Exhibit 4.9
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 20-F
(Mark One)
| ☐ | REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934 |
OR
| ☐ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended__________________
OR
| ☐ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
OR
| ☒ | SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Date of event requiring this shell company report: March 27, 2024
For the transition period from ____________________________ to ___________________________
Commission File Number: 333-275972
Logistic Properties of the Americas
(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) |
601 Brickell Key Drive
Suite 700
Miami, FL 33131
(Address of principal executive offices)
Esteban Saldarriaga, Chief Executive Officer
Plaza Tempo, Edificio B
Oficina B1, Piso 2
San Rafael de Escazú,
San José, Costa Rica
+506 2204 7020
(Name, Telephone, E-mail and/or Facsimile number and Address of Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbols | Name of each exchange on which registered | ||
| Ordinary Shares, par value $.0001 per share | LPA | NYSE American |
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: As of March 28, 2024, the issuer had 31,709,747 ordinary shares outstanding.
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. Yes ☐ No ☐
Note – Checking the box above will not relieve any registrant required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 from their obligations under those Sections.
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☐ No ☒
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth company. See definition of “large accelerated filer,” “accelerated filer,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ |
| Non-accelerated filer | ☒ | Emerging growth company | ☒ |
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 13(a) of the Exchange Act. ☐
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
☐ U.S. GAAP
☒ International Financial Reporting Standards as issued by the International Accounting Standards Board
☐ Other
If “Other” has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to follow. Item 17 ☐ Item 18 ☐
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☐
TABLE OF CONTENTS
| EXPLANATORY NOTE | 3 |
| CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS | 4 |
| PART I | 5 |
| Item 1. Identity of Directors, Senior Management and Advisers | 5 |
| Item 2. Offer Statistics and Expected Timetable | 5 |
| Item 3. Key Information | 5 |
| Item 4. Information on the Company | 6 |
| Item 4A. Unresolved Staff Comments | 7 |
| Item 5. Operating and Financial Review and Prospects | 7 |
| Item 6. Directors, Senior Management and Employees | 7 |
| Item 7. Major Shareholders and Related Party Transactions | 8 |
| Item 8. Financial Information | 9 |
| Item 9. The Offer and Listing | 9 |
| Item 10. Additional Information | 9 |
| Item 11. Quantitative and Qualitative Disclosures About Market Risk | 10 |
| Item 12. Description of Securities Other Than Equity Securities | 10 |
| PART II | 11 |
| Item 13. Defaults, Dividend Arrearages and Delinquencies | |
| Item 14. Material Modifications to the Rights of Security Holders and Use of Proceeds | |
| Item 15. Controls and Procedures | |
| Item 16. [Reserved] | |
| Item 16A. Audit committee financial expert | |
| Item 16B. Code of Ethics | |
| Item 16C. Principal Accountant Fees and Services | |
| Item 16D. Exemption from the Listing Standards for Audit Committees | |
| Item 16E. Purchases of Equity Securities by the Issuer and Affiliated Purchasers | |
| Item 16F. Change in Registrant’s Certifying Accountant | |
| Item 16G. Corporate Governance | |
| Item 16H. Mine Safety Disclosure | |
| Item 16I. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections | |
| Item 16J. Insider trading policies | |
| Item 16K. Cybersecurity | |
| PART III | 12 |
| Item 17. Financial Statements | 12 |
| Item 18. Financial Statements | 12 |
| Item 19. Exhibits | 13 |
| 2 |
On March 27, 2024 (the “Closing Date”), Logistic Properties of the Americas, a Cayman Islands exempted company (“LPA” or the “Company”), consummated the previously announced business combination pursuant to the Business Combination Agreement, dated as of August 15, 2023 (as amended, supplemented, and/or restated from time to time) (the “Business Combination Agreement”), by and among two, a Cayman Islands exempted company (“TWOA”), LatAm Logistic Properties, S.A., a company incorporated under the laws of Panama (together with its successors, “LLP”), and, by a joinder agreement, each of the Company, Logistic Properties of the Americas Subco, a Cayman Islands exempted company and a wholly-owned subsidiary of the Company (“SPAC Merger Sub”), and LPA Panama Group Corp., a company incorporated under the laws of Panama and a wholly-owned subsidiary of the Company (“Company Merger Sub”) (the “Business Combination”).
Pursuant to the Business Combination Agreement, on the terms and subject to the conditions set forth therein, on the Closing Date (i) SPAC Merger Sub merged with and into TWOA, with TWOA surviving the merger (the “SPAC Merger”) and, in connection therewith, each issued and outstanding security of TWOA immediately prior to the effective time of the Mergers (as defined below) (the “Effective Time”) was automatically canceled and deemed no longer outstanding, in exchange for the right of the of each holder thereof to receive a substantially equivalent security of the Company, par value $0.0001 per share (the “LPA Ordinary Shares”), which were issued in favor of TWOA shareholders collectively in an aggregate amount of 3,897,747 LPA Ordinary Shares, not including the PIPE Shares (as defined below); (ii) Company Merger Sub merged with and into LLP, with LLP surviving the merger (the “Company Merger,” and, together with the SPAC Merger, the “Mergers”) and, in connection therewith, each issued and outstanding security of LLP immediately prior to the Effective Time of the Mergers was automatically cancelled and deemed no longer outstanding, in exchange for the right of each holder thereof to receive LPA Ordinary Shares, which were issued in favor of LLP shareholders collectively in an aggregate amount of 26,312,000 LPA Ordinary Shares; and (iii) as a result of the Mergers, TWOA and LLP each became wholly-owned subsidiaries of the Company and LPA Ordinary Shares were listed on NYSE American (“NYSE American”), all upon satisfaction or waiver of the terms and conditions set forth in the Business Combination Agreement, the documents and agreements ancillary to the Business Combination Agreement (the “Ancillary Documents”), and in accordance with applicable law (collectively, the “Transactions”), including, as described under Item 4 of this Report, LLP and LPA’s waiver of the Minimum Cash Condition (as defined herein), as described herein.
On February 16, 2024, TWOA entered into a subscription agreement (the “PIPE Subscription Agreement”) with Bonaventure Investments Holding Inc. (such investor and its permitted successors and assigns, the “Subscriber”) to purchase 1,500,000 TWOA Class A Ordinary Shares (the “PIPE Shares”) at a price of $10.00 per share, for an aggregate purchase price of $15,000,000, in a private placement (the “PIPE Investment”) that was consummated at the Effective Time. The PIPE Shares were converted into 1,500,000 LPA Ordinary Shares in connection with the Mergers.
In connection with the Extraordinary General Meeting of TWOA’s shareholders held on March 25, 2024 (the “Extraordinary General Meeting”), certain TWOA public shareholders exercised their redemption rights in connection with the Business Combination for an aggregate payment of $44,142,847, and as a result, as of the Effective Time of the Mergers, the TWOA public shareholders owned approximately 0.3% of the LPA Ordinary Shares, HC PropTech Partners III LLC, a Delaware limited liability company (the “Sponsor”), initial shareholders of TWOA and other holders of TWOA founder shares owned approximately 12.0% of the LPA Ordinary Shares, the LLP shareholders owned approximately 83.0% of the LPA Ordinary Shares and the Subscriber owned approximately 4.7% of the LPA Ordinary Shares.
Moreover, certain other related agreements were entered into in connection with the Business Combination, including the Voting Agreement, Founder Registration Rights Agreement Amendment, Sponsor Letter Agreement, Amendment to Insider Letter Agreement, and PIPE Subscription Agreement, each as defined in the Company’s Registration Statement on Form F-4 (File No. 333-275972), as amended, initially filed with the U.S. Securities and Exchange Commission (the “SEC”) on December 8, 2023 and declared effective on March 12, 2024 (the “Form F-4”). As described in the Form F-4, certain other related agreements were entered into in connection with the consummation of the Business Combination, including the Registration Rights Agreement, the Amendment to the Founder Registration Rights Agreement, and the Second Amendment to the Letter Agreement, each of which are filed as exhibits to this Report, as well as certain agreements described under the heading “Recent Developments” in Item 4 of this Report.
The transaction was unanimously approved by the board of directors of TWOA and was approved at the Extraordinary General Meeting. TWOA’s shareholders also voted to approve all other proposals presented at the Extraordinary General Meeting. As a result of the Business Combination, LLP and TWOA became wholly-owned direct subsidiaries of the Company. On March 28, 2024, the LPA Ordinary Shares commenced trading on the NYSE American under the symbol “LPA.”
Except as otherwise indicated or required by context, references in this Shell Company Report on Form 20-F (including information incorporated herein by reference, the “Report”) to (i) “we,” “us,” “our,” “Company” or “LPA” refer to Logistic Properties of the Americas, a Cayman Islands exempted company, and its consolidated subsidiaries, (ii) “TWOA” refers to two, a Cayman Island exempted company, and (iii) “LLP” refers to LatAm Logistic Properties, S.A., a company incorporated under the laws of Panama.
Certain amounts that appear in this Report may not sum due to rounding.
| 3 |
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Report and the documents incorporated herein by reference include forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Forward-looking statements relate to, among other things, our plans, objectives and expectations for our business, operations and financial performance and condition, and can be identified by terminology such as “plan,” “believe,” “expect,” “anticipate,” “intend,” “outlook,” “estimate,” “forecast,” “project,” “continue,” “could,” “may,” “might,” “possible,” “potential,” “predict,” “should,” “would,” “will,” “seek,” and other similar words and expressions, but the absence of these words does not mean that a statement is not forward-looking. Forward-looking statements are based on management’s beliefs and assumptions and on information currently available to management. Although we believe that the expectations reflected in forward-looking statements are reasonable, such statements involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by forward-looking statements.
Forward-looking statements may include, but are not limited to, statements about:
| ● | expectations regarding (and LPA’s ability to meet expectations regarding) LPA’s strategies and future financial performance, including LPA’s future business plans or objectives, operating expenses, market trends, revenues, liquidity, cash flows and uses of cash, capital expenditures, and |
| ● | LPA’s ability to invest in growth initiatives; |
| ● | the outcome of any legal proceedings that may be instituted against TWOA, LLP, LPA and others following consummation of the Business Combination Agreement; |
| ● | the ability of LLP and LPA to raise financing in the future and comply with restrictive covenants related to indebtedness; |
| ● | the ability to recognize the anticipated benefits of the Business Combination, which may be affected by, among other things, competition, LPA’s ability to grow and manage growth and profitability, maintain relationships with customers and suppliers and retain its management team and key employees; |
| ● | the projected financial information, anticipated growth rate, and market opportunity for LPA, and its estimates of expenses and profitability; |
| ● | LPA’s ability to maintain its listing on NYSE American following the Business Combination; |
| ● | geopolitical risk, including the impacts of the ongoing conflict between Russia and Ukraine, and changes in applicable laws or regulations; |
| ● | anticipated economic, business, and/or competitive factors; |
| ● | anticipations regarding the impact of any major disease or epidemic that disrupts LPA’s business; |
| ● | litigation and regulatory enforcement risks, including the diversion of management time and attention and the additional costs and demands on LPA’s resources; |
| ● | exchange rate instability; |
| ● | the possibility that expansion of LPA’s customer offerings or certain operations may subject it to additional legal and regulatory requirements, including tort liability; |
| ● | LPA’s ability to retain and grow its customer base; |
| ● | LPA’s success in finding and maintaining future strategic partnerships and inorganic opportunities; |
| ● | the potential liquidity and trading of public securities of LPA; |
| ● | the ability of LPA to respond to general economic conditions; |
| ● | expansion and other plans and opportunities of LPA; |
| ● | any downturn in the real estate industry; |
| ● | the ability of LPA to manage its growth effectively; |
| ● | the ability of LPA to develop and protect its brand; and |
| ● | the ability of LPA to compete with competitors in existing and new markets and offerings. |
Forward-looking statements are subject to known and unknown risks and uncertainties and are based on potentially inaccurate assumptions that could cause actual results to differ materially from those expected or implied by the forward-looking statements. Actual results could differ materially from those anticipated in forward-looking statements for many reasons, including the factors discussed under the “Risk Factors” section of this Report and the “Risk Factors” section in the Form F-4, which section is incorporated herein by reference. Accordingly, you should not rely on these forward- looking statements, which speak only as of the date of this Report. We undertake no obligation to publicly revise any forward-looking statement to reflect circumstances or events after the date of this Report or to reflect the occurrence of unanticipated events. You should, however, review the factors and risks described in the reports we will file from time to time with the SEC after the date of this Report.
| 4 |
Item 1. Identity of Directors, Senior Management and Advisers
A. Directors and Senior Management
The directors and executive officers of the Company are set forth in the Form F-4, in the section titled “Management of Pubco Following the Business Combination,” and under Item 6.A of this Report, which are incorporated herein by reference. The business address for each of the Company’s directors and executive officers is Plaza Tempo, Edificio B Oficina B1, Piso 2 San Rafael de Escazú, San José, Costa Rica.
B. Advisers
Baker & McKenzie LLP has acted as U.S. securities counsel for LLP and the Company and continues to act as U.S. securities counsel for the Company following the completion of the Business Combination.
Ogier (Cayman) LLP has acted as counsel for LLP and the Company with respect to Cayman Islands law and continues to act as counsel for the Company with respect to Cayman Islands law following the completion of the Business Combination.
C. Auditors
WithumSmith+Brown, PC has acted as TWOA’s independent registered public accounting firm as of and for the years ended December 31, 2023 and 2022.
Deloitte & Touche, S.A. has acted as LLP’s independent registered public accounting firm as of and for the years ended December 31, 2022 and 2021. We intend to retain Deloitte & Touche, S.A. as the Company’s independent registered public accounting firm.
Item 2. Offer Statistics and Expected Timetable
Not applicable.
A. [Reserved]
B. Capitalization and Indebtedness
The following table sets forth the capitalization of the Company on an unaudited pro forma combined basis as of September 30, 2023, after giving effect to the Business Combination and the PIPE Investment:
Capitalization of the Company on an unaudited pro forma combined basis as of September 30, 2023.
| (USD in thousands) | As of September 30, 2023 | |||
| Short-term debt | - | |||
| Long term debt – current portion | $ | 10,543 | ||
| Total short-term debt | 10,543 | |||
| Long-term debt | 224,145 | |||
| Total debt | $ | 234,688 | ||
| Shareholders’ equity | ||||
| Common shares | $ | 3 | ||
| Share premium | 212,507 | |||
| Retained earnings | 16,955 | |||
| Foreign currency translation reserve | (19,790 | ) | ||
| Total shareholders’ equity | $ | 209,675 | ||
| Non-controlling interests | 35,431 | |||
| Total equity | $ | 245,106 | ||
| Total capitalization | $ | 479,794 | ||
C. Reasons for the Offer and Use of Proceeds
Not applicable.
D. Risk Factors
The risk factors associated with the Company and LLP are described in the Form F-4 in the section titled “Risk Factors,” which is incorporated herein by reference.
| 5 |
Item 4. Information on the Company
A. History and Development of the Company
LPA was incorporated as an exempted company with limited liability under the laws of the Cayman Islands on October 9, 2023. For further information on the Business Combination, see “Explanatory Note” above. The mailing address of the Company’s registered office is c/o Ogier Global (Cayman) Limited, 89 Nexus Way, Camana Bay, Grand Cayman, KY1-9009, Cayman Islands and its telephone number is +1 506 2204-7020. The Company’s principal executive office address is 601 Brickell Key Drive, Suite 700, Miami, FL 33131 and its chief administrative office is Plaza Tempo, Edificio B Oficina B1, Piso 2 San Rafael de Escazú, San José, Costa Rica.
The history and development of the Company and the material terms of the Business Combination are described in the Form F-4 under the headings “Summary of the Proxy Statement/Prospectus,” “Information Related to Pubco,” “Description of Pubco Securities,” and “Proposal 1: The Business Combination Proposal – The Business Combination Agreement,” which are incorporated herein by reference. The Company owns no material assets other than its equity interests in its wholly-owned subsidiaries, TWOA and LLP.
The history and development of LLP are described in the Form F-4 under the heading “Information About LLP” which is incorporated herein by reference.
The Company’s principal website address is lpamericas.com. We do not incorporate the information contained on, or accessible through, the Company’s websites into this Report, and you should not consider it a part of this Report. The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. The SEC’s website is http://www.sec.gov.
B. Business Overview
Prior to the closing of the Business Combination, the Company did not conduct any material activities other than those incidental to its formation and the matters contemplated by the Business Combination Agreement, such as the making of certain required securities law filings. Following and as a result of the Business Combination, all of the Company’s business is conducted through LLP. A description of LLP’s business is included in the Form F-4 under the headings “Information About LLP,” “LLP Industry and Market Overview,” and “Management’s Discussion and Analysis to Financial Condition and Results of Operations of LLP,” which are incorporated herein by reference.
C. Organizational Structure
Upon consummation of the Business Combination, each of LLP and TWOA became wholly-owned direct subsidiaries of LPA. The organizational chart of LPA is included in the Form F-4 under the heading “Proposal 1: The Business Combination Proposal – The Business Combination Agreement – Organizational Structure – Structure of Pubco after the Business Combination” and is incorporated herein by reference.
D. Property, Plants and Equipment
The Company’s property, plants and equipment are held through LLP and its subsidiaries. Information regarding LLP’s property, plants and equipment is described in the Form F-4 under the heading “Information About LLP” which information is incorporated herein by reference.
Recent Developments
Waiver of the Minimum Cash Condition and Cancellation of Certain TWOA Founder Shares
Pursuant to the Business Combination Agreement, the parties thereto agreed that upon closing of the Business Combination, the SPAC Cash (as defined in the Business Combination Agreement) shall equal or exceed twenty-five million U.S. Dollars ($25,000,000) (the “Minimum Cash Condition”). Pursuant to a waiver letter dated as of March 27, 2024, between TWOA, LLP and LPA and filed as Exhibit 4.2 to this Report, (the “Waiver Letter”), LLP and LPA waived certain closing conditions, including the Minimum Cash Condition.
Pursuant to certain non-redemption agreements (the “Non-Redemption Agreements”) among certain shareholders of TWOA (the “NRA Investors”), TWOA, and two sponsor, prior to the consummation of the Business Combination, the NRA Investors had a right to receive an aggregate of 1,506,764 Class B Ordinary Shares of TWOA upon the consummation of the Business Combination. Pursuant to certain forfeiture agreements, the NRA Investors forfeited their right to receive an aggregate of 365,441 of such Class B Ordinary Shares of TWOA. Upon the consummation of the Business Combination, the NRA Investors received an aggregate of 1,141,323 TWOA Class B Ordinary Shares which were converted into 1,141,323 LPA Ordinary Shares.
| 6 |
Cancellation of Certain LLP Shares
As disclosed in the Form F-4 under the heading “Beneficial Ownership of Securities— Post-Business Combination Beneficial Ownership Table”, the 2,288,000 LLP shares held by LatAm Logistic Investments, LLC (“LLI”) were subject to foreclosure proceedings in connection with a loan that was in default. On June 25, 2015, LLP entered into an agreement with LLI pursuant to which LLP made a loan to LLI secured by shares of LLP held by LLI. Following several increases and extensions, the loan’s final maturity date was December 31, 2023, at which time the principal amount outstanding was $6,950,000. The loan was not paid when due and foreclosure proceedings were begun. On March 12, 2024, LLI entered into an assignment agreement with LLP, pursuant to which LLI unconditionally and irrevocably assigned in favor of LLP the right to receive 2,288,000 LPA Ordinary Shares as a result of the Company Merger and the Business Combination Agreement (the “LLI Assigned Shares”). Pursuant to the assignment agreement, LLP agreed to waive its right to receive the LLI Assigned Shares. As a result of the waiver by LLP, Pubco did not issue the LLI Assigned Shares at all.
Forfeiture of Certain Shares by Sponsor and two Sponsor
Pursuant to the Sponsor Letter Agreement dated as of August 15, 2023, entered into by the Sponsor and LLP in connection with the Business Combination Agreement (the “Sponsor Letter Agreement”), the Sponsor agreed to forfeit an aggregate of 1,200,000 TWOA founder shares if the SPAC Cash (as defined in the Business Combination Agreement) did not equal or exceed twenty-five million U.S. Dollars ($25,000,000) upon closing of the Business Combination. As of March 27, 2024, the SPAC Cash did not equal or exceed twenty five million U.S. Dollars. Therefore, the Sponsor forfeited 1,200,000 shares. Pursuant to the Sponsor Forfeiture Letter, filed as Exhibit 4.14 to this Report, of the 1,200,000 shares forfeited, 1,071,918 shares were forfeited by the Sponsor and 128,082 shares were forfeited by two sponsor.
Item 4A. Unresolved Staff Comments
None.
Item 5. Operating and Financial Review and Prospects
Following and as a result of the Business Combination, the business of the Company is conducted through LLP, the Company’s direct, wholly-owned subsidiary.
The discussion and analysis of the financial condition and results of operations of LLP are included in the Form F-4 in the section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations of LLP,” which information is incorporated herein by reference.
Item 6. Directors, Senior Management and Employees
A. Directors and Senior Management
The directors and executive officers of the Company are set forth in the Form F-4, in the section titled “Management of Pubco Following the Business Combination,” which is incorporated herein by reference. There are no family relationships between any of the persons that serve as the executive officers and directors of the Company. Lastly, except for the Business Combination Agreement, there are no arrangements or understandings with major shareholders or others pursuant to which any of the Company’s executive officers or directors are selected.
B. Compensation
Information pertaining to the compensation of the directors and executive officers of the Company is set forth in the Form F-4, in the section titled “Management of Pubco Following the Business Combination,” which is incorporated herein by reference.
The Company has adopted the Logistic Properties of the Americas Equity Incentive Plan filed as Exhibit 4.5 to this Report (the “Equity Incentive Plan”) in order to give the Company a competitive advantage in attracting, retaining, awarding and motivating directors, officers, employees and consultants by granting equity and equity-based awards. The Equity Incentive Plan permits the grant of options to purchase LPA Ordinary Shares, stock appreciation rights, restricted stock, restricted stock unit awards, performance-based awards, and other equity-based awards, in each case, in respect of LPA Ordinary Shares and cash incentive awards, thus enhancing the alignment of employee and shareholder interests.
The terms of the Equity Incentive Plan are described in the F-4 under the heading “Proposal 5: The Incentive Plan Proposal – Summary of the Logistic Properties of the Americas Equity Incentive Plan,” which information is incorporated herein by reference.
C. Board Practices
Information pertaining to the Company’s board of directors practices is set forth in the Form F-4, in the section titled “Management of Pubco Following the Business Combination,” which is incorporated herein by reference.
| 7 |
D. Employees
Information pertaining to the Company’s employees is set forth in the Form F-4, in the section titled “Information About LLP – Employees,” which is incorporated herein by reference.
E. Share Ownership
Ownership of the Company’s shares by its directors and executive officers is set forth in Item 7.A of this Report.
F. Disclosure of a registrant’s action to recover erroneously awarded compensation
None.
Item 7. Major Shareholders and Related Party Transactions
A. Major Shareholders
The following table sets forth information regarding the beneficial ownership of LPA Ordinary Shares as of the date hereof by:
| ● | each person known by us to be the beneficial owner of more than 5% of outstanding LPA Ordinary Shares; | |
| ● | each of our directors and executive officers; and | |
| ● | all our directors and executive officers as a group. |
Beneficial ownership is determined according to the rules of the SEC, which generally provide that a person has beneficial ownership of a security if that person possesses sole or shared voting or investment power over that security. A person is also deemed to be a beneficial owner of securities that person has a right to acquire within 60 days including, without limitation, through the exercise of any option, warrant or other right or the conversion of any other security. Such securities, however, are deemed to be outstanding only for the purpose of computing the percentage beneficial ownership of that person but are not deemed to be outstanding for the purpose of computing the percentage beneficial ownership of any other person. Under these rules, more than one person may be deemed to be a beneficial owner of the same securities.
As of the date hereof, there are 31,709,747 LPA Ordinary Shares issued and outstanding.
Unless otherwise indicated, we believe that all persons named in the table below have sole voting and investment power with respect to all LPA Ordinary Shares beneficially owned by them.
| Name and Address of Beneficial Owner | ||||||||
Number of Ordinary Shares | % of Ordinary Shares | |||||||
| Directors and Executive Officers Post-Business Combination(1): | ||||||||
| Esteban Saldarriaga | - | - | ||||||
| Annette Fernandez | - | - | ||||||
| Guillermo Zarco B. | - | - | ||||||
| Aris Stamatiadis | - | - | ||||||
| Alvaro Chinchayan | - | - | ||||||
| Thomas McDonald(2) | 26,312,000 | 83.0 | % | |||||
| Roger Lazarus | - | - | ||||||
| Gloria Canales Saldaña | - | - | ||||||
| Mauricio Salgar | - | - | ||||||
| Diego Durruty | - | - | ||||||
| All directors and executive officers of Combined Company post-Business Combination as a group | 26,312,000 | 83.0 | % | |||||
| Other 5% Shareholders Post-Business Combination: | ||||||||
| HC PropTech Partners III LLC(3)(4) | 2,130,693 | 6.7 | % | |||||
| JREP I Logistics Acquisition, LP(5) | 26,312,000 | 83.0 | % | |||||
(1) Unless otherwise noted, the business address of each of the following entities or individuals is c/o Logistic Properties of the Americas, Plaza Tempo, Edificio B Oficina B1, Piso 2 San Rafael de Escazú, San José, Costa Rica.
(2) Represents shares held by JREP I Logistics Acquisition, LP (see footnote 5 below) and Latam Logistic Equity Partners, LLC. Latam Logistic Equity Partners is managed by JREP I Logistics Acquisition, LP. Thomas McDonald disclaims beneficial ownership of the reported securities other than to the extent of any pecuniary interest he may have therein, directly or indirectly.
(3) Mr. Thomas D. Hennessy exercises voting and investment control over LPA shares that are held by HC PropTech Partners III LLC.
(4) The business address of the reporting person is 195 US HWY 50, Suite 208, Zephyr Cove, NV 89448.
(5) Represents shares held by JREP I Logistics Acquisition, LP, Jaguar Real Estate Partners, LP, and Latam Logistic Equity Partners, LLC. Latam Logistic Equity Partners is managed by JREP I Logistics Acquisition, LP. JREP I Logistics Acquisition, LP and Jaguar Real Estate Partners, LP are investment funds managed by JREP GP, LLC. JREP GP, LLC is managed by Jaguar Growth Partners Group LLC, managing members of which are Gary R. Garrabrant and Thomas McDonald, who share equally in the voting and investment discretion with respect to investments held by such funds. Gary R. Garrabrant and Thomas McDonald disclaim beneficial ownership of the reported securities other than to the extent of any pecuniary interest they may have therein, directly or indirectly. The business address of the reporting person is 601 Brickell Key Drive, Suite 700, Miami, FL 33131.
| 8 |
B. Related Party Transactions
Information pertaining to the Company’s related party transactions is set forth in the Form F-4 under the headings “LLP Related Party Transactions” and “TWOA Related Party Transactions,” which are incorporated herein by reference.
C. Interests of Experts and Counsel
Not applicable.
A. Consolidated Statements and Other Financial Information
Financial Statements
See Item 18 of this Report for financial statements and other financial information.
Legal Proceedings
The Company may, from time to time, and may in the future be, a party to certain claims and legal proceedings incidental to the normal course of the Company’s business. From time to time, LPA may be involved in various legal proceedings and subject to claims that arise in the ordinary course of business. Although the results of litigation and claims are inherently unpredictable and uncertain, LPA is not currently a party to any legal proceedings the outcome of which, if determined adversely to LPA, are believed to, either individually or taken together, have a material adverse effect on its business, operating results, cash flows or financial condition. Regardless of the outcome, litigation has the potential to have an adverse impact on us because of defense and settlement costs, diversion of management resources, and other factors. For additional information, see “Risk Factors – Risks Relating to LLP’s Business – We are or may become subject to legal and administrative proceedings or government investigations, which could harm our business and our reputation” in the Form F-4.
Dividend Policy
The Company’s policy on dividend distributions is described in the Form F-4 under the heading “Description of Pubco Securities – Dividends,” which information is incorporated herein by reference.
B. Significant Changes
A discussion of significant changes since December 31, 2022 and September 30, 2023, respectively, is provided under Item 4 of this Report and is incorporated herein by reference.
A. Offer and Listing Details
LPA Ordinary Shares are listed on the NYSE American under the ticker symbol “LPA.” Holders of LPA Ordinary Shares should obtain current market quotations for their securities. There can be no assurance that the LPA Ordinary Shares will remain listed on the NYSE American. If the Company fails to comply with the NYSE American listing requirements, the LPA Ordinary Shares could be delisted from the NYSE American. A delisting of the LPA Ordinary Shares will likely affect the liquidity of the LPA Ordinary Shares and could inhibit or restrict the ability of the Company to raise additional financing.
Information regarding the LPA Ordinary Shares is described in the Form F-4 under the heading “Description of Pubco Securities,” which is incorporated herein by reference.
B. Plan of Distribution
Not applicable.
C. Markets
LPA Ordinary Shares are listed on the NYSE American under the ticker symbol “LPA.”
D. Selling Shareholders
Not applicable.
E. Dilution
Not applicable.
F. Expenses of the Issue
Not applicable.
Item 10. Additional Information
A. Share Capital
The Company is authorized to issue 450,000,000 LPA Ordinary Shares, $0.0001 par value each and 50,000,000 preference shares, $0.0001 par value each. As of the Closing Date, there are 31,709,747 LPA Ordinary Shares outstanding and issued.
Information regarding our securities is included in the Form F-4 under the section titled “Description of Pubco Securities” and is incorporated herein by reference.
| 9 |
B. Memorandum and Articles of Association
The Amended and Restated Memorandum and Articles of Association (“Articles”) of the Company effective as of March 27, 2024 are filed as Exhibit 1.1 to this Report. The description of the Articles of the Company is included in the Form F-4 under the heading “Description of Pubco Securities,” which information is incorporated herein by reference.
C. Material Contracts
Information pertaining to the Company’s material contracts is set forth in the Form F-4 under the headings “Management’s Discussion and Analysis of Financial Condition and Results of Operations of LLP – Liquidity and Capital Resources,” “—Debt,” “Information About LLP,” and “Certain Relationships and Related Person Transactions,” each of which is incorporated herein by reference. The description of the Business Combination Agreement is set forth in the Form F-4 under the heading “Proposal 1: The Business Combination Proposal – The Business Combination Agreement,” which information is incorporated herein by reference.
D. Exchange Controls
There are no governmental laws, decrees, regulations or other legislation in the Cayman Islands that may affect the import or export of capital, including the availability of cash and cash equivalents for use by the Company, or that may affect the remittance of dividends, interest, or other payments by the Company to non-resident holders of LPA Ordinary Shares. There is no limitation imposed by laws of Cayman Islands or in the Company’s Articles on the right of non-residents to hold or vote LPA Ordinary Shares.
E. Taxation
Information pertaining to tax considerations is set forth in the Form F-4 under the headings “Proposal 1: The Business Combination Proposal Material U.S. Federal Income Tax Considerations” and “Material Cayman Islands Tax Considerations,” which are incorporated herein by reference.
F. Dividends and Paying Agents
Information regarding the Company’s policy on dividends is described in the Form F-4 under the heading “Market Price and Dividend Information,” which information is incorporated herein by reference. The Company has not paid any cash dividends on LPA Ordinary Shares since the Business Combination and currently has no plan to pay cash dividends on such securities in the foreseeable future. The Company has not identified a paying agent.
G. Statement by Experts
The financial statements of LLP as of December 31, 2022 and 2021, and for the years then ended, incorporated by reference herein, have been audited by Deloitte & Touche, S.A., an independent registered public accounting firm, as stated in their report. Such financial statements are incorporated by reference in reliance upon the report of such firm given their authority as experts in accounting and auditing.
The financial statements of TWOA as of and for the years ended December 31, 2023 and 2022 have been audited by WithumSmith+Brown, PC, an independent registered public accounting firm, as set forth in their report thereon (which includes an explanatory paragraph relating to TWOA’s ability to continue as a going concern), and are incorporated herein by reference in reliance on such report given upon such firm as experts in auditing and accounting.
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. We may, but are not required, to furnish to the SEC, on Form 6-K, unaudited financial information after each of our first three fiscal quarters. 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.
I. Subsidiary Information
Not applicable.
J. Annual Report to Security Holders
Not applicable.
Item 11. Quantitative and Qualitative Disclosures About Market Risk
The information set forth in the section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations of LLP,” in the Form F-4 is incorporated herein by reference.
Item 12. Description of Securities Other Than Equity Securities
Not applicable.
| 10 |
Not applicable.
| 11 |
See Item 18.
The audited financial statements of TWOA as of December 31, 2023 and 2022 in the Form F-4 between pages F-2 and F-22 are incorporated herein by reference.
The audited consolidated financial statements of LLP as of December 31, 2022 and 2021 in the Form F-4 between pages F-24 and F-83 are incorporated herein by reference.
The unaudited condensed consolidated interim financial statements of LLP in the Form F-4 between pages F-84 and F-120 are incorporated herein by reference.
The unaudited pro forma condensed combined financial information of LLP and TWOA is attached as Exhibit 15.1 to this Report.
| 12 |
We have filed the following documents as exhibits to this Report:
| Exhibit Number | Description | |
| 1.1* | ||
| 2.1 | ||
| 4.1+ | ||
| 4.2* | Waiver Letter to Business Combination Agreement, dated March 27, 2024, among two, Logistic Properties of the Americas, Logistic Properties of the Americas Subco, and LPA Panama Group Corp. | |
| 4.3* | ||
| 4.4* | Merger Agreement, dated March 12, 2024, by and between LatAm Logistic Properties S.A. and LPA Panama Group Corp. | |
| 4.5* | Logistic Properties of the Americas Equity Incentive Plan. | |
| 4.6 | ||
| 4.7 | ||
| 4.8 | ||
4.9* |
||
4.10 |
||
| 4.11* | ||
| 4.12* | ||
| 4.13 | ||
4.14* |
||
| 4.15 | ||
| 4.16 | ||
| 4.17 | ||
| 4.18 | ||
| 4.19 | ||
| 4.20 | ||
| 4.21 | ||
| 4.22 |
| 13 |
| 4.34 | ||
| 4.24 | ||
| 4.25 | ||
| 4.26 | ||
| 4.27 | ||
| 4.28 | ||
| 4.29 | ||
| 4.30 | ||
| 4.31 | ||
| 4.32 | ||
| 4.33 | ||
| 4.34 | ||
| 4.35 | ||
| 4.36 | ||
| 15.1* | Unaudited Pro Forma Condensed Combined Financial Information of LLP and TWOA. | |
| 15.2* | Consent of WithumSmith+Brown, PC, independent registered accounting firm for TWOA. | |
| 15.3* | Consent of Deloitte & Touche, S.A., independent registered accounting firm for LLP. |
* Filed herewith.
