Exhibit 3.1

 

The Companies Act
(As Revised)

 

Company Limited by Shares

 

Fifth Amended and Restated Memorandum of Association

of

 

LOTUS TECHNOLOGY INC.

 

(Adopted by Special Resolutions passed on September 20,2022 and effective on October 11, 2022)

 

1.

The name of the Company is Lotus Technology Inc.

 

2.

The registered office will be situated at the offices of Sertus Incorporations (Cayman) Limited, Sertus Chambers, Governors Square, Suite # 5-204, 23 Lime Tree Bay Avenue, P.O. Box 2547, Grand Cayman, KY1-1104, Cayman Islands or at such other place in the Cayman Islands as the Directors may from time to time decide.

 

3.

The objects for which the Company is established are unrestricted and the Company shall have full power to carry out any object not prohibited by any law as provided by Section 7 (4) of the Companies Act (as revised).

 

4.

Except as prohibited or limited by the laws of the Cayman Islands, the Company shall have full power and authority to carry out any object and shall have and be capable of from time to time and at all times exercising any and all of the powers at any time or from time to time exercisable by a natural person or body corporate in any part of the world whether as principal, agent, contractor or otherwise.

 

5.

The Company shall not be permitted to carry on any business where a licence is required under the laws of the Cayman Islands to carry on such a business until such time as the relevant licence has been obtained.

 

6.

If the Company is an exempted company, its operations will be carried on subject to the provisions of Section 174 of the Companies Act (as revised).

 

7.

The liability of each Member is limited to the amount from time to time unpaid on such Member’s share.

 

8.

The authorised share capital of the Company is US$50,000 divided into 5,000,000,000 Shares, consisting of (i) 4,691,947,371 Ordinary Shares of par value of USD0.00001 each; (ii) 184,596,297 Series Pre-A Preferred Shares of par value of USD0.00001 each, (iii) 123,456,332 Series A Preferred Shares of par value of USD0.00001 each, with the power for the Company to, subject to the Articles of Association of the Company as then in effect, increase or reduce the said capital and to issue any part of its capital, original or increased, with or without any preference, priority or special privilege or subject to any postponement of rights or to any conditions or restrictions; and so that, unless the condition of issue shall otherwise expressly declare, every issue of shares, whether declared to be preference or otherwise, shall be subject to the power hereinbefore contained.

 

 

The Companies Act
(As Revised)

 

Company Limited by Shares

 

Fifth Amended and Restated Articles of Association

Of

 

LOTUS TECHNOLOGY INC.

 

(Adopted by Special Resolutions passed on September 20, 2022 and effective on October 11, 2022)

 

1.	The Regulations contained or incorporated in Table A of the First Schedule of the Companies Act (as revised) shall not apply to this Company.

 

INTERPRETATION

 

2.

(a)

In these Articles the following terms shall have the meanings set opposite unless the context otherwise requires:

 

Affiliate(s)

means in relation to any Person, any other Person who directly or indirectly Controls, is Controlled by or is subject to common Control with the first-mentioned Person.

 

Aggregate Block

has the meaning ascribed thereto in Article 33.1(c).

 

Articles

means these Amended and Restated Articles of Association as from time to time amended.

 

Auditors

means the Auditors for the time being of the Company, if any.

 

Automatic Conversion

has the meaning ascribed in Article 121.3.

 

Available Funds and Assets

has the meaning ascribed thereto in Article 103.

 

Base Price

means, as applicable, the issue price for any corresponding Share or class of Share. The Base Price for each Ordinary Shares held by Founder Vehicle, Geely and Etika is RMB1.000 on average; the Base Price for each Ordinary Shares held by Lotus Group is £0.48281 on average, the Base Price for each Series Pre-A Preferred Share is RMB 6.22981, the Base Price for each Series A Preferred Share is RMB 10.54576.

 

	Big 4 Shareholders’ Preference Amount	has the meaning ascribed thereto in Article 103(c).
	Board or Board of Directors	means the board of Directors of the Company.
	Big 4 Relevant Investment Amount	means, the corresponding investment amount paid by the relevant Big 4 Shareholder to the Company, which shall be an amount equal to (x) the applicable Base Price of the Ordinary Shares acquired by such Big 4 Shareholder times (y) applicable number of Ordinary Shares held by such Big 4 Shareholder as of the date of occurrence of a Liquidation Event.

 

 

Big 4 Shareholders Closing

means the Founder Vehicle, Geely, Etika and Lotus Group.has the meaning defined under the Series A Preferred Share Purchase Agreement by and among the Company and the holders of Series A Preferred Shares.

 

Company

means Lotus Technology Inc.

 

Constitutional Documents

means, with respect to any Person, the certificate of incorporation, memorandum of association, bylaws, articles of association, shareholders’ agreement, limited liability company agreement, joint venture agreement, investors’ rights agreement, or similar constitutional documents for such Person.

 

Contract

means, a contract, agreement, understanding, indenture, note, bond, loan, instrument, lease, mortgage, franchise, license, commitment, purchase order, and other legally binding arrangement, whether written or oral.

 

Control

means the possession by a Person, directly or indirectly, of (a) the legal and beneficial ownership of more than 50% of the voting shares of another Person; or (b) the power to direct or cause the direction of the management and policies of another Person, whether through the ownership of shares or other securities carrying the right to vote, through the composition of the board of directors of such other Person, by contract or otherwise, and includes, with respect to any individual, such individual’s spouse, parents and parents of the spouse, siblings and their spouse, children over 18 years old and their spouse, siblings of the spouse and parents of the spouse of the children, and the terms “Controlling” and “Controlled” have meanings correlative to the foregoing.

 

Conversion Price

has the meaning ascribed in Article 121.1.

 

Convertible Instruments

has the meaning ascribed in paragraph (d) of Part I of Schedule A.

 

Directors

means the directors of the Company for the time being or, as the case may be, the directors assembled as a board.

 

Disbursement

Date means the date when Mission disbursed the NC Initial Investment Amount to the Company, i.e. November 29, 2021.

 

Equity Securities

means, with respect to any Person, any and all shares, share capital, membership interests, units, profits interests, ownership interests, equity interests, voting interests, registered capital, and other equity securities of such Person, and any right, warrant, option, call, commitment, conversion privilege, pre-emptive right or other right to acquire any of the foregoing, or security convertible into, exchangeable or exercisable for any of the foregoing, or any Contract providing for the acquisition of any of the foregoing; for the avoidance of doubt, the “Equity Securities” of the Company shall include any Ordinary Shares, Ordinary Share Equivalents, Series Pre-A Preferred Shares, Series A Preferred Shares, any other shares of the Company or any other securities convertible or exchangeable into shares of the Company.

 

 

Etika

means Etika Automotive Sdn Bhd, a private company incorporated under the laws of Malaysia.

 

ESOP

means, a management and employee incentive programme enabling certain key employees of the Company to participate in such programme for the purpose of incentivising management and key employees to contribute to the value creation in the Company.

 

Final Closing

has the same meaning as ascribed to it in the Shareholders Agreement.

 

Founder Vehicle

means Lotus Advanced Technology Limited Partnership, a limited partnership incorporated under the Laws of the British Virgin Islands.

 

Geely

Lotus Technology International Investment Limited, a BVI business company incorporated in the British Virgin Islands

 

Geely + LP BI

has the meaning ascribed to it in Article 33.1(b).

 

Governmental Authority

means any government of any nation or province or state or any other political subdivision thereof, or any entity, authority or body exercising executive, legislative, judicial, regulatory, or administrative functions of or pertaining to government, including any government authority, agency, department, board, commission or instrumentality of the PRC or any other applicable country or region, or any political subdivision thereof, any court, tribunal or arbitrator, and any self-regulatory organization.

 

Governmental Order

means any applicable order, ruling, decision, verdict, decree, writ, subpoena, mandate, precept, command, directive, consent, approval, award, judgment, injunction or other similar determination or finding by, before or under the supervision of any Governmental Authority.

 

	Group	means:
		(a)            WFOE; (b)            Entities Controlled by WFOE; (c)            the Company; and

 

		any entity established, Controlled and/or financially consolidated from time to time by (a), (b) and/or (c) above.
		“Group Companies” means the same.

 

Group Company

means any member of the Group.

 

HK Subsidiary

means Lotus Advanced Technology Limited, a company with limited liability incorporated under the Laws of Hong Kong.

 

Hong Kong

means the Hong Kong Special Administrative Region of the People’s Republic of China.

 

Initial Closing

has the meaning defined under the Series Pre-A Preferred Share Purchase Agreement by and among the Company, Founder Vehicle and NIO Capital dated January 30, 2022.

 

 

Issuance Notice

has the meaning ascribed to it in Article 33.1(a).

 

Interested Person

means, any officer, director, or direct or indirect holder of over 5% equity security of any Group Company, and any Affiliate of any of the foregoing.

 

Investors

means the holders of Series Pre-A Preferred Shares and the holders of Series A Preferred Shares and each an “Investor”.

 

	Jingkai Automobile Fund	HUBEI CHANGJIANG JINGKAI AUTOMOBILE INDUSTRY INVESTMENT FUND PARTNERSHIP (LIMITED PARTNERSHIP) (湖北长江经开汽车产业投资基金合伙企业(有限合伙))
	Jingkai Automobile Fund’s Preference Amount	has the meaning ascribed to it in Article 103(a).

 

Law(s)

means, any and all provisions of any applicable constitution, treaty, statute, law, regulation, ordinance, code, rule, or rule of common law, any governmental approval, concession, grant, franchise, license, agreement, directive, requirement, or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Authority, in each case as amended, and any and all applicable Governmental Orders.

 

Liquidation Event

means, any of the following events: (x) the liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary; or (y) any Trade Sale of the Company.

 

Lotus Group

means Lotus Group International Limited, a private company incorporated under the laws of England and Wales.

 

	LP BI	has the meaning ascribed to it in Article 33.2.
	Material Adverse Effect	means, with respect to any Person, (i) any event, condition, fact or change that has, individually or together with any other event, condition, fact or change, a material adverse effect on the business, operations, assets, liabilities (including contingent liabilities), results of operations, financial status or prospects of such Person, or (ii) any event, condition, fact or change that results in, individually or together with any other event, condition, fact or change, any of the following effect: (a) such Person’s entire or substantially equivalent to the entire business of such Person is suspended for more than three (3) consecutive months or is terminated; (b) such Person is unable to perform more than thirty percent (30%) of the contracts of its principal business; (c) a change of Control of the Person or such Person’s Control is severely restricted; or (d) would make a Qualified IPO of such Person impossible to consummate no later than sixty (60) months from the date of the Closing; other than to the extent caused by (i) changes in the general economic or political conditions in jurisdictions in which the Group Companies are operating, (ii) changes (including changes in law) or conditions generally affecting the industry in which the Group Companies are operating; (iii) acts of war, sabotage or terrorism or natural disasters involving any jurisdiction in which the Company and its Subsidiaries are operating, (iv) any action taken by the Group Companies that is required or contemplated pursuant to the Transaction Documents; provided, with respect to clauses (i)–- (iii), that such changes do not affect the Group Companies disproportionately as compared to other Persons in the same industry

 

 

Material Change

has the meaning defined in paragraph (h) of Part I of Schedule A.

 

Majority Series A Investors

means the shareholder(s) of the Company holding more than fifty percent (50%) of the outstanding Series A Preferred Shares.

  

Member

means a Person who is registered in the Register of Members as the holder of any Share in the Company.

 

Mission

means MISSION PURPLE L.P.

 

Month

means a calendar month.

 

NC Initial Investment

means RMB 150,000,000.

 

New Securities

has the meaning ascribed to it in Article 33.1(a).

 

NIO Capital

means Mission and/or Mission Bloom Limited or any of them.

 

Ordinary Resolution

means a resolution of a general meeting passed by a majority of the votes of the Members who, being entitled to do so, vote in person or by proxy at such meeting, or a written resolution signed by all Members entitled to vote; for the avoidance of doubt, when computing voting rights and the relevant majority, regard shall be made to the number of votes to which each Member is entitled pursuant to these Articles.

 

Ordinary Shares

means ordinary shares, par value US$0.00001 per Share, in the share capital of the Company.

 

Ordinary Shares Holder

means holders of Ordinary Shares.

 

	Original Directors	has the meaning ascribed to it in Article 62.
	Over-Allotment New Securities	has the meaning ascribed to it in Article 33.1(e).
	Other Series A Investor’s Preference Amount	has the meaning ascribed to it in Article 103(a).
	Participation Period	has the meaning ascribed to it in Article 33.1(a).
	Person	means any natural person, corporation, limited liability company, joint stock company, joint venture, partnership, enterprise, trust, unincorporated organization or any other entity or organization.
	Purchasing Investor	has the meaning ascribed to it in Article 33.1(e).
	PRC	means the People’s Republic of China, but solely for purposes of these Articles, excluding Hong Kong, the Macau Special Administrative Region and Taiwan Region.

 

 

Preferred Shares

means Series Pre-A Preferred Shares and Series A Preferred Shares.

 

Proposed Subscriber

has the meaning ascribed to it in Article 33.1(a).

 

Qualified IPO

means an initial public offering and listing or back door listing (including via SPAC) or other similar transactions to achieve the listing of the Shares of the Company, on the Shanghai Stock Exchange, Shenzhen Stock Exchange, New York Stock Exchange, Nasdaq Stock Exchange, Hong Kong Stock Exchange, London Stock Exchange, or any other stock exchange or quotation system that is approved in writing by Mission and Majority Series A Investors, that implies a post-offering market capitalization of the Company (on a fully-diluted basis) upon the consummation of such offering of not less than the Qualified Valuation. Notwithstanding the foregoing, any listing of the Shares of the Company not meeting the requirements above but in no event less than US$5.5 billion may nevertheless be deemed to be a Qualified IPO with the vote or written consent of Mission and Majority Series A Investors.

 

Qualified Valuation

means a post-offering market capitalization of the Company that is at least: (a) US$5.5 billion if an initial public offering and listing or back door listing (including via SPAC) or other similar transactions to achieve the listing of the shares of the Company is consummated on or before the third (3rd) anniversary of the Closing; (b) US$6.5 billion if an initial public offering and listing or back door listing (including via SPAC) or other similar transactions to achieve the listing of the shares of the Company is consummated during any time between the date after the third (3rd) anniversary of the Closing and the fourth (4th) anniversary of the Closing (inclusive); (c) US$10 billion if an initial public offering and listing or back door listing (including via SPAC) or other similar transactions to achieve the listing of the shares of the Company is consummated during any time between the date after the fourth (4th) anniversary of the Closing and the fifth (5th) anniversary of the Closing (inclusive)

 

Redemption Notice

has the meaning ascribed to it in Article 109.1(a).

 

Redemption Price

has the meaning ascribed to it in Article 109.1(c).

 

Registered Office

means the registered office of the Company as provided in Section 50 of the Statute.

 

Register of Members

means the register of Members to be kept pursuant to Section 40 of the Statute.

 

	Reserved Matters Relating to Geely and Etika	has the meaning ascribed to it in Article 30.
	Reserved Matters Relating to NIO Capital	has the meaning ascribed to it in Article 31.
	Reserved Matters Relating to Majority Series A Investors	has the meaning ascribed to it in Article 32.

 

 

	Reserved Matters	has the meaning ascribed to it in Article 32.
	Relevant Series A Issuance Date	means, with respect to each Series A Preferred Share, the date on which such Series A Preferred Share is issued.
	Secretary	means any person appointed by the Directors to perform any of the duties of the secretary of the Company and including any assistant secretary.
	Seal	means the common seal of the Company or any facsimile for official seal for use outside of the Cayman Islands.
	Securities Act	means the United States Securities Act of 1933, as amended.
	Series A Investors	has the same meaning as ascribed to it in the Shareholders Agreement.
	Series A Investor’s Preference Amount	has the meaning ascribed thereto in Article 103(a).
	Series A Preferred Share(s)	means the Series A Preferred Share(s) of the Company, par value US$ 0.00001 each, with the rights, preferences and privileges as set forth in the Memorandum and Articles, as amended from time to time.
	Series A Preferred Share Purchase Agreements	means the Series A Preferred Share Purchase Agreements entered into by the Company and certain other parties thereto with the relevant Series A Investor for sale and subscription of certain Series A Preferred Shares, and each a “Series A Preferred Share Purchase Agreement”.
	Series A Redemption Price	has the meaning ascribed to it in Article 109.1(b).
	Series Pre-A Preferred Share(s)	means the Series Pre-A Preferred Share(s) of the Company, par value US$ 0.00001 each, with the rights, preferences and privileges as set forth in the Memorandum and Articles, as amended from time to time.
	Series Pre-A Investors	has the same meaning as ascribed to it in the Shareholders Agreement.
	Series Pre-A Investor’s Preference Amount	has the meaning ascribed thereto in Article 103(b).
	Series Pre-A Redemption Price	has the meaning ascribed to it in Article 109.1(c).
	Shareholders Agreement	means the Fourth Amended and Restated Shareholders Agreement dated September 20,2022 by and among the Company, the HK Subsidiary, the WFOE, the Founder Vehicle, Geely, Etika, Lotus Group, Series Pre-A Investors, and Series A Investors, as may be amended, restated or supplemented from time to time.

 

 

	Share	means the share(s) in the share capital of the Company.
	Special Resolution	means a resolution of a general meeting passed by a two-thirds majority of votes of the Members who, being entitled to do so, vote in person or by proxy at such meeting, or a written resolution signed by all Members entitled to vote; for the avoidance of doubt, when computing voting rights and the relevant majority, regard shall be made to the number of votes to which each Member is entitled pursuant to these Articles.

 

	Statute	means the Companies Act (As Revised) of the Cayman Islands and any amendment or other statutory modification thereof and where in these Articles any provision of the Statute is referred to, the reference is to that provision as modified by law for the time being in force.
	Subsidiary	means, with respect to any given Person, any other Person that is Controlled directly or indirectly by such given Person.
	Trade Sale	means whether in a single transaction or series of related transactions, any of the following transactions: (i) the merger, acquisition or similar transaction of the Group Companies as a whole (whether by a sale of equity, merger, consolidation, scheme of arrangement or amalgamation) in which the shareholders of the Company immediately prior to such transaction or series of transactions will cease to own a majority of the voting power of the surviving or resulting entity immediately after the consummation of such transaction or series of transactions; or (ii) the sale, lease, exclusive license or other disposition of all or substantially all of the assets of the Group Companies taken as a whole or the licensing of all or substantially all of the Group Companies’ intellectual property.
	WFOE	means WUHAN LOTUS TECHNOLOGY CO., LTD. (武汉路特斯科技有限公司), a limited liability company incorporated under the Laws of the PRC.

(b)

Unless the context otherwise requires, expressions defined in the Statute and used herein shall have the meanings so defined.

 

(c)

Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Shareholders Agreement.

 

(d)

In these Articles unless the context otherwise requires:

 

(i)

words importing the singular number shall include the plural number and vice-versa;

 

(ii)

words importing masculine, feminine, and neuter genders will each be deemed to include the others;

 

(iii)

words importing Persons only shall include companies or associations or bodies of persons whether incorporated or not;

 

(iv)

the term “or” is not exclusive;

 

(v)

the terms “herein”, “hereof”, and other similar words refer to these Articles as a whole and not to any particular section, subsection, paragraph, clause, or other subdivision;

 

(vi)

the term “including” will be deemed to be followed by, “but not limited to”;

 

 

(vii)

the terms “shall”, “will”, and “agrees” are mandatory, and the term “may” is permissive;

 

(viii)

the term “day” shall mean “calendar day”, and “month” shall mean calendar month;

 

(ix)

where an act is required to be done within a specified number of days after, from, or prior to a specified date, the time period shall be calculated exclusive of the date so specified and if the last day of the period of time falls on a day which is not a Business Day, then the period shall be deemed to expire on the immediately succeeding Business Day;

 

(x)

all references in these Articles to designated “Sections” and other subdivisions are to the designated Sections and other subdivisions of the body of these Articles unless the context otherwise requires, and all references in these Articles to designated Schedules, Exhibits and Appendices are to the Schedules, Exhibits and Appendices attached to these Articles unless the context otherwise requires;

 

(xi)

the phrase “directly or indirectly” shall mean directly, or indirectly through one or more intermediate Persons or through contractual or other arrangements, and “direct or indirect” has the correlative meaning;

 

(xii)

references to laws include any such law modifying, reenacting, extending or made pursuant to the same or which is modified, reenacted, or extended by the same or pursuant to which the same is made;

 

(xiii)

each representation, warranty, agreement, and covenant contained herein will have independent significance, regardless of whether also addressed by a different or more specific representation, warranty, agreement, or covenant;

 

(xiv)

all accounting terms not otherwise defined herein have the meanings assigned under the accounting standards;

 

(xv)

references to these Articles or any agreement or document shall be construed as references to such document as the same may be amended, supplemented or novated from time to time,

 

(xvi)

all references to dollars or to “US$” are to currency of the United States of America and all references to “RMB” are to currency of the PRC (and each shall be deemed to include reference to the equivalent amount in other currencies);

 

(xvii)

references to a Person includes a reference to that Person’s successors and permitted assigns,

 

(xviii)

“fully-diluted” or any variation thereof means all of the issued and outstanding Shares, treating the maximum number of Shares issuable under any issued and outstanding Equity Securities of the Company as issued and outstanding;

 

 

 

(xix)

“as-converted” or any variation thereof means that the calculation should be made assuming that all issued and outstanding preferred shares have been converted into Ordinary Shares; and

 

(xx)

Wherever in these Articles there is a reference to number of shares or calculation of share price, then, upon the occurrence of any share subdivision, share split, share consolidation, share dividend, share reclassification or similar event of share capital, such number of shares or calculation of share price shall automatically be appropriately adjusted to reflect such share subdivision, share split, share consolidation, share dividend, share reclassification or similar event of share capital.

 

(e)

The headings herein are for convenience only and shall not affect the construction of these Articles.

 

(f)

in these Articles, Sections 8 and 19 of the Electronic Transactions Act (as revised) of the Cayman Islands shall not apply.

 

2A.

Notwithstanding anything to the contrary, each other Article herein is subject to the provisions of Article 30, Article 31 and Article 32, and, subject to the requirements of the Statute, in the event of any conflict, the provisions of Article 30, Article 31 and Article 32 shall prevail over any other Article herein.

 

ISSUE OF SHARES

 

3.

(a)

Subject to the other provisions in the Memorandum of Association of the Company and these Articles and the Shareholders Agreement, any Share may be issued with such preferred, deferred, or other special rights, or such restrictions, whether in regard to dividend, voting, return of Share capital or otherwise, as the Company may from time to time by Special Resolution determine, and subject to the provisions of Section 37 of the Statute, these Articles and the Shareholders Agreement, any Share may, with the sanction of a Special Resolution, be issued on the terms that it is, or at the option of the Company or the holder is liable, to be redeemed.

 

(b)

Subject to these Articles and the Shareholders Agreement, if at any time the share capital is divided into different classes or series of Shares, the rights attached to any class or series (unless otherwise provided by the terms of issue of the Shares of that class or series) may be varied with the consent in writing of the holders of two-thirds (2/3) of the issued Shares of that class or series or with the sanction of a resolution passed by not less than two-thirds (2/3) of such holders of the Shares of that class or series as may be present in person or by proxy at a separate general meeting of the holders of the Shares of that class. To every such separate general meeting, the provisions of these Articles relating to general meetings shall mutatis mutandis apply, but so that the necessary quorum shall be any one or more Persons holding or representing by proxy not less than one-third (1/3) of the issued Shares of the class or series and that any holder of Shares of the class or series present in person or by proxy may demand a poll.

 

 

4.

(a)

Every Person whose name is entered as a Member in the Register of Members shall, without payment, be entitled to a certificate under the seal of the Company specifying the Share or Shares held by him and the amount paid up thereon, provided that in respect of a Share or Shares held jointly by several Persons, the Company shall not be bound to issue more than one certificate, and delivery of a certificate for a Share to one of several joint holders shall be sufficient delivery to all.

 

(b)

If a Share certificate is defaced, lost or destroyed it may be renewed on payment of such fee, if any, and on such terms, if any, as to evidence and indemnity, as the Directors think fit.

 

5.

Except as required by law, no Person shall be recognised by the Company as holding any Share upon any trust, and the Company shall not be bound by or be compelled in any way to recognise (even when having notice thereof) any equitable, contingent, future or actual interest in any Share (except only as by these Articles or by law otherwise provided or under an order of a court of competent jurisdiction) or any other rights in respect of any Share except an absolute right to the entirety thereof in the registered holder, but the Company may in accordance with the Statute issue fractions of Shares.

 

6.

Subject to these Articles and the Shareholders Agreement, the Shares shall be at the disposal of the Directors, and they may (subject to the provisions of the Statute) allot, grant options over, or otherwise dispose of them to such Persons, on such terms and conditions, and at such times as they think fit, but so that no Share shall be issued at a discount, except in accordance with the provisions of the Statute.

 

LIEN

 

7.

The Company shall have a first and paramount lien on every Share (not being a fully paid Share) for all moneys (whether presently payable or not) called or payable at a fixed time in respect of that Share, and the Company shall also have a lien on all Shares (other than fully paid-up Shares) standing registered in the name of a single Person for all moneys presently payable by him or his estate to the Company; but the Directors may at any time declare any Share to be wholly or in part exempted from the provision of this Article. The Company’s lien, if any, on a Share shall extend to all dividends payable thereon.

 

8.

Subject to these Articles and the Shareholders Agreement, the Company may sell, in such manner as the Directors think fit, any Shares on which the Company has a lien, but no sale shall be made unless some sum in respect of which the lien exists is presently payable nor until the expiration of fourteen (14) days after a notice in writing, stating and demanding payment of such part of the amount in respect of which the lien exists as is presently payable, has been given to the registered holder for the time being of the Share, or the Persons entitled thereto by reason of his death or bankruptcy.

 

9.

Subject to these Articles and the Shareholders Agreement, for giving effect to any such sale, the Directors may authorise some Person to transfer the Shares sold to the purchaser thereof. The purchaser shall be registered as the holder of the Shares comprised in any such transfer and he shall not be bound to see to the application of the purchase money, nor shall his title to the Shares be affected by any irregularity or invalidity in the proceedings in reference to the sale.

 

 

10.

The proceeds of the sale shall be received by the Company and applied in payment of such part of the amount in respect of which the lien exists as is presently payable, and the residue shall (subject to a like lien for sums not presently payable as existed upon the Shares prior to the sale) be paid to the Person entitled to the Shares at the date of the sale.

 

CALL ON SHARES

 

11.

The Directors may from time to time make calls upon the Members in respect of any moneys unpaid on their Shares provided that no call shall be payable earlier than one month from the last call; and each Member shall (subject to receiving at least fourteen (14) days, notice specifying the time or times of payment) pay to the Company at the time or times so specified the amount called on his Shares.

 

12.

The joint holders of a Share shall be jointly and severally liable to pay calls in respect thereof.

 

13.

If a sum called in respect of a Share is not paid before or on the day appointed for payment thereof, the Person from whom the sum is due shall pay interest upon the sum at the rate of six percent (6%) per annum from the day appointed for the payment thereof to the time of the actual payment, but the Directors shall be at liberty to waive payment of that interest wholly or in part.

 

14.

The provisions of these Articles as to the liability of joint holders and as to payment of interest shall apply in the case of non-payment of any sum which, by the terms of issue of a Share, becomes payable at a fixed time, whether on account of the amount of the Share, or by way of premium, as if the same had become payable by virtue of a call duly made and notified.

 

15.

The Directors may make arrangements on the issue of Shares for a difference between the holders in the amount of calls to be paid and in the times of payment.

 

16.

The Directors may, if they think fit, receive from any Member willing to advance the same all or any part of the moneys uncalled and unpaid upon any Shares held by him; and upon all or any of the moneys so advanced may (until the same would, but for such advance, become presently payable) pay interest at such rate (not exceeding without the sanction at the Company in general meeting six percent (6%) per annum) as may be agreed upon between the Member paying the sum in advance and the Directors.

 

FORFEITURE OF SHARES

 

17.

If a Member fails to pay any call or installment of a call on the day appointed for payment thereof, the Directors may, at any time thereafter during such time as any part of such call or installment remains unpaid, serve a notice on him requiring payment of so much of the call or installment as is unpaid, together with any interest which may have accrued.

 

 

18.

The notice shall name a further day (not earlier than the expiration of fourteen (14) days from the date of the notice) on or before which the payment required by the notice is to be made, and shall state that in the event of non-payment at or before the time appointed, the Shares in respect of which the call was made will be liable to be forfeited.

 

19.

If the requirements of any such notice as aforesaid are not complied with, any Share in respect of which the notice has been given may at any time thereafter, before the payment required by the notice has been made, be forfeited by a resolution of the Directors to that effect.

 

20.

A forfeited Share may be sold or otherwise disposed of on such terms and in such manner as the Directors think fit, and at any time before a sale or disposition, the forfeiture may be cancelled on such terms as the Directors think fit.

 

21.

A Person whose Shares have been forfeited shall cease to be a Member in respect of the forfeited Shares, but shall, notwithstanding, remain liable to pay to the Company all moneys which at the date of forfeiture were payable by him to the Company in respect of the Shares, but his liability shall cease if and when the Company receives payment in full of the amount due on the Shares.

 

22.

A statutory declaration in writing that the declarant is a Director of the Company, and that a Share in the Company has been duly forfeited on a date stated in the declaration, shall be conclusive evidence of the facts therein stated as against all Persons claiming to be entitled to the Share. Subject to the Shareholders Agreement, the Company may receive the consideration, if any, given for the Share on any sale or disposition thereof and may execute a transfer of the Share in favour of the Person to whom the Share is sold or disposed of and he shall thereupon be registered as the holder of the Share, and shall not be bound to see to the application of the purchase money, if any, nor shall his title to the Share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the Share.

 

23.

The provisions of these Articles as to forfeiture shall apply in the case of non-payment of any sum which, by the terms of issue of a Share, becomes payable at a fixed time, whether on account of the amount of the Share, or by way of premium, as if the same had been made payable by virtue of a call duly made and notified.

 

TRANSFER AND TRANSMISSION OF SHARES

 

24.

The instrument of transfer of any Share shall be executed by or on behalf of the transferor (but need not be executed by or on behalf of the transferee unless the Share has been issued nil paid), and the transferor shall be deemed to remain a holder of the Share until the name of the transferee is entered in the Register of Members in respect thereof.

 

 

25.

Shares shall be transferred in the following form, or in any usual or common form approved by the Directors:

 

I,____________ of ____________ in consideration of the sum of $____ paid to me by __________________ of ________________ (hereinafter called “the Transferee”) do hereby transfer to the Transferee the______ Share (or Shares) numbered __ in the Company called Lotus Technology Inc. , to hold the same unto the Transferee, subject to the several conditions on which I hold the same.

 

As witness our hands on the_______ day of __________.

 

_____________________________
Transferor

 

26.

The Shares and other Equity Securities of the Company are subject to transfer restrictions and other related provisions as set forth in the Shareholders Agreement. The Company will only register transfers of Shares or other Equity Securities that are made in accordance with the Shareholders Agreement. The Directors shall decline to register any transfer of Shares or other Equity Securities that is inconsistent with the Shareholders Agreement or applicable Laws. The Directors may take any action, including requesting the Company’s secretary to update the Register of Members of the Company, to reflect any transfer of Shares or other Equity Securities that is permitted or required to be effected under the Shareholders Agreement.

 

If the Directors refuse to register a transfer of Shares or other Equity Securities, they shall within ten (10) days after the date on which the transfer was lodged with the Company, send to the transferee notice of the refusal.

 

27.

The legal personal representative of a deceased sole holder of a Share shall be the only person recognized by the Company as having any title to the Share. In case of a Share registered in the names of two or more holders, the survivors or survivor, or the legal personal representatives of the deceased survivor, shall be the only Persons recognized by the Company as having any title to the Share.

 

28.

Any Person becoming entitled to a Share in consequence of the death or bankruptcy of a Member shall upon such evidence being produced as may from time to time be properly required by the Directors, have the right either to be registered as a Member in respect of the Share or, instead of being registered himself, subject to Article 26, to make such transfer of the Share as the deceased or bankrupt Person could have made (which shall be in compliance with the Shareholders Agreement and applicable Laws).

 

29.

A Person becoming entitled to a Share by reason of the death or bankruptcy of the holder shall be entitled to the same dividends and other advantages to which he would be entitled if he were the registered holder of the Share, except that he shall not, before being registered as a Member in respect of the Share, be entitled in respect of it to exercise any right conferred by membership in relation to meetings of the Company.

 

Reserved Matters

 

30.

In addition to such other limitations as may be provided in applicable Laws and the Memorandum and Articles, none of the Company, the HK Subsidiary, and the WFOE shall take any actions, or consummate or effect any matters as set forth on Part I of Schedule A attached hereto (the “Reserved Matters Relating to Geely and Etika”) unless with the prior written approval of all the Original Directors including directors appointed by Geely and Etika respectively, or with consent from both Geely and Etika if such matters should be approved by Shareholders.

 

 

31.

In addition to such other limitations as may be provided in applicable Laws and the Memorandum and Articles, none of the Company, the HK Subsidiary, and the WFOE shall take any actions, or consummate or effect any matters as set forth on Part II of Schedule A attached hereto (the “Reserved Matters Relating to NIO Capital”) unless with the prior written approval of the director appointed by NIO Capital, or consent from NIO Capital if such matters should be approved by Shareholders after the prior written approval of the director appointed by NIO Capital, as long as NIO Capital collectively holds at least five percent (5%) of Shares of the Company. For the avoidance of doubt, if NIO Capital do not hold more than five percent (5%) of Shares of the Company in total, the Reserved Matters Relating to NIO Capital shall not apply.

 

32.

In addition to such other limitations as may be provided in applicable Laws and the Memorandum and Articles, none of the Company, the HK Subsidiary, and the WFOE shall take any actions, or consummate or effect any matters as set forth on Part III of Schedule A attached hereto (the “Reserved Matters Relating to Majority Series A Investors”, together with Reserved Matters Relating to Geely and Etika, the Reserved Matters Relating to NIO Capital, collectively referred as “Reserved Matters”) unless with the prior written consent from Majority Series A Investors.

 

PREEMPTIVE RIGHT

 

33.

Pre-emptive Rights.

 

33.1

The Company can from time to time propose to issue, grant or sell any Equity Security to any investors (including but not limited to the Shareholders) for their subscription, provided always that prior to a Qualified IPO of the Company:

 

(a)

Subject to Article 33.1 (b) to (d) below, each Shareholder shall have pre-emptive right to subscribe for such Shareholder’s initial pro rata share of any new Equity Securities that the Company proposes to issue, grant or sell other than (i) any Equity Securities to be issued in pursuance to the ESOP; (ii) any Equity Securities to be issued in connection with any share split, share dividend or any subdivision of Ordinary Shares or other similar events; (iii) any Shares to be issued pursuant to Section 10 of the Shareholders Agreement; (iv) any Equity Securities to be issued in connection with Anti-dilution Adjustment, (v) any Equity Securities to be issued in connection with conversion of the Preferred Shares, (vi) any Equity Securities to be issued to the Big 4 Shareholders, and (vii) any Equity Securities to be issued in connection with a Trade Sale, acquisition, debt financing or similar transactions as duly approved in accordance with this Agreement and the Memorandum and Articles which the Company may, from time to time, propose to issue (the “New Securities”), at the same terms and conditions. For purpose of this Agreement, each Shareholder’s “initial pro rata share” shall be determined according to the aggregate number of all Shares held by such Shareholder on the date of the Issuance Notice in relation to the aggregate number of all Shares then outstanding on such date (calculated on a fully-diluted and as-converted basis). In the event the Company proposes to issue New Securities, it shall give the Shareholders at least twenty (20) Business Days prior written notice (“Issuance Notice”) of such intention, describing the substantial conditions and terms regarding the issuance of New Securities, including the total number of New Securities to be issued, and their price, shareholding percentage of the proposed subscriber (“Proposed Subscriber”) of the New Securities upon the purchase thereby of the New Securities. Each of the Shareholders shall have ten (10) Business Days (“Participation Period”) after receipt of the Issuance Notice to exercise its pre-emptive right under this Article 33 to purchase New Securities, for the price and upon the terms specified in the Issuance Notice, by giving written notice to the Company and stating therein the quantity of New Securities to be purchased in the exercise of such pre-emptive right. A Shareholder shall be deemed to have elected not to exercise its pre-emptive right under this Article 33.1 in the event such Shareholder fails to inform the Company during the Participation Period of its election of exercising its pre-emptive right.

 

 

(b)

If both Geely and Etika agree to purchase any New Securities at the relevant time pursuant to Article 33.1(a), Geely plus the beneficial interest of Geely held through the Founder Vehicle (collectively “Geely + LP BI”) shall only be entitled to purchase any New Securities up to the percentage of New Securities that Etika has similarly agreed to purchase. For the avoidance of doubt, in the event Etika decides not to exercise its pre-emptive rights under this Article, then Geely, the Founder Vehicle or Lotus Group is also not allowed to purchase the New Securities; in the event Etika decides to purchase New Securities, subject to Article 33.1(a), Geely + LP BI may at their sole discretion but in no event be obligated to purchase such number of New Securities up to the lower of (i) the number of New Securities Etika decides to purchase, and (ii) the number of New Securities Geely is entitled to purchase pursuant to Article 33.1(a).

 

(c)

Notwithstanding anything to the contrary herein, as a result of the purchase of any Equity Securities by the Shareholders or the Proposed Subscribers, the aggregate shareholding of Geely + LP BI and Etika (the “Aggregate Block”) must be maintained at a level which allows the Aggregate Block to be treated as a single largest shareholding block in the Company and the percentage shareholding of this Aggregate Block must be able to veto, approve or disapprove any of the Reserved Matters Relating to Geely and Etika and the Aggregate Block must still be entitled to nominate the majority of the Board in the Company;

 

(d)

Notwithstanding anything to the contrary herein, within the Aggregate Block, the shareholding split between Geely + LP BI and Etika shall be 50:50, except that when Etika wishes to purchase the New Securities and Geely decides not to;

 

(e)

Subject to Article 33.1 (a) to (d) above, if any Shareholder elects not to exercise or fully exercise its pre-emptive right under this Article 33.1, then such unpurchased New Securities (“Over-Allotment New Securities”) shall be made available to the Investors who have elected to purchase all of its initial pro rata share of the New Securities (the “Purchasing Investor”) for over-allotment. The Company shall deliver an over-allotment notice to such Purchasing Investor to inform it of the aggregate number of Over-Allotment New Securities that are available for over-allotment. Such Purchasing Investor shall have ten (10) Business Days after the receipt of such over-allotment notice to irrevocably elect to purchase all or a portion of the Over-Allotment New Securities that it is entitled to purchase on the same price as indicated on the Issuance Notice by notifying the Company in writing of the number of New Securities to be purchased. The Over-Allotment New Securities such Purchasing Investor is entitled to purchase shall not exceed its over-allotment pro rata share of the Over-Allotment New Securities that has not yet been allocated. For the purposes of determining the allocation of Over-Allotment New Securities that the Purchasing Investor will receive, such Purchasing Investor's “over-allotment pro rata share” shall be determined according to the aggregate number of all Shares held by such Purchasing Investor on the date of the Issuance Notice.

 

 

33.2

For the purpose of Article 33.1, the beneficial interest held by parties designated by Geely through the Founder Vehicle which is referred to as “LP BI” in the defined term of “Geely + LP BI” shall be computed based on the effective interest that Geely has in the Company derived by multiplying the percentage of interest directly held by Geely or by parties designated by Geely as limited partners in the Founder Vehicle and the percentage of issued and outstanding Shares of the Company legally and beneficially held by the Founder Vehicle. Geely warrants and undertakes that without the prior written consent of Etika, Geely’s interest represented by “LP BI” shall not exceed ten percent (10%) of the Company’s issued and outstanding Shares at all times.

 

33.3

For a period of six (6) months following the expiration of the Participation Period, the Company may issue any New Securities with respect to which any Shareholder’s pre-emptive rights or Purchasing Investor’s over-allotment rights were not exercised, to the Proposed Subscribers identified in the Issuance Notice and at a price and upon terms not more favorable than those specified in the Issuance Notice. In the event the Company has not issued such New Securities within such period, the Company shall not thereafter issue any New Securities, without first again complying with terms of Article 33.

 

ALTERATION OF CAPITAL

 

34.

Subject to Article 30, Article 31 and Article 32 and the Shareholders Agreement, the Company may from time to time:

 

(a)

by Ordinary Resolution increase the share capital by such sum, to be divided into Shares of such amount, as the resolution shall prescribe; and

 

(b)

by Special Resolution reduce its share capital or any capital redemption reserve fund.

 

35.

Subject to these Articles (including Article 30, Article 31 and Article 32), the Shareholders Agreement, and any direction that may be given by the Company in general meeting, all new Shares shall be at the disposal of the Directors in accordance with Article 6.

 

36.

The new Shares shall be subject to the same provisions with reference to the payment of calls, lien, transfer, transmission, forfeiture and otherwise as the Shares in the original share capital.

 

 

37.

Subject to Article 30, Article 31 and Article 32, the Company may by Ordinary Resolution:

 

(a)

consolidate and divide all or any of its Share capital into Shares of larger amount than its existing Shares;

 

(b)

sub-divide its existing Shares, or any of them, into Shares of smaller amount than is fixed by the Memorandum of Association of the Company, subject nevertheless to the provisions of Section 13 of the Statute; and

 

(c)

cancel any Shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any Person.

 

38.

Subject to these Articles and the provisions of the Statute and the Memorandum of Association of the Company and the Shareholders Agreement, the Company may purchase its own Shares, including any redeemable Shares, provided that, subject to these Articles and the Shareholders Agreement, such purchase shall be effected in such manner and upon such terms as the Directors or the Company by Ordinary Resolution may determine, and may make payment therefor or for any redemption of Shares in any manner authorised by the Statute, including out of capital.

 

GENERAL MEETINGS

 

39.

[Intentionally omitted.]

 

40.

The Board of Directors may, whenever they think fit, convene a general meeting. Subject to applicable Laws, the chairman shall preside over every general meeting. If at any time there are not sufficient Directors capable of acting to form a quorum, any Director or any one or more Members holding Shares which carry in aggregate not less than thirty percent (30%) of all votes attaching to all issued and outstanding Shares of the Company may convene a general meeting in the same manner as nearly as possible as that in which meetings may be convened by the Directors. The Directors shall, upon the requisition in writing of one or more Members holding Shares which carry in aggregate not less than thirty percent (30%) of all votes attaching to all issued and outstanding Shares of the Company as at the date of the requisition carries the right of voting at general meetings, convene a general meeting. Any such requisition shall express the object of the meeting proposed to be called, and shall be left at the Registered Office of the Company. If the Board of Directors does not proceed to convene a general meeting within twenty-one (21) days from the date of such requisition being left as aforesaid, the requisitionists or any or either of them or any other Member or Members holding Shares which carry in aggregate not less than thirty percent (30%) of all votes attaching to all issued and outstanding Shares of the Company, may convene a general meeting to be held at such time, subject to these Articles as to notice, as the Persons convening the meeting fix.

 

41.

Not less than seven (7) days’ notice (exclusive of the day on which the notice is served or deemed to be served, but inclusive of the day for which the notice is given) specifying the place, the day and the hour of meeting and, in the case of special business, the general nature of that business shall be given in manner hereinafter provided, or in such other manner (if any) as may be prescribed by the Company in general meeting, to such Persons as are entitled to vote or may otherwise be entitled under these Articles to receive such notices from the Company; but with the consent of all the Members entitled to receive notice of some particular meeting, that meeting may be convened by such shorter notice or without notice and in such manner as those Members may think fit.

 

 

42.

The accidental omission to give notice of a meeting to, or the non-receipt of a notice of a meeting by, any Member entitled to receive notice shall not invalidate the proceedings at any meeting.

 

43.

(a)

No business shall be transacted at any general meeting unless a quorum of Members is present at the time that the meeting proceeds to business; save as herein otherwise provided, one or more Members holding in the aggregate not less than the majority of the total issued Shares of the Company present in person or by proxy and entitled to vote shall be a quorum.

 

(b)

An Ordinary Resolution or a Special Resolution (subject to the provisions of the Statute) in writing signed by all the Members for the time being entitled to receive notice of and to attend and vote at general meetings, (or being corporations by their duly authorized representatives) including a resolution signed in counterpart by or on behalf of such Members or by way of signed electronic transmission, shall be as valid and effective as if the same had been passed at a general meeting of the Company duly convened and held.

 

44.

If within half an hour from the time appointed for the meeting a quorum is not present, it shall stand adjourned to the same day in the next week, at the same time and place, and if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting, the Members present shall be a quorum.

 

45.

The chairman of the Board of Directors shall preside as chairman at every general meeting of the Company.

 

46.

All questions submitted to a meeting shall be decided by an Ordinary Resolution except where a greater majority is required by these Articles (including but not limited to Article 30, Article 31 and Article 32), the Shareholders Agreement or by the Companies Act.

 

47.

The chairman may with the consent of any meeting at which a quorum is present (and shall if so directed by the meeting) adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. When a meeting is adjourned for ten (10) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Save as aforesaid it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meeting.

 

48.

At any general meeting a resolution put to the vote of the meeting shall be decided on a show of hands, unless a poll is (before or on the declaration of the result of the show of hands) demanded by one or more Members present in person or by a proxy who together hold not less than thirty percent (30%) of the issued Shares, and, unless a poll is so demanded, a declaration by the chairman that a resolution has, on a show of hands, been carried or carried unanimously, or by a particular majority, or lost and an entry to that effect in the minutes of the proceedings of the Company, shall be conclusive evidence of the fact, without proof of the number or proportion of the votes recorded in favor of, or against, that resolution.

 

 

49.

If a poll is duly demanded it shall be taken in such manner as the chairman directs, and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded.

 

50.

In the case of an equality of votes, whether on a show of hands or on a poll, the resolution shall fail and the chairman shall not be entitled to a second or casting vote.

 

51.

A poll demanded on the election of a chairman or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time as the chairman of the meeting directs.

 

VOTES OF MEMBERS

 

52.

On a show of hands or on a poll, every Member present in person or by proxy shall have such number of votes for every Ordinary Share of which he is the holder pursuant to the following: (i) each Ordinary Share issued and outstanding shall be entitled to one (1) vote; and (ii) each Preferred Share issued and outstanding shall be entitled to the number of votes equal to the number of Ordinary Shares into which such Preferred Share could be converted at the record date for determination of the Shareholders entitled to vote on such matters.

 

53.

In the case of joint holders, the vote of the senior who tenders a vote whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders; and for this purpose seniority shall be determined by the order in which the names stand in the Register of Members.

 

54.

A Member of unsound mind, or in respect of whom an order has been made by any court having jurisdiction in lunacy, may vote, whether on a show of hands or on a poll, by his committee or other Person in the nature of a committee appointed by that court, and any such committee or other Person may vote by proxy.

 

55.

No Member shall be entitled to vote at any general meeting or at any separate meeting of the holders of a class or series of Shares unless all calls or other sums presently payable by him in respect of Shares in the Company have been paid.

 

56.

On a poll votes may be given either personally or by proxy.

 

57.

The instrument appointing a proxy shall be in writing under the hand of the Member or, if the Member is a corporation, either under seal or under the hand of a director or officer or attorney duly authorised. A proxy need not be a Member of the Company.

 

58.

The instrument appointing a proxy shall be deposited at the Registered Office of the Company or at such other place as is specified for that purpose in the notice convening the meeting no later than the time for holding the meeting or adjourned meeting at which the Person named in the instrument proposes to vote. The chairman of the meeting may in his discretion accept an instrument of proxy sent by telex or telefax upon receipt of telex or telefax confirmation that the signed original thereof has been sent.

 

 

59.

An instrument appointing a proxy may be in the following form or any other form approved by the Directors:

 

[                                        ]

 

“I, ______________________________, of _______________________, hereby appoint ___________________ of _______________as my proxy, to vote for me and on my behalf at the general meeting of the Company to be held on the __________ day of __________________.

 

Signed this ________ day of _________________.

 

60.

The instrument appointing a proxy shall be deemed to confer authority to demand or join in demanding a poll.

 

CORPORATIONS ACTING BY REPRESENTATIVES AT MEETING

 

61.

Any corporation which is a Member of the Company may by resolution of its Directors or any committee of the Directors authorise such Person as it thinks fit to act as its representative at any meeting of the Company or of any class or series of Members of the Company, and the Person so authorised shall be entitled to exercise the same powers on behalf of the corporation which he represents as that corporation could exercise if it were an individual Member of the Company.

 

DIRECTORS AND OFFICERS

 

62.

The Board shall consist of no more than five (5) Directors:(i) the Founder Vehicle shall have the right to nominate, appoint, replace and/or remove, from time to time, two (2) Persons to the Board; (ii) Geely shall have the right to nominate, appoint, replace and/or remove, from time to time, one (1) Person to the Board; (iii) Etika shall have the right to nominate, appoint, replace and/or remove, from time to time, one (1) Person to the Board (directors nominated and appointed by the Founder Vehicle, Geely and Etika shall be collectively referred to as the “Original Directors”); and (iv) With respect to NIO Capital, upon and solely upon the Final Closing, NIO Capital shall have the right to jointly nominate, appoint, replace and/or remove, from time to time, one (1) Person to the Board, provided that, NIO Capital collectively continues to hold no less than five percent (5%) of the Shares of the Company. Such Directors shall be appointed upon such nominating or appointing Shareholder giving a written notice to the Company, and any such appointment shall be effective automatically and immediately upon delivery of such written notice to the Company without the need for any further action, approvals, or resolutions by or from the Directors or the Members. For purpose of determination of whether NIO Capital collectively holding no less than five percent (5%) of the Shares of the Company under Article 62, any reserved and/or issued Shares for the ESOP shall not be included as part of the Shares of the Company.

 

 

63.

The remuneration of the Directors shall from time to time be determined by the Company in general meeting. The Directors shall also be entitled to be paid their travelling, hotel and other expenses properly incurred by them in going to, attending and returning from meetings of the Directors, or any committee of the Directors, or general meetings of the Company, or otherwise in connection with the business of the Company, or to receive a fixed allowance in respect thereof as may be determined by the Directors from time to time, or a combination partly of one such method and partly the other.

 

64.

No shareholding qualification shall be required for Directors unless otherwise required by the Company by Ordinary Resolution.

 

65.

Any Director may in writing appoint another Person to be his alternate to act in his place at any meeting of the Directors at which he is unable to be present. Every such alternate shall be entitled to notice of meetings of the Directors and to attend and vote thereat as a Director when the Person appointing him is not personally present. A Director may at any time, in writing, revoke the appointment of an alternate appointed by him and such appointment shall be revoked automatically if the appointor of the alternate ceases to be a Director at any time. The remuneration of such alternate shall be payable out of the remuneration of the Director appointing him and the proportion thereof shall be agreed between them. If no alternate is appointed by the absent Director to attend a meeting of the Board, the absent Director shall be deemed to have waived his/her voting right at such meeting.

 

66.

The Directors may by resolution, appoint one (1) of their member to be chairman upon such terms as to duration of office, remuneration and otherwise as they may think fit. The Directors may also by resolution, appoint a Secretary as may from time to time be required upon such terms as to duration of office, remuneration and otherwise as they may think fit. Such Secretary needs not be Directors.

 

67.

In the event of the death, resignation, removal, or incapacity of any director nominated or appointed by any Shareholder pursuant to Article 62 to the Board, such Shareholder, and only such Shareholder who nominated or appointed such director shall be entitled to nominate or appoint the replacement for such director to the Board. Any director nominated or appointed by any applicable Shareholder pursuant to Article 62 to the Board may only be removed from office upon such nominating or appointing Shareholder giving a written notice to the Company, and any such removal shall be effective automatically and immediately upon delivery of such written notice to the Company without the need for any further action, approvals, or resolutions by or from the Directors or the Members.

 

POWERS AND DUTIES OF DIRECTORS

 

68.

The business of the Company shall be managed by the Directors, who may pay all expenses incurred in setting up and registering the Company and may exercise all such powers of the Company as are not, by the Statute or these Articles, required to be exercised by the Company in general meeting, subject, nevertheless, in each of the foregoing cases to any clause of these Articles (including Article 30, Article 31 and Article 32) and to the provisions of the Statute.

 

 

69.

Subject to these Articles (including Article 30, Article 31 and Article 32), the Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and uncalled capital or any part thereof, to issue debentures, debenture stock and other securities whenever money is borrowed or as security for any debt, liability or obligation of the Company or of any third party.

 

70.

(a)

Subject to these Articles (including Article 30, Article 31 and Article 32), the Directors may from time to time and at any time by power of attorney appoint any company, firm or Person or body of Persons, whether nominated directly or indirectly by the Directors, to be the attorney or attorneys of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors under these Articles) and for such period and subject to such conditions as they may think fit, and any such powers of attorney may contain such provisions for the protection and convenience of Persons dealing with any such attorney as the Directors may think fit and may also authorise any such attorney to delegate all or any of the powers, authorities and discretions vested in him.

 

(b)

Subject to these Articles (including Article 30, Article 31 and Article 32), the Directors may delegate any of the powers exercisable by them to a director appointed by the Founder Vehicle pursuant to Article 62 hereunder or any other Person or Persons acting individually or jointly as they may from time to time by resolution appoint upon such terms and conditions (including without limitation as to duration of office and remuneration) and with such restrictions as they may think fit, and may from time to time by resolution revoke, withdraw, alter or vary all or any such powers.

 

(c)

All cheques promissory notes, drafts, bills of exchange and other negotiable instruments, and all receipts for moneys paid to the Company shall be signed, drawn, accepted, endorsed, or otherwise executed, as the case may be, in such manner as the Directors shall from time to time by resolution determine.

 

71.

The Directors shall cause minutes to be prepared:

 

(a)

of all appointments of officers made by the Directors;

 

(b)

of the names of the Directors present at each meeting of the Directors and of any committee of the Directors;

 

(c)

of all resolutions and proceedings at all meetings of the Members of the Company and of the Directors and of committees of Directors; and the chairman of all such meetings or of any meeting confirming the minutes thereof shall sign the same.

 

Complete and correct meeting minutes and resolutions shall be prepared for each Board meeting and signed by the directors or proxies appointed by directors present at the meeting, the copy of such minutes and resolutions shall be delivered to each Director and each Shareholder within thirty (30) days after the close of each Board meeting, and such minutes and resolutions shall be filed and kept by the Company.

 

 

DISQUALIFICATION AND CHANGES OF DIRECTORS

 

72.

The office of Director shall be vacated if the Director:

 

(a)

becomes bankrupt or makes any arrangement or composition with his creditors generally; or

 

(b)

is found to be or becomes of unsound mind; or

 

(c)

resigns his office by notice in writing to the Company; or

 

(d)

is removed by the Member who appointed such Director pursuant to Article 62 and/or Article 73.

 

73.

In the event of the death, bankruptcy, resignation, removal or incapacity (including such scenario specified under Article 72) of any Director nominated or appointed by any applicable Shareholder pursuant to Article 62 to the Board, the Shareholder, and only such Shareholder who nominated or appointed such Director shall be entitled to nominate or appoint the replacement for such Director to the Board. Any Director nominated or appointed by any applicable Shareholder pursuant to Article 62 to the Board may only be removed from office upon such nominating or appointing Shareholder giving a written notice to the Company, and any such removal shall be effective automatically and immediately upon delivery of such written notice to the Company without the need for any further action, approvals, or resolutions by or from the Directors or the Members. No Director nominated or appointed by any Shareholder hereunder shall be removed from office unless such Shareholder consent to such removal.

 

74.

Each Member shall vote all voting Equity Securities of the Company owned by him or it in favor of the election of any director nominated to the Board pursuant to Article 62 and/or Article 73. Upon a motion or written notice to remove any Director from the Board in accordance with Article 62 and/or Article 73, each Member shall vote all voting Equity Securities of the Company owned thereby to effect removal of such Director from the Board.

 

75.

[Intentionally omitted.]

 

76.

[Intentionally omitted.]

 

PROCEEDINGS OF DIRECTORS

 

77.

Subject to these Articles, the Directors may meet together (either within or outside the Cayman Islands) for the dispatch of business, adjourn, and otherwise regulate their meetings and proceedings, as they think fit. Subject to these Articles, including Article 30, Article 31 and Article 32, questions arising at any meeting of the Directors or any action to be taken on a meeting of the Directors with a quorum present shall require the affirmative vote of a majority of the directors present at such meeting. In case of an equality of votes the resolution shall fail and the chairman of the meeting shall not have a second or casting vote.

 

 

78.

Subject to applicable Laws, the chairman shall convene and preside over every Board meeting. Subject to the provisions of these Articles and the Shareholders Agreement, the Directors may regulate their proceedings as they think fit, provided however that the Board meetings shall be held at least once every half year unless the Board otherwise approves (so long as such approval includes the approval of both the Director appointed by Geely and the Director appointed by Etika). Notwithstanding, subject to applicable Laws, the chairman will have the right to call for a Board meeting as he deems necessary or upon receipt of written request of any director. Unless otherwise agreed by all the directors, not less than seven (7) Business Days’ notice in writing of every meeting of the Board specifying the date, time and place of the meeting shall be given to each director at the address from time to time provided by him to the Company for such purpose and at the address of the Shareholders and each such notice shall be accompanied by an agenda specifying the matters to be raised and considered, the nature of the business to be transacted at that meeting and all relevant documents relating thereto. No decision shall be taken on any matter at a meeting of the Board unless notice of such matter shall have been given as aforesaid or waiver of such notice has been given in respect of such matter by all the directors present at the meeting.

 

79.

The quorum for a Board meeting shall be at least three (3) Directors, including at least one (1) Director from each of the Founder Vehicle, Geely and Etika. If such quorum is not present within thirty (30) minutes after the scheduled time to begin, then the meeting will be adjourned to a day falling 7 days from the date originally appointed for the meeting, at the same time and place (or other time and place as may be agreed from time to time). At the adjourned Board meeting, the quorum will be any three (3) Directors but if such quorum is not present within thirty (30) minutes of the time appointed, the meeting shall be dissolved.

 

80.

The continuing Directors may act notwithstanding any vacancy in their body, but, if and so long as their number is reduced below the number fixed by or pursuant to these Articles as the necessary quorum of Directors, the continuing Directors may act for the purpose of summoning a general meeting of the Company, but for no other purpose.

 

81.

Any Director or officer may act by himself or his firm in a professional capacity for the Company, and he or his firm shall be entitled to remuneration for professional services as if he were not a Director or officer provided that nothing herein contained shall authorise a Director or officer or his firm to act as Auditor of the Company.

 

82.

No Person shall be disqualified from the office of Director or alternate Director or prevented by such office from contracting with the Company, either as vendor, purchaser or otherwise, nor shall any such contract or any contract or transaction entered into by or on behalf of the Company in which any Director or alternate Director shall be in any way interested be or be liable to be avoided, nor shall any Director or alternate Director so contracting or being so interested be liable to account to the Company for any profit realised by any such contract or transaction by reason of such Director or alternate Director holding office or of the fiduciary relation thereby established. A Director (or his alternate Director in his absence) shall be at liberty to vote in respect of any contract or transaction in which he is so interested as aforesaid provided however that the nature of the interest of any Director or alternate Director in any such contract or transaction shall be disclosed by him or the alternate Director appointed by him at or prior to its consideration and any vote thereon and a general notice that a Director or alternate Director is a shareholder of any specified firm or company and/or is to be regarded as interested in any transaction with such firm or company shall be sufficient disclosure hereunder and after such general notice it shall not be necessary to give special notice relating to any particular transaction.

 

 

83.

The chairman shall be elected by the board of directors by a simple majority votes and determined the period for which he is to hold office.

 

84.

Subject to these Articles (including Article 30, Article 31 and Article 32 and Article 62), the Directors may delegate any of their powers to committees consisting of such member or members of their body as they think fit; any committee so formed shall, in the exercise of the powers so delegated, conform to any regulations that may be imposed on it by the Directors.

 

85.

A committee may elect a chairman of its meetings; if no such chairman is elected, or if at any meeting the chairman is not present within five (5) minutes after the time appointed for holding the same, the members present may choose one (1) of their number to be chairman of the meeting.

 

86.

A committee may meet and adjourn as it thinks proper. Questions arising at any meeting shall be determined by a majority of votes of the members present and in case of an equality of votes the chairman shall not have a second or casting vote.

 

87.

All acts done by any meeting of the Directors or of a committee of Directors, or by any Person acting as a Director shall, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such Director or Person acting as aforesaid, or that they or any of them were disqualified, be as valid as if every such Person had been duly appointed and was qualified to be a Director.

 

88.

A written resolution signed by all Directors then in office, including a resolution signed in counterpart by the Directors or by way of signed electronic transmission, shall be as valid and effectual as if it had been passed at a meeting of the Directors duly called and constituted. The written resolutions shall be delivered to all the Directors by mail and each Director shall, within ten (10) days after receipt of the draft resolution, indicate the date, whether or not approve and his/her signature on the same and return the same to the chairman of the Board. To the extent permitted by law, the Directors or his proxy may also meet by way of video conference, tele-conference or other electronic means whereby each Director or his proxy is capable of speaking to and hearing the other Directors or their proxy at the same time.

 

 

SEALS AND DEEDS

 

89.

(a)

If the Directors determine that the Company shall have a common Seal, the Directors shall provide for the safe custody of the common Seal and the common Seal of the Company shall not be affixed to any instrument except by the authority of a resolution of the Directors, and in the presence of a Director and of the Secretary or, in place of the Secretary, by such other Person as the Directors may appoint for the purpose; and that Director and the Secretary or other Person as aforesaid shall sign every instrument to which the common Seal of the Company is so affixed in their presence. Notwithstanding the provisions hereof, annual returns and notices filed under the Statute may be executed either as a deed in accordance with the Statute or by the common Seal being affixed thereto in either case without the authority of a resolution of the Directors by one Director or the Secretary.

 

(b)

The Company may maintain a facsimile of any common Seal in such countries or places as the Directors shall appoint and such facsimile Seal shall not be affixed to any instrument except by the authority of the Directors and in the presence of such Person or Persons as the Directors shall for this purpose appoint and such Person or Persons as aforesaid shall sign every instrument to which the facsimile Seal of the Company is so affixed in their presence and such affixing of the facsimile Seal and signing as aforesaid shall have the same meaning and effect as if the common Seal had been affixed in the presence of and the instrument signed by a Director and the Secretary or such other Person as the Directors may appoint for the purpose.

 

(c)

In accordance with the Statute, the Company may execute any deed or other instrument which would otherwise be required to be executed under Seal by the signature of such deed or instrument as a deed by two (2) Directors of the Company or where there is a Sole Director of the Company, by such Sole Director, or by a Director and the Secretary of the Company or, in place of the Secretary, by such other Person as the Directors may appoint or by any other Person or attorney on behalf of the Company appointed by a deed or other instrument executed as a deed by two (2) Directors of the Company, or a Sole Director or by a Director and the Secretary or such other Person as aforesaid.

 

DIVIDENDS AND RESERVE

 

90.

Subject to these Articles (including Article 30, Article 31 and Article 32), the Company may by Ordinary Resolution declare dividends, but no dividend shall exceed the amount recommended by the Directors.

 

91.

Subject to these Articles (including Article 30 and Article 31), the Directors may from time to time pay to the Members interim dividends.

 

92.

No dividend shall be paid otherwise than out of profits or out of monies otherwise available for dividend in accordance with the Statute. No profit shall be distributed unless the losses of the Company in the previous calendar year have been made up.

 

93.

Subject to the rights of Persons, if any, entitled to Shares with special rights as to dividends, all dividends on any class or series of Shares not fully paid shall be declared and paid according to the amounts paid on the Shares of that class or series, but if and so long as nothing is paid up on any of the Shares in the Company, dividends may be declared and paid according to the number of Shares. No amount paid on a Share in advance of calls shall, while carrying interest, be treated for the purposes of this article as paid on the Share.

 

 

94.

Subject to these Articles (including Article 30, Article 31 and Article 32), the Directors may, before recommending any dividend, set aside out of the profits of the Company such sums as they think proper as a reserve or reserves which shall, at the discretion of the Directors, be applicable for meeting contingencies, or for equalising dividends, or for any other purpose to which the profits of the Company may be properly applied, and pending such application may, at their like discretion, either be employed in the business of the Company or be invested in such investments as the Directors may from time to time think fit.

 

95.

If several Persons are registered as joint holders of any Share, any of them may give effectual receipts for any dividend or other monies payable on or in respect of the Share.

 

96.

Any dividend may be paid by cheque or warrant sent through the post to the registered address of the Member or Person entitled thereto or in the case of joint holders to any one of such joint holders at his registered address or to such Person at such address as the Member or Person entitled or such joint holders, as the case may be, may direct. Every such cheque or warrant shall be made payable to the order of the Person to whom it is sent or to the order of such other Person as the Member or Person entitled or such joint holders, as the case may be, may direct.

 

97.

Subject to these Articles (including Article 30, Article 31 and Article 32), the Directors may declare that any dividend is paid wholly or partly by the distribution of specific assets and in particular of paid-up shares, debentures or debenture stock of any other company or in any one or more of such ways, and the Directors shall give effect to such resolution, and where any difficulty arises with regard to such distribution, the Directors may settle the same as they, think expedient, and in particular may issue fractional certificates and fix the value for distribution of such specific assets or any part thereof and may determine that cash payments shall be made to any Members upon the footing of the value so fixed in order to adjust the rights of all parties, and may vest any such specific assets in trustees as may seem expedient to the Directors.

 

98.

No dividend shall bear interest against the Company.

 

CAPITALISATION OF PROFITS

 

99.

Subject to these Articles (including Article 30, Article 31 and Article 32), the Company may upon the recommendation of the Directors by Ordinary Resolution authorise the Directors to capitalise any sum standing to the credit of any of the Company’s reserve accounts (including share premium account and capital redemption reserve fund) or any sum standing to the credit of the profit and loss account or otherwise available for distribution and to appropriate such sums to Members in the proportions in which such sum would have been divisible amongst them had the same been a distribution of profits by way of dividend and to apply such sum on their behalf in paying up in full unissued Shares for allotment and distribution credited as fully paid up to and amongst them in the proportion aforesaid. In such event the Directors shall do all action and things required to give effect to such capitalisation, subject to these Articles (including Article 30, Article 31 and Article 32), with full power to the Directors to make such provision as they think fit for the case of Shares becoming distributable in fractions (including provision whereby the benefit of fractional entitlements accrue to the Company rather than to the Members concerned). Subject to these Articles (including Article 30, Article 31 and Article 32), the Directors may authorise any Person to enter on behalf of all the Members interested into an agreement with the Company providing for such capitalisation and matters incidental thereto and any agreement made under such authority shall be effective and binding on all concerned.

 

 

ACCOUNTS

 

100.

The books of account relating to the Company’s affairs shall be kept in such manner as may be determined from time to time by the Company by Ordinary Resolution or failing such determination by the Directors of the Company.

 

101.

Subject to these Articles (including Article 30, Article 31 and Article 32), the Company may by Ordinary Resolution from time to time determine or, failing such determination, the Directors may from time to time determine that Auditors shall be appointed and that the accounts relating to the Company’s affairs shall be audited in such manner as the Company by Ordinary Resolution or the Directors (as the case may be) shall determine provided that nothing contained in this Article shall require Auditors to be appointed or the accounts relating to the Company’s affairs to be audited.

 

WINDING UP

 

102.

Subject to these Articles, if the Company shall be wound up, the liquidator may, with the sanction of a Special Resolution of the Company and any other sanction required by the Statute, divide amongst the Members in specie or kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not) and may for such purpose set such value as he deems fair upon any property to be divided as aforesaid and may determine how such division shall be carried out as between the Members or different classes or series of Members. The liquidator may with the like sanction, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the contributors as the liquidator, with the like sanction, shall think fit, but so that no Member shall be compelled to accept any Shares or other securities upon which there is any liability. This Article is to be without prejudice to the rights of the holders of Shares issued upon special terms and conditions under these Articles.

 

103.

Upon occurrence of a Liquidation Event, all assets and funds of the Company legally available for distribution to the Shareholders (after payment of any Tax, liabilities, fees and other third-party obligations) (“Available Funds and Assets”) shall be distributed to the Shareholders as follows:

 

(a)

Liquidation Preference of Holders of Series A Preferred Shares. Prior and in preference to any distribution of any of the Available Funds and Assets to the other Shareholders (including the Big 4 Shareholders and holders of Series Pre-A Preferred Shares), (i) each holder of the Series A Preferred Shares (other than Jingkai Automobile Fund) shall be entitled to receive for each issued and outstanding Series A Preferred Share then held, an amount equal to (x) 100% of the applicable Base Price plus (y) interest accrued thereon at a simple interest rate of eight percent (8%) per annum during period from the Relevant Series A Issuance Date to the date of receipt by such holder of the Series A Preferred Shares of the full liquidation amount for such Series A Preferred Share (both days included), computed on the basis of a 365-day year and the actual number of days elapsed plus (z) any declared but unpaid dividends on such Series A Preferred Share (the “Other Series A Investor’s Preference Amount”); (ii) Jingkai Automobile Fund shall be entitled to receive for each issued and outstanding Series A Preferred Share then held, an amount equal to (w) 100% of Jingkai Automobile Fund’s Base Price plus (x) interest accrued thereon at a simple interest rate of eight percent (8%) per annum during period from the Relevant Series A Issuance Date applicable to Jingkai Automobile Fund to the date of receipt by Jingkai Automobile Fund of the full liquidation amount for such Series A Preferred Share (both days included), computed on the basis of a 365-day year and the actual number of days elapsed, plus (y) any declared but unpaid dividends on such Series A Preferred Share plus (z) interest accrued thereon at a simple interest rate of three percent (3%) per annum during period from November 5, 2021 to the Relevant Series A Issuance Date applicable to Jingkai Automobile Fund (both days included), computed on the basis of a 365-day year and the actual number of days elapsed (the “Jingkai Automobile Fund’s Preference Amount”, together with the Other Series A Investor’s Preference Amount, collectively, the “Series A Investor’s Preference Amount”). If the Available Funds and Assets are insufficient for the full payment of the Series A Investor’s Preference Amount to all Series A Investors, then then entire Available Funds and Assets shall be distributed ratably among the Series A Investors in proportion to the aggregate Series A Investor’s Preference Amount such Series A Investor is otherwise entitled to receive under this Article 103(a).

 

 

 

(b)

Liquidation Preference of Holders of Series Pre-A Preferred Shares. After distribution or payment in full of the Series A Investor’s Preference Amount pursuant to Article 103(a) above, and if there are any remaining Available Funds and Assets, each holder of Series Pre-A Preferred Shares shall be entitled to receive for each issued and outstanding Series Pre-A Preferred Share then held, an amount equal to (w) 100% of the applicable Base Price plus (x) interest accrued thereon at a simple interest rate of eight percent (8%) per annum during period from the Relevant Series Pre-A Issuance Date to the date of receipt by such holder of Series Pre-A Preferred Shares of the full liquidation amount for such Series Pre-A Preferred Share (both days included), computed on the basis of a 365-day year and the actual number of days elapsed; provided, however, that the portion relevant to NC Initial Investment Amount shall accrue the interest from the Disbursement Date, plus (y) any declared but unpaid dividends on such Series Pre-A Preferred Share (the “Series Pre-A Investor’s Preference Amount”). If the remaining Available Funds and Assets are insufficient for the full payment of the Series Pre-A Investor’s Preference Amount to all holders of Series Pre-A Preferred Shares after the distribution or payment pursuant to Article 103(a) above, then the remaining Available Funds and Assets shall be distributed ratably among the holders of Series Pre-A Preferred Shares in proportion to the aggregate Series Pre-A Investor’s Preference Amount such holder of Series Pre-A Preferred Shares is otherwise entitled to receive pursuant to this Article 103(b).

 

(c)

Big 4 Shareholders’ Liquidation Preference. After distribution or payment in full of the Series A Investor’s Preference Amount pursuant to Article 103(a) and Series Pre-A Investor’s Preference Amount pursuant to Article 103(b), any of Big 4 Shareholders shall be entitled to receive liquidation amount that equals to the applicable Big 4 Relevant Investment Amount (the “Big 4 Shareholders’ Preference Amount”).

 

 

(d)

Distribution among the holders of Series Pre-A and Big 4 Shareholders. After distribution or payment in full of the Series A Investor’s Preference Amount, Series Pre-A Investor’s Preference Amount and Big 4 Shareholders’ Preference Amount, the remaining Available Funds and Assets, if any, shall be distributed ratably among the holders of Series Pre-A and Big 4 Shareholders in proportion to the number of Shares held by them (with outstanding Series Pre-A Preferred Shares treated on an as-converted basis).

 

104.

[Intentionally Omitted.]

 

105.

[Intentionally Omitted.]

 

REDEMPTION AND REPURCHASE OF SHARES

 

106.

Subject to the Statute, the other provisions in these Articles and the Shareholders Agreement, the Company may issue Shares that are to be redeemed or are liable to be redeemed at the option of the Shareholder or the Company. The redemption of such Shares shall be effected in such manner as set forth in these Articles.

 

107.

Subject to the Statute and other provisions in these Articles, the Company may purchase its own Shares (including any redeemable Shares).

 

108.

The Company may make a payment in respect of the redemption or purchase of its own Shares in any manner permitted by the Statute, including out of capital.

 

109.	Redemption Right
109.1	Redemption Right

 

(a)

Within thirty (30) days after the earliest of (i) the fifth (5th) anniversary of the date of the Closing, if the Company has not consummated a Qualified IPO, (ii) the occurrence of a material breach by any of Founder Vehicle or the Group Companies in its performance of the Transaction Documents, which cannot be cured or has not been cured within ninety (90) days following delivery of a written notice by an Investor of such breach, or (iii) the occurrence of any dishonesty of Founder Vehicle, which results in Material Adverse Effect to the operation of the Group Companies taking as a whole and cannot be effectively remedied within twenty(20) Business Days, each Investor may, by delivering a notice of redemption to the Company (a “Redemption Notice”) requiring the Company to redeem, within sixty (60) days after the date of the Company’s receipt of the Redemption Notice, each issued and outstanding Shares held by such Investor at a price equal to the applicable Redemption Price (as defined below), payable in cash.

 

(b)

The redemption price for each issued and outstanding Series A Preferred Share held, shall be an amount equal to (w) the applicable Base Price plus (x) interest at a simple interest rate of eight percent (8%) per annum accrued on the applicable Base Price during the period from the Relevant Series A Issuance Date to the date the Company actually pays such Series A Redemption Price (as defined below), computed on the basis of a 365-day year and the actual number of days elapsed; minus (y) the amount of the dividends received by such Investor during the period when such Investor held such Shares; plus (z) all declared but unpaid dividends on such Series A Preferred Share through the date of receipt by the holder of the full redemption amount thereof (“Series A Redemption Price”).

 

 

(c)

The redemption price for each issued and outstanding Series Pre-A Preferred Share held, shall be an amount equal to (w) the applicable Base Price plus (x) interest at a simple interest rate of eight percent (8%) per annum accrued on the applicable Base Price during the period from the Relevant Series Pre-A Issuance Date to the date the Company actually pays such Series Pre-A Redemption Price (as defined below), computed on the basis of a 365-day year and the actual number of days elapsed; provided, however, that the portion relevant to NC Initial Investment Amount shall accrue the interest from the Disbursement Date; minus (y) the amount of the dividends received by such Investor during the period when such Investor held such Shares; plus (z) all declared but unpaid dividends on such Series Pre-A Preferred Share through the date of receipt by the holder of the full redemption amount thereof (“Series Pre-A Redemption Price”, together with Series A Redemption Price, collectively “Redemption Price”).

 

(d)

If the assets or funds of the Company which are legally available on the date that any Redemption Price under this Article 109.1 is due are insufficient to pay in full all Redemption Price, those assets or funds which are legally available shall nonetheless be paid and applied in the following preferential sequence: (i) firstly, to the extent permitted by applicable law to pay all Series A Redemption Price due on such date on the Series A Preferred Shares in proportion to the full amounts to which the holders to which such Series A Redemption Price are due would otherwise be respectively entitled thereon; (ii) secondly, following the full payment of the relevant Series A Redemption Price to the holders of Series A Preferred Shares pursuant to this Article 109.1, to the extent permitted by applicable law to pay all Series Pre-A Redemption Price due on such date on the Series Pre-A Preferred Shares in proportion to the full amounts to which the holders to which such Series Pre-A Redemption Price are due would otherwise be respectively entitled thereon.

 

NOTICES

 

110.

(a)

A notice may be given by the Company to any Member either personally or by sending it by post, electronic transmission (including telex, telefax and electronic mails) to him to his registered address, facsimile or e-mail address, or (if he has no registered address) to the address, if any, supplied by him to the Company for the giving of notices to him.

 

(b)

Where a notice is sent by post, service of the notice shall be deemed to be effected by properly addressing, prepaying, and posting a letter containing the notice (by airmail if the address is outside the Cayman Islands) and to have been effected, in the case of a notice of a meeting at the expiration of three (3) days after the time at which the letter would be delivered in the ordinary course of post.

 

 

(c)

Where a notice is sent by electronic transmission, service of the notice shall be deemed to be effected by properly addressing and sending such notice through the appropriate transmitting medium and to have been effected on the day the same is sent.

 

111.

If a Member has no registered address and has not supplied to the Company an address for the giving of notice to him, a notice addressed to him and advertised in a newspaper circulating in the Cayman Islands shall be deemed to be duly given to him at noon on the day following the day on which the newspaper is circulated and the advertisement appeared therein.

 

112.

A notice may be given by the Company to the joint holders of a Share by giving the notice to the joint holder named first in the Register of Members in respect of the Share.

 

113.

A notice may be given by the Company to the Person entitled to a Share in consequence of the death or bankruptcy of a Member by sending it through the post in a prepaid letter addressed to them by name, or by the title of representatives of the deceased, or trustee of the bankrupt, or by any like description, at the address, if any supplied for the purpose by the Persons claiming to be so entitled or (until such an address has been so supplied) by giving the notice in any manner in which the same might have been given if the death or bankruptcy had not occurred.

 

114.

Notice of every general meeting shall be given in the same manner hereinbefore authorised to:

 

(a)

every Member entitled to vote, except those Members entitled to vote who (having no registered address) have not supplied to the Company an address for the giving of notices to them; and

 

(b)

every Person entitled to a Share in consequence of the death or bankruptcy of a Member, who, but for his death or bankruptcy would be entitled to receive notice of the meeting.

 

No other Persons shall be entitled to receive notices of general meetings.

 

RECORD DATE

 

115.

The Directors may fix in advance a date as the record date for any determination of Members entitled to notice of or to vote at a meeting of the Members and, for the purpose of determining the Members entitled to receive payment of any dividend, the Directors may, at or within 90 days prior to the date of the declaration of such dividend, fix a subsequent date as the record date for such determination.

 

FINANCIAL YEAR

 

116.

Unless the Directors otherwise prescribe, the financial year of the Company shall end on 31st December in each year and, following the year of incorporation, shall begin on 1st January in each year.

 

 

AMENDMENT OF MEMORANDUM AND ARTICLES

 

117.

Subject to and insofar as permitted by the provisions of the Statute and these Articles (including Article 30, Article 31 and Article 32) and the Shareholders Agreement, the Company may from time to time by Special Resolution alter or amend its Memorandum of Association or these Articles in whole or in part provided however that no such amendment shall effect or affect the rights attaching to any class or series of shares without the consent or sanction provided for in Article 3 (b).

