|
Cayman Islands
(State or other jurisdiction of
incorporation or organization) |
| |
6770
(Primary Standard Industrial
Classification Code Number) |
| |
86-2213850
(I.R.S. Employer
Identification Number) |
|
|
Douglas S. Ellenoff, Esq.
Stuart Neuhauser, Esq. Lijia Sanchez, Esq. Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas New York, NY 10105 (212) 370-1300 |
| |
Bradley Kruger
Ogier (Cayman) LLP 89 Nexus Way, Camana Bay, Grand Cayman Cayman Islands KY1-9009 (345) 949-9876 |
| |
David Alan Miller, Esq.
Jeffrey M. Gallant, Esq. Graubard Miller The Chrysler Building 405 Lexington Avenue New York, NY 10174 (212) 818-8800 |
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Large accelerated filer
☐
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Accelerated filer
☐
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Non-accelerated filer
☒
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Smaller reporting company
☒
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Emerging growth company
☒
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Per Unit
|
| |
Total
|
| ||||||
Public offering price
|
| | | $ | 10.00 | | | | | $ | 200,000,000 | | |
Underwriting discounts and commissions(1)
|
| | | $ | 0.55 | | | | | $ | 11,000,000 | | |
Proceeds, before expenses, to us
|
| | | $ | 9.45 | | | | | $ | 189,000,000 | | |
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| | | | F-1 | | |
| | |
March 31, 2023
|
| |||||||||
| | |
Actual
|
| |
As Adjusted
|
| ||||||
Balance Sheet Data: | | | | | | | | | |||||
Working capital (deficit)
|
| | | $ | (87,872) | | | | | $ | 767,450 | | |
Total assets
|
| | | | 107,322 | | | | | | 203,019,450 | | |
Total liabilities
|
| | | | 87,872 | | | | | | 7,252,000 | | |
Value of Class A ordinary shares subject to possible redemption
|
| | | | — | | | | | | 202,000,000 | | |
Shareholder’s equity (deficit)
|
| | | | 19,450 | | | | | | (6,232,550) | | |
|
Public shares
|
| | | | 20,000,000 | | |
|
Founder shares
|
| | | | 5,000,000 | | |
|
Private placement shares
|
| | | | 767,600 | | |
|
Total shares
|
| | | | 25,767,600 | | |
|
Total funds in trust available for initial business combination (less deferred underwriting commissions)
|
| | | $ | 196,000,000 | | |
|
Initial implied value per public share
|
| | | $ | 10.00 | | |
|
Implied value per share upon consummation of initial business combination
|
| | | $ | 7.61 | | |
| | |
Without
Over-allotment Option |
| |
Over-allotment
Option Exercised |
| ||||||
Gross proceeds | | | | | | | | | | | | | |
Gross proceeds from units offered to public(1)
|
| | | $ | 200,000,000 | | | | | $ | 230,000,000 | | |
Gross proceeds from private placement units offered in the private placement
|
| | | | 7,676,000 | | | | | | 7,976,000 | | |
Total gross proceeds
|
| | | $ | 207,676,000 | | | | | $ | 237,976,000 | | |
Estimated offering expenses(2) | | | | | | | | | | | | | |
Underwriting commissions (2.0% of gross proceeds from units offered to public, excluding deferred portion)(3)
|
| | | $ | 4,000,000 | | | | | $ | 4,000,000 | | |
Legal fees and expenses
|
| | | | 350,000 | | | | | | 350,000 | | |
Printing and engraving expenses
|
| | | | 30,000 | | | | | | 30,000 | | |
Accounting fees and expenses
|
| | | | 40,000 | | | | | | 40,000 | | |
SEC/FINRA Expenses
|
| | | | 94,758 | | | | | | 94,758 | | |
Travel and road show
|
| | | | 10,500 | | | | | | 10,500 | | |
NYSE listing and filing fees
|
| | | | 85,000 | | | | | | 85,000 | | |
Trustee and transfer agent fees
|
| | | | 40,000 | | | | | | 40,000 | | |
Miscellaneous
|
| | | | 25,742 | | | | | | 25,742 | | |
Total offering expenses (other than underwriting commissions)
|
| | | $ | 676,000 | | | | | $ | 676,000 | | |
Proceeds after offering expenses
|
| | | $ | 203,000,000 | | | | | $ | 233,300,000 | | |
Held in trust account(3)
|
| | | $ | 202,000,000 | | | | | $ | 232,300,000 | | |
% of public offering size
|
| | | | 101% | | | | | | 101% | | |
Not held in trust account
|
| | | $ | 1,000,000 | | | | | $ | 1,000,000 | | |
| | |
Amount
|
| |
% of Total
|
| ||||||
Legal, accounting, due diligence, travel, and other expenses in connection with any
business combination(6) |
| | | | 150,000 | | | | | | 15.0% | | |
Legal and accounting fees related to regulatory reporting obligations
|
| | | | 37,500 | | | | | | 3.75% | | |
NYSE and other regulatory fees
|
| | | | 85,000 | | | | | | 8.5% | | |
Directors and officers insurance
