Exhibit 10.26
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT
BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY
HARMFUL IF PUBLICLY DISCLOSED. SUCH PORTIONS ARE MARKED AS
INDICATED WITH BRACKETS (“[***]”) BELOW
JOINT VENTURE AGREEMENT
This
JOINT VENTURE AGREEMENT (the “Agreement”) is
entered into on December, 13, 2019 (the “Effective
Date”), by and between (each a “Party” and
jointly the “Parties”):
(1)
SANUWAVE HEALTH, INC. a corporation
organized and existing under the laws of the State of Nevada,
United States of America, with its headquarters at 3360 Martin Farm
Road, Suite 100, Suwanee, Georgia 30024, United States of America
(“Sanuwave”);
(2)
UNIVERSUS GLOBAL ADVISORS LLC, a limited
liability company organized and existing under the laws of the
State of Delaware, United States of America, with its headquarters
at 251 Little Falls Drive, New Castle, Delaware 19808, United
States of America (“Universus”);
(3)
VERSANI HEALTH CONSULTING CONSULTORIA EM
GESTÃO DE NEGÓCIOS EIRELI, a empresa individual de responsabilidade
limitada organized and existing under the laws of Brazil
having its principal place of business at Rua Francisco
Leitão, 177, Conj. 92, Pinheiros, Municipality of São
Paulo, State of São Paulo – 05.414- 020, Brazil,
enrolled with the Brazilian Taxpayer Secretariat under number CNPJ
31.025.914/0001-30 (“Versani”);
(4)
CURARUS LIMITED, a private limited
company organized and existing under the laws of England and Whales
having its principal place of business at Unit C, Harcourt Way,
Meridian Business Park, Leicester, LE19 1WP (“Curarus”);
(5)
DANIEL FELICIANO FERREIRA, Brazilian,
married, manager, resident and domiciled in the city of São
Paulo, State of São Paulo, at (“Daniel”);
(6)
FERNANDO DELMONTE MOREIRA, Brazilian,
married, physician, resident and domiciled in the city of Salvador,
State of Bahia, at (“Fernando”);
(7)
PAULO HENYAN YUE CESENA, Brazilian,
divorced, engineer, resident and domiciled in the city of São
Paulo, State of São Paulo, at (“Paulo”);
(8)
FABIO DELMONTE MOREIRA, Brazilian,
married, pharmacist, resident and domiciled in the city of Miami,
State of Florida, at (“Fabio”);
(9)
PARVINDER
PUNIA, a citizen of the Czech
Republic, regulatory affairs consultant, resident and domiciled in
the city of Ricany, at (“Parvinder”);
and
(10)
LAURA NAE, a citizen of the Czech
Republic, regulatory affairs consultant, resident and domiciled in
the city of Prague, at (“Laura” and,
together with Curarus, Daniel, Fernando, Paulo, Fabio and
Parvinder, the “IDIC
Group”).
WHEREAS,
(A)
Sanuwave develops
and commercializes high-energy, focused, shock wave technology used
in devices for the repair and regeneration of bones, muscles,
tendons and skin, and for the separation of solids and fluid in
non-medical systems;
(B)
Sanuwave has
developed and commercializes the dermaPACE device and wound kits
consisting of a standard ultrasound gel and a custom size sterile
sleeves used for the treatment of various acute and chronic wounds
using extracorporeal shockwave therapy technology (the
“Device”);
(C)
On November
6th, 2019, the IDIC Group
completed the payment to Sanuwave of the first installment of the
Partnership Fee in the total amount of USD $250,000.00 (two hundred
and fifty thousand U.S. Dollars);
(D)
Subject to the
terms and conditions of this Agreement, the Parties agreed (i) to
form a joint venture in Brazil to manufacture, import, export, use,
offer for sale, and distribute the Device and related treatments on
an exclusive basis in Brazil, and (ii) to enter into this
Agreement, to further regulate their rights and obligations with
respect to the joint venture; and (iii) to incorporate the JV
Company, and execute the other Transaction Documents to govern the
operations and management of the JV Company;
(E)
Upon formation of
the JV Company, Sanuwave will own forty-five per cent (45%) of the
equity interests of the JV Company, the IDIC Group, through a
holding company to be formed, will collectively own forty-five per
cent (45%) of the equity interests of the JV Company and each of
Versani and Universus will own five per cent (5%) of the equity
interests of the JV Company.
NOW, THEREFORE, the Parties agree,
subject to the terms and conditions hereinafter set forth, as
follows:
SECTION
1
DEFINITIONS
AND INTERPRETATION
DEFINITIONS
1.1 For the purposes of
this Agreement, the following capitalized terms shall have the
meanings ascribed to them below:
Affiliate means any Person which
directly or indirectly Controls, is Controlled by, or is under
common Control with, another Person.
Agreement means this Agreement and its
Schedules and Exhibits.
Anti-Corruption Laws has the meaning set
forth in Section 9.2.
ANVISA means Agência Nacional de Vigilância
Sanitária, the National Health Surveillance Agency of
Brazil.
Applicable Law means any and all laws,
rules, statutes, decrees, regulations, ordinances or orders valid
and enforceable in the United Kingdom, Brazil and any other
jurisdiction in the proper exercise of its jurisdiction, as
applicable, including all applicable public, environmental and
competition laws and regulations; and any administrative decision,
judgment and other pronouncement enacted, issued, promulgated,
enforced or entered into by any Governmental
Authority.
Arbitral Tribunal has the meaning set
forth in Section 23.4.
Arbitration Chamber has the meaning set
forth in Section 23.2.
Board of Directors means the board of
directors of the Company.
Brazil means the Federative Republic of
Brazil.
Business means the manufacturing,
import, export, use, sale, and distribution of the Device and
related treatments on an exclusive basis within the
Brazil.
Business Day means a day on which
commercial banks are generally open for business in São
Paulo.
Business Plan means the annual operating
and financial plan of the JV Company, which shall be agreed between
Sanuwave and the members of the IDIC Group prior to the formation
of the JV Company.
Bylaws means the bylaws of the Company
to be enacted at the general meeting of incorporation of the JV
Company.
Change of Control has the meaning set
forth in Section 7.1.
Confidential Information has the meaning
set forth in Section 24.1.
Conflict has the meaning set forth in
Section 23.1.
Consenting Meeting of Representatives
has the meaning set forth in Section 10.2.
Consenting Meeting of the Senior
Management has the meaning set forth in Section
10.3.
Control (including the terms
“Controls”, “Controlled by” and
“under common Control with”) means with respect to any
Person or group of Persons (the “Controlling Person”),
(a) the ability of the Controlling Person, whether through the
ownership of voting securities of another Person (the
“Controlled Person”) or by contract or otherwise, to
directly or indirectly (i) elect a majority of the board of
directors or other similar governing or managing body of such
Controlled Person, or (ii) direct or cause the direction of the
management or policies of such Controlled Person, or (b) the
ownership rights that entitle the Controlling Person to have the
majority of the voted in such Controlled Person general
meetings.
Defense Costs has the meaning set forth
in Section 19.5(b).
Direct Claim has the meaning set forth
in Section 19.5(a).
Direct Transfer means, when used as a
noun, any direct transfer, assignment (including any fiduciary
assignment) conveyance, exchange, donation, gift, sale, merger, or
other disposition or attempted disposition of equity interests,
whether voluntary or involuntary; and when used as a verb and/or as
an adjective, shall have a meaning correlative with the
foregoing.
Director means a member of the Board of
Directors.
Drag-Along Conditions has the meaning
set forth in Section 6.4.2.
Drag-Along Transferor has the meaning
set forth in Section 6.4.1.
Drag-Along Notice has the meaning set
forth in Section 6.4.1.
Drag-Along Potential Buyer has the
meaning set forth in Section 6.4.1.
Drag-Along Right has the meaning set
forth in Section 6.4.1.
[***]
has the meaning set forth in Section 3.10.
Encumbrance means any charge, pledge,
mortgage, encumbrance, option, deposit, usufruct, reservation of
title, preemptive right, preferential right, fiduciary transfer or
other third party rights affecting the property, asset or right in
question, or security interest of any kind, or promise, agreement
or obligation to provide any of the above-listed
items.
Effective Date has the meaning set forth
in the Preamble.
Fiscal Year means the period commencing
on January 1 and ending on December 31 each year.
Follow-on Offer Period has the meaning
set forth in Section 6.2.1.
Governmental Authority means any court,
whether tribunal or administrative, governmental or regulatory
body, agency, commission, division, department, autarchy,
organization, public body, State, municipality or other
governmental authority (including the Brazilian judicial,
legislative and executive branches) having jurisdiction over the
Parties and/or the matters which
are subject to this Agreement.
Gross Sales means the total amount of
sales recognized for a reporting period, prior to any deductions or
discounts.
IDIC Group has the meaning set forth in
the Preamble.
IDIC Group Change of Control Put Option
Affected Shares has the meaning set forth in Section
7.3.1.
IDIC Group Change of Control Put Option
has the meaning set forth in Section 7.3.1.
IDIC Group Change of Control Put Option
Exercise Notice has the meaning set forth in Section
7.3.1.
[***]
has the meaning set forth in Section 3.10.
IDIC Group Indemnified Parties has the
meaning set forth in Section 19.2.
IDIC Group Nominee Shareholder has the
meaning set forth in Section 25
Indemnified Parties has the meaning set
forth in Section 19.2.
Indemnifying Party has the meaning set
forth in Section 19.4.
Initial Closing has the meaning set
forth in Section 16.1.
Initial Closing Conditions has the
meaning set forth in Section 15.1.
Initial Closing Date has the meaning set
forth in Section 16.1.
Initial Closing Long Stop Date means
(including) December 17, 2019.
Initial Offer Period has the meaning set
forth in Section 6.2.1.
Indirect Transfer means, when used as a
noun, (a) with respect to any Party (other than Sanuwave) (a
“Subject Person”): (i) any corporate recapitalization,
reorganization, amalgamation or change of ownership of any of the
issued and outstanding securities or other ownership of such
Subject Person; (ii) any transfer, assignment (including any
fiduciary assignment), conveyance, exchange, donation, gift, sale,
merger or other transaction or disposition or attempted disposition
or abandonment of the equity interest of a Subject Person, whether
voluntary or involuntary; (iii) the issuance of any treasury or
other securities or ownership interests of such Subject Person to
any Person, in each case, where as a result of such action or
transaction described in (i), (ii) or (iii) above, any of the
issued and outstanding securities or other ownership interests of
such Subject Person would be owned, directly or indirectly, by a
person other than the Person or Persons or beneficial owners or
beneficial owners) that owned such securities immediately prior to
such action and/or transactions (and when used as a verb and/or as
an adjective, shall have a meaning correlative to the
foregoing).
Intellectual Property Rights means any
intellectual property rights, including, without limitation, (i)
patents, patent applications and statutory invention registrations,
(ii) registered, unregistered and applications to register
trademarks, service marks, trade names, trade dress, logos,
commercial names, domain names or corporate names, including any
trademarks registered before the Brazilian Intellectual Property
Agency (Instituto Nacional da
Propriedade Intelectual – INPI) and including all
goodwill associated with the foregoing, (iii) registered,
unregistered and applications to register copyrights, together with
translations, adaptations, derivations and combinations thereof,
(iv) trade secrets, know-how, and proprietary information,
including trade secrets, know-how and invention rights and (v)
algorithms and software, domain names, websites, inventions
(whether patentable or unpatentable and whether or not reduced to
practice) and all improvements thereto, and all other similar
intellectual property rights.
JV Company means the corporation or
other Person which the Parties agree to establish, or cause to be
establish, as provided for in this Agreement to explore the
Business pursuant to the terms and conditions of this Agreement,
the Bylaws and the other Transaction Documents.
JV Transaction has the meaning set forth
in Section 13.1.
License means any licenses, permits,
authorizations, consents or other approvals required by Applicable
Law (especially any environmental laws) or by any Governmental
Authority.
Lock-Up has the meaning set forth in
Section 5.1.
Losses means any and all damages,
losses, amounts paid pursuant to judicial, administrative or
arbitration decisions, costs and expenses, tax assessments,
interest, fines and charges of any nature, including
attorneys’ fees and deposits due to judicial and
administrative proceedings, it being agreed that neither Party
shall be liable in an action initiated by one against the other for
special, indirect or consequential damages resulting from or
arising out of, without limitation, loss of profit or business
opportunities, and/or business interruptions.
Marketing Policy means the marketing
policy of the JV Company which shall be agreed between the Parties
prior to the Subsequent Closing Date.
New Transfer Terms has the meaning set
forth in Section 6.2.2.
Net Sales means the gross amount
invoiced by the JV Company for Device procedures or products sold
in bona fide, arms-length transactions to third parties for use in
the field, less sales, use, occupation and excise taxes, and
transportation, discounts, returns and allowances in lieu of
returns.
Non-Compete Obligation has the meaning
set forth in Section 21.1.
Notice of Change of Control has the
meaning set forth in Section 7.1.
Officer means the officers of the JV
Company appointed in accordance with the Shareholders’
Agreement and Bylaws.
Organizational Expenses means the cost
of organizational expenses for the incorporation and operation of
the JV Company such as the INMETRO certification, ANVISA
authorization, pharma economic study, RADAR licenses, the cost of
the initial three Devices, insurance, and pre- launch costs for key
opinion leader development and symposiums or congresses, provided
that any costs related to employees, contract labor, or back office
facilities are excluded from this definition.
Partnership Fee means the total amount
to be paid by the IDIC Group to Sanuwave in the aggregate amount of
$600,000.00 (six hundred thousand U.S. Dollars) payable in
accordance with Section 3.1.
Parties has the meaning ascribed to it
in the Preamble.
Party has the meaning ascribed to it in
the Preamble.
Person means any natural person, legal
entity, firm, partnership, association, business or non-business
company, corporation, joint venture, limited liability company,
association, trust, unincorporated organization, pension fund,
trust, Governmental Authority, investment fund or other entity, as
well as any syndicate or group of two or more of such Persons
acting as a syndicate or group for purposes of acquiring, holding
or disposing of securities or other interests in any such
Person.
Policy has the meaning set forth in
Section 12.6.2.
Remaining Parties has the meaning set
forth in Section 6.2.1.
Remaining Party Transfer Terms has the
meaning set forth in Section 6.2.1.
Required Approvals has the meaning set
forth in Section 17.1.1.
Requisite Vote of the Board has the
meaning set forth in Section 9.5.8.
Right of First Offer has the meaning set
forth in Section 6.2.1.