 

ORGANISATION EXPENSES

 

118.

The preliminary and organisation expenses incurred in forming the Company shall be paid by the Company and may be amortised in such manner and over such period of time and at such rate as the Directors shall determine and the amount so paid shall in the accounts of the Company, be charged against income and/or capital.

 

OFFICES OF THE COMPANY

 

119.

Subject to the provisions of the Statute and these Articles (including Article 30, Article 31 and Article 32), the Company may by resolution of the Directors change the location of its Registered Office. The Company, in addition to its Registered Office, may establish and maintain an office in the Cayman Islands or elsewhere as the Directors may from time to time determine.

 

INDEMNITY

 

120.

Every Director and officer for the time being of the Company or any trustee for the time being acting in relation to the affairs of the Company and their respective heirs, executors, administrators, personal representatives or successors or assigns shall, in the absence of willful neglect or default, be indemnified by the Company against, and it shall be the duty of the Directors out of the funds and other assets of the Company to pay, all costs, losses, damages and expenses, including travelling expenses, which any such Director, officer or trustee may incur or become liable in respect of by reason of any contract entered into, or act or thing done by him as such Director, officer or trustee or in any way in or about the execution of his duties and the amount for which such indemnity is provided shall immediately attach as a lien on the property of the Company and have priority as between the Members over all other claims. No such Director, officer or trustee shall be liable or answerable for the acts, receipts, neglects or defaults of any other Director, officer or trustee or for joining in any receipt or other act for conformity or for any loss or expense happening to the Company through the insufficiency or deficiency of any security in or upon which any of the monies of the Company shall be invested or for any loss of the monies of the Company which shall be invested or for any loss or damage arising from the bankruptcy, insolvency or tortious act of any Person with whom any monies, securities or effects shall be deposited, or for any other loss, damage or misfortune whatsoever which shall happen in or about the execution of the duties of his respective office or trust or in relation thereto unless the same happens through his own willful neglect or default.

 

 

CONVERSION OF PREFERRED SHARES

 

121.

Conversion Rights.

 

121.1

Conversion Ratio. The number of each Ordinary Share to which a Shareholder shall be entitled upon conversion of each Preferred Share shall be the quotient of the respective Base Price divided by the then effective conversion price (the “Conversion Price”), which shall initially be the Base Price, resulting in an initial conversion ratio for the Preferred Shares of 1:1.

121.2

Optional Conversion. Subject to applicable laws and the Memorandum and Articles, any Preferred Share may, at the option of the Preferred Holder thereof, be converted at any time after the date of issuance of such Preferred Share, without the payment of any additional consideration, into fully-paid and non-assessable Ordinary Shares based on the then-effective Conversion Price.

121.3

Automatic Conversion. Each Preferred Share shall automatically be converted, based on the then-effective Conversion Price, without the payment of any additional consideration, into fully-paid and non-assessable Ordinary Share upon the closing of a Qualified IPO of the Company. Any conversion pursuant to this Article 121.3 shall be referred to as an “Automatic Conversion”.

121.4

Conversion Mechanism. The conversion hereunder of any applicable Preferred Share shall be effective in the following manner:

 

(a)

Except as provided in Article 121.4(b) and Article 121.4(c) below, before any Investor shall be entitled to convert the Preferred Shares into Ordinary Shares, such Investor shall surrender the certificate or certificates therefor (if any) (or in lieu thereof shall deliver an affidavit of lost certificate and indemnity therefor) at the office of the Company or of any transfer agent for such share to be converted and shall give notice to the Company, of the election to convert the same and shall state therein the name or names in which the certificate or certificates for Ordinary Shares are to be issued. The Company shall, as soon as practicable thereafter, issue and deliver to such Investor of applicable Preferred Shares, a certificate or certificates for the number of Ordinary Shares to which such holder shall be entitled as aforesaid, cancel the surrendered Preferred Shares and update its Register of Members. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of such notice and such surrender of the Preferred Shares to be converted, the Register of Members shall on such date be updated accordingly to reflect the same, and the Person(s) entitled to receive the Ordinary Shares issuable upon such conversion shall be treated for all purposes as the record holder(s) of such Ordinary Shares as of such date.

 

(b)

If the conversion is in connection with an underwritten public offering of securities, the conversion will be conditioned upon the closing with the underwriter(s) of the sale of securities pursuant to such offering and the Person(s) entitled to receive the Ordinary Shares issuable upon such conversion shall not be deemed to have converted the applicable Preferred Shares until immediately prior to the closing of such sale of securities.

 

(c)

Upon the occurrence of an event of Automatic Conversion, all Investors to be automatically converted will be given at least ten (10) days’ prior written notice of the date fixed (which date shall in the case of an initial public offering of the Company be the latest practicable date immediately prior to the closing of the initial public offering of the Company) and the place designated for Automatic Conversion of all such Preferred Shares pursuant to this Article 121.4. On or before the date fixed for conversion, each Investor shall surrender the applicable certificate(s) (if any) (or in lieu thereof shall deliver an affidavit of lost certificate and indemnity therefor) for all such Shares to the Company at the place designated in such notice. On the date fixed for conversion, the Company shall promptly effect such conversion and update its Register of Members to reflect such conversion, and all rights with respect to such Preferred Shares so converted will terminate, with the exception of the right of a holder thereof to receive the Ordinary Shares issuable upon conversion of such Preferred Shares, and upon surrender of the certificate or certificates therefor (if any) (or in lieu thereof shall deliver an affidavit of lost certificate and indemnity therefor), to receive certificates (if applicable) for the number of Ordinary Shares into which such Preferred Shares have been converted. All certificates evidencing such Preferred Shares shall, from and after the date of conversion, be deemed to have been retired and cancelled and the Preferred Shares represented thereby converted into Ordinary Shares for all purposes, notwithstanding the failure of the holder(s) thereof to surrender such certificates on or prior to such date.

  

 

(d)

The Company may effect the conversion of the Preferred Shares in any manner available under applicable laws, including by re-designation or by redeeming or repurchasing the relevant Preferred Shares and applying the proceeds thereof towards payment for the new Ordinary Shares. For purposes of the repurchase or redemption, the Company may, subject to the Company being able to pay its debts in the ordinary course of business, make payments out of its capital.

 

(e)

No fractional Ordinary Shares shall be issued upon conversion of any Preferred Shares. In lieu of any fractional shares to which the Investor would otherwise be entitled, the Company shall at the discretion of the Board either (i) pay cash equal to such fraction multiplied by the fair market value for the applicable Preferred Share as determined and approved by the Board, or (ii) issue one (1) whole Ordinary Share for each fractional share to which the Investor would otherwise be entitled.

 

(f)

Upon conversion, all accrued but unpaid share dividends on the applicable Preferred Shares shall be paid in shares and all accrued but unpaid cash dividends on the applicable Preferred Shares shall be paid either in cash or by the issuance of a number of further Ordinary Shares equal to the value of such cash amount, at the option of the Investor of the applicable Preferred Shares.

 

121.5

Adjustment of the Conversion Price. The Conversion Price shall be adjusted and readjusted from time to time as provided below, provided that the Conversion Price shall not be less than par value of the Ordinary Shares into which the Preferred Shares are being converted:

 

(a)

Adjustment for Share Subdivisions and Consolidations. If the Company shall at any time, or from time to time, effect a subdivision of the outstanding Ordinary Shares, the Conversion Price in effect immediately prior to such subdivision with respect to each Preferred Share shall be proportionately decreased. Conversely, if the Company shall at any time, or from time to time, consolidate the outstanding Ordinary Shares into a smaller number of shares, the Conversion Price in effect immediately prior to such consolidation with respect to each Preferred Share shall be proportionately increased. Any adjustment under this paragraph shall become effective at the close of business on the date the subdivision or consolidation becomes effective.

 

(b)

Adjustment for Ordinary Share Dividends and Distributions. If the Company makes (or fixes a record date for the determination of Ordinary Holders entitled to receive) a dividend or other distribution to the Ordinary Holders payable in additional Ordinary Shares, the Conversion Price then in effect with respect to each Preferred Share shall be decreased as of the time of such issuance (or in the event such record date is fixed, as of the close of business on such record date) by multiplying such conversion price by a fraction (i) the numerator of which is the total number of Ordinary Shares issued and outstanding immediately prior to the time of such issuance or the close of business on such record date, and (ii) the denominator of which is the total number of Ordinary Shares issued and outstanding immediately prior to the time of such issuance or the close of business on such record date plus the number of Ordinary Shares issuable in payment of such dividend or distribution.

 

 

(c)

Adjustments for Reorganizations, Mergers, Consolidations, Reclassifications, Exchanges, Substitutions. If at any time, or from time to time, any capital reorganization or reclassification of the Ordinary Shares (other than as a result of a share dividend, subdivision, split or consolidation otherwise treated above) occurs or the Company is consolidated, merged or amalgamated with or into another Person (other than a consolidation, merger or amalgamation treated as a Liquidation Event in Article 103), then in any such event, provision shall be made so that, upon conversion of any Preferred Share thereafter, the holder thereof shall receive the kind and amount of shares and other securities and property which the holder of such shares would have received in connection with such event had the relevant Preferred Shares been converted into Ordinary Shares immediately prior to such event.

 

(d)

Adjustments to Conversion Price for Dilutive Issuance.

 

(i)

Special Definition. For purpose of this Article 121.5(d), the following definitions shall apply:

 

(1)

“Convertible Securities” shall mean any indebtedness, shares or other securities directly or indirectly convertible into or exchangeable for Ordinary Shares.

 

(2)

“Options” mean rights, options or warrants to subscribe for, purchase or otherwise acquire either Ordinary Shares or Convertible Securities.

 

(3)

“New Securities” shall mean any Equity Securities of the Company after the Relevant Series A Issuance Date, other than the following issuances : (i) Ordinary Shares, or any option to acquire any Ordinary Shares issued to employees, officers, consultants or Directors of the Company pursuant to the ESOP or any similar arrangements; (ii) Ordinary Shares issued upon conversion of the Preferred Shares; (iii) Equity Securities of the Company issued in connection with any share split, share dividend, combination, reorganization, recapitalization, reclassification or other similar transaction of the Company that does not change the relative shareholding percentage of the Shareholders; and (vi) Equity Securities of the Company issued in connection with a Qualified IPO of the Company in each case duly approved in accordance with the Shareholders Agreement and these Articles and (vii) Equity Securities of the Company issued pursuant to Section 10 of the Shareholders Agreement.

 

(ii)

No Adjustment of Conversion Price. No adjustment in the Conversion Price with respect to any Preferred Share shall be made in respect of the issuance of New Securities unless the consideration per Ordinary Share (determined pursuant to Article 121.5(d)(v) hereof) for the New Securities issued or deemed to be issued by the Company is less than such Conversion Price in effect immediately prior to such issuance. No adjustment or readjustment in the Conversion Price with respect to any Preferred Share otherwise required by this Article 121.5 shall affect any Ordinary Shares issued upon conversion of any applicable Preferred Share prior to such adjustment or readjustment, as the case may be.

 

 

(iii)

Deemed Issuance of New Securities. In the event the Company at any time or from time to time after the Relevant Series A Issuance Date shall issue any Options or Convertible Securities or shall fix a record date for the determination of holders of any series or class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of Ordinary Shares (as set forth in the instrument relating thereto without regard to any provisions contained therein for a subsequent adjustment of such number for anti-dilution adjustments) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities or the exercise of such Options, shall be deemed to be New Securities issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date, provided that in any such case in which New Securities are deemed to be issued:

 

(1)

no such Ordinary Shares shall be deemed to have been issued with respect to the Preferred Shares, unless the consideration per share of such Ordinary Share would be less than the Conversion Price in effect on the date of and immediately prior to such issuance, or such record date, as the case may be;

 

(2)

no further adjustment in the Conversion Price with respect to any Preferred Share shall be made upon the subsequent issue of Convertible Securities or Ordinary Shares upon the exercise of such Options or conversion or exchange of such Convertible Securities or upon the subsequent exercise of Options for Convertible Securities or Ordinary Shares;

 

(3)

if such Options or Convertible Securities by their terms provide, with the passage of time or otherwise, for any change in the consideration payable to the Company, or change in the number of Ordinary Shares issuable, upon the exercise, conversion or exchange thereof, the then effective Conversion Price with respect to any Preferred Share computed upon the original issue thereof (or upon the occurrence of a record date with respect thereto), and any subsequent adjustments based thereon, shall, upon any such change becoming effective, be recomputed to reflect such change insofar as it affects such Options or the rights of conversion or exchange under such Convertible Securities;

 

(4)

no readjustment pursuant to Article 121.5(d)(iii)(3) shall have the effect of increasing the then effective Conversion Price with respect to any Preferred Share to an amount which exceeds the Conversion Price with respect to such Preferred Share that would have been in effect had no adjustments in relation to the issuance of the Options or Convertible Securities as referenced in Article 121.5(d)(iii)(3) been made;

 

 

(5)

upon the expiration of any such Options or any rights of conversion or exchange under such Convertible Securities that have not been exercised, the then effective Conversion Price with respect to any Preferred Share computed upon the original issue thereof (or upon the occurrence of a record date with respect thereto) and any subsequent adjustments based thereon shall, upon such expiration, be recomputed as if:

  

(x)

in the case of Convertible Securities or Options for Ordinary Shares, the only New Securities issued were the Ordinary Shares, if any, actually issued upon the exercise of such Options or the conversion or exchange of such Convertible Securities and the consideration received therefor was the consideration actually received by the Company for the issue of such exercised Options plus the consideration actually received by the Company upon such exercise or for the issue of all such Convertible Securities that were actually converted or exchanged, plus the additional consideration, if any, actually received by the Company upon such conversion or exchange; and

 

(y)

in the case of Options for Convertible Securities, only the Convertible Securities, if any, actually issued upon the exercise thereof were issued at the time of issue of such Options, and the consideration received by the Company for the New Securities deemed to have been then issued was the consideration actually received by the Company for the issue of such exercised Options, plus the consideration deemed to have been received by the Company (determined pursuant to Article 121.5(d)(v)) upon the issue of the Convertible Securities with respect to which such Options were actually exercised.

 

(6)

if such record date shall have been fixed and such Options or Convertible Securities are not issued on the date fixed therefor, the adjustment previously made in the Conversion Price with respect to any Preferred Share which became effective on such record date shall be canceled as of the close of business on such record date, and thereafter the Conversion Price with respect to such Preferred Share shall be adjusted pursuant to this Article 121.5(d)(iii) as of the actual date of their issuance.

 

(iv)

Adjustment of the Conversion Price. In the event of an issuance of New Securities, at any time after the Relevant Series A Issuance Date, for a consideration per Share received by the Company (net of any selling concessions, discounts or commissions) less than the Conversion Price with respect to any Preferred Share in effect immediately prior to such issue, then and in such event, the Conversion Price with respect to such Preferred Share shall be reduced, concurrently with such issue, to a price (calculated to the nearest one-hundredth of a cent) determined in accordance with the following formula:

 

CP2 = CP1 * (A + B) / (A + C).

 

For purposes of the foregoing formula, the following definitions shall apply:

 

(1)

CP2 shall mean the Conversion Price with respect to such Preferred Share in effect immediately after such issue of New Securities;

 

 

(2)

CP1 shall mean the Conversion Price with respect to such Preferred Share in effect immediately prior to such issue of New Securities;

 

(3)

“A” shall mean the number of Ordinary Shares outstanding immediately prior to such issue of New Securities, treating for this purpose as outstanding all Ordinary Shares issuable upon conversion, exercise or exchange of all Equity Securities (including the Preferred Shares outstanding immediately prior to such issue of New Securities);

 

(4)

“B” shall mean the number of Ordinary Shares that would have been issued if such New Securities had been issued at a price per share equal to CP1 (determined by dividing the aggregate consideration received by the Company in respect of such issue by CP1); and

 

(5)

“C” shall mean the number of such New Securities issued or sold or deemed issued or sold in such transaction.

 

(v)

Determination of Consideration. For purposes of this Article 121.5(d), the consideration received by the Company for the issuance of any New Securities shall be computed as follows:

 

(1)

Cash and Property. Such consideration shall:

 

(x)

insofar as it consists of cash, be computed at the aggregate amount of cash received by the Company excluding amounts paid or payable for accrued interest or accrued dividends and excluding any discounts, commissions or placement fees payable by the Company to any underwriter or placement agent in connection with the issuance of any New Securities;

 

(y)

insofar as it consists of property other than cash, be computed at the fair market value thereof at the time of such issue, as determined and approved in good faith by the Board; provided, however, that no value shall be attributed to any services performed by any employee, officer or director of any Group Company;

 

(z)

in the event New Securities are issued together with other Shares or securities or other assets of the Company for consideration which covers both, be the proportion of such consideration so received which relates to such New Securities, computed as provided in clauses a) and b) above, as reasonably determined in good faith by the Board.

 

(2)

Options and Convertible Securities. The consideration per Ordinary Share received by the Company for New Securities deemed to have been issued pursuant to Article 121.5(d)(iii) hereof relating to Options and Convertible Securities, shall be determined by dividing (x) the total amount, if any, received or receivable by the Company as consideration for the issue of such Options or Convertible Securities (determined in the manner described in paragraph (1) above), plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Company upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities by (y) the maximum number of Ordinary Shares (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities.

 

 

TRANSFER BY WAY OF CONTINUATION

 

122.

The Company shall, subject to the provisions of the Statute and these Articles (including Article 30, Article 31 and Article 32) and, with the approval of a Special Resolution, have the power to register by way of continuation as a body corporate under the laws of any jurisdiction outside the Cayman Islands and the Directors may cause an application to be made to the Registrar of Companies to deregister the Company.

 

SEVERABILITY

 

123.

In case any provision of these Articles shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. If, however, any provision of these Articles shall be invalid, illegal, or unenforceable under any such applicable Law in any jurisdiction, it shall, as to such jurisdiction, be deemed modified to conform to the minimum requirements of such Law, or, if for any reason it is not deemed so modified, it shall be invalid, illegal, or unenforceable only to the extent of such invalidity, illegality, or limitation on enforceability without affecting the remaining provisions of these Articles, or the validity, legality, or enforceability of such provision in any other jurisdiction.

 

 

SCHEDULE A

 

LIST OF RESERVED MATTERS

 

Part I

 

(a)

any amendment or modification under the Constitutional Documents of any of the Company, the HK Subsidiary, and the WFOE other than any amendments made in relation to the following:

 

(i)          any change of the Company, the HK Subsidiary, and the WFOE’s name, registered address and scope of business (except for any Material Change as defined in paragraph (h) of this Part I of Schedule A);

 

(ii)         any change of the Company, the HK Subsidiary, and the WFOE’s capital structure for implementing the decisions being duly made by shareholders or the Board in accordance with this Agreement, including authorized capital of the Company, the HK Subsidiary, and the WFOE, the Shareholders and their respective shareholdings;

 

(iii)        any change of the Company’s capital structure due to the transfer of shares pursuant to the Section 5 of the Shareholders Agreement.

 

(b)

any future joint venture(s) by any of the Company, the HK Subsidiary, and the WFOE other than such joint venture entered into in the ordinary course of business of the Company, the HK Subsidiary, or the WFOE and with a party which is not related to a Shareholder or otherwise an Interested Person;

 

(c)

any increase or decrease in the authorized capital of the Company, the HK Subsidiary, or the WFOE, or any issue of any shares or new class of shares (being shares having rights which are in any way different from the rights of the Ordinary Shares in such entity as the date hereof) of the Company, the HK Subsidiary, or the WFOE other than such increase of authorized capital (including the subscription by any Proposed Subscriber) or such issuance of shares to Proposed Subscriber in compliance with the provisions of Article 33;

 

(d)

any grant or issue of any option, right, warrant or other security exercisable or convertible into, exchangeable for or redeemable with any shares in or assets of the Company, the HK Subsidiary, or the WFOE (the “Convertible Instruments”), including any variation of the rights attaching to such Convertible Instruments (if already issued with approval of the Parties) other than the ESOP.

 

(e)

any amendment or change of the rights, privileges, restrictions or obligations attaching to any class of shares in the Company, the HK Subsidiary, or the WFOE and any conversion of any shares of the Company, the HK Subsidiary, or the WFOE into any other class or type of shares carrying different rights, privileges, restrictions or obligations;

 

(f)

the entry into by the Company, the HK Subsidiary, or the WFOE of any guarantee or indemnity arising from any transaction or series of transactions which exceed in aggregate US$ five million ($5,000,000) where such transaction or series of transactions are not in the ordinary course of business. For the avoidance of doubt, the entry by the Company, the HK Subsidiary, and the WFOE of any guarantee or indemnity to support a loan or financing obtained from a bank or financial institution in the ordinary course of business of the Company, the HK Subsidiary, and the WFOE shall not be regarded as a Reserved Matter;

 

 

(g)

the entry into by the Company, the HK Subsidiary, or the WFOE of any agreement (including but not limited to any agreement in relation to borrowing, indebtedness, guarantee, indemnity or security) which requires recourse against the Shareholders, including any requirement for the Shareholders to provide any form of guarantee, indemnity or security to secure performance of any obligation under such agreement;

 

(h)

making any material change in the core business of the Company, the HK Subsidiary, the WFOE. In this regard, “Material Change” shall mean any entry by or introduction into the Company, the HK Subsidiary, or the WFOE of any non-automotive related business that affects or are expected to affect more than 5% of the annual revenue, profit after tax and/or net assets of Company;

 

(i)

selling the Company, the HK Subsidiary, or the WFOE’s major assets in whatsoever manner(including establishing, acquiring and/or disposing of any subsidiaries/joint ventures) which may directly or indirectly benefit a Party (whether or not in the form of monetary or pecuniary benefits or otherwise)more than the other Party or in such manner which allows one Party to reap benefits or gains exceeding the benefits reflective of their proportionate entitlement as shareholders in the Company;

 

(j)

winding-up, dissolution or liquidation of the Company, or the HK Subsidiary, and the WFOE;

 

(k)

assign or license any of the significant intellectual property rights of the Company, the HK Subsidiary, or the WFOE other than in the ordinary course of business;

 

(l)

any buy-back, purchase, redemption, exchange, reduction, cancellation or return in any way of any shares of the Company, the HK Subsidiary, or the WFOE; and

 

(m)

any amalgamation or reconstruction, or merger or consolidation with any company or other legal entities (howsoever effected) other than an amalgamation, reconstruction, merger or consolidation of the entities within the Group Companies.

 

Part II

 

(a)

the entry of any transaction between any entity within the Group Companies and any Interested Person, which exceeds RMB fifty million (¥50,000,000) (whether in a single transaction or series of related transactions) or in aggregate exceeds RMB 300 million (¥300,000,000) in any 12-month period;

 

(b)

any change, termination or suspension of the principal business of the Group Companies;

 

(c)

Unless otherwise agreed in the Agreement, any amendment or change of the rights, privileges, restrictions or obligations of NIO Capital or the rights, privileges, restrictions or obligations attaching to Series Pre-A Preferred Shares in the Company;

 

(d)

winding-up, spin-off, merger, dissolution or liquidation of the Company, or its material subsidiaries, where “material subsidiary” means the HK Subsidiary, the WFOE, Geely Auto Technical (Deutschland) GMBH, Geely Research & Development UK Limited, and any subsidiary holding 20% or more of the Group Companies’ assets;

 

 

(e)

any matters which would result in the ultimate Controlling Person of the Group Companies becoming a Person other than Founder Vehicle or Geely; and

 

(f)

adoption of or amendment to the ESOP or the ESOP granting scheme of the Group Companies (excluding with regard to the ESOP which has already been reserved by the Company and would not dilute shareholding of NIO Capital).

 

Part III

 

(a)

Unless otherwise agreed in the Agreement, any amendment or change of the rights, privileges, restrictions or obligations of the holders of Series A Preferred Shares or the rights, privileges, restrictions or obligations attaching to Series A Preferred Shares in the Company;

 

(b)

winding-up, spin-off, merger, dissolution or liquidation of the Company, or its material subsidiaries, where “material subsidiary” means the HK Subsidiary, the WFOE, Geely Auto Technical (Deutschland) GMBH, Geely Research & Development UK Limited, and any subsidiary holding 20% or more of the Group Companies’ assets.

 

 

 

Exhibit 3.3

 

COMPANIES ACT (AS AMENDED)

COMPANY LIMITED BY SHARES

AMENDED AND RESTATED

MEMORANDUM AND ARTICLES OF ASSOCIATION

OF

L CATTERTON ASIA ACQUISITION CORP

(adopted pursuant to Special Resolutions of the Company dated 3 March 2021)

 

 

COMPANIES ACT (AS AMENDED)

COMPANY LIMITED BY SHARES

AMENDED AND RESTATED

MEMORANDUM OF ASSOCIATION

OF

L CATTERTON ASIA ACQUISITION CORP

(adopted pursuant to Special Resolutions of the Company dated 3 March 2021)

 

1. The name of the Company is L Catterton Asia Acquisition Corp.

 

2. The registered office of the Company will be at the offices of Mourant Governance Services (Cayman) Limited, 94 Solaris Avenue, Camana Bay, PO Box 1348, Grand Cayman KY1-1108, Cayman Islands or at such other place as the Directors may from time to time decide.

 

3. The objects for which the Company is established are unrestricted and the Company shall have full power and authority to carry out any object not prohibited by law as provided by Section 7(4) of the Companies Act.

 

4. The Company shall have and be capable of exercising all the functions of a natural person of full capacity irrespective of any question of corporate benefit as provided by Section 27(2) of the Companies Act.

 

5. Nothing in the preceding paragraphs shall be deemed to permit the Company to carry on the business of a bank or trust company without being licensed in that behalf under the provisions of the Banks and Trust Companies Act (as amended) of the Cayman Islands, or to carry on insurance business from within the Cayman Islands or the business of an insurance manager, agent, sub-agent or broker without being licensed in that behalf under the provisions of the Insurance Act (as amended) of the Cayman Islands, or to carry on the business of company management without being licensed in that behalf under the provisions of the Companies Management Act (as amended) of the Cayman Islands.

 

 

6. The Company will not trade in the Cayman Islands with any person, firm or corporation except in furtherance of the business of the Company carried on outside the Cayman Islands, provided that nothing in this Memorandum of Association shall be construed as to prevent the Company from effecting and concluding contracts in the Cayman Islands, and exercising in the Cayman Islands all of its powers necessary for the carrying on of business outside the Cayman Islands.

 

7. The liability of each member is limited to the amount from time to time unpaid on such member’s shares.

 

8. The authorised share capital of the Company is US$22,200.00 divided into 200,000,000 Class A ordinary shares with a par value of US$0.0001 each, 20,000,000 Class B ordinary shares with a par value of US$0.0001 each and 2,000,000 preference shares with a par value of US$0.0001 each, with the power for the Company, insofar as is permitted by law and the Articles of Association of the Company, to redeem or purchase any of its shares and to increase or reduce the said share capital subject to the provisions of the Companies Act (as amended) and the Articles of Association and to issue any part of its capital, whether original, redeemed or increased with or without any preference, priority or special privilege or subject to any postponement of rights or to any conditions or restrictions and so that unless the conditions of issue shall otherwise expressly declare every issue of shares whether declared to be preference or otherwise shall be subject to the powers hereinbefore contained.

 

9. The Company may exercise the power contained in Section 206 of the Companies Act to deregister in the Cayman Islands and be registered by way of continuation in another jurisdiction.

 

10. Capitalised terms that are not defined in this Memorandum of Association bear the meanings given to those terms in the Articles of Association of the Company.

 

 

COMPANIES ACT (AS AMENDED)

COMPANY LIMITED BY SHARES

AMENDED AND RESTATED

ARTICLES OF ASSOCIATION

OF

L CATTERTON ASIA ACQUISITION CORP

(adopted pursuant to Special Resolutions of the Company dated 3 March 2021)

 

 

TABLE OF CONTENTS

 

ARTICLE		PAGE
TABLE A		1
DEFINITIONS AND INTERPRETATION		1
COMMENCEMENT OF BUSINESS		7
SITUATION OF REGISTERED OFFICE		7
SHARES		7
ISSUE OF SHARES		8
SHARE RIGHTS		9
CLASS B SHARE CONVERSION		9
REDEMPTION, PURCHASE AND SURRENDER OF SHARES		11
TREASURY SHARES		12
MODIFICATION OF RIGHTS		13
COMMISSION ON SALES OF SHARES		13
SHARE CERTIFICATES		13
TRANSFER AND TRANSMISSION OF SHARES		14
LIEN		15
CALL ON SHARES		16
FORFEITURE OF SHARES		17
ALTERATION OF SHARE CAPITAL		18
GENERAL MEETINGS		18
NOTICE OF GENERAL MEETINGS		19
PROCEEDINGS AT GENERAL MEETINGS		20
VOTES OF SHAREHOLDERS		22
CLEARING HOUSES		24
WRITTEN RESOLUTIONS OF SHAREHOLDERS		24
DIRECTORS		24
TRANSACTIONS WITH DIRECTORS		27
POWERS OF DIRECTORS		28
PROCEEDINGS OF DIRECTORS		29
WRITTEN RESOLUTIONS OF DIRECTORS		31
PRESUMPTION OF ASSENT		31
BORROWING POWERS		31
SECRETARY		31
THE SEAL		32
DIVIDENDS, DISTRIBUTIONS AND RESERVES		32
SHARE PREMIUM ACCOUNT		33
ACCOUNTS		33
AUDIT		34
NOTICES		34
WINDING UP AND FINAL DISTRIBUTION OF ASSETS		35
INDEMNITY		36
DISCLOSURE		36
BUSINESS COMBINATION		36
BUSINESS OPPORTUNITIES		39
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE		41
REGISTRATION BY WAY OF CONTINUATION		41
FINANCIAL YEAR		41
AMENDMENTS TO MEMORANDUM AND ARTICLES OF ASSOCIATION		42
CAYMAN ISLANDS DATA PROTECTION		42

 

 

COMPANIES ACT (AS AMENDED)

COMPANY LIMITED BY SHARES

AMENDED AND RESTATED

ARTICLES OF ASSOCIATION

OF

L CATTERTON ASIA ACQUISITION CORP

(adopted pursuant to Special Resolutions of the Company dated 3 March 2021)

 

TABLE A

 

1. In these Articles the regulations contained in Table A in the First Schedule to the Companies Act (as defined below) do not apply except insofar as they are repeated or contained in these Articles.

 

DEFINITIONS AND INTERPRETATION

 

2. In these Articles the following words and expressions shall have the meanings set out below save where the context otherwise requires:

 

 

Applicable Law	with respect to any person, all applicable provisions of all constitutions, treaties, statutes, laws (including the common law), codes, rules, regulations, ordinances or orders of any Governmental Authority, and any orders, decisions, injunctions, awards and decrees of or agreements with any Governmental Authority;
Articles	the Articles of Association of the Company as amended or amended and restated from time to time by Special Resolution;
Audit Committee	the audit committee of the Company formed pursuant to Article 180, or any successor audit committee;
Auditors	the auditor or auditors for the time being of the Company;
Business Combination	a merger, amalgamation, share exchange, asset acquisition, share purchase, reorganisation or similar business combination involving the Company, with one or more businesses or entities (the target business), which Business Combination: (a) must occur with one or more target businesses that together have an aggregate fair market value of at least 80 per cent of the assets held in the Trust Account (excluding the deferred underwriting commissions and taxes payable on the income earned on the Trust Account) at the time of the agreement to enter into such Business Combination; and (b) must not be effectuated solely with another blank cheque company or a similar company with nominal operations;
Class or Classes	any class or classes of Shares as may from time to time be issued by the Company;
Class A Share	a Class A ordinary share of a par value of US$0.0001 in the share capital of the Company;
Class B Share	a Class B ordinary share of a par value of US$0.0001 in the share capital of the Company;
Class B Share Conversion	the conversion of Class B Shares in accordance with these Articles;
Companies Act	the Companies Act (as amended) of the Cayman Islands;
Company	the above-named company;
Designated Stock Exchange	means any national securities exchange or automated system on which the Company’s securities are traded, including NASDAQ Global Market, The New York Stock Exchange or any over-the-counter (OTC) market;
Directors and Board of Directors	the Directors of the Company for the time being, or as the case may be, the Directors assembled as a board or as a committee of the board;

 

 

Dividend	any dividend (whether interim or final) resolved to be paid on Shares pursuant to the Articles;
Electronic Record	has the same meaning as in the Electronic Transactions Act;
Electronic Transactions Act	the Electronic Transactions Act (as amended) of the Cayman Islands;
Equity-linked Securities	any debt or equity securities that are convertible, exercisable or exchangeable for Class A Shares issued in a financing transaction in connection with a Business Combination, including but not limited to a private placement of equity or debt;
Founders	the Sponsor and all Shareholders immediately prior to the consummation of the IPO;
Governmental Authority	any nation or government or any province or state or any other political subdivision thereof, or any entity, authority or body exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any court, tribunal, government authority, agency, department, board, commission or instrumentality or any political subdivision thereof, any court, tribunal or arbitrator, and any self-regulatory organisation;
Initial Conversion Ratio	has the meaning ascribed to such term in Article 25;
Investor Group	the Sponsor and its affiliates, successors and assigns;
Investor Group Related Person	has the meaning given to it in Article 209;
IPO	the Company’s initial public offering of securities;
IPO Redemption	has the meaning given to it in Article 199;
Memorandum	the Memorandum of Association of the Company, as amended or amended and restated from time to time by Special Resolution;
Ordinary Resolution	a resolution passed by a simple majority of the votes of such Shareholders as, being entitled to do so, vote in person or, where proxies are allowed, by proxy, at a general meeting, and includes a unanimous written resolution;

 

 

Over-Allotment Option	means the option of the Underwriter to purchase up to an additional 15 per cent of the units sold in the IPO at a price equal to US$10.00 per unit, less underwriting discounts and commissions;
paid up	paid up as to the par value and any premium payable in respect of the issue of any Shares and includes credited as paid up;
person	any natural person, firm, company, joint venture, partnership, corporation, association or other entity (whether or not having separate legal personality) or any of them as the context so requires;
Preference Share	a preference share of a par value of US$0.0001 in the share capital of the Company;
Public Share	a Class A Share issued as part of the units issued in the IPO;
Redemption Price	has the meaning given to it in Article 199;
Register of Members	the register of Shareholders to be kept pursuant to these Articles;
Registered Office	the registered office of the Company for the time being;
Seal	the common seal of the Company including any duplicate seal;
SEC	the United States Securities and Exchange Commission;
Secretary	any person appointed by the Directors to perform any of the duties of the secretary of the Company, including a joint, assistant or deputy secretary;
Series	a series of a Class as may from time to time be issued by the Company;
Share	means a Class A Share, a Class B Share or a Preference Share and includes a fraction of a share in the Company;
Shareholder	any person registered in the Register of Members as the holder of Shares of the Company and, where two or more persons are so registered as the joint holders of such Shares, the person whose name stands first in the Register of Members as one of such joint holders;

 

 

Share Premium Account	the share premium account established in accordance with these Articles and the Companies Act;
signed	includes an electronic signature and a signature or representation of a signature affixed by mechanical means;
Special Resolution	has the same meaning as in the Companies Act, being a resolution:   (a) passed by a majority of not less than two-thirds (or, (i) prior to the consummation of a Business Combination only, with respect to amending Article 201(b) 100 per cent of the votes cast at a meeting of the Shareholders and with respect to amending Article 130, a majority of not less than two-thirds of the votes cast at a meeting of the Shareholders including a simple majority of the holders of Class B Shares (and if the Shareholders vote in favour of such act but the approval of a simple majority of the holders of Class B Shares has not yet been obtained, the holders of a simple majority of Class B Shares shall have, in such vote, voting rights equal to the aggregate voting power of all the Shareholders of the Company who voted in favour of the resolution plus one)) of such Shareholders as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of the Company of which notice specifying the intention to propose the resolution as a special resolution has been duly given and where a poll is taken regard shall be had in computing a majority to the number of votes to which each Shareholder is entitled; or   (b) approved in writing by all of the Shareholders entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Shareholders and the effective date of the special resolution so adopted shall be the date on which the instrument or the last of such instruments, if more than one, is executed;
Sponsor	LCA Acquisition Sponsor, LP, a Cayman Islands exempted limited partnership;
Subscriber	the subscriber to the Memorandum;

 

 

Treasury Shares	Shares that were previously issued but were purchased, redeemed, surrendered or otherwise acquired by the Company and not cancelled;
Trust Account	the trust account established by the Company upon the consummation of its IPO and into which a certain amount of the net proceeds of the IPO, together with the proceeds of the private placement of the warrants simultaneously with the closing date of the IPO, will be deposited;
Underwriter	an underwriter of the IPO from time to time and any successor underwriter; and
US Exchange Act	the United States Securities Exchange Act of 1934, as amended, or any similar U.S. federal statute and the rules and regulations of the SEC thereunder, all as the same shall be in effect at the time.

 

3. In these Articles, unless there be something in the subject or context inconsistent with such construction:

 

(a) words importing the singular number shall include the plural number and vice versa;

 

(b) words importing the masculine gender only shall include the feminine gender;

 

(c) words importing persons only shall include companies, partnerships, trusts or associations or bodies of persons, whether corporate or not;

 

(d) the word “may” shall be construed as permissive and the word “shall” shall be construed as imperative;

 

(e) the words “year” shall mean calendar year, “quarter” shall mean calendar quarter and “month” shall mean calendar month;

 

(f) reference to “dollar” or “$”is reference to the legal currency of the United States of America;

 

(g) references to enactments shall include reference to any modification or re-enactments thereof for the time being in force;

 

(h) any meeting (whether of the Directors, a committee appointed by the Board of Directors or the Shareholders or any class of Shareholders) includes any adjournment of that meeting;

 

 

(i) in these Articles, Sections 8 and 19 of the Electronic Transactions Act shall not apply; and

 

(j) “written” and “in writing” include all modes of representing or reproducing words in visible form, including in the form of an Electronic Record.

 

4. Subject to the last two preceding Articles, any words defined in the Companies Act shall, if not inconsistent with the subject or context, bear the same meaning in these Articles.

 

5. The table of contents to and the headings in these Articles are for convenience of reference only and are to be ignored in construing these Articles.

 

COMMENCEMENT OF BUSINESS

 

6. The business of the Company may be commenced as soon after incorporation as the Board of Directors shall see fit.

 

SITUATION OF REGISTERED OFFICE

 

7. The Registered Office shall be at such address in the Cayman Islands as the Directors shall from time to time determine. The Company, in addition to the Registered Office, may establish and maintain such other offices and places of business and agencies in such places as the Directors may from time to time determine.

 

SHARES

 

8. The Directors may impose such restrictions as they think necessary on the offer and sale of any Shares.

 

9. Subject as herein provided, all Shares for the time being unissued shall be under the control of the Directors who may issue, allot and dispose of or grant options over the same to such persons, on such terms and in such manner as they may think fit.

 

10. Subject to the provisions of the Companies Act, and without prejudice to any rights previously conferred on the holders of existing Shares, any share or fraction of a share in the Company’s share capital may be issued with such preferred, deferred, other special rights, or restrictions, whether in regard to dividend, voting, return of share capital or otherwise, as the Board of Directors may from time to time by resolution determine, and any share may be issued by the Directors on the terms that it is, or at the option of the Directors is liable, to be redeemed or purchased by the Company whether out of capital in whole or in part or otherwise.

 

11. The Directors may in their absolute discretion refuse to accept any application for Shares and may accept any application in whole or in part.

 

12. The Company may on any issue of Shares deduct any sales charge or subscription fee from the amount subscribed for the Shares.

 

 

13. No person shall be recognised by the Company as holding any Share upon any trust, and the Company shall not be bound by or recognise (even when having notice thereof) any equitable, contingent, future or partial interest in any Share, or (except only as by these Articles otherwise provided or as by law required) any other right in respect of any Share except an absolute right thereto in the registered holder.

 

14. The Directors shall keep or cause to be kept a Register of Members as required by the Companies Act at such place or places as the Directors may from time to time determine, and in the absence of any such determination, the Register of Members shall be kept at the Registered Office.

 

15. The Directors in each year shall prepare or cause to be prepared an annual return and declaration setting forth the particulars required by the Companies Act in respect of exempted companies and deliver a copy thereof to the Registrar of Companies in the Cayman Islands.

 

16. The Company shall not issue Shares to bearer.

 

ISSUE OF SHARES

 

17. Subject to the provisions, if any, in the Memorandum (and to any direction that may be given by the Company in general meeting) and, where applicable, the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law, without prejudice to any rights attached to any existing Shares, the Directors may allot, issue, grant options over or otherwise dispose of Shares (including fractions of a Share) with or without preferred, deferred or other rights or restrictions, whether in regard to dividend, voting, return of capital or otherwise and to such persons, at such times and on such other terms as they think proper, and may also (subject to the Statute and the Articles) vary such rights, and for such purposes the Directors may reserve an appropriate number of Shares for the time being unissued; save that the Directors shall not allot, issue, grant options over or otherwise dispose of Shares (including fractions of a Share) to the extent that it may affect the ability of the Company to carry out a Class B Share Conversion as set out in the Articles.

 

18. The Company may issue rights, options, warrants or convertible securities or securities of a similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any class of Shares or other securities in the Company, upon such terms as the Directors may from time to time determine, and for such purposes the Directors may reserve an appropriate number of Shares for the time being unissued.

 

19. The Company may issue units of securities in the Company, which may be comprised of whole or fractional Shares, rights, options, warrants or convertible securities or securities of similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any class of Shares or other securities in the Company, upon such terms as the Directors may from time to time determine. The securities comprising any such units which are issued pursuant to the IPO can only be traded separately from one another on the 52nd day following the date of the prospectus relating to the IPO unless the Underwriter determines that an earlier date is acceptable, subject to the Company having filed a current report on Form 8-K with the SEC and a press release announcing when such separate trading will begin. Prior to such date, the units can be traded, but the securities comprising such units cannot be traded separately from one another.

 

 

20. Subject to Article 45, the Directors, or the Shareholders by Ordinary Resolution, may authorise the division of Shares into any number of Classes and sub-classes and Series and sub-series and the different Classes and sub-classes and Series and sub- series shall be authorised, established and designated (or re-designated as the case may be) and the variations in the relative rights (including, without limitation, voting, dividend and redemption rights), restrictions, preferences, privileges and payment obligations as between the different Classes and Series (if any) may be fixed and determined by the Directors or the Shareholders by Ordinary Resolution.

 

21. The Directors may issue fractions of a Share, up to three decimal places, and, if so issued, a fraction of a Share shall be subject to and carry the corresponding fraction of liabilities (whether with respect to nominal or par value, premium, calls or otherwise howsoever), limitations, preferences, privileges, qualifications, restrictions, rights (including without prejudice to the foregoing generality, voting and participation rights) and other attributes of a Share. If more than one fraction of a Share is issued to or acquired by the same Shareholder, such fractions shall be accumulated.

 

22. The premium arising on all issues of Shares shall be held in a Share Premium Account established in accordance with these Articles.

 

23. Payment for Shares shall be made at such time and place and to such person on behalf of the Company as the Directors may from time to time determine. Payment for any Shares shall be made in such currency as the Directors may determine from time to time, provided that the Directors shall have the discretion to accept payment in any other currency or in kind or a combination of cash and in kind.

 

SHARE RIGHTS

 

24. With the exception that the holder of a Class B Share shall have the Conversion Rights referred to in Article 25, the Director appointment and removal rights referred to in Article 130 and except as otherwise specified in the Articles or required by law, the rights attaching to all Class A Shares and Class B Shares shall rank pari passu in all respects, and the Class A Shares and Class B Shares shall vote together as a single class on all matters.

 

CLASS B SHARE CONVERSION

 

25. Class B Shares shall automatically convert into Class A Shares on a one-for-one basis (the Initial Conversion Ratio): (a) at any time and from time to time at the option of the holder thereof; and (b) automatically on the day of the closing of the initial Business Combination.

 

 

26. Notwithstanding the Initial Conversion Ratio, in the case that additional Class A Shares or any other Equity-linked Securities are issued or deemed issued in excess of the amounts offered in the IPO and related to the closing of the initial Business Combination, all Class B Shares in issue shall automatically convert into Class A Shares at the time of the closing of the initial Business Combination and the ratio for which the Class B Shares shall convert into Class A Shares will be adjusted so that the number of Class A Shares issuable upon conversion of all Class B Shares will equal, in the aggregate, 20 per cent of the sum of: (a) all Class A Shares and Class B Shares in issue upon completion of the IPO plus (b) all Class A Shares issued, or deemed issued or issuable upon conversion or exercise of any Equity-linked Securities or rights issued or deemed issued by the Company in connection with or in relation to the consummation of the initial Business Combination, excluding (x) any Class A Shares or Equity-linked Securities exercisable for or convertible into Class A Shares issued, or deemed issued, or to be issued, to any seller in the initial Business Combination and (y) any private placement warrants issued to the Sponsor, its affiliates or any Director or officer of the Company upon conversion of working capital loans made to the Company.

 

27. Notwithstanding anything to the contrary contained herein, the foregoing adjustment to the Initial Conversion Ratio may be waived as to any particular issuance or deemed issuance of additional Class A Shares or Equity-linked Securities by the written consent or agreement of holders of a majority of the Class B Shares then in issue consenting or agreeing separately as a separate class in the manner provided in Article 45.

 

28. The foregoing conversion ratio shall also be adjusted to account for any subdivision (by share split, subdivision, exchange, capitalisation, rights issue, reclassification, recapitalisation or otherwise) or combination (by reverse share split, share consolidation, exchange, reclassification, recapitalisation or otherwise) or similar reclassification or recapitalisation of the Class A Shares in issue into a greater or lesser number of shares occurring after the original filing of the Articles without a proportionate and corresponding subdivision, combination or similar reclassification or recapitalisation of the Class B Shares in issue.

 

29. Each Class B Share shall convert into its pro rata number of Class A Shares pursuant to this Article. The pro rata share for each holder of Class B Shares will be determined as follows: each Class B Share shall convert into such number of Class A Shares as is equal to the product of 1 multiplied by a fraction, the numerator of which shall be the total number of Class A Shares into which all of the Class B Shares in issue shall be converted pursuant to this Article and the denominator of which shall be the total number of Class B Shares in issue at the time of conversion.

 

30. References in this Article to converted, conversion or exchange shall mean the compulsory redemption without notice of Class B Shares of any Shareholder and, on behalf of such Shareholders, automatic application of such redemption proceeds in paying for such new Class A Shares into which the Class B Shares have been converted or exchanged at a price per Class B Share necessary to give effect to a conversion or exchange calculated on the basis that the Class A Shares to be issued as part of the conversion or exchange will be issued at par. The Class A Shares to be issued on an exchange or conversion shall be registered in the name of such Shareholder or in such name as the Shareholder may direct.

 

 

31. Notwithstanding anything to the contrary in this Article, in no event may any Class B Share convert into Class A Shares at a ratio that is less than one-for-one.

 

REDEMPTION, PURCHASE AND SURRENDER OF SHARES

 

32. Subject to the provisions of the Companies Act and the rules of the Designated Stock Exchange, the Company may issue Shares that are to be redeemed or are liable to be redeemed at the option of the Shareholder or the Company. The redemption of such Shares shall be effected in such manner as the Company may, by Special Resolution, determine before the issue of the Shares.

 

33. Subject to the provisions of the Companies Act and the rules of the Designated Stock Exchange, the Company may purchase its own Shares (including any redeemable Shares) provided that the Shareholders shall have approved the manner of purchase by Ordinary Resolution.

 

34. Subject to the provisions of the Companies Act and the rules of the Designated Stock Exchange, the Company may accept the surrender for no consideration of any fully paid Share (including any redeemable Share) on such terms and in such manner as the Directors may determine.

 

35. The Company may make a payment in respect of the redemption or purchase of its own Shares in any manner permitted by the Companies Act and the rules of the Designated Stock Exchange, including out of capital.

 

36. With respect to redeeming or repurchasing the Shares:

 

(a) Shareholders who hold Public Shares are entitled to request the redemption of such Shares in the circumstances described in these Articles;

 

(b) Shares held by the Founders shall be surrendered by the Founders on a pro rata basis for no consideration to the extent that the Over-Allotment Option is not exercised in full so that the Founders will own 20 per cent of the Company’s issued Shares after the IPO (exclusive of any securities purchased in a private placement simultaneously with the IPO); and

 

(c) Public Shares shall be repurchased by way of tender offer in the circumstances set out in these Articles.

 

37. The redemptions and repurchases of Shares in the circumstances described in Article 36 above shall not require further approval of the Members.

 

38. Any Share in respect of which notice of redemption has been given shall not be entitled to participate in the profits of the Company in respect of the period after the date specified as the date of redemption in the notice of redemption.

 

 

39. The redemption, purchase or surrender of any Share shall not be deemed to give rise to the redemption, purchase or surrender of any other Share.

 

40. The Directors may when making payments in respect of redemption or purchase of Shares, if authorised by the terms of issue of the Shares being redeemed or purchased or with the agreement of the holder of such Shares, make such payment either in cash or in specie including, without limitation, interests in a special purpose vehicle holding assets of the Company or holding entitlement to the proceeds of assets held by the Company or in a liquidating structure.

 

TREASURY SHARES

 

41. Shares that the Company purchases, redeems or acquires (by way of surrender or otherwise) may, at the option of the Company, be cancelled immediately or held as Treasury Shares in accordance with the Companies Act. In the event that the Directors do not specify that the relevant Shares are to be held as Treasury Shares, such Shares shall be cancelled.

 

42. No dividend may be declared or paid, and no other distribution (whether in cash or otherwise) of the Company’s assets (including any distribution of assets to members on a winding up) may be declared or paid in respect of a Treasury Share.

 

43. The Company shall be entered in the Register of Members as the holder of the Treasury Shares provided that:

 

(a) the Company shall not be treated as a member for any purpose and shall not exercise any right in respect of the Treasury Shares, and any purported exercise of such a right shall be void;

 

(b) a Treasury Share shall not be voted, directly or indirectly, at any meeting of the Company and shall not be counted in determining the total number of issued shares at any given time, whether for the purposes of these Articles or the Companies Act, save that an allotment of Shares as fully paid bonus shares in respect of a Treasury Share is permitted and Shares allotted as fully paid bonus shares in respect of a treasury share shall be treated as Treasury Shares.

 

44. Treasury Shares may be disposed of by the Company on such terms and conditions as determined by the Directors.

 

 

MODIFICATION OF RIGHTS

 

45. If at any time the share capital of the Company is divided into different classes of Shares, the rights attached to any class (unless otherwise provided by the terms of issue of the Shares of that class) may, whether or not the Company is being wound up, be varied with the consent in writing of the holders of the issued Shares of that class where such variation is considered by the Directors not to have a material adverse effect upon such rights; otherwise, any such variation shall be made only with the consent in writing of the holders of not less than two thirds of the issued Shares of that class, or with the approval of a resolution passed by a majority of not less than two thirds of the votes cast at a separate meeting of the holders of the Shares of that class (other than with respect to a waiver of the provisions of the Article in respect of Class B Share Conversion hereof, which as stated therein shall only require the consent in writing of the holders of a majority of the issued Shares of that class). For the avoidance of doubt, the Directors reserve the right, notwithstanding that any such variation may not have a material adverse effect, to obtain consent from the holders of Shares of the relevant class. To any such meeting all the provisions of the Articles relating to general meetings shall apply mutatis mutandis, except that the necessary quorum shall be one or more persons holding or representing by proxy at least one third in nominal or par value amount of the issued Shares of the class (but so that if at any adjourned meeting of such holders a quorum as above defined is not present, those Members who are present shall form a quorum) and that any holder of Shares of the class present in person or by proxy may demand a poll.

 

46. For the purposes of a separate class meeting, the Directors may treat two or more or all the classes of Shares as forming one class of Shares if the Directors consider that such class of Shares would be affected in the same way by the proposals under consideration, but in any other case shall treat them as separate classes of Shares.

 

47. The provisions of these Articles relating to general meetings shall apply to every class meeting of the holders of one class of Shares except that the necessary quorum shall be one or more Shareholders holding or representing by proxy at least twenty per cent in par value of the issued Shares of the class and that any holder of Shares of the class present in person or by proxy may demand a poll.

 

48. The rights conferred upon the holders of the Shares of any class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the Shares of that class, be deemed to be varied by the creation or issue of further Shares ranking pari passu therewith, any variation of the rights conferred upon the holders of Shares of any other class, or the redemption or purchase of any Shares of any class by the Company.

 

COMMISSION ON SALES OF SHARES

 

49. The Company may, in so far as the Companies Act permits, pay a commission to any person in consideration of his subscribing or agreeing to subscribe (whether absolutely or conditionally) or procuring or agreeing to procure subscriptions (whether absolutely or conditionally) for any Shares. Such commissions may be satisfied by the payment of cash and/or the issue of fully or partly paid-up Shares. The Company may also on any issue of Shares pay such brokerage as may be lawful.

 

SHARE CERTIFICATES

 

50. The Shares will be issued in fully registered, book-entry form. A Member shall only be entitled to a share certificate if the Directors resolve that share certificates shall be issued. Share certificates representing Shares, if any, shall be in such form as the Directors may determine. Share certificates shall be signed by one or more Directors or other person authorised by the Directors. The Directors may authorise certificates to be issued with the authorised signature(s) affixed by mechanical process. All certificates for Shares shall be consecutively numbered or otherwise identified and shall specify the Shares to which they relate. All certificates surrendered to the Company for transfer shall be cancelled and, subject to the Articles, no new certificate shall be issued until the former certificate representing a like number of relevant Shares shall have been surrendered and cancelled.

 

 

51. If a share certificate is defaced, worn out lost or destroyed it may be renewed on such terms (if any) as to evidence and indemnity and on payment of such fee, if any, and on such terms if any, as to evidence and obligations to indemnify the Company as the Board of Directors may determine and (in the case of defacement or wearing out) upon delivery of the old certificate.

 

52. Every share certificate sent in accordance with the Articles will be sent at the risk of the Member or other person entitled to the certificate. The Company will not be responsible for any share certificate lost or delayed in the course of delivery.

 

53. Every share certificate of the Company shall bear legends required under Applicable Law, including the US Exchange Act.

 

TRANSFER AND TRANSMISSION OF SHARES

 

54. Subject to the Articles and the rules or regulations of the Designated Stock Exchange or any relevant rules of the SEC or securities laws (including, but not limited to the US Exchange Act), a Member may transfer all or any of his or her Shares.

 

55. The instrument of transfer of any Share shall be in (a) any usual or common form; (b) such form as is prescribed by the Designated Stock Exchange; or (c) any other form as the Directors may determine, and shall be executed by or on behalf of the transferor and if in respect of a nil or partly paid up Share, or if so required by the Directors, shall also be executed on behalf of the transferee and shall be accompanied by the certificate (if any) of the Shares to which it relates and such other evidence as the Directors may reasonably require to show the right of the transferor to make the transfer. The transferor shall be deemed to remain the holder of a Share until the name of the transferee is entered in the Register of Members in respect of the relevant Shares.

 

56. Subject to the terms of issue thereof and the rules or regulations of the Designated Stock Exchange or any relevant rules of the SEC or securities laws (including, but not limited to the US Exchange Act), the Directors may determine to decline to register any transfer of Shares without assigning any reason therefor. If the Shares in question were issued in conjunction with rights, options or warrants issued pursuant to the Articles on terms that one cannot be transferred without the other, the Directors shall refuse to register the transfer of any such Share without evidence satisfactory to them of the like transfer of such option or warrant.

 

57. The registration and transfer of Shares may be suspended at such times and for such periods as the Directors may from time to time determine.

 

 

58. All instruments of transfer which shall be registered shall be retained by the Company, but any instrument of transfer which the Directors may decline to register shall (except in any case of fraud) be returned to the person depositing the same.

 

59. In case of the death of a Shareholder, the survivors or survivor (where the deceased was a joint holder) and the executors or administrators of the deceased where he was the sole or only surviving holder, shall be the only persons recognised by the Company as having title to his interest in the Shares, but nothing in this Article shall release the estate of the deceased holder whether sole or joint from any liability in respect of any Share solely or jointly held by him.

 

60. Any guardian of an infant Shareholder and any curator or other legal representative of a Shareholder under legal disability and any person entitled to a share in consequence of the death or bankruptcy of a Shareholder shall, upon producing such evidence of his title as the Directors may require, have the right either to be registered himself as the holder of the Share or to make such transfer thereof as the deceased or bankrupt Shareholder could have made, but the Directors shall in either case have the same right to refuse or suspend registration as they would have had in the case of a transfer of the Shares by the infant or by the deceased or bankrupt Shareholder before the death or bankruptcy or by the Shareholder under legal disability before such disability.

 

61. A person so becoming entitled to a Share in consequence of the death or bankruptcy of a Shareholder shall have the right to receive and may give a discharge for all dividends and other money payable or other advantages due on or in respect of the Share, but he shall not be entitled to receive notice of or to attend or vote at meetings of the Company, or save as aforesaid, to any of the rights or privileges of a Shareholder unless and until he shall be registered as a Shareholder in respect of the Share provided always that the Directors may at any time give notice requiring any such person to elect either to be registered himself or to transfer the Share and if the notice is not complied with within ninety days the Directors may thereafter withhold all dividends or other monies payable or other advantages due in respect of the Share until the requirements of the notice have been complied with.

 

LIEN

 

62. The Company shall have a first and paramount lien on all Shares (whether fully paid-up or not) registered in the name of a Shareholder (whether solely or jointly with others) for all debts, liabilities or engagements to or with the Company (whether presently payable or not) by such Shareholder or his estate, either alone or jointly with any other person, whether a Shareholder or not, but the Directors may at any time declare any Share to be wholly or in part exempt from the provisions of this Article. The registration of a transfer of any such Share shall operate as a waiver of the Company’s lien thereon. The Company’s lien on a Share shall also extend to any amount payable in respect of that Share.

 

63. The Company may sell, in such manner as the Directors think fit, any Shares on which the Company has a lien, if a sum in respect of which the lien exists is presently payable, and is not paid within fourteen clear days after notice has been given to the holder of the Shares, or to the person entitled to it in consequence of the death or bankruptcy of the holder, demanding payment and stating that if the notice is not complied with the Shares may be sold.

 

 

64. To give effect to any such sale the Directors may authorise any person to execute an instrument of transfer of the Shares sold to, or in accordance with the directions of, the purchaser. The purchaser or his nominee shall be registered as the holder of the Shares comprised in any such transfer, and he shall not be bound to see to the application of the purchase money, nor shall his title to the Shares be affected by any irregularity or invalidity in the sale or the exercise of the Company’s power of sale under these Articles.

 

65. The net proceeds of such sale, after payment of costs, shall be applied in payment of such part of the amount in respect of which the lien exists as is presently payable and any residue shall (subject to a like lien for sums not presently payable as existed upon the Shares before the sale) be paid to the person entitled to the Shares at the date of the sale.

 

CALL ON SHARES

 

66. Subject to the terms of the allotment the Directors may from time to time make calls upon the Shareholders in respect of any monies unpaid on their Shares (whether in respect of par value or premium), and each Shareholder shall (subject to receiving at least fourteen days’ notice specifying the time or times of payment) pay to the Company at the time or times so specified the amount called on the Shares. A call may be revoked or postponed as the Directors may determine. A call may be required to be paid by instalments. A person upon whom a call is made shall remain liable for calls made upon him notwithstanding the subsequent transfer of the Shares in respect of which the call was made.

 

67. A call shall be deemed to have been made at the time when the resolution of the Directors authorising such call was passed.

 

68. The joint holders of a Share shall be jointly and severally liable to pay all calls in respect thereof.

 

69. If a call remains unpaid after it has become due and payable, the person from whom it is due shall pay interest on the amount unpaid from the day it became due and payable until it is paid at such rate as the Directors may determine, but the Directors may waive payment of the interest wholly or in part.

 

70. An amount payable in respect of a Share on allotment or at any fixed date, whether on account of the par value of the Share or premium or otherwise, shall be deemed to be a call and if it is not paid all the provisions of these Articles shall apply as if that amount had become due and payable by virtue of a call.

 

71. The Directors may issue Shares with different terms as to the amount and times of payment of calls, or the interest to be paid.

 

 

72. The Directors may, if they think fit, receive an amount from any Shareholder willing to advance all or any part of the monies uncalled and unpaid upon any Shares held by him, and may (until the amount would otherwise become payable) pay interest at such rate as may be agreed upon between the Directors and the Shareholder paying such amount in advance.

 

73. No such amount paid in advance of calls shall entitle the Shareholder paying such amount to any portion of a dividend declared in respect of any period prior to the date upon which such amount would, but for such payment, become payable.

 

FORFEITURE OF SHARES

 

74. If a call remains unpaid after it has become due and payable the Directors may give to the person from whom it is due not less than fourteen clear days’ notice requiring payment of the amount unpaid together with any interest which may have accrued. The notice shall specify where payment is to be made and shall state that if the notice is not complied with the Shares in respect of which the call was made will be liable to be forfeited.

 

75. If the notice is not complied with any Share in respect of which it was given may, before the payment required by the notice has been made, be forfeited by a resolution of the Directors. Such forfeiture shall include all dividends or other monies declared payable in respect of the forfeited Share and not paid before the forfeiture.

 

76. A forfeited Share may be sold, re-allotted or otherwise disposed of on such terms and in such manner as the Directors think fit and at any time before a sale, re-allotment or disposition the forfeiture may be cancelled on such terms as the Directors think fit. Where for the purposes of its disposal a forfeited Share is to be transferred to any person the Directors may authorise some person to execute an instrument of transfer of the Share in favour of that person.

 

77. A person any of whose Shares have been forfeited shall cease to be a Shareholder in respect of them and shall surrender to the Company for cancellation the certificate for the Shares forfeited and shall remain liable to pay to the Company all monies which at the date of forfeiture were payable by him to the Company in respect of those Shares together with interest, but his liability shall cease if and when the Company shall have received payment in full of all monies due and payable by him in respect of those Shares.

 

78. A certificate in writing under the hand of one Director or officer of the Company that a Share has been forfeited on a specified date shall be conclusive evidence of the fact as against all persons claiming to be entitled to the Share. The certificate shall (subject to the execution of any instrument of transfer) constitute a good title to the Share and the person to whom the Share is disposed of shall not be bound to see to the application of the purchase money, if any, nor shall his title to the Share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the Share.

 

79. The provisions of these Articles as to forfeiture shall apply in the case of non-payment of any sum which, by the terms of issue of a Share, becomes payable at a fixed time, whether on account of the par value of the Share or by way of premium as if it had been payable by virtue of a call duly made and notified.

 

 

ALTERATION OF SHARE CAPITAL

 

80. The Company may from time to time by Ordinary Resolution increase its share capital by such sum to be divided into Shares of such classes and amounts, with such rights, priorities and privileges annexed thereto as the resolution shall prescribe.

 

81. All new Shares shall be subject to the provisions of these Articles with reference to transfer, transmission and otherwise.

 

82. Subject to the provisions of the Companies Act, the Company may by Special Resolution from time to time reduce its share capital in any way, and in particular, without prejudice to the generality of the foregoing power, may:

 

(a) cancel any paid-up share capital which is lost, or which is not represented by available assets; or

 

(b) pay off any paid-up share capital which is in excess of the requirements of the Company,

 

and may, if and so far as is necessary, alter its Memorandum by reducing the amounts of its share capital and of its Shares accordingly.

 

83. The Company may from time to time by Ordinary Resolution alter (without reducing) its share capital by:

 

(a) consolidating and dividing all or any of its share capital into Shares of larger amount than its existing Shares;

 

(b) sub dividing its Shares, or any of them, into Shares of smaller amount than that fixed by its Memorandum so, however, that in the sub division the proportion between the amount paid and the amount, if any, unpaid on each reduced Share shall be the same as it was in the case of the Share from which the reduced Share is derived; or

 

(c) cancelling any Shares which, at the date of the passing of the Ordinary Resolution in that behalf, have not been taken, or agreed to be taken by any person, and diminishing the amount of its authorised share capital by the amount of the Shares so cancelled.

 

GENERAL MEETINGS

 

84. For so long as any Shares are traded on a Designated Stock Exchange, the Company shall in each year hold a general meeting as its annual general meeting, and shall specify the meeting as such in the notices calling it, unless such Designated Stock Exchange does not require the holding of an annual general meeting. Any annual general meeting shall be held at such time and place as the Directors shall appoint in accordance with the rules of the Designated Stock Exchange and if no other time and place is prescribed by them, it shall be held at the Registered Office on the second Wednesday in December of each year at ten o’clock in the morning. At these meetings the report of the Directors (if any) shall be presented.

 

 

85. All general meetings (other than annual general meetings) shall be called extraordinary general meetings.

 

86. The Directors may proceed to convene a general meeting of the Company whenever they think fit, including, without limitation, for the purposes of considering a liquidation of the Company, and they shall convene a general meeting of the Company on the requisition of the Shareholders of the Company holding at the date of the deposit of the requisition not less than 30 per cent in par value of such of the paid-up capital of the Company as at the date of the deposit carries the right of voting at general meetings of the Company.

 

87. The requisition must state the objects of the meeting and must be signed by the requisitionist and deposited at the Registered Office and may consist of several documents in like form each signed by one or more requisitionists.

 

88. If the Directors do not within twenty-one (21) days from the date of the deposit of the requisition duly proceed to convene a general meeting, the requisitionists, or any of them representing more than one-half of the total voting rights of all of them, may themselves convene a general meeting, but any meeting so convened shall not be held no later than the day which falls three months after the expiration of the said twenty-one (21) days.

 

89. A general meeting convened as aforesaid by requisitionists shall be convened in the same manner as nearly as possible as that in which general meetings are convened by the Directors. A general meeting may be convened in the Cayman Islands or at such other location, as the Directors think fit.

 

90. Shareholders seeking to bring business before the annual general meeting or to nominate candidates for election as Directors at the annual general meeting must deliver notice to the principal executive offices of the Company not later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the scheduled date of the annual general meeting.

 

NOTICE OF GENERAL MEETINGS

 

91. Five clear days’ (5) notice at least specifying the place, the day and the hour of any general meeting of the Company, and in case of special business the general nature of such business (and in the case of an annual general meeting specifying the meeting as such), shall be given in the manner hereinafter mentioned to such persons as are under the provisions of these Articles or the conditions of issue of the Shares held by them entitled to receive notices from the Company. If the Directors determine that prompt Shareholder action is advisable, they may shorten the notice period for any general meeting of the Company to such period as the Directors consider reasonable.

 

 

92. A general meeting shall, notwithstanding that it is called by shorter notice than that specified in the last preceding Article, be deemed to have been duly called with regard to the length of notice if it is so agreed:

 

(a) in the case of a meeting called as the annual general meeting by all the Shareholders entitled to attend and vote thereat; and

 

(b) in the case of any other meeting by a majority in number of the Shareholders having a right to attend and vote at the meeting, being a majority together holding not less than ninety-five per cent in nominal value of the Shares giving that right.

 

93. In every notice calling a meeting of the Company, there shall appear with reasonable prominence a statement that a Shareholder entitled to attend and vote either (i) is entitled to appoint one or more proxies to attend such meeting and vote instead of him and that a proxy need not also be a Shareholder or (ii) has appointed a proxy who, unless such appointment is revoked, will attend such meeting and vote on behalf of such Shareholder.

 

94. The accidental omission to give notice to, or the non-receipt of notice by, any person entitled to receive notice shall not invalidate the proceedings at any general meeting.

 

PROCEEDINGS AT GENERAL MEETINGS

 

95. All business shall be deemed special that is transacted at an extraordinary general meeting, and also all business that is transacted at an annual general meeting with the exception of declaring or approving the payment of dividends, the consideration of the accounts and balance sheet and the reports of the Directors and Auditors, the election of Directors in the place of those retiring, the appointment of additional Directors, the fixing of the remuneration of the Directors, and the appointment and the fixing of the remuneration of the Auditors.

 

96. No business shall be transacted at any general meeting unless a quorum is present. Save as otherwise provided in these Articles a quorum shall be the presence, in person or by proxy, of one or more persons holding at least a majority in par value of the issued Shares which confer the right to attend and vote thereat.

 

97. Save as otherwise provided for in these Articles, if within half an hour from the time appointed for the meeting a quorum is not present, the meeting, if convened on the requisition of or by Shareholders, shall be dissolved. In any other case it shall stand adjourned to the same day in the next week, at the same time and place or to such other day and at such other time and place as the Directors may determine and if at such adjourned meeting a quorum is not present within fifteen minutes from the time appointed for holding the meeting, the Shareholders present shall be a quorum.

 

 

98. A person may, with the consent of the Directors, participate at a general meeting by means of telephone, video or similar communication equipment by way of which all persons participating in such meeting can hear each other and such participation shall be deemed to constitute presence in person at such meeting.

 

99. The Chairman (if any) or, if absent, the Deputy Chairman (if any) of the Board of Directors, or, failing him, some other Director nominated by the Directors shall preside as Chairman at every general meeting of the Company, but if at any meeting neither the Chairman nor the Deputy Chairman nor such other Director be present within fifteen minutes after the time appointed for holding the meeting, or if neither of them be willing to act as Chairman, the Directors present shall choose some Director present to be Chairman or if no Directors be present, or if all the Directors present decline to take the chair, the Shareholders present shall choose some Shareholder present to be Chairman.

 

100. The Chairman may with the consent of any meeting at which a quorum is present (and shall if so directed by the meeting) adjourn the meeting from time to time and from place to place but no business shall be transacted at any adjourned meeting except business which might lawfully have been transacted at the meeting from which the adjournment took place. The Chairman may adjourn any meeting without the consent of such meeting if, in his sole opinion, he considers it necessary to do so to: secure the orderly conduct or proceedings of the meeting; or give all persons present in person or by proxy and having the right to speak and/or vote at such meeting, the ability to do so, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. When a meeting is adjourned for thirty days or more, seven calendar days’ notice at the least specifying the place, the day and the hour of the adjourned meeting, shall be given as in the case of the original meeting but it shall not be necessary to specify in such notice the nature of the business to be transacted at the adjourned meeting. Save as aforesaid, it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meeting.

 

101. The Directors may cancel or postpone any duly convened general meeting at any time prior to such meeting, except for general meetings requisitioned by the Shareholders in accordance with the Articles, for any reason or for no reason at any time prior to the time for holding such meeting or, if the meeting is adjourned, the time for holding such adjourned meeting. The Directors shall give the Shareholders notice in writing of any cancellation or postponement. A postponement may be for a stated period of any length or indefinitely as the Directors may determine.

 

102. At any general meeting, a resolution put to the vote of the meeting shall be decided on a show of hands unless a poll is, before or on the declaration of the result of the show of hands, demanded by the Chairman or any other Shareholder present in person or by proxy.

 

103. Unless a poll be so demanded, a declaration by the Chairman that a resolution has on a show of hands been carried, or carried unanimously, or by a particular majority, or lost, and an entry to that effect made in the Company’s minute book containing the minutes of the proceedings of the meeting, shall be conclusive evidence of the fact without proof of the number or the proportion of the votes recorded in favour of or against such resolution.

 

 

104. If a poll is duly demanded it shall be taken in such manner and at such place as the Chairman may direct (including the use of a ballot or voting papers, or tickets) and the result of a poll shall be deemed to be the resolution of the meeting at which the poll was demanded. The Chairman may, in the event of a poll, appoint scrutineers and may adjourn the meeting to some place and time fixed by him for the purpose of declaring the result of the poll.

 

105. In the case of an equality of votes, whether on a show of hands or on a poll, the Chairman of the meeting at which the show of hands or at which the poll is taken, shall not be entitled to a second or casting vote.

 

106. A poll demanded on the election of a Chairman and a poll demanded on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time and place as the Chairman directs not being more than ten days from the date of the meeting or adjourned meeting at which the poll was demanded.

 

107. The demand for a poll shall not prevent the continuance of a meeting for the transaction of any business other than the question on which the poll has been demanded.

 

108. A demand for a poll may be withdrawn and no notice need be given of a poll not taken immediately.

 

VOTES OF SHAREHOLDERS

 

109. Subject to any rights or restrictions attached to any Shares (including as set out at Article 130 and Articles 194 to 208), on a show of hands every holder of Shares present and entitled to vote thereon shall have one vote. On a poll every holder of Shares, present in person or by proxy and entitled to vote thereon, shall be entitled to one vote in respect of each Share held by him.

 

110. In the case of joint holders of a Share, the vote of the senior holder who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders, and for this purpose seniority shall be determined by the order in which the names stand in the Register of Members in respect of the Shares.

 

111. A Shareholder who has appointed special or general attorneys or a Shareholder who is subject to a disability may vote on a poll, by his attorney, committee, receiver, curator bonis or other person in the nature of a committee, receiver, or curator bonis appointed by a court and such attorney, committee, receiver, curator bonis or other person may on a poll vote by proxy; provided that such evidence as the Directors may require of the authority of the person claiming to vote shall have been deposited at the Registered Office not less than forty-eight (48) hours before the time for holding the meeting or adjourned meeting at which such person claims to vote.

 

112. No objection shall be raised to the qualification of any voter except at the meeting or adjourned meeting at which the vote objected to is given or tendered, and every vote not disallowed at such meeting shall be valid for all purposes. Any such objection made in due time shall be referred to the Chairman of the meeting, whose decision shall be final and conclusive.

 

 

113. On a poll votes may be given either personally or by proxy and a Shareholder entitled to more than one vote need not, if he votes, use all his votes or cast all the votes he uses in the same way.

 

114. The instrument appointing a proxy shall be in writing under the hand of the appointor or of his attorney duly authorised in writing, or if the appointor is a corporation, either under its common seal or under the hand of an officer or attorney so authorised.

 

115. Any person (whether a Shareholder of the Company or not) may be appointed to act as a proxy. A Shareholder may appoint more than one proxy to attend on the same occasion.

 

116. The instrument appointing a proxy and the power of attorney or other authority (if any) under which it is signed, or a notarially certified copy of such power or authority, shall be deposited at the Registered Office, or at such other place as is specified for that purpose in the notice of meeting or in the instrument of proxy issued by the Company, no later than the time appointed for holding the meeting or adjourned meeting; provided that the Chairman of the meeting may in his discretion accept an instrument of proxy sent by fax, email or other electronic means.

 

117. Any person (whether a Shareholder of the Company or not) may be appointed to act as a proxy. A Shareholder may appoint more than one proxy to attend on the same occasion.

 

118. The instrument appointing a proxy and the power of attorney or other authority (if any) under which it is signed, or a notarially certified copy of such power or authority, shall be deposited at the Registered Office, or at such other place as is specified for that purpose in the notice of meeting or in the instrument of proxy issued by the Company, no later than the time appointed for holding the meeting or adjourned meeting; provided that the Chairman of the meeting may in his discretion accept an instrument of proxy sent by fax, email or other electronic means.

 

119. The Chairman may in any event at his/her discretion declare that an instrument of proxy shall be deemed to have been duly deposited. An instrument of proxy that is not deposited in the manner permitted, or which has not been declared to have been duly deposited by the Chairman, shall be invalid.

 

120. An instrument of proxy shall be in such common form as the Directors may approve.

 

121. The Directors may at the expense of the Company send, by post or otherwise, to the Shareholders instruments of proxy (with or without prepaid postage for their return) for use at any general meeting, either in blank or nominating in the alternative any one or more of the Directors or any other persons. If for the purpose of any meeting invitations to appoint as proxy a person or one of a number of persons specified in the invitations are issued at the expense of the Company, such invitations shall be issued to all (and not to some only) of the Shareholders entitled to be sent a notice of the meeting and to vote thereat by proxy.

 

 

122. A vote given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the death or insanity of the principal or the revocation of the instrument of proxy, or of the authority under which the instrument of proxy was executed; PROVIDED THAT no intimation in writing of such death, insanity, revocation or transfer shall have been received by the Company at the Registered Office before commencement of the meeting or adjourned meeting at which the instrument of proxy is used.

 

123. Any corporation which is a Shareholder of the Company may, by resolution of its directors or other governing body, authorise such person as it thinks fit to act as its representative at any meeting of the Company, and the person so authorised shall be entitled to exercise the same powers on behalf of the corporation which he represents as that corporation could exercise if it were an individual Shareholder of the Company and such corporation shall for the purposes of these Articles be deemed to be present in person at any such meeting if a person so authorised is present thereat.

 

CLEARING HOUSES

 

124. If a clearing house (or its nominee(s)), being a corporation, is a Member it may, by resolution of its directors or other governing body or by power of attorney, authorise such person or persons as it thinks fit to act as its representative or representatives at any general meeting of the Company or at any meeting of any class of Members provided that, if more than one person is so authorised, the authorisation shall specify the number and class of Shares in respect of which each such person is so authorised. A person so authorised pursuant to this Article shall be entitled to exercise the same powers on behalf of the clearing house (or its nominee) which he represents as that clearing house (or its nominee) could exercise if it were an individual Member holding the number and Class of Shares specified in such authorisation.

 

WRITTEN RESOLUTIONS OF SHAREHOLDERS

 

125. A resolution in writing signed by all the Shareholders for the time being entitled to receive notice of, attend and vote at a general meeting shall be as valid and effectual as a resolution passed at a general meeting duly convened and held and may consist of several documents in the like form each signed by one or more of the Shareholders.

 

DIRECTORS

 

126. Subject to Article 130, there shall be a board of Directors consisting of not less than one person (exclusive of alternate Directors) provided however that the Company may from time to time by Ordinary Resolution increase or reduce the limits in the number of Directors. The first Directors of the Company shall be determined in writing by, or appointed by a resolution of, the subscriber(s) to the Memorandum.

 

127. A Director need not be a Shareholder of the Company but shall be entitled to receive notice of and attend all general meetings of the Company.

 

 

128. Subject to Article 130 the Company may, by Ordinary Resolution, appoint any person to be a Director and may in like manner remove any Director and may appoint another person in his stead. Without prejudice to the power of the Company by Ordinary Resolution to appoint a person to be a Director, the Board of Directors, so long as a quorum of Directors remains in office, shall have the power at any time and from time to time to appoint any person to be a Director so as to fill a casual vacancy or otherwise.

 

129. The term of office of each director shall be two (2) years, and each Director shall hold office until the expiration of his term, until his successor shall have been duly elected and qualified or until his earlier death, resignation or removal. No decrease in the number of Directors constituting the board of Directors shall shorten the term of any incumbent Director. The term limits in this Article shall not apply to any Directors appointed prior to the first annual general meeting of the Company.

 

130. Prior to the consummation of an initial Business Combination, only holders of Class B Shares will have the right to vote on the election of Directors pursuant to Articles 128 and 129 and the removal of Directors pursuant to Article 128.

 

131. For so long as any of the Shares are traded on a Designated Stock Exchange, any and all vacancies in the board of Directors, however occurring, including, without limitation, by reason of an increase in the size of the board of Directors, or the death, resignation, disqualification or removal of a Director, shall be filled solely and exclusively by the affirmative vote of a majority of the remaining Directors then in office, even if less than a quorum of the board of Directors, and not by the Members. Any Director appointed in accordance with the preceding sentence shall hold office for the remainder of the full term of the class of Directors in which the new directorship was created or the vacancy occurred and until such Director’s successor shall have been duly elected and qualified or until his or her earlier resignation, death or removal. When the number of Directors is increased or decreased, the board of Directors shall, subject to Article 129 above, determine the class or classes to which the increased or decreased number of Directors shall be apportioned; provided, however, that no decrease in the number of Directors shall shorten the term of any incumbent Director. In the event of a vacancy in the board of Directors, the remaining Directors, except as otherwise provided by law, shall exercise the powers of the full board of Directors until the vacancy is filled.