+ Certain exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5). Logistic Properties of the Americas agrees to furnish supplementally a copy of any omitted exhibit or schedule to the SEC upon its request.
| 14 |
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.
| LOGISTIC PROPERTIES OF THE AMERICAS | ||
| By: | /s/ Esteban Saldarriaga | |
| Esteban Saldarriaga | ||
| Chief Executive Officer | ||
| 15 |
Exhibit 1.1
Companies act (AS Revised)
Company Limited by Shares
AMENDED AND RESTATED
MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
LOGISTIC PROPERTIES OF THE AMERICAS
Adopted by special resolution DATED 20 March 2024 AND EFFECTIVE ON 27 March 2024
Companies act (AS Revised)
Company Limited by ShareS
Amended and Restated
Memorandum of Association
of
LOGISTIC PROPERTIES OF THE AMERICAS
Adopted by special resolution dated 20 March 2024 AND EFFECTIVE ON 27 March 2024
| 1 | The name of the Company is Logistic Properties of the Americas. |
| 2 | The Company’s registered office will be situated at the office of Ogier Global (Cayman) Limited, 89 Nexus Way, Camana Bay, Grand Cayman, KY1-9009, Cayman Islands or at such other place in the Cayman Islands as the directors may at any time decide. |
| 3 | The Company’s objects are unrestricted. As provided by section 7(4) of the Companies Act (As Revised), the Company has full power and authority to carry out any object not prohibited by any law of the Cayman Islands. |
| 4 | The Company has unrestricted corporate capacity. Without limitation to the foregoing, as provided by section 27 (2) of the Companies Act (As Revised), the Company has and is capable of exercising all the functions of a natural person of full capacity irrespective of any question of corporate benefit. |
| 5 | Nothing in any of the preceding paragraphs permits the Company to carry on any of the following businesses without being duly licensed, namely: |
| (a) | the business of a bank or trust company without being licensed in that behalf under the Banks and Trust Companies Act (As Revised); or |
| (b) | insurance business from within the Cayman Islands or the business of an insurance manager, agent, sub-agent or broker without being licensed in that behalf under the Insurance Act (As Revised); or |
| (c) | the business of company management without being licensed in that behalf under the Companies Management Act (As Revised). |
| 6 | The Company will not trade in the Cayman Islands with any person, firm or corporation except in furtherance of its business carried on outside the Cayman Islands. Despite this, the Company may effect and conclude contracts in the Cayman Islands and exercise in the Cayman Islands any of its powers necessary for the carrying on of its business outside the Cayman Islands. |
| 7 | The Company is a company limited by shares and accordingly the liability of each member is limited to the amount (if any) unpaid on that member’s shares. |
| 8 | 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 preference shares of a par value of US$0.0001 each. There is no limit on the number of shares of any class which the Company is authorised to issue. However, subject to the Companies Act (As Revised) and the Company’s articles of association, the Company has power to do any one or more of the following: |
| (a) | to redeem or repurchase any of its shares; and |
| (b) | to increase or reduce its capital; and |
| (c) | to issue any part of its capital (whether original, redeemed, increased or reduced): |
| (i) | with or without any preferential, deferred, qualified or special rights, privileges or conditions; or |
| (ii) | subject to any limitations or restrictions |
and unless the condition of issue expressly declares otherwise, every issue of shares (whether declared to be ordinary, preference or otherwise) is subject to this power; or
| (d) | to alter any of those rights, privileges, conditions, limitations or restrictions. |
| 9 | 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. |
Companies act (as Revised)
Company Limited by ShareS
Amended and Restated
articles of Association
of
LOGISTIC PROPERTIES OF THE AMERICAS
Adopted by special resolution dated 20 March 2024 AND EFFECTIVE ON 27 March 2024
CONTENTS
| 1. | Definitions, interpretation and exclusion of Table A | 1 |
| Definitions | 1 | |
| Interpretation | 3 | |
| Exclusion of Table A Articles | 4 | |
| 2. | Commencement of Business | 4 |
| 3. | Shares | 4 |
| Power to issue Shares and options, with or without special rights | 4 | |
| Power to issue fractions of a Share | 5 | |
| Power to pay commissions and brokerage fees | 5 | |
| Trusts not recognised | 5 | |
| Power to vary class rights | 5 | |
| Effect of new Share issue on existing class rights | 6 | |
| No bearer Shares or warrants | 6 | |
| Treasury Shares | 6 | |
| Rights attaching to Treasury Shares and related matters | 6 | |
| 4. | Register of Members | 7 |
| 5. | Share certificates | 7 |
| Issue of share certificates | 7 | |
| Renewal of lost or damaged share certificates | 7 | |
| 6. | Lien on Shares | 7 |
| Nature and scope of lien | 8 | |
| Company may sell Shares to satisfy lien | 8 | |
| Authority to execute instrument of transfer | 8 | |
| Consequences of sale of Shares to satisfy lien | 8 | |
| Application of proceeds of sale | 8 | |
| 7. | Calls on Shares and forfeiture | 9 |
| Power to make calls and effect of calls | 9 | |
| Time when call made | 9 | |
| Liability of joint holders | 9 | |
| Interest on unpaid calls | 9 | |
| Deemed calls | 9 | |
| Power to accept early payment | 9 | |
| Power to make different arrangements at time of issue of Shares | 10 | |
| Notice of default | 10 | |
| Forfeiture or surrender of Shares | 10 | |
| Disposal of forfeited or surrendered Share and power to cancel forfeiture or surrender | 10 | |
| Effect of forfeiture or surrender on former Member | 10 |
| Evidence of forfeiture or surrender | 11 | |
| Sale of forfeited or surrendered Shares | 11 | |
| 8. | Transfer of Shares | 11 |
| Form of transfer | 11 | |
| Power to refuse registration | 11 | |
| Power to suspend registration | 12 | |
| Company may retain instrument of transfer | 12 | |
| 9. | Transmission of Shares | 12 |
| Persons entitled on death of a Member | 12 | |
| Registration of transfer of a Share following death or bankruptcy | 12 | |
| Indemnity | 12 | |
| Rights of person entitled to a Share following death or bankruptcy | 13 | |
| 10. | Alteration of capital | 13 |
| Increasing, consolidating, converting, dividing and cancelling share capital | 13 | |
| Dealing with fractions resulting from consolidation of Shares | 13 | |
| Reducing share capital | 13 | |
| Increasing, consolidating, converting, dividing and cancelling share capital | 13 | |
| 11. | Redemption and purchase of own Shares | 13 |
| Power to issue redeemable Shares and to purchase own Shares | 14 | |
| Power to pay for redemption or purchase in cash or in specie | 14 | |
| Effect of redemption or purchase of a Share | 14 | |
| 12. | Meetings of Members | 14 |
| Power to call meetings | 14 | |
| Content of notice | 15 | |
| Period of notice | 16 | |
| Persons entitled to receive notice | 16 | |
| Publication of notice on a website | 16 | |
| Time a website notice is deemed to be given | 16 | |
| Required duration of publication on a website | 17 | |
| Accidental omission to give notice or non-receipt of notice | 17 | |
| 13. | Proceedings at meetings of Members | 17 |
| Quorum | ||
| Lack of quorum | 17 | |
| Use of technology | 17 | |
| Chairman | 17 | |
| Right of a director to attend and speak | 18 | |
| Adjournment and Postponement | 18 | |
| Method of voting | 18 | |
| Taking of a poll | 18 |
| 20. | Meetings of directors | 28 |
| Regulation of directors’ meetings | 28 | |
| Calling meetings | 29 | |
| Notice of meetings | 29 | |
| Period of notice | 29 | |
| Use of technology | 29 | |
| Place of meetings | 29 | |
| Quorum | 29 | |
| Voting | 29 | |
| Validity | 29 | |
| Recording of dissent | 29 | |
| Written resolutions | 30 | |
| Sole director’s minute | 30 | |
| 21. | Permissible directors’ interests and disclosure | 30 |
| Permissible interests subject to disclosure | 30 | |
| Notification of interests | 30 | |
| Voting where a director is interested in a matter | 31 | |
| 22. | Minutes | 31 |
| 23. | Accounts and audit | 31 |
| No automatic right of inspection | 31 | |
| Sending of accounts and reports | 31 | |
| Validity despite accidental error in publication on website | 32 | |
| Audit | 32 | |
| 24. | Financial year | 32 |
| 25. | Record dates | 33 |
| 26. | Dividends | 33 |
| Declaration of dividends by directors | 33 | |
| Apportionment of dividends | 34 | |
| Right of set off | 34 | |
| Power to pay other than in cash | 34 | |
| How payments may be made | 34 | |
| Dividends or other moneys not to bear interest in absence of special rights | 35 | |
| Dividends unable to be paid or unclaimed | 35 | |
| 27. | Capitalisation of profits | 35 |
| Capitalisation of profits or of any share premium account or capital redemption reserve | 35 | |
| Applying an amount for the benefit of members | 35 | |
| 28. | Share premium account | 35 |
| Directors to maintain share premium account | 35 | |
| Debits to share premium account | 36 |
| 29. | Seal | 36 |
| Company seal | 36 | |
| Duplicate seal | 36 | |
| When and how seal is to be used | 36 | |
| If no seal is adopted or used | 36 | |
| Power to allow non-manual signatures and facsimile printing of seal | 36 | |
| Validity of execution | 37 | |
| 30. | Indemnity | 37 |
| Indemnity | 37 | |
| Release | 37 | |
| Insurance | 37 | |
| 31. | Notices | 38 |
| Form of notices | 38 | |
| Electronic communications | 38 | |
| Persons authorised to give notices | 38 | |
| Delivery of written notices | 38 | |
| Joint holders | 38 | |
| Signatures | 38 | |
| Evidence of transmission | 38 | |
| Giving notice to a deceased or bankrupt Member | 39 | |
| Date of giving notices | 39 | |
| Saving provision | 39 | |
| 32. | Authentication of Electronic Records | 39 |
| Application of Articles | 39 | |
| Authentication of documents sent by Members by Electronic means | 40 | |
| Authentication of document sent by the Secretary, Directors or Other Officers of the Company by Electronic means | 40 | |
| Manner of signing | 40 | |
| Saving provision | 41 | |
| 33. | Transfer by way of continuation | 41 |
| 34. | Winding up | 41 |
| Distribution of assets in specie | 41 | |
| No obligation to accept liability | 41 | |
| The directors are authorised to present a winding up petition | 41 | |
| 35. | Amendment of Memorandum and Articles | 42 |
| Power to change name or amend Memorandum | 42 | |
| Power to amend these Articles | 42 | |
| 36. | Mergers and Consolidations | 42 |
| 37. | Certain Tax Filings | 42 |
| 38. | Business Opportunities | 42 |
Companies act (As Revised)
Company Limited by ShareS
Amended and Restated
ARTICLES of Association
of
LOGISTIC PROPERTIES OF THE AMERICAS
Adopted by special resolution dated 20 March 2024 AND EFFECTIVE ON 27 March 2024
| 1. | Definitions, interpretation and exclusion of Table A |
Definitions
| 1.1 | In these Articles, the following definitions apply: |
Affiliate in respect of a person, means any other person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such person, and (a) in the case of a natural person, shall include, without limitation, such person’s spouse, parents, children, siblings, mother-in-law and father-in-law and brothers and sisters-in-law, whether by blood, marriage or adoption or anyone residing in such person’s home, a trust for the benefit of any of the foregoing, a company, partnership or any natural person or entity wholly or jointly owned by any of the foregoing and (b) in the case of an entity, shall include a partnership, a corporation or any natural person or entity which directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
Applicable Law means, with respect to any person, all provisions of laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees or orders of any governmental authority applicable to such person.
Articles means, as appropriate:
| (a) | these Amended and Restated Articles of Association as amended, restated, supplemented and/or otherwise modified from time to time: or |
| (b) | two or more particular Articles of these Articles; |
and Article refers to a particular Article of these Articles.
Audit Committee means the audit committee of the board of directors of the Company established pursuant to Article 23.8 hereof, or any successor audit committee.
Auditor means the person for the time being performing the duties of auditor of the Company.
Business Day means a day other than a day on which banking institutions or trust companies are authorised or obligated by law to close in New York City, the Islands, a Saturday or a Sunday.
Clear Days, in relation to a period of notice, means that period excluding:
| (a) | the day when the notice is given or deemed to be given; and |
| 1 |
| (b) | the day for which it is given or on which it is to take effect. |
Clearing House means a clearing house recognised by the laws of the jurisdiction in which the Shares (or depositary receipts therefor) are listed or quoted on a stock exchange or interdealer quotation system in such jurisdiction.
Company means the above-named company.
Compensation Committee means the compensation committee of the board of directors of the Company established pursuant to the Articles, or any successor committee.
Default Rate means 10% (ten per cent) per annum.
Designated Stock Exchange means any United States national securities exchange, including the Nasdaq Stock Market LLC, the NYSE American LLC or The New York Stock Exchange LLC or any OTC market on which the Shares are listed for trading.
Electronic has the meaning given to that term in the Electronic Transactions Act (As Revised).
Electronic Record has the meaning given to that term in the Electronic Transactions Act (As Revised).
Electronic Signature has the meaning given to that term in the Electronic Transactions Act (As Revised).
Exchange Act means the United States Securities Exchange Act of 1934, as amended.
Fully Paid and Paid Up:
| (a) | in relation to a Share with par value, means that the par value for that Share and any premium payable in respect of the issue of that Share, has been fully paid or credited as paid in money or money’s worth; |
| (b) | in relation to a Share without par value, means that the agreed issue price for that Share has been fully paid or credited as paid in money or money’s worth. |
Independent Director means a director who is an independent director as defined in the rules and regulations of the Designated Stock Exchange as determined by the directors.
Islands means the British Overseas Territory of the Cayman Islands.
Law means the Companies Act (As Revised).
Member means any person or persons entered on the Register of Members from time to time as the holder of a Share.
Memorandum means the Amended and Restated Memorandum of Association of the Company as amended, restated, supplemented and/or otherwise modified from time to time.
Nominating Committee means the nominating committee of the board of directors of the Company established pursuant to the Articles, or any successor committee.
Officer means a person then appointed to hold an office in the Company; and the expression includes a director, alternate director or liquidator.
| 2 |
Ordinary Resolution means a resolution of a duly constituted general meeting of the Company passed by a simple majority of the votes cast by, or on behalf of, the Members entitled to vote thereon. The expression also includes a unanimous written resolution.
Ordinary Share means an ordinary share of a par value of US$0.0001 in the share capital of the Company.
Preference Share means a preference 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 Law and includes (except where otherwise stated) any branch or duplicate register of Members.
SEC means the United States Securities and Exchange Commission.
Secretary means a person appointed to perform the duties of the secretary of the Company, including a joint, assistant or deputy secretary.
Share means an Ordinary Share or a Preference Share in the share capital of the Company; and the expression:
| (a) | includes stock (except where a distinction between shares and stock is expressed or implied); and |
| (b) | where the context permits, also includes a fraction of a share. |
Special Resolution has the meaning given to that term in the Law; and the expression includes a unanimous written resolution.
Tax Filing Authorised Person means such person as any director shall designate from time to time, acting severally.
Treasury Shares means Shares of the Company held in treasury pursuant to the Law and Article 3.14.
Interpretation
| 1.2 | In the interpretation of these Articles, the following provisions apply unless the context otherwise requires: |
| (a) | A reference in these Articles to a statute is a reference to a statute of the Islands as known by its short title, and includes: |
| (i) | any statutory modification, amendment or re-enactment; and |
| (ii) | any subordinate legislation or regulations issued under that statute. |
Without limitation to the preceding sentence, a reference to a revised Law of the Cayman Islands is taken to be a reference to the revision of that Law in force from time to time as amended from time to time.
| (b) | Headings are inserted for convenience only and do not affect the interpretation of these Articles, unless there is ambiguity. |
| (c) | If a day on which any act, matter or thing is to be done under these Articles is not a Business Day, the act, matter or thing must be done on the next Business Day. |
| (d) | A word which denotes the singular also denotes the plural, a word which denotes the plural also denotes the singular, and a reference to any gender also denotes the other genders. |
| (e) | A reference to a person includes, as appropriate, a company, trust, partnership, joint venture, association, body corporate or government agency. |
| 3 |
| (f) | Where a word or phrase is given a defined meaning another part of speech or grammatical form in respect to that word or phrase has a corresponding meaning. |
| (g) | All references to time are to be calculated by reference to time in the place where the Company’s registered office is located. |
| (h) | The words written and in writing include all modes of representing or reproducing words in a visible form, but do not include an Electronic Record where the distinction between a document in writing and an Electronic Record is expressed or implied. |
| (i) | The words including, include and in particular or any similar expression are to be construed without limitation. |
| (j) | 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. |
| (k) | Sections 8 and 19(3) of the Electronic Transactions Act shall not apply. |
| (l) | 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. |
Exclusion of Table A Articles
| 1.3 | The regulations contained in Table A in the First Schedule of the Law and any other regulations contained in any statute or subordinate legislation are expressly excluded and do not apply to the Company. |
| 2. | Commencement of Business |
| 2.1 | The business of the Company may be commenced as soon after incorporation of the Company as the directors see fit. |
| 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. | Shares |
Power to issue Shares and options, with or without special rights
| 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), these Articles and, where applicable, the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law, and without prejudice to any rights attached to any existing Shares, the directors have general and unconditional authority to allot (with or without confirming rights of renunciation), issue, grant options over or otherwise deal with any unissued Shares of the Company to such persons, at such times and on such terms and conditions as they may decide. No Share may be issued at a discount except in accordance with the provisions of the Law. |
| 3.2 | Without limitation to the preceding Article, the directors may so deal with the unissued Shares of the Company: |
| (a) | either at a premium or at par; |
| (b) | with or without preferred, deferred or other special rights or restrictions whether in regard to dividend, voting, return of capital or otherwise. |
| 3.3 | 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 at such times and on such terms and conditions as the directors may decide. |
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| 3.4 | The Company may issue units of securities in the Company, which may be comprised of Shares, 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 and conditions as the directors may decide. |
Power to issue fractions of a Share
| 3.5 | Subject to the Law, the Company may issue fractions of a Share of any class. A fraction of a Share shall be subject to and carry the corresponding fraction of liabilities (whether with respect to calls or otherwise), limitations, preferences, privileges, qualifications, restrictions, rights and other attributes of a Share of that class of Shares. |
Power to pay commissions and brokerage fees
| 3.6 | The Company may, in so far as the Law permits, pay a commission to any person in consideration of that person: |
| (a) | subscribing or agreeing to subscribe, whether absolutely or conditionally; or |
| (b) | procuring or agreeing to procure subscriptions, whether absolute or conditional |
for any Shares in the Company. That commission may be satisfied by the payment of cash or the allotment of Fully Paid or partly-paid Shares or partly in one way and partly in another.
| 3.7 | The Company may employ a broker in the issue of its capital and pay him any proper commission or brokerage. |
Trusts not recognised
| 3.8 | Except as required by Applicable Law: |
| (a) | 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 these Articles or the Law) any other rights in respect of any Share other than an absolute right to the entirety thereof in the holder; and |
| (b) | no person other than the Member shall be recognised by the Company as having any right in a Share. |
Power to vary class rights
| 3.9 | If the share capital is divided into different classes of Shares then, unless the terms on which a class of Shares was issued state otherwise, the rights attaching to a class of Shares may only be varied if one of the following applies: |
| (a) | the Members holding two thirds of the issued Shares of that class consent in writing to the variation; or |
| (b) | the variation is made with the sanction of a Special Resolution passed at a separate general meeting of the Members holding the issued Shares of that class. |
| 3.10 | For the purpose of paragraph (b) of the preceding Article, all the provisions of these Articles relating to general meetings apply, mutatis mutandis, to every such separate meeting except that: |
| (a) | the necessary quorum shall be one or more persons holding, or representing by proxy, not less than one third of the issued Shares of the class; and |
| (b) | any Member holding issued Shares of the class, present in person or by proxy or, in the case of a corporate Member, by its duly authorised representative, may demand a poll. |
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Effect of new Share issue on existing class rights
| 3.11 | Unless the terms on which a class of Shares was issued state otherwise, the rights conferred on the Member holding Shares of any class shall not be deemed to be varied by the creation or issue of further Shares ranking pari passu with the existing Shares of that class. |
Capital contributions without issue of further Shares
| 3.12 | With the consent of a Member, the directors may accept a voluntary contribution to the capital of the Company from that Member without issuing Shares in consideration for that contribution. In that event, the contribution shall be dealt with in the following manner: |
| (a) | It shall be treated as if it were a share premium. |
| (b) | Unless the Member agrees otherwise: |
| (i) | if the Member holds Shares in a single class of Shares, it shall be credited to the share premium account for that class of Shares; |
| (ii) | if the Member holds Shares of more than one class, it shall be credited rateably to the share premium accounts for those classes of Shares (in the proportion that the sum of the issue prices for each class of Shares that the Member holds bears to the total issue prices for all classes of Shares that the Member holds). |
| (c) | It shall be subject to the provisions of the Law and these Articles applicable to share premiums. |
No bearer Shares or warrants
| 3.13 | The Company shall not issue Shares or warrants to bearers. |
Treasury Shares
| 3.14 | Shares that the Company purchases, redeems or acquires by way of surrender in accordance with the Law shall be held as Treasury Shares and not treated as cancelled if: |
| (a) | the directors so determine prior to the purchase, redemption or surrender of those shares; and |
| (b) | the relevant provisions of the Memorandum and Articles and the Law are otherwise complied with. |
Rights attaching to Treasury Shares and related matters
| 3.15 | No dividend may be declared or paid, and no other distribution (whether in cash or otherwise) of the Company’s assets (including any distribution of assets to members on a winding up) may be made to the Company in respect of a Treasury Share. |
| 3.16 | The Company shall be entered in the Register as the holder of the Treasury Shares. However: |
| (a) | the Company shall not be treated as a member for any purpose and shall not exercise any right in respect of the Treasury Shares, and any purported exercise of such a right shall be void; |
| (b) | a Treasury Share shall not be voted, directly or indirectly, at any meeting of the Company and shall not be counted in determining the total number of issued shares at any given time, whether for the purposes of these Articles or the Law. |
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| 3.17 | Nothing in the preceding Article prevents an allotment of Shares as fully paid bonus shares in respect of a Treasury Share and Shares allotted as fully paid bonus shares in respect of a Treasury Share shall be treated as Treasury Shares. |
| 3.18 | Treasury Shares may be disposed of by the Company in accordance with the Law and otherwise on such terms and conditions as the directors determine. |
| 4. | Register of Members |
| 4.1 | The Company shall maintain or cause to be maintained the Register of Members in accordance with the Law. |
| 4.2 | The directors may determine that the Company shall maintain one or more branch registers of Members in accordance with the Law. 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. | Share certificates |
Issue of share certificates
| 5.1 | Upon being entered in the Register of Members as the holder of a Share, a Member shall be entitled: |
| (a) | without payment, to one certificate for all the Shares of each class held by that Member (and, upon transferring a part of the Member’s holding of Shares of any class, to a certificate for the balance of that holding); and |
| (b) | upon payment of such reasonable sum as the directors may determine for every certificate after the first, to several certificates each for one or more of that Member’s Shares. |
| 5.2 | Every certificate shall specify the number, class and distinguishing numbers (if any) of the Shares to which it relates and whether they are Fully Paid or partly paid up. A certificate may be executed under seal or executed in such other manner as the directors determine. |
| 5.3 | The Company shall not be bound to issue more than one certificate for Shares held jointly by several persons and delivery of a certificate for a Share to one joint holder shall be a sufficient delivery to all of them. |
Renewal of lost or damaged share certificates
| 5.4 | If a share certificate is defaced, worn-out, lost or destroyed, it may be renewed on such terms (if any) as to: |
| (a) | evidence; |
| (b) | indemnity; |
| (c) | payment of the expenses reasonably incurred by the Company in investigating the evidence; and |
| (d) | payment of a reasonable fee, if any, for issuing a replacement share certificate as the directors may determine, and (in the case of defacement or wearing-out) on delivery to the Company of the old certificate. |
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| 6. | Lien on Shares |
Nature and scope of lien
| 6.1 | The Company has a first and paramount lien on all Shares (whether Fully Paid or not) registered in the name of a Member (whether solely or jointly with others). The lien is for all moneys payable to the Company by the Member or the Member’s estate: |
| (a) | either alone or jointly with any other person, whether or not that other person is a Member; and |
| (b) | whether or not those moneys are presently payable. |
| 6.2 | At any time the directors may declare any Share to be wholly or partly exempt from the provisions of this Article. |
Company may sell Shares to satisfy lien
| 6.3 | The Company may sell any Shares over which it has a lien if all of the following conditions are met: |
| (a) | the sum in respect of which the lien exists is presently payable; |
| (b) | the Company gives notice to the Member holding the Share (or to the person entitled to it in consequence of the death or bankruptcy of that Member) demanding payment and stating that if the notice is not complied with the Shares may be sold; and |
| (c) | that sum is not paid within 14 Clear Days after that notice is deemed to be given under these Articles. |
| 6.4 | The Shares may be sold in such manner as the directors determine. |
| 6.5 | To the maximum extent permitted by Applicable Law, the directors shall incur no personal liability to the Member concerned in respect of the sale. |
Authority to execute instrument of transfer
| 6.6 | To give effect to a 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 title of the transferee of the Shares shall not be affected by any irregularity or invalidity in the proceedings in respect of the sale. |
Consequences of sale of Shares to satisfy lien
| 6.7 | On sale pursuant to the preceding Articles: |
| (a) | the name of the Member concerned shall be removed from the Register of Members as the holder of those Shares; and |
| (b) | that person shall deliver to the Company for cancellation the certificate for those Shares. |
Despite this, that person shall remain liable to the Company for all monies which, at the date of sale, were presently payable by him to the Company in respect of those Shares. That person shall also be liable to pay interest on those monies from the date of sale until payment at the rate at which interest was payable before that sale or, failing that, at the Default Rate. The directors may waive payment wholly or in part or enforce payment without any allowance for the value of the Shares at the time of sale or for any consideration received on their disposal.
Application of proceeds of sale
| 6.8 | The net proceeds of the sale, after payment of the costs, shall be applied in payment of so much of the sum for which the lien exists as is presently payable. Any residue shall be paid to the person whose Shares have been sold: |
| (a) | if no certificate for the Shares was issued, at the date of the sale; or |
| (b) | if a certificate for the Shares was issued, upon surrender to the Company of that certificate for cancellation but, in either case, subject to the Company retaining a like lien for all sums not presently payable as existed on the Shares before the sale. |
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| 7. | Calls on Shares and forfeiture |
Power to make calls and effect of calls
| 7.1 | Subject to the terms of allotment, the directors may make calls on the Members in respect of any moneys unpaid on their Shares including any premium. The call may provide for payment to be by instalments. Subject to receiving at least 14 Clear Days’ notice specifying when and where payment is to be made, each Member shall pay to the Company the amount called on his Shares as required by the notice. |
| 7.2 | Before receipt by the Company of any sum due under a call, that call may be revoked in whole or in part and payment of a call may be postponed in whole or in part. Where a call is to be paid in instalments, the Company may revoke the call in respect of all or any remaining instalments in whole or in part and may postpone payment of all or any of the remaining instalments in whole or in part. |
| 7.3 | A Member on whom a call is made shall remain liable for that call notwithstanding the subsequent transfer of the Shares in respect of which the call was made. A person shall not be liable for calls made after such person is no longer registered as Member in respect of those Shares. |
Time when call made
| 7.4 | A call shall be deemed to have been made at the time when the resolution of the directors authorising the call was passed. |
Liability of joint holders
| 7.5 | Members registered as the joint holders of a Share shall be jointly and severally liable to pay all calls in respect of the Share. |
Interest on unpaid calls
| 7.6 | If a call remains unpaid after it has become due and payable the person from whom it is due and payable shall pay interest on the amount unpaid from the day it became due and payable until it is paid: |
| (a) | at the rate fixed by the terms of allotment of the Share or in the notice of the call; or |
| (b) | if no rate is fixed, at the Default Rate. |
The directors may waive payment of the interest wholly or in part.
Deemed calls
| 7.7 | Any amount payable in respect of a Share, whether on allotment or on a fixed date or otherwise, shall be deemed to be payable as a call. If the amount is not paid when due the provisions of these Articles shall apply as if the amount had become due and payable by virtue of a call. |
Power to accept early payment
| 7.8 | The Company may accept from a Member the whole or a part of the amount remaining unpaid on Shares held by him although no part of that amount has been called up. |
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Power to make different arrangements at time of issue of Shares
| 7.9 | Subject to the terms of allotment, the directors may make arrangements on the issue of Shares to distinguish between Members in the amounts and times of payment of calls on their Shares. |
Notice of default
| 7.10 | If a call remains unpaid after it has become due and payable the directors may give to the person from whom it is due not less than 14 Clear Days’ notice requiring payment of: |
| (a) | the amount unpaid; |
| (b) | any interest which may have accrued; |
| (c) | any expenses which have been incurred by the Company due to that person’s default. |
| 7.11 | The notice shall state the following: |
| (a) | the place where payment is to be made; and |
| (b) | a warning that if the notice is not complied with the Shares in respect of which the call is made will be liable to be forfeited. |
Forfeiture or surrender of Shares
| 7.12 | If the notice under the preceding Article is not complied with, the directors may, before the payment required by the notice has been received, resolve that any Share the subject of that notice be forfeited. The forfeiture shall include all dividends or other moneys payable in respect of the forfeited Share and not paid before the forfeiture. Despite the foregoing, the directors may determine that any Share the subject of that notice be accepted by the Company as surrendered by the Member holding that Share in lieu of forfeiture. |
| 7.13 | The directors may accept the surrender for no consideration of any Fully Paid Share. |
Disposal of forfeited or surrendered Share and power to cancel forfeiture or surrender
| 7.14 | A forfeited or surrendered Share may be sold, re-allotted or otherwise disposed of on such terms and in such manner as the directors determine either to the former Member who held that Share or to any other person. The forfeiture or surrender may be cancelled on such terms as the directors think fit at any time before a sale, re-allotment or other disposition. Where, for the purposes of its disposal, a forfeited or surrendered Share is to be transferred to any person, the directors may authorise some person to execute an instrument of transfer of the Share to the transferee. |
Effect of forfeiture or surrender on former Member
| 7.15 | On forfeiture or surrender: |
| (a) | the name of the Member concerned shall be removed from the Register of Members as the holder of those Shares and that person shall cease to be a Member in respect of those Shares; and |
| (b) | that person shall surrender to the Company for cancellation the certificate (if any) for the forfeited or surrendered Shares. |
| 7.16 | Despite the forfeiture or surrender of his Shares, that person shall remain liable to the Company for all moneys which at the date of forfeiture or surrender were presently payable by him to the Company in respect of those Shares together with: |
| (a) | all expenses; and |
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| (b) | interest from the date of forfeiture or surrender until payment: |
| (i) | at the rate of which interest was payable on those moneys before forfeiture; or |
| (ii) | if no interest was so payable, at the Default Rate. |
The directors, however, may waive payment wholly or in part.
Evidence of forfeiture or surrender
| 7.17 | A declaration, whether statutory or under oath, made by a director or the Secretary shall be conclusive evidence of the following matters stated in it as against all persons claiming to be entitled to forfeited Shares: |
| (a) | that the person making the declaration is a director or Secretary of the Company, and |
| (b) | that the particular Shares have been forfeited or surrendered on a particular date. |
Subject to the execution of an instrument of transfer, if necessary, the declaration shall constitute good title to the Shares.
Sale of forfeited or surrendered Shares
| 7.18 | Any person to whom the forfeited or surrendered Shares are disposed of shall not be bound to see to the application of the consideration, if any, of those Shares nor shall his title to the Shares be affected by any irregularity in, or invalidity of the proceedings in respect of, the forfeiture, surrender or disposal of those Shares. |
| 8. | Transfer of Shares |
Form of transfer
| 8.1 | Subject to the following Articles about the transfer of Shares, and provided that such transfer complies with the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law, a Member may transfer Shares to another person by completing an instrument of transfer in a common form or in a form prescribed by the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law or in any other form approved by the directors, executed: |
| (a) | where the Shares are Fully Paid, by or on behalf of that Member; and |
| (b) | where the Shares are partly paid, by or on behalf of that Member and the transferee. |
| 8.2 | The transferor shall be deemed to remain the holder of a Share until the name of the transferee is entered into the Register of Members. |
Power to refuse registration
| 8.3 | If the Shares in question were issued in conjunction with rights, options or warrants issued pursuant to Article 3.4 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. |
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Power to suspend registration
| 8.4 | Subject to Applicable Law, the directors may suspend registration of the transfer of Shares at such times and for such periods, not exceeding 30 days in any calendar year, as they determine. |
Company may retain instrument of transfer
| 8.5 | The Company shall be entitled to retain any instrument of transfer which is registered; but an instrument of transfer which the directors refuse to register shall be returned to the person lodging it when notice of the refusal is given. |
| 9. | Transmission of Shares |
Persons entitled on death of a Member
| 9.1 | If a Member dies, the only persons recognised by the Company as having any title to the deceased Members’ interest are the following: |
| (a) | where the deceased Member was a joint holder, the survivor or survivors; and |
| (b) | where the deceased Member was a sole holder, that Member’s personal representative or representatives. |
| 9.2 | Nothing in these Articles shall release the deceased Member’s estate from any liability in respect of any Share, whether the deceased was a sole holder or a joint holder. |
Registration of transfer of a Share following death or bankruptcy
| 9.3 | A person becoming entitled to a Share in consequence of the death or bankruptcy of a Member may elect to do either of the following: |
| (a) | to become the holder of the Share; or |
| (b) | to transfer the Share to another person. |
| 9.4 | That person must produce such evidence of his entitlement as the directors may properly require. |
| 9.5 | If the person elects to become the holder of the Share, he must give notice to the Company to that effect. For the purposes of these Articles, that notice shall be treated as though it were an executed instrument of transfer. |
| 9.6 | If the person elects to transfer the Share to another person then: |
| (a) | if the Share is Fully Paid, the transferor must execute an instrument of transfer; and |
| (b) | if the Share is partly paid, the transferor and the transferee must execute an instrument of transfer. |
| 9.7 | All these Articles relating to the transfer of Shares shall apply to the notice or, as appropriate, the instrument of transfer. |
Indemnity
| 9.8 | A person registered as a Member by reason of the death or bankruptcy of another Member shall indemnify the Company and the directors against any loss or damage suffered by the Company or the directors as a result of that registration. |
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Rights of person entitled to a Share following death or bankruptcy
| 9.9 | A person becoming entitled to a Share by reason of the death or bankruptcy of a Member shall have the rights to which he would be entitled if he were registered as the holder of the Share. However, until he is registered as Member in respect of the Share, he shall not be entitled to attend or vote at any meeting of the Company or at any separate meeting of the holders of that class of Shares in the Company. |
| 10. | Alteration of capital |
Increasing, consolidating, converting, dividing and cancelling share capital
| 10.1 | To the fullest extent permitted by the Law, the Company may by Ordinary Resolution do any of the following and amend its Memorandum for that purpose: |
| (a) | increase its share capital by new Shares of the amount fixed by that Ordinary Resolution and with the attached rights, priorities and privileges set out in that Ordinary Resolution; |
| (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) | sub-divide its Shares or any of them into Shares of an amount smaller than that fixed by the Memorandum, so, however, that in the sub-division, the proportion between the amount paid and the amount, if any, unpaid on each reduced Share shall be the same as it was in case of the Share from which the reduced Share is derived; and |
| (e) | cancel Shares which, at the date of the passing of that 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 or, in the case of Shares without nominal par value, diminish the number of Shares into which its capital is divided. |
Dealing with fractions resulting from consolidation of Shares
| 10.2 | Whenever, as a result of a consolidation of Shares, any Members would become entitled to fractions of a Share the directors may on behalf of those Members: |
| (a) | sell the Shares representing the fractions for the best price reasonably obtainable to any person (including, subject to the provisions of the Law, the Company); and |
| (b) | distribute the net proceeds in due proportion among those Members. |
For that purpose, the directors may authorise some person to execute an instrument of transfer of the Shares to, or in accordance with the directions of, the purchaser. The transferee shall not be bound to see to the application of the purchase money nor shall the transferee’s title to the Shares be affected by any irregularity in, or invalidity of, the proceedings in respect of the sale.