ROFO Acceptance has the meaning set
forth in Section 6.2.1.
ROFO Completion Date has the meaning set
forth in Section 6.2.3.
ROFO Offered Shares has the meaning set
forth in Section 6.2.1.
ROFO Offer Price has the meaning set
forth in Section 6.2.1.
Rules of Arbitration has the meaning set
forth in Section 23.2.
Sanuwave has the meaning set forth in
the Preamble.
Sanuwave Indemnified Parties has the
meaning set forth in Section 19.1.
Sanuwave Post Ramp-Up Change of Control
Affected Shares has the meaning set forth in Section
7.3.1.
Sanuwave Post Ramp-Up Change of Control Call
Option has the meaning set forth in Section
7.3.1.
Sanuwave Post Ramp-Up Change of Control Call
Option Exercise Notice has the meaning set forth in Section
7.3.1.
Sanuwave Pre Ramp-Up Change of Control Affected
Shares has the meaning set forth in Section
7.2.
Sanuwave Pre Ramp-Up Change of Control Call
Option has the meaning set forth in Section
7.2.
Sanuwave Pre Ramp-Up Change of Control Call
Option Exercise Notice has the meaning set forth in Section
7.2.
Sanuwave’s Technology means all
know how, methods, processes, pathway, technology, inventions,
expertise, trade secrets, techniques, specifications, formulations,
formulae, combinations of components, and tangible and intangible
information that Sanuwave has developed or otherwise owns or holds
related to the Device.
Shareholders’ Agreement means the
shareholders’ agreement of the JV Company to be entered into
by the Parties prior to the formation of the JV
Company.
Shares mean the issued and outstanding
ordinary and preferred shares of the capital stock of the JV
Company.
Subsequent Closing has the meaning set
forth in Section 18.1.
Subsequent Closing Conditions has the
meaning set forth in Section 17.1.
Subsequent Closing Date has the meaning
set forth in Section 18.1.
Subsequent Closing Long Stop Date means
(including) December 31, 2020.
Supply Agreement means the agreement to
be entered into by Sanuwave and the JV Company for the supply of
Devices.
Tag-Along Exercise Notice has the
meaning set forth in Section 6.3.3.
Tag-Along Conditions has the meaning set
forth in Section 6.3.2.
Tag-Along Notice has the meaning set
forth in Section 6.3.1.
Tag-Along Potential Buyer has the
meaning set forth in Section 6.3.1.
Tag-Along Right has the meaning set
forth in Section 6.3.1.
Tag-Along Shares has the meaning set
forth in Section 6.3.1.
Tag-Along Transferor has the meaning set
forth in Section 6.3.1.
Technology License Agreement means the
technology license agreement to be entered into by Sanuwave and the
JV Company on the Subsequent Closing Date related to the ownership
and use of the Intellectual Property Rights to be transferred to
and/or developed by JV Company.
Third-Party Claim has the meaning set
forth in Section 19.5(b).
Third Party Claim Notice has the meaning
set forth in Section 19.4.
Trademark License Agreement means the
trademark license agreement to be entered into by the JV Company
and Sanuwave prior to the Subsequent Closing.
Transfer means any Indirect Transfer or
Direct Transfer.
Transfer Notice has the meaning set
forth in Section 6.2.1.
Transferor has the meaning set forth in
Section 6.2.1.
Transaction Documents means this
Agreement, the Shareholders’ Agreement, the Promissory Notes,
the Trademark License Agreement, the Supply Agreement and the
Technology License Agreement.
INTERPRETATION
1.2 All references to
Sections, Recitals, Exhibits and Schedules are, unless otherwise
expressly stated, references to sections of, and Recitals, Exhibits
and Schedules to, this Agreement.
1.3 The headings in
this Agreement are inserted for convenience only and shall be
ignored in construing this Agreement.
1.4 Any reference to
any statute, statutory instrument or contract, agreement or other
similar arrangement in this Agreement shall be a reference to the
same as amended, supplemented, re-enacted or replaced from time to
time.
1.5
References to “include” or “including” are
to be construed without limitation.
1.6 Unless the context
otherwise requires, reference to the singular shall include a
reference to the plural and vice-versa; and reference to any gender
shall include a reference to all genders.
1.7 The Exhibits and
Schedules form part of this Agreement. In the event of any conflict
between the provisions of this Agreement, the Exhibits and the
Schedules, the provisions of this Agreement shall
prevail.
SECTION
2
SCOPE
OF THIS AGREEMENT
2.1 The purpose of this
Agreement is to set forth the rights and obligations of the Parties
in connection with (i) the establishment of the joint venture, (ii)
the incorporation, management and governance of the JV Company;
(iii) the development and operation of the Business by the JV
Company.
2.2 The Parties agree
that upon the formation of the JV Company and subsequent execution
of the Shareholders’ Agreement, the Parties’
relationship as shareholders of the JV Company shall be governed by
the provisions of the Bylaws and the Shareholders’ Agreement
in respect of all matters requiring shareholders or Board of
Directors approval, which are relevant for the carrying out of the
JV Company’s Business and the pursuit of its
objectives.
2.3 Each Party
acknowledges and agrees that it shall vote in the General
Shareholders’ Meeting, and shall cause the members of the
Board of Directors appointed by them to vote in the Board of
Directors’ Meetings so as to comply with and give effect to
the terms and conditions of this Agreement, and that such Party and
such members of the Board of Directors shall act in accordance with
the provisions of this Agreement. The Parties undertake to take all
the necessary measures to ensure that the members of the Board of
Directors and the Officers will comply with this Agreement,
including through the execution of a deed of adherence by each
member of the Board of Directors and the Officers.
2.4 The Parties also
agree that it is of the essence of this Agreement that, in their
capacity as shareholders, they shall endeavor to generate value for
the JV Company and the Business by their mutual cooperation and
contribution in their respective areas of expertise within the
scope of the Business.
2.5 The Business shall
be conducted so as to maximize the benefit to the Parties as
shareholders, and to prioritize the JV Company’s financial
independence from the Parties as shareholders, using (in light of
the tax, legal, regulatory and economic circumstances at the time)
the financing tools and instruments which are available in the
market and the guarantees secured on its own assets and credit
health, avoiding as far as reasonably possible the request by it
for financial support from one or more Parties as
shareholders.
SECTION
3
THE
JOINT VENTURE AND JV COMPANY
3.1 IDIC Group shall
pay to Sanuwave the Partnership Fee, in exchange for the right of
establishing a joint venture company which will hold the exclusive
territorial rights to be granted to the JV Company to use, offer
for sale, import, and export the Device within Brazil on the
Subsequent Closing Date. The Partnership Fee has been and shall be
paid in three separate installments as follows: (a) USD $250,000.00
(two hundred and fifty thousand U.S. dollars) paid in full on
November 14th, 2019; (b) USD
$250,000.00 (two hundred and fifty thousand U.S. dollars) to be
paid on the Initial Closing Date (no later than December
31st, 2019); and (c)
USD $100,000.00 (one
hundred thousand U.S. dollars) to be paid by Sanuwave upon receipt
of applicable regulatory approval by ANVISA for the JV Company to
commercialize the Device in Brazil, on the Subsequent Closing
Date.
3.1.1 In
the event that the Parties have not reached agreement on the
Shareholders’ Agreement, the Promissory Notes, the Trademark
License Agreement, the Supply Agreement and the Technology License
Agreement by January 31, 2020, IDIC Group shall have the right to
terminate this Agreement for cause, [***],and Sanuwave
[***].
3.1.2 In
the event ANVISA does not grant regulatory approval for the JV
Company to commercialize the Device in Brazil, or in the event
ANVISA grants the approval with restrictions that will materially
impact the JV Company’s operation, IDIC Group shall have the
right to terminate this Agreement for cause, [***], and Sanuwave
[***].
3.2 In exchange for the
payment of the first installment of the Partnership Fee, Sanuwave
issued to each member of the IDIC Group, the Promissory Notes. Each
of such Promissory Notes is attached hereto as Exhibit A.
3.3 The IDIC Group
shall be responsible for the incorporation of the JV Company and
shall pay any and all fees and expenses in connection with the
incorporation, formation, and startup of the JV Company, including
but not limited to all expenses to form the JV Company, obtain the
required approvals and filings with any Governmental Authority for
the operation of the JV Company, the registration and
commercialization of the Device, attorneys' fees and fees of other
advisors involved and all other disbursements or expenses of the
types customarily incurred in connection with the procedures herein
contemplated.
3.4 Sanuwave shall
cooperate with the IDIC Group and bear its own costs associated
with it becoming a shareholder of the JV Company, including but not
limited, to any requested legal opinions outside of Brazil and its
own travel expenses.
3.5 The JV Company
shall be a corporation incorporated in Brazil governed by Law No.
6.404/76, the Bylaws and the Shareholders’ Agreement. The
following provisions of Sections 3.5 through
and including
Section 3.12 shall apply after the formation of the JV Company and
shall be reflected in the Bylaws and Shareholders’ Agreement
of the JV Company.
3.6 The corporate name
of the JV Company shall be Diversa S.A. and the JV Company’s
headquarters will be at Santana do Parnaíba.
3.7 When the formation
of the JV Company occurs, the corporate capital of the JV Company
shall be represented by ordinary and preferred registered shares,
all with a par value of R$ 1.00 (one Brazilian Real) each, free
from any Encumbrances, in a total of R$5,001.00 (five thousand and
one Brazilian Reais) represented by five thousand (5,000) ordinary
shares and one preferred share each held as follows:
(a) [***] held by
Sanuwave;
(b)
[***] held by the
IDIC Group, through a holding company to be formed by IDIC
Group;
Group;
(c) [***] held by
the IDIC
(d) [***] held by
Versani; and
(e) [***] held by
Universus.
3.8
The preferred shares of the JV
Company will not grant any voting right to [***], are not
convertible into ordinary shares, and shall not be transferred by
[***], except among its
members and/or Affiliates of its members.
3.9 Notwithstanding the
foregoing, in case preferred shares are granted any voting rights
to [***] by virtue of law, [***] hereby fully waives any such
rights and, if such rights may not be waived by [***] for any
reason whatsoever, [***] shall always exercise such voting rights
with respect to the preferred shares in the same manner as [***]
exercise voting rights with respect to its ordinary shares. In
addition, for all purposes of this Agreement (including verifying
whether any minimum ownership percentage thresholds set forth
herein were met), the preferred shares shall not be considered to
constitute part of the voting capital of the JV Company. The
preferred shares do not participate in the capital increases
arising from capitalization of reserves or profits and do not give
any rights to remaining profits.
3.10 The right granted to [***] as the
sole holder of preferred shares shall exclusively consist of
receiving fixed prioritized dividends from the profits of the JV
Company until full reimbursement of the amounts paid by [***] in
connection with the Partnership Fee and the Organizational
Expenses, including the amount corresponding to any taxes paid by
[***] in connection with the payment of the Partnership Fee, always
net of any applicable taxes (the “[***]”). Such
dividends shall be paid exclusively based on the Bylaws reserve to
be established in the Bylaws of the Company. The Parties agree that
the [***] will not be paid through interest on net capital
(juros sobre capital
próprio).
3.11 The
Parties undertake to vote in the General Shareholders’
Meeting in order to distribute to [***], as the sole holder of
preferred share, the totality of the [***] as soon as the
applicable Bylaws reserve has received enough cash to pay the
[***].
3.12 The
preferred share shall be redeemed by the JV Company for the price
equivalent to the equity value of the share on the Effective Date
as soon as the [***] is paid in full, solely by making use of funds
allocated to the Bylaws reserve to be created. The Parties hereby
undertake to carry out: (a) an Extraordinary General
Shareholders’ Meeting within thirty days counted as from the
date on which the [***] is paid in full and to approve the
redemption of the preferred shares, under the terms
hereof.
3.13 The
ordinary shares shall be paid-in by the shareholders in cash (in
Brazilian Reais) or with assets and rights pursuant to the terms of
the Shareholders’ Agreement and the Business Plan. Upon
contribution, the JV Company shall be entitled to use
Sanuwave’s Technology as per the terms and conditions of the
Technology License Agreement.
SECTION
4
FINANCING,
CAPITAL INCREASES AND DIVIDENDS
4.1 The following
provisions of this Section 4 shall apply after the formation of the
JV Company, and shall be incorporated into the Shareholders’
Agreement and the Bylaws of the JV Company.
4.2 None of the Parties
shall be obligated to pay any debt or provide any equity financing
or other financial support of any kind or nature to the JV Company,
including loans or guarantees or other assurances to third parties
in connection with the extension of credit or other financial
support provided to the JV Company, unless it has separately
committed in writing (in a legally binding manner) to the JV
Company to do so.
4.3 Upon approval by
the requisite number of shareholders at a General
Shareholders’ Meeting, the JV Company may obtain financing
through the issuance of securities, including equity and debt
securities, if the Board of Directors determines that such
financing is in the best interest of the JV Company.
4.4 The capital
increases involving issuance of Shares by the JV Company shall be
carried out in the best interests of the JV Company, shall comply
with the Applicable Law, and must be approved by a General
Shareholders’ Meeting, upon recommendation of the Board of
Directors.
4.4.1 Notwithstanding
the above mentioned, for the purposes of increasing the capital of
the JV Company, the Parties hereby agree that the JV Company shall
be evaluated by its book value until it reaches US$ 2,000,000.00 in
Gross Sales. Once this threshold is reached, the JV Company may be
evaluated by any methods available, according to the Applicable
Law, the recommendation of the Board of Directors and approval of
the General Shareholders’ Meeting.
4.5 In case of a
capital increase, each Party shall have the right to subscribe for
and contribute to the capital increase pro-rata in proportion to
its ownership interest as of the date of the approval of the
capital increase. If a Party does not subscribe for and contribute
its share of capital increase, then any other Party may subscribe
for and contribute that share pro-rata in proportion to its
ownership interest, in which case the ownership interest of the
non-contributing Party may be diluted, and that of the other
Parties’ increased.
4.6 Within [***] days
as from the approval of: (i) a capital increase by issuance of
Shares by the JV Company; or (ii) any issuances of other Shares by
the JV Company, each Party will be offered the opportunity to
subscribe for up to its pro rata share of the new Shares relative
to its then-current participation in the corporate capital of the
JV Company in accordance with the Applicable Law. In the event that
any Party does not exercise, in whole or in part, its preemptive
rights, but one or more other Parties exercised its or their
preemptive rights in full, such other subscribing Party(ies) shall
first have the opportunity (for an additional period of [***] days
after the date of elapse of the [***]-day term provided by this
Section) to subscribe for such unsubscribed-for Shares (on a pro
rata basis among them), before such unsubscribed Shares are offered
to third parties.