 

 

132. Article 130 may only be amended by a Special Resolution passed by a majority of not less than two-thirds of the votes cast at a meeting of the Members including a simple majority of the holders of Class B Shares (and if the Members vote in favour of such act but the approval of a simple majority of the holders of Class B Shares has not yet been obtained, the holders of a simple majority of Class B Shares shall have, in such vote, voting rights equal to the aggregate voting power of all the Members of the Company who voted in favour of the resolution plus one).

 

133. The Directors shall each be entitled to such remuneration as may be voted to them by the Board of Directors and this may be in addition to such remuneration as may be payable under any other Article hereof. Such remuneration shall be deemed to accrue from day to day. The Directors and the Secretary may also be paid all travelling, hotel and other expenses properly incurred by them in attending and returning from meetings of the Directors or any committee of the Directors or general meetings of the Company or in connection with the business of the Company. The Directors may in addition to such remuneration as aforesaid grant special remuneration to any Director who, being called upon, shall perform any special or extra services to or at the request of the Company.

 

134. Each Director shall have the power to nominate another Director or any other person to act as alternate Director in his place at any meeting of the Directors at which he is unable to be present and at his discretion to remove such alternate Director. On such appointment being made the alternate Director shall (except as regards the power to appoint an alternate Director) be subject in all respects to the terms and conditions existing with reference to the other Directors of the Company and each alternate Director, whilst acting in the place of an absent Director, shall exercise and discharge all the functions powers and duties of the Director he represents. Any Director of the Company who is appointed as alternate Director shall be entitled at a meeting of the Directors to cast a vote on behalf of his appointor in addition to the vote to which he is entitled in his own capacity as a Director of the Company, and shall also be considered as two Directors for the purpose of making a quorum of Directors. Any person appointed as an alternate Director shall automatically vacate such office as such alternate Director if and when the Director by whom he has been appointed vacates his office of Director. The remuneration of an alternate Director shall be payable out of the remuneration of the Director appointing him and shall be agreed between them.

 

135. Every instrument appointing an alternate Director shall be in such common form as the Directors may approve.

 

136. The appointment and removal of an alternate Director shall take effect when lodged at the Registered Office or delivered at a meeting of the Directors.

 

137. The office of a Director shall be vacated in any of the following events namely:

 

(a) if he resigns his office by notice in writing signed by him and left at the Registered Office;

 

 

(b) if he absents himself (for the avoidance of doubt, without being represented by proxy or an alternate Director appointed by him) from three consecutive meetings of the board of Directors without special leave of absence from the Directors, and the Directors pass a resolution that he has by reason of such absence vacated office;

 

(c) if he dies, becomes bankrupt or makes any arrangement or composition with his creditors generally;

 

(d) if he becomes of unsound mind;

 

(e) if he ceases to be a Director by virtue of, or becomes prohibited from being a Director by reason of, an order made under any provisions of any law or enactment;

 

(f) if he be requested by all of the other Directors to vacate office; or

 

(g) if he is removed from office by an Ordinary Resolution of the Company or pursuant to any other provisions of the Articles.

 

TRANSACTIONS WITH DIRECTORS

 

138. A Director or alternate Director may hold any other office or place of profit under the Company (other than the office of Auditor) in conjunction with his office of Director on such terms as to tenure of office and otherwise as the Directors may determine.

 

139. No Director or intending Director shall be disqualified by his office from contracting with the Company either as vendor, purchaser or otherwise, nor shall any such contract or any contract or arrangement entered into by or on behalf of the Company in which any Director is in any way interested be liable to be avoided, nor shall any Director so contracting or being so interested be liable to account to the Company for any profit realised by any such contract or arrangement by reason of such Director holding that office or of the fiduciary relationship thereby established, but the nature of his interest must be declared by him at the meeting of the Directors at which the question of entering into the contract or arrangement is first taken into consideration, or if the Director was not at the date of that meeting interested in the proposed contract or arrangement, then at the next meeting of the Directors held after he becomes so interested, and in a case where the Director becomes interested in a contract or arrangement after it is made, then at the first meeting of the Directors held after he becomes so interested.

 

140. In the absence of some other material interest than is indicated below, provided a Director who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the Company declares (whether by specific or general notice) the nature of his interest at a meeting of the Directors that Director may vote in respect of any contract or proposed contract or arrangement notwithstanding that he may be interested therein and if he does so his vote shall be counted and he may be counted in the quorum at any meeting of the Directors at which any such contract or proposed contract or arrangement shall come before the meeting for consideration.

 

 

141. Where proposals are under consideration concerning the appointment (including fixing or varying the terms of appointment) of two or more Directors to offices or employments with the Company or any company in which the Company is interested, such proposals may be divided and considered in relation to each Director separately and in such cases each of the Directors concerned shall be entitled to vote (and be counted in the quorum) in respect of each resolution except that concerning his own appointment.

 

142. Any Director may act by himself or through his firm in a professional capacity for the Company, and he or his firm shall be entitled to remuneration for professional services as if he were not a Director, provided that nothing herein contained shall authorise a Director or his firm to act as Auditor to the Company.

 

143. Any Director may continue to be or become a director, managing director, manager or other officer or shareholder of any company promoted by the Company or in which the Company may be interested, and no such Director shall be accountable for any remuneration or other benefits received by him as a director, managing director, manager or other officer or shareholder of any such other company. The Directors may exercise the voting power conferred by the shares in any other company held or owned by the Company or exercisable by them as directors of such other company, in such manner in all respects as they think fit (including the exercise thereof in favour of any resolution appointing themselves or any of them directors, managing directors or other officers of such company, or voting or providing for the payment of remuneration to the directors, managing directors or other officers of such company).

 

POWERS OF DIRECTORS

 

144. The business of the Company shall be managed by the Directors, who may exercise all such powers of the Company as are not by the Companies Act or by these Articles required to be exercised by the Company in general meeting, subject nevertheless to any regulations of these Articles, to the provisions of the Companies Act, and to such regulations being not inconsistent with the aforesaid regulations or provisions as may be prescribed by the Company in general meeting, but no regulations made by the Company in general meeting shall invalidate any prior act of the Directors which would have been valid if such regulations had not been made. The general powers given by this Article shall not be limited or restricted by any special authority or power given to the Directors by any other Article.

 

145. The Directors may from time to time and at any time by power of attorney appoint any company, firm or person or any fluctuating body of persons, whether nominated directly or indirectly by the Directors, to be the attorney or attorneys of the Company for such purposes and with such powers authorities and discretions (not exceeding those vested in or exercisable by the Directors under these Articles) and for such period and subject to such conditions as they may think fit, and any such appointment may contain such provisions for the protection and convenience of persons dealing with any such attorneys as the Directors may think fit, and may also authorise any such attorney to sub-delegate all or any of the powers, authorities and discretions vested in him. The Directors may also appoint any person to be the agent of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors under these Articles) and for such period and on such conditions as they determine, including authority for the agent to delegate all or any of his powers.

 

 

146. The Directors on behalf of the Company may pay a gratuity or pension or allowance on retirement to any Director who has held any other salaried office or place of profit with the Company or to his widow or dependants and may make contributions to any fund and pay premiums for the purchase or provision of any such gratuity, pension or allowance.

 

147. The Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and assets (present and future) and uncalled capital or any part thereof and to issue debentures, debenture stock, mortgages, bonds and other such securities whether outright or as security for any debt, liability or obligation of the Company or of any third party.

 

148. The Directors shall have the authority to present a winding up petition on behalf of the Company without the sanction of a resolution passed by the Company in general meeting.

 

149. All cheques, promissory notes, drafts, bills of exchange and other negotiable or transferable instruments drawn by the Company, and all receipts for monies paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed, as the case may be, in such manner as the Directors shall from time to time by resolution determine.

 

PROCEEDINGS OF DIRECTORS

 

150. The Directors may meet together for the dispatch of business, adjourn and otherwise regulate their meetings, as they think fit. Questions arising at any meeting shall be determined by a majority of votes. In the case of an equality of votes, the Chairman shall have a second or casting vote. A Director may, and the Secretary on the requisition of a Director shall, at any time summon a meeting of the Directors.

 

151. A Director or Directors may participate in any meeting of the Board, or of any committee appointed by the Board of which such Director or Directors are members, by means of telephone or similar communication equipment by way of which all persons participating in such meeting can hear each other and such participation shall be deemed to constitute presence in person at the meeting.

 

152. The quorum necessary for the transaction of the business of the Directors may be fixed by the Directors and, unless so fixed, shall be a majority of the Directors then in office.

 

153. The continuing Directors or a sole continuing Director may act notwithstanding any vacancies in their number, but if and so long as the number of Directors is reduced below the minimum number fixed by or in accordance with these Articles the continuing Directors or Director may act for the purpose of filling up vacancies in their number, or of summoning general meetings of the Company, but not for any other purpose. If there be no Directors or Director able or willing to act, then any two Shareholders may summon a general meeting for the purpose of appointing Directors.

 

 

154. The Directors may from time to time elect and remove a Chairman and, if they think fit, a Deputy Chairman and determine the period for which they respectively are to hold office. The Chairman or, failing him, the Deputy Chairman shall preside at all meetings of the Directors, but if there be no Chairman or Deputy Chairman, or if at any meeting the Chairman or Deputy Chairman be not present within five minutes after the time appointed for holding the same, the Directors present may choose one of their number to be Chairman of the meeting.

 

155. A meeting of the Directors for the time being at which a quorum is present shall be competent to exercise all powers and discretions for the time being exercisable by the Directors.

 

156. Without prejudice to the powers conferred by these Articles, the Directors may delegate any of their powers to committees consisting of such member or members of their body as they think fit. Any committee so formed shall, in the exercise of the powers so delegated, conform to any regulations that may be imposed on them by the Directors. The Directors may, by power of attorney or otherwise, appoint any person to be an agent of the Company on such condition as the Directors may determine, provided that the delegation is not to the exclusion of their own powers.

 

157. The meetings and proceedings of any such committee consisting of two or more Directors shall be governed by the provisions of these Articles regulating the meetings and proceedings of the Directors so far as the same are applicable and are not superseded by any regulations made by the Directors under the last preceding Article.

 

158. The Directors may appoint such officers as they consider necessary on such terms, at such remuneration and to perform such duties, and subject to such provisions as to disqualification and removal as the Directors may think fit. Unless otherwise specified in the terms of his appointment an officer may be removed by resolution of the Directors or Shareholders.

 

159. All acts done by any meeting of Directors, or of a committee of Directors or by any person acting as a Director, shall, notwithstanding it be afterwards discovered that there was some defect in the appointment of any such Director or person acting as aforesaid, or that they or any of them were disqualified, or had vacated office, or were not entitled to vote, be as valid as if every such person had been duly appointed, and was qualified and had continued to be a Director and had been entitled to vote.

 

160. The Directors shall cause minutes to be made of:

 

(a) all appointments of officers made by the Directors;

 

(b) the names of the Directors present at each meeting of the Directors and of any committee of Directors; and

 

(c) all resolutions and proceedings of all meetings of the Company and of the Directors and of any committee of Directors.

 

 

Any such minutes, if purporting to be signed by the Chairman of the meeting at which the proceedings took place, or by the Chairman of the next succeeding meeting, shall, until the contrary be proved, be conclusive evidence of their proceedings.

 

161. A Director but not an alternate Director may be represented at any meetings of the board of Directors by a proxy appointed in writing by him. The proxy shall count towards the quorum and the vote of the proxy shall for all purposes be deemed to be that of the appointing Director.

 

WRITTEN RESOLUTIONS OF DIRECTORS

 

162. A resolution in writing signed by all the Directors for the time being entitled to attend and vote at a meeting of the Directors (an alternate Director being entitled to sign such a resolution on behalf of his appointor) shall be as valid and effectual as a resolution passed at a meeting of the Directors duly convened and held and may consist of several documents in the like form each signed by one or more of the Directors (or his or their alternates).

 

PRESUMPTION OF ASSENT

 

163. A Director or alternate Director who is present at a meeting of the Board of Directors at which action on any Company matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent from such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to such person immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Director who voted in favour of such action.

 

BORROWING POWERS

 

164. The Directors may exercise all the powers of the Company to borrow money and hypothecate, mortgage, charge or pledge its undertaking, property, and assets or any part thereof, and to issue debentures, debenture stock or other securities, whether outright or as collateral security for any debt liability or obligation of the Company or of any third party.

 

SECRETARY

 

165. The Secretary shall be appointed by the Directors. Anything required or authorised to be done by or to the Secretary may, if the office is vacant or there is for any other reason no Secretary capable of acting, be done by or to any Assistant or Deputy Secretary or if there is no Assistant or Deputy Secretary capable of acting, by or to any officer of the Company authorised generally or specially in that behalf by the Directors; PROVIDED THAT any provisions of these Articles requiring or authorising a thing to be done by or to a Director and the Secretary shall not be satisfied by its being done by or to the same person acting both as Director and as, or in the place of, the Secretary.

 

 

166. No person shall be appointed or hold office as Secretary who is:

 

(a) the sole Director of the Company; or

 

(b) a corporation the sole director of which is the sole Director of the Company; or

 

(c) the sole director of a corporation which is the sole Director of the Company.

 

THE SEAL

 

167. The Directors shall provide for the safe custody of the Seal and the Seal shall never be used except by the authority of a Resolution of the Directors or of a committee of the Directors authorised by the Directors in that behalf. The Directors may keep for use outside the Cayman Islands a duplicate Seal. The Directors may from time to time as they see fit (subject to the provisions of these Articles relating to share certificates) determine the persons and the number of such persons in whose presence the Seal or the facsimile thereof shall be used, and until otherwise so determined the Seal or the duplicate thereof shall be affixed in the presence of any one Director or the Secretary, or of some other person duly authorised by the Directors.

 

DIVIDENDS, DISTRIBUTIONS AND RESERVES

 

168. Subject to the Companies Act, these Articles, and the special rights attaching to Shares of any class, the Directors may, in their absolute discretion, declare dividends and distributions on Shares in issue and authorise payment of the dividends or distributions out of the funds of the Company lawfully available therefor. No dividend or distribution shall be paid except out of the realised or unrealised profits of the Company, or out of the Share Premium Account of the Company, or as otherwise permitted by the Companies Act.

 

169. Except as otherwise provided by the rights attached to Shares, or as otherwise determined by the Directors, all dividends and distributions in respect of Shares shall be declared and paid according to the par value of the Shares that a Shareholder holds. If any Share is issued on terms providing that it shall rank for dividend or distribution as from a particular date, that Share shall rank for dividend or distribution accordingly.

 

170. The Directors may deduct and withhold from any dividend or distribution otherwise payable to any Shareholder all sums of money (if any) then payable by him to the Company on account of calls or otherwise or any monies which the Company is obliged by law to pay to any taxing or other authority.

 

171. The Directors may declare that any dividend or distribution be paid wholly or partly by the distribution of specific assets and in particular of shares, debentures or securities of any other company or in any one or more of such ways and, where any difficulty arises in regard to such distribution, the Directors may settle the same as they think expedient and in particular may issue fractional Shares and fix the value for distribution of such specific assets or any part thereof and may determine that cash payments shall be made to any Shareholder upon the basis of the value so fixed in order to adjust the rights of all Shareholders and may vest any such specific assets in trustees as may seem expedient to the Directors.

 

 

172. Any dividend, distribution, interest or other monies payable in cash in respect of Shares may be paid by wire transfer to the holder or by cheque or warrant sent through the post directed to the registered address of the holder or, in the case of joint holders, to the registered address of the holder who is first named on the Register of Members or to such person and to such address as such holder or joint holders may in writing direct. Every such cheque or warrant shall (unless the Directors in their sole discretion otherwise determine) be made payable to the order of the person to whom it is sent. Any one of two or more joint holders may give effectual receipts for any dividends, bonuses, or other monies payable in respect of the Share held by them as joint holders.

 

173. Any dividend or distribution which cannot be paid to a Shareholder and/or which remains unclaimed after six months from the date of declaration of such dividend or distribution may, in the discretion of the Directors, be paid into a separate account in the Company’s name, provided that the Company shall not be constituted as a trustee in respect of that account and the dividend or distribution shall remain as a debt due to the Shareholder. Any dividend or distribution which remains unclaimed after a period of six years from the date of declaration of such dividend or distribution shall be forfeited and shall revert to the Company.

 

174. No dividend or distribution shall bear interest against the Company.

 

SHARE PREMIUM ACCOUNT

 

175. The Directors shall establish an account on the books and records of the Company to be called the Share Premium Account and shall carry to the credit of such account from time to time a sum equal to the amount or value of the premium paid on the issue of any Share.

 

ACCOUNTS

 

176. The Directors shall cause proper books of account to be kept with respect to all sums of money received and expended by the Company and the matters in respect of which the receipt or expenditure takes place, all sales and purchases of goods by the Company and the assets and liabilities of the Company. Proper books shall not be deemed to be kept if there are not kept such books of account as are necessary to give a true and fair view of the state of the Company’s affairs and to explain its transactions.

 

177. The books of account shall be kept at the Registered Office or at such other place as the Directors think fit, and shall always be open to inspection by the Directors.

 

178. The Board of Directors shall from time to time determine whether and to what extent and at what time and places and under what conditions or articles the accounts and books of the Company or any of them shall be open to the inspection of Shareholders not being Directors, and no Shareholder (not being a Director) shall have any right of inspection of any account or book or document of the Company except as conferred by law or authorised by the Board of Directors or by resolution of the Shareholders.

 

 

AUDIT

 

179. The accounts relating to the Company’s affairs shall be audited in such manner as may be determined from time to time by resolution of the Shareholders or failing any such determination, by the Board of Directors, or failing any determination as aforesaid, shall not be audited.

 

180. Without prejudice to the freedom of the Directors to establish any other committee, if any of the Shares (or depositary receipts therefor) are listed or quoted on the Designated Stock Exchange, and if required by the Designated Stock Exchange, the Directors shall establish and maintain an audit committee (the Audit Committee) as a committee of the board of Directors and shall adopt a formal written audit committee charter and review and assess the adequacy of the formal written charter on an annual basis. The composition and responsibilities of the Audit Committee shall comply with the rules and regulations of the SEC and the Designated Stock Exchange. The Audit Committee shall meet at least once every financial quarter, or more frequently as circumstances dictate.

 

181. If any of the Shares (or depositary receipts therefor) are listed or quoted on the Designated Stock Exchange, the Company shall conduct an appropriate review of all related party transactions on an ongoing basis and shall utilise the Audit Committee for the review and approval of potential conflicts of interest.

 

182. The remuneration of the Auditor shall be fixed by the Audit Committee (if one exists).

 

NOTICES

 

183. Any notice or document may be served by the Company on any Shareholder either personally or by posting it airmail or air courier service in a prepaid letter addressed to such Shareholder at his address as appearing in the Register of Members or by cable, telex, facsimile or e-mail should the Directors deem it appropriate.

 

184. In the case of joint holders of a Share, all notices shall be given to that one of the joint holders whose name stands first in the Register of Members in respect of the joint holding, and notice so given shall be sufficient notice to all the joint holders.

 

185. Any Shareholder present, either personally or by proxy, at any meeting of the Company shall for all purposes be deemed to have received due notice of such meeting and, where requisite, of the purposes for which such meeting was convened.

 

186. Any summons, notice, order or other document required to be sent to or served upon the Company, or upon any officer of the Company may be sent or served by leaving the same or sending it through the post in a prepaid letter envelope or wrapper, addressed to the Company or to such officer at the Registered Office.

 

 

187. Where a notice is sent by courier, service of the notice shall be deemed to be effected by delivery of the notice to a courier company, and shall be deemed to have been received on the third day (not including Saturdays or Sundays or public holidays) following the day on which the notice was delivered to the courier. Where a notice is sent by post, service of the notice shall be deemed to be effected by properly addressing, pre-paying and posting a letter containing the notice, and shall be deemed to have been received on the fifth day (not including Saturdays or Sundays or public holidays in the Cayman Islands) following the day on which the notice was posted. Where a notice is sent by cable, telex or fax, service of the notice shall be deemed to be effected by properly addressing and sending such notice and shall be deemed to have been received on the same day that it was transmitted. Where a notice is given by email, service shall be deemed to be effected by transmitting the email to the email address provided by the intended recipient and shall be deemed to have been received on the same day that it was sent, and it shall not be necessary for the receipt of the email to be acknowledged by the recipient.

 

188. Any notice or document delivered or sent by post to or left at the registered address of any Shareholder in pursuance of these Articles shall notwithstanding that such Shareholder be then dead, insane, bankrupt or dissolved, and whether or not the Company has notice of such death, insanity, bankruptcy or dissolution, be deemed to have been duly served in respect of any Share registered in the name of such Shareholder as sole or joint holder, unless his name shall at the time of the service of the notice or document, have been removed from the Register of Members as the holder of the Share, and such service shall for all purposes be deemed a sufficient service of such notice or document on all persons interested (whether jointly with or as claiming through or under him) in the Share.

 

WINDING UP AND FINAL DISTRIBUTION OF ASSETS

 

189. If the Company shall be wound up the liquidator shall apply the assets of the Company in satisfaction of creditors’ claims in such manner and order as such liquidator thinks fit.

 

190. If the Company shall be wound up, and the assets available for distribution amongst the Shareholders shall be insufficient to repay the whole of the share capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the Shareholders in proportion to the par value of the Shares held by them. If in a winding up the assets available for distribution amongst the Shareholders shall be more than sufficient to repay the whole of the share capital at the commencement of the winding up, the surplus shall be distributed amongst the Shareholders in proportion to the par value of the Shares held by them at the commencement of the winding up subject to a deduction from those Shares in respect of which there are monies due of all monies payable to the Company for unpaid calls or otherwise. This Article is without prejudice to the rights of the holders of Shares issued upon special terms and conditions.

 

191. If the Company shall be wound up (whether the liquidation is voluntary, under supervision or by the Court) the liquidator may, with the authority of a Special Resolution, divide among the Shareholders in specie the whole or any part of the assets of the Company, and whether or not the assets shall consist of property of a single kind, and may for such purposes set such value as he deems fair upon any one or more class or classes of property, and may determine how such division shall be carried out as between the Shareholders. The liquidator may, with the like authority, vest any part of the assets in trustees upon such trusts for the benefit of Shareholders as the liquidator, with the like authority, shall think fit, and the liquidation of the Company may be closed and the Company dissolved, but so that no Shareholder shall be compelled to accept any Shares in respect of which there is liability.

 

 

INDEMNITY

 

192. Every Director or officer of the Company shall be indemnified out of the assets of the Company against any liability incurred by him as a result of any act or failure to act in carrying out his functions other than such liability (if any) that he may incur by his own actual fraud or wilful default. No such Director or officer shall be liable to the Company for any loss or damage in carrying out his functions unless that liability arises through the actual fraud or wilful default of such Director or officer. References in this Article to actual fraud or wilful default mean a finding to such effect by a competent court in relation to the conduct of the relevant party.

 

DISCLOSURE

 

193. Any Director, officer or authorised agent of the Company shall, if lawfully required to do so under the laws of any jurisdiction to which the Company is subject or in compliance with the rules of any stock exchange upon which the Company’s shares are listed or in accordance with any contract entered into by the Company, be entitled to release or disclose any information in his possession regarding the affairs of the Company including, without limitation, any information contained in the Register of Members.

 

BUSINESS COMBINATION

 

194. Notwithstanding any other provision of the Articles, these Articles 194 to 208 shall apply during the period commencing upon the adoption of the Articles and terminating upon the first to occur of the consummation of any Business Combination and the distribution of the Trust Fund pursuant to this Article. In the event of a conflict between this Article and any other Articles, the provisions of this Article shall prevail.

 

195. Article 201(b) may not be amended prior to the consummation of a Business Combination without a Special Resolution, the approval threshold for which is at least two-thirds of all votes cast at a meeting of the Shareholders.

 

196. Prior to the consummation of any Business Combination, the Company shall either:

 

(a) submit such Business Combination to the Shareholder for approval; or

 

(b) provide Shareholders with the opportunity to have their Shares repurchased by means of a tender offer for a per- Share repurchase price payable in cash, equal to the aggregate amount then on deposit in the Trust Account, calculated as of two business days prior to the consummation of the Business Combination, including interest earned on the Trust Account and not previously released to the Company to pay income taxes, if any, (less up to US$100,000 of interest to pay dissolution expenses), divided by the number of Public Shares then in issue, provided that the Company shall not repurchase Public Shares in an amount that would cause the Company’s net tangible assets to be less than US$5,000,001.

 

 

197. If the Company initiates any tender offer in accordance with Rule 13e-4 and Regulation 14E of the US Exchange Act in connection with a Business Combination, it shall file tender offer documents with the SEC prior to completing a Business Combination which contain substantially the same financial and other information about such Business Combination and the redemption rights as is required under Regulation 14A of the US Exchange Act. If, alternatively, the Company holds a Shareholder vote to approve a proposed Business Combination, the Company will conduct any redemptions in conjunction with a proxy solicitation pursuant to Regulation 14A of the US Exchange Act, and not pursuant to the tender offer rules, and file proxy materials with the SEC.

 

198. At a general meeting called for the purposes of approving a Business Combination pursuant to this Article, in the event that a majority of the Shares voted are voted for the approval of the Business Combination, the Company shall be authorised to consummate the Business Combination.

 

199. Any Shareholder holding Public Shares who is not a Founder, officer or Director may, contemporaneously with any vote on a Business Combination, elect to have their Public Shares redeemed for cash (IPO Redemption), provided that no such Member acting together with any affiliate of his or any other person with whom he is acting in concert or as a partnership, syndicate, or other group for the purposes of acquiring, holding, or disposing of Shares may exercise this redemption right with respect to more than 15 per cent of the Public Shares, and provided further that any holder that holds Public Shares beneficially through a nominee must identify itself to the Company in connection with any redemption election in order to validly redeem such Public Shares. In connection with any vote held to approve a proposed Business Combination, holders of Public Shares seeking to exercise their redemption rights will be required to either tender their certificates (if any) to the Company’s transfer agent or to deliver their shares to the transfer agent electronically using The Depository Trust Company’s DWAC (Deposit/Withdrawal At Custodian) System, at the holder’s option, in each case up to two business days prior to the initially scheduled vote on the proposal to approve a Business Combination. If so demanded, the Company shall pay any such redeeming Member, regardless of whether he is voting for or against such proposed Business Combination, a per-Share redemption price payable in cash, equal to the aggregate amount then on deposit in the Trust Account calculated as of two business days prior to the consummation of the Business Combination, including interest earned on the Trust Account and not previously released to the Company to pay income taxes, if any, divided by the number of Public Shares then in issue (such redemption price being referred to herein as the Redemption Price), provided that the Company shall not redeem Public Shares in an amount that would cause the Company’s net tangible assets to be less than US$5,000,001.

 

200. The Redemption Price shall be paid promptly following the consummation of the relevant Business Combination. If the proposed Business Combination is not approved or completed for any reason then such redemptions shall be cancelled and share certificates (if any) returned to the relevant Shareholders as appropriate.

 

 

201. In the event that:

 

(a) either (i) the Company does not consummate a Business Combination within 24 months after the date of the closing of the IPO, or such later time as the Members may approve in accordance with the Articles or (ii) a resolution of the Members is passed pursuant to the Statute to commence the voluntary liquidation of the Company prior to the consummation of a Business Combination for any reason, the Company shall: (x) cease all operations except for the purpose of winding up; (y) as promptly as reasonably possible but not more than ten business days thereafter, redeem the Public Shares, at a per-Share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest earned on the Trust Account and not previously released to the Company to pay income taxes, if any, (less up to $100,000 of interest to pay dissolution expenses), divided by the number of Public Shares then in issue, which redemption will completely extinguish public Members’ rights as Members (including the right to receive further liquidation distributions, if any); and (z) as promptly as reasonably possible following such redemption, subject to the approval of the Company’s remaining Members and the Directors, liquidate and dissolve, subject in the case of sub-articles(y) and (z), to its obligations under Cayman Islands law to provide for claims of creditors and in all cases subject to the other requirements of Applicable Law; and

 

(b) any amendment is made to Article 201(a) that would affect the substance or timing of the Company’s obligation to redeem 100% of the Public Shares if the Company has not consummated an initial Business Combination within 24 months after the date of the closing of the IPO, or any amendment is made with respect to any other provision of the Articles relating to the rights of holders of Class A Shares, each holder of Public Shares who is not a Founder, officer or Director shall be provided with the opportunity to redeem their Public Shares upon the approval of any such amendment at a per-Share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest earned on the Trust Account and not previously released to the Company to pay our income taxes, if any, (less up to US$100,000 of interest to pay dissolution expenses), divided by the number of Public Shares then in issue.

 

202. Except for the withdrawal of interest to pay income taxes, if any, none of the funds held in the Trust Account shall be released from the Trust Account until the earlier of an IPO Redemption, a repurchase of Shares by means of a tender offer pursuant to this Article or a distribution of the Trust Account pursuant to this Article. In no other circumstance shall a holder of Public Shares have any right or interest of any kind in the Trust Account.

 

203. After the issue of Public Shares, and prior to the consummation of a Business Combination, the Directors shall not issue additional Shares or any other securities that would entitle the holders thereof to:

 

(a) receive funds from the Trust Account; or

 

 

(b) vote on (i) any Business Combination or any other proposal presented to the Members prior to or in connection with the completion of a Business Combination, or (ii) a proposed amendment to the Articles to extend the time the Company has to consummate a Business Combination beyond 24 months after the date of the closing of the IPO or otherwise amend this Article.

 

204. The Company must complete one or more Business Combinations having an aggregate fair market value of at least 80 per cent of the assets held in the Trust Account (net of amounts previously disbursed to the Company’s management for working capital purposes and excluding the amount of deferred underwriting discounts held in the Trust Account and taxes payable on the income earned on the Trust Account) at the time of the Company’s signing a definitive agreement in connection with a Business Combination. An initial Business Combination must not be effectuated solely with another blank cheque company or a similar company with nominal operations.

 

205. Any payment made to members of the Audit Committee (if one exists) shall require the review and approval of the Directors, with any Director interested in such payment abstaining from such review and approval.

 

206. A Director may vote in respect of any Business Combination in which such Director has a conflict of interest with respect to the evaluation of such Business Combination. Such Director must disclose such interest or conflict to the other Directors.

 

207. The Audit Committee shall monitor compliance with the terms of the IPO and, if any non-compliance is identified, the Audit Committee shall be charged with the responsibility to take all action necessary to rectify such non-compliance or otherwise cause compliance with the terms of the IPO.

 

208. The Company may enter into a Business Combination with a target business that is affiliated with the Sponsor, the Directors or officers of the Company if such transaction is approved by a majority of the independent directors (as defined pursuant to the rules and regulations of the Designated Stock Exchange) and the Directors that did not have an interest in such transaction. In the event the Company enters into a Business Combination with an entity that is affiliated with the Sponsor, the Directors or officers of the Company, the Company, or a committee of independent directors (as defined pursuant to the rules and regulations of the Designated Stock Exchange), will obtain an opinion that the Business Combination is fair to the Company from a financial point of view from either an independent investment banking firm that is a member of the Financial Industry Regulatory Authority, Inc. (FINRA) or an independent accounting firm.

 

BUSINESS OPPORTUNITIES

 

209. In recognition and anticipation of the facts that: (a) directors, managers, officers, members, partners, managing members, employees and/or agents of one or more members of the Investor Group (each of the foregoing, an Investor Group Related Person) may serve as Directors and/or officers of the Company; and (b) the Investor Group engages, and may continue to engage in the same or similar activities or related lines of business as those in which the Company, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Company, directly or indirectly, may engage, the provisions of this Article are set forth to regulate and define the conduct of certain affairs of the Company as they may involve the Shareholders and the Investor Group Related Persons, and the powers, rights, duties and liabilities of the Company and its Directors, officers and Shareholders in connection therewith.

 

 

210. To the fullest extent permitted by Applicable Law, the Investor Group and the Investor Group Related Persons shall have no duty, except and to the extent expressly assumed by contract, to refrain from engaging directly or indirectly in the same or similar business activities or lines of business as the Company.

 

211. To the fullest extent permitted by Applicable Law, the Company renounces any interest or expectancy of the Company in, or in being offered an opportunity to participate in, any potential transaction or matter which may be a corporate opportunity for either the Investor Group or the Investor Group Related Persons, on the one hand, and the Company, on the other, unless such opportunity is expressly offered to such Investor Group Related Person in their capacity as a Director or officer of the Company and the opportunity is one the Company is permitted to complete on a reasonable basis.

 

212. Except to the extent expressly assumed by contract, to the fullest extent permitted by Applicable Law, the Investor Group and the Investor Group Related Persons shall have no duty to communicate or offer any such corporate opportunity to the Company and shall not be liable to the Company or its Shareholders for breach of any fiduciary duty as a Shareholder, Director and/or officer of the Company solely by reason of the fact that such party pursues or acquires such corporate opportunity for itself, himself or herself, directs such corporate opportunity to another person, or does not communicate information regarding such corporate opportunity to the Company, unless such opportunity is expressly offered to such Investor Group Related Person in their capacity as a Director or officer of the Company and the opportunity is one the Company is permitted to complete on a reasonable basis.

 

213. Except as provided elsewhere in the Articles, the Company renounces any interest or expectancy of the Company in, or in being offered an opportunity to participate in, any potential transaction or matter which may be a corporate opportunity for both the Company and the Investor Group, about which a Director and/or officer of the Company who is also an Investor Group Related Person acquires knowledge, unless such opportunity is expressly offered to such person solely in his or her capacity as a Director or officer of the Company and such opportunity is one the Company is legally and contractually permitted to undertake and would otherwise be reasonable for the Company to pursue.

 

 

214. To the extent a court might hold that the conduct of any activity related to a corporate opportunity that is renounced in this Article to be a breach of duty to the Company or its Shareholders, the Company and (if applicable) each Shareholder hereby waives, to the fullest extent permitted by Applicable Law, any and all claims and causes of action that the Company or such Shareholder may have for such activities described in this Article. To the fullest extent permitted by Applicable Law, the provisions of this Article apply equally to activities conducted in the future and that have been conducted in the past.

 

CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE

 

215. For the purpose of determining Shareholders entitled to notice of, or to vote at any meeting of Shareholders or any adjournment thereof, or Shareholders entitled to receive payment of any Dividend or other distribution, or in order to make a determination of Shareholders for any other purpose, the Directors may, by any means in accordance with the requirements of any Designated Stock Exchange, provide that the Register of Members shall be closed for transfers for a stated period which shall not in any case exceed forty days.

 

216. In lieu of, or apart from, closing the Register of Members, the Directors may fix in advance or arrears a date as the record date for any such determination of Shareholders entitled to notice of, or to vote at any meeting of the Shareholders or any adjournment thereof, or for the purpose of determining the Shareholders entitled to receive payment of any Dividend or other distribution, or in order to make a determination of Shareholders for any other purpose.

 

217. If no record date is fixed for the determination of Shareholders entitled to notice of or to vote at a meeting of Shareholders or Shareholders entitled to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of Shareholders. When a determination of Shareholders entitled to vote at any meeting has been made in the manner provided in the preceding Article, such determination shall apply to any adjournment thereof.

 

REGISTRATION BY WAY OF CONTINUATION

 

218. The Company may by Special Resolution resolve to be registered by way of continuation in a jurisdiction outside the Cayman Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing. The Directors may cause an application to be made to the Registrar of Companies to deregister the Company in the Cayman Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing and may cause all such further steps as they consider appropriate to be taken to effect the transfer by way of continuation of the Company.

 

FINANCIAL YEAR

 

219. The Directors shall determine the financial year of the Company and may change the same from time to time. Unless they determine otherwise, the fiscal year shall end on 31 December in each year.

 

 

AMENDMENTS TO MEMORANDUM AND ARTICLES OF ASSOCIATION

 

220. The Company may from time to time alter or add to these Articles or alter or add to the Memorandum with respect to any objects, powers or other matters specified therein by passing a Special Resolution in the manner prescribed by the Companies Act (subject to the definition of “Special Resolution”, Article 132 and Articles 194 to 208.

 

CAYMAN ISLANDS DATA PROTECTION

 

221. The Company is a “data controller” for the purposes of the Data Protection Act, 2017 (as amended, the DPA). By virtue of subscribing for and holding Shares in the Company, Shareholders provide the Company with certain information (Personal Data) that constitutes “personal data” under the DPA. Personal Data includes, without limitation, the following information relating to a Shareholder and/or any natural person(s) connected with a Shareholder (such as a Shareholder’s individual directors, members and/or beneficial owner(s)): name, residential address, email address, corporate contact information, other contact information, date of birth, place of birth, passport or other national identifier details, national insurance or social security number, tax identification, bank account details and information regarding assets, income, employment and source of funds.

 

222. The Company processes such Personal Data for the purposes of:

 

(a) performing contractual rights and obligations (including under the constitutional documents of the Company);

 

(b) complying with legal or regulatory obligations (including those relating to anti-money laundering and counter-terrorist financing, preventing and detecting fraud, sanctions, automatic exchange of tax information, requests from governmental, regulatory, tax and law enforcement authorities, beneficial ownership and maintaining statutory registers); and

 

(c) the legitimate interests pursued by the Company or third parties to whom Personal Data may be transferred, including to manage and administer the Company, to send updates, information and notices to Shareholders or otherwise correspond with Shareholders regarding the Company, to seek professional advice, including legal advice, to meet accounting, tax reporting and audit obligations, to manage risk and operations and to maintain internal records.

 

223. The Company transfers Personal Data to certain third parties who process the Personal Data on the Company’s behalf, including third party service providers that it appoints or engages to assist with the Company’s management, operation, administration and legal, governance and regulatory compliance. In certain circumstances, the Company may be required by law or regulation to transfer Personal Data and other information with respect to one or more Shareholder(s) to governmental, regulatory, tax and law enforcement authorities. They may, in turn, exchange this information with other governmental, regulatory, tax and law enforcement authorities (including in jurisdictions other than the Cayman Islands).

 

 

 

Exhibit 4.1

 

SPECIMEN UNIT CERTIFICATE

NUMBER UNITS U-

SEE REVERSE FOR	L CATTERTON ASIA ACQUISITION CORP
CERTAIN
DEFINITIONS

 

CUSIP [•]

 

UNITS CONSISTING OF ONE CLASS A ORDINARY SHARE AND ONE-THIRD OF ONE
REDEEMABLE

WARRANT TO PURCHASE ONE CLASS A ORDINARY SHARE

 

THIS CERTIFIES THAT is the owner of Units.

 

Each Unit (“Unit”) consists of one (1) Class A ordinary share, par value $0.0001 per share (“Ordinary Shares”), of L Catterton Asia Acquisition Corp, a Cayman Islands exempted company (the “Company”), and one-third (1/3) of one redeemable warrant (each whole warrant, a “Warrant”). Each Warrant entitles the holder to purchase one (1) Ordinary Share for $11.50 per share (subject to adjustment). Each Warrant will become exercisable on the later of (i) thirty (30) days after the Company’s completion of a merger, share exchange, asset acquisition, share purchase, reorganization or other similar business combination with one or more businesses (each, a “Business Combination”), and (ii) twelve (12) months from the closing of the Company’s initial public offering, and will expire unless exercised before 5:00 p.m., New York City Time, on the date that is five (5) years after the date on which the Company completes its initial Business Combination, or earlier upon redemption or liquidation (the “Expiration Date”). The Ordinary Shares and Warrants comprising the Units represented by this certificate will begin separate trading on the 52nd day following the date of the prospectus that is filed in connection with the offering of the Units (or, if such date is not a business day, the following business day), unless Credit Suisse Securities (USA) LLC elects to allow earlier separate trading, subject to the Company’s filing with the Securities and Exchange Commission of a Current Report on Form 8-K containing an audited balance sheet reflecting the Company’s receipt of the gross proceeds of the initial public offering and issuing a press release announcing when separate trading will begin. No fractional warrants will be issued upon separation of the Units and only Warrants are exercisable. The terms of the Warrants are governed by a Warrant Agreement, dated as of , 2021, between the Company and Continental Stock Transfer & Trust Company, as Warrant Agent, and are subject to the terms and provisions contained therein, all of which terms and provisions the holder of this certificate consents to by acceptance hereof. Copies of the Warrant Agreement are on file at the office of the Warrant Agent at 1 State Street, 30th Floor, New York, New York 10004, and are available to any Warrant holder on written request and without cost.

 

Upon the consummation of the Business Combination, the Units represented by this certificate will automatically separate into the Class A Ordinary Shares and Warrants comprising such Units.

 

This certificate is not valid unless countersigned by the Transfer Agent and Registrar of the Company.

 

This certificate shall be governed by and construed in accordance with the internal laws of the State of New York.

 

Witness the facsimile signatures of its duly authorized officers.

 

By
	Co-Chief Executive Officer and Director

 

 

L Catterton Asia Acquisition Corp

 

The Company will furnish without charge to each unitholder who so requests, a statement of the powers, designations, preferences and relative, participating, optional or other special rights of each class of shares or series thereof of the Company and the qualifications, limitations or restrictions of such preferences and/or rights.

 

The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:

 

TEN COM	—	as tenants in common		UNIF GIFT MIN ACT	—		Custodian
						(Cust)		(Minor)
TEN ENT	—	as tenants by the entireties				under Uniform Gifts to Minors Act
						(State)
JT TEN	—	as joint tenants with right of survivorship and not as tenants in common

 

Additional abbreviations may also be used though not in the above list.

 

 

For value received, hereby sells, assigns and transfers unto

 

PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE

(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)

 

Units represented by the within Certificate, and do hereby irrevocably constitute and appoint Attorney to transfer the said Units on the books of the within named Company with full power of substitution in the premises.

 

Dated
			Notice: The signature to this assignment must correspond with the name as written upon the face of the certificate in every particular, without alteration or enlargement or any change whatever.
Signature(s) Guaranteed:
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 OR ANY SUCCESSOR RULES).

 

In each case, as more fully described in the Company’s final prospectus dated [•], 2021, the holder(s) of this certificate shall be entitled to receive a pro-rata portion of certain funds held in the trust account established in connection with the Company’s initial public offering only in the event that (i) the Company redeems the Ordinary Shares sold in its initial public offering and liquidates because it does not consummate an initial business combination within the period of time set forth in the Company’s amended and restated memorandum and articles of association, as the same may be amended from time to time, (ii) the Company redeems the Ordinary Shares sold in its initial public offering in connection with a shareholder vote to amend the Company’s amended and restated memorandum and articles of association (A) that would modify the substance or timing of the Company’s obligation to provide holders of the Ordinary Shares the right to have their shares redeemed in connection with the Company’s initial business combination or to redeem 100% of the Ordinary Shares if the Company does not complete its initial business combination within the time period set forth therein or (B) with respect to any other provision relating to the rights of holders of the Ordinary Shares, or (iii) if the holder(s) seek(s) to redeem for cash his, her or its respective Ordinary Shares in connection with a tender offer (or proxy solicitation, solely in the event the Company seeks shareholder approval of the proposed initial business combination) setting forth the details of a proposed initial business combination. In no other circumstances shall the holder(s) have any right or interest of any kind in or to the trust account.

 

 

 

Exhibit 4.2

 

SPECIMEN CLASS A ORDINARY SHARE CERTIFICATE

 

NUMBER

SHARES

 

L CATTERTON ASIA ACQUISITION CORP

INCORPORATED UNDER THE LAWS OF THE CAYMAN ISLANDS

CLASS A ORDINARY SHARES

 

SEE REVERSE FOR

CERTAIN DEFINITIONS

CUSIP [•]

 

This Certifies that is the owner of

 

       FULLY PAID AND NON-ASSESSABLE CLASS A ORDINARY SHARES OF THE PAR VALUE OF

       US$0.0001 EACH OF L CATTERTON ASIA ACQUISITION CORP (THE “COMPANY”)

 

subject to the Company’s amended and restated memorandum and articles of association, as the same may be amended from time to time, and transferable on the books of the Company in person or by duly authorized attorney upon surrender of this certificate properly endorsed.

The Company will be forced to redeem all of its Class A ordinary shares if it is unable to complete a business combination within the period set forth in the Company’s amended and restated memorandum and articles of association, as the same may be amended from time to time, all as more fully described in the Company’s final prospectus dated [•], 2021.

This certificate is not valid unless countersigned by the Transfer Agent and registered by the Registrar.

Witness the facsimile signatures of its duly authorized officers.

 

Dated:
Co-Chief Executive Officer and Director

 

 

L CATTERTON ASIA ACQUISITION CORP

 

The Company will furnish without charge to each shareholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of shares or series thereof of the Company and the qualifications, limitations, or restrictions of such preferences and/or rights. This certificate and the shares represented thereby are issued and shall be held subject to all the provisions of the Company’s amended and restated memorandum and articles of association, as the same may be amended from time to time, and resolutions of the Board of Directors providing for the issue of Class A ordinary shares (copies of which may be obtained from the Board of Directors of the Company), to all of which the holder of this certificate by acceptance hereof assents. The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:

 

TEN COM	—	as tenants in common		UNIF GIFT MIN ACT	—		Custodian
						(Cust)		(Minor)
TEN ENT	—	as tenants by the entireties				under Uniform Gifts to Minors Act
						(State)
JT TEN	—	as joint tenants with right of survivorship and not as tenants in common

 

Additional abbreviations may also be used though not in the above list.

 

 

For value received, hereby sells, assigns and transfers unto

 

(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER(S) OF ASSIGNEE(S))

(PLEASE PRINT OR TYPEWRITE NAME(S) AND ADDRESS(ES), INCLUDING ZIP CODE, OF ASSIGNEE(S))

 

Shares represented by the within Certificate, and does hereby irrevocably constitute and appoint Attorney to transfer the said shares on the register of members of the within named Company with full power of substitution in the premises.

 

Dated
			Shareholder
			NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
Signature(s) Guaranteed:
By:

 

THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO SEC RULE 17Ad-15 OR ANY SUCCESSOR RULE).

 

In each case, as more fully described in the Company’s final prospectus dated [•], 2021, the holder(s) of this certificate shall be entitled to receive a pro-rata portion of certain funds held in the trust account established in connection with its initial public offering only in the event that (i) the Company redeems the Class A ordinary shares sold in its initial public offering and liquidates because it does not consummate an initial business combination within the period of time set forth in the Company’s amended and restated memorandum and articles of association, as the same may be amended from time to time, (ii) the Company redeems the Class A ordinary shares sold in its initial public offering in connection with a shareholder vote to amend the Company’s amended and restated memorandum and articles of association (A) that would modify the substance or timing of the Company’s obligation to provide holders of the Class A ordinary shares the right to have their shares redeemed in connection with the Company’s initial business combination or to redeem 100% of the Class A ordinary shares if the Company does not complete its initial business combination within the time period set forth therein or (B) with respect to any other provision relating to the rights of holders of the Class A ordinary shares, or (iii) if the holder(s) seek(s) to redeem for cash his, her or its respective Class A ordinary shares in connection with a tender offer (or proxy solicitation, solely in the event the Company seeks shareholder approval of the proposed initial business combination) setting forth the details of a proposed initial business combination. In no other circumstances shall the holder(s) have any right or interest of any kind in or to the trust account.

 

 

 

Exhibit 4.3

 

[FACE] 

 

Number 

Warrants 

THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO 

THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR 

IN THE WARRANT AGREEMENT DESCRIBED BELOW

L CATTERTON ASIA ACQUISITION CORP
Incorporated Under the Laws of the Cayman Islands 

 

CUSIP [•]

 

Warrant Certificate

 

This Warrant Certificate certifies that [ ], or registered assigns, is the registered holder of [ ] warrant(s) (the “Warrants” and each, a “Warrant”) to purchase Class A ordinary shares, $0.0001 par value (“Ordinary Shares”), of L Catterton Asia Acquisition Corp, a Cayman Islands exempted company (the “Company”). Each Warrant entitles the holder, upon exercise during the period set forth in the Warrant Agreement referred to below, to receive from the Company that number of fully paid and nonassessable Ordinary Shares as set forth below, at the exercise price (the “Exercise Price”) as determined pursuant to the Warrant Agreement, payable in lawful money (or through “cashless exercise” as provided for in the Warrant Agreement) of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent referred to below, subject to the conditions set forth herein and in the Warrant Agreement. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.

 

Each whole Warrant is initially exercisable for one fully paid and non-assessable Ordinary Share. Fractional shares shall not be issued upon exercise of any Warrant. If, upon the exercise of Warrants, a holder would be entitled to receive a fractional interest in an Ordinary Share, the Company shall, upon exercise, round down to the nearest whole number the number of Ordinary Shares to be issued to the Warrant holder. The number of Ordinary Shares issuable upon exercise of the Warrants is subject to adjustment upon the occurrence of certain events as set forth in the Warrant Agreement.

 

The initial Exercise Price per one Ordinary Share for any Warrant is equal to $11.50 per share. The Exercise Price is subject to adjustment upon the occurrence of certain events as set forth in the Warrant Agreement.

 

Subject to the conditions set forth in the Warrant Agreement, the Warrants may be exercised only during the Exercise Period and to the extent not exercised by the end of such Exercise Period, such Warrants shall become void. The Warrants may be redeemed, subject to certain conditions as set forth in the Warrant Agreement.

 

Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.

 

This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement. This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York.

 

 

	L CATTERTON ASIA ACQUISITION CORP
	By:
		Name:	Chinta Bhagat
		Title:	Co-Chief Executive Officer and Director
	CONTINENTAL STOCK TRANSFER & TRUST COMPANY,
	AS WARRANT AGENT
	By:
		Name:
		Title:

 

 

[Form of Warrant Certificate] 

[Reverse]

 

The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive [ ] Ordinary Shares and are issued or to be issued pursuant to a Warrant Agreement dated as of [•], 2021 (the “Warrant Agreement”), duly executed and delivered by the Company to Continental Stock Transfer & Trust Company, a New York limited purpose trust company, as warrant agent (the “Warrant Agent”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the Registered Holders or Registered Holder, respectively) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.

 

Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of Election to Purchase set forth hereon properly completed and executed, together with payment of the Exercise Price as specified in the Warrant Agreement (or through “cashless exercise” as provided for in the Warrant Agreement) at the principal corporate trust office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof, or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised.

 

Notwithstanding anything else in this Warrant Certificate or the Warrant Agreement, no Warrant may be exercised unless at the time of exercise (i) a registration statement covering the issuance of the Ordinary Shares to be issued upon exercise is effective under the Securities Act and (ii) a prospectus thereunder relating to the Ordinary Shares is current, except through “cashless exercise” as provided for in the Warrant Agreement.

 

The Warrant Agreement provides that upon the occurrence of certain events the number of Ordinary Shares issuable upon exercise of the Warrants set forth on the face hereof may, subject to certain conditions, be adjusted. If, upon exercise of a Warrant, the holder thereof would be entitled to receive a fractional interest in an Ordinary Share, the Company shall, upon exercise, round down to the nearest whole number of Ordinary Shares to be issued to the holder of the Warrant.

 

Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.

 

Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.

 

The Company and the Warrant Agent may deem and treat the Registered Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a shareholder of the Company.

 

 

Election to Purchase 

(To Be Executed Upon Exercise of Warrant)

 

The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to receive [ ] Ordinary Shares and herewith tenders payment for such Ordinary Shares to the order of L Catterton Asia Acquisition Corp (the “Company”) in the amount of $[ ] in accordance with the terms hereof. The undersigned requests that a certificate for such Ordinary Shares be registered in the name of [ ], whose address is [ ] and that such Ordinary Shares be delivered to [ ], whose address is [ ]. If said [ ] number of Ordinary Shares is less than all of the Ordinary Shares purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such Ordinary Shares be registered in the name of [ ], whose address is [ ] and that such Warrant Certificate be delivered to [ ], whose address is [ ].

 

In the event that the Warrant has been called for redemption by the Company pursuant to Section 6.2 of the Warrant Agreement and a holder thereof elects to exercise its Warrant pursuant to a Make-Whole Exercise, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(c) or Section 6.2 of the Warrant Agreement, as applicable.

 

In the event that the Warrant is a Private Placement Warrant that is to be exercised on a “cashless” basis pursuant to subsection 3.3.1(c) of the Warrant Agreement, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(c) of the Warrant Agreement.

 

In the event that the Warrant is to be exercised on a “cashless” basis pursuant to Section 7.4 of the Warrant Agreement, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with Section 7.4 of the Warrant Agreement.

 

In the event that the Warrant may be exercised, to the extent allowed by the Warrant Agreement, through cashless exercise (i) the number of Ordinary Shares that this Warrant is exercisable for would be determined in accordance with the relevant section of the Warrant Agreement which allows for such cashless exercise and (ii) the holder hereof shall complete the following: The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, through the cashless exercise provisions of the Warrant Agreement, to receive Ordinary Shares. If said number of shares is less than all of the Ordinary Shares purchasable hereunder (after giving effect to the cashless exercise), the undersigned requests that a new Warrant Certificate representing the remaining balance of such Ordinary Shares be registered in the name of [ ], whose address is [ ] and that such Warrant Certificate be delivered to [ ], whose address is [ ].

 

[Signature Page Follows]

 

 

Date: [ ]

 

	(Signature)
	(Address)
	(Tax Identification Number)

 

Signature Guaranteed:

THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED).

 

 

 

Exhibit 4.4

 

WARRANT AGREEMENT

L CATTERTON ASIA ACQUISITION CORP

and

CONTINENTAL STOCK TRANSFER & TRUST COMPANY

Dated March 10, 2021

 

THIS WARRANT AGREEMENT (this “Agreement”), dated March 10, 2021, is by and between L Catterton Asia Acquisition Corp, a Cayman Islands exempted company (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (in such capacity, the “Warrant Agent”).

 

WHEREAS, it is proposed that the Company enter into that certain Private Placement Warrants Purchase Agreement, with LCA Acquisition Sponsor, LP, a Cayman Islands exempted limited partnership (the “Sponsor”), pursuant to which the Sponsor will purchase an aggregate of 5,000,000 warrants (or up to 5,500,000 warrants if the underwriters in the Offering (defined below) exercise their Over-allotment Option (as defined below) in full) simultaneously with the closing of the Offering (and the closing of the Over-allotment Option, if applicable), bearing the legend set forth in Exhibit B hereto (the “Private Placement Warrants”) at a purchase price of $1.50 per Private Placement Warrant. Each Private Placement Warrant entitles the holder thereof to purchase one Ordinary Share (as defined below) at a price of $11.50 per share, subject to adjustment as described herein;

 

WHEREAS, in order to finance the Company’s transaction costs in connection with an intended initial merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination, involving the Company and one or more businesses (a “Business Combination”), the Sponsor or an affiliate of the Sponsor or certain of the Company’s officers and directors may, but are not obligated to, loan the Company funds as the Company may require, of which up to $1,500,000 of such loans may be convertible into up to an additional 1,000,000 Private Placement Warrants at a price of $1.50 per Private Placement Warrant; and

 

WHEREAS, the Company is engaged in an initial public offering (the “Offering”) of units of the Company’s equity securities, each such unit comprised of one Ordinary Share and one-third of one Public Warrant (as defined below) (the “Units”) and, in connection therewith, has determined to issue and deliver up to 9,583,333 redeemable warrants (including up to 1,250,000 redeemable warrants subject to the Over-allotment Option) to public investors in the Offering (the “Public Warrants” and, together with the Private Placement Warrants, the “Warrants”). Each whole Warrant entitles the holder thereof to purchase one Class A ordinary share of the Company, par value $0.0001 per share (the “Ordinary Shares”), for $11.50 per share, subject to adjustment as described herein. Only whole Warrants are exercisable. A holder of the Public Warrants will not be able to exercise any fraction of a Warrant; and

 

WHEREAS, the Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-1, File No. 333-253334, and a prospectus (the “Prospectus”), for the registration, under the Securities Act of 1933, as amended (the “Securities Act”), of the Units, the Public Warrants and the Ordinary Shares included in the Units; and

 

WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of the Warrants; and

 

WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent and the holders of the Warrants; and

 

 

WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent (if a physical certificate is issued), as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.

 

NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:

 

1. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement.

 

2. Warrants.

 

2.1 Form of Warrant. Each Warrant shall initially be issued in registered form only.

 

2.2 Effect of Countersignature. If a physical certificate is issued, unless and until countersigned by the Warrant Agent pursuant to this Agreement, a certificated Warrant shall be invalid and of no effect and may not be exercised by the holder thereof.

 

2.3 Registration.

 

2.3.1 Warrant Register. The Warrant Agent shall maintain books (the “Warrant Register”), for the registration of original issuance and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants in book-entry form, the Warrant Agent shall issue and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by the Company. Ownership of beneficial interests in the Public Warrants shall be shown on, and the transfer of such ownership shall be effected through, records maintained by institutions that have accounts with The Depository Trust Company (the “Depositary”) (such institution, with respect to a Warrant in its account, a “Participant”).

 

If the Depositary subsequently ceases to make its book-entry settlement system available for the Public Warrants, the Company may instruct the Warrant Agent regarding making other arrangements for book-entry settlement. In the event that the Public Warrants are not eligible for, or it is no longer necessary to have the Public Warrants available in, book-entry form, the Warrant Agent shall provide written instructions to the Depositary to deliver to the Warrant Agent for cancellation each book-entry Public Warrant, and the Company shall instruct the Warrant Agent to deliver to the Depositary definitive certificates in physical form evidencing such Warrants (“Definitive Warrant Certificates”), which shall be in the form annexed hereto as Exhibit A.

 

Physical certificates, if issued, shall be signed by, or bear the facsimile signature of, the Chairman of the Board and the Chief Executive Officer or other principal officer of the Company. In the event the person whose facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.

 

2.3.2 Registered Holder. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose name such Warrant is registered in the Warrant Register (the “Registered Holder”) as the absolute owner of such Warrant and of each Warrant represented thereby, for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.

 

2.4 Detachability of Warrants. The Ordinary Shares and Public Warrants comprising the Units shall begin separate trading on the 52nd day following the date of the Prospectus or, if such 52nd day is not on a day, other than a Saturday, Sunday or federal holiday, on which banks in New York City are generally open for normal business (a “Business Day”), then on the immediately succeeding Business Day following such date, or earlier (the “Detachment Date”) with the consent of Citigroup Global Markets Inc., but in no event shall the Ordinary Shares and the Public Warrants comprising the Units be separately traded until (A) the Company has filed a Current Report on Form 8-K with the Commission containing an audited balance sheet reflecting the receipt by the Company of the gross proceeds of the Offering, including the proceeds then received by the Company from the exercise by the underwriters of their right to purchase additional Units in the Offering (the “Over-allotment Option”), if the Over-allotment Option is exercised prior to the filing of the Current Report on Form 8-K, and (B) the Company issues a press release announcing when such separate trading shall begin.

 

 

2.5 Fractional Warrants. The Company shall not issue fractional Warrants other than as part of the Units, each of which is comprised of one Ordinary Share and one-third of one whole Public Warrant. If, upon the detachment of Public Warrants from the Units or otherwise, a holder of Warrants would be entitled to receive a fractional Warrant, the Company shall round down to the nearest whole number the number of Warrants to be issued to such holder.

 

2.6 Private Placement Warrants; Forward Purchase Warrants.

 

2.6.1 The Private Placement Warrants shall be identical to the Public Warrants, except that so long as they are held by the Sponsor or any of its Permitted Transferees (as defined below), the Private Placement Warrants: (i) may be exercised for cash or on a “cashless basis,” pursuant to subsection 3.3.1(c) hereof, (ii) including the Ordinary Shares issuable upon exercise of the Private Placement Warrants, may not be transferred, assigned or sold until thirty (30) days after the completion by the Company of an initial Business Combination, (iii) shall not be redeemable by the Company pursuant to Section 6.1 hereof and (iv) shall only be redeemable by the Company pursuant to Section 6.2 if the Reference Value (as defined below) is less than $18.00 per share (subject to adjustment in compliance with Section 4 hereof); provided, however, that in the case of (ii), the Private Placement Warrants and any Ordinary Shares issued upon exercise of the Private Placement Warrants may be transferred by the holders thereof:

 

(a) to the Company’s officers or directors, any affiliates or family members of any of the Company’s officers or directors, any members or partners of the Sponsor or their affiliates, any affiliates of the Sponsor, or any employees of such affiliates;

 

(b) in the case of an individual, by gift to a member of the individual’s immediate family or to a trust, the beneficiary of which is a member of the individual’s immediate family, an affiliate of such person or to a charitable organization;

 

(c) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual;

 

(d) in the case of an individual, pursuant to a qualified domestic relations order;

 

(e) by private sales or transfers made in connection with any forward purchase agreement or similar arrangement or in connection with the consummation of the Company’s Business Combination at prices no greater than the price at which the Private Placement Warrants or Ordinary Shares, as applicable, were originally purchased;

 

(f) by virtue of the Sponsor’s organizational documents upon liquidation or dissolution of the Sponsor;

 

(g) to the Company for no value for cancellation in connection with the consummation of our initial Business Combination;

 

(h) in the event of the Company’s liquidation prior to the completion of its initial Business Combination; or

 

(i) in the event of the Company’s completion of a liquidation, merger, share exchange or other similar transaction which results in all of the public shareholders having the right to exchange their Ordinary Shares for cash, securities or other property subsequent to the completion of the Company’s initial Business Combination; provided, however, that, in the case of clauses (a) through (f), these permitted transferees (the “Permitted Transferees”) must enter into a written agreement with the Company agreeing to be bound by the transfer restrictions in this Agreement.

 

 

2.6.2 Forward Purchase Warrants. The Forward Purchase Warrants shall have the same terms and be in the same form as the Private Placement Warrants.

 

3. Terms and Exercise of Warrants.

 

3.1 Warrant Price. Each whole Warrant shall entitle the Registered Holder thereof, subject to the provisions of such Warrant and of this Agreement, to purchase from the Company the number of Ordinary Shares stated therein, at the price of $11.50 per share, subject to the adjustments provided in Section 4 hereof and in the last sentence of this Section 3.1. The term “Warrant Price” as used in this Agreement shall mean the price per share (including in cash or by payment of Warrants pursuant to a “cashless exercise,” to the extent permitted hereunder) described in the prior sentence at which Ordinary Shares may be purchased at the time a Warrant is exercised. The Company in its sole discretion may lower the Warrant Price at any time prior to the Expiration Date (as defined below) for a period of not less than fifteen Business Days (unless otherwise required by the Commission, any national securities exchange on which the Warrants are listed or applicable law); provided that the Company shall provide at least five days’ prior written notice of such reduction to Registered Holders of the Warrants; and provided further, that any such reduction shall be identical among all of the Warrants.

 

3.2 Duration of Warrants. A Warrant may be exercised only during the period (the “Exercise Period”) (A) commencing on the later of: (i) the date that is thirty (30) days after the first date on which the Company completes a Business Combination, and (ii) the date that is twelve (12) months from the date of the closing of the Offering, and (B) terminating at the earliest to occur of (x) 5:00 p.m., New York City time on the date that is five (5) years after the date on which the Company completes its initial Business Combination, (y) the liquidation of the Company in accordance with the Company’s amended and restated memorandum and articles of association, as amended from time to time, if the Company fails to complete a Business Combination, and (z) other than with respect to the Private Placement Warrants then held by the Sponsor or its Permitted Transferees with respect to a redemption pursuant to Section 6.1 hereof or, if the Reference Value equals or exceeds $18.00 per share (subject to adjustment in compliance with Section 4 hereof), Section 6.2 hereof, 5:00 p.m., New York City time on the Redemption Date (as defined below) as provided in Section 6.3 hereof (the “Expiration Date”); provided, however, that the exercise of any Warrant shall be subject to the satisfaction of any applicable conditions, as set forth in subsection 3.3.2 below, with respect to an effective registration statement or a valid exemption therefrom being available. Except with respect to the right to receive the Redemption Price (as defined below) (other than with respect to a Private Placement Warrant then held by the Sponsor or its Permitted Transferees in connection with a redemption pursuant to Section 6.1 hereof or, if the Reference Value equals or exceeds $18.00 per share (subject to adjustment in compliance with Section 4 hereof), Section 6.2 hereof), in the event of a redemption (as set forth in Section 6 hereof), each Warrant (other than a Private Placement Warrant then held by the Sponsor or its Permitted Transferees in the event of a redemption pursuant to Section 6.1 hereof or, if the Reference Value equals or exceeds $18.00 per share (subject to adjustment in compliance with Section 4 hereof), Section 6.2 hereof) not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at 5:00 p.m. New York City time on the Expiration Date. The Company in its sole discretion may extend the duration of the Warrants by delaying the Expiration Date; provided that the Company shall provide at least twenty (20) days prior written notice of any such extension to Registered Holders of the Warrants and, provided further that any such extension shall be identical in duration among all the Warrants.

 

3.3 Exercise of Warrants.

 

3.3.1 Payment. Subject to the provisions of the Warrant and this Agreement, a Warrant may be exercised by the Registered Holder thereof by delivering to the Warrant Agent at its corporate trust department (i) the Definitive Warrant Certificate evidencing the Warrants to be exercised, or, in the case of a Warrant represented by a book-entry, the Warrants to be exercised (the “Book-Entry Warrants”) on the records of the Depositary to an account of the Warrant Agent at the Depositary designated for such purposes in writing by the Warrant Agent to the Depositary from time to time, (ii) an election to purchase (the “Election to Purchase”) any Ordinary Shares pursuant to the exercise of a Warrant, properly completed and executed by the Registered Holder on the reverse of the Definitive Warrant Certificate or, in the case of a Book-Entry Warrant, properly delivered by the Participant in accordance with the Depositary’s procedures, and (iii) the payment in full of the Warrant Price for each Ordinary Share as to which the Warrant is exercised and any and all applicable taxes due in connection with the exercise of the Warrant, the exchange of the Warrant for the Ordinary Shares and the issuance of such Ordinary Shares, as follows:

 

(a) by wire transfer of immediately available funds in good certified check or good bank draft payable to the order of the Warrant Agent;

 

 

(b) [Reserved];

 

(c) with respect to any Private Placement Warrant, so long as such Private Placement Warrant is held by the Sponsor or a Permitted Transferee, by surrendering the Warrants for that number of Ordinary Shares equal to (i) if in connection with a redemption of Private Placement Warrants pursuant to Section 6.2 hereof, as provided in Section 6.2 hereof with respect to a Make-Whole Exercise (as defined below) and (ii) in all other scenarios the quotient obtained by dividing (x) the product of the number of Ordinary Shares underlying the Warrants, multiplied by the excess of the “Sponsor Exercise Fair Market Value” (as defined in this subsection 3.3.1(c)) over the Warrant Price by (y) the Sponsor Exercise Fair Market Value. Solely for purposes of this subsection 3.3.1(c), the “Sponsor Fair Market Value” shall mean the average last reported sale price of the Ordinary Shares for the ten (10) trading days ending on the third (3rd) trading day prior to the date on which notice of exercise of the Private Placement Warrant is sent to the Warrant Agent;

 

(d) as provided in Section 6.2 hereof with respect to a Make-Whole Exercise; or

 

(e) as provided in Section 7.4 hereof.

 

3.3.2 Issuance of Ordinary Shares on Exercise. As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of the Warrant Price (if payment is pursuant to subsection 3.3.1(a)), the Company shall issue to the Registered Holder of such Warrant a book-entry position or certificate, as applicable, for the number of Ordinary Shares to which he, she or it is entitled, registered in such name or names as may be directed by him, her or it on the register of members of the Company, and if such Warrant shall not have been exercised in full, a new book-entry position or countersigned Warrant, as applicable, for the number of shares as to which such Warrant shall not have been exercised. Notwithstanding the foregoing, the Company shall not be obligated to deliver any Ordinary Shares pursuant to the exercise of a Warrant and shall have no obligation to settle such Warrant exercise unless a registration statement under the Securities Act with respect to the Ordinary Shares underlying the Public Warrants is then effective and a prospectus relating thereto is current, subject to the Company’s satisfying its obligations under Section 7.4 or a valid exemption from registration is available. No Warrant shall be exercisable and the Company shall not be obligated to issue Ordinary Shares upon exercise of a Warrant unless the Ordinary Shares issuable upon such Warrant exercise have been registered, qualified or deemed to be exempt from registration or qualification under the securities laws of the state of residence of the Registered Holder of the Warrants. Subject to Section 4.6 of this Agreement, a Registered Holder of Warrants may exercise its Warrants only for a whole number of Ordinary Shares. The Company may require holders of Public Warrants to settle the Warrant on a “cashless basis” pursuant to Section 7.4. If, by reason of any exercise of Warrants on a “cashless basis”, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in an Ordinary Share, the Company shall round down to the nearest whole number, the number of Ordinary Shares to be issued to such holder.

 

3.3.3 Valid Issuance. All Ordinary Shares issued upon the proper exercise of a Warrant in conformity with this Agreement shall be validly issued, fully paid and nonassessable.

 

 

3.3.4 Date of Issuance. Each person in whose name any book-entry position or certificate, as applicable, for Ordinary Shares is issued and who is registered in the register of members of the Company shall for all purposes be deemed to have become the holder of record of such Ordinary Shares on the date on which the Warrant, or book-entry position representing such Warrant, was surrendered and payment of the Warrant Price was made, irrespective of the date of delivery of such certificate in the case of a certificated Warrant, except that, if the date of such surrender and payment is a date when the register of members of the Company or book-entry system of the Warrant Agent are closed, such person shall be deemed to have become the holder of such shares at the close of business on the next succeeding date on which the share transfer books or book-entry system are open.

 

3.3.5 Maximum Percentage. A holder of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection 3.3.5; however, no holder of a Warrant shall be subject to this subsection 3.3.5 unless he, she or it makes such election. If the election is made by a holder, the Warrant Agent shall not effect the exercise of the holder’s Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 9.8% (or such other amount as a holder may specify) (the “Maximum Percentage”) of the Ordinary Shares outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of Ordinary Shares beneficially owned by such person and its affiliates shall include the number of Ordinary Shares issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude Ordinary Shares that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred shares or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of outstanding Ordinary Shares, the holder may rely on the number of outstanding Ordinary Shares as reflected in (1) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the Commission as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or Continental Stock Transfer & Trust Company, as transfer agent (in such capacity, the “Transfer Agent”), setting forth the number of Ordinary Shares outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder the number of Ordinary Shares then outstanding. In any case, the number of issued and outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder and its affiliates since the date as of which such number of issued and outstanding Ordinary Shares was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company.

 

4. Adjustments.

 

4.1 Share Capitalizations.

 

4.1.1 Sub-Divisions. If after the date hereof, and subject to the provisions of Section 4.6 below, the number of issued and outstanding Ordinary Shares is increased by a capitalization or share dividend of Ordinary Shares, or by a sub-division of Ordinary Shares or other similar event, then, on the effective date of such share capitalization, sub-division or similar event, the number of Ordinary Shares issuable on exercise of each Warrant shall be increased in proportion to such increase in the issued and outstanding Ordinary Shares. A rights offering made to all or substantially all holders of Ordinary Shares entitling holders to purchase Ordinary Shares at a price less than the “Historical Fair Market Value” (as defined below) shall be deemed a capitalization of a number of Ordinary Shares equal to the product of (i) the number of Ordinary Shares actually sold in such rights offering (or issuable under any other equity securities sold in such rights offering that are convertible into or exercisable for the Ordinary Shares) multiplied by (ii) one (1) minus the quotient of (x) the price per Ordinary Share paid in such rights offering divided by (y) the Historical Fair Market Value. For purposes of this subsection 4.1.1, (i) if the rights offering is for securities convertible into or exercisable for Ordinary Shares, in determining the price payable for Ordinary Shares, there shall be taken into account any consideration received for such rights, as well as any additional amount payable upon exercise or conversion and (ii) “Historical Fair Market Value” means the volume weighted average price of the Ordinary Shares during the ten (10) trading day period ending on the trading day prior to the first date on which the Ordinary Shares trade on the applicable exchange or in the applicable market, regular way, without the right to receive such rights. No Ordinary Shares shall be issued at less than their par value.

 

 

4.1.2 Extraordinary Dividends. If the Company, at any time while the Warrants are outstanding and unexpired, pays to all or substantially all of the holders of the Ordinary Shares a dividend or makes a distribution in cash, securities or other assets on account of such Ordinary Shares (or other shares into which the Warrants are convertible), other than (a) as described in subsection 4.1.1 above, (b) Ordinary Cash Dividends (as defined below), (c) to satisfy the redemption rights of the holders of the Ordinary Shares in connection with a proposed initial Business Combination, (d) to satisfy the redemption rights of the holders of the Ordinary Shares in connection with a shareholder vote to amend the Company’s amended and restated memorandum and articles of association (i) to modify the substance or timing of the Company’s obligation to provide holders of Ordinary Shares the right to have their shares redeemed in connection with the Company’s initial Business Combination or to redeem 100% of the Company’s public shares if it does not complete its initial Business Combination within the time period required by the Company’s Amended and Restated Memorandum and Articles of Association, as amended from time to time, or (ii) with respect to any other provision relating to the rights of holders of Ordinary Shares, (e) as a result of the repurchase of Ordinary Shares by the Company if a proposed initial Business Combination is presented to the shareholders of the Company for approval or (f) in connection with the redemption of public shares upon the failure of the Company to complete its initial Business Combination and any subsequent distribution of its assets upon its liquidation (any such non-excluded event being referred to herein as an “Extraordinary Dividend”), then the Warrant Price shall be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and/or the fair market value (as determined by the Company’s board of directors (the “Board”), in good faith) of any securities or other assets paid on each Ordinary Share in respect of such Extraordinary Dividend. For purposes of this subsection 4.1.2, “Ordinary Cash Dividends” means any cash dividend or cash distribution which, when combined on a per share basis with the per share amounts of all other cash dividends and cash distributions paid on the Ordinary Shares during the 365-day period ending on the date of declaration of such dividend or distribution, does not exceed $0.50 per share (which amount shall be adjusted to appropriately reflect any of the events referred to in other subsections of this Section 4 and excluding cash dividends or cash distributions that resulted in an adjustment to the Warrant Price or to the number of Ordinary Shares issuable on exercise of each Warrant) but only with respect to the amount of the aggregate cash dividends or cash distributions equal to or less than $0.50.

 

4.2 Aggregation of Shares. If after the date hereof, and subject to the provisions of Section 4.6 hereof, the number of issued and outstanding Ordinary Shares is decreased by a consolidation, combination, reverse share split or reclassification of Ordinary Shares or other similar event, then, on the effective date of such consolidation, combination, reverse share split, reclassification or similar event, the number of Ordinary Shares issuable on exercise of each Warrant shall be decreased in proportion to such decrease in issued and outstanding Ordinary Shares.

 

4.3 Adjustments in Exercise Price. Whenever the number of Ordinary Shares purchasable upon the exercise of the Warrants is adjusted, as provided in subsection 4.1.1 or Section 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of Ordinary Shares purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the number of Ordinary Shares so purchasable immediately thereafter.

 

 

4.4 Raising of the Capital in Connection with the Initial Business Combination. If (x) the Company issues additional Ordinary Shares or equity-linked securities, other than for the Forward Purchase Warrants and the Class A ordinary shares to be issued pursuant to the Forward Purchase Agreements, for capital raising purposes in connection with the closing of its initial Business Combination at an issue price or effective issue price of less than $9.20 per Ordinary Share (with such issue price or effective issue price to be determined in good faith by the Board and, in the case of any such issuance to the Sponsor or its affiliates, without taking into account any Class B ordinary shares, par value $0.0001 per share, of the Company held by the Sponsor or such affiliates, as applicable, prior to such issuance) (the “Newly Issued Price”), (y) the aggregate gross proceeds from such issuances represent more than 60% of the total equity proceeds, and interest thereon, available for the funding of the Company’s initial Business Combination on the date of the completion of the Company’s initial Business Combination (net of redemptions), and (z) the volume-weighted average trading price of Ordinary Shares during the twenty (20) trading day period starting on the trading day prior to the day on which the Company consummates its initial Business Combination (such price, the “Market Value”) is below $9.20 per share, the Warrant Price shall be adjusted (to the nearest cent) to be equal to 115% of the higher of the Market Value and the Newly Issued Price, the $18.00 per share redemption trigger price described in Section 6.1 and Section 6.2 shall be adjusted (to the nearest cent) to be equal to 180% of the higher of the Market Value and the Newly Issued Price and the $10.00 per share redemption trigger price described in Section 6.2 shall be adjusted (to the nearest cent) to be equal to the higher of the Market Value and the Newly Issued Price.

 

4.5 Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the issued and outstanding Ordinary Shares (other than a change under Section 4.1 or Section 4.2 hereof or that solely affects the par value of such Ordinary Shares), or in the case of any merger or consolidation of the Company with or into another corporation (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the issued and outstanding Ordinary Shares), or in the case of any sale or conveyance to another corporation or entity of the assets or other property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the holders of the Warrants shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the Ordinary Shares of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares or stock or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the holder of the Warrants would have received if such holder had exercised his, her or its Warrant(s) immediately prior to such event (the “Alternative Issuance”); provided, however, that (i) if the holders of the Ordinary Shares were entitled to exercise a right of election as to the kind or amount of securities, cash or other assets receivable upon such consolidation or merger, then the kind and amount of securities, cash or other assets constituting the Alternative Issuance for which each Warrant shall become exercisable shall be deemed to be the weighted average of the kind and amount received per share by the holders of the Ordinary Shares in such consolidation or merger that affirmatively make such election, and (ii) if a tender, exchange or redemption offer shall have been made to and accepted by the holders of the Ordinary Shares (other than a tender, exchange or redemption offer made by the Company in connection with redemption rights held by shareholders of the Company as provided for in the Company’s amended and restated memorandum and articles of association or as a result of the repurchase of Ordinary Shares by the Company if a proposed initial Business Combination is presented to the shareholders of the Company for approval) under circumstances in which, upon completion of such tender or exchange offer, the maker thereof, together with members of any group (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) of which such maker is a part, and together with any affiliate or associate of such maker (within the meaning of Rule 12b-2 under the Exchange Act) and any members of any such group of which any such affiliate or associate is a part, own beneficially (within the meaning of Rule 13d-3 under the Exchange Act) more than 65% of the issued and outstanding Ordinary Shares, the holder of a Warrant shall be entitled to receive as the Alternative Issuance, the highest amount of cash, securities or other property to which such holder would actually have been entitled as a shareholder if such Warrant holder had exercised the Warrant prior to the expiration of such tender or exchange offer, accepted such offer and all of the Ordinary Shares held by such holder had been purchased pursuant to such tender or exchange offer, subject to adjustments (from and after the consummation of such tender or exchange offer) as nearly equivalent as possible to the adjustments provided for in this Section 4; provided further that if less than 70% of the consideration receivable by the holders of the Ordinary Shares in the applicable event is payable in the form of shares in the successor entity that is listed for trading on a national securities exchange or is quoted in an established over-the-counter market, or is to be so listed for trading or quoted immediately following such event, and if the Registered Holder properly exercises the Warrant within thirty (30) days following the public disclosure of the consummation of such applicable event by the Company pursuant to a Current Report on Form 8-K filed with the Commission, the Warrant Price shall be reduced by an amount (in dollars) equal to the difference of (i) the Warrant Price in effect prior to such reduction minus (ii) (A) the Per Share Consideration (as defined below) (but in no event less than zero) minus (B) the Black-Scholes Warrant Value (as defined below). The “Black-Scholes Warrant Value” means the value of a Warrant immediately prior to the consummation of the applicable event based on the Black-Scholes Warrant Model for a Capped American Call on Bloomberg Financial Markets (assuming zero dividends) (“Bloomberg”). For purposes of calculating such amount, (i) Section 6 of this Agreement shall be taken into account, (ii) the price of each Ordinary Share shall be the volume weighted average price of the Ordinary Shares during the ten (10) trading day period ending on the trading day prior to the effective date of the applicable event, (iii) the assumed volatility shall be the 90 day volatility obtained from the HVT function on Bloomberg determined as of the trading day immediately prior to the day of the announcement of the applicable event and (iv) the assumed risk-free interest rate shall correspond to the U.S. Treasury rate for a period equal to the remaining term of the Warrant. “Per Share Consideration” means (i) if the consideration paid to holders of the Ordinary Shares consists exclusively of cash, the amount of such cash per Ordinary Share, and (ii) in all other cases, the volume weighted average price of the Ordinary Shares during the ten (10) trading day period ending on the trading day prior to the effective date of the applicable event. If any reclassification or reorganization also results in a change in Ordinary Shares covered by subsection 4.1.1, then such adjustment shall be made pursuant to subsection 4.1.1 or Sections 4.2, 4.3 and this Section 4.4. The provisions of this Section 4.4 shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers. In no event shall the Warrant Price be reduced to less than the par value per share issuable upon exercise of such Warrant.