Reducing share capital
| 10.3 | Subject to the Law and to any rights for the time being conferred on the Members holding a particular class of Shares, the Company may, by Special Resolution, reduce its share capital in any way. |
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| 11. | Redemption and purchase of own Shares |
Power to issue redeemable Shares and to purchase own Shares
| 11.1 | Subject to the Law and to any rights for the time being conferred on the Members holding a particular class of Shares, and, where applicable, the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law, the Company may by its directors: |
| (a) | issue Shares that are to be redeemed or liable to be redeemed, at the option of the Company or the Member holding those redeemable Shares, on the terms and in the manner its directors determine before the issue of those Shares; |
| (b) | with the consent by Special Resolution of the Members holding Shares of a particular class, vary the rights attaching to that class of Shares so as to provide that those Shares are to be redeemed or are liable to be redeemed at the option of the Company on the terms and in the manner which the directors determine at the time of such variation; and |
| (c) | purchase all or any of its own Shares of any class including any redeemable Shares on the terms and in the manner which the directors determine at the time of such purchase. |
The Company may make a payment in respect of the redemption or purchase of its own Shares in any manner authorised by the Law, including out of any combination of the following: capital, its profits and the proceeds of a fresh issue of Shares.
Power to pay for redemption or purchase in cash or in specie
| 11.2 | When making a payment in respect of the redemption or purchase of Shares, the directors may make the payment in cash or in specie (or partly in one and partly in the other) if so authorised by the terms of the allotment of those Shares, or by the terms applying to those Shares in accordance with Article 11.1, or otherwise by agreement with the Member holding those Shares. |
Effect of redemption or purchase of a Share
| 11.3 | Upon the date of redemption or purchase of a Share: |
| (a) | the Member holding that Share shall cease to be entitled to any rights in respect of the Share other than the right to receive: |
| (i) | the price for the Share; and |
| (ii) | any dividend declared in respect of the Share prior to the date of redemption or purchase; |
| (b) | the Member’s name shall be removed from the Register of Members with respect to the Share; and |
| (c) | the Share shall be cancelled or held as a Treasury Shares, as the directors may determine. |
For the purpose of this Article, the date of redemption or purchase is the date when the redemption or purchase falls due.
| 12. | Meetings of Members |
Power to call meetings
| 12.1 | To the extent required by the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law, an annual general meeting of the Company shall be held each year at such time as determined by the directors and the Company may, but shall not (unless required by the Law or the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law) be obliged to, in each year, hold any other general meeting. |
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| 12.2 | The agenda of the annual general meeting shall be set by the directors and shall include the presentation of the Company’s annual accounts and the report of the directors (if any). |
| 12.3 | Annual general meetings shall be held in New York, USA or in such other places as the directors may determine. |
| 12.4 | All general meetings other than annual general meetings shall be called extraordinary general meetings and the Company shall specify the meeting as such in the notices calling it. |
| 12.5 | The directors may call a general meeting at any time. |
| 12.6 | If there are insufficient directors to constitute a quorum and the remaining directors are unable to agree on the appointment of additional directors, the directors must call a general meeting for the purpose of appointing additional directors. |
| 12.7 | The directors must also call a general meeting if requisitioned in the manner set out in the next two Articles. |
| 12.8 | The requisition must be in writing and given by one or more Members who together hold at least 40% of the rights to vote at such general meeting. |
| 12.9 | The requisition must also: |
| (a) | specify the purpose of the meeting; |
| (b) | be signed by or on behalf of each requisitioner (and for this purpose each joint holder shall be obliged to sign). The requisition may consist of several documents in like form signed by one or more of the requisitioners; and |
| (c) | be delivered in accordance with the notice provisions. |
| 12.10 | Should the directors fail to call a general meeting within 21 Clear Days from the date of receipt of a requisition, the requisitioners or any of them may call a general meeting within three months after the end of that period. |
| 12.11 | Without limitation to the foregoing, if there are insufficient directors to constitute a quorum and the remaining directors are unable to agree on the appointment of additional directors, any one or more Members who together hold at least 40% of the rights to vote at a general meeting may call a general meeting for the purpose of considering the business specified in the notice of meeting which shall include as an item of business the appointment of additional directors. |
| 12.12 | 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. |
Content of notice
| 12.13 | Notice of a general meeting shall specify each of the following: |
| (a) | the place, the date and the hour of the meeting; |
| (b) | if the meeting is to be held in two or more places, the technology that will be used to facilitate the meeting; |
| (c) | subject to paragraph (d), the general nature of the business to be transacted; and |
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| (d) | if a resolution is proposed as a Special Resolution, the text of that resolution. |
| 12.14 | In each notice there shall appear with reasonable prominence the following statements: |
| (a) | that a Member who is entitled to attend and vote is entitled to appoint one or more proxies to attend and vote instead of that Member; and |
| (b) | that a proxyholder need not be a Member. |
Period of notice
| 12.15 | At least five Clear Days’ notice of a general meeting must be given to Members, 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 these 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 95% in par value of the Shares giving that right. |
Persons entitled to receive notice
| 12.16 | Subject to the provisions of these Articles and to any restrictions imposed on any Shares, the notice shall be given to the following people: |
| (a) | the Members; |
| (b) | persons entitled to a Share in consequence of the death or bankruptcy of a Member; and |
| (c) | the directors. |
Publication of notice on a website
| 12.17 | Subject to the Law or the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law, a notice of a general meeting may be published on a website providing the recipient is given separate notice of: |
| (a) | the publication of the notice on the website; |
| (b) | the place on the website where the notice may be accessed; |
| (c) | how it may be accessed; and |
| (d) | the place, date and time of the general meeting. |
| 12.18 | If a Member notifies the Company that he is unable for any reason to access the website, the Company must as soon as practicable give notice of the meeting to that Member by any other means permitted by these Articles. This will not affect when that Member is deemed to have received notice of the meeting. |
Time a website notice is deemed to be given
| 12.19 | A website notice is deemed to be given when the Member is given notice of its publication. |
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Required duration of publication on a website
| 12.20 | Where the notice of meeting is published on a website, it shall continue to be published in the same place on that website from the date of the notification until at least the conclusion of the meeting to which the notice relates. |
Accidental omission to give notice or non-receipt of notice
| 12.21 | Proceedings at a meeting shall not be invalidated by the following: |
| (a) | an accidental failure to give notice of the meeting to any person entitled to notice; or |
| (b) | non-receipt of notice of the meeting by any person entitled to notice. |
| 12.22 | In addition, where a notice of meeting is published on a website, proceedings at the meeting shall not be invalidated merely because it is accidentally published: |
| (a) | in a different place on the website; or |
| (b) | for part only of the period from the date of the notification until the conclusion of the meeting to which the notice relates. |
| 13. | Proceedings at meetings of Members |
Quorum
| 13.1 | Save as provided in the following Article, no business shall be transacted at any meeting unless a quorum is present in person or by proxy. One or more Members who together hold not less than one-third of the Shares entitled to vote at such meeting 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. |
Lack of quorum
| 13.2 | If a quorum is not present within 15 minutes of the time appointed for the meeting, or if at any time during the meeting it becomes inquorate, then the following provisions apply: |
| (a) | If the meeting was requisitioned by Members, it shall be cancelled. |
| (b) | In any other case, the meeting shall stand adjourned to the same time and place seven days hence, or to such other time or place as is determined by the directors. If a quorum is not present within 15 minutes of the time appointed for the adjourned meeting, then the meeting shall be dissolved. |
Use of technology
| 13.3 | A person may participate in a general meeting through the medium of conference telephone, video or any other form of communications equipment providing all persons participating in the meeting are able to hear and speak to each other throughout the meeting. A person participating in this way is deemed to be present in person at the meeting. |
Chairman
| 13.4 | The chairman of a general meeting shall be the chairman of the board or such other director as the directors have nominated to chair board meetings in the absence of the chairman of the board. Absent any such person being present within 15 minutes of the time appointed for the meeting, the directors present shall elect one of their number to chair the meeting. |
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| 13.5 | If no director is present within 15 minutes of the time appointed for the meeting, or if no director is willing to act as chairman, the Members present in person or by proxy and entitled to vote shall choose one of their number to chair the meeting. |
Right of a director to attend and speak
| 13.6 | Even if a director is not a Member, he shall be entitled to attend and speak at any general meeting and at any separate meeting of Members holding a particular class of Shares in the Company. |
Adjournment and Postponement
| 13.7 | The chairman may at any time adjourn a meeting. The chairman must adjourn the meeting if so directed by the meeting. No business, however, can be transacted at an adjourned meeting other than business which might properly have been transacted at the original meeting. |
| 13.8 | Should a meeting be adjourned for more than twenty Clear Days, whether because of a lack of quorum or otherwise, Members shall be given at least five Clear Days’ notice of the date, time and place of the adjourned meeting and the general nature of the business to be transacted. Otherwise it shall not be necessary to give any notice of the adjournment. |
| 13.9 | If a notice is issued in respect of a general meeting and the directors, in their absolute discretion, consider that it is impractical or undesirable for any reason to hold that general meeting at the place, the day and the hour specified in the notice calling such general meeting, the directors may postpone the general meeting to another place, day and/or hour provided that notice of the place, the day and the hour of the rearranged general meeting is promptly given to all Members. No business shall be transacted at any postponed meeting other than the business specified in the notice of the original meeting. |
| 13.10 | When a general meeting is postponed for thirty days or more, notice of the postponed meeting shall be given as in the case of an original meeting. Otherwise it shall not be necessary to give any such notice of a postponed meeting. All proxy forms submitted for the original general meeting shall remain valid for the postponed meeting. The directors may postpone a general meeting which has already been postponed. |
Method of voting
| 13.11 | A resolution put to the vote of the meeting shall be decided on a poll. |
Taking of a poll
| 13.12 | A poll demanded on the question of adjournment shall be taken immediately. |
| 13.13 | A poll demanded on any other question shall be taken either immediately or at an adjourned meeting at such time and place as the chairman directs, not being more than 30 Clear Days after the poll was demanded. |
| 13.14 | The demand for a poll shall not prevent the meeting continuing to transact any business other than the question on which the poll was demanded. |
| 13.15 | A poll shall be taken in such manner as the chairman directs. He may appoint scrutineers (who need not be Members) and fix a place and time for declaring the result of the poll. If, through the aid of technology, the meeting is held in more than place, the chairman may appoint scrutineers in more than place; but if he considers that the poll cannot be effectively monitored at that meeting, the chairman shall adjourn the holding of the poll to a date, place and time when that can occur. |
Chairman’s casting vote
| 13.16 | If the votes on a resolution are equal, the chairman may if he wishes exercise a casting vote. |
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Amendments to resolutions
| 13.17 | An Ordinary Resolution to be proposed at a general meeting may be amended by Ordinary Resolution if: |
| (a) | not less than 48 hours before the meeting is to take place (or such later time as the chairman of the meeting may determine), notice of the proposed amendment is given to the Company in writing by a Member entitled to vote at that meeting; and |
| (b) | the proposed amendment does not, in the reasonable opinion of the chairman of the meeting, materially alter the scope of the resolution. |
| 13.18 | A Special Resolution to be proposed at a general meeting may be amended by Ordinary Resolution, if: |
| (a) | the chairman of the meeting proposes the amendment at the general meeting at which the resolution is to be proposed, and |
| (b) | the amendment does not go beyond what the chairman considers is necessary to correct a grammatical or other non-substantive error in the resolution. |
| 13.19 | If the chairman of the meeting, acting in good faith, wrongly decides that an amendment to a resolution is out of order, the chairman’s error does not invalidate the vote on that resolution. |
Written resolutions
| 13.20 | Members may pass a resolution in writing without holding a meeting if the following conditions are met: |
| (a) | all Members entitled so to vote are given notice of the resolution as if the same were being proposed at a meeting of Members; |
| (b) | all Members entitled so to vote: |
| (i) | sign a document; or |
| (ii) | sign several documents in the like form each signed by one or more of those Members; and |
| (c) | the signed document or documents is or are delivered to the Company, including, if the Company so nominates, by delivery of an Electronic Record by Electronic means to the address specified for that purpose. |
Such written resolution shall be as effective as if it had been passed at a meeting of the Members entitled to vote duly convened and held.
| 13.21 | If a written resolution is described as a Special Resolution or as an Ordinary Resolution, it has effect accordingly. |
| 13.22 | The directors may determine the manner in which written resolutions shall be put to Members. In particular, they may provide, in the form of any written resolution, for each Member to indicate, out of the number of votes the Member would have been entitled to cast at a meeting to consider the resolution, how many votes he wishes to cast in favour of the resolution and how many against the resolution or to be treated as abstentions. The result of any such written resolution shall be determined on the same basis as on a poll. |
Sole-member company
| 13.23 | If the Company has only one Member, and the Member records in writing his decision on a question, that record shall constitute both the passing of a resolution and the minute of it. |
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| 14. | Voting rights of Members |
Right to vote
| 14.1 | Unless their Shares carry no right to vote, or unless a call or other amount presently payable has not been paid, all Members are entitled to vote at a general meeting, and all Members holding Shares of a particular class of Shares are entitled to vote at a meeting of the holders of that class of Shares. |
| 14.2 | Members may vote in person or by proxy. |
| 14.3 | Every Member shall have one vote for each Share he holds, unless any Share carries special voting rights. |
| 14.4 | A fraction of a Share shall entitle its holder to an equivalent fraction of one vote. |
| 14.5 | No Member is bound to vote on his Shares or any of them; nor is he bound to vote each of his Shares in the same way. |
Rights of joint holders
| 14.6 | If Shares are held jointly, only one of the joint holders may vote. If more than one of the joint holders tenders a vote, the vote of the holder whose name in respect of those Shares appears first in the Register of Members shall be accepted to the exclusion of the votes of the other joint holder. |
Representation of corporate Members
| 14.7 | Save where otherwise provided, a corporate Member must act by a duly authorised representative. |
| 14.8 | A corporate Member wishing to act by a duly authorised representative must identify that person to the Company by notice in writing. |
| 14.9 | The authorisation may be for any period of time, and must be delivered to the Company not less than two hours before the commencement of the meeting at which it is first used. |
| 14.10 | The directors of the Company may require the production of any evidence which they consider necessary to determine the validity of the notice. |
| 14.11 | Where a duly authorised representative is present at a meeting that Member is deemed to be present in person; and the acts of the duly authorised representative are personal acts of that Member. |
| 14.12 | A corporate Member may revoke the appointment of a duly authorised representative at any time by notice to the Company; but such revocation will not affect the validity of any acts carried out by the duly authorised representative before the directors of the Company had actual notice of the revocation. |
| 14.13 | 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)). |
Member with mental disorder
| 14.14 | A Member in respect of whom an order has been made by any court having jurisdiction (whether in the Islands or elsewhere) in matters concerning mental disorder may vote, by that Member’s receiver, curator bonis or other person authorised in that behalf appointed by that court. |
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| 14.15 | For the purpose of the preceding Article, evidence to the satisfaction of the directors of the authority of the person claiming to exercise the right to vote must be received not less than 24 hours before holding the relevant meeting or the adjourned meeting in any manner specified for the delivery of forms of appointment of a proxy, whether in writing or by Electronic means. In default, the right to vote shall not be exercisable. |
Objections to admissibility of votes
| 14.16 | An objection to the validity of a person’s vote may only be raised at the meeting or at the adjourned meeting at which the vote is sought to be tendered. Any objection duly made shall be referred to the chairman whose decision shall be final and conclusive. |
Form of proxy
| 14.17 | An instrument appointing a proxy shall be in any common form or in any other form approved by the directors. |
| 14.18 | The instrument must be in writing and signed in one of the following ways: |
| (a) | by the Member; or |
| (b) | by the Member’s authorised attorney; or |
| (c) | if the Member is a corporation or other body corporate, under seal or signed by an authorised officer, secretary or attorney. |
If the directors so resolve, the Company may accept an Electronic Record of that instrument delivered in the manner specified below and otherwise satisfying these Articles about authentication of Electronic Records.
| 14.19 | The directors may require the production of any evidence which they consider necessary to determine the validity of any appointment of a proxy. |
| 14.20 | A Member may revoke the appointment of a proxy at any time by notice to the Company duly signed in accordance with the Article above about signing proxies; but such revocation will not affect the validity of any acts carried out by the proxy before the directors of the Company had actual notice of the revocation. |
How and when proxy is to be delivered
| 14.21 | Subject to the following Articles, the form of appointment of a proxy and any authority under which it is signed (or a copy of the authority certified notarially or in any other way approved by the directors) must be delivered so that it is received by the Company not less than 48 hours before the time for holding the meeting or adjourned meeting at which the person named in the form of appointment of proxy proposes to vote. They must be delivered in either of the following ways: |
| (a) | In the case of an instrument in writing, it must be left at or sent by post: |
| (i) | to the registered office of the Company; or |
| (ii) | to such other place specified in the notice convening the meeting or in any form of appointment of proxy sent out by the Company in relation to the meeting. |
| (b) | If, pursuant to the notice provisions, a notice may be given to the Company in an Electronic Record, an Electronic Record of an appointment of a proxy must be sent to the address specified pursuant to those provisions unless another address for that purpose is specified: |
| (i) | in the notice convening the meeting; or |
| (ii) | in any form of appointment of a proxy sent out by the Company in relation to the meeting; or |
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| (iii) | in any invitation to appoint a proxy issued by the Company in relation to the meeting. |
| 14.22 | Subject to the following Article, where a poll is taken: |
| (a) | if it is taken more than seven Clear Days after it is demanded, the form of appointment of a proxy and any accompanying authority (or an Electronic Record of the same) must be delivered as required under the preceding Article not less than 24 hours before the time appointed for the taking of the poll; or |
| (b) | if it is to be taken within seven Clear Days after it was demanded, the form of appointment of a proxy and any accompanying authority (or an Electronic Record of the same) must be delivered as required under the preceding Article not less than two hours before the time appointed for the taking of the poll. |
| 14.23 | Notwithstanding the preceding Articles: |
| (a) | the directors may, in the notice convening a meeting or in any form of appointment of a proxy sent out by the Company in relation to the meeting, specify another time (being not later than the time appointed for the commencement of the meeting or adjourned meeting) by which the form of appointment of a proxy and any accompanying authority (or an Electronic Record of the same) must be delivered to the Company pursuant to Article 14.21); and |
| (b) | The chairman may in any event at his discretion declare that the form of appointment of a proxy and any accompanying authority (or an Electronic Record of the same) shall be deemed to have been duly deposited. |
| (c) | If the form of appointment of proxy is not delivered on time, it is (unless the chairman declares it to be duly deposited) invalid. |
Voting by proxy
| 14.24 | A proxy shall have the same voting rights at a meeting or adjourned meeting as the Member would have had except to the extent that the instrument appointing him limits those rights. Notwithstanding the appointment of a proxy, a Member may attend and vote at a meeting or adjourned meeting. If a Member votes on any resolution a vote by his proxy on the same resolution, unless in respect of different Shares, shall be invalid. |
| 15. | Number of directors |
Unless otherwise determined by Ordinary Resolution, the minimum number of directors shall be one and the maximum shall be nine.
| 16. | Appointment, disqualification and removal of directors |
No age limit
| 16.1 | There is no age limit for directors save that they must be aged at least 18 years. |
Corporate directors
| 16.2 | Unless prohibited by Applicable Law, a body corporate may be a director. If a body corporate is a director, these Articles about representation of corporate Members at general meetings apply, mutatis mutandis, to these Articles about directors’ meetings. |
No shareholding qualification
| 16.3 | Unless a shareholding qualification for directors is fixed by Ordinary Resolution, no director shall be required to own Shares as a condition of his appointment. |
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Appointment and removal of directors
| 16.4 | The directors shall be divided into three classes: Class I, Class II and Class III. The number of directors in each class shall be as nearly equal as possible. Upon the adoption of the Articles, the existing directors shall by resolution classify themselves as Class I, Class II or Class III directors. The Class I directors shall stand elected for a term expiring at the Company’s first annual general meeting, the Class II directors shall stand elected for a term expiring at the Company’s second annual general meeting and the Class III directors shall stand elected for a term expiring at the Company’s third annual general meeting. Commencing at the Company’s first annual general meeting, and at each annual general meeting thereafter, directors elected to succeed those directors whose terms expire shall be elected for a term of office to expire at the third succeeding annual general meeting after their election. All directors shall hold office until the expiration of their respective terms of office and until their successors shall have been elected and qualified. A director elected to fill a vacancy resulting from the death, resignation or removal of a director shall serve for the remainder of the full term of the director whose death, resignation or removal shall have created such vacancy and until his successor shall have been elected and qualified. |
| 16.5 | The Company may by Ordinary Resolution appoint any person to be a director or may by Ordinary Resolution remove any director. |
| 16.6 | Without prejudice to the Company’s power to appoint a person to be a director pursuant to these Articles, the directors shall have power at any time to appoint any person who is willing to act as a director, either to fill a vacancy or as an additional director. A director elected to fill a vacancy resulting from the death, resignation or removal of a director shall serve for the remainder of the full term of the director whose death, resignation or removal shall have created such vacancy and until his successor shall have been elected and qualified. |
| 16.7 | Notwithstanding the other provisions of these Articles, in any case where, as a result of death, the Company has no directors and no shareholders, the personal representatives of the last shareholder to have died have the power, by notice in writing to the Company, to appoint a person to be a director. For the purpose of this Article: |
| (a) | where two or more shareholders die in circumstances rendering it uncertain who was the last to die, a younger shareholder is deemed to have survived an older shareholder; |
| (b) | if the last shareholder died leaving a will which disposes of that shareholder’s shares in the Company (whether by way of specific gift, as part of the residuary estate, or otherwise): |
| (i) | the expression personal representatives of the last shareholder means: |
| (A) | until a grant of probate in respect of that will has been obtained from the Grand Court of the Cayman Islands, all of the executors named in that will who are living at the time the power of appointment under this Article is exercised; and |
| (B) | after such grant of probate has been obtained, only such of those executors who have proved that will; |
| (ii) | without derogating from section 3(1) of the Succession Law (As Revised), the executors named in that will may exercise the power of appointment under this Article without first obtaining a grant of probate. |
| 16.8 | A remaining director may appoint a director even though there is not a quorum of directors. |
| 16.9 | No appointment can cause the number of directors to exceed the maximum; and any such appointment shall be invalid. |
| 16.10 | For so long as Shares are listed on a Designated Stock Exchange, the directors shall include at least such number of Independent Directors as Applicable Law or the rules and regulations of the Designated Stock Exchange require, subject to applicable phase-in rules of the Designated Stock Exchange. |
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Resignation of directors
| 16.11 | A director may at any time resign office by giving to the Company notice in writing or, if permitted pursuant to the notice provisions, in an Electronic Record delivered in either case in accordance with those provisions. |
| 16.12 | Unless the notice specifies a different date, the director shall be deemed to have resigned on the date that the notice is delivered to the Company. |
Termination of the office of director
| 16.13 | A director’s office shall be terminated forthwith if: |
| (a) | he is prohibited by the law of the Islands from acting as a director; or |
| (b) | he is made bankrupt or makes an arrangement or composition with his creditors generally; or |
| (c) | in the opinion of a registered medical practitioner by whom he is being treated he becomes physically or mentally incapable of acting as a director; or |
| (d) | he is made subject to any law relating to mental health or incompetence, whether by court order or otherwise; |
| (e) | without the consent of the other directors, he is absent from meetings of directors for a continuous period of six months; or |
| (f) | 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 these Articles or by a resolution in writing signed by all of the other directors. |
| 17. | Alternate directors |
Appointment and removal
| 17.1 | Any director may appoint any other person, including another director, to act in his place as an alternate director. No appointment shall take effect until the director has given notice of the appointment to the other directors. Such notice must be given to each other director by either of the following methods: |
| (a) | by notice in writing in accordance with the notice provisions; |
| (b) | if the other director has an email address, by emailing to that address a scanned copy of the notice as a PDF attachment (the PDF version being deemed to be the notice unless Article 32.7 applies), in which event notice shall be taken to be given on the date of receipt by the recipient in readable form. For the avoidance of doubt, the same email may be sent to the email address of more than one director (and to the email address of the Company pursuant to Article 17.4(c)). |
| 17.2 | Without limitation to the preceding Article, a director may appoint an alternate for a particular meeting by sending an email to his fellow directors informing them that they are to take such email as notice of such appointment for such meeting. Such appointment shall be effective without the need for a signed notice of appointment or the giving of notice to the Company in accordance with Article 17.4. |
| 17.3 | A director may revoke his appointment of an alternate at any time. No revocation shall take effect until the director has given notice of the revocation to the other directors. Such notice must be given by either of the methods specified in Article 17.1. |
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| 17.4 | A notice of appointment or removal of an alternate director must also be given to the Company by any of the following methods: |
| (a) | by notice in writing in accordance with the notice provisions; |
| (b) | if the Company has a facsimile address for the time being, by sending by facsimile transmission to that facsimile address a facsimile copy or, otherwise, by sending by facsimile transmission to the facsimile address of the Company’s registered office a facsimile copy (in either case, the facsimile copy being deemed to be the notice unless Article 32.7 applies), in which event notice shall be taken to be given on the date of an error-free transmission report from the sender’s fax machine; |
| (c) | if the Company has an email address for the time being, by emailing to that email address a scanned copy of the notice as a PDF attachment or, otherwise, by emailing to the email address provided by the Company’s registered office a scanned copy of the notice as a PDF attachment (in either case, the PDF version being deemed to be the notice unless Article 32.7 applies), in which event notice shall be taken to be given on the date of receipt by the Company or the Company’s registered office (as appropriate) in readable form; or |
| (d) | if permitted pursuant to the notice provisions, in some other form of approved Electronic Record delivered in accordance with those provisions in writing. |
Notices
| 17.5 | All notices of meetings of directors shall continue to be given to the appointing director and not to the alternate. |
Rights of alternate director
| 17.6 | An alternate director shall be entitled to attend and vote at any board meeting or meeting of a committee of the directors at which the appointing director is not personally present, and generally to perform all the functions of the appointing director in his absence. |
| 17.7 | For the avoidance of doubt: |
| (a) | if another director has been appointed an alternate director for one or more directors, he shall be entitled to a separate vote in his own right as a director and in right of each other director for whom he has been appointed an alternate; and |
| (b) | if a person other than a director has been appointed an alternate director for more than one director, he shall be entitled to a separate vote in right of each director for whom he has been appointed an alternate. |
| 17.8 | An alternate director, however, is not entitled to receive any remuneration from the Company for services rendered as an alternate director. |
Appointment ceases when the appointor ceases to be a director
| 17.9 | An alternate director shall cease to be an alternate director if the director who appointed him ceases to be a director. |
Status of alternate director
| 17.10 | An alternate director shall carry out all functions of the director who made the appointment. |
| 17.11 | Save where otherwise expressed, an alternate director shall be treated as a director under these Articles. |
| 17.12 | An alternate director is not the agent of the director appointing him. |
| 17.13 | An alternate director is not entitled to any remuneration for acting as alternate director. |
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Status of the director making the appointment
| 17.14 | A director who has appointed an alternate is not thereby relieved from the duties which he owes the Company. |
| 18. | Powers of directors |
Powers of directors
| 18.1 | Subject to the provisions of the Law, the Memorandum and these Articles, the business of the Company shall be managed by the directors who may for that purpose exercise all the powers of the Company. |
| 18.2 | No prior act of the directors shall be invalidated by any subsequent alteration of the Memorandum or these Articles. However, to the extent permitted under Applicable Law, Members may by Special Resolution validate any prior or future act of the directors which would otherwise be in breach of their duties. |
Appointments to office
| 18.3 | The directors may appoint a director: |
| (a) | as chairman of the board of directors; |
| (b) | as vice-chairman of the board of directors; |
| (c) | as managing director; |
| (d) | to any other executive office |
for such period and on such terms, including as to remuneration, as they think fit.
| 18.4 | The appointee must consent in writing to holding that office. |
| 18.5 | Where a chairman is appointed he shall, unless unable to do so, preside at every meeting of directors. |
| 18.6 | If there is no chairman, or if the chairman is unable to preside at a meeting, that meeting may select its own chairman; or the directors may nominate one of their number to act in place of the chairman should he ever not be available. |
| 18.7 | Subject to the provisions of the Law, the directors may also appoint any person, who need not be a director: |
| (a) | as Secretary; and |
| (b) | to any office that may be required (including, for the avoidance of doubt, one or more chief executive officers, presidents, a chief financial officer, a treasurer, vice-presidents, one or more assistant vice-presidents, one or more assistant treasurers and one or more assistant secretaries), |
for such period and on such terms, including as to remuneration, as they think fit. In the case of an Officer, that Officer may be given any title the directors decide.
| 18.8 | The Secretary or other Officer must consent in writing to holding that office. |
| 18.9 | A Secretary, director or other Officer of the Company may not hold the office, or perform the services, of Auditor. |
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Remuneration
| 18.10 | 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 out of pocket expenses properly incurred by them in connection with activities on behalf of the Company. |
| 18.11 | Remuneration may take any form and may include arrangements to pay pensions, health insurance, death or sickness benefits, whether to the director or to any other person connected to or related to him. |
| 18.12 | Unless his fellow directors determine otherwise, a director is not accountable to the Company for remuneration or other benefits received from any other company which is in the same group as the Company or which has common shareholdings. |
Disclosure of information
| 18.13 | The directors may release or disclose to a third party any information regarding the affairs of the Company, including any information contained in the Register of Members relating to a Member, (and they may authorise any director, Officer or other authorised agent of the Company to release or disclose to a third party any such information in his possession) if: |
| (a) | the Company or that person, as the case may be, is lawfully required to do so under the laws of any jurisdiction to which the Company is subject; or |
| (b) | such disclosure is in compliance with the rules of any stock exchange upon which the Company’s shares are listed; or |
| (c) | such disclosure is in accordance with any contract entered into by the Company; or |
| (d) | the directors are of the opinion such disclosure would assist or facilitate the Company’s operations. |
| 19. | Delegation of powers |
Power to delegate any of the directors’ powers to a committee
| 19.1 | The directors may delegate any of their powers to any committee consisting of one or more persons who need not be Members (including, without limitation, the Audit Committee, the Compensation Committee and the Nominating Committee). Persons on the committee may include non-directors so long as the majority of those persons are directors. |
| 19.2 | The delegation may be collateral with, or to the exclusion of, the directors’ own powers. |
| 19.3 | The delegation may be on such terms as the directors think fit, including provision for the committee itself to delegate to a sub-committee; save that any delegation must be capable of being revoked or altered by the directors at will. |
| 19.4 | Unless otherwise permitted by the directors, a committee must follow the procedures prescribed for the taking of decisions by directors. |
| 19.5 | The directors may adopt formal written charters for committees and, if so adopted, shall review and assess the adequacy of such formal written charters on an annual basis. Each of these committees shall be empowered to do all things necessary to exercise the rights of such committee set forth in the Articles and shall have such powers as the directors may delegate pursuant to the Articles and as required by the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law. Each of the Audit Committee, the Compensation Committee and the Nominating Committee, if established, shall consist of such number of directors as the directors shall from time to time determine (or such minimum number as may be required from time to time by the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law). For so long as any class of Shares is listed on the Designated Stock Exchange, the Audit Committee, the Compensation Committee and the Nominating and Corporate Governance Committee shall be made up of such number of Independent Directors as is required from time to time by the rules and regulations of the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law. |
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Power to appoint an agent of the Company
| 19.6 | The directors may appoint any person, either generally or in respect of any specific matter, to be the agent of the Company with or without authority for that person to delegate all or any of that person’s powers. The directors may make that appointment: |
| (a) | by causing the Company to enter into a power of attorney or agreement; or |
| (b) | in any other manner they determine. |
Power to appoint an attorney or authorised signatory of the Company
| 19.7 | The directors may appoint any person, whether nominated directly or indirectly by the directors, to be the attorney or the authorised signatory of the Company. The appointment may be: |
| (a) | for any purpose; |
| (b) | with the powers, authorities and discretions; |
| (c) | for the period; and |
| (d) | subject to such conditions |
as they think fit. The powers, authorities and discretions, however, must not exceed those vested in, or exercisable, by the directors under these Articles. The directors may do so by power of attorney or any other manner they think fit.
| 19.8 | Any power of attorney or other appointment may contain such provision for the protection and convenience for persons dealing with the attorney or authorised signatory as the directors think fit. Any power of attorney or other appointment may also authorise the attorney or authorised signatory to delegate all or any of the powers, authorities and discretions vested in that person. |
Power to appoint a proxy
| 19.9 | Any director may appoint any other person, including another director, to represent him at any meeting of the directors. If a director appoints a proxy, then for all purposes the presence or vote of the proxy shall be deemed to be that of the appointing director. |
| 19.10 | Articles 17.1 to 17.4 inclusive (relating to the appointment by directors of alternate directors) apply, mutatis mutandis, to the appointment of proxies by directors. |
| 19.11 | A proxy is an agent of the director appointing him and is not an Officer. |
| 20. | Meetings of directors |
Regulation of directors’ meetings
| 20.1 | Subject to the provisions of these Articles, the directors may regulate their proceedings as they think fit. |
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Calling meetings
| 20.2 | Any director may call a meeting of directors at any time. The Secretary, if any, must call a meeting of the directors if requested to do so by a director. |
Notice of meetings
| 20.3 | Every director shall be given notice of a meeting, although a director may waive retrospectively the requirement to be given notice. Notice may be oral. Attendance at a meeting without written objection shall be deemed to be a waiver of such notice requirement. |
Period of notice
| 20.4 | At least five Clear Days’ notice of a meeting of directors must be given to directors. A meeting may be convened on shorter notice with the consent of all directors. |
Use of technology
| 20.5 | A director may participate in a meeting of directors through the medium of conference telephone, video or any other form of communications equipment providing all persons participating in the meeting are able to hear and speak to each other throughout the meeting. |
| 20.6 | A director participating in this way is deemed to be present in person at the meeting. |
Place of meetings
| 20.7 | If all the directors participating in a meeting are not in the same place, they may decide that the meeting is to be treated as taking place wherever any of them is. |
Quorum
| 20.8 | The quorum for the transaction of business at a meeting of directors shall be two unless the directors fix some other number or unless the Company has only one director. |
Voting
| 20.9 | A question which arises at a board meeting shall be decided by a majority of votes. If votes are equal the chairman may, if he wishes, exercise a casting vote. |
Validity
| 20.10 | Anything done at a meeting of directors is unaffected by the fact that it is later discovered that any person was not properly appointed, or had ceased to be a director, or was otherwise not entitled to vote. |
Recording of dissent
| 20.11 | A director present at a meeting of directors shall be presumed to have assented to any action taken at that meeting unless: |
| (a) | his dissent is entered in the minutes of the meeting; or |
| (b) | he has filed with the meeting before it is concluded signed dissent from that action; or |
| (c) | he has forwarded to the Company as soon as practical following the conclusion of that meeting signed dissent. |
A director who votes in favour of an action is not entitled to record his dissent to it.