SECTION
5
GENERAL
ASPECTS OF THE TRANSFER OF SHARES
5.1 No member of the IDIC
Group shall Transfer any of their respective direct or indirect
participation in the joint venture or the JV Company (except among
its undersigned members and/or to one or more Affiliates of such
members) either totally or partially, until the third anniversary
of the payment in full of the Partnership Fee (“Lock-Up”).
5.2 The following
remaining provisions of this Section 5 shall apply after the
formation of the JV Company, and shall be incorporated into the
Shareholders’ Agreement and the Bylaws of the JV
Company.
5.3 Except as
contemplated by this Section 5 or Section 6, no Party shall
Transfer, any portion of their respective Shares without complying
with the provisions of this Section 5 or Section 6.
5.4 The Parties agree
that the following Transfers will not be subject to the
restrictions on transfer established under this Agreement: (i)
Transfers among the current members of the IDIC Group, or transfers
by the current members of the IDIC Group to one or more Affiliates,
provided that in case a current member ceases to be a member of the
IDIC Group, a transfer to such former member shall not be permitted
or if a Transfer is made to a member of the IDIC Group and such
Person ceases to be a member of the IDIC Group, such shares must be
re-transferred to a member of the IDIC Group; and (ii) transfers by
Sanuwave to an Affiliate.
5.5 Any Transfer of
Shares performed in violation of the provisions of this Agreement
shall be null and void and the Company shall not register such
transaction under the Shares Registry Book or the Shares Transfer
Book, in which case the defaulting Party undertakes to be liable
towards the JV Company, the remaining Parties and any third parties
for any losses and damages resulting from such
violation.
5.6 The issue of Shares
or the Transfer of Shares to a Person who is not already a Party to
this Agreement (including any Affiliate of the transferring Party)
shall only be performed upon irrevocable and irreversible
obligation of such Person to adhere to the Shareholders’
Agreement by means of the execution of an adhesion agreement to be
attached as an exhibit to the Shareholders’
Agreement.
SECTION
6
RIGHT
OF FIRST OFFER; TAG-ALONG RIGHT; DRAG-ALONG RIGHT
6.1 The following
provisions of this Section 6 shall apply after the formation of the
JV Company, and shall be incorporated into the Shareholders’
Agreement and the Bylaws of the JV Company.
6.2
Right of First Offer
6.2.1 Subject
to the Lock-Up, if a Party (“Transferor”)
desires to Transfer all or any portion of its Shares (the
“ROFO
Offered Shares”) to a Third Party (other than a
permitted assignee), the Transferor shall first permit each of the
other Parties (“Remaining
Parties”) to exercise its right
of first offer in respect of all of the ROFO Offered Shares (the
“Right of
First Offer”). The Transferor shall notify the
Remaining Parties about its intention to Transfer the Shares, which
notice shall include the number of ROFO Offered Shares (the
“Transfer
Notice”). Within [***] days of the Transfer Notice
(the “Initial Offer
Period”), each Remaining Party may, on a pro-rata
basis to its then current participation in the corporate capital of
the JV Company, make an offer to the Transferor to acquire all (but
not less than all) of the ROFO Offered Shares at an all-cash price
(the highest such price shall be the “ROFO Offer
Price”) and on an “as-is, where-is” basis,
except for customary representations and warranties
(“Remaining Party Transfer
Terms”); any exercise by the IDIC Group as a
“Remaining Party” of the Right of First Offer hereunder
may be exercised by the IDIC Group as a whole, or by its individual
members, at their sole discretion. In making such offer, each
Remaining Party will have the right to over-elect, on a pro-rata
basis relative to its then current participation in the corporate
capital of the JV Company, to acquire the pro rata portion of any
Remaining Party which does not elect to participate. Each Remaining
Party that in the Initial Offer Period offered less than the ROFO
Offer Price shall have [***] Business Days following the expiry of
the Initial Offer Period (the “Follow-on Offer
Period”) to notify the Transferor and the other
Remaining Parties that it is willing to also pay the ROFO Offer
Price. The Transferor shall have a [***]-day period following the
end of the Initial Offer Period or the Follow-on Offer Period (as
applicable), to accept the ROFO Offer Price (“ROFO
Acceptance”) at its discretion.
6.2.2 If
the Transferor elects not to sell its ROFO Offered Shares at the
ROFO Offer Price with the Remaining Parties, it may, during a
further period of [***] months, enter into definitive transaction
documents to sell all (but not less than all) of the ROFO Offered
Shares to an arm’s length third party at a price higher than
the ROFO Offered Price, which sale shall not include any collateral
agreements or any other terms that would reasonably be expected to
make the transaction price with such third party less than the ROFO
Offer Price (“New Transfer
Terms”). In the event that no ROFO Offer Price is
offered, the Transferor may sell to a third party purchaser at any
price, provided that execution of the definitive transaction
documents to effect the sale occurs within [***] months after the
lapse of a [***] days period for presentation of the ROFO Offer
Price. In case of lapse of the [***] month period without the
execution of the definitive transaction documents to be entered
into with a Third Party, in case the Transferor still intends to
sell the ROFO Offered Shares, the Transferor shall restart the
procedure indicated in this Section 6.2.
6.2.3 If
the Transferor elects to consummate the Transfer of the ROFO
Offered Shares at the ROFO Offer Price with the Remaining Parties
then within [***] days of the date of the ROFO Acceptance, the
Transferor must provide written notice to the Remaining Parties of:
the number of ROFO Offered Shares that each Remaining Party is
obliged to acquire; and the date, place and time (the "ROFO Completion
Date") between [***] and [***] Business Days after the date
of the ROFO Acceptance, on which the sale and purchase of the ROFO
Offered Shares is to be completed.
6.2.4 On
or before the ROFO Completion Date, the Transferor shall effect the
Transfer to the Remaining Party(ies) by executing an instrument of
transfer in respect of the relevant ROFO Offered Shares and will
Transfer on the ROFO Completion Date the relevant ROFO Offered
Shares to the relevant Remaining Parties) free from all
Encumbrances with full title guarantee, and on the Remaining Party
Transfer Terms against payment in cash of the aggregate ROFO
Offered Price due to it in respect of the ROFO Offered Shares from
the Remaining Parties on the ROFO Completion
Date.
6.3.1 Subject
to the Lock-Up and the Right of First Offer, a Party which intends
to sell its Shares of the JV Company (“Tag-Along
Transferor”) shall not sell its Shares in the JV
Company to a Third Party (other than a permitted transferee)
(“Tag-Along Potential
Buyer”), except in case (i) the terms and conditions
of such Transfer of Shares include an offer, by the Tag- Along
Potential Buyer to the other Parties other than the Tag-Along
Transferor for the acquisition of the Shares held by the other
Parties (“Tag-Along
Shares” and “Tag-Along
Right”, respectively), on a pro rata basis to their
share ownership in the corporate capital of the JV Company, and
(ii) the Tag-Along Transferor delivers a notice of such offer to
the other Parties not less than forty-five days prior to such
proposed transfer to such Tag-Along Potential Buyer
(“Tag-
Along Notice”).
6.3.2 The
Tag-Along Notice shall include the following information
(“Tag-Along
Conditions”): (a) the number of Shares held by the
Tag-Along Transferor to be transferred to the Tag-Along Potential
Buyer; (b) the cash price to be paid per share and the conditions
of payment; (c) the transfer
terms agreed with the Tag-Along Potential Buyer; (d) the name and
the identity of the Tag-Along Potential Buyer; (e) copy of the
principal final documents for the purchase and sale of shares or,
in their absence, copy of the offer or the purchase terms submitted
by the Tag-Along Potential Buyer.
6.3.3 The
other Parties shall have the right, to be exercised by notice to
the Tag- Along Transferor within [***] days after the receipt of
the Tag-Along Notice, to notify the Tag Along Transferor in writing
whether it intends to exercise the Tag-Along Right
(“Tag-Along Exercise
Notice”). Upon the timely delivery of any Tag-Along
Exercise Notice, it shall be a condition precedent for the closing
of such Transfer of Shares to the Tag-Along Potential Buyer that
the Tag-Along Potential Buyer acquires at the same time the
Tag-Along Shares of the Parties which provided the Tag-Along
Exercise Notice. In this case, the Tag-Along Transferor shall cause
the amount to be paid by the Tag-Along Potential Buyer in the terms
of the Tag-Along Offer to be transferred directly to the applicable
Parties upon delivery of its/their Tag-Along Shares and any other
documents reasonably agreed between the Tag-Along Transferor and
the Tag-Along Potential Buyer.
6.3.4 Any
Shares transferred by the other Parties to the Tag-Along Potential
Buyer shall be transferred at the same price per share transferred
by the Tag-Along Transferor to the Tag-Along Potential Buyer. In
case the other Parties exercise the Tag-Along Right under the terms
hereof, the Transfer of Shares held by the Tag-Along Transferor and
the Tag-Along Shares to the Tag-Along Potential Buyer shall be
concluded within [***] days after the receipt of the Tag-Along
Exercise Notice by the Tag-Along Transferor. In case the Transfer
of Shares is not concluded as soon as reasonably possible, the
Tag-Along Transferor shall again comply with the terms hereof prior
to the Transfer of Shares to the Tag-Along Potential Buyer Notice
(extendable to accommodate any required Governmental Authority
approvals, which shall be obtained as soon as possible with all
necessary action by the parties involved).
6.3.5 In
case no other Party decides not to exercise its Tag-Along Right
under the terms hereof, the Transfer of Shares by the Tag-Along
Transferor to the Tag-Along Potential Buyer shall be concluded as
soon as reasonably possible. In case the Transfer of Shares to the
Tag-Along Potential Buyer is not totally concluded within [***]
months counted as from the date in which the term for the issuance
of the Tag-Along Exercise Notice expires, the provisions of this
Section 6.3.5 shall be
required to be complied with again by the Tag-Along Transferor
prior to the Transfer of Shares to the Tag-Along Potential Buyer
Notice (extendable to accommodate any required Governmental
Authority approvals, which shall be obtained as soon as possible
with all necessary action by the parties involved).
6.4.1 Subject
to the Lock-up and Right of First Offer, in the event a Party or
Parties holding not less than [***] percent ([***]%) of the equity
interests of the JV Company receives a bona fide purchase offer
(“Drag-Along
Transferor”) from a Third Party (“Drag-Along Potential
Buyer”), the Drag-Along Transferor shall be entitled
to cause the other Parties to transfer all, but not less than all,
of their Shares jointly with the Drag-Along Transferor to the
Drag-Along Potential Buyer for the same price per share on a pro
rata basis to their share ownership in the corporate capital of the
JV Company and on the same conditions applicable to the transfer of
the Drag-Along Transferor (“Drag-Along
Right”). The Drag-Along Transferor shall send a prior
notice on such offer to the other Parties informing them about such
Transfer of Shares (“Drag-Along
Notice”).
6.4.2 The
Drag-Along Notice shall include the following information
(“Drag-
Along Conditions”): (a) the number of Shares held by
the Drag-Along Transferor to be transferred to the Drag-Along
Potential Buyer; (b) the cash price to be paid per share and the
conditions of payment; (c) the transfer terms agreed with the
Drag-Along Potential Buyer; (d) the name and the identity of the
Drag-Along Potential Buyer; (e) copy of the principal final
documents for the purchase and sale of shares or, in their absence,
copy of the offer or the purchase terms submitted by the Drag-Along
Potential Buyer.
6.4.3 In
the event of exercise of the Drag-Along Right by the Drag-Along
Transferor, the other Parties shall take or cause to be taken all
necessary or reasonable actions required for the expeditious
completion of the Transfer of Shares and shall execute and deliver
any reasonable documents determined by the Drag-Along Transferor,
including, if necessary, a share purchase agreement. The Transfer
of Shares shall be concluded within [***] days from the date of
delivery of the Drag-Along Notice (extendable to accommodate any
required Governmental Authority approvals, which shall be obtained
as soon as possible with all necessary action by the parties
involved).
6.4.4 In
the event of exercise of the Drag-Along Right by the Drag-Along
Transferor, all costs and expenses proven to have been incurred for
the preparation and execution of the Transfer of Shares, including
attorneys’ and professional fees, shall be borne by the Drag-
Along Transferor, except if the other Parties engage lawyers or
other advisers to assist them in the transaction, provided that
each Party shall be responsible for any and all taxes that may be
due by such Party as a result of such Transfer of
Shares.
6.4.5 For
purposes of the completion of the Transfer of Shares as a result of
the exercise of the Drag-Along Right, the Parties shall grant
irreversible and irrevocable powers of attorney pursuant to
articles 684 and 685 of the Brazilian Civil Code to execute any
transaction documents required to document the sale of shares and
the relevant share transfer form so as to perfect the Transfer of
Shares as a result of the Drag-Along Right.
SECTION
7
OPTION
UPON CHANGE OF CONTROL OF SANUWAVE
7.1 In case of a change
of Control of Sanuwave (“Change of
Control”), Sanuwave shall deliver written notice to
the other Parties informing about the consummation of the Change of
Control, within [***] days counted from the closing of the Change
of Control transaction (“Notice of Change of
Control”).
7.1.1 Notwithstanding
the above, Sanuwave undertakes to notify IDIC Group whenever it
starts a negotiation with third parties that could end up in a
Change of Control.
7.2
Sanuwave Pre
Ramp-Up Change of Control Call Option
7.2.1
In case a Change of Control occurs prior to the JV Company
achieving USD $2,000,000.00 (two million U.S. Dollars) in Gross
Sales, Sanuwave shall have the right to cause the other Parties to
sell all (but not less than all) of the equity interests held by
the other Parties (“Sanuwave Pre Ramp-Up Change
of Control Affected Shares”) to the new Controlling
Entity of Sanuwave (“Sanuwave Pre Ramp-Up Change
of Control Call Option”) and shall have a term of
[***] days from the receipt of the Notice of Change of Control by
the other Parties, to notify the other Parties of its intention to
exercise the Sanuwave Pre Ramp-Up Change of Control Call Option
(the “Sanuwave Pre Ramp-Up
Change of Control Call Option Exercise Notice”). In
case Sanuwave does not so notify the other Parties of such
intention within such [***]-day term, its omission shall be deemed
as a waiver of its Sanuwave Pre Ramp-Up Change of Control Call
Option.