|
| | | | 400,000 | | | | | | 40.0% | | |
Payment for office space, secretarial and administrative services(7)
|
| | | | 240,000 | | | | | | 24.0% | | |
Consulting, travel and miscellaneous expenses incurred during search for initial business combination target
|
| | | | 87,500 | | | | | | 8.75% | | |
Total | | | | $ | 1,000,000 | | | | | | 100.0% | | |
| | |
Without
Over-allotment |
| |
With
Over-allotment |
| ||||||
Public offering price
|
| | | $ | 10.00 | | | | | $ | 10.00 | | |
Net tangible book deficit before this offering
|
| | | | (0.02) | | | | | | (0.02) | | |
Decrease attributable to public shareholders
|
| | | | (1.06) | | | | | | (1.15) | | |
Pro forma net tangible book deficit after this offering and the sale of the private placement units
|
| | | | (1.08) | | | | | | (1.17) | | |
Dilution to public shareholders
|
| | | $ | 11.08 | | | | | $ | 11.17 | | |
Percentage of dilution to public shareholders
|
| | | | 110.8% | | | | | | 111.7% | | |
| | |
Shares Purchased
|
| |
Total Consideration
|
| |
Average
Price per Share |
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Number
|
| |
Percentage
|
| |
Amount
|
| |
Percentage
|
| ||||||||||||||||||
Initial Shareholders(1)
|
| | | | 5,000,000 | | | | | | 19.40% | | | | | $ | 25,000 | | | | | | 0.01% | | | | | $ | 0.005 | | |
Private Placement Shareholders
|
| | | | 767,600 | | | | | | 2.98% | | | | | $ | 7,676,000 | | | | | | 3.70% | | | | | $ | 10.00 | | |
Public Shareholders
|
| | | | 20,000,000 | | | | | | 77.62% | | | | | $ | 200,000,000 | | | | | | 96.29% | | | | | $ | 10.00 | | |
| | | | | 25,767,600 | | | | | | 100.00% | | | | | $ | 207,701,000 | | | | | | 100.00% | | | | | | | | |
| | |
Without
Over-allotment |
| |
With
Over-allotment |
| ||||||
Numerator: | | | | | | | | | | | | | |
Net tangible book deficit before this offering
|
| | | $ | (87,872) | | | | | $ | (87,872) | | |
Net proceeds from this offering and sale of the private units(1)
|
| | | | 203,000,000 | | | | | | 233,300,000 | | |
Plus: Offering costs accrued for or paid in advance, excluded from tangible book deficit before this offering
|
| | | | 107,322 | | | | | | 107,322 | | |
Less: Deferred underwriting commissions(2)
|
| | | | (7,000,000) | | | | | | (8,650,000) | | |
Less: Over-allotment liability
|
| | | | (252,000) | | | | | | — | | |
Less: Proceeds held in trust subject to redemption(3)
|
| | | | (202,000,000) | | | | | | (232,300,000) | | |
| | | | $ | (6,232,550) | | | | | $ | (7,630,550) | | |
Denominator: | | | | | | | | | | | | | |
Class B ordinary shares outstanding prior to this offering
|
| | | | 5,750,000 | | | | | | 5,750,000 | | |
Class B ordinary shares forfeited if over-allotment is not exercised
|
| | | | (750,000) | | | | | | — | | |
Class A ordinary shares included in the units offered
|
| | | | 20,000,000 | | | | | | 23,000,000 | | |
Class A ordinary shares included in the private placement
|
| | | | 767,600 | | | | | | 797,600 | | |
Less: Ordinary shares subject to redemption
|
| | | | (20,000,000) | | | | | | (23,000,000) | | |
| | | | | 5,767,600 | | | | | | 6,547,600 | | |
| | |
March 31, 2023
|
| |||||||||
| | |
Actual
|
| |
As Adjusted
|
| ||||||
Note payable to related party(1)
|
| | | $ | 72,550 | | | | | $ | — | | |
Over-allotment liability(6)
|
| | | | — | | | | | | 252,000 | | |
Deferred underwriting commissions(2)
|
| | | | — | | | | | | 7,000,000 | | |
Class A ordinary shares subject to possible redemption, $0.0001 par value,
500,000,000 shares authorized; -0- and 20,000,000 shares are subject to possible redemption, actual and as adjusted, respectively(3) |
| | | | — | | | | | | 202,000,000 | | |
Preference shares, $0.0001 par value; 1,000,000 shares authorized; none issued and
outstanding, actual and as adjusted |
| | | | | | | | | | | | |
Class A ordinary shares, $0.0001 par value, 500,000,000 shares authorized; -0- and
767,600 shares issued or outstanding, actual and as adjusted, respectively |
| | | | — | | | | | | 77 | | |
Class B ordinary shares, $0.0001 par value, 50,000,000 shares authorized,
5,750,000 and 5,000,000 shares issued and outstanding, actual and as adjusted, respectively(4) |
| | | | 575 | | | | | | 500 | | |
Additional paid-in capital
|
| | | | 24,425 | | | | | | — | | |
Accumulated deficit(5)
|
| | | | (5,550) | | | | | | (6,233,127) | | |
Total shareholders’ equity (deficit)
|
| | | $ | 19,450 | | | | | $ | (6,232,550) | | |