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Written resolutions
| 20.12 | The directors may pass a resolution in writing without holding a meeting if all directors sign a document or sign several documents in the like form each signed by one or more of those directors. |
| 20.13 | Despite the foregoing, a resolution in writing signed by a validly appointed alternate director or by a validly appointed proxy need not also be signed by the appointing director. If a written resolution is signed personally by the appointing director, it need not also be signed by his alternate or proxy. |
| 20.14 | Such written resolution shall be as effective as if it had been passed at a meeting of the directors duly convened and held; and it shall be treated as having been passed on the day and at the time that the last director signs. |
Sole director’s minute
| 20.15 | Where a sole director signs a minute recording his decision on a question, that record shall constitute the passing of a resolution in those terms. |
| 21. | Permissible directors’ interests and disclosure |
Permissible interests subject to disclosure
| 21.1 | Save as expressly permitted by these Articles or as set out below, a director may not have a direct or indirect interest or duty which conflicts or may possibly conflict with the interests of the Company. |
| 21.2 | If, notwithstanding the prohibition in the preceding Article, a director discloses to his fellow directors the nature and extent of any material interest or duty in accordance with the next Article, he may: |
| (a) | be a party to, or otherwise interested in, any transaction or arrangement with the Company or in which the Company is or may otherwise be interested; or |
| (b) | be interested in another body corporate promoted by the Company or in which the Company is otherwise interested. In particular, the director may be a director, secretary or officer of, or employed by, or be a party to any transaction or arrangement with, or otherwise interested in, that other body corporate. |
| 21.3 | Such disclosure may be made at a meeting of the board or otherwise (and, if otherwise, it must be made in writing). The director must disclose the nature and extent of his direct or indirect interest in or duty in relation to a transaction or arrangement or series of transactions or arrangements with the Company or in which the Company has any material interest. |
| 21.4 | If a director has made disclosure in accordance with the preceding Article, then he shall not, by reason only of his office, be accountable to the Company for any benefit that he derives from any such transaction or arrangement or from any such office or employment or from any interest in any such body corporate, and no such transaction or arrangement shall be liable to be avoided on the ground of any such interest or benefit. |
Notification of interests
| 21.5 | For the purposes of the preceding Articles: |
| (a) | a general notice that a director gives to the other directors that he is to be regarded as having an interest of the nature and extent specified in the notice in any transaction or arrangement in which a specified person or class of persons is interested shall be deemed to be a disclosure that he has an interest in or duty in relation to any such transaction of the nature and extent so specified; and |
| (b) | an interest of which a director has no knowledge and of which it is unreasonable to expect him to have knowledge shall not be treated as an interest of his. |
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Voting where a director is interested in a matter
| 21.6 | A director may vote at a meeting of directors on any resolution concerning a matter in which that director has an interest or duty, whether directly or indirectly, so long as that director discloses any material interest pursuant to these Articles. The director shall be counted towards a quorum of those present at the meeting. If the director votes on the resolution, his vote shall be counted. |
| 21.7 | Where proposals are under consideration concerning the appointment of two or more directors to offices or employment with the Company or any body corporate in which the Company is interested, the proposals may be divided and considered in relation to each director separately and each of the directors concerned shall be entitled to vote and be counted in the quorum in respect of each resolution except that concerning his or her own appointment. |
| 22. | Minutes |
The Company shall cause minutes to be made in books kept for the purpose in accordance with the Law.
| 23. | Accounts and audit |
Accounting and other records
| 23.1 | The directors must ensure that proper accounting and other records are kept, and that accounts and associated reports are distributed in accordance with the requirements of the Law. |
No automatic right of inspection
| 23.2 | Members are only entitled to inspect the Company’s records if they are expressly entitled to do so by law, or by resolution made by the directors or passed by Ordinary Resolution. |
Sending of accounts and reports
| 23.3 | The Company’s accounts and associated directors’ report or auditor’s report that are required or permitted to be sent to any person pursuant to any law shall be treated as properly sent to that person if: |
| (a) | they are sent to that person in accordance with the notice provisions: or |
| (b) | they are published on a website providing that person is given separate notice of: |
| (i) | the fact that publication of the documents has been published on the website; |
| (ii) | the address of the website; and |
| (iii) | the place on the website where the documents may be accessed; and |
| (iv) | how they may be accessed. |
| 23.4 | If, for any reason, a person notifies the Company that he is unable to access the website, the Company must, as soon as practicable, send the documents to that person by any other means permitted by these Articles. This, however, will not affect when that person is taken to have received the documents under the next Article. |
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Time of receipt if documents are published on a website
| 23.5 | Documents sent by being published on a website in accordance with the preceding two Articles are only treated as sent at least five Clear Days before the date of the meeting at which they are to be laid if: |
| (a) | the documents are published on the website throughout a period beginning at least five Clear Days before the date of the meeting and ending with the conclusion of the meeting; and |
| (b) | the person is given at least five Clear Days’ notice of the hearing. |
Validity despite accidental error in publication on website
| 23.6 | If, for the purpose of a meeting, documents are sent by being published on a website in accordance with the preceding Articles, the proceedings at that meeting are not invalidated merely because: |
| (a) | those documents are, by accident, published in a different place on the website to the place notified; or |
| (b) | they are published for part only of the period from the date of notification until the conclusion of that meeting. |
Audit
| 23.7 | The directors may appoint an Auditor of the Company who shall hold office on such terms as the directors determine. |
| 23.8 | 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. |
| 23.9 | If the Shares 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. |
| 23.10 | The remuneration of the Auditor shall be fixed by the Audit Committee (if one exists). |
| 23.11 | 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. |
| 23.12 | 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 other Officers of the Company such information and explanation as may be necessary for the performance of the duties of the Auditor. |
| 23.13 | 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. |
| 23.14 | Any payment made to members of the Audit Committee (if one exists) shall require the review and approval of the directors, with any director interested in such payment abstaining from such review and approval. |
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| 24. | Financial year |
Unless the directors otherwise specify, the financial year of the Company:
| (a) | shall end on 31st December in the year of its incorporation and each following year; and |
| (b) | shall begin when it was incorporated and on 1st January each following year. |
| 25. | Record dates |
Except to the extent of any conflicting rights attached to Shares, the directors may fix any time and date as the record date for:
| (a) | calling a general meeting; |
| (b) | declaring or paying a dividend; |
| (c) | making or issuing an allotment of Shares; or |
| (d) | conducting any other business required pursuant to these Articles. |
The record date may be before or after the date on which a dividend, allotment or issue is declared, paid or made.
| 26. | Dividends |
Declaration of dividends by directors
| 26.1 | The directors may from time to time declare dividends (including interim dividends) in accordance with the respective rights of the Members if it appears to them that they are justified by the financial position of the Company and that such dividends may lawfully be paid. |
| 26.2 | Subject to the provisions of the Law, in relation to the distinction between interim dividends and final dividends, the following applies: |
| (a) | Upon determination to pay a dividend or dividends described as interim by the directors in the dividend resolution, no debt shall be created by the declaration until such time as payment is made. |
| (b) | Upon declaration of a dividend or dividends described as final by the directors in the dividend resolution, a debt shall be created immediately following the declaration, the due date to be the date the dividend is stated to be payable in the resolution. |
If the resolution fails to specify whether a dividend is final or interim, it shall be assumed to be interim.
| 26.3 | In relation to Shares carrying differing rights to dividends or rights to dividends at a fixed rate, the following applies: |
| (a) | If the share capital is divided into different classes, the directors may pay dividends on Shares which confer deferred or non- preferred rights with regard to dividends as well as on Shares which confer preferential rights with regard to dividends but no dividend shall be paid on Shares carrying deferred or non-preferred rights if, at the time of payment, any preferential dividend is in arrears. |
| (b) | The directors may also pay, at intervals settled by them, any dividend payable at a fixed rate if it appears to them that there are sufficient funds of the Company lawfully available for distribution to justify the payment. |
| (c) | If the directors act in good faith, they shall not incur any liability to the Members holding Shares conferring preferred rights for any loss those Members may suffer by the lawful payment of the dividend on any Shares having deferred or non-preferred rights. |
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Apportionment of dividends
| 26.4 | Except as otherwise provided by the rights attached to Shares, all dividends shall be declared and paid according to the amounts paid up on the Shares on which the dividend is paid. All dividends shall be apportioned and paid proportionately to the amount paid up on the Shares during the time or part of the time in respect of which the dividend is paid. If a Share is issued on terms providing that it shall rank for dividend as from a particular date, that Share shall rank for dividend accordingly. |
Right of set off
| 26.5 | The directors may deduct from a dividend or any other amount payable to a person in respect of a Share any amount due by that person to the Company on a call or otherwise in relation to a Share. |
Power to pay other than in cash
| 26.6 | If the directors so determine, any resolution declaring a dividend may direct that it shall be satisfied wholly or partly by the distribution of assets. If a difficulty arises in relation to the distribution, the directors may settle that difficulty in any way they consider appropriate. For example, they may do any one or more of the following: |
| (a) | issue fractional Shares; |
| (b) | fix the value of assets for distribution and make cash payments to some Members on the footing of the value so fixed in order to adjust the rights of Members; and |
| (c) | vest some assets in trustees. |
How payments may be made
| 26.7 | A dividend or other monies payable on or in respect of a Share may be paid in any of the following ways: |
| (a) | if the Member holding that Share or other person entitled to that Share nominates a bank account for that purpose, by wire transfer to that bank account; or |
| (b) | by cheque or warrant sent by post to the registered address of the Member holding that Share or other person entitled to that Share. |
| 26.8 | For the purpose of paragraph (a) of the preceding Article, the nomination may be in writing or in an Electronic Record and the bank account nominated may be the bank account of another person. For the purpose of paragraph (b) of the preceding Article, subject to any Applicable Law or regulation, the cheque or warrant shall be made to the order of the Member holding that Share or other person entitled to the Share or to his nominee, whether nominated in writing or in an Electronic Record, and payment of the cheque or warrant shall be a good discharge to the Company. |
| 26.9 | If two or more persons are registered as the holders of the Share or are jointly entitled to it by reason of the death or bankruptcy of the registered holder (Joint Holders), a dividend (or other amount) payable on or in respect of that Share may be paid as follows: |
| (a) | to the registered address of the Joint Holder of the Share who is named first on the Register of Members or to the registered address of the deceased or bankrupt holder, as the case may be; or |
| (b) | to the address or bank account of another person nominated by the Joint Holders, whether that nomination is in writing or in an Electronic Record. |
| 26.10 | Any Joint Holder of a Share may give a valid receipt for a dividend (or other amount) payable in respect of that Share. |
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Dividends or other moneys not to bear interest in absence of special rights
| 26.11 | Unless provided for by the rights attached to a Share, no dividend or other monies payable by the Company in respect of a Share shall bear interest. |
Dividends unable to be paid or unclaimed
| 26.12 | If a dividend cannot be paid to a Member or remains unclaimed within six weeks after it was declared or both, the directors may pay it into a separate account in the Company’s name. If a dividend is paid into a separate account, the Company shall not be constituted trustee in respect of that account and the dividend shall remain a debt due to the Member. |
| 26.13 | A dividend that remains unclaimed for a period of six years after it became due for payment shall be forfeited to, and shall cease to remain owing by, the Company. |
| 27. | Capitalisation of profits |
Capitalisation of profits or of any share premium account or capital redemption reserve
| 27.1 | The directors may resolve to capitalise: |
| (a) | any part of the Company’s profits not required for paying any preferential dividend (whether or not those profits are available for distribution); or |
| (b) | any sum standing to the credit of the Company’s share premium account or capital redemption reserve, if any. |
The amount resolved to be capitalised must be appropriated to the Members who would have been entitled to it had it been distributed by way of dividend and in the same proportions. The benefit to each Member so entitled must be given in either or both of the following ways:
| (c) | by paying up the amounts unpaid on that Member’s Shares; |
| (d) | by issuing Fully Paid Shares, debentures or other securities of the Company to that Member or as that Member directs. The directors may resolve that any Shares issued to the Member in respect of partly paid Shares (Original Shares) rank for dividend only to the extent that the Original Shares rank for dividend while those Original Shares remain partly paid. |
Applying an amount for the benefit of members
| 27.2 | The amount capitalised must be applied to the benefit of Members in the proportions to which the Members would have been entitled to dividends if the amount capitalised had been distributed as a dividend. |
| 27.3 | Subject to the Law, if a fraction of a Share, a debenture, or other security is allocated to a Member, the directors may issue a fractional certificate to that Member or pay him the cash equivalent of the fraction. |
| 28. | Share premium account |
Directors to maintain share premium account
| 28.1 | The directors shall establish a share premium account in accordance with the Law. They shall carry to the credit of that account from time to time an amount equal to the amount or value of the premium paid on the issue of any Share or capital contributed or such other amounts required by the Law. |
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Debits to share premium account
| 28.2 | The following amounts shall be debited to any share premium account: |
| (a) | on the redemption or purchase of a Share, the difference between the nominal value of that Share and the redemption or purchase price; and |
| (b) | any other amount paid out of a share premium account as permitted by the Law. |
| 28.3 | Notwithstanding the preceding Article, on the redemption or purchase of a Share, the directors may pay the difference between the nominal value of that Share and the redemption purchase price out of the profits of the Company or, as permitted by the Law, out of capital. |
| 29. | Seal |
Company seal
| 29.1 | The Company may have a seal if the directors so determine. |
Duplicate seal
| 29.2 | Subject to the provisions of the Law, the Company may also have a duplicate seal or seals for use in any place or places outside the Islands. Each duplicate seal shall be a facsimile of the original seal of the Company. However, if the directors so determine, a duplicate seal shall have added on its face the name of the place where it is to be used. |
When and how seal is to be used
| 29.3 | A seal may only be used by the authority of the directors. Unless the directors otherwise determine, a document to which a seal is affixed must be signed in one of the following ways: |
| (a) | by a director (or his alternate) and the Secretary; or |
| (b) | by a single director (or his alternate). |
If no seal is adopted or used
| 29.4 | If the directors do not adopt a seal, or a seal is not used, a document may be executed in the following manner: |
| (a) | by a director (or his alternate) or any other Officer to which authority has been delegated by resolution duly adopted by the directors; or |
| (b) | by a single director (or his alternate); or |
| (c) | in any other manner permitted by the Law. |
Power to allow non-manual signatures and facsimile printing of seal
| 29.5 | The directors may determine that either or both of the following applies: |
| (a) | that the seal or a duplicate seal need not be affixed manually but may be affixed by some other method or system of reproduction; |
| (b) | that a signature required by these Articles need not be manual but may be a mechanical or Electronic Signature. |
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Validity of execution
| 29.6 | If a document is duly executed and delivered by or on behalf of the Company, it shall not be regarded as invalid merely because, at the date of the delivery, the Secretary, or the director, or other Officer or person who signed the document or affixed the seal for and on behalf of the Company ceased to be the Secretary or hold that office and authority on behalf of the Company. |
| 30. | Indemnity |
Indemnity
| 30.1 | To the extent permitted by Applicable Law, the Company shall indemnify each existing or former Secretary, director (including alternate director), and other Officer of the Company (including an investment adviser or an administrator or liquidator) and their personal representatives against: |
| (a) | all actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred or sustained by the existing or former Secretary, director or other Officer in or about the conduct of the Company’s business or affairs or in the execution or discharge of the existing or former Secretary’s, director’s or other Officer’s duties, powers, authorities or discretions; and |
| (b) | without limitation to paragraph (a), all costs, expenses, losses or liabilities incurred by the existing or former Secretary, director or other Officer in defending (whether successfully or otherwise) any civil, criminal, administrative or investigative proceedings (whether threatened, pending or completed) concerning the Company or its affairs in any court or tribunal, whether in the Islands or elsewhere. |
No such existing or former Secretary director or other Officer, however, shall be indemnified in respect of any matter arising out of his own actual fraud, wilful default or wilful neglect.
| 30.2 | To the extent permitted by Applicable Law, the Company may make a payment, or agree to make a payment, whether by way of advance, loan or otherwise, for any legal costs incurred by an existing or former Secretary, director (including alternate director) or other Officer of the Company in respect of any matter identified in paragraph (a) or paragraph (b) of the preceding Article on condition that the Secretary, director or other Officer must repay the amount paid by the Company to the extent that it is ultimately found not liable to indemnify the Secretary, director or other Officer for those legal costs. |
Release
| 30.3 | To the extent permitted by Applicable Law, the Company may by Special Resolution release any existing or former Secretary, director (including alternate director) or other Officer of the Company from liability for any loss or damage or right to compensation which may arise out of or in connection with the execution or discharge of the duties, powers, authorities or discretions of his office; but there may be no release from liability arising out of or in connection with that person’s own actual fraud, wilful default or wilful neglect. |
Insurance
| 30.4 | To the extent permitted by Applicable Law, the Company may pay, or agree to pay, a premium in respect of a contract insuring each of the following persons against risks determined by the directors, other than liability arising out of that person’s own dishonesty: |
| (a) | an existing or former Secretary, director (including alternate director) or other Officer or auditor of: |
| (i) | the Company; |
| (ii) | a company which is or was a subsidiary of the Company; |
| (iii) | a company in which the Company has or had an interest (whether direct or indirect); and |
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| (b) | a trustee of an employee or retirement benefits scheme or other trust in which any of the persons referred to in paragraph (a) is or was interested. |
| 31. | Notices |
Form of notices
| 31.1 | Save where these Articles provide otherwise, any notice to be given to or by any person pursuant to these Articles shall be: |
| (a) | in writing signed by or on behalf of the giver in the manner set out below for written notices; or |
| (b) | subject to the next Article, in an Electronic Record signed by or on behalf of the giver by Electronic Signature and authenticated in accordance with Articles about authentication of Electronic Records; or |
| (c) | where these Articles expressly permit, by the Company by means of a website. |
Electronic communications
| 31.2 | Without limitation to Articles 17.1 to 17.4 inclusive (relating to the appointment and removal by directors of alternate directors) and to Articles 19.9 to 19.11 inclusive (relating to the appointment by directors of proxies), notice may be given to the Company by Electronic Record. |
| 31.3 | A notice may not be given by Electronic Record to a person other than the Company unless the recipient has notified the giver of an Electronic address to which notice may be sent. |
Persons authorised to give notices
| 31.4 | A notice by either the Company or a Member pursuant to these Articles may be given on behalf of the Company or a Member by a director or company secretary of the Company or a Member. |
Delivery of written notices
| 31.5 | Save where these Articles provide otherwise, a notice in writing may be given personally to the recipient, or left at (as appropriate) the Member’s or director’s registered address or the Company’s registered office, or posted to that registered address or registered office. |
Joint holders
| 31.6 | Where Members are joint holders of a Share, all notices shall be given to the Member whose name first appears in the Register of Members. |
Signatures
| 31.7 | A written notice shall be signed when it is autographed by or on behalf of the giver, or is marked in such a way as to indicate its execution or adoption by the giver. |
| 31.8 | An Electronic Record may be signed by an Electronic Signature. |
Evidence of transmission
| 31.9 | A notice given by Electronic Record shall be deemed sent if an Electronic Record is kept demonstrating the time, date and content of the transmission, and if no notification of failure to transmit is received by the giver. |
| 31.10 | A notice given in writing shall be deemed sent if the giver can provide proof that the envelope containing the notice was properly addressed, pre-paid and posted, or that the written notice was otherwise properly transmitted to the recipient. |
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Giving notice to a deceased or bankrupt Member
| 31.11 | A notice may be given by the Company to the persons entitled to a Share in consequence of the death or bankruptcy of a Member by sending or delivering it, in any manner authorised by these Articles for the giving of notice to a Member, 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, if any, supplied for that purpose by the persons claiming to be so entitled. |
| 31.12 | Until such an address has been supplied, a notice may be given in any manner in which it might have been given if the death or bankruptcy had not occurred. |
Date of giving notices
| 31.13 | A notice is given on the date identified in the following table. |
| Method for giving notices | When taken to be given | |
| Personally | At the time and date of delivery | |
| By leaving it at the member’s registered address | At the time and date it was left | |
| If the recipient has an address within the Islands, by posting it by prepaid post to the street or postal address of that recipient | 48 hours after it was posted | |
| If the recipient has an address outside the Islands, by posting it by prepaid airmail to the street or postal address of that recipient | 3 Clear Days after posting | |
| By Electronic Record (other than publication on a website), to recipient’s Electronic address | Within 24 hours after it was sent | |
| By publication on a website | See these Articles about the time when notice of a meeting of Members or accounts and reports, as the case may be, are published on a website |
Saving provision
| 31.14 | None of the preceding notice provisions shall derogate from these Articles about the delivery of written resolutions of directors and written resolutions of Members. |
| 32. | Authentication of Electronic Records |
Application of Articles
| 32.1 | Without limitation to any other provision of these Articles, any notice, written resolution or other document under these Articles that is sent by Electronic means by a Member, or by the Secretary, or by a director or other Officer of the Company, shall be deemed to be authentic if either Article 32.2 or Article 32.4 applies. |
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Authentication of documents sent by Members by Electronic means
| 32.2 | An Electronic Record of a notice, written resolution or other document sent by Electronic means by or on behalf of one or more Members shall be deemed to be authentic if the following conditions are satisfied: |
| (a) | the Member or each Member, as the case may be, signed the original document, and for this purpose Original Document includes several documents in like form signed by one or more of those Members; and |
| (b) | the Electronic Record of the Original Document was sent by Electronic means by, or at the direction of, that Member to an address specified in accordance with these Articles for the purpose for which it was sent; and |
| (c) | Article 32.7 does not apply. |
| 32.3 | For example, where a sole Member signs a resolution and sends the Electronic Record of the original resolution, or causes it to be sent, by facsimile transmission to the address in these Articles specified for that purpose, the facsimile copy shall be deemed to be the written resolution of that Member unless Article 32.7 applies. |
Authentication of document sent by the Secretary, Directors or Other Officers of the Company by Electronic means
| 32.4 | An Electronic Record of a notice, written resolution or other document sent by or on behalf of the Secretary, a director or directors or any other Officer or Officers of the Company shall be deemed to be authentic if the following conditions are satisfied: |
| (a) | the Secretary, director or other Officer, as the case may be, signed the original document, and for this purpose Original Document includes several documents in like form signed by the Secretary or one or more other Officers or directors; and |
| (b) | the Electronic Record of the Original Document was sent by Electronic means by, or at the direction of, the Secretary, director or other Officer to an address specified in accordance with these Articles for the purpose for which it was sent; and |
| (c) | Article 32.7 does not apply. |
This Article applies whether the document is sent by or on behalf of the Secretary, director or other Officer in his or her own right or as a representative of the Company.
| 32.5 | For example, where a sole director signs a resolution and scans the resolution, or causes it to be scanned, as a PDF version which is attached to an email sent to the address in these Articles specified for that purpose, the PDF version shall be deemed to be the written resolution of that director unless Article 32.7 applies. |
Manner of signing
| 32.6 | For the purposes of these Articles about the authentication of Electronic Records, a document will be taken to be signed if it is signed manually or in any other manner permitted by these Articles. |
| 40 |
Saving provision
| 32.7 | A notice, written resolution or other document under these Articles will not be deemed to be authentic if the recipient, acting reasonably: |
| (a) | believes that the signature of the signatory has been altered after the signatory had signed the original document; or |
| (b) | believes that the original document, or the Electronic Record of it, was altered, without the approval of the signatory, after the signatory signed the original document; or |
| (c) | otherwise doubts the authenticity of the Electronic Record of the document |
and the recipient promptly gives notice to the sender setting the grounds of its objection. If the recipient invokes this Article, the sender may seek to establish the authenticity of the Electronic Record in any way the sender thinks fit.
| 33. | Transfer by way of continuation |
| 33.1 | The Company may, by Special Resolution, resolve to be registered by way of continuation in a jurisdiction outside: |
| (a) | the Islands; or |
| (b) | such other jurisdiction in which it is, for the time being, incorporated, registered or existing. |
| 33.2 | To give effect to any resolution made pursuant to the preceding Article, the directors may cause the following: |
| (a) | an application be made to the Registrar of Companies to deregister the Company in the Islands or in the other jurisdiction in which it is for the time being incorporated, registered or existing; and |
| (b) | all such further steps as they consider appropriate to be taken to effect the transfer by way of continuation of the Company. |
| 34. | Winding up |
Distribution of assets in specie
| 34.1 | If the Company is wound up, the Members may, subject to these Articles and any other sanction required by the Law, pass a Special Resolution allowing the liquidator to do either or both of the following: |
| (a) | to divide in specie among the Members the whole or any part of the assets of the Company and, for that purpose, to value any assets and to determine how the division shall be carried out as between the Members or different classes of Members; |
| (b) | to vest the whole or any part of the assets in trustees for the benefit of Members and those liable to contribute to the winding up. |
No obligation to accept liability
| 34.2 | No Member shall be compelled to accept any assets if an obligation attaches to them. |
The directors are authorised to present a winding up petition
| 34.3 | The directors have the authority to present a petition for the winding up of the Company to the Grand Court of the Cayman Islands on behalf of the Company without the sanction of a resolution passed at a general meeting. |
| 41 |
| 35. | Amendment of Memorandum and Articles |
Power to change name or amend Memorandum
| 35.1 | Subject to the Law, the Company may, by Special Resolution: |
| (a) | change its name; or |
| (b) | change the provisions of its Memorandum with respect to its objects, powers or any other matter specified in the Memorandum. |
Power to amend these Articles
| 35.2 | Subject to the Law and as provided in these Articles, the Company may, by Special Resolution, amend these Articles in whole or in part. |
| 36. | Mergers and Consolidations |
The Company shall have the power to merge or consolidate with one or more constituent companies (as defined in the Law) upon such terms as the directors may determine and (to the extent required by the Law) with the approval of a Special Resolution.
| 37. | Certain Tax Filings |
| 37.1 | Each Tax Filing Authorised Person and any such other person, acting alone, as any director shall designate from time to time, are authorised to file tax forms SS-4, W-8 BEN, W-8 IMY, W-9, 8832 and 2553 and such other similar tax forms as are customary to file with any US state or federal governmental authorities or foreign governmental authorities in connection with the formation, activities and/or elections of the Company and such other tax forms as may be approved from time to time by any director of the Company or any other Officer. The Company further ratifies and approves any such filing made by any Tax Filing Authorised Person or such other person prior to the date of these Articles. |
| 38. | Business Opportunities |
| 38.1 | To the fullest extent permitted by Applicable Law, individuals serving as directors or other Officers (Management) shall have no duty, except and to the extent expressly assumed by contract, to refrain from engaging directly or indirectly in the same or similar business activities or lines of business as the Company. To the fullest extent permitted by Applicable Law, the Company renounces any interest or expectancy of the Company in, or in being offered an opportunity to participate in, any potential transaction or matter which may be a corporate opportunity for either such a member of Management, on the one hand, and the Company, on the other. Except to the extent expressly assumed by contract, to the fullest extent permitted by Applicable Law, such members of Management shall have no duty to communicate or offer any such corporate opportunity to the Company and shall not be liable to the Company or its Members for breach of any fiduciary duty as a Member, director and/or other Officer solely by reason of the fact that such party pursues or acquires such corporate opportunity for itself, himself or herself, directs such corporate opportunity to another person, or does not communicate information regarding such corporate opportunity to the Company, unless such opportunity is expressly offered to such member of Management solely in their capacity as such and the opportunity is one the Company is permitted to complete on a reasonable basis. |
| 38.2 | Except as provided elsewhere in these Articles, the Company hereby renounces any interest or expectancy of the Company in, or in being offered an opportunity to participate in, any potential transaction or matter which may be a corporate opportunity for both the Company and any individual serving as a member of Management, about which a director and/or other Officer of the Company who is also a member of Management acquires knowledge. |
| 38.3 | To the extent a court might hold that the conduct of any activity related to a corporate opportunity that is renounced in this Article to be a breach of duty to the Company or its Members, the Company hereby waives, to the fullest extent permitted by Applicable Law, any and all claims and causes of action that the Company may have for such activities. To the fullest extent permitted by Applicable Law, the provisions of this Article apply equally to activities conducted in the future and that have been conducted in the past. |
| 42 |
Exhibit 4.2
two
195 US HWY 50, Suite 208
Zephyr Cove, NV 89448
March 27, 2024
LatAm Logistic Properties S.A.
Plaza Tempo, Edificio B
Oficina B1, Piso 2
San Rafael de Escazú,
San José, Costa Rica
Reference is hereby made to that certain Business Combination Agreement, dated as of August 15, 2023 (as amended, restated, supplemented or otherwise modified from time to time, the “Business Combination Agreement”), by and among (i) two, a Cayman Islands exempted company (together with its successors, “SPAC”), and (ii) LatAm Logistic Properties S.A., a company incorporated under the laws of Panama (together with its successors, “LLP”), Logistic Properties of the Americas, a Cayman Islands exempted company with limited liability (“Pubco”), (which became party thereto pursuant to a joinder agreement, dated as of October 11, 2023), Logistic Properties of the Americas Subco, a Cayman Islands exempted company and a wholly-owned subsidiary of Pubco (“SPAC Merger Sub”) (which became party thereto pursuant to a joinder agreement, dated as of October 11, 2023), and LPA Panama Group Corp., a company incorporated under the laws of Panama and a wholly-owned subsidiary of Pubco (“Company Merger Sub”) (which became party thereto pursuant to a joinder agreement, dated as of December 8, 2023, with effect as of November 14, 2023). Any capitalized term used but not defined herein shall have the meaning ascribed to such term in the Business Combination Agreement.
Reference is hereby made to those certain Non-Redemption Agreement and Assignment of Economic Interest, dated as of March 27, 2023 (the “Non-Redemption Agreement”), entered into by and among SPAC, two sponsor, a Cayman Islands limited liability company (the “Sponsor”) and certain Investors (the “NRA Investors”) in connection with the extraordinary general meeting of the SPAC’s shareholders held for the purpose of approving, among other things, an amendment to the SPAC’s amended and restated memorandum and articles of association to extend the date by which the Company must consummate its initial business combination (the “Initial Business Combination”) by nine additional months until January 1, 2024. Pursuant to the Non-Redemption Agreements, the NRA Investors are entitled to receive an aggregate of 1,506,764 Class B Ordinary Shares of SPAC as assigned securities (such Class B Ordinary Shares, the “Assigned Shares”) from the Sponsor in connection with the consummation of the SPAC’s initial business combination.
Pursuant to Section 6.2(d) of the Business Combination Agreement, the parties to the Business Combination Agreement agreed that upon Closing, the SPAC Cash shall equal or exceed Twenty-Five Million U.S. Dollars ($25,000,000) (the “Minimum Cash Condition”). Pursuant to Section 6.2 of the Business Combination Agreement, LLP and Pubco may waive the conditions set forth under such Section 6.2. LLP and Pubco desire to and hereby do waive SPAC’s requirement under the Business Combination Agreement to meet the Minimum Cash Condition; provided that the NRA Investors collectively surrender to Pubco for cancellation by Pubco an aggregate of at least 250,000 Assigned Shares.
Pursuant to Section 6.1(h) of the Business Combination Agreement, the parties to the Business Combination Agreement agreed that upon Closing, the members of the Post-Closing Pubco Board shall have been elected or appointed as of the Closing consistent with the requirements of Section 5.15 (the “Board Appointment”). Pursuant to Section 6.1 of the Business Combination Agreement, LLP and SPAC may waive the conditions set forth under such Section 6.1. LLP and SPAC desire to and hereby do waive compliance with Section 6.1(h) of the Business Combination Agreement solely as it relates to the requirement that the Post-Closing Pubco Board include one (1) person who is designated by SPAC prior to the Closing.