7.2.2 If
Sanuwave exercises its Sanuwave Pre Ramp-Up Change of Control Call
Option, the price to be paid by the new Controlling Entity of
Sanuwave to the other Parties for all the Shares owned by such
other Parties shall be an amount equivalent to the multiple of four
(4) times the total amount invested in the JV Company, including
the Partnership Fees and Organizational Expenses, before the
closing of the Change of Control transaction, provided that such
amount shall be paid to the other Parties on a pro rata basis to
their share ownership in the corporate capital of the JV Company.
In case Sanuwave exercises its Sanuwave Pre Ramp-Up Change of
Control Call Option, the transfer of the Sanuwave Pre Ramp-Up
Change of Control Affected Shares to the new Controlling Entity of
Sanuwave shall be made within [***] days counted from the receipt
of the Sanuwave Pre Ramp-Up Change of Control Call Option Exercise
Notice (extendable to accommodate any required Governmental
Authority approvals, which shall be obtained as soon as possible
with all necessary action by the parties involved). In case
Sanuwave does not exercise its Sanuwave Pre Ramp-Up Change of
Control Call Option, the other Parties shall not be required to
sell the Sanuwave Pre Ramp-Up Change of Control Affected Shares to
Sanuwave, and such Sanuwave Pre Ramp-Up Change of Control Affected
Shares shall remain
subject
to the terms and conditions provided for in this Agreement,
including the Right of First Offer, the Tag-Along Right and the
Drag-Along Right.
7.3
Sanuwave Post
Ramp-Up Change of Control Call Option
7.3.1
If a Change of Control occurs after the JV Company achieves USD
$2,000,000.00 (two million U.S. Dollars) in gross sales, Sanuwave
shall have the right to cause the other Parties to sell the
totality (but not less than the totality) of the Shares held by the
other Parties (“Sanuwave Post Ramp-Up
Change of Control Affected Shares”) to the new
Controlling Entity of Sanuwave (“Sanuwave Post Ramp-Up
Change of Control Call Option”) and shall have a term
of [***] days counted as from the receipt of the Notice of Change
of Control by the other Parties, to notify the other Parties of its
intention to exercise the Sanuwave Post Ramp-Up Change of Control
Call Option (the “Sanuwave Post Ramp-Up
Change of Control Call Option Exercise Notice”). In
case Sanuwave does not so notify the other Parties of such
intention within such 30 (thirty)-day term, its omission shall be
deemed as a waiver of its Sanuwave Post Ramp- Up Change of Control
Call Option.
7.3.2 If
Sanuwave exercises its Sanuwave Post Ramp-Up Change of Control Call
Option, the price to be paid by the new Controlling Entity of
Sanuwave to the other Parties for all the Shares owned by such
other Parties shall be an amount equivalent to the multiple of
twelve (12) times the Net
Sales of the JV Company for the last twelve (12) months before the
closing of the Change of Control transaction, provided that such
amount shall be paid to the other Parties on a pro rata basis to
their share ownership in the corporate capital of the JV Company.
In case Sanuwave exercises its Sanuwave Post Ramp-Up Change of
Control Call Option, the transfer of the Sanuwave Post Ramp-Up
Change of Control Affected Shares to the new Controlling Entity of
Sanuwave shall be made within [***] days counted from the receipt
of the Sanuwave Post Ramp-Up Change of Control Exercise Notice
(extendable to accommodate any required Governmental Authority
approvals, which shall be obtained as soon as possible with all
necessary action by the parties involved). In case Sanuwave does
not exercise its Post-Ramp-Up Change of Control Call Option, the
other Parties shall not be required to sell the Sanuwave Post
Ramp-Up Change of Control Affected Shares, which shall remain
subject to the terms and conditions provided for in this Agreement,
including the Right of First Offer, the Tag-Along Right and the
Drag-Along Right.
7.4
IDIC Group Change
of Control Put Option
7.4.1 If
a Party receives a Notice of Change of Control after the JV Company
achieves USD $2,000,000.00 (two million U.S. Dollars) in gross
sales, such Party shall have a put option to sell all (but not less
than all) of its equity interests (“IDIC Group Change of
Control Put Option Affected Shares”) to the new
Controlling Entity of Sanuwave (“IDIC Group Change of
Control Put Option”). Each such Party shall deliver a
written notice of its intention to exercise the IDIC Group Change
of Control Put Option to Sanuwave within [***] days from the
earlier of the receipt of the Notice of Change of Control, or the
date of its actual knowledge of the occurrence of such Change of
Control (if such Notice of Change of Control was not delivered)
(the “IDIC Group Change of
Control Put Option Exercise Notice”).
7.4.2 The
price to be paid by the new Controlling Entity of Sanuwave to the
Parties exercising their put option for the exercise of the IDIC
Grup Change of Control Put Option shall be a price to be determined
proportionally based on the same EBITDA multiple paid by the new
Controlling Entity of Sanuwave for Sanuwave, provided that such
amount shall be paid to the other Parties exercising their put
option on a pro rata basis to their share ownership in the
corporate capital of the JV Company. In case any Party fails to
notify Sanuwave of its intention to exercise its IDIC Group Change
of Control Put Option within such [***]-day term, its omission
shall be deemed as a waiver of its IDIC Group Change of Control Put
Option. In case any Party exercises its IDIC Group Change of
Control Put Option, the transfer of the respective Shares to the
new Controlling Entity of Sanuwave shall occur within [***] days
counted as from the receipt of the IDIC Group Change of Control Put
Option Exercise Notice (extendable to accommodate any required
Governmental Authority approvals, which shall be obtained as soon
as possible with all necessary action by the parties
involved).
SECTION
8
GENERAL
SHAREHOLDERS’ MEETING
8.1 The following
provisions of this Section 8 shall apply after the formation of the
JV Company, and shall be incorporated into the Shareholders’
Agreement and the Bylaws of the JV Company.
8.2 The JV Company
shall hold (a) an Ordinary General Shareholders’ Meeting
annually, and (b) Extraordinary General Shareholders’
Meetings, each as required by Applicable Law.
8.3 The Ordinary
General Shareholders’ Meeting shall be held within the
four-month period following the end of each Fiscal Year of the JV
Company to vote on the following matters, and any other matters
properly brought before the Ordinary General Shareholders’
Meeting in accordance with the Bylaws and Applicable
Law:
(i) the examination,
discussion and approval of the accounts and financial statements of
the JV Company, as presented by the Board;
(ii) the
allocation of the net profit of the ended Fiscal Year, and the
declaration and distribution of dividends of the JV Company;
and
(iii) election
of the members of the Board of Directors and the members of the
Fiscal Board, if its installation is required.
8.4 Except for the
matters set forth above in Section 8.3 and the matters required by
Applicable Law to be approved by Extraordinary General
Shareholders’ Meetings, all decisions with respect to the
governance or operations of the JV Company shall be decided by the
Board of Directors.
8.5 The General
Shareholders’ Meeting may be called by any Party holding at
least a twenty-five percent (25%) equity interest in the JV
Company, by any two members of the Fiscal Board, or by any two
members of the Board of Directors with due regard to all
formalities provided for in Applicable Law and the Bylaws. Subject
to the provisions of Brazilian Corporation Law,
the
call notices shall be delivered to each Party at least fifteen (15)
days in advance of the date scheduled for the General
Shareholders’ Meeting, and shall contain information on the
place, date, time and agenda of such meeting, as well as any
supporting documentation related to the agenda.
8.6 The presence of
Parties representing at least sixty percent (60%) of the
outstanding equity interests of the JV Company shall be required to
constitute a quorum for any General Shareholders’ Meeting. If
the quorum is not reached at any scheduled General
Shareholders’ Meeting, the meeting shall be called again in
accordance with the above, at least 8 (eight) days in advance of
the date scheduled for such meeting. The quorum for such recalled
meeting shall be satisfied by the attendance of any number of
Parties, which shall remain applicable to issues resolved during
the General Shareholders’ Meeting installed through the
subsequent call. The General Shareholders’ Meeting shall be
chaired by one of the shareholders chosen by the majority of votes
in attendance. The Chairman of the General Shareholders Meeting
shall choose, among the present shareholders, the secretary of the
meeting.
8.7 Each Party shall be
entitled to cast a number of votes that is equal to the number of
voting Shares that it owns. Any matter submitted to a General
Shareholders’ Meeting shall be approved by the affirmative
vote of at least 2/3 (two thirds) of the voting capital of the JV
Company.
8.8 No Party shall vote
at any General Shareholders’ Meeting resolving on any issue
with respect to which it has a conflict of interest in accordance
with the Applicable Law. For the avoidance of doubt, no Party shall
vote at any General Shareholders’ Meeting resolving on any
issue as to whether such Party should have its rights suspended in
accordance with this Agreement.
SECTION
9 MANAGEMENT
9.1 The Company shall
be managed by a Board of Directors, pursuant to the
Shareholders’ Agreement and the Bylaws and in accordance with
Applicable Laws.
9.2 Each of the
Shareholders and the JV Company shall, and shall cause their
respective directors, officers, employees, agents and other
representatives to always comply, in connection with the ownership
and operation of the JV Company, with the provisions of: (i) the
Brazilian anticorruption law (Law 12,846/13) and Decree 8,420/15;
(ii) the United States Foreign Corrupt Practices Act (FCPA) of
1977, as amended; (iii) the United Kingdom Bribery Act (UKBA) of
2010; (iv) the Sarbanes-Oxley Act of 2002; and (v) any other
compliance, anticorruption and/or anti-bribery legislation
(collectively, the “Anti-Corruption
Laws”), in each case to the extent applicable to the
Company, to the Shareholders and/or their respective business and
assets, as the case may be. Each Party undertakes to each other
Party that it will procure (insofar as it is lawfully able to do
so) that the JV Company has, and at all times maintains in place,
such procedures as may be reasonably required by any Party to
ensure the ongoing compliance by the JV Company with all applicable
Anti-Corruption Laws.
9.3 The members of the
Board of Directors and the Officers of the JV Company shall be
appointed and elected upon execution of the respective term of
investiture in the registered book of meetings of the Board of
Directors, being subject to the requirements, impairments,
duties,
obligations and
responsibilities provided by the Brazilian Corporation law, the
Bylaws and the Shareholders’ Agreement, and shall remain in
their offices until their successors are appointed and
elected.
9.4 Each Party
(directly or through its designated directors, officers and/or
members of the Fiscal Board) shall be entitled to examine the books
and records, and have reasonable access, at all reasonable times
and with prior written notice addressed to the Company, to any and
all information, documentation, properties and assets, of the
Company.
9.5.1 The
Board of Directors of the JV Company shall be composed of 4 (four)
members elected and dismissible at any time by the General
Shareholders’ Meeting, with a term of office of 3 (three)
years, reelection being permitted, considering that: (i) Sanuwave
shall have the right to nominate 2 (two) Directors; and (ii) the
members of the IDIC Group shall have the right to jointly nominate
2 (two) Directors. Sanuwave hereby appoints Kevin Richardson and
Michael Hubert as members of the Board of Directors and the members
of the IDIC Group hereby collectively appoint Daniel Feliciano
Ferreira and Paulo Cesena as members of the Board of Directors.
IDIC Group shall have the right to appoint the Chairman of the
Board of Directors and Sanuwave shall have the right to appoint the
Vice Chairman of the Board of Directors. Each Party agrees to vote
their Shares in favor of the nominees (or any replacement nominee)
nominated by Sanuwave or the IDIC Group in accordance with Section
9.5.1.
9.5.2 The
Shareholders shall inform each other of the names and complete
qualifications of the individuals indicated above who they intend
to appoint to the Board of Directors at least [***] Business Days
before the scheduled date of the General Shareholders’
Meeting resolving on the election of the members of the Board of
Directors.
9.5.3 Each
Director shall state in his/her respective term of investiture that
he or she is aware of the terms of this Agreement, and shall
execute a deed of adherence, acknowledging the obligations of such
Director to comply with the terms and conditions of this Agreement,
the Bylaws and the Shareholders’ Agreement and not to take
any unauthorized action in contravention thereof.
9.5.4 The
Parties expressly recognize that the members of the Board of
Directors of the JV Company shall be elected solely based on the
procedure provided herein above and, during the term of this
Agreement or the Shareholders’ Agreement, they waive the
right and state that they shall refrain from requesting the
election of members of the Board of Directors by means of the
proceeding of multiple vote provided for in the Brazilian
Corporation Law.
9.5.5 A
Party shall have the right to request at any time the dismissal of
any member of the Board of Directors appointed by such Party (and,
for the avoidance of doubt, shall not have the right to request the
dismissal of any member appointed by any other Party). Upon a
dismissal request, the Parties undertake to immediately adopt all
necessary measures (including
the
calling of any General Shareholders’ Meeting or aiming at the
dismissal and replacement of such member of the Board of
Directors).
9.5.6 In
the event of dismissal, resignation, replacement, permanent
impairment or any other event which may result in the vacancy of
the office of any member of the Board of Directors of the JV
Company appointed by one of the Parties, the Chairman of the Board
of Directors shall acknowledge to the relevant body and the full
board appoint the alternative member, by recommendation of the
Party which appointed the member to be replaced, until another
person appointed by such Party be elected in a Shareholders’
General Meeting to exercise the position of alternative member,
having to complete the term of management of the previous member.
In such case, the other Parties undertake to vote in accordance
with the interest of the Party which appointed the replaced
member.
9.5.7 In
case of temporary impairment or absence of the Chairman of the
Board of Directors, such member shall be replaced by an effective
member appointed by Sanuwave during the period of his/her absence,
who, in turn, shall be automatically replaced, during the period of
replacement of the Chairman.
9.5.8 The Board of Directors shall be
responsible for all actions taken by or on behalf of the JV
Company, except those matters specifically designated to be taken
by an Officer or other Person designated by the Board of Directors.
Any action taken by the Board of Directors shall require a majority
vote of the Directors (i.e. three of four directors) (the
“Requisite Vote of the
Board”), and the provisions of Section 10.1 shall
apply.
9.5.9 The
meetings of the Board of Directors shall be held on an ordinary
basis at least once during each fiscal quarter, extraordinarily,
whenever the business activities of the JV Company or the Business
require. The meetings shall take place at the JV Company’s
headquarters, or telephonically or by other means. The meetings of
the Board of Directors and the resolutions approved in such
meetings shall be registered in the book of registration of Board
of Directors’ meeting minutes. Such minutes shall be filed
with the competent Board of Trade (Junta Comercial) if required to have
effects before third parties.
9.5.10 The
Chairman of meetings of the Board of Directors of the Company shall
not compute votes casted in violation to the provision hereunder as
provided for in Article 118, Paragraph 8 of the Brazilian
Corporation Law.
