its actions and make recommendations to the Board as appropriate. The Committee is governed by the same rules regarding meetings (including meetings in person or by telephone or other similar communications equipment), action without meetings, notice, waiver of notice, and quorum and voting requirements as are applicable to the Board.
2
The Committee may invite such members of management to its meetings as it deems appropriate. However, the Committee shall meet regularly without such members present, and in all cases the CEO and any other such officers shall not be present at meetings at which their compensation or performance is discussed or determined.
The Committee shall review this Charter at least annually and recommend any proposed changes to the Board for approval.
Delegation of Authority
The Committee shall have the authority to delegate any of its responsibilities, along with the authority to take action in relation to such responsibilities, to one or more subcommittees as the Committee may deem appropriate in its sole discretion.
Performance Evaluation
The Committee shall conduct an annual evaluation of the performance of its duties under this charter and shall present the results of the evaluation to the Board. The Committee shall conduct this evaluation in such manner as it deems appropriate.
3
Exhibit 15.6
PRO FORMA COMBINED STATEMENT OF FINANCIAL POSITION AS OF SEPTEMBER 30, 2019
(UNAUDITED)
(A) | (B) | (C) | Reflecting Actual Redemptions, Trust Account Balance, Transaction Costs and 40% Cash Election by Seller upon Closing of Business Combination on December 20, 2019 | |||||||||||||||||
BPGIC | Twelve Seas | Pubco |
Pro Forma
Adjustments |
Pro Forma
Balance Sheet |
||||||||||||||||
ASSETS | ||||||||||||||||||||
Non-current assets | ||||||||||||||||||||
Property, plant and equipment | $ | 205,919,914 | $ | — | $ | — | $ | — | $ | 205,919,914 | ||||||||||
Advance to contractors | 29,377,827 | — | — | — | 29,377,827 | |||||||||||||||
Cash and securities held in Trust Account | — | 212,845,645 | — | (212,845,645 | )(1) | — | ||||||||||||||
Total non-current assets | 235,297,741 | 212,845,645 | — | (212,845,645 | ) | 235,297,741 | ||||||||||||||
Inventories | 175,030 | — | — | — | 175,030 | |||||||||||||||
Trade receivables, prepayments and other receivables | 4,613,412 | 20,133 | — | — | 4,633,545 | |||||||||||||||
Bank balances and cash | 6,731,829 | 43,368 | — | 213,558,637 | (1) | 26,571,535 | ||||||||||||||
(1,624,640 | )(2) | |||||||||||||||||||
(819,595 | )(3) | |||||||||||||||||||
(175,357,237 | )(4) | |||||||||||||||||||
(13,225,827 | )(7) | |||||||||||||||||||
(3,000,000 | )(8) | |||||||||||||||||||
265,000 | (9) | |||||||||||||||||||
Total Current Assets | 11,520,271 | 63,501 | — | 19,796,338 | 31,380,110 | |||||||||||||||
TOTAL ASSETS | $ | 246,818,012 | $ | 212,909,146 | $ | — | $ | (193,049,307 | ) | $ | 266,677,851 |
PRO FORMA COMBINED STATEMENT OF FINANCIAL POSITION AS OF SEPTEMBER 30, 2019
(UNAUDITED)
(A) | (B) | (C) | Reflecting Actual Redemptions, Trust Account Balance, Transaction Costs and 40% Cash Election by Seller upon Closing of Business Combination on December 20, 2019 | |||||||||||||||||
BPGIC | Twelve Seas | Pubco |
Pro Forma
Adjustments |
Pro Forma
Balance Sheet |
||||||||||||||||
EQUITY AND LIABILITIES | ||||||||||||||||||||
Equity: | ||||||||||||||||||||
Preferred shares, $0.0001 par value; 2,000,000 shares authorized; no shares issued and outstanding | $ | — | $ | — | $ | — | $ | — | $ | — | ||||||||||
Ordinary shares, $0.0001 par value; 200,000,000 shares authorized; 6,120,045 shares (excluding 20,658,955 shares subject to possible redemption) and 6,351,330 shares (excluding 20,427,670 shares subject to possible redemption) outstanding at September 30, 2019 and December 31, 2018, respectively | — | 612 | — | (104 | )(5) | (9,152 | ) | |||||||||||||