The Minimum Cash Condition and the Board Appointment are collectively referred to herein as the “Waived Matters”. By signing below, as of the date set forth above, each of the undersigned expressly waive the Waived Matters, as applicable pursuant to the conditions set forth herein.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned have executed this waiver letter as of the date set forth above.
| Very truly yours, | ||
| two | ||
| By: | /s/ Thomas Hennessy | |
| Name: | Thomas D. Hennessy | |
| Title: | Chief Executive Officer | |
| [Signature Page to Waiver Letter] |
| LatAm Logistic Properties S.A. | ||
| By: | /s/ Esteban Saldarriaga | |
| Name: | Esteban Saldarriaga | |
| Title: | Chief Executive Officer | |
| [Signature Page to Waiver Letter] |
| Logistic Properties of the Americas | ||
| By: | /s/ Esteban Saldarriaga | |
| Name: | Esteban Saldarriaga | |
| Title: | Chief Executive Officer | |
| [Signature Page to Waiver Letter] |
Exhibit 4.3
The Companies Act (As Revised) of the Cayman Islands
Plan of Merger
This plan of merger (the “Plan of Merger”) is made on 27 March 2024 between two (the “Surviving Company”) and Logistic Properties of the Americas Subco (the “Merging Company”).
Whereas the Merging Company is a Cayman Islands exempted company and is entering into this Plan of Merger pursuant to the provisions of Part XVI of the Companies Act (As Revised) (the “Statute”).
Whereas the Surviving Company is a Cayman Islands exempted company and is entering into this Plan of Merger pursuant to the provisions of Part XVI of the Statute.
Whereas the sole director of the Merging Company and the directors of the Surviving Company deem it desirable and in the commercial interests of the Merging Company and the Surviving Company, respectively, that the Merging Company be merged with and into the Surviving Company and that the undertaking, property and liabilities of the Merging Company vest in the Surviving Company (the “Merger”).
Terms not otherwise defined in this Plan of Merger shall have the meanings given to them under the Business Combination Agreement dated as of 15 August 2023 (as amended, restated, supplemented and/or otherwise modified from time to time, the “Business Combination Agreement”) between and among, among others, the Surviving Company and the Merging Company, a copy of which is annexed at Annexure 1 hereto.
Now therefore this Plan of Merger provides as follows:
| 1 | The constituent companies (as defined in the Statute) to this Merger are the Surviving Company and the Merging Company. |
| 2 | The surviving company (as defined in the Statute) is the Surviving Company. |
| 3 | The registered office of: |
| 3.1 | the Surviving Company is c/o Maples Corporate Services Limited of PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands; and | |
| 3.2 | the Merging Company is c/o Ogier Global (Cayman) Limited of 89 Nexus Way, Camana Bay, Grand Cayman, KY1-9009, Cayman Islands. |
| 4 | Immediately prior to the Effective Date (as defined below): |
| 4.1 | the authorised share capital of the Surviving Company will be US$41,100 divided into 400,000,000 Class A Ordinary Shares of US$0.0001 each, 10,000,000 Class B Ordinary Shares of US$0.0001 each and 1,000,000 preference Shares of US$0.0001 each; and | |
| 4.2 | the authorised share capital of the Merging Company will be US$41,100 divided into 400,000,000 Class A Ordinary Shares of US$0.0001 each, 10,000,000 Class B Ordinary Shares of US$0.0001 each and 1,000,000 preference Shares of US$0.0001 each. |
| 5 | The date on which it is intended that the Merger is to take effect is the date that this Plan of Merger is registered by the Registrar of Companies (the “Registrar”) in accordance with section 233(13) of the Statute (the “Effective Date”). |
| 6 | The terms and conditions of the Merger, including the manner and basis of converting shares in each constituent company into shares in the Surviving Company, are set out in the Business Combination Agreement (including, without limitation, in Article 1 thereof). |
| 7 | Following the Merger, the rights and restrictions attaching to the shares in the Surviving Company will be as set out in the Amended and Restated Memorandum and Articles of Association of the Surviving Company in the form annexed at Annexure 2 hereto. |
| 8 | The Amended and Restated Memorandum and Articles of Association of the Surviving Company shall be amended and restated by the deletion in their entirety and the substitution in their place of the Amended and Restated Memorandum and Articles of Association in the form annexed at Annexure 2 hereto on the Effective Date. |
| 9 | There are no amounts or benefits which are or shall be paid or payable to any director of either constituent company or the Surviving Company consequent upon the Merger. |
| 10 | The Merging Company has granted no fixed or floating security interests that are outstanding as at the date of this Plan of Merger. |
| 11 | The Surviving Company has granted no fixed or floating security interests that are outstanding as at the date of this Plan of Merger. |
| 12 | The names and addresses of each director of the surviving company (as defined in the Statute) are: |
| 12.1 | Thomas McDonald of Plaza Tempo, Edificio B, Oficina B1, Piso 2, San Rafael de Escazú, San José, Costa Rica; | |
| 12.2 | Roger Lazarus of Plaza Tempo, Edificio B, Oficina B1, Piso 2, San Rafael de Escazú, San José, Costa Rica; | |
| 12.3 | Gloria Canales Saldaña of Plaza Tempo, Edificio B, Oficina B1, Piso 2, San Rafael de Escazú, San José, Costa Rica; | |
| 12.4 | Mauricio Salgar of Plaza Tempo, Edificio B, Oficina B1, Piso 2, San Rafael de Escazú, San José, Costa Rica; and | |
| 12.5 | Diego Durruty of Plaza Tempo, Edificio B, Oficina B1, Piso 2, San Rafael de Escazú, San José, Costa Rica. |
| 13 | This Plan of Merger has been approved by the board of directors of the Surviving Company pursuant to section 233(3) of the Statute. |
| 14 | This Plan of Merger has been approved by the sole director of the Merging Company pursuant to section 233(3) of the Statute. |
| 15 | This Plan of Merger has been authorised by the shareholders of the Surviving Company pursuant to section 233(6) of the Statute by way of resolutions passed at an extraordinary general meeting of the Surviving Company. |
| 16 | This Plan of Merger has been authorised by the sole shareholder of the Merging Company pursuant to section 233(6) of the Statute. |
| 17 | At any time prior to the Effective Date, this Plan of Merger may be: |
| 17.1 | terminated by the board of directors of either the Surviving Company or the Merging Company; | |
| 17.2 | amended by the board of directors of both the Surviving Company and the Merging Company to: |
| (a) | change the Effective Date provided that such changed date shall not be a date later than the ninetieth day after the date of registration of this Plan of Merger with the Registrar; and | |
| (b) | effect any other changes to this Plan of Merger which the directors of both the Surviving Company and the Merging Company deem advisable, provided that such changes do not materially adversely affect any rights of the shareholders of the Surviving Company or the Merging Company, as determined by the directors of both the Surviving Company and the Merging Company, respectively. |
If this Plan of Merger is terminated or amended in accordance with this clause after it has been filed with the Registrar but before it has become effective, the Surviving Company and the Merging Company must file or cause to be filed a notice of the termination or amendment (as applicable) with the Registrar in accordance with sections 235(2) and 235(4) of the Statute and must distribute copies of such notice in accordance with section 235(3) of the Statute.
| 18 | This Plan of Merger may be executed in counterparts. |
| 19 | This Plan of Merger shall be governed by and construed in accordance with the laws of the Cayman Islands. |
(The remainder of this page is intentionally left blank – signature page follows)
Signature Page to Plan of Merger
In witness whereof the parties hereto have caused this Plan of Merger to be executed on the day and year first above written.
| SIGNED by | ) | |||
| two | ) | /s/ Thomas Hennessy | ||
| Acting by: | ) |
Name: | Thomas D. Hennessy | |
| ) | Title: | Director | ||
Signature Page to Plan of Merger
In witness whereof the parties hereto have caused this Plan of Merger to be executed on the day and year first above written.
| SIGNED by | ) | |||
Logistic Properties of the Americas Subco |
) |
/s/ Esteban Saldarriaga | ||
| Acting by: | ) |
Name: |
Esteban Saldarriaga | |
| ) | Title: | Director | ||
Annexure 1
Business Combination Agreement
Annexure 2
Amended and Restated Memorandum and Articles of Association of the Surviving Company
Exhibit 4.4
PLAN OF MERGER
LATAM LOGISTIC PROPERTIES, S.A. AND LPA PANAMA GROUP CORP.
NOTARIZED DOCUMENT NUMBER FOUR THOUSAND FOUR HUNDRED TWENTY-TWO (4,422) Whereby the documents are registered that prove the merger of LATAM LOGISTICS PROPERTIES, S.A., the merging company, and LPA PANAMA GROUP CORP., the merged company.
Panama, on the 12ᵗʰ day of March, 2024.
In Panama City, the capital of the Republic, header of the Notarial Circuit by the same name, on this, the twelfth (12ᵗʰ) day of the month of March in two thousand twenty-four (2024), before me, ERICK ANTONIO BARCIELA CHAMBERS, EIGHTH Notary Public of the Notarial Circuit of the providence of Panama, the bearer of personal ID card number eight-seven hundred and eleven-six hundred and ninety-four (8-711-694), there appeared Mr. CECILIO AUGUSTO CASTILLERO LIZÁN, a male, a Panamanian citizen, of age, married, a resident of this city, a practicing attorney, the bearer of ID card number eight – two hundred thirty-three – four hundred eighty-one (8-233-481), who is known to me and who acts in his capacity as partner in the law firm SIGMA International and Global Market Attorneys, duly authorized for this purpose as shown below in this notarized document and who delivered to me documents to be formally registered, and which I do register, that prove the merger of LATAM LOGISTIC PROPERTIES, S.A., the merging company, and LPA PANAMA GROUP CORP., the merged company.
The content of the aforementioned documents is transcribed in a copy of this instrument.
This document was read to the appearing party in the presence of the instrumental witnesses SELIDETH EMELINA DE LEON CARRASCO, the bearer of ID card number six-fifty-nine-one hundred and forty-seven (6-59-147) and ASHLEY POLETT VERGARA ORTIZ, the bearer of ID eight- nine hundred and thirty-one - five hundred and eight (8-931-508), both Panamanians, of age and residents of this city, whom I know and are able to act as such, whom found the document to be in order, approved it and all of whom, for the record, signed it, together with the abovementioned witness, before me, the Notary that
THIS NOTARIZED DOCUMENT BEARS THE NUMBER FOUR THOUSAND FOUR HUNDRED TWENTY-TWO (4,422)
CECILIO AUGUSTO CASTILLERO LIZÁN
SELIDETH EMELINA DE LEON CARRASCO- ASHLEY POLETT VERGARA ORTIZ
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(Sgd.) CECILIO AUGUSTO CASTILLERO LIZÁN — SELIDETH EMELINA DE LEON CARRASCO ASHLEY POLETT VERGARA ORTIZ— ERICK ANTONIO BARCIELA CHAMBERS.—EIGTH NOTARY PUBLIC
SECRETARY’S CERTIFICATE
LATAM LOGISTIC PROPERTIES, S.A.
I, the undersigned, Alejandro Vargas Yong, on behalf of NASSAR ABOGADOS, as ad hoc secretary of the special shareholders’ meeting held on November 30, 2023 at 9:00 am, Panama time, of LATAM LOGISTIC PROPERTIES, S.A. (the “Company”), a corporation organized and existing under the laws of the Republic of Panama, registered under No. 155601029 of the Panama Public Registry, hereby certify that:
(i) a virtual special meeting of the shareholders of the Company was duly held on November 30, 2023 at 9:00 am, Panama time, via a teleconference through the Teams platform in which real time and undelayed bidirectional participation was ensured. The virtual meeting complied as well with the principles of integrality, interactivity and simultaneity in the communication of all the participants.
(ii) the total number of issued and outstanding shares was either present or duly represented at the meeting, and a quorum was achieved and maintained during the meeting, in agreement with the prior notice sent to the shareholders within the term and through the means established for that purpose;
(iii) the meeting was chaired by ESTEBAN SALDARRIAGA GAVIRIA, President of the Company, and NASSAR ABOGADOS, as ad hoc secretary; and
(iv) the resolutions listed below were approved in this meeting with the favorable vote of JREP I LOGISTICS ACQUISITION, L.P. and LATAM LOGISTIC EQUITY PARTNERS, LLC, who are shareholders that represent 92% of the Company stock; the Company’s Investment and Operations Committee also approved the resolutions pursuant to the Company’s authority delegation policy:
1. Authorize, as it is hereby authorized, the entering into a merger agreement between the Company, as the merging and surviving company, and LPA PANAMA GROUP CORP., as merged company, a corporation organized and existing under the laws of the Republic of Panama and registered under No. 155744581 of the Panama Public Registry.
| 2 |
2. Authorize, as it is hereby authorized, the Company’s President, Secretary, and directors so that at least 4 of the directors of the Company, together with the Company’s President and the Secretary, sign the merger agreement in the manner presented at the meeting with such additions, deletions or changes as the President and the Secretary may deem advisable.
3. Authorize, as they are indeed authorized, SIGMA International and Global Market Attorneys to appear before a Notary and carry out all necessary or advisable actions to formalize and register these minutes and the merger agreement with the Panama Public Registry. “
IN WITNESS WHEREOF, I issue this Secretary’s Certificate on December 12, 2023.
(Sgd.) Alejandro Vargas Yong
NASSAR ABOGADOS.
AUTHENTICATION OF SIGNATURE. I, the undersigned Notary, EMILIA WILLIAMS AGUILAR, of age, married, a resident of Curridabat, ID card Three-three hundred fifty-eight-three hundred seventy-five; Credential: fifteen thousand five hundred seventeen, with an office in the city of San José, Montes de Oca, Barrio La Granja, fifty meters south of the restaurant Machu Picho, attest that the foregoing signature presented to me appears in a document that consists in a SECRETARY’S CERTIFICATE, and that it is the signature of ALEJANDRO VARGAS YONG, the bearer of ID number one-one thousand two hundred sixty-one-zero two hundred six. Since the signing was done in my presence I certify it to be authentic. My signature is handwritten, and both the signature and the stamp are registered with the National Directorate of Notaries. The authentication is made at the request of Mr. ALEJANDRO VARGAS YONG. I issue this authentication to be effective in the Republic of Panama. That is all. I sign in San José, at 9:00 am on December 12, 2023. The statutory tax stamps have been paid and affixed hereto.
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Bank of Costa Rica
Branch: 937 BARRIO AMON
Date: 12/12/2023 Time: 2:41:57 PM
Detail of the Assessment
Assessment: 511994443 Payment: 534970702
Paid
BAR ASSOCIATION STAMP 275.00
(Stamp – BCR Bank of Costa Rica-BARRIO AMON BRANCH-DEC. 12, 2023))
(Stamp – BCR Bank of Costa Rica)
Transaction currency: COLONS
Subtotal Stamp Duty: 275.00
Discount: 16.50
Total Duties: 258.50
Bank of Costa Rica
Branch: 933 NATIONAL PUBLIC RECORDS OFFICE
Date: 01/11/2024 Time: 8:26:02 AM
Detail of Assessment
Assessment: 514098015 Payment: 538035030
Paid
TAX STAMP 125.00
(Stamp-EL REGISTRO Branch-JAN. 11, 2024- ANDY ORTEGA CALVO-TELLER)
Transaction currency: COLONS
Subtotal Stamp Duty: 125.00
Discount: 7.50
Total Stamp Duty: 117.50
EMILIA WILLIAMS AGUILAR
Bank of Costa Rica
02/01/2024 at 2:55 pm
Branch: 616 BANK BRANCH INS
Teller: 11898424
Document: 51672611
Form:00000000000
Reason: 3052
PAYMENT OF FEES-ASSESSMENT
Payment number: 000540201208
Assessment: 516726110
Registration: PAYMENT OF STAMP DUTY
Action: PAYMENT OF STAMP DUTY
Amount assessed: 0.01
Description:
Voucher:
Property/Motor:
NA PARKS STAMP DUTY 500.00
STAMP DUTY
(Circular stamp- MINISTRY OF FOREIGN RELATIONS AND CULT – DEPT. OF AUTHENTICATIONS)
Applicant:
Transaction currency: COLONS
Subtotal Stamp Duty: 625.00
Discount: 37.50
Total Stamp Duty: 587.50
Total DGTD: 0.00
TRANSACTION BREAKDOWN:
Cash:
587.50
Securities: 0.00
Total: 587.50
Amount in words:
FIVE HUNDRED EIGHTY-SEVEN COLONS AND FIFTY CENTS.
000118040521
(Circular stamp- MINISTRY OF FOREIGN RELATIONS AND CULT – DEPT. OF AUTHENTICATIONS)
BCR Bank of Costa Rica – BCR-INS FEB 01 2024 – JUAN MANUEL RODRIGUEZ SANCHEZ- CUSTOMER SERVICE
NATIONAL DIRECTORATE OF NOTARIES
3007594808– QR CODE
DNN
National Directorate of Notaries
NATIONAL DIRECTORATE OF NOTARIES
NATIONAL REGISTER OF NOTARIES
AUTHENTICATION 334560-2024
FORMALITY: 192708
Ms. I, MARIA PAULA AGÜERO BENAMBURG, AUTHORIZED OFFICIAL OF THE NATIONAL DIRECTORATE OF NOTARIES OF THE REPUBLIC OF COSTA RICA; DO HEREBY CERTIFY: That the SIGNATURE of Notary Public EMILIA AGUILAR, ID 303580375, CREDENTIAL NUMBER 15517, is similar to the signature registered at the National Register of Notaries in this Directorate. That, on the date the Notary issued the within document, they were authorized to act as a Notary. WARNINGS OF NULLITY AND VALIDITY: If this page is torn from the attached pages, or the stamps of this Directorate that bind said page are “torn” or altered, the authentication is automatically rendered void. This signature legalization formality does not imply confirmation or pass any judgment on the lawfulness, validity, efficacy, authenticity or legitimacy of the attached document or its contents, nor does it imply any tax solvency directly or indirectly related to said document; consequently, it does not imply any guarantee or liability of the National Directorate of Notaries or the official issuing the legalization, all of which is the absolute responsibility of the attestor; Furthermore, no applicable administrative or disciplinary actions are exhausted that might be applicable against the Notary arising from notarial irregularities found or that might be found subsequently. IT IS TRUE AND CORRECT - San Pedro de Montes de Oca, at 1:33 pm on February 1, 2024. The statutory tax stamps have been paid and affixed hereto. (LAST LINE).
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(Sgd.)
Ms. María Paula Agüero Benamburg
Authorized official
Res. No. DNN-DE-051-2020
(Circular stamp-National Register of Notaries DNN National Directorate of Notaries-Notarial Services Unit)
San Pedro de Montes de Oca, Costado oeste del Mall San Pedro, Oficentro
Sigma, Edificio A, 5° piso. Tel: 2528-5756 / Fax: 2528-5754
NATIONAL DIRECTORATE OF NOTARIES
3007594808 001—57429674
REPUBLIC OF COSTA RICA
MINISTRY OF FOREIGN AFFAIRS AND CULT
APOSTILLE
(Convention de La Haye du 5 octobre 1961)
1. Country: Costa Rica Code: MCDX0RYVIL6
This public document
2. Has been signed by MARIA Paula Agüero Benamburg
3. Acting in the capacity of: Registration Certifying Officer
4. Bears the seal/stamp of: National Directorate of Notaries
Certified
5. At: San José, Costa Rica
6. On: 02/01/2024
7. By: Cristian Abarca Álvarez, Certification Officer
Ministry of Foreign Affairs
8. No.: 1053955
9. Stamp: (Circular stamp – MINISTRY OF FOREIGN AFFAIRS AND CULT – SAN JOSE, COSTA RICA-)
10. Signature: (Sgd.)
QR Code
1058771
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This apostille/legalization only certifies the signature, the capacity of the signer and the seal or stamp it bears. It does not certify the content of the document for which it was issued.
The authenticity of this apostille / legalization may be verified at: http://www.rree.go.cr
SECRETARY’S CERTIFICATE
LPA PANAMA GROUP CORP.
I, the undersigned, Carolina Zúñiga Carmiol, Secretary of LPA PANAMA GROUP CORP. (the “Company”), a corporation organized and existing under the laws of the Republic of Panama and registered under No. 155744581 of the Panama Public Registry, do hereby certify that: (i) a special meeting of the Company shareholders was held on December 6, 2023 at 3:00 pm via a teleconference following a prior call, in which the total number of issued and outstanding shares was either present or represented and a quorum was achieved and maintained during the meeting;
(ii) Mr. Esteban Saldarriaga Gaviria, President of the Company, chaired the meeting, and Carolina Zúñiga Carmiol, Company Secretary, acted as secretary of the meeting; and
(iii) the following resolutions were approved unanimously:
“1. Authorize, as it is hereby authorized, the entering into a merger agreement between LATAM LOGISTIC PROPERTIES, S.A., a corporation organized and existing under the laws of the Republic of Panama and registered under No. 155601029 of the Panama Public Registry, as the merging and surviving company, and the Company, as the merged company.
2. Authorize, as it is hereby authorized, the President and the Secretary of the Company to sign the merger agreement in the manner presented at the meeting with such additions, deletions or changes as the President and the Secretary may deem advisable.
3. Authorize, as they are indeed authorized, SIGMA International and Global Market Attorneys to appear before a Notary and carry out all necessary or advisable actions to formalize and register these minutes and the merger agreement with the Panama Public Registry.”
IN WITNESS WHEREOF, I issue this Secretary’s Certificate on December 6, 2023.
(Sgd.) Carolina Zúñiga Carmiol.
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I, ALEJANDRO VARGAS YONG, NOTARY PUBLIC, WITH AN OFFICE OPEN IN THE CITY OF SAN JOSE, SAN FRANCISCO DE GOICOCHEA, OFICENTRO TORRES DEL CAMPO, TORRE UNO, PISO DOS, hereby certify that the signature that appears in the document above called Secretary’s Certificate is the signature of Ms. CAROLINA ZÚÑIGA CARMIOL, bearer of ID number two-zero six hundred forty-four-zero three hundred three. Since the signing was done in my presence, I certify it to be authentic. The authentication is made at the request of Ms. Carolina Zúñiga Carmiol. I, the undersigned Notary hereby certify that my signature is my own handwriting and that it is the one registered with the National Directorate of Notaries, as is the engraved seal. I issue this authentication to be effective in the Republic of Panama. San José, at 3:30 pm on December 6, 2023. The statutory tax stamps have been paid and affixed hereto.***
(Sgd.)
Bank of Costa Rica
Branch: 914 CENTRO DE NEGOCIOS CURRID
Date: 12/04/2023 Time: 3:49:42 PM
Detail of Assessment
Assessment: 511064519 Payment: 533462096
Paid
BAR ASSOCIATION STAMP 275.00
(Circular stamp-National Register of Notaries DNN National Directorate of Notaries-Notarial Services Unit)
(Stamp – BCR Bank of Costa Rica)
Transaction currency: COLON
Subtotal Stamp Duty: 275.00
Discount: 16.50
Total Stamp Duty: 258.50
Dec.4,2023
NICOLE ROJAS ALVARADO
TELLER
(Circular stamp-Notary Public C.19204- ALEJANDRO VARGAS YONG- COSTA RICA)
(Circular stamp-Notary Public C.19204- ALEJANDRO VARGAS YONG- COSTA RICA)
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ALEJANDRO VARGAS YONG
112610206 19204—56636662
Bank of Costa Rica
Branch: 933 NATIONAL PUBLIC RECORDS OFFICE
Date: 11/23/2023 Time: 8:55:24 AM
Detail of Assessment
Assessment: 510090982 Payment: 531987922
Paid
TAX STAMP 125.00
(Circular stamp-National Register of Notaries DNN National Directorate of Notaries-Notarial Services Unit)
Transaction currency: COLONS
Subtotal Stamp Duty: 125.00
Discount: 7.50
Total Stamp Duty: 117.50
NATIONAL DIRECTORATE OF NOTARIES
3007594808– QR CODE
DNN
National Directorate of Notaries
NATIONAL DIRECTORATE OF NOTARIES
NATIONAL REGISTER OF NOTARIES
AUTHENTICATION 330792-2023
FORMALITY: 1902108
Ms. I, HEILYN ANDREA SOTO FONSECA, AUTHORIZED OFFICIAL OF THE NATIONAL DIRECTORATE OF NOTARIES OF THE REPUBLIC OF COSTA RICA; DOES HEREBY CERTIFY: That the SIGNATURE of Notary Public ALEJANDRO VARGAS YONG, ID 112610206, CREDENTIAL NUMBER 19204, is similar to the signature registered at the National Register of Notaries in this Directorate. That, on the date the Notary issued the within document, they were authorized to act as a Notary. WARNINGS OF NULLITY AND VALIDITY: If this page is torn from the attached pages, or the stamps of this Directorate that bind said page are “torn” or altered, the authentication is automatically rendered void. The signature legalization formality does not imply confirmation or pass judgment on the lawfulness, validity, efficacy, authenticity or legitimacy of the attached document or its contents, nor does it imply any tax solvency directly or indirectly related to said document; consequently, it does not imply any guarantee or liability of the National Directorate of Notaries or the official issuing the legalization, all of which is the absolute responsibility of the attestor; Furthermore, no administrative or disciplinary actions are exhausted that might be applicable against the Notary arising from notarial irregularities found or that might be found subsequently. IT IS TRUE AND CORRECT - San Pedro de Montes de Oca, at 11:44 am on December 14, 2023. The statutory tax stamps have been paid and affixed hereto. (LAST LINE).
(Sgd.)
Ms. Heilyn Andrea Soto Fonseca
Authorized official
Res. No. DNN-DE-051-2020
(Circular stamp-National Register of Notaries DNN National Directorate of Notaries-Notarial Services Unit)
San Pedro de Montes de Oca, Costado oeste del Mall San Pedro, Oficentro
Sigma, Edificio A, 5° piso. Tel: 2528-5756 / Fax: 2528-5754
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NATIONAL DIRECTORATE OF NOTARIES
3007594808 001—57427665
Bank of Costa Rica– Office: 933 National Records Office – Paid – National Parks Stamp Duty 500.00 – Stamp Duty 125.00 – Transaction currency: COLONS – Subtotal Stamp Duty: 625.00 – Discount: 37.50 – Total Stamp Duty: 587.50– OCT. 11, 2023 *
Circular stamp (Ministry of Foreign Affairs - Dept. of Authentication)
REPUBLIC OF COSTA RICA
MINISTRY OF FOREIGN AFFAIRS AND CULT
APOSTILLE
(Convention de La Haye du 5 octobre 1961)
1. Country: Costa Rica Code: HCDNRFXIAN2
This public document
2. Has been signed by: Heilyn Andrea Soto Fonseca
3. Acting in the capacity of: Registration Certifying Officer
4. Bears the seal/stamp of: National Directorate of Notaries
Certified
5. At: San José, Costa Rica
6. On: 01/09/2024
7. By: Jhonn Andres Lobo Solano, Authentication Officer
Ministry of Foreign Affairs
8. No.: 1044834
9. Stamp: (Circular stamp – MINISTRY OF FOREIGN AFFAIRS AND CULT – SAN JOSE, COSTA RICA-)
10. Signature: (Sgd.)
QR Code
1049258
This apostille/legalization only certifies the signature, the capacity of the signer and the seal or stamp it bears. It does not certify the content of the document for which it was issued.
The authenticity of this apostille / legalization may be verified at: - The authenticity of this apostille / legalization may be verified at: http://www.rree.go.cr
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MERGER AGREEMENT
This merger agreement is entered into on the 12ᵗʰ day of March 2024 between (i) LATAM LOGISTIC PROPERTIES, S.A., a corporation organized and existing under the laws of the Republic of Panama, registered under No. 155601029 of the Panama Public Registry (the “Merging Company”) and (ii) LPA PANAMA GROUP CORP., a corporation organized and existing under the laws of the Republic of Panama, registered under No. 155744581 of the Panama Public Registry (the “Merged Company” and together with the Merging Company, the “Parties”).
WHEREAS:
I. [With] the purpose of making certain administrative and financial economies, the Parties wish to merge;
II. The Merging Company has a subscribed capital of US$168,142,740 divided into 168,142,740 shares with a par value of one dollar (US$1.00) each;
III. The Merged Company has an authorized capital of ONE THOUSAND DOLLARS (US$1,000) divided into one thousand (1,000) registered common shares with a par value of ONE DOLLAR (US$1.00) each, all of which are issued and outstanding and fully paid and released.
The Parties, acting in agreement with Law 32 of February 26, 1927 of the Republic of Panama, hereby agree for the Parties to be merged in such a way that the Merging Company will be the surviving company and successor of all the property, rights and obligations of the Merged Company, pursuant to the following
CLAUSES:
ONE: On the date this merger agreement is registered at the Panama Public Registry (the “Effective Time”), the Merged Company shall cease to exist and shall be merged into the Merging Company pursuant to the provisions of Law 32 of February 26, 1927 of the Republic of Panama.
TWO: On the Effective Time, the Merging Company shall become the owner of the entirety of the assets owned by the Merged Company and shall also be responsible for the entirety of the obligations and liabilities of the Merged Company.
This merger agreement shall be sufficient title for the transfer of assets and the assignment of liabilities and obligations of the Merged Company to the Merging Company.
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THREE: The Articles of Incorporation of the Merged Company shall remain valid and binding in the same terms they were immediately before the merger is finalized, without change, with the exception of the company’s name, the authorized share capital, board of directors, officers and the resident agent and, with these changes, they shall become the Articles of Incorporation of the Merging Company. The name of the Merging Company will continue to be be LATAM LOGISTIC PROPERTIES, S.A. The authorized share capital of the Merging Company will continue to be US$300,000,000 divided in 300,000 shares with par value of one dollar (US$1.00) each. The members of the board of directors and the officials of the Merging Company from the Effective Time shall be the following:
| Name | Title | |
| Esteban Saldarriaga | President | |
| Annette Fernández | Treasurer | |
| Nassar Abogados | Secretary | |
| Guillermo Zarco B. | Manager - Colombia | |
| Aris Stamatiadis | Manager – Costa Rica | |
| Alvaro Chinchayan | Manager - Peru | |
| Thomas McDonald | Director | |
| Roger Lazarus | Director | |
| Gloria Canales Saldaña | Director | |
| Mauricio Salgar | Director | |
| Diego Durruty | Director |
All with address at the BMW Plaza Building, 9th Floor, 50th Street, Panama City, Republic of Panama.
The Resident Agent of the Merging Company will continue to be FÁBREGA MOLINO.
FOUR: On or after the Effective Time, as determined by the Parties:
(i) Merging Company’s Shares. As provided for in item (ii) of this clause, all of the Merging Company’s issued and outstanding shares prior to the Effective Time shall automatically be canceled and cease to exist for the right to receive the Merger Consideration (as defined in clause five), with each Merging Company’s shareholder entitled to receive a Pro Rata Share of the Merger Consideration, without interest. As of the Effective Time, each Merging Company shareholder shall cease to have any other rights in and to the Merging Company.
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(ii) Treasury Shares. Notwithstanding item (i) of this clause, at such time, if there are any Merging Company Securities that are owned by the Merging Company such as Treasury Shares, unissued authorized capital or any Merging Company Securities owned by any direct or indirect subsidiary of the Merging Company immediately prior to the Effective Time, such Merging Company Securities shall be canceled and shall cease to exist without any conversion thereof or payment therefor.
(iii) Merging Company’s convertible Securities. Any Merging Company Convertible Securities, if not exercised or converted prior to the Effective Time into Merging Company shares shall be canceled, retired and terminated and thereby cease to represent any right to acquire, be exchanged for or converted into Merging Company shares or into any other securities or otherwise receive payment of cash or other consideration therefor, whether upon any contingency or valuation or otherwise.
(iv) Merged Company Shares. All of the Merged Company shares issued and outstanding immediately prior to the Effective Time shall be converted into an equal number of shares of the Merging Company (meaning, 168,142,740 shares) in favor of the Merging Company’s Affiliate, with the same rights, powers and privileges as the shares of the Merged Company so converted and shall constitute the only shares issued and outstanding of the Merging Company.
(v) Summarizing this fourth clause and expressly without any intention of modifying the detail of the foregoing: on or after the Effective Time, as determined by the Parties: as a first step the 168,142,740 existing shares of the Merging Company on the Effective Time shall cease to exist, and thereafter the 1,000 existing shares of the Merger Company on the Effective Time, which are owned by the Merging Company’s Affiliate, shall be converted into 168,142,740 shares of the Merging Company which shall also be owned by the Merging Company’s Affiliate, and such 168,142,740 shares shall be the only shares of Merging Company issued and outstanding.
FIVE. The aggregate consideration to be paid to the Merging Company Securities holders pursuant to the merger (the “Merger Consideration”) shall be Two Hundred Eighty-six million United States dollars (US$286,000,000). The Merger Consideration will be paid in shares of Logistic Properties of the Americas (the “Merging Company’s Affiliate”) each valued at ten U.S- dollars ($10.00) per share. Every Merging Company shareholder will receive for each Merging Company share held (but excluding any Merging Company Securities described in item (ii) of Clause Four), an amount equal to the Per Share Price, which will be paid in the form of Merging Company Affiliated Company shares with each share valued at ten U.S. dollars ($10.00) per share. For the avoidance of doubt, no holder of Merging Company Securities will receive any consideration under or in relation to this merger agreement unless they are holders of Merging Company shares as of the Effective Time.
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Notwithstanding anything to the contrary contained in this Merger Agreement, no fraction of a share of Merging Company’s Affiliate shall be issued pursuant to the merger, and each person who would otherwise be entitled to a fraction of a share of the Merging Company’s Affiliate (after aggregating all fractions of the Merging Company’s Affiliate otherwise received by such person) shall instead receive the total shares of the Merging Company’s Affiliate issued to such person rounded down to the nearest whole number of shares of the Merging Company’s Affiliate.
SIX: For purposes of this agreement, the following terms shall have the meanings stated below:
“Pro Rata Share” means with respect to each Merging Company shareholder, a fraction expressed as a percentage equal to (i) the number of Merging Company shares held by such shareholder as of the Effective Time, divided by (ii) the total number of issued and outstanding Merging Company shares as of the Effective Time.