9.5.11 The
meetings of the Board of Directors, ordinarily or extraordinarily,
shall be convened by at least two Directors upon notice addressed
to the other Directors at least fifteen (15) days in
advance of the envisaged date for the meeting of the Board of
Directors. The notice shall specify all matters to be discussed and
voted at the meeting, as well as the place, date and time of the
meeting. The notice shall be accompanied with all necessary
documents for the analysis of the agenda by the members. No
resolution with respect to any matter can be taken at any meeting
of the Board of Directors unless the notice of the meeting contains
reasonable details of the matter. The call procedure may be waived
whenever all of the effective members of the Board of Directors are
present in the meeting and so agree or upon previous acceptance in
writing by the absent members.
9.5.12 The
quorum for the meeting of the Board of Directors shall be at least
three Directors present at such meeting. If a quorum is not present
at any scheduled meeting of the Board of Directors, the meeting
shall be once again convened, at least 8 (eight) days in advance of
the scheduled date for such meeting of the Board of Directors. The
quorum for such reconvened meeting shall be satisfied by the
attendance of any of the members of the Board of Directors;
provided that at such reconvened meeting, no action by the Board
may be approved without the Requisite Vote of the
Board.
9.5.13 The
members of the Board of Directors shall always act in a manner
consistent with the (i) most recently approved Business Plan, (ii)
terms of this Agreement and (iii) decisions approved at the
Company’s General Shareholders’ Meetings and the Board
of Directors’ Meetings.
9.5.14 In
case of a tie in the resolutions of the Board of Directors, the
Chairman of the Board of Directors shall exercise the deciding
vote.
9.5.15 The
members of the Board of Directors may participate in any meeting of
the Board of Directors by means of conference call, video
conference or any other means of communication in which all members
can hear each other, and a member participating in such manner
shall be deemed as present at the referred meeting. In such event,
the members of the Board of Directors shall express their votes by
means of letter, fax or e-mail message which clearly identifies the
sender.
9.6.1 The
JV Company shall have at least two (2) executives, that will manage
the Brazilian operation, all indicated by the IDIC Group, being one
Chief Executive Officer and one Chief Technical
Officer.
9.6.2 The
Officers shall exercise the powers assigned to them by Applicable
Law, the Board of Directors and the Bylaws.
9.6.3 Each
Officer shall always act in a manner consistent with (i) the most
recently approved Business Plan, (ii) terms of this Agreement and
(iii) the decisions of the Board of Directors
9.6.4 The
Party designating an Officer shall cause such Officer to sign a
deed of adherence, acknowledging the obligations of such Officer to
comply with the terms and conditions of this Agreement, the Bylaws
and the Shareholders’ Agreement and not to take any
unauthorized action in contravention thereof.
9.6.5 In
case of dismissal, resignation, replacement, permanent impairment
or any other event which results in the vacancy of the office of
any Officer of the JV Company, the Party which appointed such
Officer shall have the right to appoint the respective replacement
and the directors appointed by the other Party undertake to vote in
accordance with the interest of the Party which nominated such
Officer.
SECTION
10
DEADLOCK
RESOLUTION
10.1 In
the event the minimum voting threshold for approval is not obtained
with respect to any matter subject to the resolution of the General
Shareholders’ Meeting, the matter shall be considered a
“Deadlock”. The Deadlock matter shall be deemed as
non-approved in the General Shareholders’ Meeting, and shall
be subject to the resolution of the representatives of the
Parties.
10.2 In
the event of Deadlock, the Parties shall call within [***] Business
Days from the date of the General Shareholders’ Meeting which
resulted in Deadlock, a meeting in which up to [***]
representatives of each Party, considering the objectives and
interests of the JV Company, shall in good faith seek to achieve an
agreement on how to resolve the Deadlock issue (“Consenting Meeting of
Representatives”).
10.3 In
case the Deadlock persists for [***] Business Days after the
Consenting Meeting of Representatives is convened, the Parties
shall call within [***] Business Days counted from the Consenting
Meeting of Representatives a new meeting with members of the Senior
Management of each Party, who, considering the objectives and
interests of the JV Company, shall in good faith seek to achieve an
agreement on how to resolve the Deadlock issue (“Consenting Meeting of the
Senior Management”).
10.4 In
case an agreement is not achieved in the Consenting Meeting of the
Senior Management within [***] Business Days after it is convened,
the matter subject to Deadlock shall be deemed definitively not
approved and not resolved in the General Shareholders’
Meeting unless consensus is reached in a new Consenting Meeting of
the Senior Management.
SECTION
11
FISCAL
BOARD
11.1 The
JV Company shall have a non-permanent Fiscal Board composed of four
effective members, comprised of the following: (i) Sanuwave shall
appoint two members and their respective alternates; and (ii) the
members of the IDIC Group shall collectively appoint two
members.
11.2 The
Fiscal Board shall only undertake such activities as provided for
under the Brazilian Corporation Law without adverse effects to the
rights, obligations and duties of other Persons or bodies set forth
in the Bylaws or the Shareholders’ Agreement.
SECTION
12
BUSINESS
OF THE JV COMPANY, BUSINESS PLANS, PROTOCOLS
12.1.1 The
main purpose of the JV Company shall be the manufacturing, import,
export, use, sale, and distribution of the Device and related
treatments on an exclusive basis within Brazil (the
“Business”).
12.2
Supply of the
Device by Sanuwave
12.2.1 For
the duration of the JV Company’s existence, Sanuwave shall
supply the Device to the JV Company at its cost without mark-up,
which at the time of the execution of this Agreement is USD $[***]
per device and USD $[***] per wound kit, and the JV Company agrees
to purchase the Device from Sanuwave in accordance with the terms
of the Supply Agreement to be entered into by Sanuwave and the JV
Company following the formation of the JV Company. The Supply
Agreement shall also contain provisions providing for improvement
opportunities, use of an alternative source of supply, cost of
goods, supply interruptions and the Joint Venture Company
establishing its own source of supply in Brazil for the Wound Kits
and assembly of the Devices in Brazil when the Parties approve that
Device assembly in Brazil is appropriate for the JV Company’s
business. Refurbishment of Devices will initially be performed by
Sanuwave at Sanuwave’s facility in Suwanee, Georgia, USA
until such time when the Parties approve that the JV Company starts
refurbishing Devices in Brazil.
12.2.2 The
Parties hereby agree that the initial five (5) Devices imported to
Brazil by the IDIC Group on behalf of the JV Company will be
provided by Sanuwave on deferred payment terms to be agreed by the
Parties under the Supply Agreement, with the invoiced amount for
the Devices from Sanuwave due by the time the JV Company reaches
USD $1,000,000.00 (one million U.S. dollars) in Gross Sales. Such
deferred payments shall be made without withholding or deducting
any taxes unless required by law, in which case an additional
amount will be added to the applicable invoice to make sure
Sanuwave will receive the same amount as it would have received
without such withholding or deduction.
12.3
The Trademark
License Agreement; Trademark Protection
12.3.1 Subsequent
to the formation of the JV Company, Sanuwave and the JV Company
shall enter into a Trademark License Agreement, which shall include
the terms and conditions of the use of certain trademarks by the JV
Company. The JV Company shall be required to use Sanuwave’s
trademarks on the Device, but it shall also be permitted to use its
own trademarks on the Device as long as the parties’
trademarks are used separately and are not combined to create a
single composite mark. The JV Company shall not register or attempt
to register the trademarks or any trademark confusingly similar to
Sanuwave’s trademarks, and Sanuwave shall retain the
exclusive right to apply for and obtain registrations for the
trademarks throughout the world. The JV Company shall not challenge
the validity of the trademarks, Sanuwave’s ownership of the
trademarks or the enforceability of Sanuwave’s rights
therein.
12.4
The Technology
License Agreement
12.4.1 On
the Subsequent Closing Date, Sanuwave shall enter into a Technology
License Agreement which shall set forth the terms and conditions
for the granting by Sanuwave to the JV Company of exclusive
territorial rights for the use, offer for sale, import, and export
of the Device within Brazil and an exclusive, royalty-free right
and license for the JV Company to use Sanuwave’s selected
trademarks in Brazil solely for the purpose of and in connection
with the marketing of the Device. Such use of trademarks shall
comply with Applicable Laws and the Trademark License
Agreement.
12.4.2 The
Technology License Agreement shall contain detailed customary
provisions relating to Intellectual Property Rights, including: (a)
the license terms and sublicense
terms;
(b) pre-existing Intellectual Property Rights; (c) third party
rights; (d) ownership of new patent, trademark or other
Intellectual Property Rights created during the term of the
Technology License Agreement; and (e) rights for the JV Company to
use, reference and access existing Devices and clinical or other
study data.
12.5
The Manufacturing
of the Device by the JV Company
12.5.1 Both
the Trademark License Agreement and the Technology License
Agreement shall set forth the rights and obligations of Sanuwave
and the JV Company with respect to the sharing of Sanuwave’s
rights to patents, designs, and trademarks, trade dress, copyright
or other intellectual property related to the Device and
improvements thereof. Each Party shall have the sole right to
prosecute and maintain intellectual property unrelated to the
Device and shall bear all costs associated therewith. Prosecution
and maintenance of jointly owned intellectual property shall be a
responsibility of the Party in the best position to defend the
intellectual property as determined under both the Trademark
License Agreement and the Technology License
Agreement.
12.5.2 The
Trademark License Agreement and the Technology License Agreement
shall also contemplate obligations of the Parties to notify one
another if either learns of any existing or threatened infringement
of any intellectual property relevant to the JV Company. In Brazil,
the JV Company shall have priority rights, but not the obligation,
to bring an infringement action, while outside Brazil, Sanuwave
shall have priority rights, but not the obligation, to bring such
action. The Parties shall collaborate and neither Party shall
unilaterally settle any claim, if such settlement would negatively
impact the other Party.
12.6 The
Business Plan. The Board of Directors shall prepare an
annual Business Plan, which shall include (a) a strategic and
operating plan for the development of the JV Company; (b) a
financial business plan including a consolidated profit and loss
statement for the following Fiscal Year, and a cash flow outlook
including working capital and investment requirements; (c) a
management proposal on the objectives and top priorities for the
following year; (d) details of capital expenditure and investment
requirements; (e) a detailed annual capital and operational
expenditure and investment budget; (f) a balance sheet forecast;
(g) a management report giving business objectives for the
following year; (h) a financial report which will include an
analysis of the estimated results of the JV Company for the
following Fiscal Year compared with the Business Plan for that
year, identifying variations in revenues, costs, and other material
items; and (i) any other terms and details that are customary of
the medical device industry commercialization and business plans,
including elements such as pricing and the reimbursement approval
strategy.
12.6.1 The
Parties agree to carry on the Business in good faith and in
accordance with Applicable Laws, general standards used by
comparable companies in the medical device industry for
commercializing similar medical device products with similar market
potential, and international guidelines, including those on
corporate governance, anti-corruption, and
sustainability.
12.6.2 The JV Company shall implement
written policies setting out the parameters of the decision-making
processes of the Board of Directors the protocols to be followed by
the JV Company in the conduct of the Business (each a
“Policy”).
12.6.3 The
JV Company shall implement (i) the Marketing Policy; (ii) the Risk
Policy; (iii) the Code of Conduct and (iv) the Intellectual
Property Policy, as approved by the Board of Directors, each of
which may be amended from time to time, with the approval of the
Board of Directors.
SECTION
13
REPRESENTATIONS
AND WARRANTIES OF THE IDIC GROUP MEMBERS
Each
member of the IDIC Group hereby individually represents and
warrants that the following statements are true in relation to
themselves, accurate and complete as of the Effective Date, and
shall be true, accurate on the Initial Closing Date and Subsequent
Closing Date.
13.1 Authority; Execution;
Enforceability. When applicable, all members of the IDIC
Group, as applicable, are validly incorporated, in existence and
duly registered under the laws of its jurisdiction of incorporation
and have full power to conduct its business as conducted at the
Effective Date and have full capacity to execute this Agreement,
perform its obligations, as well as to consummate the transactions
contemplated by the Transaction Documents (the “JV Transaction”). This Agreement
constitutes a legal, valid and binding obligation of the IDIC Group
Members enforceable against them and their successors, according to
the terms contained herein.
13.2 No
Conflicts; Consents. The execution of each of the
Transaction Documents by the members of the IDIC Group, as well as
the completion of the Transaction (and the performance of all of
the IDIC Group Members’ other obligations provided for
therein) does not as of the Effective Date or will not as of the
Initial Closing Date or the Subsequent Closing Date (as
applicable), result in any breach of an obligation or right, or
constitute fraud in the execution or against creditors by virtue of
(i) any legally binding agreement or other arrangement, verbal or
written, to which any of the IDIC Group Members is a party to, (ii)
any court decision of any nature or instance or (iii) any
Applicable Law, decree, ruling or regulation applicable to the IDIC
Group Members. The execution of the Transaction Documents, as well
as the completion of the Transaction (and the performance of all of
the IDIC Group Members’ other obligations provided for
therein) also does not (i) result in any breach or violation of or
default under, give rise to a right of termination or acceleration
of any obligation under, allow for the amendment of or result in
the imposition of any additional obligations or loss of rights
under any contract to which any of the IDIC Group Members is a
party to or whereby any of its properties or assets is bound; (ii)
violate any Law or License applicable to or held by the IDIC Group
Members or any properties or assets owned or used by the IDIC Group
Members; or (iii) result in the creation of any Encumbrance upon
any of the shares held by the IDIC Group Members. No consent or
approval must be obtained from any third party, competent
Government Authority or any court, administrative agency or
commission or other Government Authority by the IDIC Group Members
regarding the execution of and compliance with this Agreement, as
well as regarding the consummation of the Transaction.
13.3 Intellectual
Property. The operations and activities of the members of
the IDIC Group and the Intellectual Property Rights which shall be
the subject of the Technology License Agreement and the Trademark
License Agreement, to the best of its knowledge, do not and shall
not in the future infringe on, misappropriate or otherwise violate
any Intellectual Property Rights of any other Person
or shall require the payment of any royalty, fees or other payments
to any other Person.
13.4 Sufficient
Capital. The members of the IDIC Group each have sufficient
financial resources and capacity to carry out all payments and
perform all obligations under the Transaction Documents and to
support any and all of its obligations hereunder and will continue
to have sufficient financial capacity to carry on its activities
after such obligations have been complied with. There is no act or
fact, nor, to the best of the members of the IDIC Group’s
knowledge any threatened action or proceeding affecting the members
of the IDIC Group that could be expected to affect the Transaction
or the financial condition or operations of the members of the IDIC
Group, including insolvency, winding up, bankruptcy, or similar
proceedings.