Total capitalization
|
| | | $ | 92,000 | | | | | $ | 203,019,450 | | |
| | |
Redemptions in Connection
with our Initial Business Combination |
| |
Other Permitted Purchases
of Public Shares by our Affiliates |
| |
Redemptions if we fail
to Complete an Initial Business Combination |
|
Calculation of redemption price
|
| | Redemptions at the time of our initial business combination may be made pursuant to a tender offer or in connection with a shareholder vote. The redemption price will be the same whether we conduct redemptions pursuant to a tender offer or in connection with a shareholder vote. In either case, our public shareholders may redeem their public shares for cash equal to the aggregate amount then on deposit in the trust account calculated as of two business days prior to the consummation of an initial business combination (which is initially anticipated to be $10.10 per share), including interest earned on the funds held in the Trust account (which interest shall be net of taxes paid or payable), divided by the number of then outstanding public shares, subject to the limitation that we will only consummate an initial business | | | If we seek shareholder approval of our initial business combination, our initial shareholders, directors, officers, advisors or their affiliates may purchase shares in privately negotiated transactions or in the open market either prior to or following completion of our initial business combination. There is no limit to the prices that our initial shareholders, directors, officers, advisors or their affiliates may pay in these transactions. If they engage in such transactions, they will be restricted from making any such purchases when they are in possession of any material non-public information not disclosed to the seller or if such purchases are Prohibited by Regulation M under the Exchange Act. We do not currently anticipate that such purchases, if any, would constitute a tender offer subject to the tender offer rules | | | If we are unable to complete our initial business combination within the completion window, we will redeem all public shares at a per-share price, payable in cash, equal to the aggregate amount, then on deposit in the trust account (which is initially anticipated to be $10.10 per share), including interest earned on the funds held in the trust account (which interest shall be net of taxes paid or payable and up to $100,000 of interest to pay dissolution expenses) divided by the number of then outstanding public shares. | |
| | |
Redemptions in Connection
with our Initial Business Combination |
| |
Other Permitted Purchases
of Public Shares by our Affiliates |
| |
Redemptions if we fail
to Complete an Initial Business Combination |
|
| | | combination if our net tangible assets will be at least $5,000,001 either immediately prior to or upon consummation of our initial business combination. | | | under the Exchange Act or a going-private transaction subject to the going-private rules under the Exchange Act; however, if the purchasers determine at the time of any such purchases that the purchases are subject to such rules, the purchasers will comply with such rules. | | | | |
Impact to remaining shareholders
|
| | The redemptions in connection with our initial business combination will reduce the book value per share for our remaining shareholders, who will bear the burden of the deferred underwriting commissions and interest withdrawn in order to pay our taxes (to the extent not paid from amounts accrued as interest on the funds held in the trust account). | | | If the permitted purchases described above are made, there would be no impact to our remaining shareholders because the purchase price would not be paid by us. | | | The redemption of our public shares if we fail to complete our initial business combination will reduce the book value per share for the shares held by our initial shareholders, who will be our only remaining shareholders after such redemptions. | |
| | |
Terms of Our Offering
|
| |
Terms Under a Rule 419 Offering
|
|
Escrow of offering proceeds
|