 

 

4.6 Notices of Changes in Warrant. Upon every adjustment of the Warrant Price or the number of shares issuable upon exercise of a Warrant, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Sections 4.1, 4.2, 4.3, 4.4 or 4.5, the Company shall give written notice of the occurrence of such event to each holder of a Warrant, at the last address set forth for such holder in the Warrant Register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.

 

4.7 No Fractional Shares. Notwithstanding any provision contained in this Agreement to the contrary, the Company shall not issue fractional shares upon the exercise of Warrants. If, by reason of any adjustment made pursuant to this Section 4, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise, round down to the nearest whole number the number of Ordinary Shares to be issued to such holder.

 

4.8 Form of Warrant. The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued after such adjustment may state the same Warrant Price and the same number of shares as is stated in the Warrants initially issued pursuant to this Agreement; provided, however, that the Company may at any time in its sole discretion make any change in the form of Warrant that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.

 

5. Transfer and Exchange of Warrants.

 

5.1 Registration of Transfer. The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender of such Warrant for transfer, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. In the case of certificated Warrants, the Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time to time upon request.

 

 

5.2 Procedure for Surrender of Warrants. Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the Registered Holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that except as otherwise provided herein or with respect to any Book-Entry Warrant, each Book-Entry Warrant may be transferred only in whole and only to the Depositary, to another nominee of the Depositary, to a successor depository, or to a nominee of a successor depository; provided further, however that in the event that a Warrant surrendered for transfer bears a restrictive legend (as in the case of the Private Placement Warrants), the Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange thereof until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer may be made and indicating whether the new Warrants must also bear a restrictive legend.

 

5.3 Fractional Warrants. The Warrant Agent shall not be required to effect any registration of transfer or exchange which shall result in the issuance of a warrant certificate or book-entry position for a fraction of a warrant, except as part of the Units.

 

5.4 Service Charges. No service charge shall be made for any exchange or registration of transfer of Warrants.

 

5.5 Warrant Execution and Countersignature. The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company, whenever required by the Warrant Agent, shall supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.

 

5.6 Transfer of Warrants. Prior to the Detachment Date, the Public Warrants may be transferred or exchanged only together with the Unit in which such Warrant is included, and only for the purpose of effecting, or in conjunction with, a transfer or exchange of such Unit. Furthermore, each transfer of a Unit on the register relating to such Units shall operate also to transfer the Warrants included in such Unit. Notwithstanding the foregoing, the provisions of this Section 5.6 shall have no effect on any transfer of Warrants on and after the Detachment Date.

 

6. Redemption.

 

6.1 Redemption of Warrants for Cash. Subject to Section 6.5 hereof, not less than all of the outstanding Warrants may be redeemed, at the option of the Company, at any time during the Exercise Period, at the office of the Warrant Agent, upon notice to the Registered Holders of the Warrants, as described in Section 6.3 below, at a Redemption Price of $0.01 per Warrant, provided that (a) the Reference Value equals or exceeds $18.00 per share (subject to adjustment in compliance with Section 4 hereof) and (b) there is an effective registration statement covering the issuance of the Ordinary Shares issuable upon exercise of the Warrants, and a current prospectus relating thereto, available throughout the 30-day Redemption Period (as defined in Section 6.3 below).

 

6.2 Redemption of Warrants for Ordinary Shares. Subject to Section 6.5 hereof, not less than all of the outstanding Warrants may be redeemed, at the option of the Company, at any time during the Exercise Period, at the office of the Warrant Agent, upon notice to the Registered Holders of the Warrants, as described in Section 6.3 below, at a Redemption Price of $0.10 per Warrant, provided that (i) the Reference Value equals or exceeds $10.00 per share (subject to adjustment in compliance with Section 4 hereof) and (ii) if the Reference Value is less than $18.00 per share (subject to adjustment in compliance with Section 4 hereof), the Private Placement Warrants are also concurrently called for redemption on the same terms as the outstanding Public Warrants. During the 30-day Redemption Period in connection with a redemption pursuant to this Section 6.2, Registered Holders of the Warrants may elect to exercise their Warrants on a “cashless basis” pursuant to subsection 3.3.1 and receive a number of Ordinary Shares determined by reference to the table below, based on the Redemption Date (calculated for purposes of the table as the period to expiration of the Warrants) and the “Redemption Fair Market Value” (as such term is defined in this Section 6.2) (a “Make-Whole Exercise”). Solely for purposes of this Section 6.2, the “Redemption Fair Market Value” shall mean the volume weighted average price of the Ordinary Shares for the ten (10) trading days immediately following the date on which notice of redemption pursuant to this Section 6.2 is sent to the Registered Holders. In connection with any redemption pursuant to this Section 6.2, the Company shall provide the Registered Holders with the Redemption Fair Market Value no later than one (1) Business Day after the ten (10) trading day period described above ends.

 

 

		Redemption Fair Market Value of Ordinary Shares (period to expiration of warrants)
Redemption Date			< 10.00				11.00				12.00				13.00				14.00				15.00				16.00				17.00				>18.00
60 months			0.261				0.280				0.297				0.311				0.324				0.337				0.348				0.358				0.361
57 months			0.257				0.277				0.294				0.310				0.324				0.337				0.348				0.358				0.361
54 months			0.252				0.272				0.291				0.307				0.322				0.335				0.347				0.357				0.361
51 months			0.246				0.268				0.287				0.304				0.320				0.333				0.346				0.357				0.361
48 months			0.241				0.263				0.283				0.301				0.317				0.332				0.344				0.356				0.361
45 months			0.235				0.258				0.279				0.298				0.315				0.330				0.343				0.356				0.361
42 months			0.228				0.252				0.274				0.294				0.312				0.328				0.342				0.355				0.361
39 months			0.221				0.246				0.269				0.290				0.309				0.325				0.340				0.354				0.361
36 months			0.213				0.239				0.263				0.285				0.305				0.323				0.339				0.353				0.361
33 months			0.205				0.232				0.257				0.280				0.301				0.320				0.337				0.352				0.361
30 months			0.196				0.224				0.250				0.274				0.297				0.316				0.335				0.351				0.361
27 months			0.185				0.214				0.242				0.268				0.291				0.313				0.332				0.350				0.361
24 months			0.173				0.204				0.233				0.260				0.285				0.308				0.329				0.348				0.361
21 months			0.161				0.193				0.223				0.252				0.279				0.304				0.326				0.347				0.361
18 months			0.146				0.179				0.211				0.242				0.271				0.298				0.322				0.345				0.361
15 months			0.130				0.164				0.197				0.230				0.262				0.291				0.317				0.342				0.361
12 months			0.111				0.146				0.181				0.216				0.250				0.282				0.312				0.339				0.361
9 months			0.090				0.125				0.162				0.199				0.237				0.272				0.305				0.336				0.361
6 months			0.065				0.099				0.137				0.178				0.219				0.259				0.296				0.331				0.361
3 months			0.034				0.065				0.104				0.150				0.197				0.243				0.286				0.326				0.361
0 months			—				—				0.042				0.115				0.179				0.233				0.281				0.323				0.361

 

The exact Redemption Fair Market Value and Redemption Date may not be set forth in the table above, in which case, if the Redemption Fair Market Value is between two values in the table or the Redemption Date is between two redemption dates in the table, the number of Ordinary Shares to be issued for each Warrant exercised in a Make-Whole Exercise shall be determined by a straight-line interpolation between the number of shares set forth for the higher and lower Redemption Fair Market Values and the earlier and later redemption dates, as applicable, based on a 365- or 366-day year, as applicable.

 

The share prices set forth in the column headings of the table above shall be adjusted as of any date on which the number of shares issuable upon exercise of a Warrant or the Exercise Price is adjusted pursuant to Section 4 hereof. If the number of shares issuable upon exercise of a Warrant is adjusted pursuant to Section 4 hereof, the adjusted share prices in the column headings shall equal the share prices immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the number of shares deliverable upon exercise of a Warrant immediately prior to such adjustment and the denominator of which is the number of shares deliverable upon exercise of a Warrant as so adjusted. The number of shares in the table above shall be adjusted in the same manner and at the same time as the number of shares issuable upon exercise of a Warrant. If the Exercise Price of a warrant is adjusted, (a) in the case of an adjustment pursuant to Section 4.4 hereof, the adjusted share prices in the column headings shall equal the share prices immediately prior to such adjustment multiplied by a fraction, the numerator of which is the higher of the Market Value and the Newly Issued Price and the denominator of which is $10.00 and (b) in the case of an adjustment pursuant to Section 4.1.2 hereof, the adjusted share prices in the column headings shall equal the share prices immediately prior to such adjustment less the decrease in the Exercise Price pursuant to such Exercise Price adjustment. In no event shall the number of shares issued in connection with a Make-Whole Exercise exceed 0.361 Ordinary Shares per Warrant (subject to adjustment).

 

6.3 Date Fixed for, and Notice of, Redemption; Redemption Price; Reference Value. In the event that the Company elects to redeem the Warrants pursuant to Sections 6.1 or 6.2, the Company shall fix a date for the redemption (the “Redemption Date”). Notice of redemption shall be mailed by first class mail, postage prepaid, by the Company not less than thirty (30) days prior to the Redemption Date (the “30-day Redemption Period”) to the Registered Holders of the Warrants to be redeemed at their last addresses as they shall appear on the registration books. Any notice mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the Registered Holder received such notice. As used in this Agreement, (a) “Redemption Price” shall mean the price per Warrant at which any Warrants are redeemed pursuant to Sections 6.1 or 6.2 and (b) “Reference Value” shall mean the last reported sales price of the Ordinary Shares for any twenty (20) trading days within the thirty (30) trading-day period ending on the third trading day prior to the date on which notice of the redemption is given.

 

 

6.4 Exercise After Notice of Redemption. The Warrants may be exercised, for cash (or on a “cashless basis” in accordance with Section 6.2 of this Agreement) at any time after notice of redemption shall have been given by the Company pursuant to Section 6.3 hereof and prior to the Redemption Date. On and after the Redemption Date, the record holder of the Warrants shall have no further rights except to receive, upon surrender of the Warrants, the Redemption Price.

 

6.5 Exclusion of Private Placement Warrants and Forward Purchase Warrants. The Company agrees that (a) the redemption rights provided in Section 6.1 hereof shall not apply to (x) the Private Placement Warrants if at the time of the redemption such Private Placement Warrants continue to be held by the Sponsor or its Permitted Transferees or (y) the Forward Purchase Warrants if at the time of the redemption such Forward Purchase Warrants continue to be held by the Forward Purchase Investor or its Permitted Transferees, and (b) if the Reference Value equals or exceeds $18.00 per share (subject to adjustment in compliance with Section 4 hereof), the redemption rights provided in Section 6.2 hereof shall not apply to (x) the Private Placement Warrants if at the time of the redemption such Private Placement Warrants continue to be held by the Sponsor or its Permitted Transferees or (y) the Forward Purchase Warrants if at the time of the redemption such Private Placement Warrants continue to be held by the Forward Purchase Investor or its Permitted Transferees. However, once such Private Placement Warrants or Forward Purchase Warrants are transferred (other than to Permitted Transferees in accordance with Section 2.6 hereof), the Company may redeem the Private Placement Warrants and Forward Purchase Warrants pursuant to Section 6.1 or 6.2 hereof, provided that the criteria for redemption are met, including the opportunity of the holder of such Private Placement Warrants and Forward Purchase Warrants to exercise the Private Placement Warrants and Forward Purchase Warrants prior to redemption pursuant to Section 6.4 hereof. Private Placement Warrants and Forward Purchase Warrants that are transferred to persons other than Permitted Transferees shall upon such transfer cease to be Private Placement Warrants or Forward Purchase Warrants, and shall become Public Warrants under this Agreement, including for purposes of Section 9.8 hereof.

 

7. Other Provisions Relating to Rights of Holders of Warrants.

 

7.1 No Rights as Shareholder. A Warrant does not entitle the Registered Holder thereof to any of the rights of a shareholder of the Company, including, without limitation, the right to receive dividends, or other distributions, to exercise any preemptive rights to vote or to consent or to receive notice as shareholders in respect of the meetings of shareholders or the election of directors of the Company or any other matter.

 

7.2 Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.

 

7.3 Reservation of Ordinary Shares. The Company shall at all times reserve and keep available a number of its authorized but unissued Ordinary Shares that shall be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement.

 

 

7.4 Registration of Ordinary Shares; Cashless Exercise at Company’s Option.

 

7.4.1 Registration of the Ordinary Shares. The Company agrees that as soon as practicable, but in no event later than twenty (20) Business Days after the closing of its initial Business Combination, it shall use its commercially reasonable efforts to file with the Commission a registration statement for the registration, under the Securities Act, of the Ordinary Shares issuable upon exercise of the Warrants. The Company shall use its commercially reasonable efforts to cause the same to become effective within sixty (60) Business Days following the closing of its initial Business Combination and to maintain the effectiveness of such registration statement, and a current prospectus relating thereto, until the expiration or redemption of the Warrants in accordance with the provisions of this Agreement. If any such registration statement has not been declared effective by the sixtieth (60th) Business Day following the closing of the Business Combination, holders of the Warrants shall have the right, during the period beginning on the sixty-first (61st) Business Day after the closing of the Business Combination and ending upon such registration statement being declared effective by the Commission, and during any other period when the Company shall fail to have maintained an effective registration statement covering the issuance of the Ordinary Shares issuable upon exercise of the Warrants, to exercise such Warrants on a “cashless basis,” by exchanging the Warrants (in accordance with Section 3(a)(9) of the Securities Act or another exemption) for that number of Ordinary Shares equal to the lesser of (A) the quotient obtained by dividing (x) the product of the number of Ordinary Shares underlying the Warrants, multiplied by the excess of the “Fair Market Value” (as defined below) over the Warrant Price by (y) the Fair Market Value and (B) 0.361. Solely for purposes of this subsection 7.4.1, “Fair Market Value” shall mean the volume-weighted average price of the Ordinary Shares as reported during the ten (10) trading day period ending on the trading day prior to the date that notice of exercise is received by the Warrant Agent from the holder of such Warrants or its securities broker or intermediary. The date that notice of “cashless exercise” is received by the Warrant Agent shall be conclusively determined by the Warrant Agent. In connection with the “cashless exercise” of a Public Warrant, the Company shall, upon request, provide the Warrant Agent with an opinion of counsel for the Company (which shall be an outside law firm with securities law experience) stating that (i) the exercise of the Warrants on a “cashless basis” in accordance with this subsection 7.4.1 is not required to be registered under the Securities Act and (ii) the Ordinary Shares issued upon such exercise shall be freely tradable under United States federal securities laws by anyone who is not an affiliate (as such term is defined in Rule 144 under the Securities Act) of the Company and, accordingly, shall not be required to bear a restrictive legend. Except as provided in subsection 7.4.2, for the avoidance of doubt, unless and until all of the Warrants have been exercised or have expired, the Company shall continue to be obligated to comply with its registration obligations under the first three sentences of this subsection 7.4.1.

 

7.4.2 Cashless Exercise at Company’s Option. If the Ordinary Shares are at the time of any exercise of a Public Warrant not listed on a national securities exchange such that they satisfy the definition of a “covered security” under Section 18(b)(1) of the Securities Act, the Company may, at its option, (i) require holders of Public Warrants who exercise Public Warrants to exercise such Public Warrants on a “cashless basis” in accordance with Section 3(a)(9) of the Securities Act as described in subsection 7.4.1 and (ii) in the event the Company so elects, the Company shall (x) not be required to file or maintain in effect a registration statement for the registration, under the Securities Act, of the Ordinary Shares issuable upon exercise of the Warrants, notwithstanding anything in this Agreement to the contrary, and (y) use its commercially reasonable efforts to register or qualify for sale the Ordinary Shares issuable upon exercise of the Public Warrant under applicable blue sky laws to the extent an exemption is not available.

 

8. Concerning the Warrant Agent and Other Matters.

 

8.1 Payment of Taxes. The Company shall from time to time promptly pay all taxes and charges that may be imposed upon the Company or the Warrant Agent in respect of the issuance or delivery of Ordinary Shares upon the exercise of the Warrants, but the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or such shares.

 

 

8.2 Resignation, Consolidation, or Merger of Warrant Agent.

 

8.2.1 Appointment of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of thirty (30) days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of a Warrant (who shall, with such notice, submit his, her or its Warrant for inspection by the Company), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation or other entity organized and existing under the laws of the State of New York, in good standing and having its principal office in the United States of America, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.

 

8.2.2 Notice of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the Transfer Agent for the Ordinary Shares not later than the effective date of any such appointment.

 

8.2.3 Merger or Consolidation of Warrant Agent. Any entity into which the Warrant Agent may be merged or with which it may be consolidated or any entity resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act.

 

8.3 Fees and Expenses of Warrant Agent.

 

8.3.1 Remuneration. The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and shall, pursuant to its obligations under this Agreement, reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.

 

8.3.2 Further Assurances. The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.

 

8.4 Liability of Warrant Agent.

 

8.4.1 Reliance on Company Statement. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by the Chairman of the Board and Chief Executive Officer of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.

 

8.4.2 Indemnity. The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct, fraud or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, out-of-pocket costs and reasonable outside counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement, except as a result of the Warrant Agent’s gross negligence, willful misconduct, fraud or bad faith.

 

 

8.4.3 Exclusions. The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof). The Warrant Agent shall not be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant. The Warrant Agent shall not be responsible to make any adjustments required under the provisions of Section 4 hereof or responsible for the manner, method, or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Ordinary Shares to be issued pursuant to this Agreement or any Warrant or as to whether any Ordinary Shares shall, when issued, be valid and fully paid and nonassessable.

 

8.5 Acceptance of Agency. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all monies received by the Warrant Agent for the purchase of Ordinary Shares through the exercise of the Warrants.

 

8.6 Waiver. The Warrant Agent has no right of set-off or any other right, title, interest or claim of any kind (“Claim”) in, or to any distribution of, the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of the date hereof, by and between the Company and Continental Stock Transfer & Trust Company as trustee thereunder) and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever. The Warrant Agent hereby waives any and all Claims against the Trust Account and any and all rights to seek access to the Trust Account.

 

9. Miscellaneous Provisions.

 

9.1 Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.

 

9.2 Notices. Any notice, statement or demand authorized by this Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows:

 

L Catterton Asia Acquisition Corp

8 Marina View, Asia Square Tower 1

#41-03, Singapore 018960

Attn: James Steinthal

Email: Jim.Steinthal@lcatterton.com

 

with a copy to:

 

Kirkland& Ellis International LLP
26th Floor, Gloucester Tower, The Landmark
15 Queen’s Road, Central, Hong Kong
Attn: Benjamin W. James
E-mail: ben.james@kirkland.com

 

Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows:

 

Continental Stock Transfer & Trust Company

One State Street, 30th Floor

New York, NY 10004

Attention: Compliance Department

 

 

9.3 Applicable Law and Exclusive Forum. The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed in all respects by the laws of the State of New York. Subject to applicable law, the Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive forum for any such action, proceeding or claim. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Notwithstanding the foregoing, the provisions of this paragraph will not apply to suits brought to enforce any liability or duty created by the Exchange Act or any other claim for which the federal district courts of the United States of America are the sole and exclusive forum.

 

Any person or entity purchasing or otherwise acquiring any interest in the Warrants shall be deemed to have notice of and to have consented to the forum provisions in this Section 9.3. If any action, the subject matter of which is within the scope the forum provisions above, is filed in a court other than a court located within the State of New York or the United States District Court for the Southern District of New York (a “foreign action”) in the name of any warrant holder, such warrant holder shall be deemed to have consented to: (x) the personal jurisdiction of the state and federal courts located within the State of New York or the United States District Court for the Southern District of New York in connection with any action brought in any such court to enforce the forum provisions (an “enforcement action”), and (y) having service of process made upon such warrant holder in any such enforcement action by service upon such warrant holder’s counsel in the foreign action as agent for such warrant holder.

 

9.4 Persons Having Rights under this Agreement. Nothing in this Agreement shall be construed to confer upon, or give to, any person, corporation or other entity other than the parties hereto and the Registered Holders of the Warrants any right, remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns and of the Registered Holders of the Warrants.

 

9.5 Examination of the Warrant Agreement. A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent in the United States of America, for inspection by the Registered Holder of any Warrant. The Warrant Agent may require any such holder to submit such holder’s Warrant for inspection by the Warrant Agent.

 

9.6 Counterparts. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.

 

9.7 Effect of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.

 

9.8 Amendments. This Agreement may be amended by the parties hereto without the consent of any Registered Holder for the purpose of (i) curing any ambiguity or correcting any mistake, including to conform the provisions hereof to the description of the terms of the Warrants and this Agreement set forth in the Prospectus, or defective provision contained herein, (ii) amending the definition of “Ordinary Cash Dividend” as contemplated by and in accordance with the second sentence of subsection 4.1.2 or (iii) adding or changing any provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the rights of the Registered Holders under this Agreement. All other modifications or amendments, including any modification or amendment to increase the Warrant Price or shorten the Exercise Period and any amendment to the terms of only the Private Placement Warrants, shall require the vote or written consent of the Registered Holders of 65% of the then-outstanding Public Warrants and, solely with respect to any amendment to the terms of the Private Placement Warrants or any provision of this Agreement with respect to the Private Placement Warrants, 65% of the then-outstanding Private Placement Warrants, and, solely with respect to any amendment to the terms of the Forward Purchase Warrants or any provision of this Agreement with respect to the Forward Purchase Warrants, 65% of the then-outstanding Forward Purchase Warrants. Notwithstanding the foregoing, the Company may lower the Warrant Price or extend the duration of the Exercise Period pursuant to Sections 3.1 and 3.2, respectively, without the consent of the Registered Holders.

 

 

9.9 Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.

 

Exhibit A — Form of Warrant Certificate

 

Exhibit B — Legend

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

	L CATTERTON ASIA ACQUISITION CORP
	By:	/s/ Chinta Bhagat
		Name: Chinta Bhagat
		Title: Co-Chief Executive Officer and Director
	CONTINENTAL STOCK TRANSFER & TRUST COMPANY,
	as Warrant Agent
	By:	/s/ Isaac Kagan
		Name: Isaac Kagan
		Title: Vice President

 

[Signature Page to Warrant Agreement]

 

 

EXHIBIT A

[FACE]

 

Number

Warrants

THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO
THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR
IN THE WARRANT AGREEMENT DESCRIBED BELOW

 

L Catterton Asia Acquisition Corp Incorporated Under the Laws of the Cayman Islands

 

CUSIP [·]

 

Warrant Certificate

 

This Warrant Certificate certifies that [·], or registered assigns, is the registered holder of [ ] warrant(s) (the “Warrants” and each, a “Warrant”) to purchase Class A ordinary shares, $0.0001 par value per share (the “Ordinary Shares”), of L Catterton Asia Acquisition Corp, a Cayman Islands exempted company (the “Company”). Each Warrant entitles the holder, upon exercise during the period set forth in the Warrant Agreement referred to below, to receive from the Company that number of fully paid and nonassessable Ordinary Shares as set forth below, at the exercise price (the “Exercise Price”) as determined pursuant to the Warrant Agreement, payable in lawful money (or through “cashless exercise” as provided for in the Warrant Agreement) of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent referred to below, subject to the conditions set forth herein and in the Warrant Agreement. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.

 

Each whole Warrant is initially exercisable for one fully paid and non-assessable Ordinary Share. Fractional shares shall not be issued upon exercise of any Warrant. If, upon the exercise of Warrants, a holder would be entitled to receive a fractional interest in an Ordinary Share, the Company shall, upon exercise, round down to the nearest whole number the number of Ordinary Shares to be issued to the Warrant holder. The number of Ordinary Shares issuable upon exercise of the Warrants is subject to adjustment upon the occurrence of certain events as set forth in the Warrant Agreement.

 

The initial Exercise Price per one Ordinary Share for any Warrant is equal to $11.50 per share. The Exercise Price is subject to adjustment upon the occurrence of certain events as set forth in the Warrant Agreement.

 

Subject to the conditions set forth in the Warrant Agreement, the Warrants may be exercised only during the Exercise Period and to the extent not exercised by the end of such Exercise Period, such Warrants shall become void. The Warrants may be redeemed, subject to certain conditions as set forth in the Warrant Agreement.

 

Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.

 

This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement. This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York.

 

 

	L Catterton Asia Acquisition Corp
	By:
		Name: Chinta Bhagat
		Title: Co-Chief Executive Officer and Director
	CONTINENTAL STOCK TRANSFER & TRUST COMPANY,
	AS WARRANT AGENT
	By:
		Name:
		Title:

 

 

[Form of Warrant Certificate]

[Reverse]

 

The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive [ ] Ordinary Shares and are issued or to be issued pursuant to a Warrant Agreement dated as of [•], 2021 (the “Warrant Agreement”), duly executed and delivered by the Company to Continental Stock Transfer & Trust Company, a New York limited purpose trust company, as warrant agent (the “Warrant Agent”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the Registered Holders or Registered Holder, respectively) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.

 

Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of Election to Purchase set forth hereon properly completed and executed, together with payment of the Exercise Price as specified in the Warrant Agreement (or through “cashless exercise” as provided for in the Warrant Agreement) at the principal corporate trust office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof, or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised.

 

Notwithstanding anything else in this Warrant Certificate or the Warrant Agreement, no Warrant may be exercised unless at the time of exercise (i) a registration statement covering the issuance of the Ordinary Shares to be issued upon exercise is effective under the Securities Act and (ii) a prospectus thereunder relating to the Ordinary Shares is current, except through “cashless exercise” as provided for in the Warrant Agreement.

 

The Warrant Agreement provides that upon the occurrence of certain events the number of Ordinary Shares issuable upon exercise of the Warrants set forth on the face hereof may, subject to certain conditions, be adjusted. If, upon exercise of a Warrant, the holder thereof would be entitled to receive a fractional interest in an Ordinary Share, the Company shall, upon exercise, round down to the nearest whole number of Ordinary Shares to be issued to the holder of the Warrant.

 

Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.

 

Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.

 

The Company and the Warrant Agent may deem and treat the Registered Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a shareholder of the Company.

 

 

Election to Purchase

(To Be Executed Upon Exercise of Warrant)

 

The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to receive [ ] Ordinary Shares and herewith tenders payment for such Ordinary Shares to the order of L Catterton Asia Acquisition Corp (the “Company”) in the amount of $[ ] in accordance with the terms hereof. The undersigned requests that the register of members of the Company be updated to reflect the issuance of such Ordinary Shares in the name of the undersigned and a certificate for such Ordinary Shares be registered in the name of [ ], whose address is [ ] and that such Ordinary Shares be delivered to [ ], whose address is [ ]. If said [ ] number of Ordinary Shares is less than all of the Ordinary Shares purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such Ordinary Shares be registered in the name of [ ], whose address is [ ] and that such Warrant Certificate be delivered to [ ], whose address is [ ].

 

In the event that the Warrant has been called for redemption by the Company pursuant to Section 6.2 of the Warrant Agreement and a holder thereof elects to exercise its Warrant pursuant to a Make-Whole Exercise, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(c) or Section 6.2 of the Warrant Agreement, as applicable.

 

In the event that the Warrant is a Private Placement Warrant that is to be exercised on a “cashless” basis pursuant to subsection 3.3.1(c) of the Warrant Agreement, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(c) of the Warrant Agreement.

 

In the event that the Warrant is to be exercised on a “cashless” basis pursuant to Section 7.4 of the Warrant Agreement, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with Section 7.4 of the Warrant Agreement.

 

In the event that the Warrant may be exercised, to the extent allowed by the Warrant Agreement, through cashless exercise (i) the number of Ordinary Shares that this Warrant is exercisable for would be determined in accordance with the relevant section of the Warrant Agreement which allows for such cashless exercise and (ii) the holder hereof shall complete the following: The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, through the cashless exercise provisions of the Warrant Agreement, to receive Ordinary Shares. If said number of shares is less than all of the Ordinary Shares purchasable hereunder (after giving effect to the cashless exercise), the undersigned requests that a new Warrant Certificate representing the remaining balance of such Ordinary Shares be registered in the name of [ ], whose address is [ ] and that such Warrant Certificate be delivered to [ ], whose address is [ ].

 

[Signature Page Follows]

 

 

Date: [ ], 20

		(Signature)
		(Address)
		(Tax Identification Number)
Signature Guaranteed:

THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED).

 

 

EXHIBIT B

LEGEND

 

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. IN ADDITION, SUBJECT TO ANY ADDITIONAL LIMITATIONS ON TRANSFER DESCRIBED IN THE LETTER AGREEMENT BY AND AMONG L CATTERTON ASIA ACQUISITION CORP (THE “COMPANY”), LCA ACQUISITION SPONSOR, LP AND THE OTHER PARTIES THERETO, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD OR TRANSFERRED PRIOR TO THE DATE THAT IS THIRTY (30) DAYS AFTER THE DATE UPON WHICH THE COMPANY COMPLETES ITS INITIAL BUSINESS COMBINATION (AS DEFINED IN SECTION 3 OF THE WARRANT AGREEMENT REFERRED TO HEREIN) EXCEPT TO A PERMITTED TRANSFEREE (AS DEFINED IN SECTION 2 OF THE WARRANT AGREEMENT) WHO AGREES IN WRITING WITH THE COMPANY TO BE SUBJECT TO SUCH TRANSFER PROVISIONS.

 

SECURITIES EVIDENCED BY THIS CERTIFICATE AND CLASS A ORDINARY SHARES OF THE COMPANY ISSUED UPON EXERCISE OF SUCH SECURITIES SHALL BE ENTITLED TO REGISTRATION RIGHTS UNDER A REGISTRATION AND SHAREHOLDER RIGHTS AGREEMENT TO BE EXECUTED BY THE COMPANY.

 

NO. [ ] WARRANT

 

 

 

Exhibit 4.7

 

ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT

 

This ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT (this “Agreement”), is made and entered into as of _________, 2023, by and among L Catterton Asia Acquisition Corp, a Cayman Islands exempted company (“SPAC”), Lotus Technology Inc., a Cayman Islands exempted company (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (in such capacity, the “Warrant Agent”). Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Warrant Agreement (as defined below) (and if such term is not defined in the Warrant Agreement, then the Merger Agreement (as defined below)).

 

WHEREAS, SPAC and the Warrant Agent are parties to that certain Warrant Agreement, dated March 10, 2021 (as amended, including without limitation by this Agreement, the “Warrant Agreement”), pursuant to which the Warrant Agent agreed to act as SPAC’s warrant agent with respect to the issuance, registration, transfer, exchange, redemption and exercise of (i) warrants to purchase ordinary shares of SPAC issued in SPAC’s initial public offering (“IPO”) (the “Public Warrants”), (ii) warrants to purchase ordinary shares of SPAC acquired by LCA Acquisition Sponsor, LP (the “Sponsor”), in a private placement concurrent with IPO (the “Private Placement Warrants”), and (iii) warrants to purchase ordinary shares issuable to the Sponsor or an affiliate of the Sponsor or certain officers and directors of SPAC upon conversion of up to $1,500,000 of working capital loans (the “Working Capital Warrants”, and together with the Public Warrants and the Private Placement Warrants, in each case, as amended, including without limitation by this Agreement, the “Warrants”);

 

WHEREAS, on January 31, 2023, (i) SPAC, (ii) the Company, (iii) Lotus Temp Limited, an exempted company limited by shares incorporated under the laws of the Cayman Islands and a direct wholly owned subsidiary of the Company (“Merger Sub 1”), and (iv) Lotus EV Limited, an exempted company limited by shares incorporated under the laws of the Cayman Islands and a direct wholly owned subsidiary of the Company (“Merger Sub 2”), entered into an agreement and plan of merger (as may be amended, modified or supplemented from time to time in accordance with its terms, the “Merger Agreement”);

 

WHEREAS, pursuant to the Merger Agreement, upon the consummation of the transactions contemplated thereby (the “Closing”), among other matters and subject to the terms and conditions thereof, (a) Merger Sub 1 will merge with and into SPAC (the “First Merger”), with SPAC being the surviving entity, and (b) immediately following the First Merger and as part of the same overall transaction as the First Merger, SPAC, in its capacity as the surviving entity of the First Merger, will merge with and into Merger Sub 2 (the “Second Merger” and together with the First Merger, collectively, the “Mergers”), with Merger Sub 2 being the surviving entity, and as a result of which, among other matters, (i) Merger Sub 2, in its capacity as the surviving entity of the Second Merger, shall remain a wholly-owned Subsidiary of the Company and (ii) each SPAC Class A Ordinary Share (which includes each SPAC Class A Ordinary Share (A) issued in connection with the SPAC Class B Conversion and (B) held as a result of the Unit Separation) immediately prior to the effective time of the First Merger (the “Effective Time”) shall automatically be cancelled and cease to exist in exchange for the right to receive one newly issued, fully paid and non-assessable ordinary shares, par value $0.00001 per share, of the Company (together with any other securities of the Company or any successor entity issued in consideration of (including as a stock split, dividend or distribution) or in exchange for any of such securities, the “Company Ordinary Shares”), all upon the terms and subject to the conditions set forth in the Merger Agreement and in accordance with the provisions of applicable law;

 

 

WHEREAS, upon consummation of the Mergers, as provided in the Merger Agreement and Section 4.5 of the Warrant Agreement, each of the issued and outstanding Warrants will no longer be exercisable for SPAC Ordinary Shares (as defined in the Merger Agreement) but instead will be exercisable (subject to the terms and conditions of the Warrant Agreement as amended hereby) for the same number of Company Ordinary Shares at the same exercise price per share;

 

WHEREAS, the Company Ordinary Shares constitute an Alternative Issuance as defined in said Section 4.5 of the Warrant Agreement;

 

WHEREAS, all references to “Ordinary Shares” in the Warrant Agreement (including all Exhibits thereto) shall mean the Company Ordinary Shares;

 

WHEREAS, the board of directors of SPAC has determined that the consummation of the transactions contemplated by the Merger Agreement will constitute a Business Combination (as defined in the Warrant Agreement);

 

WHEREAS, in connection with the Mergers, SPAC desires to assign all of its right, title and interest in the Warrant Agreement to the Company, and the Company wishes to accept such assignment and assume all the liabilities and obligations of SPAC under the Warrant Agreement with the same force and effect as if the Company were initially a party to the Warrant Agreement; and

 

WHEREAS, Section 9.8 of the Warrant Agreement provides that SPAC and the Warrant Agent may amend the Warrant Agreement without the consent of any Registered Holders as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interests of the Registered Holders under the Warrant Agreement.

 

NOW, THEREFORE, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties and covenants herein contained, and intending to be legally bound hereby, the parties hereto agree as follows:

 

1.	Assignment and Assumption; Consent.

 

1.1

Assignment and Assumption. SPAC hereby assigns to the Company all of SPAC’s right, title and interest in and to the Warrant Agreement and the Warrants (each as amended hereby) as of the Effective Time. The Company hereby assumes, and agrees to pay, perform, satisfy and discharge in full, as the same become due, all of SPAC’s liabilities and obligations under the Warrant Agreement and the Warrants (each as amended hereby) arising from and after the Effective Time with the same force and effect as if the Company were initially a party to the Warrant Agreement.

 

1.2

Consent. The Warrant Agent hereby consents to (i) the assignment of the Warrant Agreement and the Warrants by SPAC to the Company pursuant to Section 1.1 and the assumption of the Warrant Agreement and the Warrants by the Company from SPAC pursuant to Section 1.1, in each case effective as of the Effective Time, and (ii) the continuation of the Warrant Agreement and Warrants, in full force and effect from and after the Effective Time, subject at all times to the Warrant Agreement and Warrants (each as amended hereby) and to all of the provisions, covenants, agreements, terms and conditions of the Warrant Agreement and this Agreement.

 

 

2.

Amendment of Warrant Agreement. The parties hereto hereby agree to the following amendments to the Warrant Agreement as provided in this Section 2 effective from the Effective Time, and acknowledge and agree that the amendments to the Warrant Agreement set forth in this Section 2 (i) are necessary and desirable and do not adversely affect the rights of the Registered Holders under the Warrant Agreement and (ii) are to provide for the delivery of Alternative Issuance pursuant to Section 4.5 of the Warrant Agreement (in connection with the Mergers and the transactions contemplated by the Merger Agreement).

 

2.1

Preamble and References to the “Company”. The preamble of the Warrant Agreement is hereby amended by deleting “L Catterton Asia Acquisition Corp” and replacing it with “Lotus Technology Inc.”. As a result thereof, all references to the “Company” in the Warrant Agreement (including all exhibits thereto) shall be amended such that they refer to the Company rather than SPAC.

 

2.2

Recitals. The recitals on pages one and two of the Warrant Agreement are hereby deleted and replaced in their entirety as follows:

 

“WHEREAS, on March 10, 2021, L Catterton Asia Acquisition Corp. (“LCAA”) entered into that certain Private Placement Warrants Purchase Agreement with LCA Acquisition Sponsor, LP, a Cayman Islands exempted limited partnership (the “Sponsor”), pursuant to which the Sponsor agreed to purchase an aggregate of 5,000,000 warrants (or up to 5,500,000 warrants if the Over-allotment Option (as defined below) in connection with the Offering (as defined below) is exercised in full) simultaneously with the closing of the Offering (and the closing of the Over-allotment Option, if applicable) bearing the legend set forth in Exhibit B hereto (the “Private Placement Warrants”) at a purchase price of $1.50 per Private Placement Warrant; and

 

WHEREAS, in order to finance LCAA’s transaction costs in connection with an intended initial merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination, involving the Company and one or more businesses, the Sponsor or an affiliate of the Sponsor or certain of LCAA’s officers and directors could, but were not obligated to, loan LCAA funds as LCAA required, of which up to $1,500,000 of such loans may be convertible into up to an additional 1,000,000 Private Placement Warrants at a price of $1.50 per Private Placement Warrant (the “Working Capital Warrants”); and

 

WHEREAS, LCAA consummated an initial public offering (the “Offering”) of units of LCAA’s equity securities, each such unit comprised of one Class A ordinary share and one-third of one Public Warrant (as defined below) (the “Units”) and, in connection therewith, issued and delivered up to 9,583,333 warrants (including up to 1,250,000 warrants subject to the Over-allotment Option) to public investors in the Public Offering (the “Public Warrants” and together with the Private Placement Warrants and Working Capital Warrants, the “LCAA Warrants”). Each whole LCAA Warrant entitles the holder thereof to purchase one Class A ordinary share of LCAA for $11.50 per share, subject to adjustment. Only whole warrants are exercisable; and

 

 

WHEREAS, LCAA has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-1, File No. 333-253334 and a prospectus (the “Prospectus”), for the registration, under the Securities Act of 1933, as amended (the “Securities Act”), of the Units, and the Public Warrants and the Class A ordinary shares included in the Units; and

 

WHEREAS, on January 31, 2023, (i) LCAA, (ii) the Company, (iii) Lotus Temp Limited, an exempted company limited by shares incorporated under the laws of the Cayman Islands and a direct wholly owned subsidiary of the Company (“Merger Sub 1”), and (iv) Lotus EV Limited, an exempted company limited by shares incorporated under the laws of the Cayman Islands and a direct wholly owned subsidiary of the Company (“Merger Sub 2”), entered into that certain Agreement and Plan of Merger (as may be amended, modified or supplemented from time to time in accordance with its terms, the “Merger Agreement”) and, as a result, all Class A ordinary shares of LCAA shall be exchanged for the right to receive ordinary shares, par value $0.00001 per share, of the Company (“Company Ordinary Shares”); and

 

WHEREAS, pursuant to the Merger Agreement and Section 4.5 of this Agreement, immediately after the First Effective Time (as defined in the Merger Agreement), each of the issued and outstanding LCAA Warrants will no longer be exercisable for Class A ordinary share of LCAA but instead will become exercisable (subject to the terms and conditions of this Agreement) for Company Ordinary Shares (each a “Warrant” and collectively, the “Warrants”); and

 

WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of the Warrants; and

 

WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and

 

WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent, as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.

 

NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:”

 

2.3

Detachability of Warrants. Section 2.4 of the Warrant Agreement is hereby deleted and replaced with the following: “[INTENTIONALLY OMITTED]”

 

2.4

References to “Ordinary Shares”. All references to “Ordinary Shares” in the Warrant Agreement (including all Exhibits thereto) shall be amended such that they refer to Company Ordinary Shares.

 

2.5

References to Business Combination. All references to “Business Combination” in the Warrant Agreement (including all Exhibits thereto) shall be references to the transactions contemplated by the Merger Agreement, and references to “the completion of the Business Combination” and all variations thereof in the Warrant Agreement (including all Exhibits thereto) shall be references to the closing of the transactions contemplated by the Merger Agreement.

 

 

2.6

Notices. Section 9.2 of the Warrant Agreement is hereby deleted and replaced with the following:

 

“Notices. Any notice, statement or demand authorized by this Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows:

 

Lotus Technology Inc.

 

No. 800 Century Avenue

Pudong District

Shanghai 200120, People’s Republic of China

Attention: Chief Financial Officer

E-mail: Alexious.Lee@lotuscars.com.cn

 

with a copy (which shall not constitute notice) to:

 

Skadden, Arps, Slate, Meagher & Flom LLP

30/F, China World Office 2

No. 1, Jian Guo Men Wai Avenue

Beijing 100004, China

Attn: Peter X. Huang

Email: peter.huang@skadden.com

 

Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows:

 

Continental Stock Transfer & Trust Company

One State Street, 30th Floor

New York, NY 10004

Attention: Compliance Department”

 

 

3.	Miscellaneous Provisions.

 

3.1

Effectiveness. Notwithstanding anything to the contrary contained herein, this Agreement shall be expressly subject to the occurrence of and only become effective upon the Closing. In the event that the Merger Agreement is terminated for any reason in accordance with its terms prior to the Closing, this Agreement and all rights and obligations of the parties hereunder shall automatically terminate and be of no further force or effect.

 

3.2

Miscellaneous. Except as expressly provided in this Agreement, all of the terms and provisions in the Warrant Agreement are and shall remain in full force and effect, on the terms and subject to the conditions set forth therein. This Agreement does not constitute, directly or by implication, an amendment or waiver of any provision of the Warrant Agreement, or any other right, remedy, power or privilege of any party thereto, except as expressly set forth herein. Any reference to the Warrant Agreement in the Warrant Agreement or any other agreement, document, instrument or certificate entered into or issued in connection therewith, shall hereinafter mean the Warrant Agreement as the case may be, as amended by this Agreement (or as such agreement may be further amended or modified in accordance with the terms thereof). The terms of this Agreement shall be governed by, enforced and construed and interpreted in a manner consistent with the provisions of the Warrant Agreement, as it applies to the amendments to the Warrant Agreement herein, including without limitation Section 9 of the Warrant Agreement.

 

[Signature Pages Follow]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

	L CATTERTON ASIA ACQUISITION CORP, as SPAC
	By:
	Name:
	Title:

 

[Signature Page to Assignment, Assumption and Amendment Agreement]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

	LOTUS TECHNOLOGY INC., as the Company
	By:
	Name:
	Title:

 

[Signature Page to Assignment, Assumption and Amendment Agreement]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

	CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent
	By:
	Name:
	Title:

 

[Signature Page to Assignment, Assumption and Amendment Agreement]

 

 

Exhibit 4.8

 

REGISTRATION AND SHAREHOLDER RIGHTS AGREEMENT

 

THIS REGISTRATION AND SHAREHOLDER RIGHTS AGREEMENT (this “Agreement”), dated as of March 10, 2021, is made and entered into by and among L Catterton Asia Acquisition Corp, a Cayman Islands exempted company (the “Company”), LCA Acquisition Sponsor, LP, a Cayman Islands exempted limited partnership (the “Sponsor”), and the undersigned parties listed under Holder on the signature page hereto (each such party, together with the Sponsor and any person or entity who hereafter becomes a party to this Agreement pursuant to Section 6.2 of this Agreement, a “Holder” and collectively the “Holders”).

 

RECITALS

 

WHEREAS, the Sponsor currently owns 7,187,500 Class B ordinary shares of the Company, par value $0.0001 per share (the “Class B Ordinary Shares”);

 

WHEREAS, the Class B Ordinary Shares are convertible into the Company’s Class A ordinary shares, par value $0.0001 per share (the “Ordinary Shares”), at the time of the initial Business Combination on a one-for-one basis, subject to adjustment, on the terms and conditions provided in the Company’s amended and restated memorandum and articles of association, as may be amended from time to time;

 

WHEREAS, on March 10, 2021, the Company and the Sponsor entered into that certain Private Placement Warrants Purchase Agreement, pursuant to which the Sponsor agreed to purchase 5,000,000 warrants (with or without the exercise of the Underwriter’s (as defined below) option to purchase additional units in connection with the Company’s initial public offering) (the “Private Placement Warrants”), in a private placement transaction occurring simultaneously with the closing of the Company’s initial public offering;

 

WHEREAS, in order to finance the Company’s transaction costs in connection with an intended Business Combination (as defined below), the Sponsor or an affiliate of the Sponsor or certain of the Company’s officers or directors may, but are not obligated to, loan the Company funds as the Company may require, of which up to $1,500,000 of such loans may be convertible into an additional 1,000,000 Private Placement Warrants (the “Working Capital Warrants”); and

 

WHEREAS, the Company and the Holders desire to enter into this Agreement, pursuant to which the Company shall grant the Holders certain registration rights with respect to certain securities of the Company, as set forth in this Agreement.

 

NOW, THEREFORE, in consideration of the mutual representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

ARTICLE 1
DEFINITIONS

 

1.1       Definitions. The terms defined in this Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:

 

“Adverse Disclosure” shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the principal executive officer or principal financial officer of the Company, after consultation with counsel to the Company, (i) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading, (ii) would not be required to be made at such time if the Registration Statement were not being filed, and (iii) the Company has a bona fide business purpose for not making such information public.

 

 

“Agreement” shall have the meaning given in the Preamble.

 

“Board” shall mean the Board of Directors of the Company.

 

“Business Combination” shall mean any merger, share exchange, asset acquisition, share purchase, reorganization or other similar business combination with one or more businesses, involving the Company.

 

“Class B Ordinary Shares” shall have the meaning given in the Recitals hereto.

 

“Commission” shall mean the U.S. Securities and Exchange Commission.

 

“Company” shall have the meaning given in the Preamble.

 

“Demand Registration” shall have the meaning given in subsection 2.1.1.

 

“Demanding Holder” shall have the meaning given in subsection 2.1.1.

 

“Exchange Act” shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.

 

“Extension Warrants” shall mean the Warrants issued to Holders as a result of the conversion of loans made by the Holders or their designees to the Company to extend the period of time of the Company has to consummate a Business Combination.

 

“Form S-1” shall have the meaning given in subsection 2.1.1.

 

“Form S-3” shall have the meaning given in subsection 2.3.1.

 

“Founder Shares” shall mean the Class B Ordinary Shares and shall be deemed to include the Ordinary Shares issuable upon conversion thereof.

 

“Founder Shares Lock-up Period” shall mean, with respect to the Founder Shares, the period ending on the earlier of (A) one year after the completion of the Company’s initial Business Combination and (B) subsequent to the Business Combination, (x) if the closing price of the Ordinary Shares equals or exceeds $12.00 per share (as adjusted for share subdivisions, share capitalizations, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 150 days after the Company’s initial Business Combination or (y) the date on which the Company completes a liquidation, merger, share exchange, reorganization or other similar transaction that results in all of the Company’s shareholders having the right to exchange their Ordinary Shares for cash, securities or other property.

 

“Holders” shall have the meaning given in the Preamble.

 

“Insider Letter” shall mean that certain letter agreement, dated as of the date hereof, by and among the Company, the Sponsor and each of the Company’s officers, directors and director nominees.

 

“Maximum Number of Securities” shall have the meaning given in subsection 2.1.4.

 

“Misstatement” shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus, or necessary to make the statements in a Registration Statement not misleading or, in the case of a Prospectus, not misleading in the light of the circumstances under which they were made.

 

“Nominee” is defined in Section 5.1.

 

 

“Ordinary Shares” shall have the meaning given in the Recitals hereto.

 

“Permitted Transferees” shall mean any person or entity to whom a Holder of Registrable Securities is permitted to transfer such Registrable Securities prior to the expiration of the Founder Shares Lock-up Period, Private Placement Lock-up Period or any other lock-up period, as the case may be, under the Insider Letter, the Private Placement Warrants Purchase Agreement, this Agreement and any other applicable agreement between such Holder and the Company, and to any transferee thereafter.

 

“Piggyback Registration” shall have the meaning given in subsection 2.2.1.

 

“Private Placement Lock-up Period” shall mean, with respect to Private Placement Warrants that are held by the initial purchasers of such Private Placement Warrants or their Permitted Transferees, and any of the Ordinary Shares issued or issuable upon the exercise or conversion of the Private Placement Warrants and that are held by the initial purchasers of the Private Placement Warrants or their Permitted Transferees, the period ending 30 days after the completion of the Company’s initial Business Combination.

 

“Private Placement Warrants” shall have the meaning given in the Recitals hereto.

 

“Prospectus” shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all post-effective amendments and including all material incorporated by reference in such prospectus.

 

“Pro Rata” shall have the meaning given in subsection 2.1.4.

 

“Registrable Security” shall mean (a) the Founder Shares (including any Ordinary Shares or other equivalent equity security issued or issuable upon the conversion of any such Founder Shares or exercisable for Ordinary Shares), (b) the Private Placement Warrants (including any Ordinary Shares issued or issuable upon the exercise of any such Private Placement Warrants), (c) the Working Capital Warrants (including any Ordinary Shares issued or issuable upon the conversion of working capital loans), (d) the Extension Warrants (including any Ordinary Shares issued or issuable upon the conversion of such warrants), if applicable, (e) any outstanding Ordinary Shares or any other equity security (including the Ordinary Shares issued or issuable upon the exercise of any other equity security) of the Company held by a Holder as of the date of this Agreement, and (f) any other equity security of the Company issued or issuable with respect to any such Ordinary Shares by way of a share capitalization or share subdivision or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization; provided, however, that, as to any particular Registrable Security, such securities shall cease to be Registrable Securities when: (i) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (ii) such securities shall have been otherwise transferred, new certificates for such securities not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of such securities shall not require registration under the Securities Act; (iii) such securities shall have ceased to be outstanding; or (iv) such securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.

 

“Registration” shall mean a registration effected by preparing and filing a registration statement or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.

 

“Registration Expenses” shall mean the out-of-pocket expenses of a Registration, including, without limitation, the following:

 

(A) all registration and filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc.) and any securities exchange on which the Ordinary Shares are then listed;

 

(B) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel for the Underwriters in connection with blue sky qualifications of Registrable Securities);

 

(C) printing, messenger, telephone and delivery expenses;

 

 

(D) reasonable fees and disbursements of counsel for the Company;

 

(E) reasonable fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such Registration; and

 

(F) reasonable fees and expenses of one (1) legal counsel selected by the majority-in-interest of the Demanding Holders initiating a Demand Registration to be registered for offer and sale in the applicable Registration or the Takedown Requesting Holder initiating an Underwritten Shelf Takedown.

 

“Registration Statement” shall mean any registration statement that covers the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.

 

“Requesting Holder” shall have the meaning given in subsection 2.1.1.

 

“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.

 

“Shelf” shall have the meaning given in subsection 2.3.1.

 

“Sponsor” shall have the meaning given in the Recitals hereto.

 

“Sponsor Director” means an individual elected to the Board that has been nominated by the Sponsor pursuant to this Agreement.

 

“Subsequent Shelf Registration” shall have the meaning given in subsection 2.3.2.

 

“Takedown Requesting Holder” shall have the meaning given in subsection 2.3.3.

 

“Underwriter” shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such dealer’s market-making activities.

 

“Underwritten Registration” or “Underwritten Offering” shall mean a Registration in which securities of the Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.

 

“Underwritten Shelf Takedown” shall have the meaning given in subsection 2.3.3.

 

“Working Capital Warrants” shall have the meaning given in the Recitals hereto.

 

ARTICLE 2
REGISTRATIONS

 

2.1       Demand Registration.

 

2.1.1    Request for Registration. Subject to the provisions of subsection 2.1.4 and Section 2.4 hereof, at any time and from time to time on or after the date the Company consummates the initial Business Combination, the Holders of at least a majority in interest of the then-outstanding number of Registrable Securities (the “Demanding Holders”) may make a written demand for Registration of all or part of their Registrable Securities, which written demand shall describe the amount and type of securities to be included in such Registration and the intended method(s) of distribution thereof (such written demand a “Demand Registration”). The Company shall, within five (5) days of the Company’s receipt of the Demand Registration, notify, in writing, all other Holders of Registrable Securities of such demand, and each Holder of Registrable Securities who thereafter wishes to include all or a portion of such Holder’s Registrable Securities in a Registration pursuant to a Demand Registration (each such Holder that includes all or a portion of such Holder’s Registrable Securities in such Registration, a “Requesting Holder”) shall so notify the Company, in writing, within three (3) business days after the receipt by the Holder of the notice from the Company. Upon receipt by the Company of any such written notification from a Requesting Holder(s) to the Company, such Requesting Holder(s) shall be entitled to have their Registrable Securities included in a Registration pursuant to a Demand Registration and the Company shall effect, as soon thereafter as practicable, but not more than forty five (45) days immediately after the Company’s receipt of the Demand Registration, the Registration of all Registrable Securities requested by the Demanding Holders and Requesting Holders pursuant to such Demand Registration. Under no circumstances shall the Company be obligated to effect more than an aggregate of three (3) Registrations pursuant to a Demand Registration under this subsection 2.1.1 with respect to any or all Registrable Securities; provided, however, that a Registration shall not be counted for such purposes unless a Form S-1 or any similar long-form registration statement that may be available at such time (“Form S-1”) has become effective and all of the Registrable Securities requested by the Requesting Holders to be registered on behalf of the Requesting Holders in such Form S-1 Registration have been sold, in accordance with Section 3.1 of this Agreement; provided, further, that an Underwritten Shelf Takedown shall not count as a Demand Registration.

 

 

2.1.2    Effective Registration. Notwithstanding the provisions of subsection 2.1.1 above or any other part of this Agreement, a Registration pursuant to a Demand Registration shall not count as a Registration unless and until (i) the Registration Statement filed with the Commission with respect to a Registration pursuant to a Demand Registration has been declared effective by the Commission and (ii) the Company has complied with all of its obligations under this Agreement with respect thereto; provided, further, that if, after such Registration Statement has been declared effective, an offering of Registrable Securities in a Registration pursuant to a Demand Registration is subsequently interfered with by any stop order or injunction of the Commission, federal or state court or any other governmental agency the Registration Statement with respect to such Registration shall be deemed not to have been declared effective, unless and until, (i) such stop order or injunction is removed, rescinded or otherwise terminated and (ii) a majority-in-interest of the Demanding Holders initiating such Demand Registration thereafter affirmatively elect to continue with such Registration and accordingly notify the Company in writing, but in no event later than five (5) days, of such election; provided, further, that the Company shall not be obligated or required to file another Registration Statement until the Registration Statement that has been previously filed with respect to a Registration pursuant to a Demand Registration becomes effective or is subsequently terminated.

 

2.1.3    Underwritten Offering. Subject to the provisions of subsection 2.1.4 and Section 2.4 hereof, if a majority-in- interest of the Demanding Holders so advise the Company as part of their Demand Registration that the offering of the Registrable Securities pursuant to such Demand Registration shall be in the form of an Underwritten Offering, then the right of such Demanding Holder or Requesting Holder (if any) to include its Registrable Securities in such Registration shall be conditioned upon such Holder’s participation in such Underwritten Offering and the inclusion of such Holder’s Registrable Securities in such Underwritten Offering to the extent provided herein. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this subsection 2.1.3 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the majority-in-interest of the Demanding Holders initiating the Demand Registration.

 

2.1.4    Reduction of Underwritten Offering. If the managing Underwriter or Underwriters in an Underwritten Registration pursuant to a Demand Registration, in good faith, advises the Company, the Demanding Holders and the Requesting Holders (if any) in writing that the dollar amount or number of Registrable Securities that the Demanding Holders and the Requesting Holders (if any) desire to sell, taken together with all other Ordinary Shares or other equity securities that the Company desires to sell and the Ordinary Shares, if any, as to which a Registration has been requested pursuant to separate written contractual piggyback registration rights held by any other shareholders who desire to sell, exceeds the maximum dollar amount or maximum number of equity securities that can be sold in the Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then the Company shall include in such Underwritten Offering, as follows: (i) first, the Registrable Securities of the Demanding Holders and the Requesting Holders (if any) (pro rata based on the respective number of Registrable Securities that each Demanding Holder and Requesting Holder (if any) has requested be included in such Underwritten Registration and the aggregate number of Registrable Securities that the Demanding Holders and Requesting Holders have requested be included in such Underwritten Registration (such proportion is referred to herein as “Pro Rata”)) that can be sold without exceeding the Maximum Number of Securities; (ii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), the Ordinary Shares or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the Ordinary Shares or other equity securities of other persons or entities that the Company is obligated to register in a Registration pursuant to separate written contractual arrangements with such persons and that can be sold without exceeding the Maximum Number of Securities.

 

 

2.1.5    Demand Registration Withdrawal. A majority-in-interest of the Demanding Holders initiating a Demand Registration or a majority-in-interest of the Requesting Holders (if any), pursuant to a Registration under subsection 2.1.1 shall have the right to withdraw from a Registration pursuant to such Demand Registration for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of their intention to withdraw from such Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to the Registration of their Registrable Securities pursuant to such Demand Registration. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Registration pursuant to a Demand Registration prior to its withdrawal under this subsection 2.1.5.

 

2.2       Piggyback Registration.

 

2.2.1    Piggyback Rights. If, at any time on or after the date the Company consummates an initial Business Combination, the Company proposes to file a Registration Statement under the Securities Act with respect to an offering of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into equity securities, for its own account or for the account of shareholders of the Company (or by the Company and by the shareholders of the Company including, without limitation, pursuant to Section 2.1 hereof), other than a Registration Statement (i) filed in connection with any employee share option or other benefit plan, (ii) for an exchange offer or offering of securities solely to the Company’s existing shareholders, (iii) for an offering of debt that is convertible into equity securities of the Company or (iv) for a dividend reinvestment plan, then the Company shall give written notice of such proposed filing to all of the Holders of Registrable Securities as soon as practicable but not less than seven (7) days before the anticipated filing date of such Registration Statement, which notice shall (A) describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, in such offering, and (B) offer to all of the Holders of Registrable Securities the opportunity to register the sale of such number of Registrable Securities as such Holders may request in writing within three (3) business days after receipt of such written notice (such Registration a “Piggyback Registration”). The Company shall, in good faith, cause such Registrable Securities to be included in such Piggyback Registration and shall use its best efforts to cause the managing Underwriter or Underwriters of a proposed Underwritten Offering to permit the Registrable Securities requested by the Holders pursuant to this subsection 2.2.1 to be included in a Piggyback Registration on the same terms and conditions as any similar securities of the Company included in such Registration and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this subsection 2.2.1 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the Company. The notice periods set forth in this subsection 2.2.1 shall not apply to an Underwritten Shelf Takedown conducted in accordance with subsection 2.3.3.

 

 

2.2.2    Reduction of Piggyback Registration. If the managing Underwriter or Underwriters in an Underwritten Registration that is to be a Piggyback Registration (other than Underwritten Shelf Takedown), in good faith, advises the Company and the Holders of Registrable Securities participating in the Piggyback Registration in writing that the dollar amount or number of the Ordinary Shares that the Company desires to sell, taken together with (i) the Ordinary Shares, if any, as to which Registration has been demanded pursuant to separate written contractual arrangements with persons or entities other than the Holders of Registrable Securities hereunder, (ii) the Registrable Securities as to which registration has been requested pursuant to Section 2.2 hereof, and (iii) the Ordinary Shares, if any, as to which Registration has been requested pursuant to separate written contractual piggyback registration rights of other shareholders of the Company, exceeds the Maximum Number of Securities, then:

 

(a)       If the Registration is undertaken for the Company’s account, the Company shall include in any such Registration (A) first, the Ordinary Shares or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.2.1 hereof, Pro Rata based on the respective number of Registrable Securities that each Holder has so requested exercising its rights to register its Registrable Securities pursuant to subsection 2.2.1 hereof, which can be sold without exceeding the Maximum Number of Securities; and (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the Ordinary Shares, if any, as to which Registration has been requested pursuant to written contractual piggyback registration rights of other shareholders of the Company, which can be sold without exceeding the Maximum Number of Securities; (b) If the Registration is pursuant to a request by persons or entities other than the Holders of Registrable Securities, then the Company shall include in any such Registration (A) first, the Ordinary Shares or other equity securities, if any, of such requesting persons or entities, other than the Holders of Registrable Securities, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.2.1, Pro Rata, which can be sold without exceeding the Maximum Number of Securities; (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the Ordinary Shares or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A), (B) and (C), the Ordinary Shares or other equity securities for the account of other persons or entities that the Company is obligated to register pursuant to separate written contractual arrangements with such persons or entities, which can be sold without exceeding the Maximum Number of Securities.

 

2.2.3    Piggyback Registration Withdrawal. Any Holder of Registrable Securities shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of his, her or its intention to withdraw from such Piggyback Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Piggyback Registration. The Company (whether on its own good faith determination or as the result of a request for withdrawal by persons pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection with a Piggyback Registration at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal under this subsection 2.2.3.

 

2.2.4    Unlimited Piggyback Registration Rights. For purposes of clarity, any Registration effected pursuant to Section 2.2 hereof shall not be counted as a Registration pursuant to a Demand Registration effected under Section 2.1 hereof.

 

 

2.3       Shelf Registrations.

 

2.3.1    The Holders of Registrable Securities may at any time, and from time to time, request in writing that the Company, pursuant to Rule 415 under the Securities Act (or any successor rule promulgated thereafter by the Commission), register the resale of any or all of their Registrable Securities on Form S-3 or similar short form registration statement that may be available at such time (“Form S-3”), or if the Company is ineligible to use Form S-3, on Form S-1; a registration statement filed pursuant to this subsection 2.3.1 (a “Shelf”) shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination of methods legally available to, and requested by, any Holder. Within three (3) days of the Company’s receipt of a written request from a Holder or Holders of Registrable Securities for a Registration on a Shelf, the Company shall promptly give written notice of the proposed Registration to all other Holders of Registrable Securities, and each Holder of Registrable Securities who thereafter wishes to include all or a portion of such Holder’s Registrable Securities in such Registration shall so notify the Company, in writing, within three (3) business days after the receipt by the Holder of the notice from the Company. As soon as practicable thereafter, but not more than ten (10) days after the Company’s initial receipt of such written request for a Registration on a Shelf, the Company shall register all or such portion of such Holder’s Registrable Securities as are specified in such written request, together with all or such portion of Registrable Securities of any other Holder or Holders joining in such request as are specified in the written notification given by such Holder or Holders; provided, however, that the Company shall not be obligated to effect any such Registration pursuant to this subsection 2.3.1 if the Holders of Registrable Securities, together with the Holders of any other equity securities of the Company entitled to inclusion in such Registration, propose to sell the Registrable Securities and such other equity securities (if any) at any aggregate price to the public of less than $10,000,000. The Company shall maintain each Shelf in accordance with the terms hereof, and shall prepare and file with the SEC such amendments, including post-effective amendments, and supplements as may be necessary to keep such Shelf continuously effective, available for use and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities included on such Shelf. In the event the Company files a Shelf on Form S-1, the Company shall use its commercially reasonable efforts to convert the Form S-1 to a Form S-3 as soon as practicable after the Company is eligible to use Form S-3.

 

2.3.2    If any Shelf ceases to be effective under the Securities Act for any reason at any time while Registrable Securities included thereon are still outstanding, the Company shall use its commercially reasonable efforts to as promptly as is reasonably practicable cause such Shelf to again become effective under the Securities Act (including obtaining the prompt withdrawal of any order suspending the effectiveness of such Shelf), and shall use its commercially reasonable efforts to as promptly as is reasonably practicable amend such Shelf in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf or file an additional registration statement (a “Subsequent Shelf Registration”) registering the resale of all Registrable Securities including on such Shelf, and pursuant to any method or combination of methods legally available to, and requested by, any Holder. If a Subsequent Shelf Registration is filed, the Company shall use its commercially reasonable efforts to (i) cause such Subsequent Shelf Registration to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof and (ii) keep such Subsequent Shelf Registration continuously effective, available for use and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities included thereon. Any such Subsequent Shelf Registration shall be on Form S-3 to the extent that the Company is eligible to use such form. Otherwise, such Subsequent Shelf Registration shall be on another appropriate form. In the event that any Holder holds Registrable Securities that are not registered for resale on a delayed or continuous basis, the Company, upon request of a Holder shall promptly use its commercially reasonable efforts to cause the resale of such Registrable Securities to be covered by either, at the Company’s option, a Shelf (including by means of a post-effective amendment) or a Subsequent Shelf Registration and cause the same to become effective as soon as practicable after such filing and such Shelf or Subsequent Shelf Registration shall be subject to the terms hereof; provided, however, the Company shall only be required to cause such Registrable Securities to be so covered once annually after inquiry of the Holders.

 

2.3.3    At any time and from time to time after a Shelf has been declared effective by the Commission, the Sponsor may request to sell all or any portion of its Registrable Securities in an underwritten offering that is registered pursuant to the Shelf (each, an “Underwritten Shelf Takedown”); provided that the Company shall only be obligated to effect an Underwritten Shelf Takedown if such offering shall include securities with a total offering price (including piggyback securities and before deduction of underwriting discounts) reasonably expected to exceed, in the aggregate, $10,000,000. All requests for Underwritten Shelf Takedowns shall be made by giving written notice to the Company at least 48 hours prior to the public announcement of such Underwritten Shelf Takedown, which shall specify the approximate number of Registrable Securities proposed to be sold in the Underwritten Shelf Takedown and the expected price range (net of underwriting discounts and commissions) of such Underwritten Shelf Takedown. The Company shall include in any Underwritten Shelf Takedown the securities requested to be included by any holder (each a “Takedown Requesting Holder”) at least 24 hours prior to the public announcement of such Underwritten Shelf Takedown pursuant to written contractual piggyback registration rights of such holder (including to those set forth herein). The Sponsor shall have the right to select the underwriter(s) for such offering (which shall consist of one or more reputable nationally recognized investment banks), subject to the Company’s prior approval which shall not be unreasonably withheld, conditioned or delayed. For purposes of clarity, any Registration effected pursuant to this subsection 2.3.3 shall not be counted as a Registration pursuant to a Demand Registration effected under Section 2.1 hereof.

 

2.3.4    If the managing Underwriter or Underwriters in an Underwritten Shelf Takedown, in good faith, advises the Company, the Sponsor and the Takedown Requesting Holders (if any) in writing that the dollar amount or number of Registrable Securities that the Sponsor and the Takedown Requesting Holders (if any) desire to sell, taken together with all other Ordinary Shares or other equity securities that the Company desires to sell, exceeds the Maximum Number of Securities, then the Company shall include in such Underwritten Shelf Takedown, as follows: (i) first, the Registrable Securities of the Sponsor that can be sold without exceeding the Maximum Number of Securities; (ii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), the Ordinary Shares or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the Ordinary Shares or other equity securities of the Takedown Requesting Holders, if any, that can be sold without exceeding the Maximum Number of Securities, determined Pro Rata based on the respective number of Registrable Securities that each Takedown Requesting Holder has so requested to be included in such Underwritten Shelf Takedown.

 

 

2.3.5    The Sponsor shall have the right to withdraw from an Underwritten Shelf Takedown for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of its intention to withdraw from such Underwritten Shelf Takedown prior to the public announcement of such Underwritten Shelf Takedown. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with an Underwritten Shelf Takedown prior to a withdrawal under this subsection 2.3.5.

 

2.4       Restrictions on Registration Rights. If (A) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of, and ending on a date one hundred and twenty (120) days after the effective date of, a Company initiated Registration and provided that the Company has delivered written notice to the Holders prior to receipt of a Demand Registration pursuant to subsection 2.1.1 and it continues to actively employ, in good faith, all reasonable efforts to cause the applicable Registration Statement to become effective; (B) the Holders have requested an Underwritten Registration and the Company and the Holders are unable to obtain the commitment of underwriters to firmly underwrite the offer; or (C) in the good faith judgment of the Board such Registration would be seriously detrimental to the Company and the Board concludes as a result that it is essential to defer the filing of such Registration Statement at such time, then in each case the Company shall furnish to such Holders a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board it would be seriously detrimental to the Company for such Registration Statement to be filed in the near future and that it is therefore essential to defer the filing of such Registration Statement. In such event, the Company shall have the right to defer such filing for a period of not more than thirty (30) days; provided, however, that the Company shall not defer its obligation in this manner more than once in any 12-month period. Notwithstanding anything to the contrary contained in this Agreement, no Registration shall be effected or permitted and no Registration Statement shall become effective, with respect to any Registrable Securities held by any Holder, until after the expiration of the Founder Shares Lock-Up Period or the Private Placement Lock-Up Period, as the case may be.

 

ARTICLE 3
COMPANY PROCEDURES

 

3.1       General Procedures. If at any time on or after the date the Company consummates an initial Business Combination the Company is required to effect the Registration of Registrable Securities, the Company shall use its best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible:

 

3.1.1    prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;

 

3.1.2    prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;

 

 

3.1.3    prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;

 

3.1.4    prior to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;

 

3.1.5    cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;

 

3.1.6    provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;

 

3.1.7    advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;

 

3.1.8    at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus (other than by way of a document incorporated by reference) furnish a copy thereof to each seller of such Registrable Securities or its counsel;

 

3.1.9    notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;

 

3.1.10  permit a representative of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;

 

3.1.11  obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;

 

3.1.12  on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to a majority in interest of the participating Holders;

 

 

3.1.13  in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;

 

3.1.14  make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);

 

3.1.15  if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $50,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and

 

3.1.16  otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.

 

3.2       Registration Expenses. The Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Holders that the Holders shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as set forth in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing the Holders.

 

3.3       Requirements for Participation in Underwritten Offerings. No person may participate in any Underwritten Offering for equity securities of the Company pursuant to a Registration initiated by the Company hereunder unless such person (i) agrees to sell such person’s securities on the basis provided in any underwriting arrangements approved by the Company and (ii) completes and executes all customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting agreements and other customary documents as may be reasonably required under the terms of such underwriting arrangements.

 

3.4       Suspension of Sales; Adverse Disclosure. Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement, each of the Holders shall forthwith discontinue disposition of Registrable Securities until he, she or it has received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants to prepare and file such supplement or amendment as soon as practicable after the time of such notice), or until he, she or it is advised in writing by the Company that the use of the Prospectus may be resumed. If the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would require the Company to make an Adverse Disclosure or would require the inclusion in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control, the Company may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time, but in no event more than thirty (30) days, determined in good faith by the Company to be necessary for such purpose. In the event the Company exercises its rights under the preceding sentence, the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities. The Company shall immediately notify the Holders of the expiration of any period during which it exercised its rights under this Section 3.4.

 

3.5       Reporting Obligations. As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting company under the Exchange Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holders with true and complete copies of all such filings. The Company further covenants that it shall take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell Ordinary Shares held by such Holder without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission, to the extent that such rule or such successor rule is available to the Company), including providing any legal opinions. Upon the request of any Holder, the Company shall deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such requirements.

 

 

ARTICLE 4
INDEMNIFICATION AND CONTRIBUTION

 

4.1       Indemnification.

 

4.1.1    The Company agrees to indemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers and directors and each person who controls such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses (including attorneys’ fees) caused by any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information furnished in writing to the Company by such Holder expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Holder.

 

4.1.2    In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus and, to the extent permitted by law, shall indemnify the Company, its directors and officers and agents and each person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses (including without limitation reasonable attorneys’ fees) resulting from any untrue or alleged untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by such Holder expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of the Company.

 

4.1.3    Any person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which he, she or it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

 

 

4.1.4    The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling person of such indemnified party and shall survive the transfer of securities. The Company and each Holder of Registrable Securities participating in an offering also agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or such Holder’s indemnification is unavailable for any reason.

 

4.1.5    If the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder under this subsection 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in subsections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection 4.1.5 were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this subsection 4.1.5. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this subsection 4.1.5 from any person who was not guilty of such fraudulent misrepresentation.

 

ARTICLE 5
SHAREHOLDER RIGHTS

 

5.1       Subject to the terms and conditions of this Agreement, at any time and from time to time on or after the date that the Company consummates an initial Business Combination and for so long as the Sponsor holds any Registrable Securities:

 

5.1.1    The Sponsor shall have the right, but not the obligation, to designate three individuals to be appointed or nominated, as the case may be, for election to the Board (including any successor, each, a “Nominee”) by giving written notice to the Company on or before the time such information is reasonably requested by the Board or the Nominating Committee of the Board, as applicable, for inclusion in a proxy statement for a meeting of shareholders provided to the Sponsor.

 

5.1.2    The Company will, as promptly as practicable, use its best efforts to take all necessary and desirable actions (including, without limitation, calling special meetings of the Board and the shareholders and recommending, supporting and soliciting proxies) so that there are three Sponsor Directors serving on the Board at all times.

 

5.1.3    The Company shall, to the fullest extent permitted by applicable law, use its best efforts to take all actions necessary to ensure that: (i) each Nominee is included in the Board’s slate of nominees to the shareholders of the Company for each election of Directors; and (ii) each Nominee is included in the proxy statement prepared by management of the Company in connection with soliciting proxies for every meeting of the shareholders of the Company called with respect to the election of members of the Board, and at every adjournment or postponement thereof, and on every action or approval by written consent of the shareholders of the Company or the Board with respect to the election of members of the Board.

 

5.1.4    If a vacancy occurs because of the death, disability, disqualification, resignation, or removal of a Sponsor Director or for any other reason, the Sponsor shall be entitled to designate such person’s successor, and the Company will, as promptly as practicable following such designation, use its best efforts to take all necessary and desirable actions, to the fullest extent permitted by law, within its control such that such vacancy shall be filled with such successor Nominee.

 

 

5.1.5    If a Nominee is not elected because of such Nominee’s death, disability, disqualification, withdrawal as a nominee or for any other reason, the Sponsor shall be entitled to designate promptly another Nominee and the Company will take all necessary and desirable actions within its control such that the director position for which such Nominee was nominated shall not be filled pending such designation or the size of the Board shall be increased by one and such vacancy shall be filled with such successor Nominee as promptly as practicable following such designation.

 

5.1.6    As promptly as reasonably practicable following the request of any Sponsor Director, the Company shall enter into an indemnification agreement with such Sponsor Director, in the form entered into with the other members of the Board. The Company shall pay the reasonable, documented out-of-pocket expenses incurred by the Sponsor Director in connection with his or her services provided to or on behalf of the Company, including attending meetings or events attended explicitly on behalf of the Company at the Company’s request.

 

5.1.7    The Company shall (i) purchase directors’ and officers’ liability insurance in an amount determined by the Board to be reasonable and customary and (ii) for so long as a Sponsor Director serves as a Director of the Company, maintain such coverage with respect to such Sponsor Director; provided that upon removal or resignation of such Sponsor Director for any reason, the Company shall take all actions reasonably necessary to extend such directors’ and officers’ liability insurance coverage for a period of not less than six years from any such event in respect of any act or omission occurring at or prior to such event.

 

5.1.8    For so long as a Sponsor Director serves as a Director of the Company, the Company shall not amend, alter or repeal any right to indemnification or exculpation covering or benefiting any Sponsor Director nominated pursuant to this Agreement as and to the extent consistent with applicable law, whether such right is contained in the Company’s amended and restated memorandum and articles of association, each as amended, or another document (except to the extent such amendment or alteration permits the Company to provide broader indemnification or exculpation rights on a retroactive basis than permitted prior thereto).

 

5.1.9    Each Nominee may, but does not need to qualify as “independent” pursuant to listing standards of the Nasdaq Capital Market (or such other national securities exchange upon which the Company’s securities are then listed).

 

5.1.10   Any Nominee will be subject to the Company’s customary due diligence process, including its review of a completed questionnaire and a background check. Based on the foregoing, the Company may object to any Nominee provided (a) it does so in good faith, and (b) such objection is based upon any of the following: (i) such Nominee was convicted in a criminal proceeding or is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses), (ii) such Nominee was the subject of any order, judgment, or decree not subsequently reversed, suspended or vacated of any court of competent jurisdiction, permanently or temporarily enjoining such proposed director from, or otherwise limiting, the following activities: (A) engaging in any type of business practice, or (B) engaging in any activity in connection with the purchase or sale of any security or in connection with any violation of federal or state securities laws, (iii) such Nominee was the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any federal or state authority barring, suspending or otherwise limiting for more than 60 days the right of such person to engage in any activity described in clause (ii)(B), or to be associated with persons engaged in such activity, (iv) such proposed director was found by a court of competent jurisdiction in a civil action or by the Commission to have violated any federal or state securities law, and the judgment in such civil action or finding by the Commission has not been subsequently reversed, suspended or vacated, or (v) such proposed director was the subject of, or a party to any federal or state judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to a violation of any federal or state securities laws or regulations. In the event the Board reasonably finds the Nominee to be unsuitable based upon one or more of the foregoing clauses (i) through (v) and reasonably objects to the identified director, the Sponsor shall be entitled to propose a different Nominee to the Board within 30 calendar days of the Company’s notice to the Sponsor of its objection to the Nominee and such replacement Nominee shall be subject to the review process outlined above.

 

5.1.11  The Company shall take all necessary action to cause a Nominee chosen by the Sponsor, at the request of such Nominee to be elected to the board of directors (or similar governing body) of each material operating subsidiary of the Company. The Nominee, as applicable, shall have the right to attend (in person or remotely) any meetings of the board of directors (or similar governing body or committee thereof) of each subsidiary of the Company.