212 | (6) | |||||||||||||||||||
(9,872 | )(7) | |||||||||||||||||||
Share capital | 1,361,285 | — | 1 | (1,361,286 | )(7) | — | ||||||||||||||
Owners’ accounts | 80,363,942 | — | — | — | 80,363,942 | |||||||||||||||
Share subscription receivable | — | — | (1 | ) | 1 | (7) | — | |||||||||||||
Additional
paid-in
capital |
— | 881,714 | — | 31,232,313 | (4) | 24,376,924 | ||||||||||||||
104 | (5) | |||||||||||||||||||
(212 | )(6) | |||||||||||||||||||
(7,736,995 | )(7) | |||||||||||||||||||
Statutory reserve | 680,643 | — | — | — | 680,643 | |||||||||||||||
Retained earnings (accumulated losses) | 23,171,540 | 4,117,675 | (128,098 | ) | 712,992 | (1) | 17,631,794 | |||||||||||||
(1,624,640 | )(2) | |||||||||||||||||||
(4,117,675 | )(7) | |||||||||||||||||||
(4,500,000 | )(8) | |||||||||||||||||||
Total equity | 105,577,410 | 5,000,001 | (128,098 | ) | 12,594,838 | 123,044,151 |
2
PRO FORMA COMBINED STATEMENT OF FINANCIAL POSITION AS OF SEPTEMBER 30, 2019
(UNAUDITED) (Continued)
(A) | (B) | (C) | Reflecting Actual Redemptions, Trust Account Balance, Transaction Costs and 40% Cash Election by Seller upon Closing of Business Combination on December 20, 2019 | |||||||||||||||||
BPGIC | Twelve Seas | Pubco |
Pro Forma
Adjustments |
Pro Forma
Balance Sheet |
||||||||||||||||
Noncurrent liabilities: | ||||||||||||||||||||
Provision for employees’ end of service benefits | 9,485 | — | — | — | 9,485 | |||||||||||||||
Lease liability | 28,163,824 | — | — | — | 28,163,824 | |||||||||||||||
Ordinary shares subject to possible redemption | — | 206,589,550 | * | — | (206,589,550 | )(4) | — | |||||||||||||
Total non-current liabilities | 28,173,309 | 206,589,550 | — | (206,589,550 | ) | 28,173,309 | ||||||||||||||
Current liabilities: | ||||||||||||||||||||
Accounts payable, accruals and other payables | 16,497,132 | 185,620 | 128,098 | (185,620 | )(3) | 16,625,230 | ||||||||||||||
Deferred legal fees | — | 562,303 | — | (562,303 | )(3) | — | ||||||||||||||
Deferred business marketing fees | — | — | — | 1,500,000 | (8) | 1,500,000 | ||||||||||||||
Due to related parties | — | 71,672 | — | (71,672 | )(3) | — | ||||||||||||||
Sponsor loans | — | 500,000 | — | 265,000 | (9) | 765,000 | ||||||||||||||
Term loans | 92,559,028 | — | — | — | 92,559,028 | |||||||||||||||
Derivative financial instruments | 1,674,676 | — | — | — | 1,674,676 | |||||||||||||||
Lease liability | 2,336,457 | — | — | — | 2,336,457 | |||||||||||||||
Total current liabilities | 113,067,293 | 1,319,595 | 128,098 | 945,405 | 115,460,391 | |||||||||||||||
Commitments and Contingencies | ||||||||||||||||||||
TOTAL LIABILITIES | 141,240,602 | 207,909,145 | 128,098 | (205,644,145 | ) | 143,633,700 | ||||||||||||||
TOTAL EQUITY AND LIABILITIES | $ | 246,818,012 | $ | 212,909,146 | $ | — | $ | (193,049,307 | ) | $ | 266,677,851 |
3
Pro Forma Adjustments to the Unaudited Combined Statement of Financial Position
(A) | Derived from the unaudited statement of financial position of BPGIC as of June 30, 2019. |
(B) | Derived from the unaudited balance sheet of Twelve Seas as of September 30, 2019, as adjusted for the reclassification of Twelve Seas’ ordinary shares subject to Redemption as non-current liabilities under IFRS due to the nature of the ordinary shares subject to Redemption. |
(C) | Derived from the audited consolidated statement of financial position of Pubco as of June 30, 2019. |
(1) | To reflect income earned from the trust account and the release of cash from investments held in the trust account. |
(2) | To record the payment of professional fees related to the Merger. |