13.5 Compliance.
The members of the IDIC Group have not (nor, to their knowledge,
have any agent, representative or other person acting on their
behalf) (a) corruptly made, offered or agreed to make or offer any
loan, gift or other payment, directly or indirectly, whether in
cash or in kind, for the use or benefit of a government official
for the purposes of influencing any act or decision of such
government official in its official capacity, or inducing such
government official to do or omit to do any act in order to obtain
or retain business or otherwise to secure any improper advantage
such that, if the members of the IDIC Group or any of their
respective employees, representatives or agents were: (i) United
States persons, such action would constitute a violation of the
FCPA; or (ii) nationals of the United Kingdom, would constitute an
offense under the United Kingdom Bribery Act of 2010, or (iii)
nationals of Brazil, would constitute an offense under Brazilian
Law 12.846/13, or (b) otherwise breached any other applicable
regulations relating to anti-bribery as well as any applicable
sanctions or embargoes imposed on any person, company or
country.
SECTION
14
REPRESENTATIONS
AND WARRANTIES OF SANUWAVE
14.1 Sanuwave
hereby represents and warrants that the following statements are
true, accurate and complete as of the Effective Date, and shall be
true, accurate and complete on the Initial Closing Date and
Subsequent Closing Date.
14.2 Authority;
Execution; Enforceability. Sanuwave is validly incorporated,
in existence and duly registered under the laws of its jurisdiction
of incorporation and has full power to conduct its business as
conducted at the Effective Date and has full capacity to execute
this Agreement, perform its obligations, as well as to consummate
the Transaction. This Agreement constitutes a legal, valid and
binding obligation of Sanuwave, enforceable against it and its
successors, according to the terms contained herein.
14.3 No
Conflicts; Consents. The execution of the Transaction
Documents by Sanuwave, as well as the completion of the JV
Transaction (and the performance of all of Sanuwave other
obligations provided for therein) does not result in any breach of
an obligation or right, or constitute fraud in the execution or
against creditors by virtue of (i) any legally binding agreement or
other arrangement, verbal or written, to which Sanuwave is a party
to, (ii) any court decision of any nature or instance or Applicable
Law, decree, ruling or regulation applicable to Sanuwave. The
execution of the Transaction Documents, as well as the completion
of the JV Transaction (and
the performance of all of Sanuwave’s other obligations
provided for therein) also does not (i) result in any breach or
violation of or default under, give rise to a right of termination
or acceleration of any obligation under, allow for the amendment of
or result in the imposition of any additional obligations or loss
of rights under any contract to which Sanuwave is a party to or
whereby any of its properties or assets are bound; nor (ii) violate
any Law or License applicable to or held by Sanuwave or any
properties or assets owned or used by Sanuwave. No consent or
approval must be obtained from any third party, competent
Governmental Authority or any court, administrative agency or
commission or other Governmental Authority by Sanuwave regarding
the execution of and compliance with this Agreement, as well as
regarding the consummation of the JV
Transaction.
14.4 Intellectual
Property. The operations and activities of Sanuwave and the
Intellectual Property Rights which shall be the subject of the
Technology License Agreement and the Trademark License Agreement,
to the best of its knowledge, do not and shall not in the future
infringe on, misappropriate or otherwise violate any Intellectual
Property Rights of any other Person or shall require the payment of
any royalty, fees or other payments to any other
Person.
14.5 Sufficient
Capital. Sanuwave has sufficient financial resources and
capacity to carry out all payments and perform all obligations
under the Transaction Documents and to support any and all of its
obligations hereunder and will continue to have sufficient
financial capacity to carry on its activities after such
obligations have been complied with. There is no act or fact, nor
any threatened action or proceeding affecting Sanuwave or the
entities pertaining to Sanuwave’s economic group that could
be expected to affect the JV Transaction or their financial
condition or operations, including insolvency, winding up,
bankruptcy, or similar proceedings.
14.6 Compliance.
Sanuwave and/or its Affiliates have not (nor, to their knowledge,
has any agent, representative or other person acting on their
behalf (a) corruptly made, offered or agreed to make or offer any
loan, gift or other payment, directly or indirectly, whether in
cash or in kind, for the use or benefit of a government official
for the purposes of influencing any act or decision of such
government official in its official capacity, or inducing such
government official to do or omit to do any act in order to obtain
or retain business or otherwise to secure any improper advantage
such that, if Sanuwave or any of its Affiliates or any of their
respective directors, officers, shareholders, employees,
representatives or agents were: (i) United States persons, such
action would constitute a violation of the FCPA; or (ii) nationals
of the United Kingdom, would constitute an offense under the United
Kingdom Bribery Act of 2010, or (c) nationals of Brazil, would
constitute an offense under Brazilian Law 12.846/13,; or (b)
otherwise breached any other applicable regulations relating to
anti-bribery as well as any applicable sanctions or embargoes
imposed on any person, company or country.
SECTION
15
CONDITIONS
PRECEDENT TO INITIAL CLOSING
15.1 The Initial Closing of the JV
Transaction shall be subject to the following conditions precedent
(“Initial
Closing Conditions”):
15.1.1 the
members of the IDIC Group shall have paid to Sanuwave the second
installment of the Partnership Fee in the total amount of USD
$250,000.00 (two hundred and fifty thousand U.S.
dollars);
15.1.2 the
representations and warranties provided by the Parties above shall
be true, legitimate, accurate, correct and complete in all aspects
on the Initial Closing Date, as reflected in a certificate to be
issued by the Parties on the Initial Closing Date;
15.1.3 the
Parties shall not have materially violated any provision of this
Agreement; and
15.1.4 inexistence
of any temporary restraining order, preliminary or permanent
injunction or other order in effect issued by a Governmental
Authority prohibiting or preventing the consummation of the JV
Transaction.
15.2 The
Parties agree that the Initial Closing Conditions set forth above
shall inure to the benefit of Sanuwave only, who shall waive or not
such Initial Closing Conditions at its sole discretion and that the
members of the IDIC Group shall not claim such conditions in order
to not proceed with the Initial Closing of the JV
Transaction.
15.3 Sanuwave
may, but shall not be obliged to, to the fullest extent permitted
by Applicable Law, waive one or more of its respective Initial
Closing Conditions at its sole discretion. Upon fulfillment of all
Initial Closing Conditions (or waiver by Sanuwave, as the case may
be), the Closing of the JV Transaction shall take place as
agreed.
15.4 The
Parties shall cooperate with each other to meet the conditions
precedent herein established and keep each other informed as to the
progress towards the satisfaction of the such conditions and shall
disclose in writing to the other Party anything which shall or may
prevent the conditions from being satisfied on or before the
Initial Closing Long Stop Date, as soon as reasonably practicable
upon such matter coming to the notice of such Party. The Parties
shall each notify the other promptly upon becoming aware that any
of the Initial Closing Conditions have been fulfilled and deliver
evidence of the same.
15.5 Upon
the satisfaction or waiver of all Initial Closing Conditions,
Sanuwave shall notify the IDIC Group, Versani and Universus to
proceed with the Initial Closing.
SECTION
16
INITIAL
CLOSING
16.1 The
Initial Closing of the JV Transaction shall take place at
[***] (“Initial Closing
Date”) unless another place and time is agreed upon in
writing between the Parties, when the Parties shall carry out
and/or execute and/or deliver the following actions and documents,
which shall all be deemed to have occurred simultaneously for the
purposes hereunder (“Initial
Closing”):
16.1.1 Confirmation
of Representations and Warranties and Conditions. The
Parties shall deliver to each other a written statement confirming
that (a) the representations and warranties granted to each other
hereby remain true, legitimate, accurate, correct and complete on
the Initial Closing Date; and (b) all Initial Closing Conditions
that each of the Parties should have completed until the Initial
Closing Date have been fulfilled (or waived, as the case may
be);
16.1.2
Execution of the
Agreement. Execution by the Parties of this Agreement;
and
16.1.3
Payment
of the Second Installment of the Partnership Fee and Release
of the Promissory
Notes. The members
of the IDIC Group shall provide evidence of payment to Sanuwave of
the second installment of the Partnership Fee in the total amount
of USD $250,000.00 (two hundred and fifty thousand U.S. dollars)
and evidence of the termination and satisfaction in full of the
Promissory Notes.
16.2 The
Parties shall cooperate in good faith with each other (or third
parties indicated by them) including, but not limited to, by
undertaking to execute any document and provide all necessary
assistance and information necessary to allow the performance of
any obligation under this Agreement for the Initial
Closing.
SECTION
17
CONDITIONS
PRECEDENT TO SUBSEQUENT CLOSING
17.1 The Subsequent Closing shall be
subject to the following conditions precedent (“Subsequent Closing
Conditions”):
17.1.1 the
JV Company shall be duly formed and existing under the laws of
Brazil and the IDIC Group shall provide evidence of registration of
the JV Company’s Bylaws with the applicable State Registry in
Brazil;
17.1.2
the Parties shall
have executed the Shareholders’ Agreement;
17.1.3 the JV Company shall have
obtained all required approvals to operate in Brazil and to
manufacture, import, export, use, sell, and distribute the Device
and related treatments in Brazil (“Required
Approvals”);
17.1.4 the Parties shall have executed
the Trademark License Agreement, Supply Agreement and Technology
License Agreement;
17.1.5 the members of the IDIC Group
shall have paid to Sanuwave the third installment of the
Partnership Fee in the total amount of USD $100,000.00 (one hundred
thousand U.S.
dollars);
17.1.6
the Parties shall
have paid-up their Shares in the JV Company;
17.1.7 the IDIC Group shall have
invested R$ 1,00 (one Real) in preference shares of the JV
Company;
17.1.8 the
representations and warranties provided by the Parties above shall
be true, legitimate, accurate, correct and complete in all aspects
on the Subsequent Closing Date, as reflected in a certificate to be
issued by the Parties on the Subsequent Closing Date;
17.1.9 the
Parties shall not have materially violated any provision of this
Agreement; and
17.1.10 inexistence
of any temporary restraining order, preliminary or permanent
injunction or other order in effect issued by a Governmental
Authority prohibiting or preventing the consummation of the JV
Transaction.
17.2 The
Parties agree that the Subsequent Closing Conditions set forth in
items 17.1.3 and 17.1.4 above shall inure to the exclusive benefit
of IDIC Group, who shall waive or not such Subsequent Closing
Conditions at its sole discretion; and the Subsequent Closing
Conditions set forth in items 17.1.5 and 17.1.7 above shall inure
to the exclusive benefit of Sanuwave, who shall waive or not such
Subsequent Closing Conditions at its sole discretion. The remaining
Subsequent Closing Conditions shall inure to the benefit of both
IDIC Group and Sanuwave, which may not be waived by either
Party.
17.3 Sanuwave
and IDIC Group may, but shall not be obliged to, to the fullest
extent permitted by Applicable Law, waive one or more of its
respective Subsequent Closing Conditions at their sole discretion.
Upon fulfillment of all Subsequent Closing Conditions (or waiver,
as the case may be), the Subsequent Closing of the JV Transaction
shall take place as agreed.
17.4 The
Parties shall cooperate with each other to meet the conditions
precedent herein established and keep each other informed as to the
progress towards the satisfaction of the such conditions and shall
disclose in writing to the other Party anything which shall or may
prevent the conditions from being satisfied on or before the
Subsequent Closing Long Stop Date, as soon as reasonably
practicable upon such matter coming to the notice of such Party.
The Parties shall each notify the other promptly upon becoming
aware that any of the Subsequent Closing Conditions have been
fulfilled and deliver evidence of the same.
17.5 Upon
satisfaction or waiver of all Subsequent Closing Conditions,
Sanuwave and IDIC Group shall notify each other, as well as Versani
and Universus to proceed with the Subsequent Closing.
SECTION
18
SUBSEQUENT
CLOSING
18.1 The Subsequent Closing shall take
place at [***] after receipt of the notice sent pursuant to Section
16.5 above (“Subsequent Closing
Date”) unless another place and time is agreed upon in
writing between the Parties, when the Parties shall carry out
and/or execute and/or deliver the following actions and documents,
which shall all be deemed to have occurred simultaneously for the
purposes hereunder (“Subsequent
Closing”):
18.1.1 Required
Approvals. The IDIC Group shall deliver to Sanuwave evidence
that the JV Company obtained all Required Approvals;
18.1.2 Technology
License Agreement. The Parties shall have entered into the
Technology License Agreement, and
18.1.3 Payment
of the Third Installment of the Partnership Fee. The members of the IDIC Group shall
provide evidence of payment to Sanuwave of the third installment of
the Partnership Fee in the total amount of USD $100,000.00 (one
hundred and fifty thousand U.S. dollars).
18.1.4 Investment
in the JV Company.
The members of the IDIC Group shall provide evidence of investment
of the total amount of R$ 1,00 (one Real) in preference shares of
the JV Company; and
18.1.5 Amendment
to the Bylaws of the JV Company and Shareholders’
Agreement. The
Parties shall execute an amendment to the Bylaws of the JV Company
and Shareholders’ Agreement, reflecting all rules related to
their rights and obligations in connection with the JV Company, as
a result of the termination of this Agreement.
18.2 The
Parties shall cooperate in good faith with each other and the JV
Company (or third parties indicated by them) including, but not
limited to, by undertaking to execute any document and provide all
necessary assistance and information necessary to allow the
performance of any obligation under this Agreement for the
Subsequent Closing.
INDEMNIFICATION
19.1 The members of the IDIC Group, as
represented by its holding company to be formed, jointly and
severally agree to, indemnify, defend and hold Sanuwave, Universus,
Versani and the JV Company as the case may be, their Affiliates and
each of their respective officers, directors, employees, agents and
representatives (other than the IDIC Group) (“Sanuwave Indemnified
Parties”) harmless from and against any and all
Losses, as set forth in this Agreement and as effectively suffered
or incurred by the Sanuwave Indemnified Parties as a result
of:
(a) any violation,
inaccuracy, misrepresentation, untruthfulness or breach of any
representation or warranty made by any members of the IDIC Group
under this Agreement;
(b) any breach,
non-compliance or failure by any member of the IDIC Group to
perform any covenant or obligation contained in this
Agreement;
(c) any facts,
omissions or actions performed, occurred or related to members of
the IDIC Group occurred prior or after the Subsequent Closing Date
and that may affect the JV Company and/or other Sanuwave
Indemnified Parties; and
(d) any facts,
omissions or actions performed, occurred or related to any member
of the IDIC Group occurred until the Subsequent Closing, even if
the effects thereof materialize only after the Subsequent
Closing.