 

 

ARTICLE 6
MISCELLANEOUS

 

6.1        Notices. Any notice or communication under this Agreement must be in writing and given by (i) deposit in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, (ii) delivery in person or by courier service providing evidence of delivery, or (iii) transmission by hand delivery, electronic mail, telecopy, telegram or facsimile. Each notice or communication that is mailed, delivered, or transmitted in the manner described above shall be deemed sufficiently given, served, sent, and received, in the case of mailed notices, on the third business day following the date on which it is mailed and, in the case of notices delivered by courier service, hand delivery, electronic mail, telecopy, telegram or facsimile, at such time as it is delivered to the addressee (with the delivery receipt or the affidavit of messenger) or at such time as delivery is refused by the addressee upon presentation. Any notice or communication under this Agreement must be addressed, if to the Company, to: 8 Marina View, Asia Square Tower 1 #41-03, Singapore, Attention: James Steinthal, with copy to; Kirkland & Ellis International LLP, 26th Floor, Gloucester Tower, The Landmark, 15 Queen’s Road, Central, Hong Kong, Attention: Benjamin W. James, and, if to any Holder, at such Holder’s address or facsimile number as set forth in the Company’s books and records. Any party may change its address for notice at any time and from time to time by written notice to the other parties hereto, and such change of address shall become effective thirty (30) days after delivery of such notice as provided in this Section 6.1.

 

6.2       Assignment; No Third Party Beneficiaries.

 

6.2.1    This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part.

 

6.2.2    Prior to the expiration of the Founder Shares Lock-up Period or the Private Placement Lock-up Period, as the case may be, no Holder may assign or delegate such Holder’s rights, duties or obligations under this Agreement, in whole or in part, except in connection with a transfer of Registrable Securities by such Holder to a Permitted Transferee but only if such Permitted Transferee agrees to become bound by the transfer restrictions set forth in this Agreement.

 

6.2.3    This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and the permitted assigns of the Holders, which shall include Permitted Transferees.

 

6.2.4    This Agreement shall not confer any rights or benefits on any persons that are not parties hereto, other than as expressly set forth in this Agreement and Section 6.2 hereof.

 

6.2.5    No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless and until the Company shall have received (i) written notice of such assignment as provided in Section 6.1 hereof and (ii) the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement). Any transfer or assignment made other than as provided in this Section 6.2 shall be null and void.

 

6.3       Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible that is valid and enforceable.

 

6.4       Counterparts. This Agreement may be executed in multiple counterparts (including facsimile or PDF counterparts), each of which shall be deemed an original, and all of which together shall constitute the same instrument, but only one of which need be produced.

 

 

6.5       Entire Agreement. This Agreement (including all agreements entered into pursuant hereto and all certificates and instruments delivered pursuant hereto and thereto) constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, representations, understandings, negotiations and discussions between the parties, whether oral or written.

 

6.6       Governing Law; Venue. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO AGREEMENTS AMONG NEW YORK RESIDENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS OF SUCH JURISDICTION AND THE VENUE FOR ANY ACTION TAKEN WITH RESPECT TO THIS AGREEMENT SHALL BE ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK.

 

6.7       WAIVER OF TRIAL BY JURY. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, COUNTERCLAIM OR OTHER PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE SPONSOR IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.

 

6.8       Amendments and Modifications. Upon the written consent of the Company and the Holders of at least a majority in interest of the Registrable Securities at the time in question, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however, that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects one Holder, solely in his, her or its capacity as a holder of the shares of the Company, in a manner that is materially different from the other Holders (in such capacity) shall require the consent of the Holder so affected. No course of dealing between any Holder or the Company and any other party hereto or any failure or delay on the part of a Holder or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or the Company. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party.

 

6.9       Titles and Headings. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.

 

6.10     Waivers and Extensions. Any party to this Agreement may waive any right, breach or default which such party has the right to waive, provided that such waiver will not be effective against the waiving party unless it is in writing, is signed by such party, and specifically refers to this Agreement. Waivers may be made in advance or after the right waived has arisen or the breach or default waived has occurred. Any waiver may be conditional. No waiver of any breach of any agreement or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof nor of any other agreement or provision herein contained. No waiver or extension of time for performance of any obligations or acts shall be deemed a waiver or extension of the time for performance of any other obligations or acts.

 

6.11     Remedies Cumulative. In the event that the Company fails to observe or perform any covenant or agreement to be observed or performed under this Agreement, the Holders may proceed to protect and enforce its rights by suit in equity or action at law, whether for specific performance of any term contained in this Agreement or for an injunction against the breach of any such term or in aid of the exercise of any power granted in this Agreement or to enforce any other legal or equitable right, or to take any one or more of such actions, without being required to post a bond. None of the rights, powers or remedies conferred under this Agreement shall be mutually exclusive, and each such right, power or remedy shall be cumulative and in addition to any other right, power or remedy, whether conferred by this Agreement or now or hereafter available at law, in equity, by statute or otherwise.

 

6.12     Other Registration Rights. The Company represents and warrants that no person, other than a Holder of Registrable Securities, has any right to require the Company to register any securities of the Company for sale or to include such securities of the Company in any Registration filed by the Company for the sale of securities for its own account or for the account of any other person. Further, the Company represents and warrants that this Agreement supersedes any other registration rights agreement or agreement with similar terms and conditions and in the event of a conflict between any such agreement or agreements and this Agreement, the terms of this Agreement shall prevail.

 

6.13     Term. This Agreement shall terminate upon the earlier of (i) the tenth anniversary of the date of this Agreement and (ii) the date as of which no Registrable Securities remain outstanding. The provisions of Section 3.5 and Article IV shall survive any termination.

 

[SIGNATURE PAGES FOLLOW]

 

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.

 

	COMPANY:
	L CATTERTON ASIA ACQUISITION CORP
	By:	/s/ Chinta Bhagat
	Name: Chinta Bhagat
	Title: Co-Chief Executive Officer and Director

 

[Signature page to Registration and Shareholder Rights Agreement]

 

 

	HOLDERS:
	LCA ACQUISITION SPONSOR, LP
	Signed by LCA Acquisition Sponsor GP Limited
	By:	/s/ Soh Po Chuan Daniel
	Name: Soh Po Chuan Daniel
	Title: Director

 

[Signature page to Registration and Shareholder Rights Agreement]

 

 

 

Exhibit 4.9

 

REGISTRATION RIGHTS AGREEMENT

 

This REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of _______, 2023, is made and entered into by and among (i) Lotus Technology Inc., an exempted company limited by shares incorporated under the laws of the Cayman Islands (the “Company”), (ii) L Catterton Asia Acquisition Corp, an exempted company limited by shares incorporated under the laws of the Cayman Islands (“SPAC”), (iii) LCA Acquisition Sponsor, LP, a Cayman Islands exempted limited partnership (the “Sponsor”), and (iv) the other undersigned parties listed on the signature page hereto (each such party, together with the Sponsor and any person or entity who hereafter becomes a party to this Agreement pursuant to Section 5.2 of this Agreement, a “Holder” and collectively the “Holders”).

 

WHEREAS, SPAC and the Sponsor entered into that certain Registration and Shareholder Rights Agreement dated as of March 10, 2021 (the “Prior SPAC Agreement”), and the parties to the Prior SPAC Agreement desire to terminate, effective as of the Closing (as defined below), the same to provide for the terms and conditions set forth in this Agreement;

 

WHEREAS, on January 31, 2023, the Company, SPAC, Lotus Temp Limited, an exempted company limited by shares incorporated under the laws of the Cayman Islands and a direct wholly owned subsidiary of the Company (“Merger Sub 1”) and Lotus EV Limited, an exempted company limited by shares incorporated under the laws of the Cayman Islands and a direct wholly owned subsidiary of the Company (“Merger Sub 2”) entered into that certain Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which, among other matters, (i) Merger Sub 1 will merge with and into SPAC with SPAC continuing as the surviving entity and a wholly owned subsidiary of the Company (the “First Merger,” and the closing of the First Merger, the “First Merger Closing”), (ii) immediately following the consummation of the First Merger,  SPAC will merge with and into Merger Sub 2 with Merger Sub 2 continuing as the surviving entity and a wholly owned subsidiary of the Company (the “Second Merger” and together with the First Merger, collectively, the “Mergers,” and the closing of the Mergers, the “Closing”);

 

WHEREAS, following the Closing, the Holders will hold certain number of Company Ordinary Shares (as defined in the Merger Agreement);

 

WHEREAS, at the First Merger Closing and subject to the terms and conditions of the Merger Agreement, (i) all of the outstanding shares of SPAC will automatically be cancelled and cease to exist in exchange for the right to receive newly issued Company Ordinary Shares, and (ii) all of the outstanding warrants of SPAC will automatically be assumed by the Company and become Company Warrants (as defined in the Merger Agreement).

 

NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

 

ARTICLE 1 
DEFINITIONS

 

The terms defined in this Article 1 shall, for all purposes of this Agreement, have the respective meanings set forth below:

 

“Adverse Disclosure” shall mean any public disclosure of material non-public information, (a) which disclosure, in the good faith judgment of the Chief Executive Officer or Chief Financial Officer of the Company, after consultation with counsel to the Company, (i) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading, and (ii) would not be required to be made at such time if the Registration Statement were not being filed, declared effective or used, as the case may be, and (b) as to which the Company has a bona fide business purpose for not making such information public.

 

 

“Agreement” shall have the meaning given in the Preamble.

 

“Board” shall mean the board of directors of the Company.

 

“Business Day” shall mean a day on which commercial banks are open for business in New York, U.S., the Cayman Islands or the PRC, except a Saturday, Sunday or public holiday (gazetted or ungazetted and whether scheduled or unscheduled).

 

“Closing” shall have the meaning given in the Recitals.

 

“Commission” shall mean the United States Securities and Exchange Commission.

 

“Company” shall have the meaning given in the Preamble.

 

“Demanding Holder” shall have the meaning given in Section 2.4.

 

“Exchange Act” shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.

 

“First Merger Closing” shall have the meaning given in the Recitals.

 

“Form F-1” shall mean such form under the Securities Act as in effect on the date hereof or any successor registration form under the Securities Act subsequently adopted by the Commission.

 

“Form F-1 Shelf” shall have the meaning given in subsection 2.1.1.

 

“Form F-3” shall mean such form under the Securities Act as in effect on the date hereof or any registration form under the Securities Act subsequently adopted by the Commission that permits forward incorporation of substantial information by reference to other documents filed by the Company with the Commission.

 

“Form F-3 Shelf” shall have the meaning given in subsection 2.1.3.

 

“Holders” shall have the meaning given in the Preamble.

 

“Lock-Up Agreement” shall mean, as applicable, the agreements and undertakings of the Holders set forth in (i) Section 4.11 of that certain Shareholder Support Agreement dated as of the date hereof, by and among the Company, SPAC and certain shareholders of the Company identified therein, and (ii) Section 4.12 of that certain Sponsor Support Agreement dated as of the date hereof by and among the Company, SPAC, the Sponsor and certain other persons identified therein, in each case pursuant to which a Holder has agreed not to transfer the Registrable Securities held by such Holder for a certain period of time after the Closing.

 

“Maximum Number of Securities” shall mean, as to a given Underwritten Offering, the maximum dollar amount or maximum number of equity securities that can be sold in such Underwritten Offering, in the reasonable determination of the managing Underwriter(s), without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering.

 

 

“Merger Agreement” shall have the meaning given in the Recitals.

 

“Misstatement” shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus (in the case of a Prospectus, in the light of the circumstances under which they were made) not misleading.

 

“New Registration Statement” shall have the meaning given in subsection 2.2.1.

 

“Permitted Transferees” shall mean a person or entity to whom a Holder of Registrable Securities is permitted to transfer such Registrable Securities prior to the expiration of the lock-up period under the applicable Lock-Up Agreement, and to any transferee thereafter.

 

“Piggyback Registration” shall have the meaning given in subsection 2.7.1.

 

“PIPE Securities” shall mean those securities issued pursuant to the PIPE Subscription Agreements.

 

“PIPE Subscription Agreements” shall mean the subscription agreement(s) or similar agreement(s) to be entered into by and among any investor, the Company, and, where applicable, other parties thereto, pursuant to which such investor will subscribe for Company Ordinary Shares on the date of the Closing.

 

“Prior SPAC Agreement” shall have the meaning given in the Recitals.

 

“Pro Rata” shall mean, with respect to a given Registration, offering or Transfer of Registrable Securities pursuant to this Agreement, pro rata based on (A) the number of Registrable Securities that each Holder, as applicable, has requested or proposed to be included in such Registration, offering or Transfer and (B) the aggregate number of Registrable Securities that all Holders have requested or proposed to be included in such Registration, offering or Transfer.

 

“Prospectus” shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all post-effective amendments and including all material incorporated by reference in such prospectus.

 

“Registrable Securities” shall mean:

 

(A)            any outstanding Company Ordinary Shares or Company Warrants that are held by a Holder as of immediately following the Closing;

 

(B)            any Company Ordinary Shares that may be acquired by a Holder upon the exercise of any of the Company Warrants (or any other option or right to acquire Company Ordinary Shares) that are held by a Holder as of immediately following the Closing; and

 

(C)            any other equity security of the Company issued or issuable with respect to any securities referenced in clauses (A) or (B) above by way of a stock dividend or stock split or in connection with a recapitalization, merger, consolidation, spin-off, reorganization or similar transaction,

 

provided, however, as to any particular Registrable Securities, such securities shall cease to be Registrable Securities when: (i) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (ii) such securities shall have been otherwise transferred, new certificates for such securities not bearing (or book-entry positions not subject to) a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of such securities shall not require registration under the Securities Act; (iii) such securities shall have ceased to be outstanding; (iv) such securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.

 

 

“Registration” shall mean a registration, including any related Underwritten Takedown, effected by preparing and filing a registration statement or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.

 

“Registration Expenses” shall mean the out-of-pocket expenses of a Registration, including, without limitation, the following:

 

(A)           all registration and filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc.) and any securities exchange on which the Company Ordinary Shares are then listed;

 

(B)            fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel for the Underwriters in connection with blue sky qualifications of Registrable Securities);

 

(C)            printing, messenger, telephone and delivery expenses of the Company;

 

(D)            reasonable fees and disbursements of counsel for the Company;

 

(E)            reasonable fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such Registration;

 

(F)            the Company’s roadshow and travel expenses, if any; and

 

(G)            reasonable fees and expenses of one (1) legal counsel selected by the majority-in-interest of the Demanding Holders initiating an Underwritten Takedown.

 

“Registration Statement” shall mean any registration statement that covers the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.

 

“Requesting Holder” shall have the meaning given in Section 2.5.

 

“SEC Guidance” shall have the meaning given in subsection 2.2.1.

 

“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.

 

“Shelf” shall mean the Form F-1 Shelf, the Form F-3 Shelf or any Subsequent Shelf, as the case may be.

 

“Shelf Registration” shall mean a Registration of securities pursuant to a Registration Statement filed with the Commission in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect).

 

 

“SPAC” shall have the meaning given in the Preamble.

 

“Sponsor” shall have the meaning given in the Recitals.

 

“Subsequent Shelf” shall have the meaning given in subsection 2.3.2.

 

“Takedown Demand” shall have the meaning given in subsection 2.4.1.

 

“Takedown Threshold” shall have the meaning given in Section 2.4.

 

“Transfer” shall mean the (a) sale of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any security, (b) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) public announcement of any intention to effect any transaction specified in clause (a) or (b).

 

“Underwriter” shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such dealer’s market-making activities.

 

“Underwritten Registration” or “Underwritten Offering” shall mean a Registration in which securities of the Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.

 

“Underwritten Takedown” shall mean an Underwritten Offering of Registrable Securities pursuant to the Shelf, as amended or supplemented.

 

ARTICLE 2
registrations

 

2.1            Resale Shelf Registration.

 

2.1.1         The Company shall (a) use its reasonable efforts to file within forty five (45) days following the Closing, and use commercially reasonable efforts to cause to be declared effective as soon as reasonably practicable thereafter, a Registration Statement for a Shelf Registration on Form F-1 (the “Form F-1 Shelf”) covering the resale of all the Registrable Securities (determined as of two (2) Business Days prior to such filing) on a delayed or continuous basis pursuant to Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect), and (b) subject to the other provisions of this Agreement, keep such Form F-1 Shelf effective and available for use in compliance with the provisions of the Securities Act until such time as a Form F-3 Shelf is declared effective pursuant to subsection 2.1.3.

 

2.1.2         Such Shelf shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination of methods legally available to, and requested by, any Holders named therein.

 

2.1.3         Following the filing of a Form F-1 Shelf, the Company shall use commercially reasonable efforts to convert the Form F-1 Shelf (and any Subsequent Shelf in relation thereto) to, and/or to file, and to cause to become effective, a Registration Statement for a Shelf Registration on Form F-3 (the “Form F-3 Shelf”) as soon as reasonably practicable after the Company is eligible to use Form F-3.

 

 

2.2           Rule 415 Cutback.

 

2.2.1         Notwithstanding the registration obligations set forth in Section 2.1, in the event the Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415 of the Securities Act, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (a) inform each of the Holders and use its commercially reasonable efforts to file amendments to the Shelf Registration as required by the Commission and/or (b) withdraw the Shelf Registration and file a new Registration Statement (a “New Registration Statement”), on Form F-3, or if Form F-3 is not then available to the Company for such Registration Statement, on such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall use its commercially reasonable efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the Commission staff (the “SEC Guidance”).

 

2.2.2         Notwithstanding any other provision of this Agreement, if any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used commercially reasonable efforts to advocate with the Commission for the registration of all or a greater number of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities and subject to a determination by the Commission that certain Holders must be reduced first based on the number of Registrable Securities held by such Holders, the number of Registrable Securities to be registered on such Registration Statement will be reduced (a) firstly, on a Pro Rata basis among the Holders; and (b) secondly, only if the number of Registrable Securities of Holders permitted to be registered has been reduced to zero, on a Pro Rata basis among holders of PIPE Securities (if any).

 

2.2.3          If the Company amends the Shelf Registration or files a New Registration Statement, as the case may be, under this Section 2.2, the Company shall use its commercially reasonable efforts to file with the Commission, as promptly as allowed by the Commission or SEC Guidance, one or more registration statements on Form F-3 or such other form available to register for resale those Registrable Securities (a) that were not registered for resale on the Shelf Registration, as amended, or the New Registration Statement and (b) are no longer restricted by any Lock-Up Agreement.

 

2.3           Amendment, Supplement and Subsequent Shelf.

 

2.3.1         The Company shall use commercially reasonable efforts to maintain a Shelf in accordance with the terms of this Agreement, and shall prepare and file with the Commission from time to time such amendments and supplements to the Shelf as may be necessary to keep the Shelf continuously effective, available for use and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities.

 

2.3.2          If a Shelf ceases to be effective under the Securities Act for any reason at any time while Registrable Securities are still outstanding, the Company shall, subject to Section 3.4, use commercially reasonable efforts to as promptly as is reasonably practicable (a) cause such Shelf to again become effective under the Securities Act (including using commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness of such Shelf), (b) amend such Shelf in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf, or (c) prepare and file an additional Registration Statement for a Shelf Registration (a “Subsequent Shelf”) registering the resale of all Registrable Securities (determined as of two (2) Business Days prior to such filing), and pursuant to any method or combination of methods legally available to, and requested by, any Holders named therein.

 

 

2.3.3         If a Subsequent Shelf is filed pursuant to Section 2.3.2, the Company shall use commercially reasonable efforts to (a) cause such Subsequent Shelf to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof, and (b) keep such Subsequent Shelf continuously effective, available for use and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. Any such Subsequent Shelf shall be on Form F-3 to the extent that the Company is eligible to use such form, and shall be an automatic shelf registration statement as defined in Rule 405 promulgated under the Securities Act if the Company is a well-known seasoned issuer as defined in Rule 405 promulgated under the Securities Act at the most recent applicable eligibility determination date.

 

2.4            Demand for Underwritten Takedown. Subject to the Lock-Up Agreements and to the provisions of this Section 2.4 and Sections 2.5 and 3.4, at any time and from time to time when an effective Shelf is on file with the Commission, either (x) the Holders of at least 50% of the then-outstanding number of Registrable Securities or (y) the Sponsor (in each case, the “Demanding Holder(s)”) may, subject to the maximum number of Underwritten Takedowns pursuant to subsection 2.4.3, request to sell all or a portion of their Registrable Securities in an Underwritten Takedown in accordance with this Section 2.4; provided that the Company shall only be obligated to effect an Underwritten Takedown if such Underwritten Offering shall include Registrable Securities proposed to be sold by the Demanding Holder with a total offering price reasonably expected to exceed, in the aggregate, US$10,000,000 (the “Takedown Threshold”).

 

2.4.1         Takedown Demand Notice. All requests for an Underwritten Takedown shall be made by giving written notice to the Company, which shall specify the number of Registrable Securities proposed to be sold in the Underwritten Takedown (such written notice, a “Takedown Demand”).

 

2.4.2         Underwriters. The majority-in-interest of the Demanding Holders initiating an Underwritten Takedown shall have the right to select the Underwriter(s) for such Underwritten Offering (which shall consist of one or more internationally recognized investment banks), subject to the approval of the Company (which shall not be unreasonably withheld). The Company shall not be required to include any Holder’s Registrable Securities in such Underwritten Takedown unless such Holder accepts the terms of the underwriting as agreed between the Company and its Underwriter(s) and enters into and complies with an underwriting agreement with such Underwriter(s) in customary form (after having considered in good faith the comments from a single U.S. counsel for the Holders which are selling in the Underwritten Takedown). Notwithstanding anything to the contrary in this Agreement, the Company may effect any Underwritten Takedown pursuant to any then effective Registration Statement, including a Form F-3, that is then available for such offering.

 

2.4.3          Number and Frequency of Underwritten Takedowns. Notwithstanding anything to the contrary in this Section 2.4, under no circumstances shall the Company be obligated to effect (a) more than one (1) Underwritten Takedowns within the first year following the Closing, (b) for the period commencing one year after the Closing, more than two (2) Underwritten Takedown within any twelve-month period; (c) more than two (2) Underwritten Takedowns where the Sponsor is a Demanding Holder, provided that the Company shall be obligated to effect an aggregate of no more than two (2) Underwritten Takedowns. For the avoidance of doubt, a Registration will not count as an Underwritten Takedown until the Registration Statement filed with the Commission with respect to such Underwritten Takedown has been declared effective and the Company has complied with all of its obligations under this Agreement in all material respects with respect to such Underwritten Takedown; provided, however, that if, after such Registration Statement has been declared effective, the offering of Registrable Securities pursuant to such Underwritten Takedown is interfered with by any stop order or injunction of the Commission or any other governmental agency or court, the Registration Statement with respect to such Underwritten Takedown will be deemed not to have been declared effective, unless and until (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) the majority-in-interest of the Demanding Holders, thereafter elects to continue the offering, provided, further, that the Company shall not be obligated to file a second Registration Statement until the Registration Statement that has been previously filed with respect to such Registration becomes effective or is subsequently terminated.

 

 

2.5           Reduction of Underwritten Takedown. If the managing Underwriter(s) in an Underwritten Offering pursuant to a Takedown Demand advises the Company and the Demanding Holders and the Holders requesting piggy-back rights pursuant to this Agreement with respect to such Underwritten Offering (the “Requesting Holders”) (if any) in writing that the dollar amount or number of Registrable Securities that the Demanding Holders and the Requesting Holders (if any) desire to sell, taken together with all other Company Ordinary Shares or other equity securities that the Company desires to sell and the Company Ordinary Shares, if any, as to which a Registration has been requested pursuant to separate written contractual piggy-back registration rights held by any other shareholders who desire to sell, exceeds the Maximum Number of Securities, then the Company shall include in such Underwritten Offering:

 

2.5.1         first, the Registrable Securities of the Demanding Holders and the Requesting Holders (if any) that can be sold without exceeding the Maximum Number of Securities (to be allocated Pro Rata among the Demanding Holders and Requesting Holders if the Registrable Securities desired to be sold by such Holders in the aggregate would exceed the Maximum Number of Securities);

 

2.5.2         second, to the extent that the Maximum Number of Securities has not been reached under the foregoing subsection 2.5.1, the Company Ordinary Shares or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and

 

2.5.3          third, to the extent that the Maximum Number of Securities has not been reached under the foregoing subsections 2.5.1 and 2.5.2, any Company Ordinary Shares or other equity securities as to which a Registration has been requested pursuant to separate written contractual piggy-back registration rights of other shareholders of the Company that can be sold without exceeding the Maximum Number of Securities.

 

2.6          Withdrawal of Underwritten Takedown.

 

2.6.1         Prior to the filing of the applicable preliminary or “red herring” Prospectus used for marketing an Underwritten Takedown, if the majority-in-interest of the Demanding Holders disapprove of the terms of any underwriting or are not entitled to include all of their Registrable Securities in the relevant offering, such majority-in-interest of the Demanding Holders shall have the right to withdraw from such Underwritten Takedown upon written notification to the Company, each other Demanding Holder and Requesting Holder, and the applicable Underwriter(s).

 

2.6.2          Following the receipt of any notice of withdrawal pursuant to subsection 2.6.1, the other Demanding Holders and Requesting Holders, provided they collectively qualify as Demanding Holders pursuant to clauses (x) or (y) of Section 2.4 and the Takedown Threshold would still be satisfied, may elect to continue with the Underwritten Offering and such continued Takedown Demand shall count as a Takedown Demand of the continuing Demanding Holders for purposes of subsection 2.4.3 and not of the withdrawing Demanding Holders.

 

2.6.3          If an Underwritten Takedown is withdrawn and not continued pursuant to subsection 2.6.2, the withdrawn Takedown Demand shall not count as an Underwritten Takedown for purposes of subsection 2.4.3 if and only if one or more of the Demanding Holders reimburse the Company for all Registration Expenses with respect to such Underwritten Takedown. For the avoidance of doubt, the withdrawn Takedown Demand shall count as an Underwritten Takedown if the Company is responsible for the Registration Expenses with respect to such Underwritten Takedown.

 

 

2.7            Piggyback Registration.

 

2.7.1        Piggyback Rights. If the Company or any Holder proposes to conduct a registered offering of, or if the Company proposes to file a Registration Statement under the Securities Act with respect to the Registration of, equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into equity securities, for its own account or for the account of shareholders of the Company (or by the Company and by the shareholders of the Company, including an Underwritten Takedown pursuant to Section 2.4), other than a Registration Statement (a) filed in connection with any employee share option or other benefit plan, (b) for an exchange offer or offering of securities solely to the Company’s existing shareholders, (c) for an offering of debt that is convertible into equity securities of the Company, (d) for a dividend reinvestment plan or (e) for a rights offering, then the Company shall give written notice of such proposed filing or offering to all of the Holders of Registrable Securities as soon as practicable but not less than fifteen (15) days before the anticipated filing date of such Registration Statement, or, in the case of an Underwritten Offering pursuant to a Shelf Registration, the applicable preliminary “red herring” Prospectus or prospectus supplement used for marketing such offering, which notice shall (x) describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter(s), if any, in such offering, and (y) offer to all of the Holders of Registrable Securities the opportunity to register the sale of such number of Registrable Securities as such Holders may request in writing within ten (10)  days after receipt of such written notice (such Registration, a “Piggyback Registration”). Subject to subsection 2.7.2, the Company shall, in good faith, cause such Registrable Securities to be included in such Piggyback Registration and shall use commercially reasonable efforts to cause the managing Underwriter(s) of a proposed Underwritten Offering to permit the Registrable Securities requested by the Holders pursuant to this subsection 2.7.1 to be included in such Piggyback Registration on the same terms and conditions as any similar securities of the Company included in such Registration and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. In the event of any Underwritten Offering, the inclusion of any Holder’s Registrable Securities in a Piggyback Registration shall be subject to such Holder’s agreement to enter into and comply with an underwriting agreement in customary form with the Underwriter(s) duly selected for such Underwritten Offering.

 

2.7.2        Reduction of Piggyback Registration. If the managing Underwriter(s) in an Underwritten Registration that is to be a Piggyback Registration advises the Company and the Holders of Registrable Securities participating in the Piggyback Registration in writing that the dollar amount or number of the Company Ordinary Shares or other equity securities that Company desires to sell, taken together with (x) the Company Ordinary Shares or other equity securities, if any, as to which Registration or a registered offering has been demanded pursuant to separate written contractual arrangements with persons or entities other than the Holders of Registrable Securities hereunder, (y) the Registrable Securities as to which registration has been requested pursuant to Section 2.7 hereof, and (z) the Company Ordinary Shares or other equity securities, if any, as to which Registration or a registered offering has been requested pursuant to separate written contractual piggy-back registration rights of other shareholders of the Company, exceeds the Maximum Number of Securities, then:

 

(a)           If the Registration or registered offering is undertaken for the Company’s account, the Company shall include in any such Registration or registered offering:

 

(i)            first, the Company Ordinary Shares or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities;

 

(ii)           second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.7.1, Pro Rata among such Holders, which can be sold without exceeding the Maximum Number of Securities; and

 

 

(iii)          third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the Company Ordinary Shares or other equity securities, if any, as to which Registration or a registered offering has been requested pursuant to separate written contractual piggy-back registration rights of other shareholders of the Company, which can be sold without exceeding the Maximum Number of Securities; and

 

(b)           If the Registration or registered offering is pursuant to a request by persons or entities other than the Holders of Registrable Securities, then the Company shall include in any such Registration or registered offering:

 

(i)            first, the Company Ordinary Shares or other equity securities, if any, of such requesting persons or entities, other than the Holders of Registrable Securities, which can be sold without exceeding the Maximum Number of Securities;

 

(ii)           second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.7.1, Pro Rata among such Holders, which can be sold without exceeding the Maximum Number of Securities;

 

(iii)          third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the Company Ordinary Shares or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and

 

(iv)          fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i), (ii) and (iii), the Company Ordinary Shares or other equity securities, if any, as to which Registration or a registered offering has been requested pursuant to separate written contractual piggy-back registration rights of other shareholders of the Company, which can be sold without exceeding the Maximum Number of Securities.

 

(c)           Notwithstanding anything to the contrary in the foregoing clauses (a) and (b), if the Registration or registered offering is pursuant to a request by Holder(s) of Registrable Securities pursuant to Section 2.4, then the Company shall include in any such Registration or registered offering securities pursuant to Section 2.5.

 

2.7.3        Piggyback Registration Withdrawal. Any Holder of Registrable Securities shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Piggyback Registration. The Company (whether on its own good faith determination or as the result of a request for withdrawal by persons pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection with a Piggyback Registration at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal under this subsection 2.7.3.

 

2.8            Restrictions on Registration Rights. Notwithstanding any provision of this Agreement to the contrary, if Holders have requested an Underwritten Takedown and the Company and such Holders are unable to obtain the commitment of underwriters to firmly underwrite such offering, the Company shall have the right to defer the filing of the Registration Statement or conduct of an Underwritten Offering for a period of not more than sixty (60) days, if the Company determines, in the good faith judgment of the Board, that it would be materially detrimental to the Company to do otherwise than defer such filing or conduct.

 

 

2.9           Market Stand-Off Agreement. Each Holder given an opportunity to participate in an Underwritten Offering of the Company (other than a Block Trade) pursuant to the terms of this Agreement agrees that it shall not Transfer any Company Ordinary Shares or other equity securities of the Company (other than those included in such offering pursuant to this Agreement), without the prior written consent of the Company, during the ninety (90)-day period beginning on the date of pricing of such offering, except in the event the managing Underwriter(s) otherwise agree by written consent. Each Holder agrees to execute a customary lock-up agreement in favor of the relevant Underwriter(s) to such effect (in each case on substantially the same terms and conditions as all such Holders).

 

2.10         Block Trade; Other Coordinated Offerings.

 

2.10.1      Notwithstanding the forgoing, at any time and from time to time when an effective Shelf is on file with the Commission, if a Demanding Holder wishes to engage in (a) an underwritten or other coordinated registered offering not involving a “roadshow,” an offer commonly known as a “block trade” (a “Block Trade”), (b) an “at the market” or similar registered offering through a broker, sales agent or distribution agent, whether as agent or principal (an “Other Coordinated Offering”), in each case with a total offering price reasonably expected to exceed, in the aggregate, either (x) US$10,000,000 or (y) all remaining Registrable Securities held by the Demanding Holder, then such Demanding Holder shall use commercially reasonable efforts to notify the Company of the Block Trade or Other Coordinated Offering at least five (5) Business Days prior to the day such offering is to commence and the Company shall as expeditiously as possible use commercially reasonable efforts to facilitate such Block Trade or Other Coordinated Offering; provided that the Demanding Holders representing a majority of the Registrable Securities wishing to engage in the Block Trade or Other Coordinated Offering shall use commercially reasonable efforts to work with the Company and any Underwriters prior to making such request in order to facilitate preparation of the registration statement, prospectus and other offering documentation related to the Block Trade or Other Coordinated Offering.

 

2.10.2      Prior to the filing of the applicable “red herring” prospectus or prospectus supplement used in connection with a Block Trade or Other Coordinated Offering, the majority-in-interest of the Demanding Holders initiating such Block Trade or Other Coordinated Offering shall have the right to withdraw upon written notification to the Company and the Underwriter or Underwriters (if any). Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Block Trade or Other Coordinated Offering prior to its withdrawal under this section.

 

2.10.3      The Demanding Holder in a Block Trade or Other Coordinated Offering shall have the right to select the Underwriters, sales agents or placement agents for such Block Trade or Other Coordinated Offering (which shall consist of one or more reputable nationally recognized investment banks), provided that the Company shall have the right to consent to the Underwriters and any sale agents or placement agents (if any) for such Block Trade or Other Coordinated Offering, which consent will not be unreasonably withheld, conditioned or delayed.

 

2.10.4      Any Registration effected pursuant to this Section 2.10 shall be deemed an Underwritten Takedown and within the cap on Underwritten Takedowns provided in subsection 2.4.3.

 

2.10.5      Notwithstanding anything to the contrary in this Agreement, Section 2.7 hereof shall not apply to a Block Trade or Other Coordinated Offering initiated by a Demanding Holder pursuant to this Agreement.

 

 

ARTICLE 3
COMPANY PROCEDURES

 

3.1            General Procedures. In connection with any Shelf and/or Underwritten Takedown, the Company shall use commercially reasonable efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as reasonably possible:

 

3.1.1         prepare and file with the Commission a Registration Statement with respect to such Registrable Securities and use commercially reasonable efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement are disposed of in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;

 

3.1.2        prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus as may be reasonably requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are disposed of in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or such securities have been withdrawn;

 

3.1.3        prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriter(s), if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriter(s) and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;

 

3.1.4         prior to any public offering of Registrable Securities, use commercially reasonable efforts to (a) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request and (b)  take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be reasonably necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;

 

3.1.5         cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;

 

 

3.1.6         provide a transfer agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;

 

3.1.7         advise each seller of such Registrable Securities, promptly, and in no event later than two (2) Business Day, after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;

 

3.1.8         notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the occurrence of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;

 

3.1.9         permit a representative of the Holders (such representative to be selected by a majority-in-interest of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representative, or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to Company, prior to the release or disclosure of any such information;

 

3.1.10      obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, Block Trade or Other Coordinated Offering that is registered pursuant to a Registration Statement, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter(s) or other similar type of sales agent(s) or placement agent(s) may reasonably request and reasonably satisfactory to the participating Holders ;

 

3.1.11      in the event of an Underwritten Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion and a negative assurance letter, each dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating Holders, the placement agent or sales agent, if any, and the Underwriter(s), if any, as the case may be, covering such legal matters with respect to the Registration in respect of which such opinion or negative assurance letter is being given as the participating Holders, placement agent, sales agent, or Underwriter, as the case may be, may reasonably request and as are customarily included in such opinions and negative assurance letters and reasonably satisfactory to a majority-in-interest of the participating Holders;

 

3.1.12      in the event of any Underwritten Offering or Other Coordinated Offering that is registered pursuant to a Registration Statement, enter into and perform its obligations under an underwriting agreement, sales agreement or placement agreement, in usual and customary form, with the managing Underwriter(s), sales agent(s) or placement agent(s) of such offering;

 

3.1.13      make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule then in effect);

 

3.1.14      with respect to an Underwritten Offering pursuant to Section 2.4, use commercially reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter(s) in such Underwritten Offering; and

 

 

3.1.15      otherwise cooperate reasonably with, and take such customary actions as may reasonably be requested by the participating Holders, consistent with the terms of this Agreement, in connection with such Registration.

 

3.2          Registration Expenses. The Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Holders that the Holders shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ commissions and discounts, brokerage fees and Underwriter marketing costs and, other than as set forth in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing the Holders.

 

3.3          Requirements for Participation in Underwritten Offerings. Each Holder shall provide such information as may reasonably be requested by the Company, or the managing Underwriter(s) or placement agent or sales agent, if any, in connection with the preparation of any Registration Statement or Prospectus, including amendments and supplements thereto, in order to effect the Registration of any Registrable Securities under the Securities Act pursuant to ARTICLE 2 and in connection with the Company’s obligation to comply with federal and applicable state securities laws. No person may participate in any Underwritten Offering for equity securities of the Company pursuant to a Registration initiated by the Company hereunder unless such person:

 

3.3.1        agrees to sell such person’s securities on the basis provided in any customary underwriting arrangements approved by the Company (after having considered and given good faith consideration to the comments from U.S. counsel(s) for the Holders that are selling in the Underwritten offering); and

 

3.3.2        completes and executes all customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting agreements and other customary documents as may be reasonably required under the terms of such underwriting arrangements.

 

The exclusion of a Holder’s Registrable Securities as a result of this Section 3.3 shall not affect the Registration of the other Registrable Securities to be included in such Registration.

 

3.4           Suspension of Sales; Adverse Disclosure. Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement (including pursuant to subsection 3.1.8), each of the Holders shall forthwith discontinue disposition of Registrable Securities until it has received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants to prepare and file such supplement or amendment as soon as practicable after the time of such notice), or until it is advised in writing by the Company that the use of the Prospectus may be resumed. In addition, if the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would (a) require the inclusion in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control, (b) in the good faith view of the Company, require the Company to make an Adverse Disclosure, or (c) in the good faith judgment of the Company, be materially detrimental to the Company as a result that it is essential to defer such filing, initial effectiveness or continued use at such time, the Company may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the period of time determined in good faith by the Company to be necessary for such purpose; provided, however, that the Company shall not have the right to exercise the rights set forth this Section 3.4 for more than 90 consecutive days or more than 120 days, in any such case, in any 12-month period. In the event the Company exercises its rights under the preceding sentence, the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities.

 

 

3.5           Reporting Obligations. As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting company under the Exchange Act, covenants to use commercially reasonable efforts to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holders with true and complete copies of all such filings; provided that any documents publicly filed or furnished with the Commission pursuant to the Electronic Data Gathering, Analysis and Retrieval system shall be deemed to have been furnished or delivered to the Holders pursuant to this Section 3.5. The Company further covenants that it shall use commercially reasonable efforts to take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell Company Ordinary Shares held by such Holder without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act (or any successor rule then in effect). Upon the request of any Holder, the Company shall deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such requirements.

 

ARTICLE 4
INDEMNIFICATION AND CONTRIBUTION

 

4.1           Indemnification by the Company. The Company agrees to indemnify and hold harmless, to the extent permitted by law, each Holder of Registrable Securities, its officers, directors, agents and each person who controls such Holder (within the meaning of the Securities Act) (each, a “Holder Indemnified Party”) against all losses, judgements, claims, damages, liabilities and out-of-pocket expenses (including reasonable attorneys’ fees) resulting from, arising out of or that are based on (a) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by the Company of the Securities Act or any rule or regulation promulgated thereunder applicable to the Company and relating to action or inaction required of the Company in connection with any such registration, except insofar as the same are caused by or contained in any information or affidavit furnished in writing to the Company by such Holder expressly for use therein, or (b) if such losses, judgments, claims, damages, liabilities or out-of-pocket expenses are based on any such Holder’s violation of the federal securities laws or failure to sell the Registrable Securities in accordance with the intended plan of distribution contained in the Prospectus. The Company shall promptly reimburse a Holder Indemnified Party for any reasonable expenses incurred by such Holder Indemnified Party in connection with investigating and defending any proceeding or action to which this Section 4.1 applies (including the reasonable fees and disbursements of legal counsel) except insofar as such proceeding or action arise out of or are based on any information or affidavit furnished in writing to the Company by such Holder, or if such proceeding or action are based on any such Holder’s violation of the federal securities laws or failure to sell the Registrable Securities in accordance with the intended plan of distribution contained in the Prospectus.

 

4.2           Information Provided by and Indemnification by Holders. In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus and, to the extent permitted by law, shall indemnify and hold harmless the Company, its directors, officers and agents and each person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and out-of-pocket expenses (including reasonable attorneys’ fees) resulting from, arising out of or that are based on any untrue or alleged untrue statement of a material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue or alleged untrue statement or omission or alleged omission are caused by or contained in any information or affidavit so furnished in writing by such Holder expressly for use therein, or if such losses, judgments, claims, damages, liabilities or out-of-pocket expenses are based on any such Holder’s violation of the federal securities laws or failure to sell the Registrable Securities in accordance with the intended plan of distribution contained in the Prospectus; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriter(s), their officers, directors and each person who controls such Underwriter(s) (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of the Company.

 

 

4.3           Indemnification Process.

 

4.3.1        Any person entitled to indemnification pursuant to Sections 4.1 or 4.2 (each, an “Indemnified Party”) shall:

 

(a)            if a claim is to be made against any person (the “Indemnifying Party”) for indemnification hereunder, give prompt written notice to the Indemnifying Party of the losses, claims, damages, liabilities or out-of-pocket expenses (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not prejudiced the Indemnifying Party); and

 

(b)           unless in the Indemnified Party’s reasonable judgment a conflict of interest between such Indemnified Party and Indemnifying Party may exist with respect to such claim, permit such Indemnifying Party to assume control of the defense of such claim with counsel reasonably satisfactory to the Indemnified Party. If such defense is assumed, the Indemnifying Party shall not, without its consent (such consent shall not be unreasonably withheld), be subject to any liability for any settlement made by the Indemnified Party.

 

4.3.2        If such control of defense is assumed, the Indemnifying Party shall not be subject to any liability to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof.

 

4.3.3        An Indemnifying Party who is not entitled to, or elects not to, assume the control of defense of a claim shall not be obligated to pay the fees and expenses of more than one (1) counsel for all parties indemnified by such Indemnifying Party with respect to such claim, unless in the reasonable judgment of any Indemnified Party a conflict of interest may exist between such Indemnified Party and any other of such Indemnified Parties with respect to such claim.

 

4.3.4        No Indemnifying party shall, without the prior written consent of the Indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the Indemnifying Party pursuant to the terms of such settlement) or which settlement includes a statement or admission of fault and culpability on the part of such Indemnified Party or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation.

 

4.3.5        The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Party or any officer, director or controlling person of such Indemnified Party and shall survive the transfer of securities.

 

 

4.4            Contribution. If the indemnification provided under Sections 4.1, 4.2, and 4.3 from the Indemnifying Party is judicially determined to be unavailable or insufficient to hold harmless an Indemnified Party in respect of any losses, claims, damages, liabilities and out-of-pocket expenses referred to herein, then the Indemnifying Party, in lieu of indemnifying the Indemnified Party, shall contribute to the amount paid or payable by the Indemnified Party as a result of such losses, claims, damages, liabilities and out-of-pocket expenses in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and the Indemnified Party, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party and the Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by (or omitted to be made by, in the case of an omission), or relates to any information or affidavit supplied by (or not supplied by, in the case of an omission), such Indemnifying Party and the Indemnified Party, and the Indemnifying Party’s and the Indemnified Party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder under this subsection 4.4 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in subsections 4.1, 4.2 and 4.3 above, any legal or other fees, charges or out-of-pocket expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection 4.4 were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this subsection 4.4. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this subsection 4.4 from any person who was not guilty of such fraudulent misrepresentation.

 

ARTICLE 5
MISCELLANEOUS

 

5.1            Notices. All general notices, demands or other communications required or permitted to be given or made hereunder (“Notices”) shall be in writing and delivered personally or sent by courier or sent by electronic mail to the intended recipient thereof. Any such Notice shall be deemed to have been duly served (a) if given personally or sent by local courier, upon delivery during normal business hours at the location of delivery or, if later, then on the next Business Day after the day of delivery; (b) if sent by electronic mail during normal business hours at the location of delivery, immediately, or, if later, then on the next Business Day after the day of delivery; or (c) the third Business Day following the day sent by reputable international overnight courier (with written confirmation of receipt). Any notice or communication under this Agreement must be addressed:

 

If to the Company:

 

Lotus Technology Inc.
800 Century Avenue

 

Lujiazui CBD

Pudong District

Shanghai 200120

China

Attention: Chief Financial Officer
E-mail: Alexious.Lee@lotuscars.com.cn

 

 

With a copy (which shall not constitute notice) to:

 

Skadden, Arps, Slate, Meagher & Flom LLP
30/F, China World Office 2
No. 1, Jian Guo Men Wai Avenue
Beijing 100004, China
Attention: Peter X. Huang
Email: peter.huang@skadden.com

 

and

 

Skadden, Arps, Slate, Meagher & Flom LLP
c/o 42/F, Edinburgh Tower, The Landmark
15 Queen’s Road Central, Hong Kong
Attention: Shu Du
Email: shu.du@skadden.com

 

If to SPAC or the Sponsor:

 

L Catterton Asia Acquisition Corp
8 Marina View, Asia Square Tower 1

#41-03, Singapore 018960
Attention: James Steinthal
Email: Jim.Steinthal@lcatterton.com

 

With a copy (which shall not constitute notice) to:

 

Kirkland & Ellis

26th Floor, Gloucester Tower, The Landmark

15 Queen’s Road Central, Hong Kong

Attn: Jesse Sheley

Joseph Raymond Casey

E-mail: jesse.sheley@kirkland.com

joseph.casey@kirkland.com

 

29th Floor, China World Office 2

No.1 Jian Guo Men Wai Avenue

Beijing 100004, P.R. China

Attn: Steve Lin

Email: steve.lin@kirkland.com

 

If to any Holder, at such Holder’s address or contact information as set forth under such Holder’s signature to this Agreement or to such Holder’s address as found in Company’s books and records.

 

Any party may change its address for notice at any time and from time to time by written notice to the other parties hereto, and such change of address shall become effective thirty (30) days after delivery of such notice as provided in this Section 5.1. Any Holder not desiring to receive Notices at any time and from time to time may so notify the other parties, who shall thereafter not make, give or deliver any Notice to such Holder until duly notified otherwise (or until the expiry of any period specified in such Holder’s notice).

 

 

5.2            Assignment; No Third Party Beneficiaries.

 

5.2.1        This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part.

 

5.2.2         Prior to the expiration of the lock-up period applicable to such Holder pursuant to any Lock-Up Agreement, no Holder may assign or delegate such Holder’s rights, duties or obligations under this Agreement, in whole or in part, except in connection with a transfer of Registrable Securities by such Holder to a Permitted Transferee but only if such Permitted Transferee agrees to become bound by the terms and conditions of this Agreement. After the expiration of the lock-up period applicable to such Holder pursuant to any Lock-Up Agreement, the Holder may assign or delegate such Holder’s rights, duties or obligations under this Agreement, in whole or in part, to any person to whom it transfers Registrable Securities; provided that such Registrable Securities remain Registrable Securities following such transfer, and such person agrees to be bound by the terms and conditions of this Agreement.

 

5.2.3        This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and the permitted assigns of the Holders, which shall include Permitted Transferees.

 

5.2.4        This Agreement shall not confer any rights or benefits on any persons that are not parties hereto, other than as expressly set forth in this Agreement and Section 5.2 hereof.

 

5.2.5        No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless and until the Company shall have received (i) written notice of such assignment as provided in Section 5.1 hereof and (ii) the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and conditions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement). Any transfer or assignment made other than as provided in this Section 5.2 shall be null and void.

 

5.3            Counterparts. This Agreement may be executed in multiple counterparts (including by electronic means), each of which shall be deemed an original, and all of which together shall constitute the same instrument, but only one of which need be produced.

 

5.4            Governing Law; Venue. Each party expressly agrees that this Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the applicable of laws of another jurisdiction. Any claim or cause of action based upon, arising out of or related to this Agreement or the transactions contemplated hereby may be brought in federal and state courts in New York county in the State of New York, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court, waives any obligation it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, agrees that all claims in respect of any cause of action may be heard and determined only in any such court, and agrees not to bring any cause of action arising out of or relating to this Agreement or the transactions contemplated hereby in any other court. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by law or to commence legal proceedings or otherwise proceed against any other party in any other jurisdiction, in each case, to enforce judgments obtained in any action brought pursuant to this Section 5.4. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

 

5.5           Severability. The invalidity or unenforceability of any specific provision of this Agreement shall not invalidate or render unenforceable any of its other provisions. The parties hereto further agree that if any provision contained in this Agreement is, to any extent, held invalid or unenforceable in any respect under the laws governing this Agreement, they shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by law and, to the extent necessary, shall amend or otherwise modify this Agreement to replace any provision contained in this Agreement that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the parties hereto.

 

5.6           Entire Agreement. This Agreement (together with the Merger Agreement, and any applicable Lock-Up Agreement to the extent incorporated herein, and including all agreements entered into pursuant hereto or thereto or referenced herein or therein and all certificates and instruments delivered pursuant hereto and thereto) set forth the entire understanding of the parties with respect to the subject matter hereof and supersede all other prior and contemporaneous agreements and understandings between the parties, whether oral or written, with respect to such subject matter.

 

5.7           Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party. Unless the context otherwise requires: (a) “or” is disjunctive but not exclusive; (b) words in the singular include the plural, and in the plural include the singular; (c) the words “hereof,” “herein,” “hereunder” and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement, and section and subsection references are to this Agreement unless otherwise specified; (d) the term “including” is not limiting and means “including without limitation”; (e) whenever the context requires, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms; (f) references to agreements and other documents shall be deemed to include all subsequent amendments and other modifications or supplements thereto; and (g) references to statutes shall include all regulations promulgated thereunder and references to statutes or regulations shall be construed as including all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation. Where any Company Ordinary Shares are held by the Depository Trust Company or any person who operates a clearing system or issues depositary receipts (or their nominees) and/or a nominee, custodian or trustee for any person, that person shall (unless the context requires otherwise) be treated for the purposes of this Agreement as the holder of those shares and references to shares being “held by” a person, to a person “holding” shares or to a person who “holds” any such shares, or equivalent formulations, shall be construed accordingly. The headings, subheadings and captions contained in this Agreement are included for convenience of reference only, and in no way define, limit or describe the scope of this Agreement or the intent of any provision hereof.

 

5.8           Amendments and Modifications. Upon the prior written consent of the Company and the Holders of at least a majority of the Registrable Securities at the time in question, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however, that notwithstanding the foregoing, any amendment or modification to this Agreement that would have a disproportionately adverse effect on any party’s rights hereunder in any material respect shall require the prior written consent of such party.

 

5.9           Termination of Prior SPAC Agreement and Termination and Effectiveness of this Agreement.

 

5.9.1        Each of SPAC, the Sponsor and the “Holders” (as defined in the Prior SPAC Agreement) hereby agrees that the Prior SPAC Agreement shall terminate as of the First Merger Closing, and thereafter shall be of no further force and effect.

 

 

5.9.2        The registration rights granted under this Agreement shall supersede any registration, qualification or similar rights of the Holders with respect to the securities of SPAC or the Company granted under any other agreement, and any of such preexisting registration, qualification or similar rights and such agreements shall be terminated and of no further force and effect. With effect from the First Merger Closing, each party to this Agreement hereby irrevocably waives and agrees not to exercise or enforce any rights it may have (a) in respect of the registration of Registrable Securities pursuant to any other agreement.

 

5.9.3        This Agreement shall take effect as of and from the First Merger Closing; provided, that if the Merger Agreement is terminated prior to the First Merger Closing, this Agreement shall not become effective and shall be deemed void.

 

5.10         Term. This Agreement shall terminate upon the earlier of (a) the tenth (10th) anniversary of the date of this Agreement and (b) with respect to any Holder, on the date that such Holder no longer holds any Registrable Securities. The provisions of Section 3.5 shall survive any termination of this Agreement.

 

[Signature Pages Follow]

 

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.

 

	Company:
	Lotus Technology Inc.
	By:
		Name:
		Title:

 

[Signature Page to Registration Rights Agreement]

 

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.

 

	SPAC:
	L Catterton Asia Acquisition Corp.
	By:
		Name:
		Title:

 

[Signature Page to Registration Rights Agreement]

 

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.

 

	Sponsor:
	LCA Acquisition Sponsor, LP
	By:
		Name:
		Title:

 

[Signature Page to Registration Rights Agreement]

 

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.

 

	Holder:
	Sanford Litvack
	By:
		Name:	Sanford Litvack
	Address for Notices:

 

[Signature Page to Registration Rights Agreement]

 

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.

 

	Holder:
	Frank N. Newman
	By:
		Name:	Frank N. Newman
	Address for Notices:

 

[Signature Page to Registration Rights Agreement]

 

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.

 

	Holder:
	Anish Melwani
	By:
		Name:	Anish Melwani
	Address for Notices:

 

[Signature Page to Registration Rights Agreement]

 

 

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.

 

	Holder:
	[●]
	By:
		Name:
		Title:
	Address for Notices:

 

[Signature Page to Registration Rights Agreement]

 

 

 

Exhibit 10.1

 

INVESTMENT MANAGEMENT TRUST AGREEMENT

 

This Investment Management Trust Agreement (this “Agreement”) is made effective as of March 10, 2021 by and between L Catterton Asia Acquisition Corp, a Cayman Islands exempted company (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation (the “Trustee”).

 

WHEREAS, the Company’s registration statement on Form S-1, File No. 333-253334 (the “Registration Statement”) and prospectus (the “Prospectus”) for the initial public offering of the Company’s units (the “Units”), each of which consists of one of the Company’s Class A ordinary shares, par value $0.0001 per share (the “Ordinary Shares”), and one-third of one redeemable warrant, each whole warrant entitling the holder thereof to purchase one Ordinary Share (such initial public offering hereinafter referred to as the “Offering”), has been declared effective as of the date hereof by the U.S. Securities and Exchange Commission;

 

WHEREAS, the Company has entered into an Underwriting Agreement (the “Underwriting Agreement”) with Credit Suisse Securities (USA) LLC, as representative (the “Representative”) to the several underwriters (the “Underwriters”) named therein;

 

WHEREAS, as described in the Prospectus, $250,000,000 of the gross proceeds of the Offering and sale of the Private Placement Warrants (as defined in the Underwriting Agreement) (or $287,500,000 if the Underwriters’ option to purchase additional units is exercised in full) and the proceeds from any loans in connection with an Extension (as defined below), if any, will be delivered to the Trustee to be deposited and held in a segregated trust account located at all times in the United States (the “Trust Account”) for the benefit of the Company and the holders of the Ordinary Shares included in the Units issued in the Offering as hereinafter provided (the amount to be delivered to the Trustee (and any interest subsequently earned thereon) is referred to herein as the “Property,” the shareholders for whose benefit the Trustee shall hold the Property will be referred to as the “Public Shareholders,” and the Public Shareholders and the Company will be referred to together as the “Beneficiaries”);

 

WHEREAS, pursuant to the Underwriting Agreement, a portion of the Property equal to $8,750,000, or $10,062,500 if the Underwriters’ option to purchase additional units is exercised in full, is attributable to deferred underwriting discounts and commissions that will be payable by the Company to the Underwriters upon the consummation of the Business Combination (as defined below) (the “Deferred Discount”); and

 

WHEREAS, the Company and the Trustee desire to enter into this Agreement to set forth the terms and conditions pursuant to which the Trustee shall hold the Property.

 

NOW THEREFORE, IT IS AGREED:

 

1. Agreements and Covenants of Trustee. The Trustee hereby agrees and covenants to:

 

(a) Hold the Property in trust for the Beneficiaries in accordance with the terms of this Agreement in the Trust Account established by the Trustee in the United States at JPMorgan Chase Bank, N.A. (or at another U.S. chartered commercial bank with consolidated assets of $100 billion or more) in the United States, maintained by Trustee and at a brokerage institution selected by the Trustee that is reasonably satisfactory to the Company;

 

 

(b) Manage, supervise and administer the Trust Account subject to the terms and conditions set forth herein;

 

(c) In a timely manner, upon the written instruction of the Company, invest and reinvest the Property in United States government securities within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, as amended, having a maturity of 185 days or less, or in money market funds meeting the conditions of paragraphs (d)(1), (d)(2), (d)(3) and (d)(4) of Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended (or any successor rule), which invest only in direct U.S. government treasury obligations, as determined by the Company; the Trustee may not invest in any other securities or assets, it being understood that the Trust Account will earn no interest while account funds are uninvested awaiting the Company’s instructions hereunder and the Trustee may earn bank credits or other consideration;

 

(d) Collect and receive, when due, all principal, interest or other income arising from the Property, which shall become part of the “Property,” as such term is used herein;

 

(e) Promptly notify the Company and the Representative of all communications received by the Trustee with respect to any Property requiring action by the Company;

 

(f) Supply any necessary information or documents as may be requested by the Company (or its authorized agents) in connection with the Company’s preparation of the tax returns relating to assets held in the Trust Account;

 

(g) Participate in any plan or proceeding for protecting or enforcing any right or interest arising from the Property if, as and when instructed by the Company to do so;

 

(h) Render to the Company monthly written statements of the activities of, and amounts in, the Trust Account reflecting all receipts and disbursements of the Trust Account;

 

(i) Commence liquidation of the Trust Account only after and promptly after (x) receipt of, and only in accordance with, the terms of a letter from the Company (“Termination Letter”) in a form substantially similar to that attached hereto as either Exhibit A or Exhibit B, as applicable, signed on behalf of the Company by a Co-Chief Executive Officer, its President, its Chief Financial Officer or other authorized officer of the Company, and complete the liquidation of the Trust Account and distribute the Property in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to the Company to pay its income taxes (less up to $100,000 of interest to pay dissolution expenses), only as directed in the Termination Letter and the other documents referred to therein, or (y) upon the date which is the later of (1) 24 months after the closing of the Offering and (2) such later date as may be approved by the Company’s shareholders in accordance with the Company’s amended and restated memorandum and articles of association, if a Termination Letter has not been received by the Trustee prior to such date, in which case the Trust Account shall be liquidated in accordance with the procedures set forth in the Termination Letter attached as Exhibit B and the Property in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to the Company to pay its income taxes (less up to $100,000 of interest to pay dissolution expenses), shall be distributed to the Public Shareholders of record as of such date. It is acknowledged and agreed that there should be no reduction in the principal amount per share initially deposited in the Trust Account;

 

 

(j) Upon written request from the Company, which may be given from time to time in a form substantially similar to that attached hereto as Exhibit C (a “Tax Payment Withdrawal Instruction”), withdraw from the Trust Account and distribute to the Company the amount of interest earned on the Property requested by the Company to cover any tax obligation owed by the Company as a result of assets of the Company or interest or other income earned on the Property, which amount shall be delivered directly to the Company by electronic funds transfer or other method of prompt payment, and the Company shall forward such payment to the relevant taxing authority, so long as there is no reduction in the principal amount per share initially deposited in the Trust Account; provided, however, that to the extent there is not sufficient cash in the Trust Account to pay such tax obligation, the Trustee shall liquidate such assets held in the Trust Account as shall be designated by the Company in writing to make such distribution (it being acknowledged and agreed that any such amount in excess of interest income earned on the Property shall not be payable from the Trust Account). The written request of the Company referenced above shall constitute presumptive evidence that the Company is entitled to said funds, and the Trustee shall have no responsibility to look beyond said request;

 

(k) Upon written request from the Company, which may be given from time to time in a form substantially similar to that attached hereto as Exhibit D (a “Shareholder Redemption Withdrawal Instruction”), the Trustee shall distribute to the remitting brokers on behalf of Public Shareholders redeeming Ordinary Shares the amount required to pay redeemed Ordinary Shares from Public Shareholders pursuant to the Company’s amended and restated memorandum and articles of association; and

 

(l) Not make any withdrawals or distributions from the Trust Account other than pursuant to Section 1(i), (j) or (k) above.

 

2. Agreements and Covenants of the Company. The Company hereby agrees and covenants to:

 

(a) Give all instructions to the Trustee hereunder in writing, signed by the Company’s Co-Chief Executive Officer, its President, its Chief Financial Officer or other authorized officer of the Company. In addition, except with respect to its duties under Sections 1(i), (j) or (k) hereof, the Trustee shall be entitled to rely on, and shall be protected in relying on, any verbal or telephonic advice or instruction which it, in good faith and with reasonable care, believes to be given by any one of the persons authorized above to give written instructions, provided that the Company shall promptly confirm such instructions in writing;

 

 

(b) Subject to Section 4 hereof, hold the Trustee harmless and indemnify the Trustee from and against any and all expenses, including reasonable counsel fees and disbursements, or losses suffered by the Trustee in connection with any action taken by it hereunder and in connection with any action, suit or other proceeding brought against the Trustee involving any claim, or in connection with any claim or demand, which in any way arises out of or relates to this Agreement, the services of the Trustee hereunder, or the Property or any interest earned on the Property, except for expenses and losses resulting from the Trustee’s gross negligence, fraud or willful misconduct. Promptly after the receipt by the Trustee of notice of demand or claim or the commencement of any action, suit or proceeding, pursuant to which the Trustee intends to seek indemnification under this Section 2(b), it shall notify the Company in writing of such claim (hereinafter referred to as the “Indemnified Claim”). The Trustee shall have the right to conduct and manage the defense against such Indemnified Claim; provided that the Trustee shall obtain the consent of the Company with respect to the selection of counsel, which consent shall not be unreasonably withheld. The Trustee may not agree to settle any Indemnified Claim without the prior written consent of the Company, which such consent shall not be unreasonably withheld. The Company may participate in such action with its own counsel;

 

(c) Pay the Trustee the fees set forth on Schedule A hereto, including an initial acceptance fee, annual administration fee, and transaction processing fee which fees shall be subject to modification by the parties from time to time. It is expressly understood that the Property shall not be used to pay such fees unless and until it is distributed to the Company pursuant to Sections 1(i) through 1(k) hereof. The Company shall pay the Trustee the initial acceptance fee and the first annual administration fee at the consummation of the Offering. The Company shall not be responsible for any other fees or charges of the Trustee except as set forth in this Section 2(c) and as may be provided in Section 2(b) hereof;

 

(d) In connection with any vote of the Company’s shareholders regarding a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination involving the Company and one or more businesses (the “Business Combination”), provide to the Trustee an affidavit or certificate of the inspector of elections for the shareholder meeting verifying the vote of such shareholders regarding such Business Combination;

 

(e) Provide the Representative with a copy of any Termination Letter(s) and/or any other correspondence that is sent to the Trustee with respect to any proposed withdrawal from the Trust Account promptly after it issues the same;

 

(f) Unless otherwise agreed between the Company and the Representative, ensure that any Instruction Letter (as defined in Exhibit A) delivered in connection with a Termination Letter in the form of Exhibit A expressly provides that the Deferred Discount is paid directly to the account or accounts directed by the Representative on behalf of the Underwriters prior to any transfer of the funds held in the Trust Account to the Company or any other person;

 

(g) Instruct the Trustee to make only those distributions that are permitted under this Agreement, and refrain from instructing the Trustee to make any distributions that are not permitted under this Agreement;

 

 

(h) If the Company seeks to amend any provisions of its amended and restated memorandum and articles of association (A) to modify the substance or timing of the Company’s obligation to provide holders of the Ordinary Shares the right to have their shares redeemed in connection with the Company’s initial Business Combination or to redeem 100% of the Ordinary Shares if the Company does not complete its initial Business Combination within the time period set forth therein or (B) with respect to any other provision relating to the rights of holders of the Ordinary Shares (in each case, an “Amendment”), the Company will provide the Trustee with a letter (an “Amendment Notification Letter”) in the form of Exhibit D providing instructions for the distribution of funds to Public Shareholders who exercise their redemption option in connection with such Amendment; and

 

(i) Within five (5) business days after the Representative, on behalf of the Underwriters, exercise their option to purchase additional units (or any unexercised portion thereof) or such option to purchase additional units expires, provide the Trustee with a notice in writing of the total amount of the Deferred Discount.

 

3. Limitations of Liability. The Trustee shall have no responsibility or liability to:

 

(a) Imply obligations, perform duties, inquire or otherwise be subject to the provisions of any agreement or document other than this Agreement and that which is expressly set forth herein;

 

(b) Take any action with respect to the Property, other than as directed in Section 1 hereof, and the Trustee shall have no liability to any third party except for liability arising out of the Trustee’s gross negligence, fraud or willful misconduct;

 

(c) Institute any proceeding for the collection of any principal and income arising from, or institute, appear in or defend any proceeding of any kind with respect to, any of the Property unless and until it shall have received written instructions from the Company given as provided herein to do so and the Company shall have advanced or guaranteed to it funds sufficient to pay any expenses incident thereto;

 

(d) Change the investment of any Property, other than in compliance with Section 1 hereof;

 

(e) Refund any depreciation in principal of any Property;

 

(f) Assume that the authority of any person designated by the Company to give instructions hereunder shall not be continuing unless provided otherwise in such designation, or unless the Company shall have delivered a written revocation of such authority to the Trustee;

 

(g) The other parties hereto or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the Trustee’s best judgment, except for the Trustee’s gross negligence, fraud or willful misconduct. The Trustee may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Trustee, which counsel may be the Company’s counsel), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which the Trustee believes, in good faith and with reasonable care, to be genuine and to be signed or presented by the proper person or persons. The Trustee shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement or any of the terms hereof, unless evidenced by a written instrument delivered to the Trustee, signed by the proper party or parties and, if the duties or rights of the Trustee are affected, unless it shall give its prior written consent thereto;

 

 

(h) Verify the accuracy of the information contained in the Registration Statement;

 

(i) Provide any assurance that any Business Combination entered into by the Company or any other action taken by the Company is as contemplated by the Registration Statement;

 

(j) File information returns with respect to the Trust Account with any local, state or federal taxing authority or provide periodic written statements to the Company documenting the taxes payable by the Company, if any, relating to any interest income earned on the Property;

 

(k) Prepare, execute and file tax reports, income or other tax returns and pay any taxes with respect to any income generated by, and activities relating to, the Trust Account, regardless of whether such tax is payable by the Trust Account or the Company, including, but not limited to, income tax obligations, except pursuant to Section 1(j) hereof; or

 

(l) Verify calculations, qualify or otherwise approve the Company’s written requests for distributions pursuant to Sections 1(i), 1(j) or 1(k) hereof.

 

4. Trust Account Waiver. The Trustee has no right of set-off or any right, title, interest or claim of any kind (“Claim”) to, or to any monies in, the Trust Account, and hereby irrevocably waives any Claim to, or to any monies in, the Trust Account that it may have now or in the future. In the event the Trustee has any Claim against the Company under this Agreement, including, without limitation, under Section 2(b) or Section 2(c) hereof, the Trustee shall pursue such Claim solely against the Company and its assets outside the Trust Account and not against the Property or any monies in the Trust Account.

 

5. Termination. This Agreement shall terminate as follows:

 

(a) If the Trustee gives written notice to the Company that it desires to resign under this Agreement, the Company shall use its reasonable efforts to locate a successor trustee, pending which the Trustee shall continue to act in accordance with this Agreement. At such time that the Company notifies the Trustee that a successor trustee has been appointed by the Company and has agreed to become subject to the terms of this Agreement, the Trustee shall transfer the management of the Trust Account to the successor trustee, including but not limited to the transfer of copies of the reports and statements relating to the Trust Account, whereupon this Agreement shall terminate; provided, however, that in the event that the Company does not locate a successor trustee within ninety (90) days of receipt of the resignation notice from the Trustee, the Trustee may submit an application to have the Property deposited with any court in the State of New York or with the United States District Court for the Southern District of New York and upon such deposit, the Trustee shall be immune from any liability whatsoever; or

 

 

(b) At such time that the Trustee has completed the liquidation of the Trust Account and its obligations in accordance with the provisions of Section 1(i) hereof and distributed the Property in accordance with the provisions of the Termination Letter, this Agreement shall terminate except with respect to Section 2(b).

 

6. Miscellaneous.

 

(a) The Company and the Trustee each acknowledge that the Trustee will follow the security procedures set forth below with respect to funds transferred from the Trust Account. The Company and the Trustee will each restrict access to confidential information relating to such security procedures to authorized persons. Each party must notify the other party immediately if it has reason to believe unauthorized persons may have obtained access to such confidential information, or of any change in its authorized personnel. In executing funds transfers, the Trustee shall rely upon all information supplied to it by the Company, including, account names, account numbers, and all other identifying information relating to a Beneficiary, Beneficiary’s bank or intermediary bank. Except for any liability arising out of the Trustee’s gross negligence, fraud or willful misconduct, the Trustee shall not be liable for any loss, liability or expense resulting from any error in the information or transmission of the funds.

 

(b) This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. This Agreement may be executed in several original or facsimile counterparts, each one of which shall constitute an original, and together shall constitute but one instrument.

 

(c) This Agreement contains the entire agreement and understanding of the parties hereto with respect to the subject matter hereof. Except for Section 1(i), 1(j) and 1(k) hereof (which sections may not be modified, amended or deleted without the affirmative vote of sixty-five percent (65%) of the then outstanding Ordinary Shares and Class B ordinary shares, par value $0.0001 per share, of the Company, voting together as a single class; provided that no such amendment will affect any Public Shareholder who has properly elected to redeem his, her or its Ordinary Shares in connection with a shareholder vote to amend this Agreement to modify the substance or timing of the Company’s obligation to provide for the redemption of the Ordinary Shares in connection with an initial Business Combination or an Amendment or to redeem 100% of its Ordinary Shares if the Company does not complete its initial Business Combination within the time frame specified in the Company’s amended and restated memorandum and articles of association), this Agreement or any provision hereof may only be changed, amended or modified (other than to correct a typographical error) by a writing signed by each of the parties hereto.

 

(d) The parties hereto consent to the jurisdiction and venue of any state or federal court located in the City of New York, State of New York, for purposes of resolving any disputes hereunder. AS TO ANY CLAIM, CROSS-CLAIM OR COUNTERCLAIM IN

 

 

ANY WAY RELATING TO THIS AGREEMENT, EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY.

 

(e) Any notice, consent or request to be given in connection with any of the terms or provisions of this Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery or by electronic mail:

 

if to the Trustee, to:

 

Continental Stock Transfer & Trust Company

1 State Street, 30th Floor

New York, New York 10004

Attn: Francis Wolf and Celeste Gonzalez

Email: fwolf@continentalstock.com/cgonzalez@continentalstock.com

 

if to the Company, to:

 

L Catterton Asia Acquisition Corp

8 Marina View, Asia Square Tower 1

#41-03, Singapore 018960

Attn: James Steinthal

Email: Jim.Steinthal@lcatterton.com

 

in each case, with copies to:

 

Kirkland& Ellis International LLP

26th Floor, Gloucester Tower, The Landmark

15 Queen’s Road, Central, Hong Kong

Attn: Benjamin W. James

E-mail: ben.james@kirkland.com

 

and

 

Credit Suisse Securities (USA) LLC

Eleven Madison Avenue

New York, New York 10010-3629

Attn: IBCM-Legal

Facsimile: (212) 325-4296

 

and

 

Shearman & Sterling LLP

599 Lexington Avenue

New York, New York 10022

Attn: Merritt Johnson

Facsimile: (212) 848 4000

 

 

(f) Each of the Company and the Trustee hereby represents that it has the full right and power and has been duly authorized to enter into this Agreement and to perform its respective obligations as contemplated hereunder. The Trustee acknowledges and agrees that it shall not make any claims or proceed against the Trust Account, including by way of set-off, and shall not be entitled to any funds in the Trust Account under any circumstance.

 

(g) This Agreement is the joint product of the Trustee and the Company and each provision hereof has been subject to the mutual consultation, negotiation and agreement of such parties and shall not be construed for or against any party hereto.

 

(h) This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. Delivery of a signed counterpart of this Agreement by facsimile or electronic transmission shall constitute valid and sufficient delivery thereof.

 

(i) Each of the Company and the Trustee hereby acknowledges and agrees that the Representative on behalf of the Underwriters are third-party beneficiaries of this Agreement.

 

(j) Except as specified herein, no party to this Agreement may assign its rights or delegate its obligations hereunder to any other person or entity.

 

[Signature Page Follows]

 

 

IN WITNESS WHEREOF, the parties have duly executed this Investment Management Trust Agreement as of the date first written above.

 

	CONTINENTAL STOCK
	TRANSFER &
	TRUST COMPANY, as Trustee
	By:	/s/ Francis Wolf
	Name:	Francis Wolf
	Title:	Vice President

 

[Signature Page to Investment Management Trust Agreement]

 

 

	L CATTERTON ASIA
	ACQUISITION CORP
	By:	/s/ Chinta Bhagat
	Name:	Chinta Bhagat
	Title:	Co-Chief Executive Officer and Director

 

[Signature page to Investment Management Trust Agreement]

 

 

SCHEDULE A

 

Fee Item		Time and method of payment		Amount
Initial acceptance fee		Initial closing of IPO by wire transfer		$	3,500
Annual fee		First year, initial closing of IPO by wire transfer; thereafter on the anniversary of the effective date of the IPO by wire transfer or check		$	10,000
Transaction processing fee for disbursements to Company under Sections 1(i), (j), and (k)		Billed by Trustee to Company under Section 1		$	250
Paying Agent services as required pursuant to Section 1(i) and 1(k)		Billed to Company upon delivery of service pursuant to Section 1(i) and 1(k)		Prevailing rates

 

 

EXHIBIT A

[Letterhead of Company]

[Insert date]

 

Continental Stock Transfer & Trust Company

1 State Street, 30th Floor

New York, New York 10004

Attn: Francis Wolf and Celeste Gonzalez

 

Re: Trust Account - Termination Letter

 

Dear Mr. Wolf and Ms. Gonzalez:

 

Pursuant to Section 1(i) of the Investment Management Trust Agreement between L Catterton Asia Acquisition Corp (the “Company”) and Continental Stock Transfer & Trust Company (“Trustee”), dated as of March 10, 2021 (the “Trust Agreement”), this is to advise you that the Company has entered into an agreement with (the “Target Business”) to consummate a business combination with Target Business (the “Business Combination”) on or about [insert date]. The Company shall notify you at least seventy-two (72) hours in advance of the actual date (or such shorter time period as you may agree) of the consummation of the Business Combination (the “Consummation Date”). Capitalized terms used but not defined herein shall have the meanings set forth in the Trust Agreement.

 

In accordance with the terms of the Trust Agreement, we hereby authorize you to commence to liquidate all of the assets of the Trust Account, and to transfer the proceeds into the trust operating account at JPMorgan Chase Bank, N.A. to the effect that, on the Consummation Date, all of the funds held in the Trust Account will be immediately available for transfer to the account or accounts that the Representative (with respect to the Deferred Discount) and the Company shall direct on the Consummation Date. It is acknowledged and agreed that while the funds are on deposit in said trust operating account at JPMorgan Chase Bank, N.A. awaiting distribution, neither the Company nor the Representative will earn any interest or dividends.

 

On the Consummation Date (i) counsel for the Company shall deliver to you written notification that the Business Combination has been consummated, or will be consummated substantially concurrently with your transfer of funds to the accounts as directed by the Company (the “Notification”), and (ii) the Company shall deliver to you (a) a certificate of a Co-Chief Executive Officer, the President, the Chief Financial Officer or other authorized officer of the Company, which verifies that the Business Combination has been approved by a vote of the Company’s shareholders, if a vote is held and (b) joint written instruction signed by the Company and the Representative with respect to the transfer of the funds held in the Trust Account, including payment of the Deferred Discount from the Trust Account (the “Instruction Letter”). You are hereby directed and authorized to transfer the funds held in the Trust Account immediately upon your receipt of the Notification and the Instruction Letter, in accordance with the terms of the Instruction Letter. In the event that certain deposits held in the Trust Account may not be liquidated by the Consummation Date without penalty, you will notify the Company in writing of the same and the Company shall direct you as to whether such funds should remain in the Trust Account and be distributed after the Consummation Date to the Company. Upon the distribution of all the funds, net of any payments necessary for reasonable unreimbursed expenses related to liquidating the Trust Account, your obligations under the Trust Agreement shall be terminated.

 

 

In the event that the Business Combination is not consummated on the Consummation Date described in the notice thereof and we have not notified you on or before the original Consummation Date of a new Consummation Date, then upon receipt by the Trustee of written instructions from the Company, the funds held in the Trust Account shall be reinvested as provided in Section 1(c) of the Trust Agreement on the business day immediately following the Consummation Date as set forth in such notice as soon thereafter as possible.

 

	Very truly yours,
	L Catterton Asia Acquisition Corp
	By:
	Name:	Chinta Bhagat
	Title:	Co-Chief Executive Officer and Director

 

cc: Credit Suisse Securities (USA) LLC

 

 

EXHIBIT B

[Letterhead of Company]

[Insert date]

 

Continental Stock Transfer & Trust Company

1 State Street, 30th Floor

New York, New York 10004

Attn: Francis Wolf and Celeste Gonzalez

 

Re: Trust Account - Termination Letter

 

Dear Mr. Wolf and Ms. Gonzalez:

 

Pursuant to Section 1(i) of the Investment Management Trust Agreement between L Catterton Asia Acquisition Corp (the “Company”) and Continental Stock Transfer & Trust Company (the “Trustee”), dated as of March 10, 2021 (the “Trust Agreement”), this is to advise you that the Company has been unable to effect a business combination with a Target Business (the “Business Combination”) within the time frame specified in the Company’s Amended and Restated Memorandum and Articles of Association, as described in the Company’s Prospectus relating to the Offering. Capitalized terms used but not defined herein shall have the meanings set forth in the Trust Agreement.

 

In accordance with the terms of the Trust Agreement, we hereby authorize you to liquidate all of the assets in the Trust Account and to transfer the total proceeds into the trust operating account at JPMorgan Chase Bank, N.A. to await distribution to the Public Shareholders. The Company has selected as the effective date for the purpose of determining when the Public Shareholders will be entitled to receive their share of the liquidation proceeds. It is acknowledged that no interest will be earned by the Company on the liquidation proceeds while on deposit in the trust operating account. You agree to be the Paying Agent of record and, in your separate capacity as Paying Agent, agree to distribute said funds directly to the Company’s Public Shareholders in accordance with the terms of the Trust Agreement and the Amended and Restated Memorandum and Articles of Association of the Company. Upon the distribution of all the funds, net of any payments necessary for reasonable unreimbursed expenses related to liquidating the Trust Account, your obligations under the Trust Agreement shall be terminated, except to the extent otherwise provided in Section 1(j) of the Trust Agreement.

 

	Very truly yours,
	L Catterton Asia Acquisition Corp
	By:
	Name:	Chinta Bhagat
	Title:	Co-Chief Executive Officer and Director

 

cc: Credit Suisse Securities (USA) LLC

 

 

EXHIBIT C

[Letterhead of Company]

[Insert date]

 

Continental Stock Transfer & Trust Company

1 State Street, 30th Floor

New York, New York 10004

Attn: Francis Wolf and Ms. Gonzalez

 

Re: Trust Account - Tax Payment Withdrawal Instruction

 

Dear Mr. Wolf and Ms. Gonzalez:

 

Pursuant to Section 1(j) of the Investment Management Trust Agreement between L Catterton Asia Acquisition Corp(the “Company”) and Continental Stock Transfer & Trust Company (the “Trustee”), dated as of March 10, 2021 (the “Trust Agreement”), the Company hereby requests that you deliver to the Company $[·] of the interest income earned on the Property as of the date hereof. Capitalized terms used but not defined herein shall have the meanings set forth in the Trust Agreement.