“Per Share Price” means an amount equal to (i) the Merging Consideration divided by (ii) the total number of issued and outstanding Merging Company Shares as of the Effective Time (including after giving effect to the conversion or exercise of any Securities prior to the Effective Time);
“Merging Company’s Convertible Securities” means, collectively, any options, warrants or rights to subscribe for or purchase any capital shares of the Merging Company or securities convertible into or exchangeable for, or that otherwise confer on the holder any right to acquire any Merging Company shares. For the avoidance of doubt, Merging Company Convertible Securities shall include any securities, rights and/or profit interest, issued by any affiliate, plan, company or any other entity which, directly or indirectly, holds Merging Company Securities, and which can cause the revaluation, valuation, issuance, profits or payment of consideration in connection with, or conversion, exercise or exchange of, Merging Company Securities; and
“Merging Company Securities” means, collectively, the Merging Company shares and any Merging Company Convertible Securities.
SEVENTH: Pursuant to the provisions of section Three of this Merger Agreement, each Party agrees to terminate, mutually terminate, rescind and waive any compromise or similar clauses in its articles of incorporation or any other document intended to provide for the alternative resolution of disputes between shareholders and/or directors and/or officers and/or attorneys-in-fact of such Party or between any of them and such Party. In particular, but not only, the Merging Company agrees to terminate, resolve by mutual agreement, desist from and waive, the arbitration clause contained in the thirteenth article of the articles of incorporation of the Merging Company, approved by resolution of the shareholders’ meeting of January 2, 2021, notarized by public deed 241 of January 7, 2021 of the Twelfth Notary Office of the Notarial Circuit of Panama, which was registered in folio 155601029, Public Registry of Panama, on January 8, 2021.
As a consequence, all disputes occurring among the shareholders of the Merging Company or between them and the Merging Company or its board shall be submitted to the courts, judges, tribunals and magistrates of the Republic of Panama and such disputes shall be governed by, and shall be resolved based on, the laws of the Republic of Panama.
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EIGHTH: This merger agreement may be signed by the Parties separately and the signature pages together with this merger agreement shall constitute one original and a single agreement.
IN WITNESS WHEREOF, the directors, President and Secretary of LATAM LOGISTIC PROPERTIES, S.A. and directors, President and Secretary of LPA PANAMA GROUP CORP. sign this merger agreement on March 12, 2024.
[signature pages follow]
Esteban Saldarriaga Gaviria
President of LATAM LOGISTIC PROPERTIES, S.A.
(Sgd.)
Nassar Abogados
Secretary of LATAM LOGISTIC PROPERTIES, S.A.,
By: (Sgd.)
Name: Esteban Saldarriaga
Tittle: Attorney-in-fact
Thomas Joseph McDonald
Director of LATAM LOGISTIC PROPERTIES, S.A.
By: (Sgd.)
Name: Esteban Saldarriaga
Title: Attorney-in-fact
José Ramón Ramirez Castaño
Director of LATAM LOGISTIC PROPERTIES, S.A.
By: (Sgd.)
Name: Esteban Saldarriaga
Title: Attorney-in-fact
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Bruce Wolfson
Director of LATAM LOGISTIC PROPERTIES, S.A.
By: (Sgd.)
Name: Esteban Saldarriaga
Title: Attorney-in-fact
Roger Alan Lazarus
Director of LATAM LOGISTIC PROPERTIES, S.A.
By: (Sgd.)
Name: Esteban Saldarriaga
Title: Attorney-in-fact
Esteban Saldarriaga Gaviria
Director and President of LPA PANAMA GROUP CORP.
(Sgd.)
Carolina Zúñiga Carmiol
Director and Secretary of LPA PANAMA GROUP CORP.
By: (Sgd.)
Name: Esteban Saldarriaga
Title: Attorney-in-fact
This copy is true to the original that I issue, stamp and sign in Panama City, Republic of Panama, on the twelfth (12ᵗʰ) day of the month of March two thousand twenty-four (2024).
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Exhibit 4.5
LOGISTIC PROPERTIES OF THE AMERICAS
2024 EQUITY INCENTIVE PLAN
| 1. | Purpose. The purpose of the Plan is to provide a means through which the Company, and the other members of the Company Group, may attract and retain key personnel, and to provide a means whereby directors, officers, employees, consultants, and advisors of the Company and the other members of the Company Group can acquire and maintain an equity interest in the Company, or be paid incentive compensation measured by reference to the value of Shares, thereby strengthening their commitment to the welfare of the Company Group and aligning their interests with those of the Company’s shareholders. | |
| 2. | Definitions. The following definitions shall be applicable throughout the Plan. | |
| (a) | “Adjustment Event” has the meaning given to such term in Section 11(a) of the Plan. | |
| (b) | “Affiliate” means any Person that directly or indirectly controls, is controlled by or is under common control with the Company. The term “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting or other securities, by contract or otherwise. | |
| (c) | “Applicable Laws” means all applicable laws, rules, regulations and requirements relating to the administration of equity-based awards, and the related Shares under the corporate and securities laws of the U.S. (including any political subdivision thereof), and the Cayman Islands, the rules and regulations of any stock exchange or quotation system on which the Shares are listed or quoted, and the applicable laws, rules, regulations or requirements of any country or jurisdiction where Awards are, or will be, granted under the Plan or where Participants reside or provide services, as such laws, rules, regulations and requirements shall be in place from time to time. | |
| (d) | “Award” means, individually or collectively, any Option, including an Incentive Stock Option, Nonqualified Stock Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit, Dividend Equivalent Rights and Other Equity-Based Award granted under the Plan. | |
| (e) | “Award Agreement” means the document or documents by which each Award is evidenced, electronically or otherwise. | |
| (f) | “Board” means the Board of Directors of the Company. | |
| (g) | “Business Combination” means the transactions contemplated by the Business Combination Agreement. | |
| (h) | “Business Combination Agreement” means that certain Business Combination Agreement, dated as of August 15, 2023, by and among two, a Cayman Islands exempted company with limited liability (together with its successors, “TWOA”) and LatAm Logistic Properties S.A., a company incorporated under the Laws of Panama (“LLP”) and each other Person that became party to the Business Combination Agreement after August 15, 2023, by executing and delivering to TWOA and LLP a joinder agreement (including the Company), and other parties thereto. | |
| (i) | “Cause” means, as to any Participant, unless the applicable Award Agreement states otherwise, (i) “Cause,” as defined in any employment or consulting agreement between the Participant and the Service Recipient in effect at the time of such Termination; or (ii) in the absence of any such employment or consulting agreement (or the absence of any definition of “Cause” contained therein), the Participant’s (A) willful neglect in the performance of the Participant’s duties for the Service Recipient or willful or repeated failure or refusal to perform such duties; (B) engagement in conduct in connection with the Participant’s employment or service with the Service Recipient, which results in, or could reasonably be expected to result in, material harm to the business or reputation of the Company or any other member of the Company Group; (C) conviction of, or plea of guilty or no contest to, (I) any felony; or (II) any other crime that results in, or could reasonably be expected to result in, material harm to the business or reputation of the Company or any other member of the Company Group; (D) material violation of the written policies of the Service Recipient, including, but not limited to, those relating to sexual harassment or the disclosure or misuse of confidential information, or those set forth in the manuals or statements of policy of the Service Recipient; (E) fraud or misappropriation, embezzlement or misuse of funds or property belonging to the Company or any other member of the Company Group; or (F) act of personal dishonesty that involves personal profit in connection with the Participant’s employment or service to the Service Recipient. | ||
| (j) | “Change in Control” means: | ||
| (i) | the acquisition (whether by purchase, merger, consolidation, combination or other similar transaction) by any Person of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 50% (on a fully diluted basis) of either (A) the then outstanding Shares, taking into account as outstanding for this purpose such Shares issuable upon the exercise of options or warrants, the conversion of convertible equity or debt, and the exercise of any similar right to acquire such Shares; or (B) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors; provided, however, that for purposes of this Plan, the following acquisitions shall not constitute a Change in Control: (I) any acquisition by the Company or any Affiliate of the Company; (II) any acquisition by any employee benefit plan sponsored or maintained by the Company or any Affiliate of the Company; and (III) in respect of an Award held by a particular Participant, any acquisition by the Participant or any group of Persons including the Participant (or any entity controlled by the Participant or any group of Persons including the Participant); | ||
| (ii) | during any period of twelve (12) months, individuals who, at the beginning of such period, constitute the Board (the “Incumbent Directors”) cease for any reason to constitute at least a majority of the Board, provided that any person becoming a director subsequent to the Effective Date, whose election or nomination for election was approved by a vote of at least two-thirds of the Incumbent Directors then on the Board (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without written objection to such nomination) shall be an Incumbent Director; provided, however, that no individual initially elected or nominated as a director of the Company as a result of an actual or threatened election contest, as such terms are used in Rule 14a-12 of Regulation 14A promulgated under the Exchange Act, with respect to directors or as a result of any other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board shall be deemed to be an Incumbent Director; or | ||
| (iii) | the sale, transfer or other disposition of all or substantially all of the assets of the Company Group (taken as a whole) to any Person that is not an Affiliate of the Company. | ||
| Notwithstanding anything to the contrary in the foregoing, a transaction shall not constitute a Change in Control if it is effected for the purpose of changing the place of incorporation or form of organization of the ultimate parent entity (including where the Company is succeeded by an issuer incorporated under the laws of another state, country or foreign government for such purpose and whether or not the Company remains in existence following such transaction) where all or substantially all of the persons or group that beneficially own all or substantially all of the combined voting power of the Company’s voting securities immediately prior to the transaction beneficially own all or substantially all of the combined voting power of the Company in substantially the same proportions of their ownership after the transaction. | |||
| (k) | “Change in Control Consideration” has the meaning given to such term in Section 11(b) of the Plan. | |
| (l) | “Code” means the U.S. Internal Revenue Code of 1986, as amended, and any successor thereto. Reference in the Plan to any section of the Code shall be deemed to include any regulations or other interpretative guidance under such section, and any amendments or successor provisions to such section, regulations or guidance. | |
| (m) | “Committee” means the Compensation Committee of the Board or any other committee comprised of members of the Board, or any properly delegated subcommittee thereof or, if no such committee or subcommittee thereof exists, the Board. | |
| (n) | “Company” means Logistic Properties of the Americas, a Cayman Islands exempted company with limited liability, and any successor thereto. | |
| (o) | “Company Group” means, collectively, the Company and its Subsidiaries, and any other Affiliate of the Company designated as a member of the Company Group by the Committee. | |
| (p) | “Continuing Entity” has the meaning given to such term in Section 12(b) of the Plan. | |
| (q) | “Date of Grant” means the date on which the granting of an Award is authorized, or such later date as may be specified in such authorization. | |
| (r) | “Detrimental Activity” means any of the following: (i) unauthorized disclosure of any confidential or proprietary information of any member of the Company Group; (ii) any activity that would be grounds to terminate the Participant’s employment or service with the Service Recipient for Cause; or (iii) a breach by the Participant of any noncompetition, nonsolicitation, or other agreement containing restrictive covenants with any member of the Company Group. | |
| (s) | “Disability” means, as to any Participant, unless the applicable Award Agreement states otherwise, (i) “Disability,” as defined in any employment or consulting agreement between the Participant and the Service Recipient in effect at the time of such Termination; or (ii) in the absence of any such employment or consulting agreement (or the absence of any definition of “Disability” contained therein), a condition entitling the Participant to receive benefits under a long-term disability plan of the Service Recipient or other member of the Company Group in which such Participant is eligible to participate, or, in the absence of such a plan, the complete and permanent inability of the Participant by reason of illness or accident to perform the duties of the occupation at which the Participant was employed or served when such disability commenced. Any determination of whether Disability exists in the absence of a long-term disability plan shall be made by the Company (or its designee) in its sole and absolute discretion. Notwithstanding the foregoing, (a) for purposes of Incentive Stock Options granted under the Plan, “Disability” means that the Participant is disabled within the meaning of Section 22(e)(3) of the Code, and (b) with respect to an Award that is subject to Section 409A of the Code where the Award is paid or settled on a date or period that is by reference to the Participant’s Disability, no such event will constitute a Disability for purposes of the Plan or any Award Agreement unless such event also constitutes a “disability” as defined under Section 409A of the Code. |
| (t) | “Dividend Equivalent Right” means a right to receive the equivalent value of dividends paid on the Shares with respect to Shares underlying an Award that is a full-value award prior to settlement of the Award in accordance with the provision of Section 13(c) of the Plan. | |
| (u) | “Effective Date” means the date the Business Combination becomes effective. | |
| (v) | “Eligible Person” means any (i) individual employed by any member of the Company Group; provided, however, that no such employee covered by a collective bargaining agreement shall be an Eligible Person unless and to the extent that such eligibility is set forth in such collective bargaining agreement or in an agreement or instrument relating thereto; (ii) director or officer of any member of the Company Group; or (iii) consultant or advisor to any member of the Company Group who may be offered securities registrable pursuant to a registration statement on Form S-8 under the Securities Act. | |
| (w) | “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and any successor thereto. Reference in the Plan to any section of (or rule promulgated under) the Exchange Act shall be deemed to include any rules, regulations or other interpretative guidance under such section or rule, and any amendments or successor provisions to such section, rules, regulations or guidance. | |
| (x) | “Exercise Price” has the meaning given to such term in Section 7(b) of the Plan. | |
| (y) | “Fair Market Value” means, as of any date, the fair market value of a Share, as reasonably determined by the Company, which may include, without limitation, the closing sales price on the trading day immediately prior to or on such date, or a trailing average of previous closing prices prior to such date. | |
| (z) | “Grant Date Fair Market Value” means, as of a Date of Grant, (i) if the Shares are listed on a national securities exchange, the closing sales price of the Shares reported on the primary exchange on which the Shares are listed and traded on such date, or, if there are no such sales on that date, then on the last preceding date on which such sales were reported; (ii) if the Shares are not listed on any national securities exchange but is quoted in an inter-dealer quotation system on a last sale basis, the average between the closing bid price and ask price reported on such date, or, if there is no such sale on that date, then on the last preceding date on which a sale was reported; or (iii) if the Shares are not listed on a national securities exchange or quoted in an inter-dealer quotation system on a last sale basis, the amount determined by the Committee acting in good faith, under a reasonable methodology and reasonable application in compliance with Section 409A of the Code to the extent such determination is necessary for Awards under the Plan to comply with, or be exempt from, Section 409A of the Code. | |
| (aa) | “Immediate Family Members” has the meaning given to such term in Section 14(b) of the Plan. | |
| (bb) | “Incentive Stock Option” means an Option which is designated by the Committee as an incentive stock option as described in Section 422 of the Code and otherwise meets the requirements set forth in the Plan. | |
| (cc) | “Indemnifiable Person” has the meaning given to such term in Section 4(e) of the Plan. | |
| (dd) | “Non-Employee Director” means a member of the Board who is not an employee of any member of the Company Group. |
| (ee) | “Nonqualified Stock Option” means an Option which is not designated by the Committee, or otherwise fails to qualify, as an Incentive Stock Option. | |
| (ff) | “Option” means an Award granted under Section 7 of the Plan. | |
| (gg) | “Option Period” has the meaning given to such term in Section 7(c) of the Plan. | |
| (hh) | “Other Equity-Based Award” means an Award that is not an Option, Restricted Stock or Restricted Stock Unit, that is granted under Section 10 of the Plan and is (i) payable by delivery of Shares, and/or (ii) measured by reference to the value of Shares. | |
| (ii) | “Participant” means an Eligible Person who has been selected by the Committee to participate in the Plan and has been granted an Award pursuant to the Plan. | |
| (jj) | “Performance-Based Award” has the meaning given to such term in Section 11(b) of the Plan. | |
| (kk) | “Permitted Transferee” has the meaning given to such term in Section 13(b) of the Plan. | |
| (ll) | “Person” means any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act). | |
| (mm) | “Plan” means this Logistic Properties of the Americas 2024 Equity Incentive Plan, as it may be amended and/or restated from time to time. | |
| (nn) | “Plan Share Reserve” has the meaning given to such term in Section 5(b) of the Plan. | |
| (oo) | “Restricted Period” means the period of time determined by the Committee during which an Award is subject to restrictions, including vesting conditions. | |
| (pp) | “Restricted Stock” means Shares, subject to certain specified restrictions (which may include, without limitation, a requirement that the Participant remain continuously employed or provide continuous services for a specified period of time), granted under Section 8 of the Plan. | |
| (qq) | “Restricted Stock Unit” means an unfunded and unsecured promise to deliver Shares, cash, other securities or other property, subject to certain restrictions (which may include, without limitation, a requirement that the Participant remain continuously employed or provide continuous services for a specified period of time), granted under Section 8 of the Plan. | |
| (rr) | “SAR Base Price” means, as to any Stock Appreciation Right, the price per Share designated as the base value above which appreciation in value is measured. | |
| (ss) | “SEC” means the U.S. Securities and Exchange Commission. | |
| (tt) | “Securities Act” means the U.S. Securities Act of 1933, as amended, and any successor thereto. Reference in the Plan to any section of (or rule promulgated under) the Securities Act shall be deemed to include any rules, regulations or other interpretative guidance under such section or rule, and any amendments or successor provisions to such section, rules, regulations or guidance. | |
| (uu) | “Service Recipient” means, with respect to an individual holding a given Award, the member of the Company Group by which the original recipient of such Award is, or following a Termination was most recently, principally employed or to which such original recipient provides, or following a Termination was most recently providing, services, as applicable. |
| (vv) | “Share” means an ordinary share of par value US$0.0001 per share in the capital of the Company (and any share or other securities into which a Share may be converted or into which it may be exchanged). | ||
| (ww) | “Stock Appreciation Right” or “SAR” means a right to receive the appreciation of the Shares, subject to certain restrictions (which may include, without limitation, a requirement that the Participant remain continuously employed or provide continuous services for a specified period of time), granted under Section 9 of the Plan. | ||
| (xx) | “Subsidiary” means, with respect to any specified Person: | ||
| (i) | any corporation, association or other business entity of which more than 50% of the total voting power of shares of such entity’s voting securities (without regard to the occurrence of any contingency and after giving effect to any voting agreement or shareholders’ agreement that effectively transfers voting power) is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and | ||
| (ii) | for purposes of granting Incentive Stock Options, any Person or other entity that qualifies as a “subsidiary corporation” under Section 424(f) of the Code. | ||
| (yy) | “Sub-Plans” means any sub-plan to the Plan that has been adopted by the Board or the Committee for the purpose of (i) accommodating and incorporating the legal and/or regulatory requirements of a jurisdiction where an Eligible Person is located in order to permit the offering of Awards to such Eligible Person, (ii) to facilitate the administration of the Plan or (iii) to obtain favorable tax treatment that may be available in a jurisdiction where an Eligible Person is located. Each Sub-Plan shall be designed to comply with Applicable Laws applicable to offerings in local jurisdictions. Although any Sub-Plan may be designated a separate and independent plan from the Plan in order to comply with Applicable Laws, the Plan Share Reserve and the other limits specified in Section 5 of the Plan shall apply in the aggregate to the Plan and any Sub-Plan adopted hereunder. | ||
| (zz) | “Tax-Related Items” means any federal/national, state/provincial, and/or local taxes (including, without limitation, income tax, social insurance contributions (or similar contributions), payroll tax, fringe benefits tax, payment on account, employment tax, stamp tax and any other tax or tax-related item related to participation in the Plan and legally applicable to a Participant, including any employer liability for which the Participant is liable pursuant to Applicable Laws or the applicable Award Agreement. | ||
| (aaa) | “Termination” means the termination of a Participant’s employment or service, as applicable, with the Service Recipient for any reason (including death). | ||
| (bbb) | “U.S.” means the United States of America. | ||
| 3. | Effective Date; Duration. The Plan shall be effective as of the Effective Date. The expiration date of the Plan, on and after which date no Awards may be granted hereunder, shall be the tenth (10th) anniversary of the earlier of the date the Board adopts the Plan and the date the Company’s shareholders approve the Plan; provided, however, that such expiration shall not affect Awards then outstanding, and the terms and conditions of the Plan shall continue to apply to such Awards. | ||
| 4. | Administration. | |
| (a) | General. The Committee shall administer the Plan. | |
| (b) | Committee Authority. Subject to the provisions of the Plan and Applicable Laws, the Committee shall have the sole and plenary authority, in addition to other express powers and authorizations conferred on the Committee by the Plan, to (i) designate Participants; (ii) determine the type or types of Awards to be granted to a Participant; (iii) determine the number of Shares to be covered by, or with respect to which payments, rights, or other matters are to be calculated in connection with, Awards; (iv) determine the terms and conditions of any Award; (v) determine whether any Award subject to vesting may receive accelerated vesting treatment; (vi) determine whether, to what extent, and under what circumstances Awards may be settled in, or exercised for, cash, Shares, other securities, other Awards or other property, or canceled, forfeited, or suspended and the method or methods by which Awards may be settled, exercised, canceled, forfeited, or suspended; (vii) determine whether, to what extent, and under what circumstances the delivery of cash, Shares, other securities, other Awards, or other property and other amounts payable with respect to an Award shall be deferred either automatically or at the election of the Participant or of the Committee; (viii) interpret, administer, reconcile any inconsistency in, correct any defect in and/or supply any omission in the Plan and any instrument or agreement relating to, or Award granted under, the Plan; (ix) establish, amend, suspend, or waive any rules and regulations and appoint such agents as the Committee shall deem appropriate for the proper administration of the Plan; (x) amend outstanding Awards subject to the provisions of Section 11(b) of the Plan; (xi) adopt Sub-Plans; and (xii) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan, including to accommodate any specific requirements of local laws, regulations, and procedures for any jurisdiction. | |
| (c) | Delegation. Except to the extent prohibited by Applicable Laws, the Committee may allocate all or any portion of its responsibilities and powers to any one or more of its members and may delegate all or any part of its responsibilities and powers to any person or persons selected by it. Any such allocation or delegation may be revoked by the Committee at any time. Without limiting the generality of the foregoing, the Committee may delegate to one or more directors or officers of any member of the Company Group, the authority to act on behalf of the Committee with respect to any matter, right, obligation, or election which is the responsibility of, or which is allocated to, the Committee herein, and which may be so delegated as a matter of law, except with respect to grants of Awards to persons who are (i) acting pursuant to delegated authority and (ii) Non-Employee Directors. | |
| (d) | Finality of Decisions. Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan, any Award or any Award Agreement shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive and binding upon all Persons, including, without limitation, any member of the Company Group, any Participant, any holder or beneficiary of any Award, and any shareholder of the Company. | |
| (e) | Indemnification. No member of the Board, the Committee or any employee or agent of any member of the Company Group (each such Person, an “Indemnifiable Person”) shall be liable for any action taken or omitted to be taken or any determination made with respect to the Plan or any Award hereunder (unless constituting fraud or a willful criminal act or omission). Each Indemnifiable Person shall be indemnified and held harmless by the Company against and from any loss, cost, liability, or expense (including attorneys’ fees) that may be imposed upon or incurred by such Indemnifiable Person in connection with or resulting from any action, suit or proceeding to which such Indemnifiable Person may be a party or in which such Indemnifiable Person may be involved by reason of any action taken or omitted to be taken or determination made with respect to the Plan or any Award hereunder and against and from any and all amounts paid by such Indemnifiable Person with the Company’s approval, in settlement thereof, or paid by such Indemnifiable Person in satisfaction of any judgment in any such action, suit or proceeding against such Indemnifiable Person, and the Company shall advance to such Indemnifiable Person any such expenses promptly upon written request (which request shall include an undertaking by the Indemnifiable Person to repay the amount of such advance if it shall ultimately be determined, as provided below, that the Indemnifiable Person is not entitled to be indemnified); provided, that the Company shall have the right, at its own expense, to assume and defend any such action, suit or proceeding and once the Company gives notice of its intent to assume the defense, the Company shall have sole control over such defense with counsel of the Company’s choice. The foregoing right of indemnification shall not be available to an Indemnifiable Person to the extent that a final judgment or other final adjudication (in either case not subject to further appeal) binding upon such Indemnifiable Person determines that the acts, omissions or determinations of such Indemnifiable Person giving rise to the indemnification claim resulted from such Indemnifiable Person’s fraud or willful criminal act or omission or that such right of indemnification is otherwise prohibited by law or by the organizational documents of any member of the Company Group. The foregoing right of indemnification shall not be exclusive of or otherwise supersede any other rights of indemnification to which such Indemnifiable Persons may be entitled under the organizational documents of any member of the Company Group, as a matter of law, under an individual indemnification agreement or contract or otherwise, or any other power that the Company may have to indemnify such Indemnifiable Persons or hold such Indemnifiable Persons harmless. | |
| (f) | Board Authority. Notwithstanding anything to the contrary contained in the Plan, the Board may, in its sole discretion, at any time and from time to time, grant Awards and administer the Plan with respect to such Awards. Any such actions by the Board shall be subject to Applicable Laws. In any such case, the Board shall have all the authority granted to the Committee under the Plan. | |
| 5. | Grant of Awards; Shares Subject to the Plan; Limitations. | |
| (a) | Grants. The Committee may, from time to time, grant Awards to one or more Eligible Persons. | |
| (b) | Share Reserve. Subject to Section 11 of the Plan, the aggregate number of Shares which may be issued or transferred pursuant to Awards under the Plan shall be equal to ten percent (10%) of the aggregate number of Ordinary Shares issued and outstanding immediately after the consummation of the Business Combination (the “Plan Share Reserve”). Each Award granted under the Plan will reduce the Plan Share Reserve by the number of Shares underlying the Award. | |
| (c) | Additional Limits. Subject to Section 11 of the Plan, the maximum aggregate number of Shares that may be issued under the Plan pursuant to the exercise of Incentive Stock Options shall not exceed the maximum number of Shares in the Plan Share Reserve. | |
| (d) | Share Counting. To the extent that an Award expires or is canceled, forfeited, or terminated without issuance to the Participant of the full number of Shares to which the Award related, the unissued Shares will be returned for future grant under the Plan. Shares that have actually been issued under the Plan under any Award will not be returned to the Plan and will not become available for issuance under the Plan. Shares withheld by the Company to pay the exercise price of an Award or to satisfy tax withholding obligations with respect to an Award, will be returned to the Plan Share Reserve for future grants of Awards under the Plan. To the extent an Award under the Plan is paid out in cash rather than Shares, such cash payment will not reduce the number of Shares available for issuance under the Plan. | |
| (e) | Source of Shares. Shares issued by the Company in settlement of Awards may be authorized and unissued shares, shares held in the treasury of the Company, shares purchased on the open market or by private purchase or a combination of the foregoing. | ||
| 6. | Eligibility. Participation in the Plan shall be limited to Eligible Persons. | ||
| 7. | Options. | ||
| (a) | General. Each Option granted under the Plan shall be evidenced by an Award Agreement, which agreement need not be the same for each Participant. Each Option so granted shall be subject to the conditions set forth in this Section 7, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement. | ||
| (b) | Exercise Price. The exercise price (“Exercise Price”) per Share for each Option shall not be less than 100% of the Grant Date Fair Market Value of such Share. | ||
| (c) | Vesting and Expiration. | ||
| (i) | Options shall vest and become exercisable in such manner and on such date or dates or upon such event or events as determined by the Committee. | ||
| (ii) | Options shall expire upon a date determined by the Committee, not to exceed ten (10) years from the Date of Grant (the “Option Period”). | ||
| (iii) | Method of Exercise and Form of Payment. No Shares shall be issued pursuant to any exercise of an Option until payment in full of the Exercise Price therefore is received by the Company and the Participant has paid to the Company (or one or more of its Subsidiaries or Affiliates, as applicable) an amount equal to any Tax-Related Items. Options that have become exercisable may be exercised by delivery of a notice of exercise in such form and accordance with such procedures as the Committee may specify from time to time accompanied by payment of the Exercise Price. The Exercise Price shall be payable: (i) in cash, check, cash equivalent and/or Shares valued at the Fair Market Value at the time the Option is exercised (including, pursuant to procedures approved by the Committee, by means of attestation of ownership of a sufficient number of Shares in lieu of actual issuance of such shares to the Company), provided that such Shares are not subject to any pledge or other security interest and have been held by the Participant for at least six (6) months (or such other period as established from time to time by the Committee to avoid adverse accounting treatment under applicable accounting standards); or (ii) by such other method as the Committee may permit, in its sole discretion, including, without limitation (A) in other property having a fair market value on the date of exercise equal to the Exercise Price; (B) by means of a broker-assisted “cashless exercise” pursuant to which the Company is delivered (including telephonically to the extent permitted by the Committee) a copy of irrevocable instructions to a stockbroker to sell the Shares otherwise issuable upon the exercise of the Option and to deliver promptly to the Company an amount equal to the Exercise Price; or (C) a “net exercise” procedure effected by withholding the minimum number of Shares otherwise issuable in respect of an Option that are needed to pay the Exercise Price. The permissible methods of payment of the Exercise Price with respect to a particular Option grant may be specified in the applicable Award Agreement. Any fractional Shares shall be settled in cash. | ||
| 8. | Restricted Stock and Restricted Stock Units. | ||
| (a) | General. Each grant of Restricted Stock and Restricted Stock Units shall be evidenced by an Award Agreement. Each Restricted Stock and Restricted Stock Unit so granted shall be subject to the conditions set forth in this Section 8, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement. | ||
| (b) | Book-Entry; Escrow or Similar Arrangement. Upon the grant of Restricted Stock, the Committee shall cause Share(s) to be held in book-entry form (as evidenced by the appropriate entry on the register of members of the Company) subject to the Company’s directions and, if the Committee determines that the Restricted Stock shall be held by the Company or in escrow rather than issued to the Participant pending the release of the applicable restrictions, the Committee may require the Participant to additionally execute and deliver to the Company (i) an escrow agreement satisfactory to the Committee, if applicable; and (ii) the appropriate share transfer instrument (endorsed in blank) with respect to the Restricted Stock covered by such agreement. Subject to the restrictions set forth in this Section 8, Section 13(c) of the Plan and the applicable Award Agreement, a Participant generally shall have the rights and privileges of a shareholder as to shares of Restricted Stock, including, without limitation, the right to vote such Restricted Stock. To the extent shares of Restricted Stock are forfeited, all rights of the Participant to such shares and as a shareholder with respect thereto shall terminate without further obligation on the part of the Company. A Participant shall have no rights or privileges as a shareholder as to Restricted Stock Units. | ||
| (c) | Vesting. Restricted Stock and Restricted Stock Units shall vest, and any applicable Restricted Period shall lapse, in such manner and on such date or dates or upon such event or events as determined by the Committee. | ||
| (d) | Issuance of Restricted Stock and Settlement of Restricted Stock Units. | ||
| (i) | Upon the expiration of the Restricted Period with respect to any Restricted Stock, the restrictions set forth in the applicable Award Agreement shall be of no further force or effect with respect to such shares, except as set forth in the applicable Award Agreement. If an escrow arrangement is used, upon such expiration, the Company shall issue to the Participant, or the Participant’s beneficiary, without charge, the Restricted Stock which have not then been forfeited and with respect to which the Restricted Period has expired (rounded down to the nearest full share). | ||
| (ii) | Unless otherwise provided by the Committee in an Award Agreement or otherwise, upon the expiration of the Restricted Period with respect to any outstanding Restricted Stock Units, the Company shall issue to the Participant or the Participant’s beneficiary, without charge, one (1) Share (or other securities or other property, as applicable) for each such outstanding Restricted Stock Unit; provided, however, that the Committee may, in its sole discretion, elect to (A) pay cash or part cash and part Shares in lieu of issuing only Shares in respect of such Restricted Stock Units; or (B) defer the issuance of Shares (or cash or part cash and part Shares, as the case may be) beyond the expiration of the Restricted Period if such extension would not cause adverse tax consequences under Sections 409A or 457A of the Code. If a cash payment is made in lieu of issuing Shares in respect of such Restricted Stock Units, the amount of such payment shall be equal to the Fair Market Value per Share as of the date upon which the Restricted Stock Units are settled. Unless the Committee provides otherwise, any fractional Shares may be settled in cash or rounded to the next whole number of Shares, in the sole discretion of the Company. | ||
| 9. | Stock Appreciation Rights. | ||
| (a) | General. Each SAR granted under the Plan shall be evidenced by an Award Agreement, which agreement need not be the same for each Participant. Each SAR so granted shall be subject to the conditions set forth in this Section 9, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement. | ||
| (b) | SAR Base Price. The SAR Base Price for each SAR shall not be less than 100% of the Grant Date Fair Market Value of such Share. | ||
| (c) | Vesting and Expiration. | ||
| (i) | SARs shall vest and become exercisable in such manner and on such date or dates or upon such event or events as determined by the Committee. | ||
| (ii) | SARs shall expire upon a date determined by the Committee, not to exceed ten (10) years from the Date of Grant. | ||
| (d) | Time and Conditions of Exercise. A SAR shall entitle the Participant (or other person entitled to exercise the SAR pursuant to the Plan) to exercise all or a specified portion of the SAR (to the extent then exercisable pursuant to its terms) and to receive from the Company an amount equal to the excess of the aggregate Fair Market Value of the Shares on the date the SAR is exercised over the SAR Base Price, less applicable Tax-Related Items, subject to any limitations the Committee may impose. Payment of the amounts determined under this Section 9(d) shall be in cash, in Shares (based on the Fair Market Value of the Shares as of the date the SAR is exercised) or a combination of both, as determined by the Committee in the Award Agreement. Any fractional Shares shall be settled in cash. SARs that have become exercisable may be exercised by delivery of a notice of exercise to the Company (in such form as the Committee may specify from time to time). Until the Shares are issued (as evidenced by the appropriate entry on the register of members of the Company, as maintained by a duly authorized transfer agent of the Company), no dividends shall be paid, and no right to vote or receive dividends or any other rights as a shareholder shall exist with respect to the Shares subject to a SAR, notwithstanding the exercise of the SAR. | ||
| (e) | Tandem SARs. A SAR may be granted in connection with an Option, either at the time of grant or at any time thereafter during the term of the Option. A SAR granted in connection with an Option will entitle the holder, upon exercise, to surrender the Option or any portion thereof to the extent unexercised, with respect to the number of Shares as to which such SAR is exercised, and to receive payment of an amount computed as described in Section 9(d) of the Plan. The Option shall, to the extent and when surrendered, cease to be exercisable. A SAR granted in connection with an Option hereunder will have a SAR Base Price equal to the Exercise Price of the Option, will be exercisable at such time or times, and only to the extent, that the related Option is exercisable, and will expire no later than the related Option expires. If a related Option is exercised in whole or in part, then the SAR related to the Shares purchased terminates as of the date of such exercise. | ||
| 10. | Other Equity-Based Awards. The Committee may grant Other Equity-Based Awards under the Plan, denominated in Shares or based upon the value or otherwise related to the Shares, to Eligible Persons, alone or in tandem with other Awards, in such amounts and, dependent on such other conditions as the Committee shall from time to time in its sole discretion determine, provided that, in accordance with the laws of the Cayman Islands, in no circumstances may any Share be issued to a person for less than the par value of the Share. Each Other Equity-Based Award granted under the Plan shall be evidenced by an Award Agreement and shall be subject to such conditions not inconsistent with the Plan as may be reflected in the applicable Award Agreement. | ||
| 11. | Changes in Capital Structure and Similar Events. Notwithstanding any other provision in this Plan to the contrary, the following provisions shall apply to all Awards granted hereunder: | ||
| (a) | General. In the event of (i) any dividend (other than regular cash dividends) or other distribution (whether in the form of cash, Shares, other securities or other property), recapitalization, share split / share subdivision, reverse share split / share consolidation, reorganization, merger, consolidation, split-up, split-off, spin-off, combination, repurchase or exchange of Shares or other securities of the Company, issuance of warrants or other rights to acquire Shares or other securities of the Company, or other similar corporate transaction or event that affects the Shares (including a Change in Control); or (ii) unusual or nonrecurring events affecting the Company, including changes in Applicable Laws, that the Committee determines, in its sole discretion, could result in substantial dilution or enlargement of the rights intended to be granted to, or available for, Participants (any event in (i) or (ii), an “Adjustment Event”), the Committee shall, in respect of any such Adjustment Event, make such proportionate substitution or adjustment, if any, as it deems equitable, to any or all of (A) the Plan Share Reserve, or any other limit applicable under the Plan with respect to the number of Awards which may be granted hereunder; (B) the number of Shares or other securities of the Company (or number and kind of other securities or other property) which may be issued in respect of Awards or with respect to which Awards may be granted under the Plan; and (C) the terms of any outstanding Award, including, without limitation, (I) the number of Shares or other securities of the Company (or number and kind of other securities or other property) subject to outstanding Awards or to which outstanding Awards relate; (II) the Exercise Price or SAR Base Price with respect to any Option or SAR, as applicable or any amount payable as a condition of issuance of Shares (in the case of any other Award); or (III) any applicable performance measures; provided, that in the case of any “equity restructuring” (within the meaning of the Financial Accounting Standards Board Accounting Standards Codification Topic 718 (or any successor pronouncement thereto)), the Committee shall make an equitable or proportionate adjustment to outstanding Awards to reflect such equity restructuring. | ||
| (b) | Change in Control. In the event of a Change in Control, without limiting the foregoing and unless otherwise determined by the Committee, in its sole discretion, the following provisions shall apply: | ||
| (i) | Outstanding Awards with Time-Based Vesting. All outstanding Awards subject to vesting based on the Participant’s continued service over a period of time (“Time-Based Awards”) shall be assumed by the surviving or acquiring entity, or its Affiliates (the “Continuing Entity”), or substituted for new cash or equity-based awards of such Continuing Entity, as provided in the merger or acquisition agreement, or if no such assumption or substitution is provided for, all outstanding Time-Based Awards shall become fully vested and, to the extent applicable, exercisable and all forfeiture restrictions on such Awards shall lapse. | ||
| (ii) | Outstanding Awards with Performance-Based Vesting. All outstanding unvested Awards subject to vesting based on the achievement of performance criteria (“Performance-Based Awards”) shall vest as of the effective date of the Change in Control (A) at the target level, pro-rated to reflect the portion of the performance period that has elapsed as of the effective date of the Change in Control or (B) at the actual achievement level, based on the actual achievement of such performance criteria, as of the effective date of the Change in Control or the most recent practicable date immediately prior to the effective date of the Change in Control on which the performance criteria may be measured prior to such effective date, as reasonably determined by the Committee in good faith, including any reasonable assumptions, adjustments or projections related to such performance criteria. The level of vesting for each outstanding Performance-Based Award on a Change in Control as between clause (A) or (B) above shall be the level that provides the greatest value under each Performance-Based Award, which may be different with respect to each outstanding Performance-Based Award. Any unvested portion of any outstanding Performance-Based Award that does not become vested in connection with a Change in Control in accordance with this Section 11(b)(ii) shall terminate and cease to be outstanding as of the effective date of the Change in Control, without payment of any consideration to the Participant. | ||
| (iii) | Cancellation of Awards. In connection with a Change in Control, the Committee may, in its sole discretion, but shall not be obligated to, provide for cancellation of all or any portion of any one or more outstanding Awards and payment to the holders of such Awards, with respect to the portion of such Awards that are vested as of such cancellation (including, without limitation, any Awards that would vest in accordance with the terms of such Award or in accordance with this Section 11(b)(i) or (ii) hereof, as applicable), the value of the vested portion of such Awards, if any, as determined by the Committee (which value, if applicable, may be based upon the per-share consideration received or to be received by the holders of the Shares upon the occurrence of the Change in Control (the “Change in Control Consideration”), including, without limitation, in the case of an outstanding Option or SAR, a cash payment in an amount equal to the excess, if any, of the Change in Control Consideration over the per-share Exercise Price or SAR Base Price, as applicable, of such Option or SAR, multiplied by the number of Shares underlying the vested portion of each such Option or SAR. Payments to holders with respect to the vested portion of such cancelled Awards pursuant to this Section 11(b)(iii) shall be made in cash or, in the sole discretion of the Committee, in such other form of consideration necessary for such holders to receive the property, cash, securities, and/or other consideration (or any combination thereof) as such holders would have been entitled to receive upon the occurrence of the Change in Control as if such holders had been, immediately prior to such Change in Control, the holder of the number of Shares covered by the vested portion of such cancelled Awards (less any applicable Exercise Price or SAR Base Price). The unvested portion of any outstanding Award, and the vested portion of any Option or SAR having an Exercise Price or Strike Price equal to, or in excess of, the Change in Control Consideration, may be canceled and terminated without any payment or consideration therefor.