19.2 Sanuwave agrees to indemnify,
defend and hold the members of the IDIC Group, Universus, Versani
and the JV Company (“IDIC Group Indemnified
Parties” and together with the Sanuwave
Indemnified Parties, the “Indemnified
Parties”) harmless from and against any and all
Losses, as set forth in this Agreement and as suffered or incurred
by the IDIC Group Indemnified Parties as a result
of:
(a) any violation,
inaccuracy, misrepresentation, untruthfulness or breach of any
representation or warranty made by Sanuwave contained in this
Agreement;
(b) any breach,
non-compliance or failure by Sanuwave to perform any covenant or
obligation contained in this Agreement; and
(c) any facts,
omissions or actions performed, occurred or related to Sanuwave and
its Affiliates occurred prior or after the Subsequent Closing Date
and that may affect the JV Company and/or other IDIC Members’
Indemnified Parties; and
(d) any facts,
omissions or actions performed, occurred or related to Sanuwave or
any of its Affiliates occurred until the Subsequent Closing, even
if the effects thereof materialize only after the Subsequent
Closing.
19.3 Without
prejudice to any other limitation under this Agreement, the Parties
shall be exempt from any indemnification obligation pursuant to
this Section 18 in relation to any amount of a Loss that has been
fully reimbursed, indemnified, or compensated in any other way,
including indemnifications received due to insurance coverage or by
any other third-parties, but excluding any self-insurance or
similar self-coverage.
19.4 If any Indemnified Party seeks
indemnification for a Loss which give rise to obligations to
indemnify pursuant to Sections 19.1.1 or 19.2, as applicable, the
Indemnified Party shall promptly notify the other responsible party
for indemnification (the “Indemnifying
Party”) of any claim for which indemnification may be
payable, specifying in detail the nature of the claim and the
amount of the related Loss or an estimate thereof when determinable
and attaching all relevant documentation relating thereto,
including a copy of the notice document received by any
third-parties in case of a Third-Party Claim (the
“Third
Party Claim Notice”).
19.5 In
any case the Third Party Claim Notice shall be sent within 15
(fifteen) Business Days from the date on which the Indemnified
Party became aware of such claim and/or condition which could give
rise to a Loss or such shorter time as required to timely present a
response to such Third Party Claim. Failure by the Indemnified
Party to notify the Indemnifying Party within the periods set forth
in this Section 18.5 will not release the Indemnifying Party from
its obligation to indemnify the Indemnified Party for the Losses
related to such Claim, except to the extent that the Indemnifying
Party is objectively prejudiced thereby or is not able to file the
proper defense to a Third-Party Claim as a result of the lack of
time.
(a) If a Loss shall
arise and such event does not involve any third-party (a
“Direct Claim”),
the Indemnifying Party shall send a written response to the
Indemnified Party in which the Indemnifying Party states its
intention to either (i) pay the amount involved or commence any
required remedial measures in connection with the Loss pursuant to
Section 19.4; (ii) refuse to
consider the event as a Loss; or (iii) discuss the matter. In case
of item (iii), the Indemnifying Party and the Indemnified Party
shall discuss the issues involved during a period of thirty (30)
days from the receipt of the Third Party Claim Notice, and if they
reach an agreement,
any
payment required thereby shall be made by the Indemnifying Party to
the Indemnified Party as agreed between them and pursuant to
Section 19.4. In case of item “ii” above or, if the
Parties do not reach an agreement after discussion between them in
case of item “iii” above, then the Indemnified Party
may commence, at its option, any required action to pursue its
rights and remedies.
(b) If a Loss shall
arise and such event involves any third party (“Third-Party
Claim”), the Indemnifying Party shall have the right
to assume the defense (at its own expense) of such claim through
counsel of its own choice by so notifying the Indemnified Party.
The Indemnifying Party response shall be given within thirty
Business Days of receipt of notice thereof and shall indicate its
intention either to (i) pay the amount involved; (ii) assume the
defense of the litigation or proceeding with the counsel of its
choice (in which case, the Indemnifying Party shall be responsible
for all costs, expenses, legal and court fees, any guaranties which
may be required to be paid, advanced or deposited for the
respective defense (“Defense
Costs”), and the Indemnified Party shall have the
right to retain its own counsel at its own expense to monitor the
defense); or (iii) not assume the defense of the litigation or
proceeding. If the Indemnifying Party does not notify the
Indemnified Party of its decision to assume the defense of a
Third-Party Claim within the proper time, or if the Indemnifying
Party expressly does not assume the defense of the litigation or
proceeding and denies the existence of a Loss, the Indemnified
Party shall carry on the defense of the litigation or proceeding
diligently and no settlement or agreement nor any appeal may be
waived by the Indemnified Party without the prior written consent
of the Indemnifying Party. The Party that assumes the defense shall
be entitled to: (i) the cooperation of the other Party in preparing
the defense; and (ii) a reimbursement of all Defense Costs in the
event the Third-Party Claim effectively becomes a Loss to the
Indemnified Party. The indemnified Party agrees to provide the
Indemnifying Party with access to all of the Indemnified Party
files, information and records concerning said defense and to grant
to the attorneys appointed by the Indemnifying Party all necessary
powers-of-attorney to allow the defense of the Third-Party Claim
assumed by the Indemnifying Party.
19.6 The
Parties agree that if the JV Company is a Party and has been duly
notified of a Third-Party Claim that may be regarded as a Loss,
then the Parties agree that the JV Company shall always be the one
to take all actions to defend this Third-Party Claim, without
prejudice to the obligation of the Indemnifying Party to indemnify
the Indemnified Parties as the case may be. In this case the claim
shall be conducted in cooperation with the Indemnifying Party, who
may appoint (at their own cost) any legal advisor in addition to
the one(s) appointed by the JV Company.
19.7 Subject to the other provisions
of this Section 19.7, any amount due under the terms of this
Section 19 related to any Loss effectively incurred under the terms
of Section 19 (including the corresponding Defense Costs) shall be
paid by the Indemnifying Party to the Indemnified Party as follows:
(i) if related to a Third-Party Claim, within the fifteen (15)
Business Days following the receipt by the Indemnifying Party of a
written notice from the Indemnified Party informing about the Loss,
it being agreed that any indemnification shall be due only and
after final and non- appealable court or arbitral decision in
relation to the Third-Party Claim; and (ii) in the event of a
Direct Claim, (a) within fifteen (15) Business Days as from the
agreement in writing of the Indemnifying Party to be liable for the
requested indemnification; or (b) within fifteen (15) Business Days
as from the end of the arbitral proceeding provided in this
Agreement. Any such indemnification
obligation to be paid by the Indemnifying Party shall be adjusted
by the IPCA variation between the date in which the Losses were
incurred and the date of the actual payment to the Indemnified
Party.
19.8 When
the Loss has been suffered by the JV Company (after the Subsequent
Closing) the Indemnifying Party shall, at its discretion, indemnify
the JV Company in the full amount of the Loss. When the Loss has
been suffered directly by the Indemnified Parties that are not the
JV Company, then the Loss shall be fully indemnified to such
Indemnified Party.
19.9 The
Parties undertake to act in good faith in the event any Loss
occurs, as to mitigate in each case, the amount of any Losses to be
indemnified by the other Party. In this sense, Parties shall in
good faith (i) avoid performing acts, omissions, and/or letting or
making facts or events occur which could cause Losses
indemnifiable, (ii) in the event any event triggering Losses
occurs, remedy or mitigate the amount of any Losses to be
indemnified; and (iii) receive full indemnification under any
insurance policy that covers any Loss under this Agreement or seek
full indemnification before any responsible third-party for the
relevant Loss, undertaking to take all necessary judicial or
arbitration measures to receive such indemnification.
19.10 Any
amounts paid in connection with this Section 19 shall be made to
hold the Indemnified Party harmless with respect to the Losses
incurred, with the transfer of amounts necessary for reinstating
the Indemnified Party to the status quo ante. In that respect, the
payments of any indemnification shall be made taking into account
any possible deduction of any Taxes imposed on the receipt of such
amounts and/or on their transfer to the relevant party, with the
gross-up of such amounts when necessary.
SECTION
20
TERM
AND TERMINATION
20.1 This
Agreement shall be effective from the Effective Date and shall be
automatically terminated upon the earliest to occur of any one of
the following events: (a) the Initial Closing Date; (b) the date
fixed for termination by a separate written instrument executed by
Sanuwave and the IDIC Group; or (c) on the Initial Closing Long
Stop Date, if the applicable Parties have not satisfied or waived
the Initial Closing Conditions.
20.2 This
Agreement may be terminated by Sanuwave, subject to a 30-day cure
period if any member of the IDIC Group or any other Party (a) fails
to make any payments when due; (b) materially breaches any term or
condition of this Agreement, provided that such material breach
would be reasonably foreseeable to cause a material adverse effect
on the business, financials or results of operations of the
non-breaching Party with respect to the Business; or (c) if any
member of the IDIC Group or any other Party files for bankruptcy,
judicial recovery or becomes insolvent.
20.3 This
Agreement may be terminated by the IDIC Group, subject to a 30-day
cure period, if Sanuwave (a) fails to make any payments when due;
(b) materially breaches any term or condition of this Agreement,
provided that such material breach would be reasonably foreseeable
to cause a material adverse effect on the business, financials or
results of operations of the non- breaching Party with respect to
the Business; or (c) files for bankruptcy, judicial recovery or
becomes insolvent.
20.3.1 Even
if this Agreement is terminated due to any of the reasons described
in Clause 20.3 (c), the Supply Agreement, Trademark License
Agreement and Technology License Agreement shall survive for the
benefit of the JV Company.
20.4 The
Shareholders’ Agreement shall provide that if the Subsequent
Closing has not occurred by the Subsequent Closing Long Stop Date,
that the Parties can mutually agree to extend the Subsequent
Closing Long Stop Date. In the event that the Parties do not agree
to extend the Subsequent Closing Long Stop Date and if the
Subsequent Closing has not occurred by the Subsequent Closing Long
Stop Date, Sanuwave shall reimburse to the members of the IDIC
Group all reasonable and documented out-of-pocket expenses incurred
by the IDIC Group with respect to the Business or the JV Company
from the Effective Date until the Subsequent Closing Long Stop
Date. In such case, all rights granted to the IDIC Group hereunder,
under the Supply Agreement, the Trademark License Agreement and the
Technology License Agreement shall be terminated and reverted to
Sanuwave. The IDIC Group shall return all equipment and materials
provided by Sanuwave in connection with the JV Company and pay all
amounts due to Sanuwave. The members of the IDIC Group shall also
return to Sanuwave any and all tangible embodiments of any and all
Intellectual Property licensed to the IDIC Group by Sanuwave. The
IDIC Group shall also provide Sanuwave with a certificate attesting
the return of all items indicated above.
20.5 Sections
19, 22, 23, and 24 shall survive the termination of this Agreement.
Nothing in this Section 19 shall be deemed to release any Party
from any liability for any breach of this Agreement prior to the
effective date of its termination.
20.6 The
JV Company may otherwise be terminated and/or wound up pursuant to
the terms and provisions set forth in the Shareholders’
Agreement.
SECTION
21
NON-COMPETE
AND NON SOLICIT
21.1 If the Subsequent Closing occurs,
the Parties undertake that they shall not, directly or indirectly,
either on their own account or through third parties (whether as
owner, quotaholder, shareholder, investor, partner, joint venture,
consultant, employee, agent, services provider, distributor,
licensor or otherwise), conduct activities identical to the
Business in Brazil, as carried out by the JV Company at the
corresponding time, other than through the JV Company, register,
make, have made, develop, license, sell, market or distribute a
competing product in Brazil or attempt to register any Intellectual
Property of the other Party in its name or in the name of the JV
Company, nor shall they permit, consent to, or authorize any of
their respective sub-licensees, distributors, contractors or agents
to do any of the foregoing (the “Non-Compete
Obligation”). For the avoidance of doubt, the
Non-Compete Obligation shall also include the production, sale and
commercialization, directly or indirectly, either on their own
account or through third parties (whether as owner, quotaholder,
shareholder, investor, partner, joint venture, consultant,
employee, agent, services provider, distributor, licensor or
otherwise) of any Device for the treatment of various acute and
chronic wounds using extracorporeal shockwave therapy. The Non-
Compete obligation does not include the consulting
activities of Pharmexon Consulting s.r.o, in any territory
whatsoever, which are expressly authorized.
21.2 The
Non-Compete Obligation shall be valid in Brazil for the IDIC Group,
Versani and Universus and binding on such Parties on and from the
Subsequent Closing Date and shall survive for one (1) year as from
the date on which either Party ceases to have any direct or
indirect equity in the JV Company.
SECTION
22
SPECIFIC
PERFORMANCE AND ANNULLMENT OF VOTE
22.1
The Shareholders’ Agreement of the JV Company shall
contemplate that the General Shareholders’ Meeting shall have
powers to approve the suspension of the voting rights and/or of
right to receive dividends of the Parties which are proven in
default to the obligations established thereunder, under this
Agreement or under Applicable Law, with due regard to Articles 115
and 120 of Brazilian Corporations Law; provided that such
suspension shall be valid only until the relevant default has been
cured by the defaulting shareholder. The default or failure to
comply with any of the obligations set forth under the
Shareholders’ Agreement or under this Agreement will grant
any harmed Party the right to demand judicially the performance of
the obligation under Applicable Law. The Shareholders’
Agreement shall be executed by 2 (two) witnesses and shall create
an out-of-court enforceable deed under the terms of Article 585, II
of the Civil Procedure Code and the obligations contained therein
shall be subject to specific performance pursuant to the civil
procedure legislation currently in force. The Shareholders’
Agreement shall be filed at the JV Company’s head office
pursuant to and for the purposes of Article 118 of the Brazilian
Corporation Law. The members of the Board of Directors shall not
cast a vote which does not comply with the provisions of this
Agreement.
SECTION
23
DISPUTE
RESOLUTION
23.1 In case of controversies or
disagreements of any nature, direct or indirectly related or
arising from this Agreement, including (i) with respect to its
validity, existence and effectiveness; (ii) the existence and/or
exercise of any right or obligation arising out of this Agreement;
(iii) the existence and/or occurrence of any loss; or (iv)
interpretation of terms, conditions and provisions of this
Agreement (a “Conflict”),
involving any Party and/or the Company, including its successors on
any account, the Parties, represented by the member of their Senior
Management, shall meet aiming to solve the Conflict in an amicable
manner. If an agreement is not reached within 30 (thirty) days or a
longer period as may be agreed in writing among the Parties, the
Dispute shall be solved by arbitration proceeding pursuant to the
following terms.