 

The Company needs such funds to pay for the tax obligations as set forth on the attached tax return or tax statement. In accordance with the terms of the Trust Agreement, you are hereby directed and authorized to transfer (via wire transfer) such funds promptly upon your receipt of this letter to the Company’s operating account at:

 

[WIRE INSTRUCTION INFORMATION]

 

	Very truly yours,
	L Catterton Asia Acquisition Corp
	By:
	Name:	Chinta Bhagat
	Title:	Co-Chief Executive Officer and Director

 

cc: Credit Suisse Securities (USA) LLC

 

 

EXHIBIT D

[Letterhead of Company]

[Insert date]

 

Continental Stock Transfer & Trust Company

1 State Street, 30th Floor

New York, New York 10004

Attn: Francis Wolf and Celeste Gonzalez

 

Re: Trust Account - Shareholder Redemption Withdrawal Instruction

 

Dear Mr.Wolf and Ms. Gonzalez:

 

Pursuant to Section 1(k) of the Investment Management Trust Agreement between L Catterton Asia Acquisition Corp(the “Company”) and Continental Stock Transfer & Trust Company (the “Trustee”), dated as of March 10, 2021 (the “Trust Agreement”), the Company hereby requests that you deliver to the Company’s shareholders $[·] of the principal and interest income earned on the Property as of the date hereof. Capitalized terms used but not defined herein shall have the meanings set forth in the Trust Agreement.

 

Pursuant to Section 1(k) of the Trust Agreement, this is to advise you that the Company has sought an Amendment. Accordingly, in accordance with the terms of the Trust Agreement, we hereby authorize you to liquidate a sufficient portion of the Trust Account and to transfer $[·] of the proceeds of the Trust Account to the trust operating account at JPMorgan Chase Bank, N.A. for distribution to the shareholders that have requested redemption of their shares in connection with such Amendment.

 

	Very truly yours,
	L Catterton Asia Acquisition Corp
	By:
	Name:	Chinta Bhagat
	Title:	Co-Chief Executive Officer and Director

 

cc: Credit Suisse Securities (USA) LLC

 

 

 

Exhibit 10.2

 

L CATTERTON ASIA ACQUISITION CORP

8 Marina View, Asia Square Tower 1
#41-03, Singapore 018960

March 10, 2021

 

LCA Acquisition Sponsor, LP 

8 Marina View, Asia Square Tower 1
#41-03, Singapore 018960

 

Re: Administrative Support Agreement

 

Ladies and Gentlemen:

 

This letter agreement by and between L Catterton Asia Acquisition Corp (the “Company”) and LCA Acquisition Sponsor, LP (the “Sponsor”), dated as of the date hereof, will confirm our agreement that, commencing on the date the securities of the Company are first listed on the The Nasdaq Capital Market (the “Listing Date”), pursuant to a Registration Statement on Form S-1 filed by the Company with the Securities and Exchange Commission (the “Registration Statement”) and continuing until the earlier of the consummation by the Company of an initial business combination or the Company’s liquidation (in each case as described in the Registration Statement) (such earlier date hereinafter referred to as the “Termination Date”):

 

i.

The Sponsor shall make available, or cause to be made available, to the Company, directly or indirectly including through any of its affiliates, at 8 Marina View, Asia Square Tower 1 #41- 03, Singapore (or any successor location of the Sponsor), certain office space, utilities, and secretarial and administrative support as may be reasonably required by the Company from time to time. In exchange therefor, the Company shall pay the Sponsor the sum of $10,000 per month first payable on the Listing Date and thereafter payable in arrears within fifteen (15) calendar days after the end of each of the Company’s fiscal quarters until the Termination Date; and

 

ii.

The Sponsor hereby irrevocably waives any and all right, title, interest, causes of action and claims of any kind as a result of, or arising out of, this letter agreement (each, a “Claim”) in or to, and any and all right to seek payment of any amounts due to it out of, the trust account established for the benefit of the public stockholders of the Company and into which substantially all of the proceeds of the Company’s initial public offering will be deposited (the “Trust Account”), and hereby irrevocably waives any Claim it presently has or may have in the future, which Claim would reduce, encumber or otherwise adversely affect the Trust Account or any monies or other assets in the Trust Account, and further agrees not to seek recourse, reimbursement, payment or satisfaction of any Claim against the Trust Account or any monies or other assets in the Trust Account for any reason whatsoever.

 

This letter agreement constitutes the entire agreement and understanding of the parties hereto in respect of its subject matter and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby.

 

This letter agreement may not be amended, modified or waived as to any particular provision, except by a written instrument executed by the parties hereto.

 

No party hereto may assign either this letter agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other party. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee.

 

This letter agreement constitutes the entire relationship of the parties hereto, and any litigation between the parties (whether grounded in contract, tort, statute, law or equity) shall be governed by, construed in accordance with, and interpreted pursuant to the laws of the State of New York, without giving effect to its choice of laws principles. This letter agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this letter agreement.

 

[Signature Page Follows]

 

 

	Very truly yours,
	L CATTERTON ASIA ACQUISITION CORP
	By:	/s/ Chinta Bhagat
	Name:	Chinta Bhagat
	Title:	Co-Chief Executive Officer and Director

 

[Signature Page to Administrative Support Agreement]

 

 

AGREED TO AND ACCEPTED BY:
LCA ACQUISITION SPONSOR, LP
Signed by LCA Acquisition Sponsor GP Limited
By:	/s/ Soh Po Chuan Daniel
	Name:	Soh Po Chuan Daniel
	Title:	Director

 

[Signature Page to Administrative Support Agreement]

 

 

Exhibit 10.3

 

Letter Agreement

 

Dated: March 10, 2021

 

L Catterton Asia Acquisition Corp

8 Marina View, Asia Square Tower 1

#41-03, Singapore 018960

 

Re: Initial Public Offering

 

Ladies and Gentlemen:

 

This letter (this “Letter Agreement”) is being delivered to you in accordance with the Underwriting Agreement (the “Underwriting Agreement”) entered into by and between L Catterton Asia Acquisition Corp, a Cayman Islands exempted company (the “Company”) and Credit Suisse Securities (USA) LLC, as representative (the “Representative”) of the several underwriters named therein (the “Underwriters”), relating to an underwritten initial public offering (the “Public Offering”) of 28,750,000 of the Company’s units (including 3,750,000 units that may be purchased pursuant to the Underwriters’ option to purchase additional units, the “Units”), each comprising of one of the Company’s Class A ordinary shares, par value $0.0001 per share (the “Ordinary Shares”), and one-third of one redeemable warrant (each whole warrant, a “Warrant”). Each Warrant entitles the holder thereof to purchase one Ordinary Share at a price of $11.50 per share, subject to adjustment, terms and limitations as described in the Prospectus (as defined below). The Units will be sold in the Public Offering pursuant to a registration statement on Form S-l and a prospectus (the “Prospectus”) filed by the Company with the U.S. Securities and Exchange Commission (the “Commission”). Certain capitalized terms used herein are defined in paragraph 1 hereof.

 

In order to induce the Company and the Underwriters to enter into the Underwriting Agreement and to proceed with the Public Offering and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, LCA Acquisition Sponsor, LP, a Cayman Islands exempted limited partnership (the “Sponsor”) and each of the undersigned (each, an “Insider” and, collectively, the “Insiders”) hereby agree with the Company as follows:

 

1. Definitions. As used herein, (i) “Business Combination” shall mean a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses or entities; (ii) “Founder Shares” shall mean the 7,187,500 Class B ordinary shares of the Company, par value $0.0001 per share, outstanding prior to the consummation of the Public Offering; (iii) “Private Placement Warrants” shall mean the warrants to purchase Ordinary Shares of the Company that will be acquired by the Sponsor for an aggregate purchase price of $7,500,000 (or $8,250,000 if the underwriters’ over-allotment option is exercised in full), or $1.50 per Warrant, in a private placement that shall close simultaneously with the consummation of the Public Offering (including Ordinary Shares issuable upon conversion thereof); (iv) “Working Capital Warrants” shall mean the warrants that may be issued in connection with financing the Company’s transaction costs in connection with the Business Combination; (v) “Extension Warrants” shall mean the warrants that may be issued in connection with an extension of the period of time the Company has to consummate a Business Combination as set forth in the Articles (as defined below); (vi) “Public Shareholders” shall mean the holders of Ordinary Shares included in the Units issued in the Public Offering; (vii) “Public Shares” shall mean the Ordinary Shares included in the Units issued in the Public Offering; (viii) “Trust Account” shall mean the trust account into which the net proceeds of the Public Offering and certain proceeds from the sale of the Private Placement Warrants shall be deposited; (vii) “Transfer” shall mean the (a) sale of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder with respect to, any security, (b) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) public announcement of any intention to effect any transaction specified in clause (a) or (b); and (ix) “Articles” shall mean the Company’s Amended and Restated Memorandum and Articles of Association, as the same may be amended from time to time.

 

 

2. Representations and Warranties.

 

(a) The Sponsor and each Insider, with respect to itself, herself, or himself, represent and warrant to the Company that it, she or he has the full right and power, without violating any agreement to which it, she or he is bound (including, without limitation, any non-competition or non-solicitation agreement with any employer or former employer), to enter into this Letter Agreement, as applicable, and to serve as an officer of the Company and/or a director on the Company’s Board of Directors (the “Board”), as applicable, and each Insider hereby consents to being named in the Prospectus, road show and any other materials as an officer and/or director of the Company, as applicable.

 

(b) Each Insider represents and warrants, with respect to herself or himself, that such Insider’s biographical information furnished to the Company (including any such information included in the Prospectus) is true and accurate in all material respects and does not omit any material information with respect to such Insider’s background. The Sponsor and each Insider’s questionnaire furnished to the Company is true and accurate in all material respects. Each Insider represents and warrants that it, he or she is not subject to or a respondent in any legal action for, any injunction, cease-and-desist order or order or stipulation to desist or refrain from any act or practice relating to the offering of securities in any jurisdiction; it, he or she has never been convicted of, or pleaded guilty to, any crime (i) involving fraud, (ii) relating to any financial transaction or handling of funds of another person, or (iii) pertaining to any dealings in any securities and such Insider is not currently a defendant in any such criminal proceeding; and it, he or she has never been suspended or expelled from membership in any securities or commodities exchange or association or had a securities or commodities license or registration denied, suspended or revoked.

 

3. Business Combination Vote. It is acknowledged and agreed that the Company shall not enter into a definitive agreement regarding a proposed Business Combination without the prior consent of the Sponsor. The Sponsor and each Insider, with respect to itself or herself or himself, agrees that if the Company seeks shareholder approval of a proposed initial Business Combination, then in connection with such proposed initial Business Combination, it, she or he, as applicable, shall vote all Founder Shares and any Public Shares held by it, her or him, as applicable, in favor of such proposed initial Business Combination (including any proposals recommended by the Board in connection with such Business Combination) and not redeem any Public Shares held by it, her or him, as applicable, in connection with such shareholder approval.

 

4. Failure to Consummate a Business Combination; Trust Account Waiver.

 

(a) The Sponsor and each Insider hereby agree, with respect to itself, herself or himself, that in the event that the Company fails to consummate its initial Business Combination within the time period, including any extension, set forth in the Articles, the Sponsor and each Insider shall take all reasonable steps to cause the Company to (i) cease all operations except for the purpose of winding up; (ii) as promptly as reasonably possible but not more than 10 business days thereafter, redeem 100% of the Public Shares, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to the Company to pay its income taxes (less up to $100,000 of interest to pay dissolution expenses), divided by the number of then outstanding Public Shares, which redemption will completely extinguish Public Shareholders’ rights as shareholders (including the right to receive further liquidation distributions, if any); and (iii) as promptly as reasonably possible following such redemption, subject to the approval of the Company’s remaining shareholders and the Board, liquidate and dissolve, subject in each case to the Company’s obligations under Cayman Islands law to provide for claims of creditors and in all cases subject to the other requirements of applicable law. The Sponsor and each Insider agree not to propose any amendment to the Articles (i) that would modify the substance or timing of the Company’s obligation to provide holders of the Public Shares the right to have their shares redeemed in connection with an initial Business Combination or to redeem 100% of the Public Shares if the Company does not complete an initial Business Combination within the required time period set forth in the Articles, including any extension, or (ii) with respect to any other provision relating to the rights of holders of Public Shares unless the Company provides its Public Shareholders with the opportunity to redeem their Public Shares upon approval of any such amendment at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to the Company to pay taxes, if any, divided by the number of then-outstanding Public Shares.

 

 

(b) The Sponsor and each Insider, with respect to itself, herself or himself, acknowledges that it, she or he has no right, title, interest or claim of any kind in or to any monies held in the Trust Account or any other asset of the Company as a result of any liquidation of the Company with respect to the Founder Shares held by it, her or him, if any. The Sponsor and each of the Insiders hereby further waive, with respect to any Founder Shares and Public Shares held by it, her or him, as applicable, any redemption rights it, she or he may have in connection with the consummation of a Business Combination, including, without limitation, any such rights available in the context of a shareholder vote to approve such Business Combination or a shareholder vote to approve an amendment to the Articles (i) that would modify the substance or timing of the Company’s obligation to provide holders of the Public Shares the right to have their shares redeemed in connection with an initial Business Combination or to redeem 100% of the Public Shares if the Company has not consummated an initial Business Combination within the time period set forth in the Articles or (ii) with respect to any other provision relating to the rights of holders of Public Shares (although the Sponsor and the Insiders shall be entitled to liquidation rights with respect to any Public Shares they hold if the Company fails to consummate a Business Combination within the required time period set forth in the Articles). The Sponsor and each Insider acknowledge and agree, with respect to itself, herself or himself, that there will be no distribution from the Trust Account with respect to any warrants, all rights of which will terminate on the Company’s liquidation.

 

(c) Each of the undersigned acknowledges and agrees that prior to entering into a definitive agreement for a Business Combination with a target business that is affiliated with the undersigned or any other Insiders of the Company or their respective affiliates, the Company must obtain an opinion from an independent investment banking firm or an independent accounting firm that such Business Combination is fair to the Company from a financial point of view.

 

5. Lock-up; Transfer Restrictions.

 

(a) The Sponsor and each Insider agree that it, she or he shall not Transfer any Founder Shares (the “Founder Shares Lock-up”) until the earliest of (A) one year after the completion of an initial Business Combination and (B) subsequent to an initial Business Combination, (x) if the closing price of the Ordinary Shares equals or exceeds $12.00 per share (as adjusted for share subdivisions, share capitalizations, share consolidations, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 150 days after the Company’s initial Business Combination, or (y) the date on which the Company completes a liquidation, merger, share exchange or other similar transaction that results in all of the Company’s shareholders having the right to exchange their Ordinary Shares for cash, securities or other property (the “Founder Shares Lock-up Period”).

 

(b) The Sponsor and each Insider agree that it, he or she shall not effectuate any Transfer of Private Placement Warrants, Working Capital Warrants or Extension Warrants or Ordinary Shares underlying such warrants until 30 days after the completion of an initial Business Combination.

 

(c) Notwithstanding the provisions set forth in paragraphs 5(a) and (b), Transfers of the Founder Shares, Private Placement Warrants, Working Capital Warrants and Extension Warrants, and Ordinary Shares underlying the Private Placement Warrants, Working Capital Warrants and Extension Warrants are permitted (a) to the Company’s officers or directors, any affiliate or family member of any of the Company’s officers or directors, any members or partners of the Sponsor or their affiliates, any affiliates of the Sponsor, or any employees of such affiliates; (b) in the case of an individual, by gift to a member of one of the individual’s immediate family or to a trust, the beneficiary of which is a member of the individual’s immediate family, an affiliate of such person or to a charitable organization;

 

(c) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual; (d) in the case of an individual, pursuant to a qualified domestic relations order; (e) by private sales or transfers made in connection with the consummation of a Business Combination at prices no greater than the price at which the Founder Shares, Private Placement Warrants, Working Capital Warrants and Extension Warrants or Ordinary Shares, as applicable, were originally purchased; (f) by virtue of the Sponsor’s organizational documents upon liquidation or dissolution of the Sponsor; (g) to the Company for no value for cancellation in connection with the consummation of an initial Business Combination; (h) in the event of the Company’s liquidation prior to the completion of a Business Combination; or (i) in the event of completion of a liquidation, merger, share exchange or other similar transaction which results in all of the Company’s Public Shareholders having the right to exchange their Ordinary Shares for cash, securities or other property subsequent to the completion of an initial Business Combination; provided, however, that in the case of clauses (a) through (f) and (h) these permitted transferees must enter into a written agreement agreeing to be bound by these transfer restrictions.

 

 

(d) During the period commencing on the effective date of the Underwriting Agreement and ending 180 days after such date, the Sponsor and each Insider shall not, without the prior written consent of the Representative, Transfer any Units, Ordinary Shares, Warrants or any other securities convertible into, or exercisable or exchangeable for, Ordinary Shares held by it, her or him, as applicable, subject to certain exceptions enumerated in Section 4(h) of the Underwriting Agreement.

 

6. Remedies. The Sponsor and each of the Insiders hereby agree and acknowledge that (i) each of the Underwriters and the Company would be irreparably injured in the event of a breach by the Sponsor or such Insider of its, her or his obligations, as applicable under paragraphs 3, 4, 5, 7, 10 and 11, (ii) monetary damages may not be an adequate remedy for such breach and (iii) the non-breaching party shall be entitled to injunctive relief, in addition to any other remedy that such party may have in law or in equity, in the event of such breach.

 

7. Payments by the Company. Except as disclosed in the Prospectus, neither the Sponsor nor any affiliate of the Sponsor nor any director or officer of the Company nor any affiliate of the directors and officers shall receive from the Company any finder’s fee, reimbursement, consulting fee, monies in respect of any payment of a loan or other compensation prior to, or in connection with any services rendered in order to effectuate the consummation of the Company’s initial Business Combination (regardless of the type of transaction that it is).

 

8. Director and Officer Liability Insurance. The Company will maintain an insurance policy or policies providing directors’ and officers’ liability insurance, and the Insiders shall be covered by such policy or policies, in accordance with its or their terms, to the extent of the coverage available for any of the Company’s directors or officers.

 

9. Termination. This Letter Agreement shall terminate on the earlier of (i) the expiration of the Founder Shares Lock-up Period and (ii) the liquidation of the Company.

 

10. Indemnification. In the event of the liquidation of the Trust Account upon the failure of the Company to consummate its initial Business Combination within the time period set forth in the Articles, the Sponsor (the “Indemnitor”) agrees to indemnify and hold harmless the Company against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, whether pending or threatened) to which the Company may become subject as a result of any claim by (i) any third party for services rendered or products sold to the Company (except for the Company’s independent auditors) or (ii) any prospective target business with which the Company has discussed entering into a transaction agreement (a “Target”) provided, however, that such indemnification of the Company by the Indemnitor (x) shall apply only to the extent necessary to ensure that such claims by a third party for services rendered or products sold to the Company or a Target do not reduce the amount of funds in the Trust Account to below the lesser of (i) $10.00 per Public Share and (ii) the actual amount per Public Share held in the Trust Account as of the date of the liquidation of the Trust Account if less than $ 10.00 per Public Share due to reductions in the value of the trust assets, in each case net of interest that may be withdrawn to pay the Company’s tax obligations, (y) shall not apply to any claims by a third party or Target who executed a waiver of any and all rights to the monies held in the Trust Account (whether or not such waiver is enforceable) and (z) shall not apply to any claims under the Company’s indemnity of the Underwriters against certain liabilities, including liabilities under the Securities Act of 1933, as amended. The Indemnitor shall have the right to defend against any such claim with counsel of its choice reasonably satisfactory to the Company if, within 15 days following written receipt of notice of the claim to the Indemnitor, the Indemnitor notifies the Company in writing that it shall undertake such defense.

 

11. Forfeiture of Founder Shares. To the extent that the Underwriters do not exercise their option to purchase additional Units within 45 days from the date of the Prospectus in full (as further described in the Prospectus), the Sponsor agrees to automatically surrender to the Company for no consideration, for cancellation at no cost, an aggregate number of Founder Shares so that the number of Founder Shares will equal, on an as converted basis, an aggregate of 20% of the sum of the total number of Ordinary Shares and Founder Shares outstanding at such time. The Sponsor and Insiders further agree that to the extent that the size of the Public Offering is increased or decreased, the Company will effect a share capitalization or a share surrender or redemption or other appropriate mechanism, as applicable, with respect to the Founder Shares immediately prior to the consummation of the Public Offering in such amount as to maintain the number of Founder Shares, on an as-converted basis, at 20% of the sum of the total number of Ordinary Shares and Founder Shares outstanding at such time.

 

 

12. Entire Agreement. This Letter Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Letter Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by all parties hereto.

 

13. Assignment. No party hereto may assign either this Letter Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other parties. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Letter Agreement shall be binding on the Sponsor, each of the Insiders and each of their respective successors, heirs, personal representative and assigns and permitted transferees.

 

14. Counterparts. This Letter Agreement may be executed in any number of original, facsimile or other electronic counterparts, and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.

 

15. Effect of Headings. The paragraph headings herein are for convenience only and are not part of this Letter Agreement and shall not affect the interpretation thereof.

 

16. Severability. This Letter Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Letter Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Letter Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.

 

17. Governing Law. This Letter Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The parties hereto (i) all agree that any action, proceeding, claim or dispute arising out of, or relating in any way to, this Letter Agreement shall be brought and enforced in the courts of New York City or in the State of New York, and irrevocably submit to such jurisdiction and venue, which jurisdiction and venue shall be exclusive, and (ii) waive any objection to such exclusive jurisdiction and venue or that such courts represent an inconvenient forum.

 

18. Notices. Any notice, consent or request to be given in connection with any of the terms or provisions of this Letter Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery or facsimile or other electronic transmission.

 

[Signature Page Follows]

 

 

	Sincerely,
	LCA ACQUISITION SPONSOR, LP
	Signed by LCA Acquisition Sponsor GP Limited
	By:	/s/ Soh Po Chuan Daniel
		Name: Soh Po Chuan Daniel
		Title: Director

 

[Signature Page to Letter Agreement]

 

 

	By:	/s/ Chinta Bhagat
		Name: Chinta Bhagat
		Title: Co-Chief Executive Officer and Director

 

[Signature Page to Letter Agreement]

 

 

	By:	/s/ Scott Chen
		Name: Scott Chen
		Title: Co-Chief Executive Officer and Director

 

[Signature Page to Letter Agreement]

 

 

	By:	/s/ Howard Steyn
		Name: Howard Steyn
		Title: President

 

[Signature Page to Letter Agreement]

 

 

	By:	/s/ John Sculley
		Name: John Sculley
		Title: Director

 

[Signature Page to Letter Agreement]

 

 

	By:	/s/ Frank N. Newman
		Name: Frank N. Newman
		Title: Director

 

[Signature Page to Letter Agreement]

 

 

	By:	/s/ Anish Melwani
		Name: Anish Melwani
		Title: Director

 

[Signature Page to Letter Agreement]

 

 

Acknowledged and Agreed:
L CATTERTON ASIA ACQUISITION CORP
By:	/s/ Chinta Bhagat
	Name: Chinta Bhagat
	Title: Co-Chief Executive Officer and Director

 

[Signature Page to Letter Agreement]

 

 

 

Exhibit 10.4

 

SPONSOR SUPPORT AGREEMENT

 

This SPONSOR SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of January 31, 2023, by and among Lotus Technology Inc., an exempted company limited by shares incorporated under the laws of the Cayman Islands (the “Company”), L Catterton Asia Acquisition Corp, an exempted company limited by shares incorporated under the laws of the Cayman Islands (“SPAC”), and the shareholders of SPAC set forth on Schedule A hereto (each, a “Founder Shareholder” and collectively, the “Founder Shareholders”).

 

WHEREAS, capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed thereto in the Agreement and Plan of Merger (as may be amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Merger Agreement”) dated as of the date hereof, entered into by and among the Company, Lotus Temp Limited, an exempted company limited by shares incorporated under the laws of the Cayman Islands and a direct wholly owned subsidiary of the Company (“Merger Sub 1”), Lotus EV Limited, an exempted company limited by shares incorporated under the laws of the Cayman Islands and a direct wholly owned subsidiary of the Company (“Merger Sub 2”), and SPAC, pursuant to which, among other things, (i) Merger Sub 1 will merge with and into SPAC, with SPAC surviving the First Merger as a wholly owned subsidiary of the Company (the “First Merger”), and (ii) SPAC will merge with and into Merger Sub 2, with Merger Sub 2 surviving the Second Merger as a wholly owned subsidiary of the Company (the “Second Merger” and together with the First Merger, collectively, the “Mergers”);

 

WHEREAS, each Founder Shareholder is, as of the date of this Agreement, the sole beneficial and legal owner (except with respect to the Owned Shares of Sponsor, of which the general partner of Sponsor is also a beneficial owner) of (a) the number of SPAC Class B Shares, and (b) the number of SPAC Warrants, in each case, set forth opposite such Founder Shareholder’s name on Schedule A hereto (with respect to such Founder Shareholder, all such securities set forth in clauses (a) and (b), being collectively referred to herein as its “Owned Shares”; and the Owned Shares and any other SPAC Securities (or any securities convertible into or exercisable or exchangeable for SPAC Securities) acquired by such Founder Shareholder after the date of this Agreement and during the term of this Agreement, being collectively referred to herein as the “Subject Shares” of such Founder Shareholder; and such SPAC Class B Shares beneficially owned by Sponsor as of the date of this Agreement, being referred to herein as the “Sponsor Shares”); and

 

WHEREAS, as a condition to their willingness to enter into the Merger Agreement, the Company and SPAC have requested that each Founder Shareholder enter into this Agreement.

 

NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated into this Agreement as if fully set forth below, and intending to be legally bound hereby, the parties hereto agree as follows:

 

 

Article I
Representations and Warranties of Founder Shareholders

 

Each Founder Shareholder hereby represents and warrants to the Company and SPAC as follows:

 

1.1            Corporate Organization. Such Founder Shareholder, if an entity, has been duly formed, validly existing and in good standing under the Laws of its jurisdiction of incorporation or registration and has the requisite power and authority to own, lease or operate its assets and properties and to conduct its business as it is now being conducted.

 

1.2            Due Authorization. Such Founder Shareholder, if an entity, has all requisite power and authority, and if an individual, has full legal capacity, right and authority, to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. If such Founder Shareholder is an entity, the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized and no other corporate or equivalent proceeding on the part of such Founder Shareholder is necessary to authorize the execution and delivery of this Agreement or such Founder Shareholder’s performance hereunder or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by such Founder Shareholder and, assuming due authorization and execution by each other party hereto, constitutes a legal, valid and binding obligation of such Founder Shareholder, enforceable against such Founder Shareholder in accordance with its terms, subject to the Enforceability Exceptions.

 

1.3            Governmental Authorities; Consents. No consent of or with any Governmental Authority on the part of such Founder Shareholder is required to be obtained or made in connection with the execution, delivery or performance by such Founder Shareholder of this Agreement or the consummation by such Founder Shareholder of the transactions contemplated hereby, other than (a) applicable requirements, if any, of the Securities Act, the Exchange Act, and/ or any state “blue sky” securities Laws, and the rules and regulations thereunder and (b) where the failure to obtain or make such consents or to make such filings or notifications would not reasonably be expected to prevent, impede or, in any material respect, delay or adversely affect the execution and performance by such Founder Shareholder of its obligations under this Agreement or the consummation of the transactions contemplated hereby.

 

1.4            No-Conflict. The execution, delivery and performance by such Founder Shareholder of this Agreement do not and will not (a) if such Founder Shareholder is an entity, contravene or conflict with or violate any provision of, or result in the breach of the Organizational Documents of such Founder Shareholder, (b) contravene or conflict with or result in a violation of any provision of any Law or Governmental Order binding upon or applicable to such Founder Shareholder or any of its properties or assets, (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination or acceleration of, or a right of termination, cancellation, modification, acceleration or amendment under, accelerate the performance required by, any of the terms, conditions or provisions of any Contract to which such Founder Shareholder is a party, or (d) result in the creation or imposition of any Encumbrance on any properties or assets of such Founder Shareholder, except in the case of each of clauses (b) through (d) that do not, and would not reasonably be expected to, prevent, impede or, in any material respect, delay or adversely affect the performance by such Founder Shareholder of its obligations under this Agreement or the consummation of the transactions contemplated hereby.

 

 

1.5            Subject Shares. Subject to any Transfer permitted under Section 4.2, such Founder Shareholder is the sole legal and beneficial owner of the Subject Shares (except with respect to the Subject Shares of Sponsor, of which the general partner of Sponsor is also a beneficial owner), and all such Subject Shares are owned by such Founder Shareholder free and clear of all Encumbrances, other than Encumbrances pursuant to this Agreement, the other Transaction Documents, the Organizational Documents of SPAC, the Letter Agreement (as defined below) and any applicable securities Laws. Such Founder Shareholder does not legally or beneficially own any shares or warrants of SPAC other than the Subject Shares. Such Founder Shareholder has the sole right to vote the Subject Shares (to the extent such securities have voting rights), and none of the Subject Shares is subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Subject Shares, except as contemplated by (i) this Agreement and (ii) the Letter Agreement, dated as of March 10, 2021, among SPAC, LCA Acquisition Sponsor, LP, a Cayman Islands exempted limited partnership (“Sponsor”) and SPAC’s officers and directors (the “Letter Agreement”).

 

1.6            Acknowledgement. Such Founder Shareholder understands and acknowledges that each of the Company and SPAC is entering into the Merger Agreement in reliance upon such Founder Shareholder’s execution and delivery of this Agreement. Such Founder Shareholder has received a copy of the Merger Agreement and is familiar with the provisions of the Merger Agreement.

 

1.7            Absence of Litigation. As of the date hereof, there is no action, suit, investigation or proceeding pending against, or, to the knowledge of such Founder Shareholder, threatened against, such Founder Shareholder or any of such Founder Shareholder’s properties or assets (including such Founder Shareholder’s Owned Shares) that could reasonably be expected to prevent, delay or impair the ability of such Founder Shareholder to perform its obligations hereunder or to consummate the transactions contemplated hereby.

 

1.8            Adequate Information. Such Founder Shareholder is a sophisticated shareholder and has adequate information concerning the business and financial condition of SPAC and the Company to make an informed decision regarding this Agreement and the transactions contemplated by the Merger Agreement, and has independently and without reliance upon SPAC or the Company and based on such information as such Founder Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Founder Shareholder acknowledges that SPAC and the Company have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement or the Merger Agreement. Such Founder Shareholder acknowledges that the agreements contained herein with respect to the Subject Shares held by such Founder Shareholder are irrevocable and shall only terminate pursuant to Section 6.2 hereof.

 

 

1.9            Restricted Securities. Such Founder Shareholder understands that the Company Ordinary Shares to be held by it immediately following the consummation of the Mergers will be “restricted securities” under applicable U.S. federal and state securities Laws and, if such Founder Shareholder is an affiliate of the Company, “control securities” as such term is used under Rule 144 promulgated under the Securities Act, and that, pursuant to these Laws, such Founder Shareholder must hold such Company Ordinary Shares indefinitely unless (a) they are registered with the SEC and qualified by state authorities, or (b) an exemption from such registration and qualification requirements is available, and that any certificates or book entries representing the Company Ordinary Shares shall contain a legend to such effect.

 

1.10            Additional Representations and Warranties of Individual Founder Shareholder. Such Founder Shareholder, if an individual, (a) is not a minor, and is of full age and sound mind; and (b) has such knowledge and experience in financial and business matters that he or she is capable of evaluating the risks of the transactions contemplated by this Agreement and the other Transaction Documents.

 

Article II
Representations and Warranties of SPAC

 

SPAC hereby represents and warrants to each Founder Shareholder and the Company as follows:

 

2.1            Corporate Organization. SPAC is an exempted company duly incorporated, validly existing and in good standing under the Laws of the Cayman Islands and has the requisite corporate power and authority to own, lease or operate its assets and properties and to conduct its business as it is now being conducted.

 

2.2            Due Authorization. SPAC has all requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized and approved by the board of directors of SPAC and no other corporate or equivalent proceeding on the part of SPAC is necessary to authorize the execution and delivery of this Agreement or SPAC’s performance hereunder or to consummate the transactions contemplated hereby (except that the SPAC Shareholders’ Approval is a condition to the respective obligations of each party to the Merger Agreement to consummate the Mergers). This Agreement has been duly and validly executed and delivered by SPAC and, assuming due authorization and execution by each other party hereto, constitutes a legal, valid and binding obligation of SPAC, enforceable against SPAC in accordance with its terms, subject to the Enforceability Exceptions.

 

2.3            No-Conflict. Subject to Section 4.5 of the SPAC Disclosure Letter and obtaining the SPAC Shareholders’ Approval, the execution, delivery and performance by SPAC of this Agreement and the consummation of the transactions by SPAC contemplated hereby do not and will not (a) contravene or conflict with or violate any provision of, or result in the breach of the Organizational Documents of SPAC, (b) contravene or conflict with or result in a violation of any provision of any Law, Permit or Governmental Order binding upon or applicable to SPAC or any of its properties or assets, (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination or acceleration of, or a right of termination, cancellation, modification, acceleration or amendment under, accelerate the performance required by, any of the terms, conditions or provisions of any Contract to which SPAC is a party, or (d) result in the creation or imposition of any Encumbrance upon any of the properties or assets of SPAC (including the Trust Account), except in the case of each of clauses (b) through (d) that do not, and would not reasonably be expected to, prevent, impede or, in any material respect, delay or adversely affect the performance by SPAC of its obligations under this Agreement or the consummation of the transactions contemplated hereby.

 

 

Article III
Representations and Warranties of the Company

 

The Company hereby represents and warrants to each Founder Shareholder and SPAC as follows:

 

3.1            Corporate Organization. The Company is an exempted company duly incorporated, is validly existing and is in good standing under the Laws of the Cayman Islands and has the requisite corporate power and authority to own, lease or operate its assets and properties and to conduct its business as it is now being conducted.

 

3.2            Due Authorization. The Company has the requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by the Company Board, and no other corporate proceeding on the part of the Company is necessary to authorize this Agreement or the Company’s performance hereunder (except that the Company Shareholders’ Approval is a condition to the respective obligations of each party to the Merger Agreement to consummate of the Transactions). This Agreement has been duly and validly executed and delivered by the Company and, assuming due and valid authorization, execution and delivery by each other party hereto, constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions.

 

3.3            No-Conflict. The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby do not and will not, (a) contravene or conflict with, violate any provision of, trigger shareholder rights that have not been duly waived under, or result in the breach of the Organizational Documents of the Company or any of its Subsidiaries, (b) contravene or conflict with or constitute a violation of any provision of any Law, Material Permit or Governmental Order binding upon or applicable to the Company or any of its Subsidiaries or any of their respective properties or assets, (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination or acceleration of, or a right of termination, cancellation, modification, acceleration or amendment under, accelerate the performance required by, any of the terms, conditions or provisions of any Contracts to which the Company is a party, or (d) result in the creation or imposition of any Encumbrance on any properties or assets or Equity Security of the Company or any of its Subsidiaries (other than any Permitted Encumbrance), except in the case of clauses (b) through (d) above that do not, and would not reasonably be expected to prevent, impede or, in any material respect, delay or adversely affect the performance by the Company of its obligations under this Agreement or the consummation of the transactions contemplated hereby.

 

 

Article IV
Agreement to Vote; Certain Other Covenants of Founder Shareholders

 

Each Founder Shareholder covenants and agrees during the term of this Agreement as follows:

 

4.1            Agreement to Vote.

 

(a)            In Favor of the SPAC Shareholders’ Approval. From the date of this Agreement until the date of termination of this Agreement, at any meeting of SPAC Shareholders called to seek the SPAC Shareholders’ Approval or SPAC Shareholder Extension Approval, including any extraordinary general meeting (as defined in the SPAC Charter), or at any adjournment thereof or postponement thereof, or in connection with any written consent or written resolutions of SPAC Shareholders (or any of them) or in any other circumstances upon which a vote, consent or other approval with respect to the Transactions, the Merger Agreement or any other Transaction Documents is sought, such Founder Shareholder shall (i) if a meeting is held, appear at such meeting in person or by proxy or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum, and (ii) vote or cause to be voted (including by proxy, withholding class vote and/or written consent or written resolutions, if applicable) the Subject Shares in favor of granting the SPAC Shareholders’ Approval or the SPAC Shareholder Extension Approval or, if there are insufficient votes in favor of granting the SPAC Shareholders’ Approval or the SPAC Shareholder Extension Approval, in favor of the adjournment or postponement of such meeting of SPAC Shareholders to a later date.

 

(b)            Against Other Transactions. From the date of this Agreement until the date of termination of this Agreement, at any meeting of SPAC Shareholders or at any adjournment or postponement thereof, or in connection with any written consent or written resolutions of SPAC Shareholders (or any of them) or in any other circumstances upon which such Founder Shareholder’s vote, consent or other approval is sought, such Founder Shareholder shall (i) if a meeting is held, appear at such meeting in person or by proxy or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum, (ii) vote (or cause to be voted) the Subject Shares (including by proxy, withholding class vote and/or written consent or written resolutions, if applicable) against (v) any business combination agreement, merger agreement or merger, scheme of arrangement, business combination, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by SPAC or any public offering of any Equity Securities of SPAC (other than the Merger Agreement, the First Merger and the Transactions), (w) other than in connection with the Transactions, any SPAC Acquisition Proposal, (x) allowing SPAC to execute or enter into, any agreement related to a SPAC Acquisition Proposal other than in connection with the Transactions, or (y) any amendment of Organizational Documents of SPAC (other than in connection with the Transactions), or entering into any agreement or agreement in principle or other proposal or transaction involving SPAC, which amendment, agreement or other proposal or transaction would be reasonably likely to in any material respect impede, interfere with, delay or attempt to discourage, frustrate the purposes of, result in a breach by SPAC of, result in the termination or failure to consummate of, or nullify any provision of, the Merger Agreement or any other Transaction Document, the Transactions or change in any manner the voting rights of any class of SPAC’s share capital.

 

 

(c)            Revoke Other Proxies. Such Founder Shareholder represents and warrants that any proxies or powers of attorney heretofore given in respect of the Subject Shares that may still be in effect are not irrevocable, and such proxies or powers of attorney have been or are hereby revoked, other than the voting and other arrangements under the Letter Agreement.

 

(d)            Irrevocable Proxy and Power of Attorney. Such Founder Shareholder hereby unconditionally and irrevocably grants to, and appoints, the Company and any individual designated in writing by the Company, and each of them individually, as such Founder Shareholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of such Founder Shareholder, to vote the Subject Shares, or grant a written consent or approval in respect of the Subject Shares, in a manner consistent with Section 4.1(a). Such Founder Shareholder understands and acknowledges that the Company is entering into the Merger Agreement in reliance upon such Founder Shareholder’s execution and delivery of this Agreement. Such Founder Shareholder hereby affirms that the irrevocable proxy and power of attorney set forth in this Section 4.1(d) are given in connection with the execution of the Merger Agreement, and that such irrevocable proxy and power of attorney are given to secure a proprietary interest and may under no circumstances be revoked. Such Founder Shareholder hereby ratifies and confirms all that such irrevocable proxy and power of attorney may lawfully do or cause to be done by virtue hereof. SUCH IRREVOCABLE PROXY AND POWER OF ATTORNEY IS EXECUTED AND INTENDED TO BE IRREVOCABLE IN ACCORDANCE WITH THE PROVISIONS OF THE POWERS OF ATTORNEY ACT (AS REVISED) OF THE CAYMAN ISLANDS. The irrevocable proxy and power of attorney granted hereunder shall automatically terminate upon the termination of this Agreement.

 

4.2            No Transfer. From the date of this Agreement until the date of termination of this Agreement, such Founder Shareholder shall not, directly or indirectly, (i) (a) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option, right or warrant to purchase or otherwise transfer, dispose of or agree to transfer or dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, and the rules and regulations of the SEC promulgated thereunder, with respect to any Subject Share, (b) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Subject Shares, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) publicly announce any intention to effect any transaction specified in clause (a) or (b) (the actions specified in clauses (a) to (c), collectively, “Transfer”), other than pursuant to the Mergers, (ii) grant any proxies or powers of attorney or enter into any voting arrangement, whether by proxy, voting agreement, voting trust, voting deed or otherwise (including pursuant to any loan of Subject Shares), or enter into any other agreement, with respect to any Subject Shares, in each case, other than as set forth in this Agreement, any existing voting arrangements expressly forth in the Letter Agreement, the Merger Agreement or other Transaction Documents, (iii) take any action that would reasonably be expected to make any representation or warranty of such Founder Shareholder herein untrue or incorrect, or would reasonably be expected to have the effect of preventing or disabling any Founder Shareholder from performing its obligations hereunder, or (iv) commit or agree to take any of the foregoing actions. Notwithstanding the foregoing, such Founder Shareholder may make Transfers of the Subject Shares (A) pursuant to this Agreement, (B) upon the consent of the Company and SPAC, (C) in the case of an individual, by gift to a member of one of the individual’s immediate family, to a trust, the beneficiary of which is a member of the individual’s immediate family or an affiliate of such person, (D) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual, (E) in the case of an individual, pursuant to a qualified domestic relations order, (F) in the case of an individual, pursuant to a charitable gift or contribution, and (G) in the case of an entity, by virtue of such Founder Shareholder’s Organizational Documents upon liquidation or dissolution of such Founder Shareholder; provided that, in each case of clauses (A) through (G), the power to vote (including, without limitation, by proxy or power of attorney) and otherwise fulfill such Founder Shareholder’s obligations under this Agreement is not relinquished or prior to, and as a condition to the effectiveness of any such Transfer, such transferee shall enter into a written agreement, in form and substance reasonably satisfactory to the Company and SPAC, agreeing to be bound by this Agreement to the same extent as such Founder Shareholder was with respect to such transferred Subject Shares; provided, further, that in the case of clauses (D), (E) or (F), the transferee will not be required to assume voting obligations if the transferee’s assumption of such obligations would violate any applicable Laws, including any securities Laws, or would reasonably be expected to materially delay or impede the Registration Statement or Proxy Statement being declared effective under the Securities Act. Any action attempted to be taken in violation of the preceding sentence will be null and void.

 

 

4.3            Waiver of Appraisal and Dissenters’ Rights. Each Founder Shareholder hereby irrevocably waives, and agrees not to exercise or assert, any dissenters’ rights under Section 238 of the Cayman Act and any other similar statute in connection with the Transactions and the Merger Agreement.

 

4.4            Waiver of Anti-Dilution Protection. Such Founder Shareholder hereby waives, and agrees not to exercise, assert or claim, to the fullest extent permitted by applicable Law, the ability to adjust the Initial Conversion Ratio (as defined in the SPAC Charter) pursuant to Article 26 of the SPAC Charter in connection with the Transactions.

 

4.5            No Redemption. Such Founder Shareholder irrevocably and unconditionally agrees that, from the date hereof and until the termination of this Agreement, such Founder Shareholder shall not elect to cause SPAC to redeem any Subject Shares now or at any time legally or beneficially owned by such Founder Shareholder, or submit or surrender any of its Subject Shares for redemption, in connection with the Transactions.

 

4.6            New Securities. In the event that prior to the Closing (a) any SPAC Securities or other securities are issued or otherwise distributed to such Founder Shareholder, including, without limitation, pursuant to any share dividend or distribution, or any change occurs in any of the SPAC Securities or other share capital of SPAC by reason of any share subdivision, recapitalization, combination, reverse share split, consolidation, exchange of shares or the like, (b) such Founder Shareholder acquires legal or beneficial ownership of any SPAC Securities after the date of this Agreement, including upon exercise of options or warrants, settlement of restricted share units or capitalization of working capital loans, or (c) such Founder Shareholder acquires the right to vote or share in the voting of any SPAC Securities after the date of this Agreement (collectively, the “New Securities”), the term “Subject Shares” shall be deemed to refer to and include such New Securities (including all such share dividends and distributions and any securities into which or for which any or all of the Subject Shares may be changed or exchanged into).

 

 

4.7            Sponsor Letter Agreement. Each of the Founder Shareholders and SPAC hereby agree that (a) from the date hereof until the termination of this Agreement, none of them shall, or shall agree to, amend, modify or vary the Letter Agreement, except as otherwise provided for under this Agreement, the Merger Agreement or any other Transaction Document or with the prior written consent of the Company; and (b) the Lock-Up Restrictions (as defined below) shall supersede the lock-up provisions applicable to Founder Shares (as defined in the Letter Agreement) contained in Section 5 of the Letter Agreement.

 

4.8            Sponsor Affiliate Agreements. Each of the Founder Shareholders and SPAC hereby agrees that each agreement in effect as of the First Effective Time between SPAC, on the one hand, and Sponsor or any of Sponsor’s Affiliates (other than SPAC) or any other Founder Shareholder, on the other hand (but excluding any Transaction Document and the Letter Agreement) (such agreements, collectively, the “Sponsor Affiliate Agreements”) will be terminated effective as of the First Effective Time, and thereupon shall be of no further force or effect, without any further action on the part of any of any Founder Shareholder or SPAC; provided that, if there is any obligation to be discharged (including any payment owed) as of the First Effective Time by either the Founder Shareholders or SPAC under any Sponsor Affiliate Agreement, such Sponsor Affiliate Agreement(s) will be terminated as of immediately following the discharge of such obligations. On and from the effectiveness of such terminations none of SPAC, the Founder Shareholders, or any of their respective Affiliates or Subsidiaries shall have any further rights, duties, liabilities or obligations under any of the Sponsor Affiliate Agreements and each of the Founder Shareholders and SPAC (for and on behalf of its Affiliates and Subsidiaries) hereby releases in full any and all claims with respect thereto with effect on and from the effectiveness of such terminations.

 

4.9            Additional Matters. Such Founder Shareholder shall, from time to time, (i) execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments as the Company or SPAC may reasonably request for the purpose of effectively consummating the transactions contemplated by this Agreement, the Merger Agreement and the other Transaction Documents and (ii) refrain from exercising any veto right, consent right or similar right (whether under the Organizational Documents of SPAC or the Cayman Act) which would prevent, impede or, in any material respect, delay or adversely affect the consummation of the Transactions.

 

4.10            Acquisition Proposals; Confidentiality. Such Founder Shareholder shall be bound by and comply with Section 6.3 (Acquisition Proposals and Alternative Transactions) and Section 10.14 (Confidentiality) of the Merger Agreement (and any relevant definitions contained in any such sections) as if (a) such Founder Shareholder was an original signatory to the Merger Agreement with respect to such provisions, and (b) each reference to “SPAC” contained in Section 6.3 of the Merger Agreement and “Affiliates” contained in Section 10.14 of the Merger Agreement shall also refer to such Founder Shareholder.

 

 

 

4.11            Consent to Disclosure. Such Founder Shareholder consents to and authorizes the Company or SPAC, as applicable, to publish and disclose in all documents and schedules filed with the SEC or any other Governmental Authority or applicable securities exchange, and any press release or other disclosure document that the Company or SPAC, as applicable, reasonably determines to be necessary or advisable in connection with the Transactions or any other transactions contemplated by the Merger Agreement or this Agreement, such Founder Shareholder’s identity and ownership of the Subject Shares, the existence of this Agreement and the nature of such Founder Shareholder’s commitments and obligations under this Agreement, and such Founder Shareholder acknowledges that the Company or SPAC may, in their sole discretion, file this Agreement or a form hereof with the SEC or any other Governmental Authority or securities exchange. Such Founder Shareholder shall promptly give the Company or SPAC, as applicable, any information that is in its possession that the Company or SPAC, as applicable, may reasonably request for the preparation of any such disclosure documents, and such Founder Shareholder agrees to promptly notify the Company and SPAC of any required corrections with respect to any written information supplied by it specifically for use in any such disclosure document, if and to the extent that such Founder Shareholder shall become aware that any such information shall have become false or misleading in any material respect.

 

4.12            Lock-Up Provisions.

 

(a)            Subject to the exceptions set forth herein, during the Lock-Up Period (as defined below), such Founder Shareholder agrees not to, without the prior written consent of the Company Board, Transfer any Locked-Up Securities held by it. The foregoing limitations shall remain in full force and effect for a period of six (6) months from and after the Closing (such period, the “Lock-Up Period”) with respect to all the Locked-Up Securities; provided that, if any Company Shareholder enters into or is or becomes subject to an agreement relating to the subject matter set forth in this Section 4.12 in connection with the Mergers on terms and conditions less restrictive than those agreed to herein (or such terms and conditions are subsequently relaxed including as a result of a modification, waiver or amendment), then such less restrictive terms and conditions shall, without further action of any of the parties hereto, automatically apply to each Founder Shareholder and any applicable sections of this Agreement shall be deemed amended accordingly. For purpose of this Section 4.12, “Locked-Up Securities” means any Company Ordinary Shares and Company Warrants that are held by each Founder Shareholder immediately after the First Effective Time and any Company Ordinary Shares acquired by such Founder Shareholder upon the conversion, exercise or exchange of the SPAC Warrants or Company Warrants.

 

(b)            The restrictions set forth in Section 4.12(a) (the “Lock-Up Restrictions”) shall not apply to:

 

(i)            in the case of an entity, Transfers to (A) any affiliate (as defined below) of such entity or any director, officer or employee of such affiliates, or their immediate family (as defined below), (B) any officer, director or employee of such entity, or their immediate family, (C) any shareholder, partner or member of such entity or its affiliates;

 

 

(ii)            in the case of Sponsor, to any investment fund or other entity controlled or managed by L Catterton Asia Advisors or any of its Affiliates;

 

(iii)            in the case of an individual, Transfers by gift to members of such individual’s immediate family or to a trust, the beneficiary of which is a member of such individual’s immediate family, an affiliate of such Person or to a charitable organization;

 

(iv)            in the case of an individual, Transfers by virtue of laws of descent and distribution upon death of such individual;

 

(v)            in the case of an individual, Transfers by operation of law or pursuant to a court order, such as a qualified domestic relations order, divorce decree or separation agreement;

 

(vi)            in the case of an individual, Transfers to a partnership, limited liability company or other entity of which such individual and/or the immediate family of such individual is the legal and beneficial owner of all of the outstanding Equity Securities or similar interests;

 

(vii)            in the case of an entity, Transfers by virtue of the Laws of the state of such entity’s organization and such entity’s Organizational Documents upon dissolution of such entity;

 

(viii)            pledges of any Locked-Up Securities to a financial institution that create a mere security interest in such Locked-Up Securities pursuant to a bona fide loan or indebtedness transaction so long as such Founder Shareholder continues to control the exercise of the voting rights of such pledged Locked-Up Securities (as well as any foreclosures on such pledged Locked-Up Securities so long as the transferee in such foreclosure agrees to become a party to this Agreement and be bound by all obligations applicable to such Founder Shareholder, provided that such agreement shall only take effect in the event that the transferee takes possession of the Locked-Up Securities as a result of foreclosure);

 

(ix)            Transfers of any Company Ordinary Shares acquired as part of the PIPE Financing;

 

(x)            transactions relating to Company Ordinary Shares or other securities convertible into or exercisable or exchangeable for Company Ordinary Shares acquired in open market transactions after the Closing, provided that no such transaction is required to be, or is, publicly announced (whether on Form 4, Form 5 or otherwise, other than a required filing on Schedule 13F, 13G or 13G/A) during the applicable Lock-Up Period;

 

 

(xi)            the exercise of any options or warrants to purchase Company Ordinary Shares (which exercises may be effected on a cashless basis to the extent the instruments representing such options or warrants permit exercises on a cashless basis);

 

(xii)            the establishment, at any time after the Closing, by the Company of a trading plan providing for the sale of Company Ordinary Shares that meets the requirements of Rule 10b5-1(c) under the Exchange Act (a “Trading Plan”); provided, however, that no sales of Locked-Up Securities, shall be made by such Founder Shareholder pursuant to such Trading Plan during the Lock-Up Period and no public announcement or filing is voluntarily made regarding such Trading Plan during the Lock-Up Period;

 

(xiii)            Transfers made in connection with a liquidation, merger, share exchange or other similar transaction that results in all of the Company’s shareholders having the right to exchange their Company Ordinary Shares for cash, securities or other property subsequent to the Closing Date; and

 

(xiv)            transactions to satisfy any actual U.S. federal, state, or local income tax payment obligations of any Founder Shareholder (or its direct or indirect owners) directly resulting from such Founder Shareholder’s reporting position regarding the U.S. federal, state, or local income tax treatment of the Mergers;

 

provided, however, that in the case of clauses (i) through (viii), these permitted transferees must enter into a written agreement, in substantially the form of this Agreement, agreeing to be bound by the Lock-Up Restrictions and shall have the same rights and benefits as a Founder Shareholder under this Agreement. For purposes of this paragraph, “affiliate” shall have the meaning set forth in Rule 405 under the Securities Act of 1933, as amended, and “immediate family” means, as to a natural person, such individual’s spouse, former spouse, domestic partner, child (including by adoption), father, mother, brother or sister, and lineal descendant (including by adoption) of any of the foregoing persons.

 

(c)            For the avoidance of doubt, such Founder Shareholder shall retain all of its rights as a shareholder of the Company during the Lock-Up Period, including the right to vote any Locked-Up Securities or receive any dividends or distributions thereon.

 

(d)            In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the registration or transfer of the Locked-Up Securities, are hereby authorized to decline to make any Transfer of securities if such Transfer would constitute a violation or breach of the Lock-Up Restrictions.

 

Article V
Additional Sponsor Agreements; Sponsor Share Forfeiture and Earn-Out

 

5.1            Sponsor Affiliate PIPE Financing and Lock-Up Release.

 

(a)            During the Interim Period, Sponsor shall, and shall cause its Affiliates to, use commercially reasonable efforts to obtain executed Subscription Agreements (the “Sponsor Affiliate Subscription Agreements”) from certain Affiliates of Sponsor as may be approved by the Company from time to time pursuant to which such Affiliates of Sponsor commit to participate in the PIPE Financing (the “Sponsor Affiliate PIPE Financing,” and cash proceeds that will be funded prior to, concurrently with, or immediately after, the Closing to the Company in connection with the Sponsor Affiliate PIPE Financing, the “Sponsor Affiliate PIPE Financing Proceeds”). Notwithstanding anything to the contrary herein, the forfeiture of Sponsor Forfeited Shares pursuant to Section 5.4 shall be the sole remedy for Sponsor’s breach of this Section 5.1(a).

 

 

(b)            Notwithstanding anything to the contrary herein, for every one dollar ($1.00) committed by Sponsor’s applicable Affiliates in any Sponsor Affiliate Subscription Agreements, one Company Warrant held by Sponsor immediately after the First Effective Time shall not be subject to the Lock-Up Restrictions specified in Section 4.12(a) (with any fractional Company Warrants rounded down to the nearest whole number).

 

5.2            Non-Redemption Agreements. At the request of the Company, Sponsor shall on the Closing Date Transfer to one or more SPAC Shareholders up to five percent (5%) of the Sponsor Shares (the “Bonus Shares”) (either directly or indirectly through Sponsor’s forfeiture of such Bonus Shares and SPAC’s subsequent issuance of the same amount of Bonus Shares to the applicable SPAC Shareholders) as consideration to induce such SPAC Shareholder to waive and agree not to elect to or otherwise exercise its SPAC Shareholder Redemption Right (including by having such SPAC Shareholder enter into, execute and deliver a non-redemption agreement) in connection with SPAC Shareholders’ approval of the Transaction Proposals or approval of both the Extension Proposal and the Transaction Proposals, as may be mutually determined by the Company and SPAC. Sponsor and the Company agree that the Transfer of the Bonus Shares shall be subject to the condition that the Transactions are consummated.

 

5.3            Business Collaboration. Following the Closing, Representatives of the Sponsor shall use commercially reasonable efforts to facilitate discussions between Representatives of the Company and Representatives of entities holding brands that may be approved by the Company from time to time (each of such entities, a “Cooperating Entity”), with respect to potential collaborations between the Company and a Cooperating Entity in connection with the following activities of the Company: (i) marketing, (ii) customer engagement, (iii) product development, (iv) retail space, and (v) technology infrastructure development. Notwithstanding anything to the contrary herein, the forfeiture of Sponsor Earn-Out Shares pursuant to Section 5.7(b) shall be the sole remedy for Sponsor’s breach of this Section 5.3.

 

5.4            Sponsor Forfeited Shares. Sponsor hereby agrees that, to the extent Sponsor or its Affiliates fail to obtain any Sponsor Affiliate Subscription Agreements during the Interim Period, then immediately prior to the Closing and prior to the SPAC Class B Conversion pursuant to the SPAC Charter, Sponsor shall surrender to SPAC for cancellation twenty percent (20%) of the Sponsor Shares (the “Sponsor Forfeited Shares”) (rounded down to the nearest whole share). For the avoidance of doubt, if Sponsor or any of its Affiliates obtain any Sponsor Affiliate Subscription Agreements, no forfeiture of the Sponsor Shares shall be required pursuant to this Section 5.4. Notwithstanding anything to the contrary herein, Sponsor may purchase additional securities in SPAC in the open market or from SPAC Shareholders following entry into the Merger Agreement, including in connection with any extension of the Business Combination Deadline, and any additional securities so purchased will not be included in the Sponsor Shares or subject to the restrictions or obligations in this Article V.

 

 

5.5            Sponsor Earn-Out Shares. Sponsor agrees that, immediately prior to the Closing, ten percent (10%) of the Sponsor Shares (the “Sponsor Earn-Out Shares”, rounded down to the nearest whole share) shall (a) first, pursuant to Section 2.3(a) of the Merger Agreement and in connection with the SPAC Class B Conversion, automatically convert to SPAC Class A Ordinary Shares which shall be unvested and be subject to the vesting and forfeiture provisions set forth in Section 5.7, and (b) second, pursuant to Section 2.3(c) of the Merger Agreement and by virtue of the Mergers, automatically convert to Company Class A Ordinary Shares and remain unvested and be subject to the vesting and forfeiture provisions set forth in Section 5.7. For the avoidance of doubt, the parties acknowledge that the remaining Sponsor Shares (after deducting the Sponsor Forfeited Shares and Sponsor Earn-Out Shares) will be fully vested as of the Closing and not subject to any of the restrictions set forth in Section 5.6 and Section 5.7.

 

5.6            Lock-Up of Sponsor Earn-Out Shares. Sponsor shall not Transfer any Sponsor Earn-Out Shares until the date on which such Sponsor Earn-Out Share vests pursuant to Section 5.7. Until each Sponsor Earn-Out Share vests, any certificate representing such Sponsor Earn-Out Share shall bear a legend referencing that such Sponsor Earn-Out Share is subject to forfeiture pursuant to the provisions of this Agreement, and the Company shall be authorized to instruct its transfer agent to implement appropriate stop transfer orders that will be applicable until such Sponsor Earn-Out Share vests. Notwithstanding anything to the contrary in this Agreement, the exceptions to the Lock-Up Restrictions in clauses (i) through (xiv) of Section 4.12(b) shall apply fully to this Section 5.6, so long as (1) such Transfer is in compliance with any applicable Securities Laws and (2) any transferee thereof enters into a written agreement, in a form reasonably acceptable to the Company, and agrees to be bound by the vesting and forfeiture provisions set forth in Section 5.7 and to receive the rights of a holder of the Sponsor Earn-Out Shares hereunder.

 

5.7            Vesting and Forfeiture of Sponsor Earn-Out Shares.

 

(a)            The Sponsor Earn-Out Shares shall fully vest (and shall not be subject to the restrictions and forfeiture provisions set forth in this Article V, including, for the avoidance of doubt, Section 5.6) upon the occurrence of the Triggering Event. For purposes of this Section 5.7(a), “Triggering Event” means the commencement or official announcement of any business collaborations facilitated by Sponsor or Sponsor’s Affiliates between the Company or its applicable Affiliates, on the one hand, and any Cooperating Entity, on the other hand (including, without limitation, in connection with product development, marketing, customer engagement, retail space, and technology infrastructure development).

 

(b)            To the extent the Triggering Event does not occur on or prior to the second (2nd) anniversary of the Closing Date (the “Earn-Out Period”), all Sponsor Earn-Out Shares (including any dividends or other distributions that may be received by Sponsor in respect of any Sponsor Earn-Out Share) shall immediately thereafter be forfeited to the Company and cancelled and Sponsor shall not have any rights with respect thereto. Any forfeiture of Company Ordinary Shares, and all references to forfeiture of Company Ordinary Shares, described in this Agreement shall take effect as a surrender of Company Ordinary Shares for no consideration as a matter of Cayman Islands law.

 

 

(c)            For the avoidance of doubt, any Company Ordinary Shares beneficially owned by Sponsor other than the Sponsor Earn-Out Shares, shall not be subject to the vesting and forfeiture provisions set forth in this Section 5.7.

 

5.8            Rights of Sponsor Earn-Out Shares. Notwithstanding anything set forth herein, prior to the date that a Sponsor Earn-Out Share is no longer subject to the vesting and forfeiture provisions set forth in Section 5.7, Sponsor will remain entitled to all of the other rights of a holder of Company Ordinary Shares, including to (i) exercise voting rights carried by any Sponsor Earn-Out Share and (ii) receive any dividends or other distributions in respect of any Sponsor Earn-Out Share, provided, however, any such dividends or other distributions are subject to the forfeiture provisions set forth in Section 5.7(b).

 

5.9            Voting Stock. The parties hereto agree and acknowledge that the Sponsor Earn-Out Shares are intended to constitute “voting stock” within the meaning of Section 368(a)(1) of the Code and the Treasury Regulations promulgated thereunder received by Sponsor in connection with the Mergers, and shall file all Tax Returns consistent with, and take no position inconsistent with (whether in audits, Tax Returns or otherwise) such treatment.

 

5.10            Equitable Adjustment. If, during the period between Closing and prior to the expiration of the Earn-Out Period, the Company shall pay a dividend on Company Ordinary Shares by the issuance of additional Company Ordinary Shares, or effect a subdivision or combination or consolidation of the issued and outstanding Company Ordinary Shares (by reclassification or otherwise) into a greater or lesser number of Company Ordinary Shares, then in each such case, the number of Sponsor Earn-Out Shares shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of Company Ordinary Shares (including any other shares so reclassified as Company Ordinary Shares) issued and outstanding immediately after such event and the denominator of which is the number of Company Ordinary Shares that were issued and outstanding immediately prior to such event.

 

Article VI
General Provisions

 

6.1            Mutual Release.

 

(a)            Founder Shareholder Release. Each Founder Shareholder, on its own behalf and on behalf of each of its Affiliates (other than SPAC) and each of its and their successors, assigns and executors (each, a “Founder Shareholder Releasor”), effective as at the First Effective Time, shall be deemed to have, and hereby does, irrevocably, unconditionally, knowingly and voluntarily release, waive, relinquish and forever discharge the Company, SPAC, their respective Subsidiaries and each of their respective successors, assigns, heirs, executors, officers, directors, partners, managers and employees (in each case in their capacity as such) (each, a “Founder Shareholder Releasee”), from (x) any and all obligations or duties the Company, SPAC or any of their respective Subsidiaries has prior to or as of the First Effective Time to such Founder Shareholder Releasor or (y) all claims, demands, Liabilities, defenses, affirmative defenses, setoffs, counterclaims, actions and causes of action of whatever kind or nature, whether known or unknown, which any Founder Shareholder Releasor has prior to or as of the First Effective Time, against any Founder Shareholder Releasee arising out of, based upon or resulting from any Contract, transaction, event, circumstance, action, failure to act or occurrence of any sort or type, whether known or unknown, and which occurred, existed, was taken, permitted or begun prior to the First Effective Time (except in the event of fraud on the part of a Founder Shareholder Releasee); provided, however, that nothing contained in this Section 6.1(a) shall release, waive, relinquish, discharge or otherwise affect the rights or obligations of any party (i) arising under this Agreement, the Merger Agreement, the other Transaction Documents or SPAC’s Organizational Documents, (ii) for indemnification or contribution, in any Founder Shareholder Releasor’s capacity as an officer or director of SPAC, (iii) arising under any then-existing insurance policy of SPAC, or (iv) for any claim for fraud.

 

 

(b)            Company Release. Each of the Company, SPAC and their respective Subsidiaries and each of its and their successors, assigns and executors (each, a “Company Releasor”), effective as at the First Effective Time, shall be deemed to have, and hereby does, irrevocably, unconditionally, knowingly and voluntarily release, waive, relinquish and forever discharge each Founder Shareholder and its respective successors, assigns, heirs, executors, officers, directors, partners, members, managers and employees (in each case in their capacity as such) (each, a “Company Releasee”), from (x) any and all obligations or duties such Company Releasee has prior to or as of the First Effective Time to such Company Releasor or (y) all claims, demands, Liabilities, defenses, affirmative defenses, setoffs, counterclaims, actions and causes of action of whatever kind or nature, whether known or unknown, which any Company Releasor has, may have or might have or may assert now or in the future, against any Company Releasee arising out of, based upon or resulting from any Contract, transaction, event, circumstance, action, failure to act or occurrence of any sort or type, whether known or unknown, and which occurred, existed, was taken, permitted or begun prior to the First Effective Time (except in the event of fraud on the part of a Company Releasee); provided, however, that nothing contained in this Section 6.1(b) shall release, waive, relinquish, discharge or otherwise affect the rights or obligations of any party (i) arising under this Agreement, the Merger Agreement or the other Transaction Documents or (ii) for any claim for fraud.

 

6.2         Termination. This Agreement shall terminate upon the earlier of:

 

(a)             the Closing, provided, however, that upon such termination, (i) Section 4.3, Section 4.7, Section 4.9, this Section 6.2, Section 6.4, Section 6.7 and Section 6.8 shall survive indefinitely; and (ii) Section 4.12, and Section 6.3 shall survive until the date on which none of the Company, the Founder Shareholders or any holder of a Locked-Up Security (as defined below) has any rights or obligations hereunder;

 

(b)            the termination of the Merger Agreement in accordance with its terms; and

 

(c)            the written agreement of the Founder Shareholders, SPAC and the Company;

 

and upon a termination of this Agreement pursuant to Sections 6.2(b) or 6.2(c), no party shall have any liability hereunder other than for its actual fraud or willful and material breach of this Agreement prior to such termination.

 

 

6.3            Legends. The Company shall remove, and shall cause to be removed (including by causing its transfer agent to remove), any legends, marks, stop-transfer instructions or other similar notations pertaining to the lock-up arrangements herein from the certificates or the book-entries evidencing any Locked-Up Securities at the time any such share is no longer subject to the Lock-Up Restrictions (any such Locked-Up Security, a “Free Security”), and shall take all such actions (and shall cause to be taken all such actions) necessary or proper to cause the Free Securities to be consolidated under the CUSIP(s) and/or ISIN(s) applicable to the unrestricted Company Ordinary Shares or Company Warrants so that the Free Securities are in a like position. Any holder of a Locked-Up Security is an express third-party beneficiary of this Section 6.3 and entitled to enforce specifically the obligations of the Company set forth in this Section 6.3 directly against the Company.

 

6.4            Notice. All general notices, demands or other communications required or permitted to be given or made hereunder shall be in writing and delivered personally or sent by courier or sent by registered post or sent by electronic mail to the Company and SPAC in accordance with Section 10.3 of the Merger Agreement and to each Founder Shareholder at its, his or her address set forth on Schedule A hereto (or at such other address or email address as a party may from time to time notify the other parties by like notice).

 

Any such notice, demand or communication shall be deemed to have been duly served (a) if given personally or sent by courier, upon delivery during normal business hours at the location of delivery or, if later, then on the next Business Day after the day of delivery; (b) if sent by electronic mail during normal business hours at the location of delivery, immediately, or, if later, then on the next Business Day after the day of delivery; (c) the third Business Day following the day sent by reputable international overnight courier (with written confirmation of receipt); and (d) if sent by registered post, five (5) days after posting.

 

6.5            Entire Agreement; Amendment. This Agreement constitutes the entire agreement among the parties hereto relating to the subject matter hereof and the transactions contemplated hereby and supersedes any other agreements, whether written or oral, that may have been made or entered into by or between the parties hereto or any of their respective Subsidiaries relating to the subject matter hereof or the transactions contemplated hereby. This Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by all parties hereto.

 

6.6            Assignment. Other than in connection with the Transfer of any Subject Shares or Locked-Up Securities in accordance with the terms of this Agreement, which shall not be deemed to be an assignment of this Agreement or the rights or obligations hereunder, no party hereto shall assign this Agreement or any part hereof without the prior written consent of the other parties hereto and any such transfer without prior written consent shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.

 

6.7            Governing Law. This Agreement, and any claim or cause of action hereunder based upon, arising out of or related to this Agreement (whether based on law, in equity, in contract, in tort or any other theory) or the negotiation, execution, performance or enforcement of this Agreement, shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to the principles of conflicts of laws that would otherwise require the application of the law of another jurisdiction.

 

 

6.8            Consent to Jurisdiction; Waiver of Trial by Jury. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK COUNTY, STATE OF NEW YORK (OR ANY APPELLATE COURTS THEREFROM) SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION, SUIT OR PROCEEDING SHALL BE HEARD AND DETERMINED BY ANY SUCH COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 6.4 OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE THEREOF. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES THE FOREGOING WAIVER VOLUNTARILY AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 6.8.

 

6.9            Enforcement. The parties hereto agree that irreparable damage, for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the parties do not perform their obligations under any of the provisions of this Agreement (including failing to take such actions as are required of them hereunder to consummate the transactions contemplated by this Agreement) in accordance with their specific terms or otherwise breach such provisions. It is accordingly agreed that the parties hereto shall be entitled to seek an injunction or injunctions, specific performance or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, without proof of damages, prior to the valid termination of this Agreement in accordance with Section 6.2, this being in addition to any other remedy to which any party is entitled at law or in equity. In the event that any Action shall be brought in equity to enforce the provisions of this Agreement, no party shall allege, and each party hereby waives the defense, that there is an adequate remedy at law, and each party agrees to waive any requirement for the securing or posting of any bond in connection therewith.

 

 

6.10            Counterparts. This Agreement may be executed in two or more counterparts (any of which may be delivered by electronic transmission), each of which shall constitute an original, and all of which taken together shall constitute one and the same instrument. This Agreement may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or www.echosign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. Delivery by email to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentences.

 

6.11            Miscellaneous. The provisions of Section 1.2 of the Merger Agreement are incorporated herein by reference, mutatis mutandis, as if set forth in full herein.

 

[Signature pages follow]

 

 

IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement to be duly executed as of the date hereof.

 

 

	L Catterton Asia Acquisition Corp
	By:	/s/ Chinta Bhagat
		Name:	Chinta Bhagat
		Title:	Co-Chief Executive Officer

 

[Signature Page to Sponsor Support Agreement]

 

 

 

IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement to be duly executed as of the date hereof.

 

	Lotus Technology Inc.
	By:	/s/ FENG Qingfeng
		Name:	FENG Qingfeng
		Title:	Director

 

[Signature Page to Sponsor Support Agreement]

 

 

IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement to be duly executed as of the date hereof.

 

	LCA Acquisition Sponsor, LP
	By:	LCA Acquisition Sponsor GP Limited, its general partner
	By:	/s/ James Steinthal
		Name:	James Steinthal
		Title:	Director

 

[Signature Page to Sponsor Support Agreement]

 

 

IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement to be duly executed as of the date hereof.

 

	SANFORD MARTIN LITVACK
	By:	/s/ Sanford Martin Litvack
		Name:	Sanford Martin Litvack
		Title:	Director

 

[Signature Page to Sponsor Support Agreement]

 

 

IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement to be duly executed as of the date hereof.

 

	frank n. newman
	By:	/s/ Frank N. Newman
		Name:	Frank N. Newman
		Title:	Director

 

[Signature Page to Sponsor Support Agreement]

 

 

IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement to be duly executed as of the date hereof.

 

	anish melwani
	By:	/s/ Anish Melwani
		Name:	Anish Melwani
		Title:	Director

 

[Signature Page to Sponsor Support Agreement]

 

 

SCHEDULE A

 

Name of Founder Shareholder	Number of SPAC Class B Shares	Number of SPAC Warrants	Address for Notice
Sponsor	7,087,718	5,486,784	8 Marina View, Asia Square Tower 1#41-03, Singapore
Sanford Martin Litvack	25,000	-
Frank N. Newman	25,000	-
Anish Melwani	25,000	-

 

 

 

Exhibit 10.5

 

Shareholder SUPPORT AGREEMENT

 

This SHAREHOLDER SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of January 31, 2023, by and among Lotus Technology Inc., an exempted company limited by shares incorporated under the laws of the Cayman Islands (the “Company”), L Catterton Asia Acquisition Corp, an exempted company limited by shares incorporated under the laws of the Cayman Islands (“SPAC”), and the shareholders of the Company set forth on Schedule A hereto (each, a “Shareholder” and collectively, the “Shareholders”).

 

WHEREAS, capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed thereto in the Agreement and Plan of Merger (as may be amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Merger Agreement”) dated as of the date hereof, entered into by and among the Company, Lotus Temp Limited, an exempted company limited by shares incorporated under the laws of the Cayman Islands and a direct wholly owned subsidiary of the Company (“Merger Sub 1”), Lotus EV Limited, an exempted company limited by shares incorporated under the laws of the Cayman Islands and a direct wholly owned subsidiary of the Company (“Merger Sub 2”), and SPAC, pursuant to which, among other things, (i) Merger Sub 1 will merge with and into SPAC, with SPAC surviving the First Merger as a wholly owned subsidiary of the Company (the “First Merger”), and (ii) SPAC will merge with and into Merger Sub 2, with Merger Sub 2 surviving the Second Merger as a wholly owned subsidiary of the Company (the “Second Merger” and together with the First Merger, collectively, the “Mergers”);

 

WHEREAS, each Shareholder is, as of the date of this Agreement, the sole beneficial and legal owner of such number of Ordinary Shares and Preferred Shares of the Company set forth opposite such Shareholder’s name on Schedule A hereto (with respect to such Shareholder, all such Ordinary Shares and Preferred Shares being collectively referred to herein as its “Owned Shares”; and the Owned Shares, any Company Shares, any Company Ordinary Shares or any securities convertible into or exercisable or exchangeable for Company Shares or Company Ordinary Shares, as the case may be, acquired by such Shareholder after the date of this Agreement and during the term of this Agreement, including upon exercise of Company Options, being collectively referred to herein as the “Subject Shares” of such Shareholder); and

 

WHEREAS, as a condition to their willingness to enter into the Merger Agreement, the Company and SPAC have requested that each Shareholder enter into this Agreement.

 

NOW, THEREFORE, in consideration of the premises set forth above, which are incorporated into this Agreement as if fully set forth below, and intending to be legally bound hereby, the parties hereto agree as follows:

 

Article I
Representations and Warranties of the Shareholders

 

Each Shareholder hereby represents and warrants to the Company and SPAC as follows:

 

1.1            Corporate Organization. Such Shareholder has been duly formed, validly existing and in good standing under the Laws of its jurisdiction of incorporation or registration and has the requisite power and authority to own, lease or operate its assets and properties and to conduct its business as it is now being conducted.

 

 

1.2            Due Authorization. Such Shareholder has all requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized and no other corporate or equivalent proceeding on the part of such Shareholder is necessary to authorize the execution and delivery of this Agreement or such Shareholder’s performance hereunder or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by such Shareholder and, assuming due authorization and execution by each other party hereto, constitutes a legal, valid and binding obligation of such Shareholder, enforceable against such Shareholder in accordance with its terms, subject to the Enforceability Exceptions.

 

1.3            Governmental Authorities; Consents. No consent of or with any Governmental Authority on the part of such Shareholder is required to be obtained or made in connection with the execution, delivery or performance by such Shareholder of this Agreement or the consummation by such Shareholder of the transactions contemplated hereby, other than (a) applicable requirements, if any, of the Securities Act, the Exchange Act, and/ or any state “blue sky” securities Laws, and the rules and regulations thereunder and (b) where the failure to obtain or make such consents or to make such filings or notifications would not reasonably be expected to prevent, impede or, in any material respect, delay or adversely affect the execution and performance by such Shareholder of its obligations under this Agreement or the consummation of the transactions contemplated hereby.

 

1.4            No-Conflict. The execution, delivery and performance by such Shareholder of this Agreement do not and will not (a) contravene or conflict with or violate any provision of, or result in the breach of the Organizational Documents of such Shareholder, (b) contravene or conflict with or result in a violation of any provision of any Law or Governmental Order binding upon or applicable to such Shareholder or any of its properties or assets, (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination or acceleration of, or a right of termination, cancellation, modification, acceleration or amendment under, accelerate the performance required by, any of the terms, conditions or provisions of any Contract to which such Shareholder is a party, or (d) result in the creation or imposition of any Encumbrance on any properties or assets of such Shareholder, except in the case of each of clauses (b) through (d) that do not, and would not reasonably be expected to, prevent, impede or, in any material respect, delay or adversely affect the performance by such Shareholder of its obligations under this Agreement or the consummation of the transactions contemplated hereby.

 

1.5            Subject Shares. Subject to any Transfer permitted under Section 4.2, such Shareholder is the sole legal and beneficial owner of the Subject Shares, and all such Subject Shares are owned by such Shareholder free and clear of all Encumbrances, other than Encumbrances pursuant to this Agreement, the other Transaction Documents, the Organizational Documents of the Company, the Shareholders Agreement and any applicable securities Laws. Such Shareholder does not legally or beneficially own any shares of the Company other than the Subject Shares. Such Shareholder has the sole right to vote the Subject Shares (to the extent such securities have voting rights), and none of the Subject Shares is subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Subject Shares, except as contemplated by (i) this Agreement, (ii) the Shareholders Agreement and (iii) the Company Charter.

 

 

1.6            Acknowledgement. Such Shareholder understands and acknowledges that each of the Company and SPAC is entering into the Merger Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement. Such Shareholder has received a copy of the Merger Agreement and is familiar with the provisions of the Merger Agreement.

 

1.7            Absence of Litigation. As of the date hereof, there is no action, suit, investigation or proceeding pending against, or, to the knowledge of such Shareholder, threatened against, such Shareholder or any of such Shareholder’s properties or assets (including such Shareholder’s Owned Shares) that could reasonably be expected to prevent, delay or impair the ability of such Shareholder to perform its obligations hereunder or to consummate the transactions contemplated hereby.

 

1.8            Adequate Information. Such Shareholder is a sophisticated shareholder and has adequate information concerning the business and financial condition of SPAC and the Company to make an informed decision regarding this Agreement and the transactions contemplated by the Merger Agreement, and has independently and without reliance upon SPAC or the Company and based on such information as such Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Shareholder acknowledges that SPAC and the Company have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement or the Merger Agreement. Such Shareholder acknowledges that the agreements contained herein with respect to the Subject Shares held by such Shareholder are irrevocable and shall only terminate pursuant to Section 5.2 hereof.