For purposes of Section 11(b)(i) above, the assumption or substitution of an Award may include conversion of the Shares underlying such Award into shares of the Continuing Entity, or, subject to any limitations or reductions as may be necessary to comply with Section 409A of the Code, into cash, property or other securities having an equivalent value as the Award, which conversion shall not affect any continued vesting requirements of the Award. |
| (c) | Other Requirements. Prior to any payment or adjustment contemplated under this Section 11, the Committee may require a Participant to (i) represent and warrant as to the unencumbered title to the Participant’s Awards; (ii) bear such Participant’s pro rata share of any post-closing indemnity obligations, and be subject to the same post-closing purchase price adjustments, escrow terms, offset rights, holdback terms, and similar conditions as the other holders of Shares, subject to any limitations or reductions as may be necessary to comply with Section 409A of the Code; and (iii) deliver customary transfer documentation as reasonably determined by the Committee. | |
| (d) | Fractional Shares. Any adjustment provided under this Section 11 may provide for the elimination of any fractional share that might otherwise become subject to an Award. | |
| (e) | Binding Effect. Any adjustment, substitution, determination of value or other action taken by the Committee under this Section 11 shall be conclusive and binding for all purposes. | |
| 12. | Amendments and Termination. | |
| (a) | Amendment and Termination of the Plan. The Board or the Committee may amend, alter, suspend, discontinue, or terminate the Plan or any portion thereof at any time; provided, that no such amendment, alteration, suspension, discontinuance or termination shall be made without shareholder approval if such approval is necessary to comply with Applicable Laws; provided, further, that any such amendment, alteration, suspension, discontinuance or termination that would materially and adversely affect the rights of any Participant or any holder or beneficiary of any Award theretofore granted shall not to that extent be effective without the consent of the affected Participant, holder or beneficiary, except that no such consent shall be required to the extent that the Committee determines, in its sole discretion, that any such action is necessary or desirable to facilitate compliance with Applicable Laws. | |
| (b) | Amendment of Award Agreements. The Committee may, to the extent consistent with the terms of the Plan and any applicable Award Agreement, waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, any Award theretofore granted or the associated Award Agreement, prospectively or retroactively (including after a Participant’s Termination); provided, that, other than pursuant to Section 11, any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of any Participant with respect to any Award theretofore granted shall not to that extent be effective without the consent of the affected Participant, except that no such consent shall be required to the extent that the Committee determines, in its sole discretion, that any such action is necessary or desirable to facilitate compliance with Applicable Laws. | |
| (c) | No Repricing. Except as provided in Section 11(a), the Committee may not, without shareholder approval, seek to effect any re-pricing of any previously granted “underwater” Option, SAR or similar Award by: (i) amending or modifying the terms of the Option, SAR or similar Award to lower the exercise or hurdle price; (ii) cancelling the underwater Option, SAR or similar Award and granting either (A) replacement Options, SARs or similar Awards having a lower exercise or hurdle price or (B) Restricted Stock, Restricted Stock Units, or Other Equity-Based Awards in exchange; or (iii) cancelling or repurchasing the underwater Options, SARs or similar Awards for cash or other securities. An Option, SAR or similar Award will be deemed to be “underwater” at any time when the Fair Market Value of the Shares covered by such Award is less than the exercise or hurdle price of the Award. | |
| 13. | General. | |
| (a) | Award Agreements. Each Award under the Plan shall be evidenced by an Award Agreement, which shall be delivered to the Participant to whom such Award was granted and shall specify the terms and conditions of the Award and any rules applicable thereto, including, without limitation, the effect on such Award of the death, Disability or Termination of a Participant, or of such other events as may be determined by the Committee. For purposes of the Plan, an Award Agreement may be in any such form (written or electronic) as determined by the Committee (including, without limitation, a Board or Committee resolution, an employment agreement, a notice, a certificate or a letter) evidencing the Award. The Committee need not require an Award Agreement to be signed by the Participant or a duly authorized representative of the Company. | |
| (b) | Nontransferability. | ||
| (i) | Each Award shall be exercisable only by such Participant to whom such Award was granted during the Participant’s lifetime, or, if permissible under Applicable Laws, by the Participant’s legal guardian or representative. No Award may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a Participant (unless such transfer is specifically required pursuant to a domestic relations order or by Applicable Laws) other than by will or by the laws of descent and distribution and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against any member of the Company Group; provided, that the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance. | ||
| (ii) | Notwithstanding the foregoing and subject to Applicable Laws, the Committee may, in its sole discretion, permit Awards (other than Incentive Stock Options) to be transferred by a Participant residing in the U.S., without consideration, subject to such rules as the Committee may adopt consistent with any applicable Award Agreement to preserve the purposes of the Plan, to (A) any person who is a “family member” of the Participant, as such term is used in the instructions to Form S-8 under the Securities Act or any successor form of registration statement promulgated by the SEC (collectively, the “Immediate Family Members”); (B) a trust solely for the benefit of the Participant and the Participant’s Immediate Family Members; (C) a partnership or limited liability company whose only partners or shareholders are the Participant and the Participant’s Immediate Family Members; or (D) a beneficiary to whom donations are eligible to be treated as “charitable contributions” for federal income tax purposes (each transferee described in clauses (A), (B), (C) and (D) above is hereinafter referred to as a “Permitted Transferee”); provided, that the Participant gives the Committee advance written notice describing the terms and conditions of the proposed transfer and the Committee notifies the Participant in writing that such a transfer would comply with the requirements of the Plan. For the avoidance of doubt, Awards granted to Participants residing outside the U.S. are not transferable to Permitted Transferees. | ||
| (iii) | The terms of any Award transferred in accordance with clause (ii) above shall apply to the Permitted Transferee and any reference in the Plan, or in any applicable Award Agreement, to a Participant shall be deemed to refer to the Permitted Transferee, except that (A) Permitted Transferees shall not be entitled to transfer any Award, other than by will or the laws of descent and distribution; (B) Permitted Transferees shall not be entitled to exercise any transferred Option unless there shall be in effect a registration statement on an appropriate form covering the Shares to be acquired pursuant to the exercise of such Option if the Committee determines, consistent with any applicable Award Agreement, that such a registration statement is necessary or appropriate; (C) neither the Committee nor the Company shall be required to provide any notice to a Permitted Transferee, whether or not such notice is or would otherwise have been required to be given to the Participant under the Plan or otherwise; and (D) the consequences of a Participant’s Termination under the terms of the Plan and the applicable Award Agreement shall continue to be applied with respect to the Participant, including, without limitation, that an Option shall be exercisable by the Permitted Transferee only to the extent, and for the periods, specified in the Plan and the applicable Award Agreement. | ||
| (c) | Dividends and Dividend Equivalent Rights. The Committee may, in its sole discretion, grant Dividend Equivalent Rights, payable in cash, Shares, other securities, other Awards or other property, on a current or deferred basis, on such terms and conditions as may be determined by the Committee in its sole discretion, including, without limitation, payment directly to the Participant, withholding of such amounts by the Company subject to vesting of the Award or reinvestment in additional Shares. | |
| (d) | Tax Withholding. The Company and its Subsidiaries and Affiliates shall be entitled to withhold, or require a Participant to remit to the Company or one or more of its Subsidiaries or Affiliates, as applicable, the amount of any Tax-Related Items attributable to any Awards. The Company may defer making payment or delivery of Shares under an Award if any such Tax-Related Items may be pending unless and until indemnified to its satisfaction, and the Company shall have no liability to any Participant for exercising the foregoing right. The Committee may, in its sole discretion and subject to such rules as it may adopt, permit or require a Participant to pay all or a portion of the Tax-Related Items arising in connection with an Award by, without limitation: (i) having the Participant pay an amount in cash (by check or wire transfer), (ii) having the Company withhold Shares otherwise issuable pursuant to the Award that have an aggregate Fair Market Value not to exceed the maximum statutory amount required to be withheld or such lesser amount as is necessary to avoid liability accounting treatment, (iii) the delivery of Shares (which are not subject to any pledge or other security interest) that have been both held by the Participant and vested for at least six (6) months (or such other period as established from time to time by the Committee to avoid adverse accounting treatment under applicable accounting standards) having an aggregate Fair Market Value approximately equal to the amount to be withheld, (iv) selling Shares issued pursuant to such Award and having the Company withhold from the proceeds of the sale of such Shares, (v) having the Company or a Subsidiary or Affiliate, as applicable, withhold from any cash compensation payable to the Participant, (vi) requiring the Participant to repay the Company or Subsidiary or Affiliate, as applicable, in cash or in Shares, for Tax-Related Items paid on the Participant’s behalf, or (vii) any other method of withholding determined by the Committee that is permissible under Applicable Laws. | |
| (e) | No Claim to Awards; No Rights to Continued Employment; Waiver. No employee of any member of the Company Group, or other Person, shall have any claim or right to be granted an Award under the Plan or, having been selected for the grant of an Award, to be selected for a grant of any other Award. There is no obligation for uniformity of treatment of Participants or holders or beneficiaries of Awards. The terms and conditions of Awards and the Committee’s determinations and interpretations with respect thereto need not be the same with respect to each Participant and may be made selectively among Participants, whether or not such Participants are similarly situated. Neither the Plan nor any action taken hereunder shall be construed as giving any Participant any right to be retained in the employ or service of the Service Recipient or any other member of the Company Group, nor shall it be construed as giving any Participant any rights to continued service on the Board. The Service Recipient or any other member of the Company Group may at any time dismiss a Participant from employment or discontinue any consulting relationship, free from any liability or any claim under the Plan, unless otherwise expressly provided in the Plan or any Award Agreement. By accepting an Award under the Plan, a Participant shall thereby be deemed to have waived any claim to continued exercise or vesting of an Award or to damages or severance entitlement related to non-continuation of the Award beyond the period provided under the Plan or any Award Agreement, except to the extent of any provision to the contrary in any written employment contract or other agreement between the Service Recipient and/or any member of the Company Group and the Participant, whether any such agreement is executed before, on or after the Date of Grant. |
| (f) | International Participants. The Committee may, in its sole discretion, amend the terms of the Plan and create or amend Sub-Plans or amend outstanding Awards in order to conform such terms with the requirements of local law, to obtain more favorable tax or other treatment for a Participant or any member of the Company Group, or to facilitate administration of the Plan. | ||
| (g) | Termination. Except as otherwise provided in an Award Agreement, unless determined otherwise by the Committee at any point following such event: (i) neither a temporary absence from employment or service due to illness, vacation or leave of absence nor a transfer from employment or service with one member of the Company Group to employment or service with another member of the Company Group (or vice-versa) shall be considered a Termination; and (ii) if a Participant undergoes a Termination of employment, but such Participant continues to provide services to the Company Group in a non-employee capacity, such change in status shall not be considered a Termination for purposes of the Plan. Further, unless otherwise determined by the Committee, in the event that any Service Recipient ceases to be a member of the Company Group (by reason of sale, divestiture, spin-off or other similar transaction), unless a Participant’s employment or service is transferred to another entity that would constitute a member of the Company Group immediately following such transaction, such Participant shall be deemed to have suffered a Termination hereunder as of the date of the consummation of such transaction. | ||
| (h) | No Rights as a Shareholder. Except as otherwise specifically provided in the Plan or any Award Agreement, no Person shall be entitled to the privileges of ownership in respect of Shares which are subject to Awards hereunder until such shares have been issued or delivered to such Person as evidenced by the appropriate entry on the register of members of the Company. | ||
| (i) | Government and Other Regulations. | ||
| (i) | The obligation of the Company to settle Awards in Shares or other consideration shall be subject to all Applicable Laws and to such approvals by governmental or regulatory agencies as may be required. Notwithstanding any terms or conditions of any Award to the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be prohibited from offering to sell or selling, any Shares pursuant to an Award unless such Shares have been properly registered for sale pursuant to the Securities Act or other applicable securities laws or unless the Company has received an opinion of counsel (if the Company has requested such an opinion), satisfactory to the Company, that such Shares may be offered or sold without such registration pursuant to an available exemption therefrom and the terms and conditions of such exemption have been fully complied with. The Company shall be under no obligation to register for sale under the Securities Act or other applicable securities laws any of the Shares to be offered or sold under the Plan. The Committee shall have the authority to provide that all Shares issued under the Plan shall be subject to such stop-transfer orders and other restrictions as the Committee may deem advisable under the Plan, the applicable Award Agreement, or any Applicable Laws and other requirements, and, without limiting the generality of Section 8 of the Plan, the Committee may cause such Shares issued under the Plan in book-entry form to be held subject to the Company’s instructions or subject to appropriate stop-transfer orders. Notwithstanding any provision in the Plan to the contrary, the Committee reserves the right to add any additional terms or provisions to any Award granted under the Plan that the Committee, in its sole discretion, deems necessary or advisable in order that such Award complies with the legal requirements of any governmental entity or regulatory agency to whose jurisdiction the Award is subject. | ||
| (ii) | The Committee may cancel an Award or any portion thereof if it determines, in its sole discretion, that legal or contractual restrictions and/or blockage and/or other market considerations would make the Company’s acquisition of Shares from the public markets, the Company’s issuance of Shares to the Participant, the Participant’s acquisition of Shares from the Company and/or the Participant’s sale of Shares to the public markets, illegal, impracticable or inadvisable. If the Committee determines to cancel all or any portion of an Award in accordance with the foregoing, the Company shall, subject to any limitations or reductions as may be necessary to comply with Sections 409A and 457A of the Code, (A) in the case of Options or SARs, provide the Participant with a cash payment or grant of Shares, subject to deferred vesting and delivery consistent with the vesting restrictions applicable to such Award, equal to the excess of (I) the aggregate Fair Market Value of the Shares subject to such Award or portion thereof canceled (determined as of the applicable exercise date, or the date that the Shares would have been vested or issued, as applicable); over (II) the aggregate Exercise Price or SAR Base Price (in the case of an Option or SAR, respectively) or any amount payable to the Company as a condition of issuance of Shares (in the case of any other Award), or (B) in the case of Restricted Stock, Restricted Stock Units or Other Equity-Based Awards that are full value Awards, provide the Participant with a cash payment or grant of Shares, subject to deferred vesting and delivery consistent with the vesting restrictions applicable to such Award, equal to the value of such Award or the underlying shares in respect thereof. | ||
| (j) | Payments to Persons Other Than Participants. If the Committee shall find that any Person to whom any amount is payable under the Plan is unable to care for the Participant’s affairs because of illness or accident, or is a minor, or has died, then any payment due to such Person or the Participant’s estate (unless a prior claim therefor has been made by a duly appointed legal representative) may, if the Committee so directs the Company, be paid to the Participant’s spouse, child, relative, an institution maintaining or having custody of such Person, or any other Person deemed by the Committee to be a proper recipient on behalf of such Person otherwise entitled to payment. Any such payment shall be a complete discharge of the liability of the Committee and the Company therefor. | ||
| (k) | Nonexclusivity of the Plan. Neither the adoption of the Plan by the Board nor the submission of the Plan to the shareholders of the Company for approval shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including, without limitation, the granting of equity-based awards otherwise than under the Plan, and such arrangements may be either applicable generally or only in specific cases. | ||
| (l) | No Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between any member of the Company Group, on the one hand, and a Participant or other Person, on the other hand. No provision of the Plan or any Award shall require the Company, for the purpose of satisfying any obligations under the Plan, to purchase assets or place any assets in a trust or other entity to which contributions are made or otherwise to segregate any assets, nor shall the Company be obligated to maintain separate bank accounts, books, records or other evidence of the existence of a segregated or separately maintained or administered fund for such purposes. Participants shall have no rights under the Plan other than as unsecured general creditors of the Company, except that insofar as they may have become entitled to payment of additional compensation by performance of services, they shall have the same rights as other service providers under general law. | ||
| (m) | Reliance on Reports. Each member of the Committee and each member of the Board shall be fully justified in acting or failing to act, as the case may be, and shall not be liable for having so acted or failed to act in good faith, in reliance upon any report made by the independent public accountant of any member of the Company Group and/or any other information furnished in connection with the Plan by any agent of the Company or the Committee or the Board, other than himself or herself. | ||
| (n) | Relationship to Other Benefits. No payment under the Plan shall be taken into account in determining any benefits under any pension, retirement, profit sharing, group insurance or other benefit plan of the Company except as otherwise specifically provided in such other plan or as required by Applicable Laws. | ||
| (o) | Governing Law. The Plan shall be governed by and construed in accordance with the internal laws of the Cayman Islands, without giving effect to the conflict of laws provisions thereof. EACH PARTICIPANT WHO ACCEPTS AN AWARD IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY SUIT, ACTION, OR OTHER PROCEEDING INSTITUTED BY OR AGAINST SUCH PARTICIPANT IN RESPECT OF THE PARTICIPANT’S RIGHTS OR OBLIGATIONS HEREUNDER. | ||
| (p) | Severability. If any provision of the Plan or any Award or Award Agreement is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any Person or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the Applicable Laws, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Award, such provision shall be construed or deemed stricken as to such jurisdiction, Person or Award and the remainder of the Plan and any such Award shall remain in full force and effect. | ||
| (q) | Obligations Binding on Successors. The obligations of the Company under the Plan shall be binding upon any successor corporation or organization resulting from the merger, consolidation or other reorganization of the Company, or upon any successor corporation or organization succeeding to substantially all of the assets and business of the Company. | ||
| (r) | Sections 409A and 457A of the Code. | ||
| (i) | Notwithstanding any provision of the Plan or Award Agreement to the contrary, it is intended that the provisions of the Plan comply with Sections 409A and 457A of the Code, and all provisions of the Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Sections 409A and 457A of the Code. Each Participant is solely responsible and liable for the satisfaction of all taxes and penalties that may be imposed on or in respect of such Participant in connection with the Plan (including any taxes and penalties under Sections 409A and 457A of the Code), and neither the Service Recipient nor any other member of the Company Group shall have any obligation to indemnify or otherwise hold such Participant (or any beneficiary) harmless from any or all of such taxes or penalties. With respect to any Award that is considered “deferred compensation” subject to Section 409A of the Code, references in the Plan to “termination of employment” (and substantially similar phrases) shall mean “separation from service” within the meaning of Section 409A of the Code. For purposes of Section 409A of the Code, each of the payments that may be made in respect of any Award granted under the Plan is designated as separate a payment. | ||
| (ii) | Notwithstanding anything in the Plan or Award Agreement to the contrary, if a Participant is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, no payments in respect of any Awards that are “deferred compensation” subject to Section 409A of the Code and which would otherwise be payable on the date of or a date or period that is by reference to the Participant’s “separation from service” (as defined in Section 409A of the Code) shall be made to such Participant prior to the date that is six (6) months after the date of such Participant’s “separation from service” or, if earlier, the date of the Participant’s death. Unless the Award Agreement provides otherwise, following any applicable six (6) month delay, all such delayed payments will be paid in a single lump sum on the earliest date permitted under Section 409A of the Code that is also a business day. | ||
| (iii) | Unless otherwise provided by the Committee in an Award Agreement or otherwise, in the event that the timing of payments in respect of any Award (that would otherwise be considered “deferred compensation” subject to Section 409A of the Code) would be accelerated upon the occurrence of (A) a Change in Control, no such acceleration shall be permitted unless the event giving rise to the Change in Control satisfies the definition of a change in the ownership or effective control of a corporation, or a change in the ownership of a substantial portion of the assets of a corporation pursuant to Section 409A of the Code; or (B) a Disability, no such acceleration shall be permitted unless the Disability also satisfies the definition of “Disability” pursuant to Section 409A of the Code. | ||
| (s) | Clawback/Repayment. All Awards shall be subject to reduction, cancellation, forfeiture or recoupment to the extent necessary to comply with (i) any clawback, forfeiture or other similar policy adopted by the Board or the Committee as in effect at the time of the applicable Award grant; and (ii) Applicable Laws. Further, to the extent that the Participant receives any amount in excess of the amount that the Participant should otherwise have received under the terms of the Award for any reason (including, without limitation, by reason of a financial restatement, mistake in calculations or other administrative error), the Participant shall be required to repay any such excess amount to the Company. | ||
| (t) | Detrimental Activity. Notwithstanding anything to the contrary contained herein, if a Participant has engaged in any Detrimental Activity, as determined by the Committee, the Committee may, in its sole discretion, provide for one or more of the following: | ||
| (i) | cancellation of any or all of such Participant’s outstanding Awards; and | ||
| (ii) | forfeiture and prompt repayment to the Company by the Participant, of any gain realized on the vesting, exercise or settlement of any Awards previously granted to such Participant. | ||
| (u) | Right of Offset. The Company will have the right to offset against its obligation to deliver Shares (or other property or cash) under the Plan or any Award Agreement any outstanding amounts (including, without limitation, travel and entertainment or advance account balances, loans, repayment obligations under any Awards, or amounts repayable to the Company pursuant to tax equalization, housing, automobile or other employee programs) that the Participant then owes to any member of the Company Group and any amounts the Committee otherwise deems appropriate pursuant to any tax equalization policy or agreement. Notwithstanding the foregoing, if an Award is “deferred compensation” subject to Section 409A of the Code, the Committee will have no right to offset against its obligation to deliver Shares (or other property or cash) under the Plan or any Award Agreement unless such offset can be implemented in a manner that does not subject the Participant to the additional tax imposed under Section 409A of the Code in respect of an outstanding Award. | ||
| (v) | Expenses; Titles and Headings. The expenses of administering the Plan shall be borne by the Company Group. The titles and headings of the sections in the Plan are for convenience of reference only, and in the event of any conflict, the text of the Plan, rather than such titles or headings, shall control. | ||
| (w) | Paperless Administration. Subject to Applicable Laws, the Committee may make Awards, provide applicable disclosure and procedures for exercise of Awards by an internet website or interactive voice response system for the paperless administration of Awards. | |
| (x) | Foreign Currency. A Participant may be required to provide evidence that any currency used to pay the exercise price of any Award were acquired and taken out of the jurisdiction in which the Participant resides in accordance with Applicable Laws, including foreign exchange control laws and regulations. In the event the exercise price for an Award is paid in foreign currency, as permitted by the Committee, the amount payable will be determined by conversion from U.S. dollars at the exchange rate as selected by the Committee on the date of exercise. | |
| (y) | Rights of Third Parties. For the purposes of the Contracts (Rights of Third Parties) Act (Revised) of the Cayman Islands: | |
| (i) | Subject to Section 13(y)(ii), each person expressly indemnified or exculpated pursuant to the Plan and/or any Award Agreement (including any Indemnifiable Person) who is not a party thereto (and their successors and assigns) (each, a “Third Party”), shall be entitled to in their own right to enforce any provision of such document as if such person was a party thereto. | |
| (ii) | The Plan may, subject to the provisions of Section 12, and any Award Agreement, subject to the terms thereof, be rescinded, varied, waived, extinguished or otherwise amended at any time without the consent of, or notice to, any person not a party thereto, including a Third Party. | |
| (z) | Compliance With Laws, etc. Notwithstanding the foregoing, in no event shall a Participant be permitted to exercise or be issued Shares under an Award in a manner which the Committee determines would violate the Applicable Laws. | |
| (aa) | Waiver. A waiver by the Company of breach of any provision of the Plan shall not operate or be construed as a waiver of any other provision of the Plan, or of any subsequent breach by any Participant. |
Exhibit 4.9
Exhibit 4.11
Exhibit 4.12
Exhibit 4.14
Exhibit 15.1
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the proxy statement/prospectus dated March 12, 2024 (as supplemented to date, the “Proxy Statement/Prospectus”) filed by Logistic Properties of the Americas with the Securities and Exchange Commission (the “SEC”) as part of its filing pursuant to Rule 424(b)(3) (Registration No. 333-275972).
Introduction
The unaudited pro forma condensed combined financial statements have been presented for illustrative purposes only and do not necessarily reflect what Pubco’s financial condition or results of operations would have been had the Business Combination and related transactions occurred on the dates indicated. Further, the unaudited pro forma condensed combined financial information may not be useful in predicting the future financial condition and results of operations of Pubco. The actual financial position and results of operations may differ significantly from the pro forma amounts reflected herein due to a variety of factors. The unaudited pro forma adjustments represent management’s estimates based on information available as of the date of the unaudited pro forma condensed combined financial statements and are subject to change as additional information becomes available and analyses are performed. The assumptions and estimates underlying the pro forma adjustments are described in the accompanying notes.
The historical financial information of TWOA was derived from the unaudited financial statements as of and for the nine months ended September 30, 2023 and audited financial statements for the year ended December 31, 2022 included elsewhere in the Proxy Statement/Prospectus. The historical financial information of LLP was derived from the unaudited financial statements as of and for the nine months ended September 30, 2023 and audited financial statements for the year ended December 31, 2022 included elsewhere in the Proxy Statement/Prospectus. The unaudited pro forma condensed combined financial information is based on and should be read in conjunction with LLP’s and TWOA’s audited and unaudited financial statements and related notes thereto, as well as the disclosures contained in the sections titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations of LLP,” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations of TWOA” and other financial information included in the Proxy Statement/Prospectus.
Description of the Business Combination and the PIPE Investment
On August 15, 2023, TWOA entered into the Business Combination Agreement with LLP and, by a joinder agreement, each of Pubco, SPAC Merger Sub and Company Merger Sub, pursuant to which, TWOA subsequently merged with LLP on March 27, 2024, with the steps of the Business Combination described at a combined enterprise value of approximately $580.0 million. The cash components of the transaction were funded by TWOA’s available cash in trust of $1.1 million as of March 27, 2024 and the PIPE financing (of which $15 million was committed as of February 16, 2024).
Pursuant to the Business Combination Agreement, SPAC Merger Sub merged with and into TWOA, with TWOA continuing as the surviving company, and, in connection therewith, each issued and outstanding security of TWOA immediately upon the effective time of the Mergers was no longer outstanding and was automatically cancelled, in exchange for the right of the holder thereof to receive a substantially equivalent security of Pubco. Additionally, Company Merger Sub merged with and into LLP, with LLP continuing as the surviving company, and in connection therewith, the LLP shares issued and outstanding immediately prior to the Effective Time were canceled in exchange for the right of the holders thereof to receive Pubco Ordinary Shares; and as a result of the Mergers, TWOA and LLP each became wholly-owned subsidiaries of Pubco, and the Pubco Ordinary Shares were listed on the NYSE.
On February 16, 2024, TWOA entered into the Subscription Agreement with the Subscriber to purchase 1,500,000 PIPE Shares at a price of $10.00 per share, for an aggregate purchase price of $15,000,000, in the PIPE Investment, which was received by TWOA at the effective time of the Mergers. The per share price of the PIPE Investment was less than the $10.70 per Public Share in the Trust Account as of March 27, 2024. The Subscriber has no affiliation with TWOA, the Sponsor or affiliates, or LLP, its officers, directors or affiliates. The consummation of the transactions contemplated by the Subscription Agreement was conditioned on the concurrent Closing and other customary closing conditions. The Subscriber was granted certain customary resale registration rights in the Subscription Agreement.
Extension Amendments
On March 31, 2023, TWOA held its First Extension Meeting, at which its shareholders approved, among others, a proposal to extend the date TWOA would be required to consummate a business combination from April 1, 2023 to January 1, 2024 (or such earlier date as determined by the TWOA Board). On December 29, 2023, TWOA held its Second Extension Meeting, at which its shareholders approved, among others, a proposal to extend the date TWOA would be required to consummate a business combination from January 1, 2024 to July 1, 2024 (or such earlier date as determined by the TWOA Board).
In connection with the First Extension Meeting and the Second Extension Meeting, TWOA’s Public Shareholders holding an aggregate of 16,437,487 and 808,683 Public Shares exercised their right to redeem such shares for a pro rata portion of the funds in the Trust Account, respectively.
Capitalization
The following summarizes the consideration based on LLP’s capitalization table:
| Shares transferred at Closing(1)(2) | 26,312,000 | |||
| Value per share(2) | $ | 10.87 | ||
| Total value of share consideration at Closing per Business Combination Agreement | $ | 286,000,000 |
| (1) | Reflects the total share consideration transferred for the equity value of LLP at March 27, 2024. | |
| (2) | On June 25, 2015, LLP entered into an agreement with Latam Logistic Investments, LLC (“LLI”) pursuant to which LLP made a loan to LLI secured by shares of LLP held by LLI. Following several increases and extensions, the loan’s final maturity date was December 31, 2023, at which time the principal amount outstanding was $6,950,000. The loan was not paid when due and foreclosure proceedings were begun. On March 12, 2024, LLI entered into an assignment agreement with LLP, pursuant to which LLI unconditionally and irrevocably assigned in favor of LLP the right to receive 2,288,000 Pubco Ordinary Shares as a result of the Company Merger and the Business Combination Agreement (the “LLI Assigned Shares”). Pursuant to the assignment agreement, LLP agreed to waive its right to receive the LLI Assigned Shares. As a result of the waiver by LLP, Pubco will not issue the LLI Assigned Shares at all. |
Pursuant to TWOA’s existing charter, TWOA’s Public Shareholders were offered the opportunity to redeem, upon closing of the Business Combination, TWOA Class A Ordinary Shares held by them for cash equal to their pro rata share of the aggregate amount on deposit in the Trust Account. The unaudited pro forma condensed combined financial statements reflect the actual redemptions of 4,087,517 shares of TWOA Class A Ordinary Shares at $10.80 per share.