(3) | To record the payment of accounts payable, deferred legal fees, and advances from related parties. |
(4) | To reflect actual redemption of 16,997,181 shares into cash by Twelve Seas stockholders on consummation of the Merger at an approximate redemption price of $10.32 per share. |
(5) | To reflect the cancellation of 1,035,000 Founder Shares. |
(6) | To reflect the issuance of shares converted from rights on consummation of the Merger. |
(7) | To reflect 40% Cash Election by the Seller and recapitalization of BPGIC through the contribution of the share capital in BPGIC to Twelve Seas and the issuance of 98,718,035 shares of Common Stock and the elimination of the historical accumulated deficit of Twelve Seas, the accounting acquiree. |
(8) | To reflect the partial payment of the final business marketing fees and deferral of the remaining portion. |
(9) | To reflect the actual amount of sponsor loan that was drawn down in pursuant to the unsecured promissory note issued by Twelve Seas to the Sponsor on October 21, 2019. |
4
PRO FORMA COMBINED STATEMENT OF PROFIT OR LOSS
NINE MONTHS ENDED SEPTEMBER 30, 2019
(UNAUDITED)
(A) | (B) | (C) | Reflecting Actual Redemptions, Trust Account Balance, Transaction Costs and 40% Cash Election by Seller upon Closing of Business Combination on December 20, 2019 | |||||||||||||||||
BPGIC | Twelve Seas | Pubco |
Pro Forma
Adjustments |
Pro Forma
Income Statement |
||||||||||||||||
Revenue | $ | 33,064,659 | $ | — | $ | — | $ | — | $ | 33,064,659 | ||||||||||
Direct costs | 7,419,783 | — | — | — | 7,419,783 | |||||||||||||||
Gross profit (loss) | 25,644,876 | — | — | — | 25,644,876 | |||||||||||||||
General and administrative expenses | 1,702,949 | 1,304,512 | 128,098 | (1,077,841 | )(2) | 2,057,718 | ||||||||||||||
Changes in fair value of derivative financial instruments | 1,674,676 | — | — | — | 1,674,676 | |||||||||||||||
Finance costs | 5,260,677 | — | — | — | 5,260,677 | |||||||||||||||
Dividend Income | — | 2,000,881 | — | — | 2,000,881 | |||||||||||||||
Interest income | — | 1,616,472 | — | (1,616,472 | )(1) | — | ||||||||||||||
Net income (loss) | $ | 17,006,574 | $ | 2,312,841 | $ | (128,098 | ) | $ | (538,631 | ) | $ | 18,652,686 | ||||||||
Weighted average shares outstanding | ||||||||||||||||||||
basic and diluted | 26,729,000 | 1 | 87,985,254 | |||||||||||||||||
Net income (loss) per share basic and diluted | $ | $ | 0.09 | $ | (128,098 | ) | $ | 0.21 |
Forma
Adjustments to the Unaudited Combined Statement of Profit or Loss
(In USD thousands, except share and per share amounts)
(A) | Derived from the unaudited statement of profit or loss of BPGIC for the nine months ended June 30, 2019. |
(B) | Derived from the unaudited statement of operations of Twelve Seas for the period from January 1, 2019 through September 30, 2019. |
(C) | Derived from the audited consolidated statement of comprehensive income of Pubco for the period from Pubco’s inception on April 12, 2019 to June 30, 2019. |
(1) | Represents an adjustment to eliminate interest income held in the Trust Account as of the beginning of the period. |
(2) | Represents an adjustment to eliminate direct costs related to the Merger. |
5
PRO
FORMA COMBINED STATEMENT OF PROFIT OR LOSS
YEAR ENDED DECEMBER 31, 2018
(UNAUDITED)
(A) | (B) | Reflecting Actual Redemptions, Trust Account Balance, Transaction Costs and 40% Cash Election by Seller upon Closing of Business Combination on December 20, 2019 | ||||||||||||||
BPGIC | Twelve Seas |
Pro Forma
Adjustments |
Pro Forma
Income Statement |
|||||||||||||
Revenue | $ | 35,839,268 | $ | — | $ | — | $ | 35,839,268 | ||||||||
Direct costs | 9,607,360 | — | — | 9,607,360 | ||||||||||||
Gross profit (loss) | 26,231,908 | — | — | 26,231,908 | ||||||||||||