 

1.9            Restricted Securities. Such Shareholder understands that the Company Ordinary Shares to be held by it immediately following the consummation of the Mergers will be “restricted securities” under applicable U.S. federal and state securities Laws and, if such Shareholder is an affiliate of the Company, “control securities” as such term is used under Rule 144 promulgated under the Securities Act, and that, pursuant to these Laws, such Shareholder must hold such Company Ordinary Shares indefinitely unless (a) they are registered with the SEC and qualified by state authorities, or (b) an exemption from such registration and qualification requirements is available, and that any certificates or book entries representing the Company Ordinary Shares shall contain a legend to such effect.

 

 

Article II
Representations and Warranties of SPAC

 

SPAC hereby represents and warrants to the Company and each Shareholder as follows:

 

2.1            Corporate Organization. SPAC is an exempted company duly incorporated, validly existing and in good standing under the Laws of the Cayman Islands and has the requisite corporate power and authority to own, lease or operate its assets and properties and to conduct its business as it is now being conducted.

 

2.2            Due Authorization. SPAC has all requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized and approved by the board of directors of SPAC and no other corporate or equivalent proceeding on the part of SPAC is necessary to authorize the execution and delivery of this Agreement or SPAC’s performance hereunder or to consummate the transactions contemplated hereby (except that the SPAC Shareholders’ Approval is a condition to the respective obligations of each party to the Merger Agreement to consummate the Mergers). This Agreement has been duly and validly executed and delivered by SPAC and, assuming due authorization and execution by each other party hereto, constitutes a legal, valid and binding obligation of SPAC, enforceable against SPAC in accordance with its terms, subject to the Enforceability Exceptions.

 

2.3            No-Conflict. Subject to Section 4.5 of the SPAC Disclosure Letter and obtaining the SPAC Shareholders’ Approval, the execution, delivery and performance by SPAC of this Agreement and the consummation of the transactions by SPAC contemplated hereby do not and will not (a) contravene or conflict with or violate any provision of, or result in the breach of the Organizational Documents of SPAC, (b) contravene or conflict with or result in a violation of any provision of any Law, Permit or Governmental Order binding upon or applicable to SPAC or any of its properties or assets, (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination or acceleration of, or a right of termination, cancellation, modification, acceleration or amendment under, accelerate the performance required by, any of the terms, conditions or provisions of any Contract to which SPAC is a party, or (d) result in the creation or imposition of any Encumbrance upon any of the properties or assets of SPAC (including the Trust Account), except in the case of each of clauses (b) through (d) that do not, and would not reasonably be expected to, prevent, impede or, in any material respect, delay or adversely affect the performance by SPAC of its obligations under this Agreement or the consummation of the transactions contemplated hereby.

 

Article III
Representations and Warranties of the Company

 

The Company hereby represents and warrants to SPAC and each Shareholder as follows:

 

3.1            Corporate Organization. The Company is an exempted company duly incorporated, is validly existing and is in good standing under the Laws of the Cayman Islands and has the requisite corporate power and authority to own, lease or operate its assets and properties and to conduct its business as it is now being conducted.

 

3.2            Due Authorization. The Company has the requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by the Company Board, and no other corporate proceeding on the part of the Company is necessary to authorize this Agreement or the Company’s performance hereunder (except that the Company Shareholders’ Approval is a condition to the respective obligations of each party to the Merger Agreement to consummate of the Transactions). This Agreement has been duly and validly executed and delivered by the Company and, assuming due and valid authorization, execution and delivery by each other party hereto, constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions.

 

 

3.3            No-Conflict. The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby do not and will not, (a) contravene or conflict with, violate any provision of, trigger shareholder rights that have not been duly waived under, or result in the breach of the Organizational Documents of the Company or any of its Subsidiaries, (b) contravene or conflict with or constitute a violation of any provision of any Law, Material Permit or Governmental Order binding upon or applicable to the Company or any of its Subsidiaries or any of their respective properties or assets, (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination or acceleration of, or a right of termination, cancellation, modification, acceleration or amendment under, accelerate the performance required by, any of the terms, conditions or provisions of any Contracts to which the Company is a party, or (d) result in the creation or imposition of any Encumbrance on any properties or assets or Equity Security of the Company or any of its Subsidiaries (other than any Permitted Encumbrance), except in the case of clauses (b) through (d) above that do not, and would not reasonably be expected to prevent, impede or, in any material respect, delay or adversely affect the performance by the Company of its obligations under this Agreement or the consummation of the transactions contemplated hereby.

 

Article IV
Agreement to Vote; Certain Other Covenants of the Shareholders

 

Each Shareholder covenants and agrees during the term of this Agreement as follows:

 

4.1            Agreement to Vote.

 

(a)            In Favor of the Company Shareholders’ Approval. From the date of this Agreement until the date of termination of this Agreement, at any meeting of the Company Shareholders called to seek the Company Shareholders’ Approval, including any extraordinary general meeting (as defined in the Company Charter), or at any adjournment thereof or postponement thereof, or in connection with any written consent or written resolutions of the Company Shareholders (or any of them) or in any other circumstances upon which a vote, consent or other approval with respect to the Transactions, the Merger Agreement or any other Transaction Documents is sought, such Shareholder shall (i) if a meeting is held, appear at such meeting in person or by proxy or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum, and (ii) vote or cause to be voted (including by proxy, withholding class vote and/or written consent or written resolutions, if applicable) the Subject Shares in favor of granting the Company Shareholders’ Approval or, if there are insufficient votes in favor of granting the Company Shareholders’ Approval, in favor of the adjournment or postponement of such meeting of the Company Shareholders to a later date.

 

 

(b)            Against Other Transactions. From the date of this Agreement until the date of termination of this Agreement, at any meeting of the Company Shareholders or at any adjournment or postponement thereof, or in connection with any written consent or written resolutions of the Company Shareholders (or any of them) or in any other circumstances upon which such Shareholder’s vote, consent or other approval is sought, such Shareholder shall (i) if a meeting is held, appear at such meeting in person or by proxy or otherwise cause the Subject Shares to be counted as present at such meeting for purposes of establishing a quorum, (ii) vote (or cause to be voted) the Subject Shares (including by proxy, withholding class vote and/or written consent or written resolutions, if applicable) against (v) any business combination agreement, merger agreement or merger, scheme of arrangement, business combination, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company or any public offering of any Equity Securities of the Company (other than the Merger Agreement and the Transactions), (w) other than in connection with the Transactions, any Company Acquisition Proposal, (x) allowing the Company to execute or enter into, any agreement related to a Company Acquisition Proposal other than in connection with the Transactions, or (y) any amendment of Organizational Documents of the Company (other than in connection with the Transactions), or entering into any agreement or agreement in principle or other proposal or transaction involving the Company or any of its Subsidiaries, which amendment, agreement or other proposal or transaction would be reasonably likely to in any material respect impede, interfere with, delay or attempt to discourage, frustrate the purposes of, result in a breach by the Company of, result in the termination or failure to consummate of, or nullify any provision of, the Merger Agreement or any other Transaction Document, the Transactions or change in any manner the voting rights of any class of the Company’s share capital.

 

(c)            Revoke Other Proxies. Such Shareholder represents and warrants that any proxies or powers of attorney heretofore given in respect of the Subject Shares that may still be in effect are not irrevocable, and such proxies or powers of attorney have been or are hereby revoked.

 

(d)            Irrevocable Proxy and Power of Attorney. Such Shareholder hereby unconditionally and irrevocably grants to, and appoints, the Company and any individual designated in writing by the Company, and each of them individually, as such Shareholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of such Shareholder, to vote the Subject Shares, or grant a written consent or approval in respect of the Subject Shares, in a manner consistent with Section 4.1(a). Such Shareholder understands and acknowledges that the Company is entering into the Merger Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement. Such Shareholder hereby affirms that the irrevocable proxy and power of attorney set forth in this Section 4.1(d) are given in connection with the execution of the Merger Agreement, and that such irrevocable proxy and power of attorney are given to secure a proprietary interest and may under no circumstances be revoked. Such Shareholder hereby ratifies and confirms all that such irrevocable proxy and power of attorney may lawfully do or cause to be done by virtue hereof. SUCH IRREVOCABLE PROXY AND POWER OF ATTORNEY IS EXECUTED AND INTENDED TO BE IRREVOCABLE IN ACCORDANCE WITH THE PROVISIONS OF THE POWERS OF ATTORNEY ACT (AS REVISED) OF THE CAYMAN ISLANDS. The irrevocable proxy and power of attorney granted hereunder shall automatically terminate upon the termination of this Agreement.

 

 

4.2            No Transfer. From the date of this Agreement until the date of termination of this Agreement, such Shareholder shall not, directly or indirectly, (i) (a) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option, right or warrant to purchase or otherwise transfer, dispose of or agree to transfer or dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, and the rules and regulations of the SEC promulgated thereunder, with respect to any Subject Share, (b) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Subject Shares, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) publicly announce any intention to effect any transaction specified in clause (a) or (b) (the actions specified in clauses (a) to (c), collectively, “Transfer”), (ii) grant any proxies or powers of attorney or enter into any voting arrangement, whether by proxy, voting agreement, voting trust, voting deed or otherwise (including pursuant to any loan of Subject Shares), or enter into any other agreement, with respect to any Subject Shares, in each case, other than as set forth in this Agreement or the Merger Agreement or other Transaction Documents, (iii) take any action that would reasonably be expected to make any representation or warranty of such Shareholder herein untrue or incorrect, or would reasonably be expected to have the effect of preventing or disabling any Shareholder from performing its obligations hereunder, or (iv) commit or agree to take any of the foregoing actions. Notwithstanding the foregoing, such Shareholder may make Transfers of the Subject Shares (A) pursuant to this Agreement, (B) upon the consent of the Company and SPAC, and (C) by virtue of such Shareholder’s Organizational Documents upon liquidation or dissolution of such Shareholder; provided that, in each case of clauses (A) through (C), the power to vote (including, without limitation, by proxy or power of attorney) and otherwise fulfill such Shareholder’s obligations under this Agreement is not relinquished or prior to, and as a condition to the effectiveness of any such Transfer, such transferee shall enter into a written agreement, in form and substance reasonably satisfactory to the Company and SPAC, agreeing to be bound by this Agreement to the same extent as such Shareholder was with respect to such transferred Subject Shares; provided, further, that in the case of clause (C), the transferee will not be required to assume voting obligations if the transferee’s assumption of such obligations would violate any applicable Laws, including any securities Laws, or would reasonably be expected to materially delay or impede the Registration Statement or Proxy Statement being declared effective under the Securities Act. Any action attempted to be taken in violation of the preceding sentence will be null and void.

 

4.3            Waiver of Anti-Dilution Protection. Such Shareholder hereby waives, and agrees not to exercise, assert or claim, to the fullest extent permitted by applicable Law, the anti-dilution protection pursuant to the Company Charter (for the avoidance of doubt, including without limitation, any anti-dilution adjustment pursuant to Article 121 of the Company Charter) in connection with the Transactions.

 

 

4.4            No Redemption. Such Shareholder irrevocably and unconditionally agrees that, from the date hereof and until the termination of this Agreement, such Shareholder shall not elect to cause the Company to redeem any Subject Shares now or at any time legally or beneficially owned by such Shareholder, or submit or surrender any of its Subject Shares for redemption, in each case, pursuant to the Company Charter or the Shareholders Agreement (for the avoidance of doubt, including without limitation, Articles 106 to 109 of the Company Charter and Section 11 of the Shareholders Agreement).

 

4.5            New Securities. In the event that prior to the Closing (a) any Company Shares or other securities are issued or otherwise distributed to such Shareholder, including, without limitation, pursuant to any share dividend or distribution, or any change occurs in any of the Company Shares or other share capital of the Company by reason of any share subdivision, recapitalization, combination, reverse share split, consolidation, exchange of shares or the like, (b) such Shareholder acquires legal or beneficial ownership of any Company Shares after the date of this Agreement, including upon exercise of options, or (c) such Shareholder acquires the right to vote or share in the voting of any Company Shares after the date of this Agreement (collectively, the “New Securities”), the term “Subject Shares” shall be deemed to refer to and include such New Securities (including all such share dividends and distributions and any securities into which or for which any or all of the Subject Shares may be changed or exchanged into).

 

4.6            Shareholders’ Consent, Authorization or Approval. Such Shareholder hereby irrevocably agrees and confirms that, insofar as such Shareholder’s consent, authorization or approval is required in respect of or in connection with the Transactions, including without limitation, the matters as set out in items (a) and (l) of Part I of Schedule A of the Shareholders Agreement and as may be required by Article 30 (Reserved Matters) and Article 117 (Amendment of the Memorandum and Articles) of the Company Charter, such Shareholder hereby grants, provides and gives such consent, authorization or approval, and all specific resolutions that may be required to have been adopted by such Shareholder or class of shareholders in connection with the Transactions are hereby deemed adopted and approved by such Shareholder. To the extent a director appointed by such Shareholder will not serve as a director of the Company after the Closing, upon request of the Company, such Shareholder shall deliver a written notice to the Company to remove such director or cause such director to execute and deliver a resignation letter to the Company providing for such director’s resignation from the Company Board at the First Effective Time.

 

4.7            Existing Shareholders Agreement. Each Shareholder and the Company hereby agrees that, in accordance with the terms thereof, (i) the Shareholders Agreement, (ii) any rights of such Shareholder under the Shareholders Agreement and (iii) any rights under any other agreement providing for redemption rights, put rights, purchase rights or other similar rights not generally available to the Company Shareholders, shall be terminated effective as of the First Effective Time, and thereupon shall be of no further force or effect, without any further action on the part of any of the Shareholders or the Company, and neither the Company, the Shareholders, nor any of their respective affiliates or subsidiaries shall have any further rights, duties, liabilities or obligations thereunder and each Shareholder and the Company hereby releases in full any and all claims with respect thereto with effect on and from the First Effective Time.

 

 

4.8            Additional Matters. Such Shareholder shall, from time to time, (i) execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments as the Company or SPAC may reasonably request for the purpose of effectively consummating the transactions contemplated by this Agreement, the Merger Agreement and the other Transaction Documents and (ii) refrain from exercising any veto right, consent right or similar right (whether under the Organizational Documents of the Company or the Cayman Act) which would prevent, impede or, in any material respect, delay or adversely affect the consummation of the Transactions.

 

4.9            Acquisition Proposals; Confidentiality. Such Shareholder shall be bound by and comply with Section 5.5 (Acquisition Proposals and Alternative Transactions) and Section 10.14 (Confidentiality) of the Merger Agreement (and any relevant definitions contained in any such sections) as if (a) such Shareholder was an original signatory to the Merger Agreement with respect to such provisions, and (b) each reference to “the Company” contained in Section 5.5 of the Merger Agreement and “Affiliates” contained in Section 10.14 of the Merger Agreement shall also refer to such Shareholder.

 

4.10            Consent to Disclosure. Such Shareholder consents to and authorizes the Company or SPAC, as applicable, to publish and disclose in all documents and schedules filed with the SEC or any other Governmental Authority or applicable securities exchange, and any press release or other disclosure document that the Company or SPAC, as applicable, reasonably determines to be necessary or advisable in connection with the Transactions or any other transactions contemplated by the Merger Agreement or this Agreement, such Shareholder’s identity and ownership of the Subject Shares, the existence of this Agreement and the nature of such Shareholder’s commitments and obligations under this Agreement, and such Shareholder acknowledges that the Company or SPAC may, in their sole discretion, file this Agreement or a form hereof with the SEC or any other Governmental Authority or securities exchange. Such Shareholder shall promptly give the Company or SPAC, as applicable, any information that is in its possession that the Company or SPAC, as applicable, may reasonably request for the preparation of any such disclosure documents, and such Shareholder agrees to promptly notify the Company and SPAC of any required corrections with respect to any written information supplied by it specifically for use in any such disclosure document, if and to the extent that such Shareholder shall become aware that any such information shall have become false or misleading in any material respect.

 

4.11            Lock-Up Provisions.

 

(a)            Subject to the exceptions set forth herein, during the Lock-Up Period (as defined below), such Shareholder agrees not to, without the prior written consent of the Company Board, Transfer any Locked-Up Shares held by it. The foregoing limitations shall remain in full force and effect for a period of six (6) months from and after the Closing (such period, the “Lock-Up Period”) with respect to all the Locked-Up Shares; provided that, if the Company permits any amendment or modification to, or any waiver (in whole or in part) of any provisions under the Sponsor Support Agreement such that the terms and conditions of lock-up applicable to any Founder Shareholder (as defined in the Sponsor Support Agreement) become less restrictive than those agreed to herein, then such less restrictive terms and conditions shall, without further action of any of the parties hereto, automatically apply to each Shareholder and any applicable sections of this Agreement shall be deemed amended accordingly. For purpose of this Section 4.11, “Locked-Up Shares” means any Company Ordinary Shares that are held by such Shareholder immediately after the First Effective Time and any Company Ordinary Shares acquired by such Shareholder upon the exercise of Company Options.

 

 

(b)            The restrictions set forth in Section 4.11(a) (the “Lock-Up Restrictions”) shall not apply to:

 

(i)            Transfers to (A) any affiliate (as defined below) of such Shareholder or any director, officer or employee of such affiliates, or their immediate family (as defined below), (B) any officer, director or employee of such Shareholder, or their immediate family, (C) any shareholder, partner or member of such Shareholder or its affiliates;

 

(ii)            Transfers by virtue of the Laws of the state of such Shareholder’s organization and such Shareholder’s Organizational Documents upon dissolution of such Shareholder;

 

(iii)             pledges of any Locked-Up Shares to a financial institution that create a mere security interest in such Locked-Up Shares pursuant to a bona fide loan or indebtedness transaction so long as such Shareholder continues to control the exercise of the voting rights of such pledged Locked-Up Shares (as well as any foreclosures on such pledged Locked-Up Shares so long as the transferee in such foreclosure agrees to become a party to this Agreement and be bound by all obligations applicable to such Shareholder, provided that such agreement shall only take effect in the event that the transferee takes possession of the Locked-Up Shares as a result of foreclosure);

 

(iv)            Transfers of any Company Ordinary Shares acquired as part of the PIPE Financing;

 

(v)            transactions relating to Company Ordinary Shares or other securities convertible into or exercisable or exchangeable for Company Ordinary Shares acquired in open market transactions after the Closing, provided that no such transaction is required to be, or is, publicly announced (whether on Form 4, Form 5 or otherwise, other than a required filing on Schedule 13F, 13G or 13G/A) during the Lock-Up Period;

 

(vi)            the exercise of any options to purchase Company Ordinary Shares (which exercises may be effected on a cashless basis to the extent the instruments representing such options permit exercises on a cashless basis);

 

(vii)            the establishment, at any time after the Closing, by a Shareholder of a trading plan providing for the sale of Company Ordinary Shares that meets the requirements of Rule 10b5-1(c) under the Exchange Act (a “Trading Plan”); provided, however, that no sales of Locked-Up Shares, shall be made by such Shareholder pursuant to such Trading Plan during the Lock-Up Period and no public announcement or filing is voluntarily made regarding such Trading Plan during the Lock-Up Period; and

 

(viii)            Transfers made in connection with a liquidation, merger, share exchange or other similar transaction that results in all of the Company’s shareholders having the right to exchange their Company Ordinary Shares for cash, securities or other property subsequent to the Closing Date;

 

 

provided, however, that in the case of clauses (i) through (iii), these permitted transferees must enter into a written agreement, in substantially the form of this Agreement, agreeing to be bound by the Lock-Up Restrictions and shall have the same rights and benefits as a Shareholder under this Agreement. For purposes of this paragraph, “affiliate” shall have the meaning set forth in Rule 405 under the Securities Act of 1933, as amended, and “immediate family” means, as to a natural person, such individual’s spouse, former spouse, domestic partner, child (including by adoption), father, mother, brother or sister, and lineal descendant (including by adoption) of any of the foregoing persons.

 

(c)            For the avoidance of doubt, such Shareholder shall retain all of its rights as a shareholder of the Company during the Lock-Up Period, including the right to vote any Locked-Up Shares or receive any dividends or distributions thereon.

 

(d)            In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the registration or transfer of the Locked-Up Shares, are hereby authorized to decline to make any Transfer of securities if such Transfer would constitute a violation or breach of the Lock-Up Restrictions.

 

Article V
General Provisions

 

5.1            Mutual Release.

 

(a)            Shareholder Release. Each Shareholder, on its own behalf and on behalf of each of its Affiliates (other than the Company or any of the Company’s Subsidiaries) and each of its and their successors, assigns and executors (each, a “Shareholder Releasor”), effective as at the First Effective Time, shall be deemed to have, and hereby does, irrevocably, unconditionally, knowingly and voluntarily release, waive, relinquish and forever discharge the Company, SPAC, their respective Subsidiaries and each of their respective successors, assigns, heirs, executors, officers, directors, partners, managers and employees (in each case in their capacity as such) (each, a “Shareholder Releasee”), from (x) any and all obligations or duties the Company, SPAC or any of their respective Subsidiaries has prior to or as of the First Effective Time to such Shareholder Releasor or (y) all claims, demands, Liabilities, defenses, affirmative defenses, setoffs, counterclaims, actions and causes of action of whatever kind or nature, whether known or unknown, which any Shareholder Releasor has prior to or as of the First Effective Time, against any Shareholder Releasee arising out of, based upon or resulting from any Contract, transaction, event, circumstance, action, failure to act or occurrence of any sort or type, whether known or unknown, and which occurred, existed, was taken, permitted or begun prior to the First Effective Time (except in the event of fraud on the part of a Shareholder Releasee); provided, however, that nothing contained in this Section 5.1(a) shall release, waive, relinquish, discharge or otherwise affect the rights or obligations of any party (i) arising under this Agreement, the Merger Agreement, the other Transaction Documents or the Company’s Organizational Documents, (ii) for indemnification or contribution, in any Shareholder Releasor’s capacity as an officer or director of the Company, (iii) arising under any then-existing insurance policy of the Company, or (iv) for any claim for fraud.

 

 

(b)            Company Release. Each of the Company, SPAC and their respective Subsidiaries and each of its and their successors, assigns and executors (each, a “Company Releasor”), effective as at the First Effective Time, shall be deemed to have, and hereby does, irrevocably, unconditionally, knowingly and voluntarily release, waive, relinquish and forever discharge each Founder Shareholder and its respective successors, assigns, heirs, executors, officers, directors, partners, members, managers and employees (in each case in their capacity as such) (each, a “Company Releasee”), from (x) any and all obligations or duties such Company Releasee has prior to or as of the First Effective Time to such Company Releasor or (y) all claims, demands, Liabilities, defenses, affirmative defenses, setoffs, counterclaims, actions and causes of action of whatever kind or nature, whether known or unknown, which any Company Releasor has, may have or might have or may assert now or in the future, against any Company Releasee arising out of, based upon or resulting from any Contract, transaction, event, circumstance, action, failure to act or occurrence of any sort or type, whether known or unknown, and which occurred, existed, was taken, permitted or begun prior to the First Effective Time (except in the event of fraud on the part of a Company Releasee); provided, however, that nothing contained in this Section 5.1(b) shall release, waive, relinquish, discharge or otherwise affect the rights or obligations of any party (i) arising under this Agreement, the Merger Agreement or the other Transaction Documents or (ii) for any claim for fraud.

 

5.2            Termination. This Agreement shall terminate upon the earlier of:

 

(a)             the Closing, provided, however, that upon such termination, (i) Section 4.8, this Section 5.2, Section 5.4, Section 5.7 and Section 5.8 shall survive indefinitely; and (ii) Section 4.11, and Section 5.3 shall survive until the date on which none of the Company, the Shareholders or any holder of a Locked-Up Share (as defined below) has any rights or obligations hereunder;

 

(b)            the termination of the Merger Agreement in accordance with its terms; and

 

(c)            the written agreement of the Shareholders, SPAC and the Company;

 

and upon a termination of this Agreement pursuant to Sections 5.2(b) or 5.2(c), no party shall have any liability hereunder other than for its actual fraud or willful and material breach of this Agreement prior to such termination.

 

5.3            Legends. The Company shall remove, and shall cause to be removed (including by causing its transfer agent to remove), any legends, marks, stop-transfer instructions or other similar notations pertaining to the lock-up arrangements herein from the certificates or the book-entries evidencing any Locked-Up Shares at the time any such share is no longer subject to the Lock-Up Restrictions (any such Locked-Up Share, a “Free Share”), and shall take all such actions (and shall cause to be taken all such actions) necessary or proper to cause the Free Shares to be consolidated under the CUSIP(s) and/or ISIN(s) applicable to the unrestricted Company Ordinary Shares so that the Free Shares are in a like position. Any holder of a Locked-Up Share is an express third-party beneficiary of this Section 5.3 and entitled to enforce specifically the obligations of the Company set forth in this Section 5.3 directly against the Company.

 

 

5.4            Notice. All general notices, demands or other communications required or permitted to be given or made hereunder shall be in writing and delivered personally or sent by courier or sent by registered post or sent by electronic mail to the Company and SPAC in accordance with Section 10.3 of the Merger Agreement and to each Shareholder at its set forth on Schedule A hereto (or at such other address or email address as a party may from time to time notify the other parties by like notice).

 

Any such notice, demand or communication shall be deemed to have been duly served (a) if given personally or sent by courier, upon delivery during normal business hours at the location of delivery or, if later, then on the next Business Day after the day of delivery; (b) if sent by electronic mail during normal business hours at the location of delivery, immediately, or, if later, then on the next Business Day after the day of delivery; (c) the third Business Day following the day sent by reputable international overnight courier (with written confirmation of receipt); and (d) if sent by registered post, five (5) days after posting.

 

5.5            Entire Agreement; Amendment. This Agreement constitutes the entire agreement among the parties hereto relating to the subject matter hereof and the transactions contemplated hereby and supersedes any other agreements, whether written or oral, that may have been made or entered into by or between the parties hereto or any of their respective Subsidiaries relating to the subject matter hereof or the transactions contemplated hereby. This Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by all parties hereto.

 

5.6            Assignment. Other than in connection with the Transfer of any Subject Shares or Locked-Up Shares in accordance with the terms of this Agreement, which shall not be deemed to be an assignment of this Agreement or the rights or obligations hereunder, no party hereto shall assign this Agreement or any part hereof without the prior written consent of the other parties hereto and any such transfer without prior written consent shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.

 

5.7            Governing Law. This Agreement, and any claim or cause of action hereunder based upon, arising out of or related to this Agreement (whether based on law, in equity, in contract, in tort or any other theory) or the negotiation, execution, performance or enforcement of this Agreement, shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to the principles of conflicts of laws that would otherwise require the application of the law of another jurisdiction.

 

5.8            Consent to Jurisdiction; Waiver of Trial by Jury. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK COUNTY, STATE OF NEW YORK (OR ANY APPELLATE COURTS THEREFROM) SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION, SUIT OR PROCEEDING SHALL BE HEARD AND DETERMINED BY ANY SUCH COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 5.4 OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE THEREOF. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES THE FOREGOING WAIVER VOLUNTARILY AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 5.8.

 

 

5.9            Enforcement. The parties hereto agree that irreparable damage, for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the parties do not perform their obligations under any of the provisions of this Agreement (including failing to take such actions as are required of them hereunder to consummate this Agreement) in accordance with their specific terms or otherwise breach such provisions. It is accordingly agreed that the parties hereto shall be entitled to seek an injunction or injunctions, specific performance or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, without proof of damages, prior to the valid termination of this Agreement in accordance with Section 5.2, this being in addition to any other remedy to which any party is entitled at law or in equity. In the event that any Action shall be brought in equity to enforce the provisions of this Agreement, no party shall allege, and each party hereby waives the defense, that there is an adequate remedy at law, and each party agrees to waive any requirement for the securing or posting of any bond in connection therewith.

 

5.10            Counterparts. This Agreement may be executed in two or more counterparts (any of which may be delivered by electronic transmission), each of which shall constitute an original, and all of which taken together shall constitute one and the same instrument. This Agreement may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or www.echosign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. Delivery by email to counsel for the other parties of a counterpart executed by a party shall be deemed to meet the requirements of the previous sentences.

 

 

5.11      Miscellaneous. The provisions of Section 1.2 of the Merger Agreement are incorporated herein by reference, mutatis mutandis, as if set forth in full herein.

 

[Signature pages follow]

 

 

IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement to be duly executed as of the date hereof.

 

	L Catterton Asia Acquisition Corp
	By:	/s/ Chinta Bhagat
		Name:	Chinta Bhagat
		Title:	Co-Chief Executive Officer

 

[Signature Page to Shareholder Support Agreement]

 

 

IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement to be duly executed as of the date hereof.

 

	Lotus Technology Inc.
	By:	/s/ FENG Qingfeng
		Name:	FENG Qingfeng
		Title:	Director

 

[Signature Page to Shareholder Support Agreement]

 

 

IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement to be duly executed as of the date hereof as.

 

	Lotus Advanced Technology Limited Partnership
	By:	/s/ FENG Qingfeng
		Name:	FENG Qingfeng
		Title:	Director

 

[Signature Page to Shareholder Support Agreement]

 

 

IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement to be duly executed as of the date hereof.

 

	Lotus Technology International Investment Limited
	By:	/s/ LI Donghui
		Name:	LI Donghui
		Title:	Director

  

[Signature Page to Shareholder Support Agreement]

 

 

IN WITNESS WHEREOF, the parties hereto have hereunto caused this Agreement to be duly executed as of the date hereof.

 

	ETIKA AUTOMOTIVE SDN BHD
	By:	/s/ Azman Hanafi Bin Abdullah
		Name:	Azman Hanafi Bin Abdullah
		Title:	Director

 

[Signature Page to Shareholder Support Agreement]

 

 

 

Exhibit 10.6

 

DISTRIBUTION AGREEMENT

 

This Agreement of Distributor Authorization (hereinafter referred to as “Agreement” or “Distribution Agreement”) is entered into on the date of last signature of the Parties (“Commencement Date”) between:

 

(1)

Lotus Cars Limited (hereinafter referred to as “Manufacturer” or “LCL”) with registered address Potash Lane, Hethel, Norwich, Norfolk NR14 8EZ, United Kingdom with registered number 00895081; and

 

(2)

Lotus Technology Innovative Limited (hereinafter referred to as “Distributor” or “LTI”) with registered address Unit 6 Doyle Drive, Blackburn Road Industrial Estate, Coventry, CV6 6NW, United Kingdom with registered number 13337498.

 

LCL and LTI are hereinafter referred to separately as “Party” and collectively as the “Parties”.

 

Background:

 

A.

LCL is engaged in the development, manufacture, assembly, distribution, sale and marketing of various motorsport models of motor vehicles, parts and accessories.

 

B.

Lotus Technology Innovative Limited is newly formed and wishes to engage in promotion, marketing, public relations, sales and After Sales Service of the Products agreed hereof.

 

C.

Based on the best interest of the Lotus brand, LCL intends to appoint LTI as its exclusive Distributor to distribute Products and Special Tools purchased from LCL for sale and After Sales Service within the Territory and provide brand, marketing and public relations for the Products on the terms and conditions of this Agreement.

 

D.

LCL has distributed or sold Products into the Territory prior to the commencement of this Agreement. LTI shall be required to provide an After Sales Service for such Products in the Territory once LTI has assumed responsibility by way of novation or any other means.

 

It is therefore agreed as follows:

 

1.

Definitions

 

The definitions and rules of interpretation in this clause apply in this Agreement.

 

1.1.

Accessories shall mean such other parts, accessories and other products with the Lotus Brand Name, other than Parts as are designated by Manufacturer, which can be part of the Vehicle or used in connection with the Vehicles.

 

1.2.

Affiliate means in relation to a Party, any subsidiary or parent of that Party or any subsidiary or holding company of that parent.

 

1.3.

After Sales Service shall mean the after sales services to be provided by the Distributor to carry out repairs and replacement in accordance with any applicable warranty provided by the Manufacturer in relation to Vehicles, Parts, Merchandise and Accessories.

 

1.4.

Bespoke Vehicles means cars built primarily by the Manufacturer for racing such as the GT4, non-production line or customized editions of vehicles, vintage or special editions.

 

 

1.5.

Business Days means Monday to Friday (but excluding bank holidays) where banks in the City of London are open for normal non-automated banking.

 

1.6.

Customer shall mean any person or legal person that has purchased or will purchase any Products otherwise than for the purpose of resale in the course of a business and for the avoidance of doubt, does not include Distributor, its Sub-Distributors or agents.

 

1.7.

Defect shall mean an imperfection, flaw or deficiency exists in material or workmanship during production or manufacturing resulting in that either the Vehicle or Parts do not work in accordance with the Manufacturer’s specification or the value of the Vehicle is materially lessened. Such defect might derive from the material, faulty design or the manufacture process.

 

1.8.

Documentation shall mean the specifications, instructions and drawings (3D or 2D) relating to the Vehicle its parts and its components to the extent necessary to repair the Vehicle.

 

1.9.

Gross Negligence shall mean any act or failure to act (whether sole, joint or concurrent) by one Party which was intended to cause, or which was in reckless disregard of or wanton indifference to, avoidable and harmful consequences such Party knew, or should have known, would result from such act or failure to act. Notwithstanding forgoing, Gross Negligence shall not include any action taken in good faith for the safeguard of life or property or to comply with legislation of the Governing Law.

 

1.10.

LCE shall mean Lotus Cars Europe B.V. (a subsidiary of LTI).

 

1.11.

LCU shall mean Lotus Cars USA Inc, an Affiliate of the Manufacturer.

 

1.12.

Material Breach shall mean a substantial and serious failure by any Party to comply with its obligations under this Agreement or any data processing agreement, trade mark licence agreement (or other agreement relating to the activities being carried out under this Agreement where the Parties explicitly agree in that agreement that it should be deemed a Material Breach of this Agreement) after receiving notice of its breach and failing to take steps to rectify that material breach within a reasonable time.

 

1.13.

Manufacturer shall mean Lotus Cars Limited.

 

1.14.

Merchandise shall mean goods manufactured by or on behalf of the Manufacturer that the Manufacturer wishes to make available for purchase by Distributor, which are not Accessories but contain the Lotus brand and are a means of generating revenue for the Manufacturer and/or promoting the Lotus brand. Examples of Merchandise include (but are not limited to) replica model vehicles, publications, clothing, luggage, keyrings, cufflinks, drinking vessels, small leather goods and toys.

 

1.15.

New Vehicles shall mean the models of completely built-up unused motor vehicles which are manufactured or procured by Manufacturer or its subsidiaries, and which are distributed to the Distributor after the Commencement Date as set out in Schedule 3. New Vehicles shall exclude Bespoke Vehicles unless explicitly set out in Schedule 3.

 

 

1.16.

Order shall mean when the Distributor places an order for New Vehicles and Parts.

 

1.17.

Order Date shall mean the date on which the Manufacturer accepts the Order in accordance with Schedule 2.

 

1.18.

Parts shall mean the parts which are manufactured or procured by Manufacturer or its subsidiaries, which are designed to be installed as replacements of the corresponding parts in or on the Vehicles.

 

1.19.

Part A Country and Part B Country shall be as set out in Schedule 1.

 

1.20.

Pass to Sales or PTS has the meaning given to it in paragraph 1.1 of Schedule 2.

 

1.21.

Products shall mean Vehicles, Parts, Merchandise and Accessories.

 

1.22.

Recall Campaign shall mean i) a prescribed action plan implemented by Manufacturer, with or without the assistance of others and which involves the recall of any Products manufactured by or at the direction of Manufacturer, which, in the opinion of itself, contain or may contain Defects; ii) mandatory orders or injunctions issued by government and/or the administrative governmental departments within a country.

 

1.23.

Retail Signage and Facility Guidelines shall mean the guidelines as set out in in Schedule 6.

 

1.24.

Special Tools means such tools as set out in Manufacturer's repair manuals, service bulletins and current price list for tools required to repair products manufactured by Manufacturer or at Manufacturer's direction as may be amended from time to time.

 

1.25.

Sub-Distributor shall mean: (i) any company including but not limited to the Distributor’s subsidiaries, agents, distributors, dealers, authorized repairers operating in Territory excluding the United States of America (“USA”), appointed by the Distributor to distribute, sell, repair, service and/or market the Products or (ii) in the case of the USA (where LCU is the distributor and LTI is the head distributor as further described in Clause 2.6 below), any company including but not limited to its subsidiaries, agents, distributors, authorized repairers operating in the USA, which can only be appointed by LCU to distribute, sell, repair and service the Products.

 

1.26.

Territory shall mean each Part A Country and each Part B Country set out in Schedule 1.

 

1.27.

Vehicles shall mean completely built-up motor vehicles, which are or have been manufactured or procured by Manufacturer or its subsidiaries.

 

1.28.

Warranty shall mean a written guarantee for the benefit of the Customer by Manufacturer promising to repair or replace if necessary, the Product (or part thereof) during the Warranty Period.

 

1.29.

Warranty Booklet means the booklet provided with a New Vehicle.

 

1.30.

Warranty Period shall mean the period during which a Product is covered by warranty as set out in Schedule 4.

 

 

1.31.

Warranty Policy means the warranty process policy manual made available to the Distributor and Sub-Distributors (as updated from time to time) regarding different types of New Vehicles.

 

1.32.

Willful Misconduct shall mean an intentional disregard of any provision of this Agreement which a Party knew or should have known if it was acting as a reasonable person, would result in harmful consequences to life, personal safety, real property or other monetary damages of the other Party

 

1.33.

Year for the first year, year shall mean from the Commencement Date until the 31st December of that year and for all subsequent years, a year shall mean the period commencing on the 1st January to the 31st December.

 

2.

Distribution Rights

 

2.1.

Subject to the terms and conditions of this Agreement (including Clauses 2.2, 2.3 and 2.5), Manufacturer appoints Distributor as its exclusive Distributor to (a) import, (b) market, (c) purchase, (d) distribute, (e) take reservation, (f) deposits, (g) resell, (h) appoint Sub-Distributors for the sale and distribution of New Vehicles and Parts and After Sales Services in the Territory from the Commencement Date. For the avoidance of doubt, Manufacturer shall not sell directly or distribute New Vehicles except for any sales under the ‘Employee Car Ownership Scheme’ (ECOS) to either Manufacturer’s employees or employees of Manufacturer’s Affiliates.

 

2.2.

The exclusivity granted under clause 2.1 shall be subject to any continuing obligations of the Manufacturer to existing Sub-Distributors or LCU and other third parties in relation to the Products, so that the Manufacturer may continue to allow such third parties to (a) import, (b) market, (c) purchase, (d) distribute, (e) take reservation, (f) deposits, (g) resell, the Products and carry out After Sales Services in the Territory set out in Schedule 1 under its existing agreements with those third parties until such agreements have expired or terminated or novated to the Distributor.

 

2.3.

Where certain European Sub-Distributors have already contracted with (or intend to contract with) LCE, or have been novated to LCE, the Distributor is responsible for deciding whether to contract directly with those Sub-Distributors itself, or novate existing agreements to itself, or allow them to remain with or go to LCE. Notwithstanding the foregoing, the Distributor shall at all times remains liable to LCL for the acts and/or omissions of LCE as its Sub-Distributor.

 

2.4.

Subject to the terms and conditions of this Agreement (including Clause 2.5), Manufacturer appoints Distributor as its non-exclusive Distributor to (a) import, (b) market, (c) purchase, (d) distribute, (e) take reservation, (f) deposits, (g) resell, and (h) appoint Sub-Distributors (via LCU in the case of the USA), for the sale and distribution of the Accessories and Merchandise in the Territory from the Commencement Date.

 

2.5.

In order to ensure the distribution and servicing of the Products in the Territory, Distributor, at its own cost, shall establish and maintain a distribution network in the Part A Countries (and at its discretion establish a distribution network in Part B Countries) in accordance with Schedule 6 which may be revised and amended from time to time by Manufacturer.

 

2.6.

For the USA, LTI shall act as the head distributor with LCU continuing to be the distributor of New Vehicles in the US as it holds the licences as distributor in the various USA states. LTI must enter into a separate agreement between it and LCU or accept the novation of the existing distribution agreement between Manufacturer and LCU before LTI can be appointed as the head distributor for the USA. Subject to LCU receiving the same profit margin (or a greater or lesser profit margin acceptable to LCU), the Manufacturer shall use all reasonable efforts to support LTI in having the existing agreement novated to it, or LCU and LTI entering into a new agreement on substantially the same terms.

 

 

2.7.

Distributor shall upon its plan and at its discretion use reasonable endeavours to enter into markets in Part B Countries, and shall do so by way of self-certification by it or its Sub-Distributors (at its or their own cost).

 

3.

Supply of Products and After Sales Services

 

3.1.

To the best of its knowledge, the Manufacturer is not aware that the New Vehicles and Parts infringe any third party design or patent rights in a Part A Country.

 

3.2.

Quotations for and supply to Distributor of any Products and Special Tools for the After Sales Services are subject to the terms of sales set out in Schedule 2.

 

4.

Importation

 

4.1.

Distributor shall be responsible (at its sole cost) for procuring any licence, permit or for fulfilling other procedures and formalities required to import the Products in the Territory and Manufacturer shall provide all necessary information or documentation reasonably required by governmental authorities in relation to New Vehicles and other Products when requested by the Distributor and any other reasonable assistance to the Distributor in relation to such procedures and formalities.

 

4.2.

Where permitted by law, Distributor may delegate the responsibilities set out in clause 4.1 to a Sub-Distributor (or to LCU in the case of the USA, who may then delegate the responsibilities to its Sub-Distributors), but Distributor remains liable for all the costs involved.

 

5.

Business Plan and Annual Targets

 

5.1.

No less than 90 days prior to the start of each Year (or in the case of the initial business plan, in accordance with Clause 17.5), the Parties will use their best endeavours to agree the business plan and annual targets for the forthcoming Year taking into account historic sales figures, forecast demand as well as national, regional and local trends and Manufacturer’s production capacity for the Products.

 

5.2.

Each consecutive annual business plan shall be specified according to Schedule 5.

 

5.3

Notwithstanding the requirement for an annual business plan and annual targets in Clause 5.1, LTI agrees and accepts that in consideration for Manufacturer granting the licences at Clause 2, Distributor has the right and the obligation to distribute the full lifecycle volume of any model of New Vehicle.

 

5.4

In respect of any future programmes for Vehicles, the Distributor shall distribute such future New Vehicles (excluding Bespoke Vehicles) and the Parties shall agree in writing in advance the target full lifecycle volume before Manufacturer commits any resources. Once the target is agreed, and type approval has been obtained in the United Kingdom, that model shall be added to Schedule 3 by a written amendment to this Agreement.

 

 

6.

Distribution System

 

6.1.

The Distributor shall establish and maintain a distribution network and an After Sales Service network in the Part A Countries (and at its discretion in Part B Countries) by either selling directly or through LCE or LCU or by appointing Sub-Distributors in the Territory. The Distributor shall ensure its Sub-Distributors (1) meet all the standards and abide by the guidelines as stipulated in this Agreement and; (2) achieves the minimum criteria for sales and (3) minimum criteria for After Service Sales, each as set out in the business plan for that year.

 

6.2.

The Distributor shall ensure that its Sub-Distributors and their sales network comply with such requirements as will be instructed by the Manufacturer from time to time including that they:

 

6.2.1.

are up to date with all required training requirements;

 

6.2.2.

shall be adequately supervised by the Distributor;

 

6.2.3.

shall enter into legally binding agreements with the Distributor;

 

6.2.4.

shall comply with all applicable laws.

 

6.3.

The Distributor shall ensure that it or its Sub-Distributors:

 

6.3.1.

promote and develop the sale of the Products within the Part A Countries (and any Part B Countries where a Sub-Distributor has been appointed);

 

6.3.2.

establish and implement an advertising programme in consultation with the Global Brand Committee;

 

6.3.3.

administer, perform and ensure (whether directly or indirectly) that the minimum requirements of the warranty service as stated in the Warranty Booklet and Warranty Policy are followed (which may be updated and revised by Manufacturer from time to time).

 

6.3.4.

if requested by the Manufacturer, it shall provide details of the appointed Sub-Distributors in the Territory;

 

6.4.

If the Distributor, its Sub-Distributors or members of their network receives an enquiry to supply Products outside the Territory, the Distributor receiving the query shall direct and provide the details of such enquiry to the Manufacturer.

 

7.

Marketing, Public Relations and Brand Services

 

7.1.

Distributor shall provide brand, marketing and public relations services (at Distributor’s sole cost unless agreed otherwise) in relation to the Products in the Territory using the level of care, skill and diligence expected of brand, marketing and public relations professionals in similar luxury car manufacturers, including providing such services, guidance and support to LCU.

 

7.2.

Except as agreed otherwise, Manufacturer’s Affiliate, Group Lotus Limited (GLL), who owns the intellectual property rights in the Lotus brand, shall own any intellectual property (and the goodwill) which is created on or after the Commencement Date by the Distributor.

 

 

7.3.

Distributor shall be responsible for its and its Sub-Distributors full compliance with Lotus Brand Essential Guidelines and brand representation obligations as set out in Schedule 6.

 

8.

Training and Training Materials

 

8.1.

Distributor shall (at its own cost) be responsible for providing training and training material on the Products, sales and After Sales Service for fulfilling the requirements of Distributor standards and the obligations of this Agreement in the Territory.

 

8.2.

Manufacturer may offer the Distributor instruction and training for its employees and those of its Sub-Distributors in English for sales of the Products and After Sales Services as a separate service provided by Manufacturer at Distributor’s cost, to be agreed between the Parties.

 

9.

After Sales Services

 

9.1.

The Distributor agrees and is authorized to (and will procure that its Sub-Distributors agree to) service and repair any Products manufactured or supplied by the Manufacturer subject to the After Sales Services and Warranty Services Protocol in Schedule 4.

 

9.2.

The Distributor shall (and will procure that its Sub-Distributors shall):

 

9.2.1.

when so requested by a Customer give prompt and proper attention to any Vehicle manufactured by the Manufacturer or at the Manufacturer’s direction, including such reasonable testing as may be necessary to establish the origin of any alleged faults and shall take all proper and reasonable steps to ensure satisfactory running of such Vehicles;

 

9.2.2.

abide by and follow all service bulletins at its own cost unless otherwise agreed, and shall fulfil all requirements contained in such service bulletins.

 

9.2.3.

comply with the prescribed procedures set out in the Warranty Policy, Warranty Booklet and any procedures in relation to After Sales Services.

 

9.3.

Subject to clause 9.4, Manufacturer shall supply Distributor at all times with Parts within the framework of its requirements and in accordance with Schedule 2 from Distributor as long as Distributor requires the Parts. Distributor shall advise the Manufacturer in good time of probable delivery quantities based on Distributor’s requirement forecasts. When Distributor has adequate reasons/evidence to believe the current stock of Parts cannot assure timely and proper servicing and repairment of the Product, Distributor shall inform Manufacturer in written form and Manufacturer shall support the request accordingly. Manufacturer does not however have any claim that certain quantities must be taken, insofar as not expressly agreed otherwise in writing.

 

9.4.

Manufacturer shall ensure availability of Parts along with the first delivery in accordance with the relevant annual business plan set out in Schedule 5. On discontinuation of production Manufacturer guarantees continued fulfilment of Parts requirements for the minimum term permitted at law for the Territory and in the event of and from the time of corresponding model of Vehicles from the end of series production and exits the Territory at competitive prices and if the statutory requirements in the country in which the Vehicle is sold is shorter or longer than the 10 years after end of production of vehicle in the respective country the Manufacturer shall ensure it complies with the local laws. Manufacturer shall notify Distributor 6 (six) months prior to the end of this period of the planned production schedule to allow Distributor to order a sufficient supply (last time requirement) and provide Distributor the Documentation of the Parts to be ended to produce at the time of such notification.

 

 

9.5.

Further details to service and repair are subject to the After Sales Services and Warranty Service Protocol in Schedule 4.

 

10.

Warranty

 

10.1

The warranty process for the Products is set out in Schedule 4.

 

10.2.

Manufacturer shall provide to Distributor information with respect to Warranty available on its Products which can be made available to Customer which shall comply with applicable laws of the country in which the Products are sold.

 

10.3.

Further details of the warranty obligations of the Parties are subject to the After Sales Services and Warranty Services Protocol in Schedule 4 and Warranty Booklet and Warranty Policy.

 

10.4.

If the applicable laws and regulations of the Territory in terms of Warranty are more favourable to the Customers than those made available by the After Sales Services and Warranty Services Protocol in Schedule 4 or the Warranty Booklet and Warranty Policy, the Manufacturer is obligated to comply with such laws and regulations of the Territory and provide the Customers with the mandatory Warranty required.

 

10.5.

The Distributor will assist the Manufacturer at the Manufacturer’s cost in relation to the Manufacturer’s obligations as set out in clause 10.4.

 

11.

Homologation

 

11.1.

Manufacturer will use its reasonable endeavours to obtain the timely homologation of New Vehicles in the Territory that Manufacturer has agreed to obtain homologation in (being the Part A Countries set out in Part A to Schedule 1). Support from the Distributor may be required from time to time, and the Distributor shall promptly and diligently provide such support but Manufacturer shall cover all reasonable or agreed costs incurred by the Distributor from the homologation in the Territory.

 

11.2.

Subject to Clause 11,3, the Distributor or Sub-Distributor may not distribute, sell or resell New Vehicles where they have not been homologated in the relevant country.

 

 

11.3.

Where the Distributor wants (at its own discretion) to distribute New Vehicles in a Part B Country where homologation has not been obtained, Distributor or its Sub-Distributor is responsible (at its sole cost) for obtaining self-certification of homologation. Distributor shall remain liable under Clause 13.1 (Compliance) for any Part B Country. Vehicle warranties are provided in accordance with Schedule 4 for a New Vehicle in a Part B Country once self-certification has been obtained for that New Vehicle.

 

12.

Recall Work

 

12.1.

The Distributor shall, and must procure that its Sub-Distributors shall:

 

12.1.1.

immediately communicate with the Manufacturer in the event that safety, emissions or consumer protection considerations indicate that a recall campaign or other similar activities in connection with a Vehicle might be necessary.

 

12.1.2.

notify the Manufacturer in the event of a claim brought by a third party on the basis of an injury or death allegedly resulting from a Defect in a Product.

 

12.2.

Distributor and its Sub-Distributors shall conduct any Recall Campaign or other similar activities according to Manufacturer’s notification or government order and shall follow local legal requirements, process recall documentation and filling issue.

 

12.3.

Distributor shall promptly notify its Sub-Distributors and Customers of any Recall Campaigns in the manner prescribed and shall take the lead or (when, permitted by the applicable laws of Territory. Manufacturer is allowed to take the lead of the Recall Campaign) assist Manufacturer in conducting the Recall Campaign.

 

12.4.

When, permitted by the applicable laws of Territory, and where the Parties agree that the Recall Campaign would be best handled by the Manufacturer, the Manufacturer shall take the lead of the Recall Campaign, and the Distributor shall provide reasonable assistance to Manufacturer in identifying and complying with any legal requirements relating to Recall Campaigns under the laws and regulations of the Territory.

 

12.5.

The Manufacturer shall only be responsible for the costs of repair or replacement (which shall include measures to overcome legislative and regulatory requirements) in connection with Recall Campaigns. For the avoidance of doubt, Distributor shall be responsible for all of its and its Sub-Distributors costs and expenses, including those relating to Customer Care. Customer Care shall mean any action or cost beyond the legislative and / or regulatory obligation of the Manufacturer or Distributor during the Recall Campaign to support the customer experience, such activity to include but is not limited to the provision of any incentives to encourage customer compliance with a Recall Campaign notice, any cost paid or promised to Customer to assist the customer before, during or after the repair of the Product such as the provision of accommodation, transportation or vouchers to pay Customer expenses incurred as a result of the Recall Campaign.

 

 

13.

Compliance

 

13.1

Each Party shall comply with its obligations to all market statutes, by-laws, regulations, directives and requirements of any government or other competent authority applicable or relating to the terms of this Agreement.

 

13.2

Subject to clause 4.1 and clause 11, the Manufacturer warrants that at the Pass to Sales date for New Vehicles and Parts to be sold in each Part A Country in the Territory (as set out in Part A to Schedule 1) they are in compliance with the local laws and regulations.

 

13.3

Distributor warrants that in importing Products to Part B Countries in accordance with Clause 11.3 they will be in compliance with the local laws and regulations of that Part B Country.

 

14.

Term and Termination

 

14.1

Subject to Clause 14.2, this Agreement shall become effective on the Commencement Date and shall remain in force for an indefinite period of time, unless the Parties agree in writing to terminate this Agreement.

 

14.2

Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if, but only be limited to:

 

14.2.1

the Party commits a Material Breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so by the other Party;

 

14.2.2

the other Party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;

 

14.2.3

the other Party shall have a receiver appointed of its undertaking or assets or shall go into liquidation or shall enter into any arrangement with its creditors or shall cease or threaten to cease to carry on its business; or

 

14.2.4

if the other Party shall sell, transfer, assign or in any other way part with possession of any substantial part of its business or assets.

 

14.2.5

conducts intentional fraud or misrepresentation on the Products or any documentation relating to this Agreement;

 

14.2.6

act of bribery, rebate, payoff, influence payment, kickback, or other unlawful payment;

 

15.

Consequences of Termination

 

15.1.

On termination of this Agreement:

 

15.1.1.

Credit and debt between the Parties derived from the execution of this Agreement shall become due and payable within 60 days of the date of termination where termination has occurred under clause 14.1.

 

15.1.2.

Where termination of the Distributor has occurred under clause 14.2, any outstanding sums for Products already collected but not paid for shall become payable in accordance with Schedule 2. Payment for Products not yet collected shall be made in advance and in full, and the Manufacturer shall fulfill all fully paid Orders received from Distributor and accepted by the Manufacturer prior to the date of termination which shall include all Orders for Products where build has not commenced, Products in the build stage and Products which have been built but not shipped before the date of termination.

 

 

15.1.3.

Distributor shall work with Manufacturer to ensure a timely and ordered transition of the Sub-Distributors (and any customer data) back to the Manufacturer or to another distributor.

 

16.

TUPE

 

16.1

Schedule 8 shall govern the transfer of Manufacturer’s employees to LTI under this Agreement.

 

17.

Roadmap and Costs

 

17.1

Schedule 9 sets out the Parties’ expectations in dealing with the various distributors, dealers and agents and third party agreements as a result of this Agreement, in particular, Manufacturer shall use all reasonable endeavours to, and the Distributor shall accept, the transition of the agents, dealers, distributors, suppliers and other third party agreements in accordance with the roadmap (which may be modified by mutual agreement of the Parties from time to time). Part A of Schedule 9 contains the roadmap agreed between the Parties regarding the transition of the agents, dealers and distributors, and Part B and Part C of Schedule 9 set out a non-exhaustive list of agents, dealers and distributors, suppliers and other third parties.

 

17.2

The Distributor shall pay to the Manufacturer all reasonable costs which Manufacturer has incurred, or for which Manufacturer is legally or contractually liable, as a result of operating and investing in, and agreeing to the transition of the sales, aftersales, marketing, brand and public relations functions to LTI under this Agreement. Such costs shall include the costs of novation or termination of sales network or supplier contracts, the development and set up costs of Manufacturer’s sales infrastructure/platform and the cost of converting the UK to a direct sales model.

 

17.3

Within 90 days of Commencement Date, the Manufacturer shall provide to the Distributor an invoice detailing any evidenced and properly incurred costs, as set out in clause 17.2. Such invoice will be payable within thirty (30) days of the date of the invoice.

 

17.4

The Manufacturer and Distributor agree that a calculation will be undertaken by the Manufacturer on the one (1) year anniversary of this Agreement (and each subsequent anniversary thereafter), in accordance with Clause 17.2, as incurred by the Manufacturer in the previous 12 months. Should any costs be ascertained, the Manufacturer will provide a Distributor with an invoice of those costs within 30 days of the anniversary of the Commencement Date and the invoice will be payable within seven (7) days of the date of the invoice.

 

17.5

All amounts payable by the Distributor and to be directly or indirectly received by, or credited to, Manufacturer in respect of the New Vehicles are to be provided at arm’s length. For the first Year of this Agreement, the Parties agree that the transfer price per New Vehicle shall be agreed within twenty one (21) days from the Commencement Date and be set out in this Agreement as a new schedule, failing which either Party shall be entitled to exercise the right to terminate this Agreement with immediate effect. For any subsequent Year, the transfer price will be agreed in line with Clause 20.3.

 

 

18.

Indemnity and Remedy for Breach of Agreement

 

18.1.

Manufacturer shall indemnify LTI in full for and against all claims, costs, expenses or liabilities whatsoever and howsoever arising incurred or suffered by LTI including without limitation all legal expenses and other professional fees (together with any VAT thereon) in relation to:

 

18.1.1.

anything done or omitted to be done in respect of any of the Employees which is deemed to have been done by LTI by virtue of the Employment Regulations (as defined in Schedule 8);

 

18.1.2.

any claim made at any time by any person employed or engaged by the Manufacturer other than the Employees who claim to have become an employee of or have rights against LTI by virtue of the Employment Regulations (“Claims”) (as defined in Schedule 8); or

 

18.1.3.

subject to Clause 18.4, any claim made against LTI by a third party alleging infringement of its patent or design rights in relation to New Vehicles or Parts in a Part A Country. For the avoidance of doubt, the indemnity in this Clause 18.1.3 does not extend to any trademark and other intellectual property rights);

 

18.1.4.

subject to Clauses 18.4 and 18.5, if any claim is made against the Distributor arising out of or in connection with the manufacture of or any Defect in a Part A Country, the Manufacturer shall indemnify the Distributor against all damages or other compensation awarded to that third party;

 

provided that such costs, claims, expenses and liabilities under Clauses 18.1.1,18.1.2 or 18.1.3 are not payable as a result of any act or omission of LTI; and

 

18.1.5.

in respect of any fines, penalties or other sanctions imposed, or claims or proceedings brought by a relevant supervisory authority in the territories where the Parties to this Agreement are established, other than the Information Commissioner (“Supervisory Authority”) against LTI as a result of LCL not complying with Data Protection Legislation in relation to Customer personal data prior to entering into a separate data processing agreement in relation to any such processing.

 

18.2.

LTI shall indemnify Manufacturer in full for and against all claims, costs expenses or liabilities whatsoever and howsoever arising, incurred or suffered by Manufacturer including without limitation all legal expenses and other professional fees (together with any VAT thereon) in relation to:

 

18.2.1.

any failure by LTI to comply with its obligations pursuant to the Employment Regulations; or

 

18.2.2.

anything done or omitted to be done by LTI in respect of any of the Employees whether before or after their TUPE Effective Date; and

 

18.2.3.

in respect of any fines, penalties or other sanctions imposed, or claims or proceedings brought by a Supervisory Authority against Manufacturer as a result of LTI not complying with Data Protection Legislation in relation to Customer personal data prior to entering into a separate data processing agreement in relation to any such processing.

 

18.3.

For the avoidance of doubt, in addition to the indemnities at Clauses 18.1 and 18.2, in the event of a breach of a term of this Agreement, the Parties have the remedy of damages for breach of contract and a Party may make a claim for damages in accordance with Clause 28. The claiming Party shall notify the other Party of its intention to make a claim and submit the necessary proof to support its claim, whilst mitigating any losses it may suffer or mitigate any existing/ongoing losses as a result of an event that give rise to or may give rise to a claim under this Agreement. Should the Parties not be able to agree a resolution to the alleged claims, costs, liabilities, losses and damages arising out of or in connection with a breach of the terms in this Agreement, the claiming Party may commence arbitration proceedings in respect of the alleged claims, costs, liabilities, losses and damages.

 

 

18.4.

Liability under the indemnity in Clause 18.1.3 is conditional on the following:

 

18.4.1.

as soon as reasonably practicable, where any third party makes a claim, or notifies an intention to makes a claim against LTI (or LCE, LCU, a Sub-Distributor or the Manufacturer) which may reasonably be considered to give rise to a liability under that indemnity (each a Claim), LTI shall give written notice of the Claim to Manufacturer, specifying the nature of the Claim in reasonable detail and shall take reasonable steps to mitigate the potential damage, such as suspending distribution and/or informing the Sub-Distributor to suspend selling of the Products according to the applicable law of the Territory;

 

18.4.2.

not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Manufacturer if such Claim had been brought to judicial procedure. Nevertheless, both Manufacturer and Distributor shall discuss the merits of the Claim as soon as reasonably possible and in good time to meet any deadlines imposed by applicable law in respect of the Claim and use their best efforts to agree the course of action most likely to limit the liability of the Manufacturer, acting reasonably and in good faith and where necessary, based upon external advice regarding the merits of the Claim.;

 

18.4.3.

in the event that the Parties cannot agree a course of action under Clauses 18.4.2, Distributor can at its own discretion decide the solution where it reasonably believes that defending the Claim would lead to greater liabilities or costs than settlement and that it would not have a more adverse effect on the Lotus brand. However, the Distributor shall provide Manufacturer with all documents reasonably requested by it so as to enable Manufacturer and its professional advisers to examine them for the purpose of assessing the Claim and/or any settlement and the Manufacturer shall be entitled to refer the matter to dispute resolution under Clause 28 for a determination as to whether the actions taken by the Distributor were more beneficial for the Manufacturer than the Manufacturer’s preferred course of action and therefore what liability should be borne by the Manufacturer; and/or

 

18.4.4.

where permitted by applicable law give the Manufacturer (where required by the Manufacturer) in writing sole authority to avoid, dispute, compromise or defend the Claim.

 

18.5.

LCU and not Manufacturer shall be liable for Product liability claims in the USA and therefore liability under Clause 18.1.4 in the USA is excluded. Notwithstanding the foregoing, but subject to Clause 2.6 in relation to profit margin, Distributor shall not be liable to LCU for Defects in the USA.

 

19.

Limitation of Liability

 

19.1.

Nothing in this Agreement shall exclude or restrict the liability of either Party to the other for death or personal injury resulting from negligence or for fraudulent misrepresentation or in any other circumstances where liability may not be limited under any applicable laws.

 

 

19.2.

Except in relation to Clause 17.2 and the indemnities provided at Clause 18.1 and 18.2, neither Party shall be liable to the other for loss of contract or opportunity, loss of profits or expected profits, loss of revenue, loss and/or costs associated with business interruption or loss of use or any punitive or exemplary damages or special, indirect, incidental or consequential damages arising from or relating to this Agreement or the performance or non-performance of obligations under the Agreement, whether based on warranty, condition, contract, tort (including negligence of any nature), strict liability, repudiatory breach or any other legal ground whatsoever.

 

20.

Performance of distribution

 

20.1.

Both Parties understand that the signing of this Agreement is based on the best interest of Lotus brand, both Parties agree that non-performance of distribution can affect the termination of this Agreement.

 

20.2.

The Parties agree that:

 

20.2.1

the scope, frequency and manner of performance of distribution detailed herein are subject to periodic review by the Parties;

 

20.2.2

changes to any of the Products (including the addition or deletion of Products) may be made at any time. However, changes to New Vehicles shall require agreement between the Parties (acting reasonably and in good faith) except when such changes are required for compliance with applicable laws of the UK or Territory including health and safety, where Manufacturer is required to make such changes as necessary, or where such change is so minor and does not affect the Product’s outward appearance or performance attributes;

 

20.2.3

the inclusion of future new vehicles shall be dealt with in accordance with clause 5;

 

20.2.4

changes to Territory (including the addition or deletion of Territory in Schedule 1) may be made on an annual basis in case of minimum targets for sales are not achieved and agreed to by the Parties as a written amendment to this Agreement; and

 

20.2.5

this Agreement may be amended from time to time according to the terms set out in Clause 21 (Amendments).

 

20.3.

The Parties agree that a yearly volume per variant, options and prices (or in the case of New Vehicles, the transfer price) of Products and After Sales Service for the USA and the rest of the Territory shall be determined in a yearly forecast meeting to be held no later than 90 days prior to the beginning of the fiscal year and attended by representatives of the Parties. In the forecast meeting, the needs of both Parties for Products will be shown and the corresponding scope of After Sales Services for the upcoming year and will be negotiated and agreed by the Parties.

 

20.4.

In accordance with the latest business plan, a volume scheduling forecast should be provided by the Distributor on a rolling 12-month basis by Vehicle variants and options. The volume forecast is subject to the agreed annual volume of the latest business plan. The agreed annual volume and the first three (3) month volume forecast are Fixed. The second three (3) month forecast is Firm.

 

20.4.1.

Fixed means the volume, Model Type and Options cannot be amended.

 

20.4.2.

Firm means the volume and Model Type are Fixed but Vehicle Options may be amended.

 

20.4.3.

Model Type means the list of Products listed in Schedule 3

 

20.4.4.

Options means non-standard features or add-ons that a Customer can choose for a Model Type before purchase.

 

 

20.5.

In the event Vehicle’s stock volume exceed 1.5 (one and half) times the average of the monthly invoicing volume from Manufacturer to Distributor over the past three months, Distributor may inform the Manufacturer by written notice. The Parties shall review the business plan in order to identify a mutually agreed solution.

 

20.6.

The price agreed for any Products shall be as set out in the annual business plan as required in Schedule 5. Any proposed changes to the price agreed in the annual business plan shall require the agreement of the Parties (acting reasonably and in good faith).

 

21.

Amendments

 

21.1.

The Parties hereto will periodically review this Agreement as to the reasonableness of its terms on an annual basis and, in any case, not later than three (3) months after the end of the accounting year. Such review may be evidenced by documentation reasonably acceptable to the other Party.

 

21.2.

No amendment to this Agreement shall be effective unless it shall be signed by both Parties to be bound by the proposed amendment.

 

21.3.

This Agreement shall be amended in accordance with the provisions of Clause 21.2.

 

22.

Confidentiality

 

22.1.

Each Party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other Party, without the prior written consent of the disclosing Party, except as permitted by Clause 22.2.

 

22.2.

Each Party may disclose the other Party's confidential information:

 

22.2.1.

to its Sub-Distributors, LCE or LCU (in the case of LTI) or an Affiliate of a Party, and their respective employees, officers, representatives or advisers who need to know such information for the purposes of exercising a Party's rights or carrying out its obligations under or in connection with this Agreement. Each Party, its Sub-Distributors or Affiliates (as the case may be) shall ensure that their employees, officers, representatives, advisers to whom they disclose a Party's confidential information comply with this Clause 22 (Confidentiality); or

 

22.2.2.

as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority;

 

22.2.3.

as may be required by LTI for use of its and/or its Affiliates’ audit, enquiry from investors, due diligence and any other requirement, or IPO;

 

provided such disclosure does not put either Party in breach of any of its confidentiality obligations.

 

22.3.

Confidential information disclosed under Clause 22.2 shall remain the confidential information of the disclosing Party.

 

 

22.4.

Disclosures of any customer personal data may only be made in accordance with clause 29 (Data Protection).

 

22.5.

The obligations in this Clause 22 shall not apply to information which:

 

22.5.1.

was known to the recipient (as evidenced by the recipient's written records) prior to it being disclosed to the recipient by the disclosing Party;

 

22.5.2.

is or hereafter becomes public knowledge through no act or failure to act on the recipient's part;

 

22.5.3.

is hereafter obtained by the Recipient from a third party who is not under a duty of confidentiality relating to such confidential information; or

 

22.5.4.

is required to be disclosed by any relevant legislation or order of any Court of competent jurisdiction, provided that the Recipient shall: (a) give as much prior notice as possible to the disclosing Party of any such requirement to disclose; and, (b) use its best endeavours to obtain assurances of confidentiality from the party to whom the confidential information is required to be disclosed; and, (c) disclose only the minimum amount of disclosing Party’s confidential information sufficient to comply with the legislation or court order.

 

22.6.

For the purposes of this Agreement, information shall not be deemed to be public knowledge or known to the recipient on the grounds only that:

 

22.6.1.

the general principle is public knowledge or known to the recipient if the particular practice disclosed by the disclosing Party is not itself public knowledge or so known, or

 

22.6.2.

it constitutes a combination (not itself public knowledge or known to the Recipient) of information which is public knowledge or so known.

 

22.7.

Except otherwise agreed, no Party shall use any other Party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.

 

23.

Force Majeure

 

23.1.

Neither Party shall be liable to the other Party for failure to perform its obligations where such performance is prevented by riots, war, hostilities between any nations, acts of God, fire, storm, flood, earthquake, strikes, pandemics (collectively referred to as ‘Natural Events’), outcomes including labour disputes, shortage or delay of carriers, shortage or delay of parts from supply chain, shortage of raw materials, labour, power or other utility services which were resulted from Natural Events, and governmental restrictions and other events beyond the reasonable control and precaution of either Party (each a Force Majeure Event) whose performance is prevented or interfered with. The affected Party shall promptly notify the other Party of the occurrence of the Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event and continue to use its commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans or other means.

 

23.2.

Subject to clause 23.1, if the period of delay or non-performance continues for 60 days, and the affected Party is unable to reverse the non-performing, hindered or delayed of the Agreement resulted from the Force Majeure Event with its commercially reasonable efforts, the affected Party may terminate the Agreement by giving 30 days’ written notice to the other Party. Notwithstanding, the affected Party is still responsible and liable for all of its performance before the occurrence of the Force Majeure Event and the defaults which is not resulted from the Force Majeure Event.

 

 

24.

Taxes

 

24.1.

Any tax imposed by destination country relating to the importation of the Products under this Agreement shall be borne by the Distributor.

 

24.2.

Any tax imposed and incurred within the UK on a Party shall be borne by that Party save that any taxes imposed on LCL as a result of insufficient consideration or costs paid by LTI under this Agreement shall be refunded to LCL by LTI.

 

24.3.

Each Party will cooperate with and provide reasonable assistance to the other Party with respect to recovery, if possible, of any applicable taxes.

 

25.

Entire Agreement

 

25.1.

The Agreement, inclusive of the schedules, constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

 

25.2.

In the event of any discrepancy, inconsistency or conflict between the specific provisions of this Agreement and the Schedules, the interpretation of the Schedules shall prevail.

 

26.

Survival

 

26.1.

Notwithstanding any other provision of this Agreement, clause 1 (Definitions), clause 10 (Warranty), clause 12 (Recall Work), clause 13 (Compliance), clause 15, (Consequence of Termination), clause 18 (Indemnity), clause 19 (Limitation of Liability), clause 22 (Confidentiality), clause 24 (Taxes) and clause 28 (Governing Law, Jurisdiction and Dispute Resolution), Schedule 2 shall survive termination of this Agreement and continue in full force and effect, along with any clauses or schedules to this Agreement necessary to give effect to such clauses.

 

26.2.

To avoid any doubt, the rights of distribution and servicing of the Products granted for the Distributor under clause 2 (Distribution Rights) shall survive for the minimum period necessary to permit the Distributor to discharge its obligations in respect of providing New Vehicles already in its possession to Customers.

 

27.

Miscellaneous

 

27.1.

Territory of distribution. The Parties may amend the Territory by a written amendment to this Agreement signed by both Parties.

 

 

27.2.

Separation of operation. Parties will set their management and operation strategy separately based on the condition of local market. Strategies will not affect the right of distribution for both Parties.

 

27.3.

Cost of sale. Both Parties understand that the signing of this Agreement will not affect the structure of the Parties. So, each Party will remain responsible for their own cost of sale.

 

27.4.

Plural and singular word. Words used herein in the singular, where the context so permits, shall be deemed to include the plural and vice versa. The definitions of words in the singular herein shall apply to such words when used in the plural where the context so permits and vice versa.

 

27.5.

Notices. Notices to be given under this Agreement shall be sent by registered delivery or reputable signed for courier to the registered office of the other Party (with a copy sent by email (if provided) for information) as set out below. The notice shall be deemed to have been delivered upon being signed for.

 

		To LTI		To LCL
	Attention:	Business Office		Director of Legal & Compliance
	Address:	Unit 6 Doyle Drive, Blackburn Road Industrial Estate, Coventry, CV6 6NW		Potash Lane, Hethel, Norwich, Norfolk, NR14 8EZ, England
	Telephone:
	Email:	peng.fu@lotuscars.com.cn		Legal@lotuscars.com

 

28.

Governing Law, Jurisdiction and Dispute Resolution

 

28.1.

The conclusion, validity, interpretation, performance and dispute resolution of this Agreement between the Parties shall be governed by and construed in accordance with the laws of England and Wales. The provisions of private international law and the UN Convention on Contracts for the International Sale of Goods shall not apply.

 

28.2.

Any dispute arising from or in connection with this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the London Court of International Arbitration (LCIA) under the LCIA Administered Arbitration Rules in force when the Notice of Arbitration is submitted. This arbitration clause shall be governed by the laws of England and Wales. The number of arbitrators shall be three. The place of arbitration shall be London. The arbitration proceedings shall be conducted in English and all documents filed during the arbitration shall be written in English. The Parties further confirm that the arbitral award shall be final and binding on both Parties and shall not be appealed. The arbitral award shall take a decision on the allocation of arbitration fees and all the other relevant matters.

 

28.3.

In the event of dispute or claim arising out of or in connection with the interpretation, performance or breach of this Agreement, including any disputes based on breach of contract, tort or statute, the Parties shall notify the other Party in the first instance and use best endeavours to resolve such dispute in an amicable and timely manner.

 

29.

Data Protection Compliance

 

29.1.

The Parties will enter into a data processing agreement to govern any sharing of customer personal data before any sharing takes place. The Parties agree that each Party shall be an independent controller in respect of any customer personal data that they process and each shall comply with all applicable laws, regulations and provisions on data protection, including without limitation those of the England and Wales and the European Union, such as the UK Data Protection Act 2018 and the EU General Data Protection Regulation (Regulation (EU) 2016/679) (collectively referred to as the ‘Data Protection Legislation) in respect of the processing of customer personal data.

 

 

30.

Language

 

30.1.

This Agreement is drafted in English. All notices, documents or information provided by one Party to the other Party under this Agreement shall be made in English.

 

31.

Deposits

 

31.1.

On acceptance of an Order by the Manufacturer, Distributor shall pay to the Manufacturer the deposit specified for a model of New Vehicle (for the USA or the rest of the Territory) in the business plan referred to in Schedule 5 (which in any case shall be equal to the amount of deposit to be paid by the Customer to the Distributor) within 45 days of receipt of an invoice. The deposit shall be deducted from the total transfer price of the New Vehicle due and payable by the Distributor.

 

31.2.

For deposits already paid to Manufacturer by Customers at the Commencement Date, such deposits shall remain with the Manufacturer and the amount of the deposit shall be deducted from the total transfer price of the New Vehicle due and payable by the Distributor.

 

31.3.

Manufacturer shall use reasonable endeavours to novate a Customer contract to the Distributor. Distributor agrees and acknowledges in this Agreement that from the date that the Customer consents to the novation of the contract from Manufacturer to Distributor, Distributor releases Manufacturer from all its future obligations to the Customer and shall reimburse Manufacturer in accordance with Clause 17.2

 

31.4.

Where a Customer does not wish for their contract to be novated to the Distributor, or fails to engage in the process of novation, Manufacturer shall retain the money and take steps to refund the deposit to the Customer.

 

31.5.

Distributor shall use best endeavours to maintain Customer satisfaction in order to keep the Customer contracts.

 

32.

Counterpart

 

32.1.

Transmission of an executed counterpart of this Agreement (but for the avoidance of doubt not just a signature page) electronically in a .pdf or .jpeg format shall take effect as the transmission of an executed "wet-ink" counterpart of this Agreement.

 

 

Execution page

 

In witness whereof, the Parties shall cause their respective authorized representatives to sign this Agreement. For the avoidance of doubt, this Agreement shall be deemed as signed on the date showed on the first line of the beginning of the Agreement regardless of the actual date when each Party signs this Agreement or the date placed on the execution page.

 

For and behalf of: Lotus Cars Limited				For and behalf of: Lotus Technology Innovative Limited
Representative:		/s/ Donghui Li		Representative:		/s/ Qingfeng Feng
Title:	Director			Title:	Director
Date	January 31, 2023			Date	January 31, 2023

 

 

Exhibit 10.7

 

PUT OPTION AGREEMENT

 

This PUT OPTION AGREEMENT (this “Agreement”) is made and entered into on January 31, 2023 (the “Effective Date”) by and between:

 

1.

Lotus Technology Inc., an exempted company limited by shares incorporated under the laws of the Cayman Islands (the “LTC”);

 

2.

Geely International (Hong Kong) Limited (Company No. 940401), a private company incorporated under the laws of Hong Kong whose registered office is at 1 Unit 2204, 22/F, Lippo Centre, Tower 2, 89 Queensway, Hong Kong (“Geely”);

 

3.

Lotus Advance Technologies Sdn Bhd (Company No. 638159-V), a private limited company incorporated under the laws of Malaysia (“LAT”); and

 

4.

Lotus Group International Limited, a company incorporated in England and Wales with company number 02831840 with its registered address at Potash Lane, Hethel, Norwich, Norfolk, NR 14 8EZ (“LGIL”).

 

Each of the parties listed above is referred to herein individually as a “Party” and collectively as the “Parties”.

 

RECITALS

 

WHEREAS, Geely desires to have the right to require LTC to purchase the Option Shares, representing all the issued and outstanding shares of the Target held by Geely, and LTC desires to grant such right to Geely, pursuant to the terms and conditions set forth herein;

 

WHEREAS, LTC, Etika, LAT and LGIL have entered into that certain put option agreement (the “Etika Put Option Agreement”) on the same date hereof, pursuant to which Etika shall have the right to require LTC to purchase all the issued and outstanding shares of the Target held by Etika;

 

WHEREAS, on the Effective Date, LTC, L Catterton Asia Acquisition Corp, an exempted company limited by shares incorporated under the laws of the Cayman Islands (“SPAC”), Lotus Temp Limited, an exempted company limited by shares incorporated under the laws of the Cayman Islands and a direct wholly owned subsidiary of LTC (“Merger Sub 1”) and Lotus EV Limited, an exempted company limited by shares incorporated under the laws of the Cayman Islands and a direct wholly owned subsidiary of LTC (“Merger Sub 2”) entered into that certain Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which, among other matters, (i) Merger Sub 1 will merge with and into SPAC with SPAC continuing as the surviving entity and a wholly owned subsidiary of LTC (the “First Merger”), (ii) immediately following the consummation of the First Merger,  SPAC will merge with and into Merger Sub 2 with Merger Sub 2 continuing as the surviving entity and a wholly owned subsidiary of LTC; and

 

 

WHEREAS, as a condition to the willingness of the parties to the Merger Agreement to enter into the Merger Agreement, the Parties intend to enter into this Agreement.

 

NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements herein set forth and subject to and on the terms and conditions herein set forth, the Parties agree as follows:

 

1.            Definitions

 

The following terms shall have the meanings ascribed to them as below:

 

“Affiliate” of any Person means any other Person that directly or indirectly controls, is controlled by or is under common control with such Person. As used in this Agreement, “control” (including, its correlative meanings “controlled by” and “under common control with”) means possession, directly or indirectly, of power to direct or cause the direction of management or policies.

 

“Approvals” means any approval, authorization, consent, permit, qualification or registration, or any waiver of any of the foregoing, required to be obtained from or made with, or any notice, statement or other communication required to be filed with or delivered to, any Governmental Authority or any other Person.

 

“Base Amount” means the total revenues of LGIL for the year ended December 31, 2024 as reflected on the audited consolidated financial statements of LGIL as of December 31, 2024, subject to adjustment pursuant to Section 2.1.

 

“Business Day” means any day that is not a Saturday, Sunday, legal holiday or other day on which commercial banks are required or authorized by law to be closed in the Cayman Islands, Hong Kong and Malaysia.