The following table summarizes the pro forma ordinary shares outstanding upon Closing:
| Shares | % | |||||||
| Total Founder Shares(1)(2) | 3,793,934 | 12.0 | % | |||||
| SPAC Public Shareholders | 103,813 | 0.3 | % | |||||
| PIPE Shareholders | 1,500,000 | 4.7 | % | |||||
| LLP Shareholders(3)(4) | 26,312,000 | 83.0 | % | |||||
| Pro Forma Ordinary Shares at September 30, 2023 | 31,709,747 | 100 | % | |||||
| (1) | Reflects 1,200,000 Founder Shares surrendered by the Sponsor pursuant to the Sponsor Letter Agreement, as the SPAC Cash is not greater than $25.0 million. Of the 1,200,000 shares, 1,071,918 shares are surrendered by the Sponsor and 128,082 shares are surrendered by the Original Sponsor. | |
| (2) | Reflects 365,441 Founder Shares forfeited by the Original Sponsor pursuant to the Non-Redemption Agreement – Share Forfeiture Letter. | |
(3) |
Reflects the actual number of shares received at Closing by existing LLP equity holders. | |
| (4) | On June 25, 2015, LLP entered into an agreement with Latam Logistic Investments, LLC (“LLI”) pursuant to which LLP made a loan to LLI secured by shares of LLP held by LLI. Following several increases and extensions, the loan’s final maturity date was December 31, 2023, at which time the principal amount outstanding was $6,950,000. The loan was not paid when due and foreclosure proceedings were begun. On March 12, 2024, LLI entered into an assignment agreement with LLP, pursuant to which LLI unconditionally and irrevocably assigned in favor of LLP the right to receive 2,288,000 Pubco Ordinary Shares as a result of the Company Merger and the Business Combination Agreement (the “LLI Assigned Shares”). Pursuant to the assignment agreement, LLP agreed to waive its right to receive the LLI Assigned Shares. As a result of the waiver by LLP, Pubco will not issue the LLI Assigned Shares at all. |
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF PROFIT OR LOSS
For the Nine Months Ended September 30, 2023
(USD in thousands except for share and per share data)
| For the Nine months ended September 30, 2023 | For the Nine months ended September 30, 2023 | |||||||||||||||||||||
| Latam Logistic Properties, S.A. (Historical) -Dollars | TWO (Historical) - Dollars | IFRS Policy and Presentation Alignment (Note 2) | Transaction Accounting Adjustments (Note 3) | Pro Forma Combined | ||||||||||||||||||
| Revenues | ||||||||||||||||||||||
| Rental revenue | $ | 27,793 | $ | - | $ | - | $ | - | $ | 27,793 | ||||||||||||
| Other | 75 | - | - | - | 75 | |||||||||||||||||
| Total Revenues | 27,868 | - | - | - | 27,868 | |||||||||||||||||
| Investment property operating expense | (4,032 | ) | - | - | - | (4,032 | ) | |||||||||||||||
| General and administrative | (4,834 | ) | (1,997 | ) | (4,849 | ) | 90 | BB | (12,507 | ) | ||||||||||||
| (387 | ) | EE | ||||||||||||||||||||
| (530 | ) | FF | ||||||||||||||||||||
| Administrative expenses - related party | - | (90 | ) | 90 | - | - | ||||||||||||||||
| Investment property valuation gain | 21,689 | - | - | - | 21,689 | |||||||||||||||||
| Interest income from affiliates | 474 | - | - | - | 474 | |||||||||||||||||
| Financing Cost | (23,284 | ) | - | - | - | (23,284 | ) | |||||||||||||||
| Net foreign currency gain (loss) | 243 | - | - | - | 243 | |||||||||||||||||
| Gain on sale of asset held for sale | 1,023 | - | - | - | 1,023 | |||||||||||||||||
| Other income | 131 | - | - | - | 131 | |||||||||||||||||
| Loss on sale of investment properties | - | - | - | - | - | |||||||||||||||||
| Other expense | (3,484 | ) | - | 4,759 | - | 1,275 | ||||||||||||||||
| Income from investments held in Trust Account | - | 3,538 | - | (3,538 | ) | JJ | - | |||||||||||||||
| Net profit before taxes | 15,794 | 1,451 | - | (4,365 | ) | 12,880 | ||||||||||||||||
| Income tax expense | (6,633 | ) | - | - | - | KK | (6,633 | ) | ||||||||||||||
| Profit for the year | 9,161 | 1,451 | - | (4,365 | ) | 6,247 | ||||||||||||||||
| Profit for the year attributable to Non controlling interest | 4,201 | - | - | - | 4,201 | |||||||||||||||||
| Profit for the year attributable to owner of the group | $ | 4,960 | $ | 1,451 | $ | - | $ | (4,365 | ) | $ | 2,046 | |||||||||||
| Pro forma weighted average common shares outstanding – basic | 168,142,740 | 31,827,580 | ||||||||||||||||||||
| Pro forma net loss per share – basic | $ | 0.03 | $ | 0.06 | ||||||||||||||||||
| Pro forma weighted average common shares outstanding – diluted | 168,142,740 | 32,027,421 | ||||||||||||||||||||
| Pro forma net loss per share – diluted | $ | 0.03 | $ | 0.06 | ||||||||||||||||||
| Weighted average shares outstanding of Class A ordinary shares subject to possible redemption, basic and diluted | 10,418,965 | |||||||||||||||||||||
| Basic and diluted net income (loss) per share, Class A ordinary shares subject to possible redemption | $ | 0.09 | ||||||||||||||||||||
| Weighted average shares outstanding of Class B non-redeemable ordinary shares, basic and diluted | 5,359,375 | |||||||||||||||||||||
| Basic and diluted net income (loss) per share, Class B non-redeemable ordinary shares | $ | 0.09 | ||||||||||||||||||||
See accompanying notes to unaudited pro forma condensed combined financial information.
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF PROFIT OR LOSS
For the Year Ended December 31, 2022
(USD in thousands except for share and per share data )
| For the year ended December 31, 2022 | For the year ended December 31, 2022 | |||||||||||||||||||||
| Latam Logistic Properties, S.A. (Historical) -Dollars | TWO (Historical) - Dollars | IFRS Policy and Presentation Alignment (Note 2) | Transaction Accounting Adjustments (Note 3) | Pro Forma Combined | ||||||||||||||||||
| Revenues | ||||||||||||||||||||||
| Rental revenue | $ | 31,891 | $ | - | $ | - | $ | - | $ | 31,891 | ||||||||||||
| Other | 93 | - | - | - | 93 | |||||||||||||||||
| Total Revenues | 31,984 | - | - | - | 31,984 | |||||||||||||||||
| Investment property operating expense | (5,407 | ) | - | - | - | (5,407 | ) | |||||||||||||||
| General and administrative | (4,609 | ) | (1,238 | ) | (120 | ) | (12,026 | ) | AA | (21,195 | ) | |||||||||||
| - | 120 | BB | ||||||||||||||||||||
| (220 | ) | CC | ||||||||||||||||||||
| (1,262 | ) | DD | ||||||||||||||||||||
| (1,134 | ) | EE | ||||||||||||||||||||
| (706 | ) | FF | ||||||||||||||||||||
| Administrative expenses - related party | - | (120 | ) | 120 | - | - | ||||||||||||||||
| Investment property valuation gain | 3,526 | - | - | - | 3,526 | |||||||||||||||||
| Interest income from affiliates | 561 | - | - | - | 561 | |||||||||||||||||
| Financing Cost | (11,767 | ) | - | - | - | (11,767 | ) | |||||||||||||||
| Net foreign currency gain (loss) | 300 | - | - | - | 300 | |||||||||||||||||
| Gain on sale of asset held for sale | - | - | - | - | - | |||||||||||||||||
| Other income | 100 | - | - | 1,218 | GG | 1,318 | ||||||||||||||||
| Loss on sale of investment properties | (398 | ) | - | - | - | (398 | ) | |||||||||||||||
| Other expense | (612 | ) | - | - | (39,236 | ) | HH | (39,848 | ) | |||||||||||||
| Income from investments held in Trust Account | - | 2,855 | - | (2,855 | ) | JJ | - | |||||||||||||||
| Net profit before taxes | 13,678 | 1,497 | - | (56,101 | ) | (40,926 | ) | |||||||||||||||
| Income tax expense | (2,237 | ) | - | - | - | KK | (2,237 | ) | ||||||||||||||
| Profit for the year | 11,441 | 1,497 | - | (56,101 | ) | (43,163 | ) | |||||||||||||||
| Profit for the year attributable to Non controlling interest | 3,412 | - | - | - | 3,412 | |||||||||||||||||
| Profit for the year attributable to owner of the group | $ | 8,029 | $ | 1,497 | $ | - | $ | (56,101 | ) | $ | (46,575 | ) | ||||||||||
| Pro forma weighted average common shares outstanding – basic and diluted | 168,142,740 | 31,827,580 | ||||||||||||||||||||
| Pro forma net loss per share – basic and diluted | $ | 0.05 | $ | (1.46 | ) | |||||||||||||||||
| Weighted average shares outstanding of Class A ordinary shares subject to possible redemption, basic and diluted | 22,062,805 | |||||||||||||||||||||
| Basic and diluted net income (loss) per share, Class A ordinary shares subject to possible redemption | $ | 0.05 | ||||||||||||||||||||
| Weighted average shares outstanding of Class B non-redeemable ordinary shares, basic and diluted | 5,359,375 | |||||||||||||||||||||
| Basic and diluted net income (loss) per share, Class B non-redeemable ordinary shares | $ | 0.05 | ||||||||||||||||||||
See accompanying notes to unaudited pro forma condensed combined financial information.
UNAUDITED PRO FORMA CONDENSED COMBINED BALANCE SHEET
As of September 30, 2023
(USD in Thousands )
| As of September 30, 2023 | As of September 30, 2023 | |||||||||||||||||||||
| Latam Logistic Properties, S.A. (Historical) -Dollars | TWO (Historical) - Dollars | IFRS Policy and Presentation Alignment (Note 2) | Transaction Accounting Adjustments (Note 3) | Pro Forma Combined | ||||||||||||||||||
| ASSETS | ||||||||||||||||||||||
| Current assets | ||||||||||||||||||||||
| Cash and cash equivalents | $ | 11,658 | $ | 42 | $ | - | $ | 43,961 | B | $ | 17,133 | |||||||||||
| 15,000 | C | |||||||||||||||||||||
| - | (7,307 | ) | E | |||||||||||||||||||
| (220 | ) | F | ||||||||||||||||||||
| (620 | ) | G | ||||||||||||||||||||
| (1,238 | ) | H | ||||||||||||||||||||
| (44,143 | ) | I | ||||||||||||||||||||
| Lease and other receivables, net | 2,988 | - | - | - | 2,988 | |||||||||||||||||
| Due from affiliates | 9,273 | - | - | (9,273 | ) | J | - | |||||||||||||||
| Asset held for sale | 17,802 | - | - | - | 17,802 | |||||||||||||||||
| Other current assets | 3,003 | 140 | - | - | 3,143 | |||||||||||||||||
| Prepaid construction | 1,751 | - | - | - | 1,751 | |||||||||||||||||
| Total Current assets | 46,475 | 182 | - | (3,840 | ) | 42,817 | ||||||||||||||||
| Non current assets | ||||||||||||||||||||||
| Investment properties | 494,918 | - | - | - | 494,918 | |||||||||||||||||
| Tenant notes receivables - long term, net | 6,202 | - | - | - | 6,202 | |||||||||||||||||
| Restricted cash equivalent | 1,303 | - | - | - | 1,303 | |||||||||||||||||
| Property and equipment, net | 368 | - | - | - | 368 | |||||||||||||||||
| Deferred tax asset | 162 | - | - | - | 162 | |||||||||||||||||
| Other non-current assets | 4,930 | - | - | - | 4,930 | |||||||||||||||||
| Marketable securities held in Trust Account | - | 52,567 | - | (8,606 | ) | A | - | |||||||||||||||
| (43,961 | ) | B | ||||||||||||||||||||
| Total Non current assets | 507,883 | 52,567 | - | (52,567 | ) | 507,883 | ||||||||||||||||
| Total Assets | $ | 554,358 | $ | 52,749 | $ | - | $ | (56,407 | ) | $ | 550,700 | |||||||||||
| LIABILITIES | ||||||||||||||||||||||
| Current liabilities | ||||||||||||||||||||||
| Accounts payable and accrued expenses | 9,827 | 1,238 | - | (1,238 | ) | H | 14,546 | |||||||||||||||
| - | 4,719 | E | ||||||||||||||||||||
| Note payable-related party | - | 1,218 | - | (1,218 | ) | D | - | |||||||||||||||
| Income tax payable | 665 | - | - | - | 665 | |||||||||||||||||
| Long term debt - current portion | 10,543 | - | - | - | 10,543 | |||||||||||||||||
| Retainage payable | 1,656 | - | - | - | 1,656 | |||||||||||||||||
| Liabilities related to Asset held for sale | 8,345 | - | - | - | 8,345 | |||||||||||||||||
| Other current liabilities | 667 | - | - | - | 667 | |||||||||||||||||
| Common stock subject to possible redemptions | - | - | 52,467 | (8,606 | ) | A | - | |||||||||||||||
| (43,861 | ) | K | ||||||||||||||||||||
| Total Current liabilities | 31,703 | 2,456 | 52,467 | (50,204 | ) | 36,422 | ||||||||||||||||
| Non Current liabilities | ||||||||||||||||||||||
| Long term debt | 224,145 | - | - | - | 224,145 | |||||||||||||||||
| Deferred tax liability | 40,073 | - | - | - | 40,073 | |||||||||||||||||
| Security deposits | 1,790 | - | - | - | 1,790 | |||||||||||||||||
| Other non-current liabilities | 3,164 | - | - | - | 3,164 | |||||||||||||||||
| Total Non Current liabilities | 269,172 | - | - | - | 269,172 | |||||||||||||||||
| Total Liabilities | $ | 300,875 | $ | 2,456 | $ | 52,467 | $ | (50,204 | ) | $ | 305,594 | |||||||||||
| Ordinary shares subject to possible redemption | ||||||||||||||||||||||
| Class A ordinary shares subject to possible redemption | - | 52,467 | (52,467 | ) | - | - | ||||||||||||||||
| Total Ordinary shares subject to possible redemption | - | 52,467 | (52,467 | ) | - | - | ||||||||||||||||
| EQUITY (SHAREHOLDER’S DEFICIT) | ||||||||||||||||||||||
| Shareholder’s equity | ||||||||||||||||||||||
| Common share | - | - | - | 3 | M | 3 | ||||||||||||||||
| Class A ordinary shares | - | - | - | - | - | |||||||||||||||||
| Class B ordinary shares | - | 1 | - | (1 | ) | L | - | |||||||||||||||
| Common share capital | 168,143 | - | - | (168,143 | ) | M | - | |||||||||||||||
| Share premium | - | - | - | 1 | L | 212,507 | ||||||||||||||||
| 15,000 | C | |||||||||||||||||||||
| (9,273 | ) | J | ||||||||||||||||||||
| - | 43,861 | K | ||||||||||||||||||||
| - | 168,140 | M | ||||||||||||||||||||
| 641 | G | |||||||||||||||||||||
| - | (957 | ) | N | |||||||||||||||||||
| - | 39,236 | O | ||||||||||||||||||||
| (44,142 | ) | I | ||||||||||||||||||||
| Retained earnings | 69,699 | - | - | (12,026 | ) | E | 16,955 | |||||||||||||||
| - | (39,236 | ) | O | |||||||||||||||||||
| (220 | ) | F | ||||||||||||||||||||
| (1,262 | ) | G | ||||||||||||||||||||
| Accumulated deficit | - | (2,175 | ) | - | 1,218 | D | - | |||||||||||||||
| 957 | N | |||||||||||||||||||||
| Foreign currency translation reserve | (19,790 | ) | - | - | - | (19,790 | ) | |||||||||||||||
| Total Shareholder’s equity | 218,052 | (2,174 | ) | - | (6,203 | ) | 209,675 | |||||||||||||||
| Non-controlling interest | ||||||||||||||||||||||
| Non - controlling interest | 35,431 | - | - | - | 35,431 | |||||||||||||||||
| Total Non-controlling interest | 35,431 | - | - | - | 35,431 | |||||||||||||||||
| Total Equity (shareholder’s deficit) | 253,483 | (2,174 | ) | - | (6,203 | ) | 245,106 | |||||||||||||||
| Total Liability and Equity | $ | 554,358 | $ | 52,749 | $ | - | $ | (56,407 | ) | $ | 550,700 | |||||||||||
See accompanying notes to unaudited pro forma condensed combined financial information.
NOTES TO THE UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
| 1. | Basis of Pro Forma Presentation |
As described in the section entitled “Anticipated Accounting Treatment” of the Proxy Statement/Prospectus, the Business Combination is accounted for as a capital reorganization in accordance with IFRS. Under this method of accounting, while TWOA is the legal acquirer, it is treated as the “acquired” company, while LLP is the “acquirer” for accounting and financial reporting purposes. TWOA does not meet the definition of a “business” pursuant to IFRS 3, Business Combinations, and thus, the Business Combination is treated as a capital reorganization for accounting purposes. Accordingly, the Business Combination is treated as the equivalent of LLP issuing shares for the net assets of TWOA, with the fair value of the shares, in excess of the net assets of TWOA, being accounted for as a stock exchange listing expense recorded to stock-based compensation under IFRS 2 Share-Based Payment. The net assets of TWOA are stated at historical cost, with no goodwill or other intangible assets recorded. Operations prior to the Business Combination are those of LLP.
LLP was determined to be the accounting acquirer primarily based on the evaluation of the following facts and circumstances:
| ● | LLP’s existing shareholders have the greatest voting interest in Pubco with 83.0% voting interest; | |
| ● | LLP’s existing shareholders have the ability to control decisions regarding election and removal of directors and officers of Pubco’s executive board of directors; | |
| ● | LLP’s existing senior management team comprises the senior management of Pubco; | |
| ● | LLP comprises the ongoing operations of Pubco; | |
| ● | From an employee base and business operation standpoint, LLP is the larger entity in terms of relative size. |
Other factors were considered but they would not change the preponderance of factors indicating that LLP was the accounting acquirer. The Business Combination, which is not within the scope of IFRS 3, Business Combinations, since TWOA does not meet the definition of a business in accordance with IFRS 3, Business Combinations, is accounted for within the scope of IFRS 2, Share-based Payment. Any excess of fair value of Pubco Ordinary Shares issued over the fair value of TWOA’s identifiable net assets acquired represents compensation for the service of a stock exchange listing for its shares and is expensed as incurred.
The unaudited pro forma condensed combined statement of financial position as of September 30, 2023 assumes that the Business Combination occurred on September 30, 2023. The unaudited pro forma condensed combined statement of profit and loss for the nine months ended September 30, 2023 and for the year ended December 31, 2022 present pro forma effect to the Business Combination as if it had been completed on January 1, 2022.
The unaudited pro forma condensed combined financial statements and related notes have been prepared using, and should be read in conjunction with, the following:
| ● | TWOA’s unaudited condensed financial statements as of and for the nine months ended September 30, 2023 and the related notes, included elsewhere in the Proxy Statement/Prospectus; | |
| ● | LLP’s unaudited condensed consolidated financial statements as of and for the nine months ended September 30, 2023 and the related notes, included elsewhere in the Proxy Statement/Prospectus; | |
| ● | TWOA’s audited financial statements for the year ended December 31, 2022 and the related notes, included elsewhere in the Proxy Statement/Prospectus; | |
| ● | LLP’s audited consolidated financial statements for the year ended December 31, 2022 and the related notes, included elsewhere in the Proxy Statement/Prospectus; and | |
| ● | The disclosures contained in the sections titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations of LLP,” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations of TWOA” and other financial information included elsewhere in the Proxy Statement/Prospectus. |
The historical financial statements of LLP have been prepared in accordance with IFRS as issued by the IASB. The historical financial statements of TWOA have been prepared in accordance with US GAAP. The financial statements of TWOA have been converted to IFRS for the purposes of presentation in the unaudited pro forma condensed combined financial information.
Management has made significant estimates and assumptions in its determination of the pro forma adjustments. As the unaudited pro forma condensed combined financial information has been prepared based on these preliminary estimates, the final amounts recorded may differ materially from the information presented.
The unaudited pro forma condensed combined financial statements do not give effect to any anticipated synergies, operating efficiencies, tax savings, or cost savings that may be associated with the Business Combination.
The unaudited condensed pro forma adjustments, which are described in the accompanying notes, may be revised as additional information becomes available and is evaluated. Therefore, it is likely that the actual adjustments will differ from the pro forma adjustments and it is possible the difference may be material. LLP’s management believes that its assumptions and methodologies provide a reasonable basis for presenting all of the significant effects of the Business Combination based on information available at this time and that the pro forma adjustments give appropriate effect to those assumptions and are properly applied in the unaudited pro forma condensed combined financial information.
| 2. | IFRS Policy and Presentation Alignment |
The historical financial information of TWOA has been adjusted to give effect to the differences between US GAAP and IFRS as issued by the IASB for the purposes of the unaudited pro forma condensed combined financial information. The only adjustment required to convert TWOA’s financial statements from US GAAP to IFRS for purposes of the unaudited pro forma condensed combined financial information was to reclassify TWOA’s Class A Ordinary Shares subject to possible redemption to current financial liabilities under International Accounting Standard 32, Financial Instruments: Presentation (“IAS 32”), as TWOA’s shareholders have the right to redeem their TWOA Public Shares and TWOA has the irrevocable obligation to deliver cash or another financial instrument for such redemption.
Further, as part of the preparation of the unaudited pro forma condensed combined financial information, certain reclassifications were made to align TWOA’s historical financial information in accordance with the presentation of LLP’s historical financial information, including transaction costs and related party administrative expenses.
| 3. | Adjustments to Unaudited Pro Forma Condensed Combined Financial Information |
The unaudited pro forma condensed combined financial information has been prepared to illustrate the effect of the Business Combination and has been prepared for informational purposes only.
The following unaudited pro forma condensed combined financial information has been prepared in accordance with Article 11 of Regulation S-X. The Company has reflected pro forma adjustments related to the accounting for the transaction (“Transaction Accounting Adjustments”).
The pro forma combined provision for income taxes does not necessarily reflect the amounts that would have resulted had Pubco filed consolidated income tax returns during the periods presented.
The pro forma basic and diluted profit (loss) per share amounts presented in the unaudited pro forma condensed combined statements of profit or loss are based upon the number of Pubco Ordinary Shares outstanding at the close of the transaction, assuming the Business Combination occurred on January 1, 2022.
Adjustments to Unaudited Pro Forma Condensed Combined Statement of Financial Position
The transaction accounting adjustments included in the unaudited pro forma condensed combined balance sheet as of September 30, 2023 are as follows:
| A. | Reflects the redemption of 808,683 Class A Ordinary Shares for aggregate redemption payments of $8.6 million at a redemption price of approximately $10.64 per share relating to the Second Extension Meeting. |
| B. | Represents the reclassification of the remaining $44.0 million of cash and cash equivalents held in the Trust Account at the balance sheet date that became available to fund the Business Combination. |
| C. | Reflects the net proceeds from the private placement of 1,500,000 TWOA Class A Ordinary Shares at $10.00 per share issued pursuant to the PIPE Investment. |
| D. | Reflects the concession of the Sponsor Loan upon the consummation of the Business Combination. Refer to statement of operations adjustment (GG). |
| E. | Represents total transaction costs inclusive of advisory, banking, printing, legal and accounting fees that are expensed of $17.8 million as a part of the Business Combination, as they are listing costs under IAS 32, Financial Instruments: Presentation. Of the total incurred transaction costs through September 30, 2023 of $5.7 million, $3.4 million was accrued by LLP and TWOA. This amount has been reflected as a reduction to the related accrued liability balances. Additionally, $8.1 million is being deferred at Closing, which is being reflected as an increase to accrued liabilities. |
| F. | Represents the extension fees paid to extend the date by which TWOA was required to consummate a business combination from January 1, 2024 to July 1, 2024. These costs are a nonrecurring item. |
| G. | Reflects a non-recurring compensation charge of $1.3 million for cash bonuses and equity settled restricted stock units provided to certain existing LLP executives and directors as a result of the Business Combination. These compensation charges are reflected as if incurred on January 1, 2022, the date the Business Combination occurred for the purposes of the unaudited pro forma condensed combined statements of operations. Refer to statement of operations adjustment (DD). |
| H. | Reflects the settlement of existing TWOA liabilities upon the consummation of the Business Combination. |
| I. | Reflects the actual redemptions of 4,087,517 Class A Ordinary Shares for aggregate redemption payments of $44.1 million allocated to TWOA Ordinary Shares and share premium with a par value of $0.0001 per share at a redemption price of $10.80 per share. |
| J. | Reflects the deemed settlement of the affiliate loan at Closing in exchange for the assignment of the collateral (the affiliate’s approximate 8% share of LLP) to LLP via the Right of Assignment and LLP’s immediate assignment to the affiliate’s right to approximately 2.3 million Pubco shares to LLP which LLP concurrently waived its rights to. The assignment and the waiver have the same effect of LLP reacquiring and retiring the 8% LLP shares at Closing. |
| K. | Reflects the reclassification of 4,191,330 of TWOA’s Class A Ordinary Shares redeemed for Pubco Ordinary Shares with a par value of $0.0001 per share and share premium. |
| L. | Reflects the conversion of all Retained Founder Shares in TWOA (Class B Ordinary Shares) to Class A Ordinary Shares, and then further into Pubco Ordinary Shares upon the Closing of the Business Combination. |
| M. | Reflects the recapitalization of shares held by LLP shareholders into the Pubco Ordinary Shares. |
| N. | Reflects the elimination of TWOA’s historical accumulated deficit. |
| O. | Represents the expense recognized, in accordance with IFRS 2, Share-based Payment, for the excess of the fair value of LLP shares issued and the fair value of TWOA’s identifiable net assets at the date of the Business Combination, resulting in a $39.2 million decrease to retained earnings. The fair value of shares issued was estimated based on a market price of $10.70 per share of TWOA at Closing. |
The listing expense under IFRS 2, Share-based Payment, which is a non-cash and non-recurring expense, is summarized below:
Fair value per share (1) | Shares | Amount | ||||||||||
| Fair value of SPAC Public Shareholders (A) | $ | 10.70 | 103,813 | $ | 1,110,799 | |||||||
| Fair value of Sponsor shares (B) | $ | 10.70 | 3,793,934 | $ | 40,595,094 | |||||||
| I. Deemed fair value of shares issued by Pubco to TWOA’s shareholders (A+B) | $ | 41,705,893 | ||||||||||
| SPAC net assets as of September 30, 2023 | 50,292,776 | |||||||||||
| Less: Transaction cost of TWOA | (3,680,191 | ) | ||||||||||
| Less: Payment for share redemptions | (44,142,847 | ) | ||||||||||
| II. Adjusted pro forma net assets of TWOA | $ | 2,469,738 | ||||||||||
| Difference - IFRS 2 charge for listing services (I-II) | $ | 39,236,155 | ||||||||||
| (1) | The above table represents the estimated fair value per share of Pubco Ordinary Shares issued to the TWOA stockholders, using the quoted market price per TWOA share as of March 27, 2024, the date of the Closing. As LLP is a private entity, the quoted market price of TWOA’s shares is the most reliable basis for determining the fair value of LLP shares issued. |
Adjustments to Unaudited Pro Forma Condensed Combined Statements of Profit or Loss
The transaction accounting adjustments included in the unaudited pro forma condensed combined statements of profit or loss for the nine months ended September 30, 2023 and for the year ended December 31, 2022 are as follows:
| AA. | Reflects the total transaction costs that were incurred and recorded as an expense in relation to the Business Combination. Transaction costs are reflected as if incurred on January 1, 2022, the date the Business Combination occurred for the purposes of the unaudited pro forma condensed combined statements of profit or loss. These costs are being expensed as they relate to listing expenses of existing equity, rather than the incremental costs that are directly attributable to issuing new equity, under IAS 32. Refer to condensed consolidated statement of financial position adjustment (E). These costs are a nonrecurring item. |
| BB. | Represents pro forma adjustment to eliminate historical expenses related to TWOA’s office space, secretarial and administrative services. Pursuant to the Administrative Services Agreement, the services were terminated upon the consummation of the Business Combination. |
| CC. | Represents the extension fees paid to extend the date by which TWOA was required to consummate a business combination from January 1, 2024 to July 1, 2024. These costs are a nonrecurring item. |
| DD. | Reflects a non-recurring one-time compensation charge of $1.3 million for cash bonuses and equity settled restricted stock units provided to certain existing LLP executives and directors as a result of the Business Combination. These compensation charges are reflected as if incurred on January 1, 2022, the date the Business Combination occurred for the purposes of the unaudited pro forma condensed combined statements of operations. Refer to statement of balance sheet adjustment (G). |
| EE. | Reflects stock-based compensation expense related to grants of equity settled restricted stock units with a graded vesting based only on service provided to certain executives and directors of Pubco as part of a new compensation package effective at the time of the Business Combination. The compensation charge is reflected as if the restricted stock units were granted as of January 1, 2022, the date the Business Combination occurred for the purposes of the unaudited pro forma condensed combined statements of operations. The estimated grant date fair value of the restricted stock units is based on a market price of $10.70 per share of TWOA (as of the date of the Closing) and the compensation cost is recognized based on graded vesting over a vesting period of three years. |
| FF. | Reflects stock-based compensation expense related to a one-time grant of equity settled restricted stock units with a cliff vesting based only on service provided to certain LLP executives as a result of the Business Combination. The compensation charge is reflected as if the restricted stock units were granted as of January 1, 2022, the date the Business Combination occurred for the purposes of the unaudited pro forma condensed combined statements of operations. The estimated grant date fair value of the restricted stock units is based on a market price of $10.70 per share of TWOA (as of the date of the Closing) and the compensation cost is recognized based on a straight-line basis over a vesting period of three years. |
| GG. | Reflects the gain on forgiveness of the Sponsor Loan upon Closing. Refer to statement of balance sheet adjustment (D).
|
| HH. | Represents the expense recognized of $39.2 million, in accordance with IFRS 2, Share-based Payment, for the difference between the fair value of LLP shares issued and the fair value of TWOA’s identifiable net assets, as described in (O). The fair value of shares issued was estimated based on a market price of $10.70 per share of TWOA (as of the date of the Business Combination). These costs are a nonrecurring item. |
| JJ. | Reflects the elimination of interest earned on marketable securities held in TWOA’s trust account. |
| KK. | Reflects the estimated income tax impact related to the pro forma adjustments. Tax-related adjustments are based upon the statutory tax rate in the jurisdiction in which the adjustment was or will be incurred. There was no income tax (expense) benefit associated with the transaction accounting adjustments due to the following: |
| 1) | Adjustments related to the elimination of historical expenses and income of TWOA were not taxed since TWOA is a Cayman Islands based entity and therefore there were no income taxes reflected in their historical financial statements. | |
| 2) | Transaction costs incurred in the Business Combination and compensation costs (refer to DD, EE, FF and HH above) were not taxed since these expenses represent nonrecurring costs of Pubco, a Cayman Islands exempted company. |
| 4. | Pro Forma Net Profit (Loss) Per Share Information |
Pro forma net profit (loss) per share information is based upon the total number of shares outstanding at the close of the Business Combination. As the Business Combination is being reflected as if it had occurred at January 1, 2022 for the unaudited pro forma condensed combined statements of profit or loss, the calculation of weighted average shares outstanding for basic and diluted net profit (loss) per share assumes that the shares issued relating to the Business Combination have been outstanding for the entirety of the periods presented.
The unaudited pro forma condensed combined financial information has been prepared using actual redemption into cash of TWOA’s Class A Ordinary Shares for the nine months ended September 30, 2023 and for the year ended December 31, 2022:
| (USD in thousands, except share data) | Nine Months Ended September 30, 2023 | Year Ended December 31, 2022 | ||||||
| Pro forma net profit (loss) attributable to the Group | $ | 2,046 | $ | (46,575 | ) | |||
| Pro forma weighted average ordinary shares outstanding – basic | 31,827,580 | 31,827,580 | ||||||
| Pro forma net profit (loss) per share attributable to ordinary shareholders – basic | $ | 0.06 | $ | (1.46 | ) | |||
| Pro forma weighted average ordinary shares outstanding – diluted(1)(2) | 32,027,421 | 31,827,580 | ||||||
| Pro forma net profit (loss) per share attributable to ordinary shareholders – diluted | $ | 0.06 | $ | (1.46 | ) | |||
| (1) | The RSUs explained in the transaction adjustments are factored into the calculation for diluted shares. | |
| (2) | There are no dilutive securities for the year ended December 31, 2022, as there is a pro forma net loss for the period. |
Exhibit 15.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Shell Company Report on Form 20-F, of our report dated February 14, 2024, which includes an explanatory paragraph relating to two’s ability to continue as a going concern, relating to the financial statements of two as of and for the years ended December 31, 2023 and 2022, which is contained in Registration Statement on Form F-4 (File No. 333-275972). We also consent to the reference to us under the caption “Auditors” and “Statement by Experts” in the Shell Company Report.
/s/ WithumSmith+Brown, PC
New York, New York
March 29, 2024
Exhibit 15.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference herein of our report dated January 15, 2024 of Latam Logistic Properties, S.A contained in Registration Statement on Form F-4 (File No. 333-275972). We also consent to the reference to us under the heading “Auditors” and “Statement by Experts” herein.
| /s/ Deloitte & Touche, S.A. | |
| San Jose, Costa Rica | |
| March 29, 2024 |