| | $202,000,000 of the net proceeds of this offering and the sale of the private placement units will be deposited into a trust account located in the United States with Continental Stock Transfer & Trust Company acting as trustee. | | | Approximately $170,100,000 of the offering proceeds, representing the gross proceeds of this offering, would be required to be deposited into either an escrow account with an insured depositary institution or in a separate bank account established by a broker-dealer in which the broker-dealer acts as trustee for persons having the beneficial interests in the account. | |
| | |
Terms of Our Offering
|
| |
Terms Under a Rule 419 Offering
|
|
Investment of net proceeds
|
| | $202,000,000 of the net proceeds of this offering and the sale of the private placement units held in trust will be invested only in U.S. government treasury obligations with a maturity of 185 days or less or in money market funds meeting certain conditions under Rule 2a-7 under the Investment Company Act which invest only in direct U.S. government treasury obligations. | | | Proceeds could be invested only in specified securities such as a money market fund meeting conditions of the Investment Company Act or in securities that are direct obligations of, or obligations guaranteed as to principal or interest by, the United States. | |
Receipt of interest on escrowed funds
|
| | Interest on proceeds from the trust account to be paid to shareholders is reduced by (i) any taxes paid or payable and (ii) in the event of our liquidation for failure to complete our initial business combination within the allotted time, up to $100,000 of net interest that may be released to us should we have no or insufficient working capital to fund the costs and expenses of our dissolution and liquidation. | | | Interest on funds in escrow account would be held for the sole benefit of investors, unless and only after the funds held in escrow were released to us in connection with our completion of a business combination. | |
Limitation on fair value or net assets of target business
|
| | We must complete one or more business combinations having an aggregate fair market value of at least 80% of our assets held in the trust account (excluding the deferred underwriting commissions and taxes paid or payable on the income earned on the trust account) at the time of execution of the definitive agreement for such business combination. | | | The fair value or net assets of a target business must represent at least 80% of the maximum offering proceeds. | |
Trading of securities issued
|
| | The units are expected to begin trading on or promptly after the date of this prospectus. The Class A ordinary shares and warrants comprising the units will begin separate trading on the 52nd day following the date of this prospectus unless the Representatives inform us of their decision to allow earlier separate trading, subject to our having filed the Current Report on Form 8-K described below and having issued a press release announcing when such separate | | | No trading of the units or the underlying Class A ordinary shares and warrants would be permitted until the completion of a business combination. During this period, the securities would be held in the escrow or trust account. | |
| | |
Terms of Our Offering
|
| |
Terms Under a Rule 419 Offering
|
|
| | | trading will begin. We will file the Current Report on Form 8-K promptly after the closing of this offering, which closing is anticipated to take place three business days from the date of this prospectus, including, if the underwriters exercise the over-allotment option simultaneously with the initial closing, the proceeds of the over-allotment,. | | | | |
Exercise of the warrants
|
| | The warrants cannot be exercised until 30 days after the completion of our initial business combination. | | | The warrants could be exercised prior to the completion of a business combination, but securities received and cash paid in connection with the exercise would be deposited in the escrow or trust account. | |
Election to remain an investor
|