 

“Cash” means the aggregate amount of all cash and cash equivalents of LGIL as reflected on the audited consolidated financial statements of LGIL as of December 31, 2024.

 

“Consent” means any consent, approval, authorization, release, waiver, permit, grant, franchise, concession, agreement, license, exemption or order of, registration, certificate, declaration or filing with, or report or notice to, any Person, including any Governmental Authority.

 

“Contract” means a contract, agreement, indenture, note, bond, loan, instrument, lease, mortgage, franchise, license, commitment, purchase order, and other legally binding arrangement, whether written or oral.

 

“Debt” means the aggregate outstanding amount of the indebtedness of LGIL as reflected on the audited consolidated financial statements of LGIL as of December 31, 2024 (not taking into account the outstanding principal amount of any loan provided by Geely or Etika to the Target or any of its Subsidiaries, which will be subject to Section 3.5).

 

 

“Encumbrance” means any security interest, pledge, mortgage, lien, charge, claim, hypothecation, title defect, right of first option or refusal, right of pre-emption, third-party right or interests, put or call right, lien, adverse claim of ownership or use, or other encumbrance of any kind, except those required by the applicable Laws.

 

“Etika” means Etika Automotive Sdn Bhd, a company incorporated under the laws of Malaysia and having its registered address at 110, Jalan Maarof, Bangsar Baru, 59000 Kuala Lumpur, Malaysia, which holds 49% of the issued share capital of the Target as of the date hereof.

 

“Geely’s Pro Rata Share” means 51%, as adjusted upon conversion of all the Shareholder Loan Amount into share capital of the Target pursuant to Section 3.5.

 

“Governmental Authority” means any government of any nation or any federation, province or state or any other political subdivision thereof, any entity, authority or body exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any governmental authority, agency, department, board, commission or instrumentality of the applicable jurisdiction, or any political subdivision thereof, any court, tribunal or arbitrator, and any self-regulatory organization.

 

“Governmental Order” means any applicable order, ruling, decision, verdict, decree, writ, subpoena, mandate, precept, command, directive, consent, approval, award, judgment, injunction or other similar determination or finding by, before or under the supervision of any Governmental Authority.

 

“IFRS” means the International Financial Reporting Standards issued by the International Accounting Standards Board, as in effect from time to time.

 

“Law” or “Laws” means any and all provisions of any applicable constitution, treaty, statute, law, regulation, ordinance, code, rule, or rule of common law, any governmental approval, concession, grant, franchise, license, agreement, directive, requirement, or other governmental restriction or any similar form of decision of, or determination by, or any formally issued written interpretation or administration of any of the foregoing by, any Governmental Authority, in each case as amended, and any and all applicable Governmental Orders.

 

“LCU” means Lotus Cars USA Inc., a Delaware corporation which is indirectly wholly owned by the Target.

 

“Leakage” means any of those matters set out in Part 1 of Schedule A but does not include any Permitted Leakage.

 

“Lien” means any claim, charge, easement, encumbrance, lease, covenant, security interest, lien, option, pledge, rights of others, or restriction (whether on voting, sale, transfer, disposition or otherwise), whether imposed by Contract, understanding, law, equity or otherwise.

 

“Locked Box Claim” means a claim for breach of any of the warranties in Section 6.1.

 

“Locked Box Date” means December 31, 2024.

 

 

“LTC Shares” means the ordinary shares of LTC, par value $0.00001 per share.

 

“Option Shares” means 1,004,153,547 shares of LAT or, to the extent Geely and Etika cease to directly hold shares of LAT at the time when the Put Option is exercised, such shares held by Geely in the Target at the time when the Put Option is exercised, together with such shares of the Target converted from the Shareholder Loan Amount pursuant to Section 3.5.

 

“Permitted Leakage” means any of those matters set out in Part 2 of Schedule A.

 

“Person” means any individual, sole proprietorship, partnership, limited partnership, limited liability company, firm, joint venture, estate, trust, unincorporated organization, association, corporation, institution, public benefit corporation, entity or governmental or regulatory authority or other enterprise or entity of any kind or nature.

 

“Put Option Price” means an amount in dollars equal to Geely’s Pro Rata Share * [1.15 * Base Amount + Cash – Debt], subject to adjustment pursuant to Section 2.1.

 

“Related Person” means, with respect to a Person, (a) any Affiliate of that Person and any current or former direct or indirect shareholder of that Person or its Affiliates; (b) any current or former director or officer of such Person or its Affiliates, and any member of such director’s or officer’s immediate family; and (c) any trust, partnership or other entity established for the benefit of any of the Persons referred to in the aforementioned items (a) and (b); but in any such case with respect to Geely or Etika, shall not include the Target Group.

 

“Shareholder Loan Amount” means the outstanding portion of the principal amount of any loan provided by Geely or Etika to the Target or any of its Subsidiaries as of the date of the Put Exercise Notice, together with any accrued and unpaid interest thereon.

 

“Subsidiary” means, with respect to a Person, any other Person controlled, directly or indirectly, by such Person and, in case of a limited partnership, limited liability company or similar entity, such Person is a general partner or managing member and has the power to direct the policies, management and affairs of such Person, respectively.

 

“Target Group” means the Target and its Subsidiaries, and “Target Group Company” means any one of them.

 

“Target” means LAT, or if Geely and Etika cease to directly hold shares of LAT, LGIL or any other holding company in which Geely and Etika directly hold their respective shares in the same percentage as their respective shareholding percentage in Lotus Advance Technologies Sdn Bhd as of the date hereof.

 

“Transfer” means, with respect to any security, any sale, assignment, transfer, distribution or other disposition thereof, or other conveyance, creation, incurrence or assumption of a legal or beneficial interest therein, or a participation or Encumbrance therein, or creation of any short position in any such security or any other action or position otherwise reducing risk related to ownership through hedging or other derivative instrument, whether voluntarily or by operation of Law, whether in a single transaction or a series of related transactions.

 

 

2.            Treatment of LCU

 

2.1            LCU Divesture. The Parties hereby agree to discuss and agree on the treatment of LCU following the date hereof and in any event, prior to January 1, 2025, including whether LCU shall be included in the Target Group when Geely exercises the Put Option, and the potential reduction on the Put Option Price and other terms and conditions of divesture of LCU if LCU is excluded from the Target Group.

 

3.            Put Option

 

3.1            Grant of Put Option. Subject to the terms and conditions of this Agreement, Geely shall have the exclusive and irrevocable right, but not the obligation, to require LTC to purchase the Option Shares (the “Put Option”) by delivery of a Put Exercise Notice (as defined below) in accordance with Section 3.3(i), and upon receipt of such Put Exercise Notice by LTC, LTC shall issue certain number of newly issued LTC Shares to Geely and Geely shall Transfer or cause the Transfer of the Option Shares to LTC or any Person designated by LTC. The number of LTC Shares to be issued to Geely shall be equal to the quotient of (a) the Put Option Price, divided by (b) the per share listing price of the LTC Shares.

 

3.2            Exercise Period and Condition. The Put Option may be exercised by Geely during the period from April 1, 2025 to June 30, 2025 (the “Put Option Period”), subject to the condition that the total number of vehicles sold by the Target Group in 2024 exceeds 5,000 (the “Exercise Condition”).

 

3.3            Procedure

 

(i)             For so long as the Exercise Condition is satisfied, at any time during the Put Option Period, Geely may exercise the Put Option by delivering a written notice substantially in the form attached hereto as Exhibit A (the “Put Exercise Notice”) to LTC.

 

(ii)            Except for the delivery of the Put Exercise Notice under Section 3.3(i), and subject at all times to the Exercise Condition and applicable Laws, there are no other prerequisite or incidental conditions or procedures for Geely to exercise the Put Option pursuant to this Agreement.

 

(iii)           To the extent any Approval is required in connection with the closing of any Transfer of the Option Share, each of LTC and Geely shall, and shall cause its Affiliates to, use its reasonable best efforts to obtain, and to cooperate with the other Party with respect to, such Approval.

 

 

(iv)           On the fifth (5th) Business Day following the later of (i) receipt of a Put Exercise Notice by LTC, and (ii) any Approvals required by applicable Law to be obtained prior to the Transfer of the Option Share being obtained (the “Option Closing Date”), (x) Geely shall (A) Transfer the Option Shares, free and clear of all Encumbrances, and with all rights attaching thereto, to LTC, and (B) provide to LTC evidence showing LTC as the registered holder of the Option Shares, and (y) LTC shall (A) issue such number of LTC Shares as determined pursuant to Section 3.1, free and clear of all Encumbrances (other than those arising under applicable securities laws), and cause the LTC Shares to be registered in book-entry form in the name of Geely on LTC’s stock ledger, and (B) provide to Geely evidence of such issuance from LTC’s transfer agent.

 

(v)            Geely shall represent and warrant to LTC, as of the Option Closing Date, (i) Geely has full right, title and interest in and to the Option Shares, (ii) Geely has all the necessary power and authority and has taken all necessary action to Transfer the Option Shares to LTC as contemplated by this Section 3, (iii) the Option Shares are free and clear of any and all Encumbrances, and (iv) the Option Shares, together with the shares of the Target held by Etika, shall represent all the issued and outstanding shares of the Target.

 

(vi)           LTC shall represent and warrant to Geely, as of the Option Closing Date, the LTC Shares will have been duly authorized, and when issued and delivered to Geely against Transfer of the Option Shares in full from Geely to LTC in accordance with the terms of this Agreement, the LTC Shares will be validly issued and fully paid and non-assessable, free and clear of any and all Encumbrances (other than those arising under applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under LTC’s organization documents (as in effect at such time of issuance) or the laws of the Cayman Islands.

 

3.4            Distribution of LTC Shares by LGIL. Upon exercise by Geely of the Put Option under this Agreement, LGIL hereby agrees to take any and all actions to distribute the LTC Shares held by LGIL on the date of the Put Exercise Notice to Geely such that Geely shall receive Geely’s Pro Rata Share of such number of LTC Shares held by LGIL concurrently with the completion of transactions contemplated under Section 3.3(iv) on the Option Closing Date.

 

3.5            Conversion of Shareholder Loan. In the event there is any outstanding loan provided by Geely to any Target Group Company as of the date of the Put Exercise Notice, Geely shall take any and all actions to convert all the Shareholder Loan Amount into share capital of the Target immediately after the date of the Put Exercise Notice. To the extent any portion of the Shareholder Loan Amount is not converted into share capital of the Target, the Put Option Price shall be reduced by an amount equal to the outstanding portion of the principal amount of any loan provided by Geely to any Target Group Company as of the Option Closing Date.

 

3.6            Adjustment for Leakage. If Geely has notified LTC under Section 4.5 of any Leakage that occurs between the Locked Box Date and Option Closing Date, then the Put Option Price shall be reduced by Geely’s Pro Rata Share of such amount. If Geely and LTC have agreed in accordance with Section 6.2 an agreed amount with respect to any Leakage that occurs between the Locked Box Date and Option Closing Date, then the amount of any payment made by Geely to LTC in respect of such Leakage shall be treated, as far as possible, as an adjustment to the Put Option Price paid by LTC for the Option Shares under this Agreement and the Put Option Price shall be deemed to have been reduced by the amount of such payment.

 

 

3.7            Waiver of ROFR. Geely hereby waives, and agrees not to exercise, assert or claim, to the fullest extent permitted by applicable Law, the right of first refusal with respect to all the issued and outstanding shares of the Target held by Etika when Etika transfers such shares of the Target to LTC pursuant to the Etika Put Option Agreement.

 

4.            Transfer Restrictions; Additional Agreements

 

4.1            Restrictive Covenants on Conduct of Business. During the term of this Agreement, in the absence of the prior written consent of LTC, LAT undertakes that it shall not, and shall cause its Subsidiaries not to, and Geely undertakes that it shall cause the Target Group not to, directly or indirectly:

 

(i)             make any material change in its accounting principles or methods unless required by the IFRS or applicable Laws;

 

(ii)            accelerate deliverables under the Contracts with customers; and

 

(iii)           issue, sell, grant, pledge or otherwise dispose of (a) any of the equity securities of the Target or its Subsidiaries to a third party, or (b) any options, warrants, rights of conversion or other rights, agreements, arrangements or commitment obligations of the Target or any of its Subsidiaries to purchase or obtain any equity securities of the Target or any of its Subsidiaries to a third party.

 

4.2            Information Rights. The Target covenants and agrees that, during the term of this Agreement, the Target shall deliver, and Geely shall cause the Target to deliver, to LTC:

 

(i)             audited annual consolidated financial statements, within ninety (90) days after the end of each fiscal year; and

 

(ii)            upon written request by LTC, such other information as LTC shall reasonably request (except that the Target is not obligated to supply to LTC any document that is privileged and/or is legally protected from discovery or disclosure during a legal proceeding involving the Target Group).

 

4.3            Restrictive Covenants on Transfer of Option Shares. During the term of this Agreement, in the absence of the prior written consent of LTC, Geely undertakes that it shall not (and shall cause its Affiliates not to), directly or indirectly:

 

(i)             Transfer the Option Shares or any right, title or interest therein or thereto;

 

(ii)            grant any proxies or powers of attorney or enter into any voting arrangement, whether by proxy, voting agreement, voting trust, voting deed or otherwise (including pursuant to any loan of the Option Shares), or enter into any other agreement, with respect to any Option Shares;

 

(iii)           take any action that would reasonably be expected to make any representation or warranty of Geely herein untrue or incorrect, or would reasonably be expected to have the effect of preventing or disabling Geely from performing its obligations hereunder;

 

 

(iv)           directly or indirectly (through any officer, director, shareholder, employee, agent or representative of him or it) solicit, initiate or encourage any proposal from any Person to purchase or acquire the Option Share, or enter into or engage in any negotiations or discussions with, or provide any information to, any Person relating to the above; or

 

(v)            commit or agree to take any of the foregoing actions.

 

4.4            Transfer Void; Equitable Relief. Parties agree that any Transfer of Option Shares not made in compliance with the requirements of this Agreement shall be null and void ab initio, shall not be recorded on the books of the Target or its transfer agent and shall not be recognized by the Target. Each Party hereto acknowledges and agrees that any breach of this Agreement could result in substantial harm to the other Parties for which monetary damages alone could not adequately compensate. Therefore, the Parties unconditionally and irrevocably agree that any non-breaching Party hereto shall be entitled to seek protective orders, injunctive relief and other remedies available at law or in equity (including, without limitation, seeking specific performance or the rescission of purchases, sales and other Transfers of Option Shares not made in strict compliance with this Agreement).

 

4.5            Pre-Closing Notifications. At least five (5) Business Days prior to the intended Option Closing Date, Geely shall provide to LTC a schedule setting out in reasonable details the amount of any known Leakage and any reductions in respect of such event to be made to the Put Option Price.

 

5.            Representations and Warranties

 

5.1            Each Party hereby represents and warrants to the other Parties that each of the representations and warranties set forth below is true and correct as of the date hereof:

 

(i)            Such Party is duly organized, validly existing and in good standing under applicable the Laws of the jurisdiction of its incorporation or organization.

 

(ii)            Such Party has the requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by such Party, and no other corporate proceeding on the part of such Party is necessary to authorize this Agreement or such Party’s performance hereunder. This Agreement has been duly and validly executed and delivered by such Party and, assuming due and valid authorization, execution and delivery by each other party hereto, constitutes a valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, except (i) as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting enforcement of creditors’ rights generally, and (ii) as may be limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies.

 

 

(iii)           No consent of or with any Governmental Authority on the part of such Party is required to be obtained or made in connection with the execution, delivery or performance by such Party of this Agreement or the consummation by such Party of the transactions contemplated hereby, other than (a) Approvals by applicable Governmental Authorities in the U.S. if and to the extent LCU will be included in the Target Group when Geely exercises the Put Option, and (b) where the failure to obtain or make such consents or to make such filings or notifications would not reasonably be expected to prevent, impede or, in any material respect, delay or adversely affect the execution and performance by such Party of its obligations under this Agreement or the consummation of the transactions contemplated hereby.

 

(iv)           The execution, delivery and performance by such Party of this Agreement do not and will not (a) contravene or conflict with or violate any provision of, or result in the breach of the organizational documents of such Party, (b) contravene or conflict with or result in a violation of any provision of any Law or Governmental Order binding upon or applicable to such Party or any of its properties or assets, (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination or acceleration of, or a right of termination, cancellation, modification, acceleration or amendment under, accelerate the performance required by, any of the terms, conditions or provisions of any Contract to which such Party is a party, or (d) result in the creation or imposition of any Encumbrance on any properties or assets of such Party, except in the case of each of clauses (b) through (d) that do not, and would not reasonably be expected to, prevent, impede or, in any material respect, delay or adversely affect the performance by such Party of its obligations under this Agreement or the consummation of the transactions contemplated hereby.

 

5.2            Geely hereby represents and warrants to LTC that each of the representations and warranties set forth below is true and correct as of the date hereof and the Option Closing Date:

 

(i)             Geely is the sole legal and beneficial owner of the Option Shares, free and clear of all Encumbrances. Geely has the power to sell, transfer, assign and deliver its Option Shares as provided in this Agreement and, upon transfer and delivery of the Option Shares to LTC and payment therefor in accordance with this Agreement, such transfer and delivery will convey to LTC good and marketable title to such Option Shares, free and clear of all Encumbrances. The Option Shares are duly authorized, validly issued, fully paid and non-assessable.

 

(ii)            The Option Shares represent Geely’s Pro Rata Share of all the issued and outstanding shares of the Target.

 

(iii)           The Option Shares, together with the shares of the Target held by Etika, represent all the issued and outstanding shares of the Target.

 

 

6.            Leakage

 

6.1            Warranty and Undertaking. Geely undertakes there will be no Leakage between the Locked Boxed Date and the Option Closing Date, subject to relevant exclusions, limitations and qualifications set out in this Section 6.

 

6.2            Locked Box Claims.

 

(i)             No Locked Box Claim may be made against Geely unless notice of the Locked Box Claim, specifying in reasonable detail the legal and factual basis and evidence on which the Locked Box Claim is made and LTC’s estimate of the amount of Leakage which is the subject of such Locked Box Claim (“Locked Box Claim Notice”), is served on Geely in writing as soon as practicable after LTC becomes aware of the circumstances giving rise to the Locked Box Claim, and in any case, within twelve (12) months following the Option Closing Date.

 

(ii)            Within fifteen (15) Business Days of receiving the Locked Box Claim Notice, Geely shall either pay in cash an amount equal to Geely’s Pro Rata Share of the relevant Leakage actually paid or required to be paid by the relevant Target Group Company giving rise to such Locked Box Claim to LTC or Geely shall dispute the existence and/or value of any Leakage amount claimed by sending a written notice to LTC setting out in reasonable detail the legal and factual basis of such dispute and evidence on which Geely relies (a “Locked Box Claim Dispute Notice”).

 

(iii)           Upon receipt of a Locked Box Claim Dispute Notice, LTC and Geely shall negotiate in good faith and act reasonably to agree on the amount of the Leakage. If Geely and LTC cannot agree on the amount of the Leakage within thirty (30) Business Days of receipt of the Locked Box Claim Dispute Notice by LTC, then the matter (“Locked Box Claim Dispute”) shall be determined in accordance with the provisions of Schedule B.

 

(iv)           No liability shall attach to Geely in respect of any Locked Box Claim to the extent that the Locked Box Claim is based upon a liability which is contingent only or is otherwise not capable of being quantified unless and until such liability ceases to be contingent and becomes an actual liability or becomes capable of being quantified, as the case may be. For the avoidance of doubt, no disputed Leakage amounts shall be payable under this Section 6.2 by Geely unless and until such amounts have been agreed, finalised and/or determined in accordance with this Section 6.2. Notwithstanding the foregoing, LTC shall be permitted to deliver a Locked Box Claim Notice to Geely based upon a contingent liability pursuant to this Section 6.2 even if such contingent liability has not been quantified or become an actual liability. For the avoidance of doubt, for so long as the Locked Box Claim is delivered by LTC to Geely within twelve (12) months following the Option Closing Date pursuant to Section 6.2(i), even if such contingent liability becomes an actual liability or becomes capable of being quantified, as the case may be, after twelve (12) months following the Option Closing Date, Geely shall continue to be liable for such liability.

 

(v)            If closing of the transactions contemplated by this Agreement does not occur, Geely shall have no liability to LTC under this Section 6.

 

 

(vi)           LTC’s only right and remedy under this Section 6 shall be an adjustment made pursuant to Section 3.6 and/or any payments made pursuant to this Section 6.2. LTC shall not be entitled to recover from Geely or any other person more than once for the same damage suffered, whether under this Section 6.2 or any other provision of this Agreement, which for the avoidance of doubt includes any right to recover under any policy of insurance. No liability shall attach to Geely in respect of any Locked Box Claim if and to the extent that such Locked Box Claim relates to any loss or damage recoverable by LTC or any of its Subsidiaries under any policy of insurance (after taking into account any deductible under such insurance policy and less any taxation suffered or payable on the proceeds and any reasonable out of pocket expenses suffered or incurred by LTC or any of its Subsidiaries in connection with the claim).

 

(vii)          The maximum liability of Geely in respect of a single Locked Box Claim shall not exceed Geely’s Pro Rata Share of the amount of Leakage giving rise to such claim actually paid by or required to be paid by the relevant Target Group Company.

 

7.            Indemnification

 

Each Party (the “Indemnitor”) shall indemnify the other Parties (the “Indemnitee”) against all losses, costs, damages and expenses (including attorney fees) suffered or incurred by the Indemnitee directly or indirectly as result of a breach or non-compliance by the Indemnitor of any of its representations, warranties or covenants contained herein, except to the extent such losses, costs, damages and expenses are found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnitee’s gross negligence or wilful misconduct.

 

8.            Termination

 

This Agreement shall continue in full force and effect at all times after the Effective Date provided that this Agreement shall be terminated (i) upon the date when the Option Shares have been transferred to LTC or its designee through the exercise of Put Option pursuant to Section 2 or otherwise, or (ii) automatically upon expiration of the Put Option Period. Termination of this Agreement shall not excuse any Party from any liability arising at or prior to such termination, and Section 6, Section 7, this Section 8, Section 9 and Section 10 shall survive such termination.

 

9.            Governing Law and Dispute Resolution

 

9.1            Governing Law. This Agreement shall be governed by and construed under the Laws of Hong Kong, without regard to principles of conflict of Laws thereunder.

 

9.2            Dispute Resolution

 

(i)             Any dispute, controversy or, claim or difference of any kind whatsoever arising out of, relating to or in connection with this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof (the “Dispute”) shall be referred to and finally resolved by arbitration at the Hong Kong International Arbitration Center (the “HKIAC”) in accordance with the HKIAC Administered Arbitration Rules in force at the time of the commencement of the arbitration. To the extent such rules are in conflict with the provisions of this Section 9.2, including the provisions concerning the appointment of arbitrators, this Section 9.2 shall prevail.

 

 

(ii)            The seat of arbitration shall be Hong Kong.

 

(iii)           There shall be three (3) arbitrators. The claimant and respondent shall each nominate one (1) arbitrator and the third arbitrator shall be appointed by the HKIAC. The arbitration shall be conducted in the English language.

 

(iv)           Each party to the arbitration shall cooperate with each other party to the arbitration in making full disclosure of and providing complete access to all information and documents requested by such other party in connection with such arbitral proceedings, subject only to any confidentiality obligations binding on such party.

 

(v)            The award of the arbitral tribunal shall be final and binding upon the parties thereto, and the prevailing party may apply to a court of competent jurisdiction for enforcement of such award.

 

(vi)           The arbitral tribunal shall decide any Dispute submitted by the parties to the arbitration strictly in accordance with the substantive Laws of Hong Kong (without regard to principles of conflict of Laws thereunder) and shall not apply any other substantive Law.

 

(vii)          The Parties agree that the arbitral tribunal shall have the power to award equitable remedies (including specific performance). Any party to the Dispute shall be entitled to seek interim measures of protection and emergency relief in aid of arbitration from any court of competent jurisdiction. Application for such protective or similar emergency interim relief shall not be deemed inconsistent with the agreement to arbitrate or deemed a waiver of the right to arbitrate.

 

(viii)         During the course of the arbitral tribunal’s adjudication of the Dispute, this Agreement shall continue to be performed except with respect to the part in dispute and under adjudication.

 

10.            Miscellaneous

 

10.1         Confidentiality.

 

(i)             “Confidential Information” means any information concerning this Agreement or the transactions contemplated hereby and any information concerning the Option Share.

 

(ii)            Each Party shall be fully liable and responsible pursuant to this Agreement for any breach of this Section 10.1 by its Affiliates and their respective directors, officers, employees, accountants, counsel and other representatives and agents (each a “Representative” and collectively, “Representatives”).

 

 

(iii)           Each Party shall, and shall cause his or its Affiliates and Representatives to, treat and hold as confidential (and not disclose or provide access to any Person to) any and all Confidential Information, provided, however that, (i) if any Party or his or its Affiliates or Representatives becomes legally compelled to disclose any Confidential Information (except for information that is required to be disclosed in any filing or reporting required under applicable securities law, including any rule or regulation of any national securities exchange, which information may be freely disclosed in connection therewith), such Party shall provide the other relevant Party with prompt written notice of such requirement so that such other Party may seek a protective order or other remedy, (ii) in the event that such protective order or other remedy is not obtained, or such other Party waives compliance with this ‎Section 10.1, such legally compelled party shall furnish only that portion of the Confidential Information which is legally required to be provided and exercise his or its commercially reasonable efforts to obtain assurances that confidential treatment will be accorded such Confidential Information and (iii) the Parties agree and acknowledge that remedies at law for any breach of obligations under this ‎Section 10.1 are inadequate and that in addition thereto the non-breaching party shall be entitled to seek equitable relief, including injunction and specific performance, in the event of any such breach; and (iv) notwithstanding the foregoing, information or other materials or data disclosed to or otherwise in the possession of a Person described above prior to disclosure by the other Parties or their respective Affiliates or Representatives, or which is otherwise publicly available through no breach by any such Person of any obligation of confidence, shall not be Confidential Information.

 

10.2            Further Assurances. Upon the terms and subject to the conditions herein, each of the Parties hereto agrees to use its reasonable best efforts to take or cause to be taken all action, to do or cause to be done, to execute such further instruments, and to assist and cooperate with the other Parties hereto in doing, all things necessary, proper or advisable under applicable Laws or otherwise to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.

 

10.3            Amendments. This Agreement may not be amended, supplemented, or otherwise modified except by a written agreement executed by all Parties.

 

10.4            Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of each of the Parties and their respective successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party without the prior written consent of the other Parties and no such assignment shall relieve such Party of its duties or obligations hereunder. Except as expressly set forth herein, nothing in this Agreement shall confer any claim, right, interest or remedy on any Person (other than the Parties hereto) or inure to the benefit of any Person (other than the Parties hereto).

 

10.5            Severability. In case any provision of the Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. If, however, any provision of this Agreement shall be invalid, illegal, or unenforceable under any such applicable Law in any jurisdiction, it shall, as to such jurisdiction, be deemed modified to conform to the minimum requirements of such Law, or, if for any reason it is not deemed so modified, it shall be invalid, illegal, or unenforceable only to the extent of such invalidity, illegality, or limitation on enforceability without affecting the remaining provisions of this Agreement, or the validity, legality, or enforceability of such provision in any other jurisdiction.

 

 

10.6            No Waiver; Cumulative Remedies. Except as specifically set forth herein, the rights and remedies of the Parties to this Agreement are cumulative and not alternative. No failure or delay on the part of any party in exercising any right, power or remedy under this Agreement will operate as a waiver of such right, power or remedy, and no single or partial exercise of any such right, power or remedy will preclude any other or further exercise of such right, power or remedy or the exercise of any other right, power or remedy. To the maximum extent permitted by applicable Law, (a) no claim or right arising out of this Agreement can be discharged by one Party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other Parties; (b) no waiver that may be given by a Party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one Party will be deemed to be a waiver of any obligation of that Party or of the right of the Party giving such notice or demand to take further action without notice or demand as provided in this Agreement.

 

10.7            Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile and e-mailed copies of signatures shall be deemed to be originals for purposes of the effectiveness of this Agreement.

 

10.8            No Strict Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

 

10.9            Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the Parties with regard to the subjects hereof, and supersedes all other agreements between the Parties with respect to the subject matters hereof.

 

[The remainder of this page has been left intentionally blank]

 

 

IN WITNESS WHEREOF, the Parties hereto have caused their respective duly authorized representatives to execute this Agreement on the date first above written.

 

	Lotus Technology Inc.
	By:	/s/ FENG Qingfeng
		Name: FENG Qingfeng
		Title: Director

 

[Signature Page to Put Option Agreement]

 

 

IN WITNESS WHEREOF, the Parties hereto have caused their respective duly authorized representatives to execute this Agreement on the date first above written.

 

	Geely International (Hong Kong) Limited
	By:	/s/ LI Donghui
		Name: LI Donghui
		Title: Director

 

[Signature Page to Put Option Agreement]

 

 

IN WITNESS WHEREOF, the Parties hereto have caused their respective duly authorized representatives to execute this Agreement on the date first above written.

 

	Lotus Advance Technologies Sdn Bhd
	By:	/s/ FENG Qingfeng
		Name: FENG Qingfeng
		Title: Director

 

[Signature Page to Put Option Agreement]

 

 

IN WITNESS WHEREOF, the Parties hereto have caused their respective duly authorized representatives to execute this Agreement on the date first above written.

 

	Lotus Group International Limited
	By:	/s/ FENG Qingfeng
		Name: FENG Qingfeng
		Title: Director

 

[Signature Page to Put Option Agreement]

 

 

Schedule A

 

Leakage and Permitted Leakage

 

Part 1: Leakage

 

1.

Any dividend, distribution (whether in cash, in kind or otherwise) or return of capital (including any payment made for the purchase, redemption, repurchase, repayment or acquisition of any share capital of the Target Group Companies) declared, authorised, paid or made by any Target Group Company.

 

2.

Any (i) transfer or surrender of any asset, payment made or agreed to be made by any Target Group Company to, for or on behalf of Geely, Etika or their Related Persons, (ii) payment made or agreed to be made by a Target Group Company to or for the direct benefit of Geely, Etika or their Related Persons or (iii) assumption, indemnification, guarantee or incurrence of any liability for the benefit of, Geely, Etika or their Related Persons.

 

3.

Any waiver, forgiveness or release by any Target Group Company in favour of Geely, Etika or their Related Persons of any sum or obligation due by Geely, Etika or their Related Persons to any Target Group Company.

 

4.

Other than in accordance with Contracts entered into in the ordinary course of the business of the Target Group and on arms’ length terms, any payment, management charge, fee, costs or taxes of any nature levied by, or for the benefit of, Geely, Etika or their Related Persons against any Target Group Company and any payment of any nature including any payment of any management, service or similar fee or compensation by any Target Group Company to, or for the benefit of, Geely, Etika or their Related Persons.

 

5.

Any (i) repayment of principal on any debt or payment of any interest on or other payment by any Target Group Company in relation to any debt obligation to Geely, Etika or their Related Persons, (ii) reduction in any accounts receivable of any Target Group Company owed by Geely, Etika or their Related Persons or (iii) creation of any Encumbrance over any of the assets of the Target Group in favour of or for the benefit of Geely, Etika or their Related Persons.

 

6.

Any payment or incurrence of any obligation to pay, any bonus or other remuneration in connection with the transactions contemplated under this Agreement or otherwise not in the ordinary course of business consistent with past practice by any Target Group Company to any officer, employee or consultant of a Target Group Company.

 

7.

Any agreement, arrangement or commitment made or entered into by Geely, Etika or any of their Related Persons to give effect to any of the matters referred to in paragraphs 1 to 6 of this Part 1 of Schedule A.

 

8.

Without duplication, any tax payable by any of the Target Group Companies as a consequence of any of the matters referred to in paragraphs 1 to 6 of this Part 1 of Schedule A.

 

 

Part 2: Permitted Leakage

 

1.

Any payments or fees, or accruals in respect of any payments or fees to be made by any of the Target Group Companies pursuant to existing agreements; provided that (a) any such payments, charges, fees or accruals are (i) made or arise in the ordinary course of business and consistent with past practice and (ii) reasonably necessary for the operation of the business of the Target Group and (b) any such agreements were entered into on arms’ length terms.

 

2.

Any payments or accruals in respect of payments to be made of salaries, remuneration, expenses and directors’ fees, awards and allocations of, and accruals of entitlements to, bonuses and other discretionary amounts provided that any such payments, awards or allocations, or accruals in respect of such payments, awards and allocations are made or arise in the ordinary course of business consistent with past practice.

 

3.

Any other payments, accruals, assumptions, indemnifications or the incurrence of any other liabilities by any of the Target Group Companies to which LTC has given its consent in writing.

 

4.

Any tax payable by any of the Target Group Companies as a consequence of any of the matters referred to in paragraphs 1 to 3 of Part 2 of this Schedule A.

 

 

Schedule B

 

Locked Box Claim Disputes

 

1.

Escalation

 

1.1

Either Geely or LTC may refer the Locked Box Claim Dispute for resolution in accordance with the following provisions (unless they have agreed in writing an alternative resolution mechanism). Geely and LTC shall attempt to resolve in good faith all Locked Box Claim Disputes in accordance with paragraph 1 of this Schedule B before invoking the provisions of paragraph 2 of this Schedule B.

 

1.2

In the first instance, the Locked Box Claim Dispute shall be referred to the senior management of Geely and LTC, but should they be unable to resolve the Locked Box Claim Dispute within a further period of ten (10) Business Days, the Locked Box Claim Dispute shall be resolved in accordance with paragraph 2 of this Schedule B.

 

2.

Locked Box Claim Dispute Resolution

 

2.1

To the extent that Geely and LTC are unable to resolve the Locked Box Claim Dispute within ten (10) Business Days after it is referred to the senior management of Geely and LTC, the Locked Box Claim Dispute shall be determined by an independent firm of chartered accounts of international repute in Hong Kong (the “Expert”) as Geely and LTC may mutually agree and select in writing or, failing agreement within a further five (5) Business Days, to such independent firm of chartered accountants of international repute in Hong Kong as the President of the Hong Kong Institute of Certified Public Accountants may, on the application of either Geely or LTC, nominate; provided that such Expert nominated by the President of the Hong Kong Institute of Certified Public Accountants must be a firm that does not have any material conflict of interest that might potentially impact its determination of such Locked Box Claim Dispute, in which case:

 

(a)

the Expert shall be directed to determine the matters in dispute (being the existence and/or value of any Leakage amount claimed) and notify LTC and Geely of its decision within ten (10) Business Days of receiving the reference or such longer reasonable period as the Expert may determine;

 

(b)

the Expert shall act as an expert and not as an arbitrator and shall be directed to determine only the matters in dispute and shall be entitled, in rendering his decision, to take into account only such evidence and information as Geely and LTC shall have put to him;

 

(c)

the Expert shall be directed to determine any dispute by reference to the accounting policies, principles, practices, bases and methodologies that were used for the purposes of preparing the audited consolidated financial statements of LGIL;

 

 

(d)

the Expert, following consultation with Geely and LTC, shall decide the procedure to be followed in the determination and shall be requested to make its determination in writing as soon as practicable, but in any case no later than two (2) months, after its appointment, and shall set forth in such written determination the reasons for such determination;

 

(e)

Geely and LTC shall be entitled to make written and/or oral representations to the Expert, and they shall each co-operate with the Expert in resolving any disagreement or Locked Box Claim Dispute, and for that purpose shall provide to the Expert all such assistance, information and documentation as the Expert may reasonably require in a timely manner;

 

(f)

the Expert’s determination will (in the absence of fraud or manifest error) be final and binding on Geely and LTC;

 

(g)

the costs of the Expert shall be split equally between Geely and LTC; and

 

(h)

any amount payable by Geely or LTC to another as a result of the Experts’ determination will be due and payable within ten (10) Business Days of the last of the Expert’s determinations being notified to Geely and LTC.

 

2.2

The Locked Box Claim Dispute and all related matters and proceedings shall be treated as confidential among Geely, LTC and the Expert.

 

 

EXHIBIT A

 

Put Exercise Notice

 

To: Lotus Technology Inc.

 

Reference is made to the Put Option agreement, dated [●] (the “Option Agreement”), by and among Lotus Technology Inc. (“LTC”), Geely International (Hong Kong) Limited, Lotus Advance Technologies Sdn Bhd and Lotus Group International Limited. Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Option Agreement.

 

This letter shall constitute a Put Exercise Notice for the purposes of Section 3.3(i) of the Option Agreement (this “Put Exercise Notice”).

 

Geely hereby elects to exercise its Put Option under Section 3 of the Option Agreement. LTC is requested to acknowledge receipt of this Put Exercise Notice within five (5) Business Days after the date hereof by returning a copy of this Put Exercise Notice with an executed Acknowledgment Notice.

 

The obligations of LTC and Geely with respect to this Put Exercise Notice and with respect to the Option Shares to be purchased by LTC pursuant to the exercise of Geely’s Put Option evidenced by this Put Exercise Notice shall be governed by the Option Agreement.

 

	Geely International (Hong Kong) Limited
	By:
		Name: Title:

 

[Remainder of the Page Intentionally Left Blank]

 

 

Acknowledgment Notice

 

The undersigned hereby acknowledges the receipt the Put Exercise Notice.

 

	Lotus Technology Inc.
	By:
		Name: Title:

 

 

 

Exhibit 10.8

 

PUT OPTION AGREEMENT

 

This PUT OPTION AGREEMENT (this “Agreement”) is made and entered into on January 31, 2023 (the “Effective Date”) by and between:

 

1.

Lotus Technology Inc., an exempted company limited by shares incorporated under the laws of the Cayman Islands (the “LTC”);

 

2.

Etika Automotive Sdn Bhd, a company incorporated under the laws of Malaysia and having its registered address at 110, Jalan Maarof, Bangsar Baru, 59000 Kuala Lumpur, Malaysia (“Etika”);

 

3.

Lotus Advance Technologies Sdn Bhd (Company No. 638159-V), a private limited company incorporated under the laws of Malaysia (“LAT”); and

 

4.

Lotus Group International Limited, a company incorporated in England and Wales with company number 02831840 with its registered address at Potash Lane, Hethel, Norwich, Norfolk, NR 14 8EZ (“LGIL”).

 

Each of the parties listed above is referred to herein individually as a “Party” and collectively as the “Parties”.

 

RECITALS

 

WHEREAS, Etika desires to have the right to require LTC to purchase the Option Shares, representing all the issued and outstanding shares of the Target held by Etika, and LTC desires to grant such right to Etika, pursuant to the terms and conditions set forth herein;

 

WHEREAS, LTC, Geely, LAT and LGIL have entered into that certain put option agreement (the “Geely Put Option Agreement”) on the same date hereof, pursuant to which Geely shall have the right to require LTC to purchase all the issued and outstanding shares of the Target held by Geely;

 

WHEREAS, on the Effective Date, LTC, L Catterton Asia Acquisition Corp, an exempted company limited by shares incorporated under the laws of the Cayman Islands (“SPAC”), Lotus Temp Limited, an exempted company limited by shares incorporated under the laws of the Cayman Islands and a direct wholly owned subsidiary of LTC (“Merger Sub 1”) and Lotus EV Limited, an exempted company limited by shares incorporated under the laws of the Cayman Islands and a direct wholly owned subsidiary of LTC (“Merger Sub 2”) entered into that certain Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which, among other matters, (i) Merger Sub 1 will merge with and into SPAC with SPAC continuing as the surviving entity and a wholly owned subsidiary of LTC (the “First Merger”), (ii) immediately following the consummation of the First Merger,  SPAC will merge with and into Merger Sub 2 with Merger Sub 2 continuing as the surviving entity and a wholly owned subsidiary of LTC; and

 

 

WHEREAS, as a condition to the willingness of the parties to the Merger Agreement to enter into the Merger Agreement, the Parties intend to enter into this Agreement.

 

NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements herein set forth and subject to and on the terms and conditions herein set forth, the Parties agree as follows:

 

1.            Definitions

 

The following terms shall have the meanings ascribed to them as below:

 

“Affiliate” of any Person means any other Person that directly or indirectly controls, is controlled by or is under common control with such Person. As used in this Agreement, “control” (including, its correlative meanings “controlled by” and “under common control with”) means possession, directly or indirectly, of power to direct or cause the direction of management or policies.

 

“Approvals” means any approval, authorization, consent, permit, qualification or registration, or any waiver of any of the foregoing, required to be obtained from or made with, or any notice, statement or other communication required to be filed with or delivered to, any Governmental Authority or any other Person.

 

“Base Amount” means the total revenues of LGIL for the year ended December 31, 2024 as reflected on the audited consolidated financial statements of LGIL as of December 31, 2024, subject to adjustment pursuant to Section 2.1.

 

“Business Day” means any day that is not a Saturday, Sunday, legal holiday or other day on which commercial banks are required or authorized by law to be closed in the Cayman Islands, Hong Kong and Malaysia.

 

“Cash” means the aggregate amount of all cash and cash equivalents of LGIL as reflected on the audited consolidated financial statements of LGIL as of December 31, 2024.

 

“Consent” means any consent, approval, authorization, release, waiver, permit, grant, franchise, concession, agreement, license, exemption or order of, registration, certificate, declaration or filing with, or report or notice to, any Person, including any Governmental Authority.

 

“Contract” means a contract, agreement, indenture, note, bond, loan, instrument, lease, mortgage, franchise, license, commitment, purchase order, and other legally binding arrangement, whether written or oral.

 

“Debt” means the aggregate outstanding amount of the indebtedness of LGIL as reflected on the audited consolidated financial statements of LGIL as of December 31, 2024 (not taking into account the outstanding principal amount of any loan provided by Geely or Etika to the Target or any of its Subsidiaries, which will be subject to Section 3.5).

 

 

“Encumbrance” means any security interest, pledge, mortgage, lien, charge, claim, hypothecation, title defect, right of first option or refusal, right of pre-emption, third-party right or interests, put or call right, lien, adverse claim of ownership or use, or other encumbrance of any kind, except those required by the applicable Laws.

 

“Etika’s Pro Rata Share” means 49%, as adjusted upon conversion of all the Shareholder Loan Amount into share capital of the Target pursuant to Section 3.5.

 

“Geely” means Geely International (Hong Kong) Limited (Company No. 940401), a private company incorporated under the laws of Hong Kong whose registered office is at 1 Unit 2204, 22/F, Lippo Centre, Tower 2, 89 Queensway, Hong Kong, which holds 51% of the issued share capital of the Target as of the date hereof.

 

“Governmental Authority” means any government of any nation or any federation, province or state or any other political subdivision thereof, any entity, authority or body exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any governmental authority, agency, department, board, commission or instrumentality of the applicable jurisdiction, or any political subdivision thereof, any court, tribunal or arbitrator, and any self-regulatory organization.

 

“Governmental Order” means any applicable order, ruling, decision, verdict, decree, writ, subpoena, mandate, precept, command, directive, consent, approval, award, judgment, injunction or other similar determination or finding by, before or under the supervision of any Governmental Authority.

 

“IFRS” means the International Financial Reporting Standards issued by the International Accounting Standards Board, as in effect from time to time.

 

“Law” or “Laws” means any and all provisions of any applicable constitution, treaty, statute, law, regulation, ordinance, code, rule, or rule of common law, any governmental approval, concession, grant, franchise, license, agreement, directive, requirement, or other governmental restriction or any similar form of decision of, or determination by, or any formally issued written interpretation or administration of any of the foregoing by, any Governmental Authority, in each case as amended, and any and all applicable Governmental Orders.

 

“LCU” means Lotus Cars USA Inc., a Delaware corporation which is indirectly wholly owned by the Target.

 

“Leakage” means any of those matters set out in Part 1 of Schedule A but does not include any Permitted Leakage.

 

“Lien” means any claim, charge, easement, encumbrance, lease, covenant, security interest, lien, option, pledge, rights of others, or restriction (whether on voting, sale, transfer, disposition or otherwise), whether imposed by Contract, understanding, law, equity or otherwise.

 

“Locked Box Claim” means a claim for breach of any of the warranties in Section 6.1.

 

 

“Locked Box Date” means December 31, 2024.

 

“LTC Shares” means the ordinary shares of LTC, par value $0.00001 per share.

 

“Option Shares” means 964,774,976 shares of LAT or, to the extent Geely and Etika cease to directly hold shares of LAT at the time when the Put Option is exercised, such shares held by Etika in the Target at the time when the Put Option is exercised, together with such shares of the Target converted from the Shareholder Loan Amount pursuant to Section 3.5.

 

“Permitted Leakage” means any of those matters set out in Part 2 of Schedule A.

 

“Person” means any individual, sole proprietorship, partnership, limited partnership, limited liability company, firm, joint venture, estate, trust, unincorporated organization, association, corporation, institution, public benefit corporation, entity or governmental or regulatory authority or other enterprise or entity of any kind or nature.

 

“Put Option Price” means an amount in dollars equal to Etika’s Pro Rata Share * [1.15 * Base Amount + Cash – Debt], subject to adjustment pursuant to Section 2.1.

 

“Related Person” means, with respect to a Person, (a) any Affiliate of that Person and any current or former direct or indirect shareholder of that Person or its Affiliates; (b) any current or former director or officer of such Person or its Affiliates, and any member of such director’s or officer’s immediate family; and (c) any trust, partnership or other entity established for the benefit of any of the Persons referred to in the aforementioned items (a) and (b); but in any such case with respect to Geely or Etika, shall not include the Target Group.

 

“Shareholder Loan Amount” means the outstanding portion of the principal amount of any loan provided by Geely or Etika to the Target or any of its Subsidiaries as of the date of the Put Exercise Notice, together with any accrued and unpaid interest thereon.

 

“Subsidiary” means, with respect to a Person, any other Person controlled, directly or indirectly, by such Person and, in case of a limited partnership, limited liability company or similar entity, such Person is a general partner or managing member and has the power to direct the policies, management and affairs of such Person, respectively.

 

“Target Group” means the Target and its Subsidiaries, and “Target Group Company” means any one of them.

 

“Target” means LAT, or if Geely and Etika cease to directly hold shares of LAT, LGIL or any other holding company in which Geely and Etika directly hold their respective shares in the same percentage as their respective shareholding percentage in Lotus Advance Technologies Sdn Bhd as of the date hereof.

 

 

“Transfer” means, with respect to any security, any sale, assignment, transfer, distribution or other disposition thereof, or other conveyance, creation, incurrence or assumption of a legal or beneficial interest therein, or a participation or Encumbrance therein, or creation of any short position in any such security or any other action or position otherwise reducing risk related to ownership through hedging or other derivative instrument, whether voluntarily or by operation of Law, whether in a single transaction or a series of related transactions.

 

2.            Treatment of LCU

 

2.1            LCU Divesture. The Parties hereby agree to discuss and agree on the treatment of LCU following the date hereof and in any event, prior to January 1, 2025, including whether LCU shall be included in the Target Group when Etika exercises the Put Option, and the potential reduction on the Put Option Price and other terms and conditions of divesture of LCU if LCU is excluded from the Target Group.

 

3.            Put Option

 

3.1            Grant of Put Option. Subject to the terms and conditions of this Agreement, Etika shall have the exclusive and irrevocable right, but not the obligation, to require LTC to purchase the Option Shares (the “Put Option”) by delivery of a Put Exercise Notice (as defined below) in accordance with Section 3.3(i), and upon receipt of such Put Exercise Notice by LTC, LTC shall issue certain number of newly issued LTC Shares to Etika and Etika shall Transfer or cause the Transfer of the Option Shares to LTC or any Person designated by LTC. The number of LTC Shares to be issued to Etika shall be equal to the quotient of (a) the Put Option Price, divided by (b) the per share listing price of the LTC Shares.

 

3.2            Exercise Period and Condition. The Put Option may be exercised by Etika during the period from April 1, 2025 to June 30, 2025 (the “Put Option Period”), subject to the condition that the total number of vehicles sold by the Target Group in 2024 exceeds 5,000 (the “Exercise Condition”).

 

3.3            Procedure

 

(i)            For so long as the Exercise Condition is satisfied, at any time during the Put Option Period, Etika may exercise the Put Option by delivering a written notice substantially in the form attached hereto as Exhibit A (the “Put Exercise Notice”) to LTC.

 

(ii)           Except for the delivery of the Put Exercise Notice under Section 3.3(i), and subject at all times to the Exercise Condition and applicable Laws, there are no other prerequisite or incidental conditions or procedures for Etika to exercise the Put Option pursuant to this Agreement.

 

(iii)          To the extent any Approval is required in connection with the closing of any Transfer of the Option Share, each of LTC and Etika shall, and shall cause its Affiliates to, use its reasonable best efforts to obtain, and to cooperate with the other Party with respect to, such Approval.

 

 

(iv)          On the fifth (5th) Business Day following the later of (i) receipt of a Put Exercise Notice by LTC, and (ii) any Approvals required by applicable Law to be obtained prior to the Transfer of the Option Share being obtained (the “Option Closing Date”), (x) Etika shall (A) Transfer the Option Shares, free and clear of all Encumbrances, and with all rights attaching thereto, to LTC, and (B) provide to LTC evidence showing LTC as the registered holder of the Option Shares, and (y) LTC shall (A) issue such number of LTC Shares as determined pursuant to Section 3.1, free and clear of all Encumbrances (other than those arising under applicable securities laws), and cause the LTC Shares to be registered in book-entry form in the name of Etika on LTC’s stock ledger, and (B) provide to Etika evidence of such issuance from LTC’s transfer agent.

 

(v)           Etika shall represent and warrant to LTC, as of the Option Closing Date, (i) Etika has full right, title and interest in and to the Option Shares, (ii) Etika has all the necessary power and authority and has taken all necessary action to Transfer the Option Shares to LTC as contemplated by this Section 3, (iii) the Option Shares are free and clear of any and all Encumbrances, and (iv) the Option Shares, together with the shares of the Target held by Geely, shall represent all the issued and outstanding shares of the Target.

 

(vi)          LTC shall represent and warrant to Etika, as of the Option Closing Date, the LTC Shares will have been duly authorized, and when issued and delivered to Etika against Transfer of the Option Shares in full from Etika to LTC in accordance with the terms of this Agreement, the LTC Shares will be validly issued and fully paid and non-assessable, free and clear of any and all Encumbrances (other than those arising under applicable securities laws) and will not have been issued in violation of or subject to any preemptive or similar rights created under LTC’s organization documents (as in effect at such time of issuance) or the laws of the Cayman Islands.

 

3.4            Distribution of LTC Shares by LGIL. Upon exercise by Etika of the Put Option under this Agreement, LGIL hereby agrees to take any and all actions to distribute the LTC Shares held by LGIL on the date of the Put Exercise Notice to Etika such that Etika shall receive Etika’s Pro Rata Share of such number of LTC Shares held by LGIL concurrently with the completion of transactions contemplated under Section 3.3(iv) on the Option Closing Date.

 

3.5            Conversion of Shareholder Loan. In the event there is any outstanding loan provided by Etika to any Target Group Company as of the date of the Put Exercise Notice, Etika shall take any and all actions to convert all the Shareholder Loan Amount into share capital of the Target immediately after the date of the Put Exercise Notice. To the extent any portion of the Shareholder Loan Amount is not converted into share capital of the Target, the Put Option Price shall be reduced by an amount equal to the outstanding portion of the principal amount of any loan provided by Etika to any Target Group Company as of the Option Closing Date.

 

3.6            Adjustment for Leakage. If Etika has notified LTC under Section 4.5 of any Leakage that occurs between the Locked Box Date and Option Closing Date, then the Put Option Price shall be reduced by Etika’s Pro Rata Share of such amount. If Etika and LTC have agreed in accordance with Section 6.2 an agreed amount with respect to any Leakage that occurs between the Locked Box Date and Option Closing Date, then the amount of any payment made by Etika to LTC in respect of such Leakage shall be treated, as far as possible, as an adjustment to the Put Option Price paid by LTC for the Option Shares under this Agreement and the Put Option Price shall be deemed to have been reduced by the amount of such payment.

 

 

3.7            Waiver of ROFR. Etika hereby waives, and agrees not to exercise, assert or claim, to the fullest extent permitted by applicable Law, the right of first refusal with respect to all the issued and outstanding shares of the Target held by Geely when Geely transfers such shares of the Target to LTC pursuant to the Geely Put Option Agreement.

 

4.            Transfer Restrictions; Additional Agreements

 

4.1            Restrictive Covenants on Conduct of Business. During the term of this Agreement, in the absence of the prior written consent of LTC, LAT undertakes that it shall not, and shall cause its Subsidiaries not to, and Etika undertakes that it shall cause the Target Group not to, directly or indirectly:

 

(i)            make any material change in its accounting principles or methods unless required by the IFRS or applicable Laws;

 

(ii)           accelerate deliverables under the Contracts with customers; and

 

(iii)          issue, sell, grant, pledge or otherwise dispose of (a) any of the equity securities of the Target or its Subsidiaries to a third party, or (b) any options, warrants, rights of conversion or other rights, agreements, arrangements or commitment obligations of the Target or any of its Subsidiaries to purchase or obtain any equity securities of the Target or any of its Subsidiaries to a third party.

 

4.2            Information Rights. The Target covenants and agrees that, during the term of this Agreement, the Target shall deliver, and Etika shall cause the Target to deliver, to LTC:

 

(i)            audited annual consolidated financial statements, within ninety (90) days after the end of each fiscal year; and

 

(ii)           upon written request by LTC, such other information as LTC shall reasonably request (except that the Target is not obligated to supply to LTC any document that is privileged and/or is legally protected from discovery or disclosure during a legal proceeding involving the Target Group).

 

4.3            Restrictive Covenants on Transfer of Option Shares. During the term of this Agreement, in the absence of the prior written consent of LTC, Etika undertakes that it shall not (and shall cause its Affiliates not to), directly or indirectly:

 

(i)            Transfer the Option Shares or any right, title or interest therein or thereto;

 

 

(ii)           grant any proxies or powers of attorney or enter into any voting arrangement, whether by proxy, voting agreement, voting trust, voting deed or otherwise (including pursuant to any loan of the Option Shares), or enter into any other agreement, with respect to any Option Shares;

  

(iii)          take any action that would reasonably be expected to make any representation or warranty of Etika herein untrue or incorrect, or would reasonably be expected to have the effect of preventing or disabling Etika from performing its obligations hereunder;

 

(iv)          directly or indirectly (through any officer, director, shareholder, employee, agent or representative of him or it) solicit, initiate or encourage any proposal from any Person to purchase or acquire the Option Share, or enter into or engage in any negotiations or discussions with, or provide any information to, any Person relating to the above; or

 

(v)           commit or agree to take any of the foregoing actions.

 

4.4            Transfer Void; Equitable Relief. Parties agree that any Transfer of Option Shares not made in compliance with the requirements of this Agreement shall be null and void ab initio, shall not be recorded on the books of the Target or its transfer agent and shall not be recognized by the Target. Each Party hereto acknowledges and agrees that any breach of this Agreement could result in substantial harm to the other Parties for which monetary damages alone could not adequately compensate. Therefore, the Parties unconditionally and irrevocably agree that any non-breaching Party hereto shall be entitled to seek protective orders, injunctive relief and other remedies available at law or in equity (including, without limitation, seeking specific performance or the rescission of purchases, sales and other Transfers of Option Shares not made in strict compliance with this Agreement).

 

4.5            Pre-Closing Notifications. At least five (5) Business Days prior to the intended Option Closing Date, Etika shall provide to LTC a schedule setting out in reasonable details the amount of any known Leakage and any reductions in respect of such event to be made to the Put Option Price.

 

5.            Representations and Warranties

 

5.1            Each Party hereby represents and warrants to the other Parties that each of the representations and warranties set forth below is true and correct as of the date hereof:

 

(i)            Such Party is duly organized, validly existing and in good standing under applicable the Laws of the jurisdiction of its incorporation or organization.

 

 

(ii)           Such Party has the requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by such Party, and no other corporate proceeding on the part of such Party is necessary to authorize this Agreement or such Party’s performance hereunder. This Agreement has been duly and validly executed and delivered by such Party and, assuming due and valid authorization, execution and delivery by each other party hereto, constitutes a valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, except (i) as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other Laws of general application affecting enforcement of creditors’ rights generally, and (ii) as may be limited by Laws relating to the availability of specific performance, injunctive relief or other equitable remedies.

 

(iii)          No consent of or with any Governmental Authority on the part of such Party is required to be obtained or made in connection with the execution, delivery or performance by such Party of this Agreement or the consummation by such Party of the transactions contemplated hereby, other than (a) Approvals by applicable Governmental Authorities in the U.S. if and to the extent LCU will be included in the Target Group when Etika exercises the Put Option, and (b) where the failure to obtain or make such consents or to make such filings or notifications would not reasonably be expected to prevent, impede or, in any material respect, delay or adversely affect the execution and performance by such Party of its obligations under this Agreement or the consummation of the transactions contemplated hereby.

 

(iv)          The execution, delivery and performance by such Party of this Agreement do not and will not (a) contravene or conflict with or violate any provision of, or result in the breach of the organizational documents of such Party, (b) contravene or conflict with or result in a violation of any provision of any Law or Governmental Order binding upon or applicable to such Party or any of its properties or assets, (c) violate, conflict with, result in a breach of any provision of or the loss of any benefit under, constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination or acceleration of, or a right of termination, cancellation, modification, acceleration or amendment under, accelerate the performance required by, any of the terms, conditions or provisions of any Contract to which such Party is a party, or (d) result in the creation or imposition of any Encumbrance on any properties or assets of such Party, except in the case of each of clauses (b) through (d) that do not, and would not reasonably be expected to, prevent, impede or, in any material respect, delay or adversely affect the performance by such Party of its obligations under this Agreement or the consummation of the transactions contemplated hereby.

 

5.2            Etika hereby represents and warrants to LTC that each of the representations and warranties set forth below is true and correct as of the date hereof and the Option Closing Date:

 

(i)            Etika is the sole legal and beneficial owner of the Option Shares, free and clear of all Encumbrances. Etika has the power to sell, transfer, assign and deliver its Option Shares as provided in this Agreement and, upon transfer and delivery of the Option Shares to LTC and payment therefor in accordance with this Agreement, such transfer and delivery will convey to LTC good and marketable title to such Option Shares, free and clear of all Encumbrances. The Option Shares are duly authorized, validly issued, fully paid and non-assessable.

 

 

(ii)           The Option Shares represent Etika’s Pro Rata Share of all the issued and outstanding shares of the Target.

 

(iii)          The Option Shares, together with the shares of the Target held by Etika, represent all the issued and outstanding shares of the Target.

 

6.            Leakage

 

6.1            Warranty and Undertaking. Etika undertakes there will be no Leakage between the Locked Boxed Date and the Option Closing Date, subject to relevant exclusions, limitations and qualifications set out in this Section 6.

 

6.2            Locked Box Claims.

 

(i)            No Locked Box Claim may be made against Etika unless notice of the Locked Box Claim, specifying in reasonable detail the legal and factual basis and evidence on which the Locked Box Claim is made and LTC’s estimate of the amount of Leakage which is the subject of such Locked Box Claim (“Locked Box Claim Notice”), is served on Etika in writing as soon as practicable after LTC becomes aware of the circumstances giving rise to the Locked Box Claim, and in any case, within twelve (12) months following the Option Closing Date.

 

(ii)           Within fifteen (15) Business Days of receiving the Locked Box Claim Notice, Etika shall either pay in cash an amount equal to Etika’s Pro Rata Share of the relevant Leakage actually paid or required to be paid by the relevant Target Group Company giving rise to such Locked Box Claim to LTC or Etika shall dispute the existence and/or value of any Leakage amount claimed by sending a written notice to LTC setting out in reasonable detail the legal and factual basis of such dispute and evidence on which Etika relies (a “Locked Box Claim Dispute Notice”).

 

(iii)          Upon receipt of a Locked Box Claim Dispute Notice, LTC and Etika shall negotiate in good faith and act reasonably to agree on the amount of the Leakage. If Etika and LTC cannot agree on the amount of the Leakage within thirty (30) Business Days of receipt of the Locked Box Claim Dispute Notice by LTC, then the matter (“Locked Box Claim Dispute”) shall be determined in accordance with the provisions of Schedule B.

 

(iv)          No liability shall attach to Etika in respect of any Locked Box Claim to the extent that the Locked Box Claim is based upon a liability which is contingent only or is otherwise not capable of being quantified unless and until such liability ceases to be contingent and becomes an actual liability or becomes capable of being quantified, as the case may be. For the avoidance of doubt, no disputed Leakage amounts shall be payable under this Section 6.2 by Etika unless and until such amounts have been agreed, finalised and/or determined in accordance with this Section 6.2. Notwithstanding the foregoing, LTC shall be permitted to deliver a Locked Box Claim Notice to Etika based upon a contingent liability pursuant to this Section 6.2 even if such contingent liability has not been quantified or become an actual liability. For the avoidance of doubt, for so long as the Locked Box Claim is delivered by LTC to Etika within twelve (12) months following the Option Closing Date pursuant to Section 6.2(i), even if such contingent liability becomes an actual liability or becomes capable of being quantified, as the case may be, after twelve (12) months following the Option Closing Date, Etika shall continue to be liable for such liability.

 

 

(v)           If closing of the transactions contemplated by this Agreement does not occur, Etika shall have no liability to LTC under this Section 6.

 

(vi)          LTC’s only right and remedy under this Section 6 shall be an adjustment made pursuant to Section 3.6 and/or any payments made pursuant to this Section 6.2. LTC shall not be entitled to recover from Etika or any other person more than once for the same damage suffered, whether under this Section 6.2 or any other provision of this Agreement, which for the avoidance of doubt includes any right to recover under any policy of insurance. No liability shall attach to Etika in respect of any Locked Box Claim if and to the extent that such Locked Box Claim relates to any loss or damage recoverable by LTC or any of its Subsidiaries under any policy of insurance (after taking into account any deductible under such insurance policy and less any taxation suffered or payable on the proceeds and any reasonable out of pocket expenses suffered or incurred by LTC or any of its Subsidiaries in connection with the claim).

 

(vii)         The maximum liability of Etika in respect of a single Locked Box Claim shall not exceed Etika’s Pro Rata Share of the amount of Leakage giving rise to such claim actually paid by or required to be paid by the relevant Target Group Company.

 

7.            Indemnification

 

Each Party (the “Indemnitor”) shall indemnify the other Parties (the “Indemnitee”) against all losses, costs, damages and expenses (including attorney fees) suffered or incurred by the Indemnitee directly or indirectly as result of a breach or non-compliance by the Indemnitor of any of its representations, warranties or covenants contained herein, except to the extent such losses, costs, damages and expenses are found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from such Indemnitee’s gross negligence or wilful misconduct.

 

8.            Termination

 

This Agreement shall continue in full force and effect at all times after the Effective Date provided that this Agreement shall be terminated (i) upon the date when the Option Shares have been transferred to LTC or its designee through the exercise of Put Option pursuant to Section 2 or otherwise, or (ii) automatically upon expiration of the Put Option Period. Termination of this Agreement shall not excuse any Party from any liability arising at or prior to such termination, and Section 6, Section 7, this Section 8, Section 9 and Section 10 shall survive such termination.

 

9.            Governing Law and Dispute Resolution

 

9.1            Governing Law. This Agreement shall be governed by and construed under the Laws of Hong Kong, without regard to principles of conflict of Laws thereunder.

 

 

9.2            Dispute Resolution

 

(i)            Any dispute, controversy or, claim or difference of any kind whatsoever arising out of, relating to or in connection with this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof (the “Dispute”) shall be referred to and finally resolved by arbitration at the Hong Kong International Arbitration Center (the “HKIAC”) in accordance with the HKIAC Administered Arbitration Rules in force at the time of the commencement of the arbitration. To the extent such rules are in conflict with the provisions of this Section 9.2, including the provisions concerning the appointment of arbitrators, this Section 9.2 shall prevail.

 

(ii)           The seat of arbitration shall be Hong Kong.

 

(iii)          There shall be three (3) arbitrators. The claimant and respondent shall each nominate one (1) arbitrator and the third arbitrator shall be appointed by the HKIAC. The arbitration shall be conducted in the English language.

 

(iv)          Each party to the arbitration shall cooperate with each other party to the arbitration in making full disclosure of and providing complete access to all information and documents requested by such other party in connection with such arbitral proceedings, subject only to any confidentiality obligations binding on such party.

 

(v)           The award of the arbitral tribunal shall be final and binding upon the parties thereto, and the prevailing party may apply to a court of competent jurisdiction for enforcement of such award.

 

(vi)          The arbitral tribunal shall decide any Dispute submitted by the parties to the arbitration strictly in accordance with the substantive Laws of Hong Kong (without regard to principles of conflict of Laws thereunder) and shall not apply any other substantive Law.

 

(vii)         The Parties agree that the arbitral tribunal shall have the power to award equitable remedies (including specific performance). Any party to the Dispute shall be entitled to seek interim measures of protection and emergency relief in aid of arbitration from any court of competent jurisdiction. Application for such protective or similar emergency interim relief shall not be deemed inconsistent with the agreement to arbitrate or deemed a waiver of the right to arbitrate.

 

(viii)        During the course of the arbitral tribunal’s adjudication of the Dispute, this Agreement shall continue to be performed except with respect to the part in dispute and under adjudication.

 

 

10.            Miscellaneous

 

10.1            Confidentiality.

 

(i)            “Confidential Information” means any information concerning this Agreement or the transactions contemplated hereby and any information concerning the Option Share.

 

(ii)           Each Party shall be fully liable and responsible pursuant to this Agreement for any breach of this Section 10.1 by its Affiliates and their respective directors, officers, employees, accountants, counsel and other representatives and agents (each a “Representative” and collectively, “Representatives”).

 

(iii)          Each Party shall, and shall cause his or its Affiliates and Representatives to, treat and hold as confidential (and not disclose or provide access to any Person to) any and all Confidential Information, provided, however that, (i) if any Party or his or its Affiliates or Representatives becomes legally compelled to disclose any Confidential Information (except for information that is required to be disclosed in any filing or reporting required under applicable securities law, including any rule or regulation of any national securities exchange, which information may be freely disclosed in connection therewith), such Party shall provide the other relevant Party with prompt written notice of such requirement so that such other Party may seek a protective order or other remedy, (ii) in the event that such protective order or other remedy is not obtained, or such other Party waives compliance with this ‎Section 10.1, such legally compelled party shall furnish only that portion of the Confidential Information which is legally required to be provided and exercise his or its commercially reasonable efforts to obtain assurances that confidential treatment will be accorded such Confidential Information and (iii) the Parties agree and acknowledge that remedies at law for any breach of obligations under this ‎Section 10.1 are inadequate and that in addition thereto the non-breaching party shall be entitled to seek equitable relief, including injunction and specific performance, in the event of any such breach; and (iv) notwithstanding the foregoing, information or other materials or data disclosed to or otherwise in the possession of a Person described above prior to disclosure by the other Parties or their respective Affiliates or Representatives, or which is otherwise publicly available through no breach by any such Person of any obligation of confidence, shall not be Confidential Information.

 

10.2            Further Assurances. Upon the terms and subject to the conditions herein, each of the Parties hereto agrees to use its reasonable best efforts to take or cause to be taken all action, to do or cause to be done, to execute such further instruments, and to assist and cooperate with the other Parties hereto in doing, all things necessary, proper or advisable under applicable Laws or otherwise to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.

 

10.3            Amendments. This Agreement may not be amended, supplemented, or otherwise modified except by a written agreement executed by all Parties.

 

10.4            Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of each of the Parties and their respective successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party without the prior written consent of the other Parties and no such assignment shall relieve such Party of its duties or obligations hereunder. Except as expressly set forth herein, nothing in this Agreement shall confer any claim, right, interest or remedy on any Person (other than the Parties hereto) or inure to the benefit of any Person (other than the Parties hereto).

 

 

10.5            Severability. In case any provision of the Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. If, however, any provision of this Agreement shall be invalid, illegal, or unenforceable under any such applicable Law in any jurisdiction, it shall, as to such jurisdiction, be deemed modified to conform to the minimum requirements of such Law, or, if for any reason it is not deemed so modified, it shall be invalid, illegal, or unenforceable only to the extent of such invalidity, illegality, or limitation on enforceability without affecting the remaining provisions of this Agreement, or the validity, legality, or enforceability of such provision in any other jurisdiction.

 

10.6            No Waiver; Cumulative Remedies. Except as specifically set forth herein, the rights and remedies of the Parties to this Agreement are cumulative and not alternative. No failure or delay on the part of any party in exercising any right, power or remedy under this Agreement will operate as a waiver of such right, power or remedy, and no single or partial exercise of any such right, power or remedy will preclude any other or further exercise of such right, power or remedy or the exercise of any other right, power or remedy. To the maximum extent permitted by applicable Law, (a) no claim or right arising out of this Agreement can be discharged by one Party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other Parties; (b) no waiver that may be given by a Party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one Party will be deemed to be a waiver of any obligation of that Party or of the right of the Party giving such notice or demand to take further action without notice or demand as provided in this Agreement.

 

10.7            Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile and e-mailed copies of signatures shall be deemed to be originals for purposes of the effectiveness of this Agreement.

 

10.8            No Strict Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

 

10.9            Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the Parties with regard to the subjects hereof, and supersedes all other agreements between the Parties with respect to the subject matters hereof.

 

[The remainder of this page has been left intentionally blank]

 

 

IN WITNESS WHEREOF, the Parties hereto have caused their respective duly authorized representatives to execute this Agreement on the date first above written.

 

	Lotus Technology Inc.
	By:	/s/ FENG Qingfeng
		Name: FENG Qingfeng
		Title: Director

 

[Signature Page to Put Option Agreement]

 

 

IN WITNESS WHEREOF, the Parties hereto have caused their respective duly authorized representatives to execute this Agreement on the date first above written.

 

	Etika Automotive Sdn Bhd
	By:	/s/ Azman Hanafi bin Abdullah
		Name: Azman Hanafi bin Abdullah
		Title: Director

 

[Signature Page to Put Option Agreement]

 

 

IN WITNESS WHEREOF, the Parties hereto have caused their respective duly authorized representatives to execute this Agreement on the date first above written.

 

	Lotus Advance Technologies Sdn Bhd
	By:	/s/ FENG Qingfeng
		Name: FENG Qingfeng
		Title: Director

 

[Signature Page to Put Option Agreement]

 

 

IN WITNESS WHEREOF, the Parties hereto have caused their respective duly authorized representatives to execute this Agreement on the date first above written.

 

	Lotus Group International Limited
	By:	/s/ FENG Qingfeng
		Name: FENG Qingfeng
		Title: Director

 

[Signature Page to Put Option Agreement]

 

 

Schedule A

 

Leakage and Permitted Leakage

 

Part 1: Leakage

 

1.

Any dividend, distribution (whether in cash, in kind or otherwise) or return of capital (including any payment made for the purchase, redemption, repurchase, repayment or acquisition of any share capital of the Target Group Companies) declared, authorised, paid or made by any Target Group Company.

 

2.

Any (i) transfer or surrender of any asset, payment made or agreed to be made by any Target Group Company to, for or on behalf of Geely, Etika or their Related Persons, (ii) payment made or agreed to be made by a Target Group Company to or for the direct benefit of Geely, Etika or their Related Persons or (iii) assumption, indemnification, guarantee or incurrence of any liability for the benefit of, Geely, Etika or their Related Persons.

 

3.

Any waiver, forgiveness or release by any Target Group Company in favour of Geely, Etika or their Related Persons of any sum or obligation due by Geely, Etika or their Related Persons to any Target Group Company.

 

4.

Other than in accordance with Contracts entered into in the ordinary course of the business of the Target Group and on arms’ length terms, any payment, management charge, fee, costs or taxes of any nature levied by, or for the benefit of, Geely, Etika or their Related Persons against any Target Group Company and any payment of any nature including any payment of any management, service or similar fee or compensation by any Target Group Company to, or for the benefit of, Geely, Etika or their Related Persons.

 

5.

Any (i) repayment of principal on any debt or payment of any interest on or other payment by any Target Group Company in relation to any debt obligation to Geely, Etika or their Related Persons, (ii) reduction in any accounts receivable of any Target Group Company owed by Geely, Etika or their Related Persons or (iii) creation of any Encumbrance over any of the assets of the Target Group in favour of or for the benefit of Geely, Etika or their Related Persons.

 

6.

Any payment or incurrence of any obligation to pay, any bonus or other remuneration in connection with the transactions contemplated under this Agreement or otherwise not in the ordinary course of business consistent with past practice by any Target Group Company to any officer, employee or consultant of a Target Group Company.

 

7.

Any agreement, arrangement or commitment made or entered into by Geely, Etika or any of their Related Persons to give effect to any of the matters referred to in paragraphs 1 to 6 of this Part 1 of Schedule A.

 

8.

Without duplication, any tax payable by any of the Target Group Companies as a consequence of any of the matters referred to in paragraphs 1 to 6 of this Part 1 of Schedule A.

 

 

Part 2: Permitted Leakage

 

1.

Any payments or fees, or accruals in respect of any payments or fees to be made by any of the Target Group Companies pursuant to existing agreements; provided that (a) any such payments, charges, fees or accruals are (i) made or arise in the ordinary course of business and consistent with past practice and (ii) reasonably necessary for the operation of the business of the Target Group and (b) any such agreements were entered into on arms’ length terms.

 

2.

Any payments or accruals in respect of payments to be made of salaries, remuneration, expenses and directors’ fees, awards and allocations of, and accruals of entitlements to, bonuses and other discretionary amounts provided that any such payments, awards or allocations, or accruals in respect of such payments, awards and allocations are made or arise in the ordinary course of business consistent with past practice.

 

3.

Any other payments, accruals, assumptions, indemnifications or the incurrence of any other liabilities by any of the Target Group Companies to which LTC has given its consent in writing.

 

4.

Any tax payable by any of the Target Group Companies as a consequence of any of the matters referred to in paragraphs 1 to 3 of Part 2 of this Schedule A.

 

 

Schedule B

 

Locked Box Claim Disputes

 

1.

Escalation

 

1.1

Either Etika or LTC may refer the Locked Box Claim Dispute for resolution in accordance with the following provisions (unless they have agreed in writing an alternative resolution mechanism). Etika and LTC shall attempt to resolve in good faith all Locked Box Claim Disputes in accordance with paragraph 1 of this Schedule B before invoking the provisions of paragraph 2 of this Schedule B.

 

1.2

In the first instance, the Locked Box Claim Dispute shall be referred to the senior management of Etika and LTC, but should they be unable to resolve the Locked Box Claim Dispute within a further period of ten (10) Business Days, the Locked Box Claim Dispute shall be resolved in accordance with paragraph 2 of this Schedule B.

 

2.

Locked Box Claim Dispute Resolution

 

2.1

To the extent that Etika and LTC are unable to resolve the Locked Box Claim Dispute within ten (10) Business Days after it is referred to the senior management of Etika and LTC, the Locked Box Claim Dispute shall be determined by an independent firm of chartered accounts of international repute in Hong Kong (the “Expert”) as Etika and LTC may mutually agree and select in writing or, failing agreement within a further five (5) Business Days, to such independent firm of chartered accountants of international repute in Hong Kong as the President of the Hong Kong Institute of Certified Public Accountants may, on the application of either Etika or LTC, nominate; provided that such Expert nominated by the President of the Hong Kong Institute of Certified Public Accountants must be a firm that does not have any material conflict of interest that might potentially impact its determination of such Locked Box Claim Dispute, in which case:

 

(a)

the Expert shall be directed to determine the matters in dispute (being the existence and/or value of any Leakage amount claimed) and notify LTC and Etika of its decision within ten (10) Business Days of receiving the reference or such longer reasonable period as the Expert may determine;

 

(b)

the Expert shall act as an expert and not as an arbitrator and shall be directed to determine only the matters in dispute and shall be entitled, in rendering his decision, to take into account only such evidence and information as Etika and LTC shall have put to him;

 

(c)

the Expert shall be directed to determine any dispute by reference to the accounting policies, principles, practices, bases and methodologies that were used for the purposes of preparing the audited consolidated financial statements of LGIL;

 

 

(d)

the Expert, following consultation with Etika and LTC, shall decide the procedure to be followed in the determination and shall be requested to make its determination in writing as soon as practicable, but in any case no later than two (2) months, after its appointment, and shall set forth in such written determination the reasons for such determination;

 

(e)

Etika and LTC shall be entitled to make written and/or oral representations to the Expert, and they shall each co-operate with the Expert in resolving any disagreement or Locked Box Claim Dispute, and for that purpose shall provide to the Expert all such assistance, information and documentation as the Expert may reasonably require in a timely manner;

 

(f)

the Expert’s determination will (in the absence of fraud or manifest error) be final and binding on Etika and LTC;

 

(g)

the costs of the Expert shall be split equally between Etika and LTC; and

 

(h)

any amount payable by Etika or LTC to another as a result of the Experts’ determination will be due and payable within ten (10) Business Days of the last of the Expert’s determinations being notified to Etika and LTC.

 

2.2

The Locked Box Claim Dispute and all related matters and proceedings shall be treated as confidential among Etika, LTC and the Expert.

 

 

EXHIBIT A

 

Put Exercise Notice

 

To: Lotus Technology Inc.

 

Reference is made to the Put Option agreement, dated [●] (the “Option Agreement”), by and among Lotus Technology Inc. (“LTC”), Etika Automotive Sdn Bhd, Lotus Advance Technologies Sdn Bhd and Lotus Group International Limited. Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Option Agreement.

 

This letter shall constitute a Put Exercise Notice for the purposes of Section 3.3(i) of the Option Agreement (this “Put Exercise Notice”).

 

Etika hereby elects to exercise its Put Option under Section 3 of the Option Agreement. LTC is requested to acknowledge receipt of this Put Exercise Notice within five (5) Business Days after the date hereof by returning a copy of this Put Exercise Notice with an executed Acknowledgment Notice.

 

The obligations of LTC and Etika with respect to this Put Exercise Notice and with respect to the Option Shares to be purchased by LTC pursuant to the exercise of Etika’s Put Option evidenced by this Put Exercise Notice shall be governed by the Option Agreement.

 

	Etika Automotive Sdn Bhd
	By:
		Name:
		Title:

 

[Remainder of the Page Intentionally Left Blank]

 

 

Acknowledgment Notice

 

The undersigned hereby acknowledges the receipt the Put Exercise Notice.

 

	Lotus Technology Inc.
	By:
		Name:
		Title:

 

 

Exhibit 21.1

 

Principal Subsidiaries and Consolidated Variable Interest Entities of Lotus Technology Inc.

 

Subsidiaries	Jurisdiction of Incorporation
Lotus Advanced Technology Limited	Hong Kong
Lotus Technology International Limited	Hong Kong
Lotus Technology Innovative Limited	United Kingdom
Lotus Tech Creative Centre Limited	United Kingdom
Lotus Tech Innovation Centre GmbH	Germany
Lotus Cars Europe B.V.	the Netherlands
Wuhan Lotus Technology Co., Ltd.	PRC
Wuhan Lotus Cars Co., Ltd.	PRC
Wuhan Lotus Cars Sales Limited	PRC
Wuhan Lotus Private Fund Management Co., Ltd.	PRC

 

Consolidated Variable Interest Entity	Jurisdiction of Incorporation
Wuhan Lotus E-Commerce Co., Ltd.	PRC

 

Subsidiaries of Consolidated Variable Interest Entity	Jurisdiction of Incorporation
Hangzhou Lotus Technology Service Co., Ltd.	PRC
Sanya Lotus Venture Capital Co., Ltd.	PRC