23.2 The arbitration shall be managed
by the International Chamber of Commerce - ICC (“Arbitration
Chamber”) pursuant to its internal arbitration rules
in force at the time of filling the request by the interested Party
(“Rules
of Arbitration”).
23.3 The
arbitration shall be conducted in English and the seat of the
arbitration shall be the City of London, United Kingdom, without
prejudice to the designation by the Arbitral Tribunal on the
inquiries and hearings to be held elsewhere. The arbitration award
shall be rendered in the City of London, United Kingdom. The main
documents of the arbitration shall be translated into Portuguese
language, provided that the English language version shall prevail
in case of conflict.
23.4 The arbitral tribunal shall be
composed of 1 (one) arbitrator (“Arbitral
Tribunal”), to be nominated in accordance with the
Rules of Arbitration.
23.5 All
expenses related to the arbitration, as well as fees of the
arbitrators and administrative expenses with the Arbitration
Chamber shall be borne in accordance with the arbitration award. In
no event, however, shall the losing party, total or partially, be
required to bear the cost of the legal fees agreed between the
winning party(ies) and its attorney.
23.6 The
arbitration award shall be definitive and shall be binding upon the
Parties, the Company and their successors. The arbitration award
shall not be subject to appeal, except for requests for correction
and clarifications.
23.7 The
Parties and the Company agree that the arbitration shall be kept
strictly confidential and that its elements (including the
arguments of the parties, evidence, reports, third- party
statements and any other document presented or exchanged during the
arbitration proceeding) shall only be disclosed to the Arbitral
Tribunal, to the Parties, the Company, their lawyers and to any
Person required to the development of the arbitration, except for
the disclosure requested for the fulfilment of obligations imposed
by Law or by any competent Governmental Authority.
23.8 The
arbitration provisions set forth herein provided only binds the
Parties and the Company, and its effects shall not be extended to
any other Person who is not a signatory of this Agreement, even if
the other Person is part of the same group of the Parties or of the
Company, or is a party to any other agreement with any of the
Parties.
SECTION
24
CONFIDENTIALITY
24.1 Each Party agrees not to disclose
any Confidential Information of or concerning any other Party, the
Business or the JV Company to any Person without the express prior
authorization of such other Party. “Confidential
Information” means any information concerning the JV
Company, the Parties and/or their Affiliates obtained hereunder or
in connection herewith. The obligation sets forth in this Section
23 shall not apply to Confidential Information that is or becomes
generally available to the public other than as a result of an
action or omission by a Party obligated hereunder to preserve the
confidentiality of such information or any of its
representatives.
24.2 The
confidentiality obligations under this Section 24 shall not prevent
the disclosure by a Party of any Confidential Information (i) to
the extent required under Applicable Law or any regulation
applicable to such Party or its Affiliates or for its or their
compliance with requirements made by competent Governmental
Authority, including public agencies of supervision and control;
(ii) for accounting purposes, including for the consolidation of
the Party’s investments; or (iii) to such Party’
Affiliates and their respective officers, partners, shareholders,
auditors, consultants, financing parties, business partners,
investors, advisors or to third parties potentially interested in
acquiring the shares, provided that each such Person to which
Confidential Information is disclosed has committed to
confidentiality obligations no less stringent than those
established in this Section 23 or is bound by professional duties
of confidentiality.
24.3 If
a Party discloses Confidential Information under the terms of item
“i” of Section 24.2 above, such
Party shall immediately notify the Person who provided the
Confidential Information in order to give that Person an
opportunity to challenge the legal/regulatory request. The Party
shall also cooperate with the referred Person and shall take
reasonable efforts to mitigate the disclosure or the use of
Confidential Information, as well as to make the Confidential
Information to be treated as confidential by the Person to whom the
Confidential Information was disclosed.
(i) shall limit the
disclosure of Confidential Information to its directors, officers,
employees, the directors, officers and employees of their
Affiliates, as well as to the other Persons to whom disclosure is
authorized herein, which may be required to use the Confidential
Information for the purposes authorized under this Agreement or as
a result of their duties, considering that such Persons shall be
bound to the Party by means of a confidentiality agreement, with
terms no less stringent than those established under this Section
24, or by a professional ethical obligation which requires the
maintenance of secrecy and does not violate the terms of this
Agreement;
(ii) shall
cause (a) each one of its directors, officers and employees, (b)
directors, officers and employees of their Affiliates, and (c) each
other Person to which it discloses Confidential Information to
comply with the obligations provided herein; and
(iii) shall
use its best efforts to cause its Affiliates and the Persons
mentioned in item “ii” above to comply with the terms
of this Section 24, being responsible for the breach of the terms
set forth by any such Person.
24.5 The
Parties shall use their best efforts to make only the press
releases or other public disclosures as are required by law;
observing that no press release or other public disclosure shall be
made without prior consultation with the other
Party(ies).
24.6 The
Parties hereby acknowledge that Sanuwave is subject to certain
securities laws, compliance with which may require the disclosure
of Confidential Information. The Parties hereby agree that Sanuwave
may disclose Confidential Information in connection with its
ongoing reporting requirements under applicable securities laws and
pursuant to any other acts it may take in connection with its
obligation to comply with such securities laws.
SECTION
25
IDIC GROUP NOMINEE
SHAREHOLDER
25.1 The
members of the IDIC Group hereby grant irrevocable powers to the
IDIC Group Nominee Shareholder to exercise or waive, as applicable,
any and all rights attached to the Shares held by the members of
the IDIC Group, including but not limited to the following rights,
which the IDIC Group Nominee Shareholder shall exercise in
accordance with the terms and conditions of this
Agreement:
(a) propose to convene
shareholders meetings and exercise voting rights in any Ordinary or
Extraordinary General Shareholders Meetings of the JV
Company;
(b) exercise any and
all rights of the members of the IDIC Group in connection with any
Transfer of Shares, including for the purposes of the exercise of
any Right of First Offer, Tag-Along Right and Drag-Along Right,
which shall be exercised by the IDIC Group as a whole, and not by
its individual members;
(c) exercise any and
all rights of the members of the IDIC Group in connection with an
IDIC Group Change of Control Put Option, which shall be exercised
by the IDIC Group as a whole, and not by its individual
members;
(d) appoint any members
of the Board of Directors and Fiscal Board of the JV Company which
the members of the IDIC Group are entitled to appoint jointly as a
whole, and not by its individual members; or request the dismissal
of any such members of the Board of Directors and Fiscal Board of
the JV Company appointed by the members of the IDIC Group as herein
provided;
(e) represent the
members of the IDIC Group in any Consenting Meetings of
Representatives and Consenting Meetings of the Senior Management in
connection with a Deadlock;
(f) issue any and all
documents required for the Initial Closing and the Subsequent
Closing on behalf of the members of the IDIC Group;
(g) represent the
members of the IDIC Group in connection with any Event Subject to
Indemnification;
(h) execute any
amendments to this Agreement on behalf of the members of the IDIC
Group;
(i)
grant any consent or approval on behalf of the members of the IDIC
Group;
(j) issue any and all
notices and written statements required to be issued by the members
of the IDIC Group under this Agreement to exercise any of the
rights attached to the Shares held by the members of the IDIC Group
Members, including but not limited to the rights listed
above.
25.2 The
members of the IDIC Group hereby agree to execute any and all
documents necessary to grant the necessary required for the IDIC
Group Nominee Shareholder to exercise the rights provided for
herein on behalf of the members of the IDIC Group
Members.
25.3 The
authority conferred to the IDIC Group Nominee Shareholder is
binding on the members of the IDIC Group until another joint
representative is notified to the other Parties in writing with a
30-day prior notice. In the event that the IDIC Group Nominee
Shareholder becomes unable to perform his responsibilities
hereunder or resigns from such position, the members of the IDIC
Group shall appoint a new IDIC Group Nominee Shareholder or another
representative without delay to fill such vacancy and notify the
other Parties of such replacement in writing.
25.4 The
members of the IDIC Group hereby acknowledge and agree that all
members of the IDIC Group shall be jointly and severally liable for
any legal consequences arising from the IDIC Group Nominee
Shareholder's exercise of the aforesaid rights in accordance with
this Agreement.
25.5 Any
member of the IDIC Group who sells and transfers all of its Shares
in the JV Company to a Party or a Third-Party shall cease to be a
member of the IDIC Group as of the date on which the respective
sale and transfer of all of such Shares becomes
effective.
SECTION
26
MISCELLANEOUS
26.1 All
costs and expenses incurred by each Party in connection with the
preparation, execution and delivery of this Agreement and the other
agreements referred to herein shall, unless otherwise expressly
agreed in writing between the Parties, be borne exclusively by the
Party that incurred such costs.
26.2 All
notices authorized or required between the Parties by any of the
provisions of this Agreement shall be in writing, in English
(except for documents and/or information received from
third-parties attached that may be attached to such notices), and
delivered in person or by courier service or by e-mail provided
that the other party provides confirmation of transmission, and
addressed to such Parties as designated below. Oral communication
does not constitute notice for the purposes of this Agreement and
telephone numbers of the Parties are listed below as a matter of
convenience only. The originating notice given under any provision
of this Agreement shall be deemed delivered only when received by
the Party to whom such notice is directed, and the time for such
Party to deliver any notice in response to such originating notice
shall run from the Business Day following receipt of the
originating notice. "Received" for the purposes of this Section
shall mean actual delivery of the notice to the address, including
electronic address as applicable, of the Party to be notified as
specified in this Section. Each Party shall have the right to
change its address at any time and/or designate that copies of all
such notices be directed to another Person at another address, by
giving at least five (5) Business Days written Notice thereof to
all other Parties.
26.3 Any
Notice hereunder shall be deemed sufficiently given and received at
the time of receipt, if delivered by hand, sent by registered mail
or courier service, or, if delivered by email or fax, on the date
the other Party receives transmission thereof, free of any
transmission error.
26.4 Each
Party shall, immediately upon receipt of any Notice given
hereunder, acknowledge receipt thereof by any of the means under
this Section 26.4, whenever requested to do so by the sender,
provided that the lack of such acknowledgment shall not prejudice
the validity of any notice given in accordance with this Section
26.4.
26.5 The
waiver of any provision of this Agreement by a Party shall not be
valid unless in writing and signed by authorized officers of such
Party. The waiver by any Party in any instance of the other Party's
noncompliance with any obligation or responsibility herein shall
not be deemed a waiver of other instances of
noncompliance.
26.6 Neither
this Agreement nor any provision hereof may be amended in any
manner except by an instrument in writing which refers to this
Agreement and is executed by each one of the Parties.
26.7 All
Schedules and/or Exhibits referred to in, or relating to, this
Agreement are attached hereto and are incorporated herein by
reference as if fully set forth herein and shall be an integral
part hereof. Unless otherwise expressly provided in the text
hereof, all references to this Agreement shall be considered to
include this Agreement and its Schedules and Exhibits.
26.8 The
provisions of this Agreement and its Schedules and Exhibits, (i)
set forth the entire agreement and understanding of the Parties as
to the subject matter hereof; and (ii) supersede all prior
agreements, oral or written, and all other communications between
the Parties relating to the subject matter hereof, including, but
not limited to, the Term Sheet. In the event of any conflict or
discrepancy between the provisions of this Agreement and those of
the other Transaction Documents (i) first, the provisions of the
Shareholders’ Agreement shall prevail vis-à-vis the
provisions of all other Transaction Documents; and (ii) second, the
provisions of this Agreement shall (to the extent permitted by
Applicable Law) prevail vis-à-vis the provisions of all other
Transaction Document.
26.9 This
Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors and permitted assigns;
provided, however, that no rights, obligations or liabilities
hereunder shall be assignable by any Party without the prior
written consent of the other Party, except as otherwise
specifically provided herein. None of the conditions, provisions,
rights and obligations arising under this Agreement, except as
otherwise expressly set forth, shall function to bind other
companies, divisions, business units or businesses comprising the
respective business groups of each Party.
26.10 Should
any provision of this Agreement be held to be definitively
unenforceable by a competent court under the Applicable Law, (i)
the Parties hereto shall in good faith adopt such measures as are
legally permitted and reasonable, so as to actually effect their
intent under such provision; and (ii) in any event, the legality
and enforceability of the remaining provisions of this Agreement
shall not be affected or impaired thereby.
26.11 This
Agreement shall in all respects be interpreted, construed and
governed by and in accordance with the laws of England and
Wales.
26.12 No
public release, announcement or other form of publicity concerning
the transactions contemplated by this Agreement shall be issued by
any Party without the prior consent of the other Party, which
consent shall not be unreasonably withheld.
26.13 This
Agreement is not intended, nor should anything herein be construed,
to create a relationship of partners, principal and agent, employer
and employee, or other fiduciary relationship among the Parties,
except as expressly provided herein. Except as expressly provided
herein, no Party shall have any authority to represent or to bind
the other Party in any manner whatsoever, and each Party shall be
solely responsible and liable for its own acts.
26.14 This
Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same document.
IN WITNESS WHEREOF, the Parties have
caused this Agreement to be executed by their respective duly
authorized officers as of the date first above mentioned. This
Agreement may be executed in counterparts, each of which shall
constitute an original and all of which, when taken together, shall
constitute the entire document and may be executed by
electronically scanned or “pdf”
signatures.
SANUWAVE HEALTH
INC.
/s/ Kevin A. Richardson II
Name:
Kevin A. Richardson II
Title:
Chairman & CEO
VERSANI
HEALTH CONSULTING CONSULTORIA EM GESTÃO DE NEGÓCIOS
EIRELI
/s/ Mauricio Grimoni
Name:
Mauricio Grimoni
Title:
Partner
UNIVERSUS GLOBAL
ADVISORS LLC
/s/ Michael Hubert
Name:
Michael Hubert
Title:
Principal
IDIC
GROUP
/s/ Paulo Cesena
/s/ Daniel Feliciano Ferreira
Name: Paulo
Cesena
Name: Daniel
Feliciano Ferreira
/s/ Fabio Delmonte
Moreira
/s/ Parvinder
Punia
Name:
Fabio Delmonte
Moreira
Name:
Parvinder
Punia
/s/ Laura Nae
/s/ Fernando Delmonte Moreira
Name: Laura
Nae
Name: Fernando Delmonte Moreira
CURARUS
LIMITED
/s/ Danesh Gadhia
Name:
Danesh Gadhia