| | We will provide our public shareholders with the opportunity to redeem their public shares for cash at a per share price equal to the aggregate amount then on deposit in the trust account calculated as of two business days prior to the consummation of our initial business combination, including interest earned on the funds held in the trust account (which interest shall be net of taxes paid or payable), divided by the number of then outstanding public shares, upon the completion of our initial business combination, subject to the limitations described herein. We may not be required by law to hold a shareholder vote. If we are not required by law and do not otherwise decide to hold a shareholder vote, we will, pursuant to our amended and restated memorandum and articles of association, conduct the redemptions pursuant to the tender offer rules of the SEC and file tender offer documents with the SEC which will contain substantially the same financial and other information about the initial business combination and | | | A prospectus containing information pertaining to the business combination required by the SEC would be sent to each investor. Each investor would be given the opportunity to notify the company in writing, within a period of no less than 20 business days and no more than 45 business days from the effective date of a post-effective amendment to the company’s registration statement, to decide if he, she or it elects to remain a shareholder of the company or require the return of his, her or its investment. If the company has not received the notification by the end of the 45th business day, funds and interest or dividends, if any, held in the trust or escrow account are automatically returned to the shareholder. Unless a sufficient number of investors elect to remain investors, all funds on deposit in the escrow account must be returned to all of the investors and none of the securities are issued. | |
| | |
Terms of Our Offering
|
| |
Terms Under a Rule 419 Offering
|
|
| | | the redemption rights as is required under the SEC’s proxy rules. If, however, we hold a shareholder vote, we will, like many blank check companies, offer to redeem shares in conjunction with a proxy solicitation pursuant to the proxy rules and not pursuant to the tender offer rules. If we seek shareholder approval, we will complete our initial business combination only if we receive the approval of an ordinary resolution under Cayman Islands law, which is a resolution passed by a simple majority of the shareholders as, being entitled to do so, vote at a general meeting of the company and includes a unanimous written resolution. Additionally, each public shareholder may elect to redeem their public shares irrespective of whether they vote for or against the proposed transaction, or whether they were a public shareholder on the record date for the general meeting held to approve the proposed transaction. | | | | |
Business combination deadline
|
| | If we are unable to complete an initial business combination within the completion window, we will (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than ten 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 (which interest shall be net of taxes paid or payable and 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 | | | If an acquisition has not been completed within 18 months after the effective date of the company’s registration statement, funds held in the trust or escrow account are returned to investors. | |
| | |
Terms of Our Offering
|
| |
Terms Under a Rule 419 Offering
|
|
| | | shareholders (including the right to receive further liquidating distributions, if any), and (iii) as promptly as reasonably possible following such redemption, subject to the approval of our remaining shareholders and our board of directors, liquidate and dissolve, subject in each case to our obligations under Cayman Islands law to provide for claims of creditors and in all cases subject to the requirements of other applicable law. | | | | |
Release of funds
|
| |
Except for the withdrawal of interest to pay our taxes, none of the funds held in trust will be released from the trust account until the earliest of (i) the completion of our initial business combination, (ii) the redemption of our public shares if we are unable to complete our initial business combination within the completion window, subject to applicable law, and (iii) the redemption of our public shares properly submitted
In connection with a shareholder vote to approve an amendment to our amended and restated memorandum and articles of association to modify the substance or timing of our obligation to allow redemption in connection with our initial business combination or to redeem 100% of our public shares if we have not consummated an initial business combination within the completion window or with respect to any other material provisions relating to shareholders’ rights or pre-initial business combination activity.