General and administrative expenses | 2,029,260 | 394,961 | (54,322 | )(2) | 2,369,899 | |||||||||||
Changes in fair value of derivative financial instruments | 1,190,073 | — | — | 1,190,073 | ||||||||||||
Finance costs | 6,951,923 | — | — | 6,951,923 | ||||||||||||
Interest income | — | 2,228,308 | (2,228,308 | )(1) | — | |||||||||||
Net income (loss) | $ | 16,060,652 | $ | 1,833,347 | $ | (2,173,986 | ) | $ | 15,720,013 | |||||||
Weighted average shares outstanding | ||||||||||||||||
basic and diluted | 16,197,597 | 85,628,070 | ||||||||||||||
Net income (loss) per share basic and diluted | $ | $ | 0.11 | $ | 0.18 |
Pro
Forma Adjustments to the Unaudited Combined Statement of Profit or Loss
(In USD thousands, except share and per share amounts)
(A) | Derived from the audited statement of comprehensive income of BPGIC for the year ended December 31, 2018. |
(B) | Derived from the audited statement of operations of Twelve Seas for the year ended December 31, 2018. |
(1) | Represents an adjustment to eliminate interest income held in the Trust Account as of the beginning of the period. |
(2) | Represents an adjustment to eliminate direct costs related to the Merger. |
6
Weighted average shares outstanding-basic and diluted are calculated as follows:
For the nine months ended September 30, 2019
Reflecting Actual Redemptions, Trust Account Balance, Transaction Costs and 40% Cash Election by Seller upon Closing of Business Combination on December 20, 2019 | ||||
Unaudited | ||||
Weighted average shares calculation, basic and diluted | ||||
Twelve Seas weighted average shares outstanding | 26,729,000 | |||
Twelve Seas forfeited Sponsor shares | (1,035,000 | ) | ||
Twelve Seas Sponsor shares put in escrow | (1,552,500 | ) | ||
Twelve Seas rights converted to shares | 2,122,900 | |||
Twelve Seas shares redeemed by cash | (16,997,181 | ) | ||
Twelve Seas shares issued in the Merger | 78,718,035 | |||
Weighted average shares outstanding | 87,985,254 | |||
Percent of shares owned by BPGIC’s holders | 89.47 | % | ||
Percent of shares owned by Twelve Seas shareholders | 10.53 | % |
Reflecting Actual Redemptions, Trust Account Balance, Transaction Costs and 40% Cash Election by Seller upon Closing of Business Combination on December 20, 2019 | ||||
Unaudited | ||||
Weighted average shares calculation, basic and diluted | ||||
Existing BPGIC holders | 78,718,035 | |||
Twelve Seas holders | 9,267,219 | |||
Weighted average shares outstanding | 87,985,254 |
7
Weighted average shares outstanding-basic and diluted are calculated as follows:
For the year ended December 31, 2018
Reflecting Actual Redemptions, Trust Account Balance, Transaction Costs and 40% Cash Election by Seller upon Closing of Business Combination on December 20, 2019 | ||||
Unaudited | ||||
Weighted average shares calculation, basic and diluted | ||||
Twelve Seas weighted average shares outstanding | 16,197,597 | |||
Twelve Seas forfeited Sponsor shares | (969,164 | ) | ||
Twelve Seas Sponsor shares put in escrow | (1,453,747 | ) | ||
Twelve Seas rights converted to shares | 2,122,900 | |||
Twelve Seas shares redeemed by cash | (8,987,551 | ) | ||
Twelve Seas shares issued in the Merger | 78,718,035 | |||
Weighted average shares outstanding | 85,628,070 | |||
Percent of shares owned by BPGIC’s holders | 91.93 | % | ||
Percent of shares owned by Twelve Seas shareholders | 8.07 | % |
Reflecting Actual Redemptions, Trust Account Balance, Transaction Costs and 40% Cash Election by Seller upon Closing of Business Combination on December 20, 2019 | ||||
Unaudited | ||||
Weighted average shares calculation, basic and diluted | ||||
Existing BPGIC holders | 78,718,035 | |||
Twelve Seas holders | 6,910,035 | |||
Weighted average shares outstanding | 85,628,070 |
8