|
| | The proceeds held in the escrow account are not released until the earlier of the completion of a business combination or the failure to effect a business combination within the allotted time. | |
Delivering share certificates in connection with the exercise of redemption rights
|
| | We intend to require our public shareholders seeking to exercise their redemption rights, whether they are record holders or hold their shares in “street name,” to, at the holder’s option, either deliver their share certificates to | | | Many blank check companies provide that a shareholder can vote against a proposed business combination and check a box on the proxy card indicating that such shareholder is seeking to exercise its redemption rights. | |
| | |
Terms of Our Offering
|
| |
Terms Under a Rule 419 Offering
|
|
| | | our transfer agent or deliver their shares to our transfer agent electronically using The Depository Trust Company’s DWAC (Deposit/Withdrawal At Custodian) system, prior to the date set forth in the proxy materials or tender offer documents, as applicable. In the case of proxy materials, this date may be up to two business days prior to the vote on the proposal to approve the initial business combination. In addition, if we conduct redemptions in connection with a shareholder vote, we intend to require a public shareholder seeking redemption of its public shares to also submit a written request for redemption to our transfer agent two business days prior to the vote in which the name of the beneficial owner of such shares is included. The proxy materials or tender offer documents, as applicable, that we will furnish to holders of our public shares in connection with our initial business combination will indicate whether we are requiring public shareholders to satisfy such delivery requirements, which will include the requirement that any beneficial owner on whose behalf a redemption right is being exercised must identify itself in order to validly redeem its shares. Accordingly, a public shareholder would have up to two business days prior to the vote on the initial business combination if we distribute proxy materials, or from the time we send out our tender offer materials until the close of the tender offer period, as applicable, to submit or tender its shares if it wishes to seek to exercise its redemption rights. | | | After the business combination is approved, the company would contact such shareholder to arrange for delivery of its share certificates to verify ownership. | |
| | |
Terms of Our Offering
|
| |
Terms Under a Rule 419 Offering
|
|
Limitation on redemption rights of shareholders holding more than 15% of the shares sold in this offering if we hold a shareholder vote
|
| | If we seek shareholder approval of our initial business combination and we do not conduct redemptions in connection with our initial business combination pursuant to the tender offer rules, our amended and restated memorandum and articles of association provide that a public shareholder, together with any affiliate of such shareholder or any other person with whom such shareholder is acting in concert or as a “group” (as defined under Section 13 of the Exchange Act), will be restricted from seeking redemption rights with respect to Excess Shares, without our prior consent. However, we would not restrict our shareholders’ ability to vote all of their shares (including Excess Shares) for or against our initial business combination. | | | Many blank check companies provide no restrictions on the ability of shareholders to redeem shares based on the number of shares held by such shareholders in connection with an initial business combination. | |
Name
|
| |
Age
|
| |
Position
|
|
Andrew R. Heyer | | | 65 | | | Chief Executive Officer and Executive Chairman | |
Steven J. Heyer | | | 70 | | | President and Director | |
Christopher Bradley | | | 45 | | | Chief Financial Officer and Secretary | |
Roger Meltzer | | | 72 | | | Director Nominee | |
Walter F. McLallen | | | 57 | | | Director Nominee | |
Brian Shimko | | | 37 | | | Director Nominee | |
Individual(1)
|
| |
Entity
|
| |
Entity’s Business
|
| |
Affiliation
|
|
Steven J. Heyer | | |
ARKO Corp.
Lazard Group OneSpaWorld Holdings biote |
| |
Convenience Stores
Finance Leisure Biotechnology |
| |
Director
Director Director Director |
|
Andrew R. Heyer | | |
Mistral Equity Partners(2)
ARKO Corp. Worldwise The Lovesac Company AF Ventures Tastemaker Acquisition Corp. Coliseum Acquisition Corp. OneSpaWorld Holdings Tastemaker Acquisition Corp. biote |
| |
Private Equity
Convenience Stores Pet Accessories Furniture Investments Blank Check Company Blank Check Company Leisure Blank Check Company Biotechnology |
| |
CEO
Director Director Director Director Director Director Director Director Director |
|
Christopher Bradley | | |
Tastemaker Acquisition Corp.
Mistral Equity Partners(2) The Beacon Consumer Incubator Fund |
| |
Blank Check Company
Private Equity Investments |
| |
CFO
Managing Director Partner |
|
Walter F. McLallen | | |
Meritage Capital Advisors
Differential Brands Group Inc. Timeless Wine Company The Lovesac Company adMarketplace Dutchland Plastics Genus Oncology |
| |
Advisory Services
Consumer Brands Wine Furniture Advertising Plastics Biotechnology |
| |
Director
Director Director Director Director Director Director |
|
Individual(1)
|
| |
Entity
|
| |
Entity’s Business
|
| |
Affiliation
|
|
| | |
Tomahawk Strategic Solutions
|
| | Military/LE Training | | | Co-chairman | |
Roger Meltzer, Esq. | | |
DLA Piper, LLP
MSP Recovery, Inc Empatan Public Limited Company AID Holdings II Management Services, LLC Ubicquia LLC Aearo Holding LLC Klein Hersh |
| |
Legal Services
Payments Biotech Assisted living Technology Technology Recruitment |
| |
Partner
Director Director Director Director Director Director |
|
Brian Shimko | | |
Maywic Select Investments
Comm Investments Fortis Security Products The Sill Lake Ridge Academy |
| |
Venture Capital
Investments Banking Infrastructure Consumer Products Education |
| |
General Partner
Principal Director Director Director |
|
| | |
Before Offering
|
| |
After Offering
|
| ||||||||||||||||||
Name and Address of Beneficial Owner(1)
|
| |
Number of
Shares Beneficially Owned(2)(4) |
| |
Approximate
Percentage of Outstanding Ordinary Shares |
| |
Number of
Shares Beneficially Owned |
| |
Approximate
Percentage of Outstanding Ordinary Shares |
| ||||||||||||
Haymaker Sponsor IV LLC (our sponsor)(3)
|
| | | | 5,750,000 | | | | | | 100% | | | | | | 5,767,600 | | | | | | 22.4% | | |
Steven J. Heyer(3)
|
| | | | 5,750,000 | | | | | | 100% | | | | | | 5,767,600 | | | | | | 22.4% | | |
Andrew R. Heyer(3)
|
| | | | 5,750,000 | | | | | | 100% | | | | | | 5,767,600 | | | | | | 22.4% | | |
Christopher Bradley(3)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Walter F. McLallen(3)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Roger Meltzer, Esq.(3)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Brian Shimko(3)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | |
All executive officers, directors and director nominees as a group (6 individuals)
|
| | | | 5,750,000 | | | | | | 100% | | | | | | 5,767,600 | | | | | | 22.4% | | |
Underwriters
|
| |
Number of
Units(1) |
| |||
Cantor Fitzgerald & Co.
|
| | | | | | |
William Blair & Company, L.L.C.
|
| | | | | | |
Total | | | | | 20,000,000 | | |
| | |
Paid by the Company
|
| |||||||||
| | |
No Exercise
|
| |
Full Exercise
|
| ||||||
Per Unit(1)
|
| | | $ | 0.55 | | | | | $ | 0.55 | | |
Total(1) | | | | $ | 11,000,000 | | | | | $ | 12,650,000 | | |
| | | | | F-2 | | | |
| | | | | F-3 | | | |
| | | | | F-4 | | | |
| | | | | F-5 | | | |
| | | | | F-6 | | | |
| | | | | F-7 | | |
| ASSETS | | | | | | | |
|
Deferred offering costs
|
| | | $ | 107,322 | | |
|
TOTAL ASSETS
|
| | | $ | 107,322 | | |
| LIABILITIES AND SHAREHOLDER’S EQUITY | | | | | | | |
| Current liabilities: | | | | | | | |
|
Accrued expenses
|
| | | $ | 5,500 | | |
|
Promissory note – related party
|
| | | | 72,550 | | |
|
Accrued offering costs
|
| | | | 9,822 | | |
|
Total Liabilities
|
| | | | 87,872 | | |
| Commitments and Contingencies (Note 6) | | | | | | | |
| Shareholder’s Equity | | | | | | | |
|
Preference shares, $0.0001 par value; 1,000,000 shares authorized; none issued and outstanding
|
| | | | — | | |
|
Class A ordinary shares, $0.0001 par value; 500,000,000 shares authorized; none issued and outstanding
|
| | | | — | | |
|
Class B ordinary shares, $0.0001 par value; 50,000,000 shares authorized; 5,750,000 issued and outstanding(1)
|
| | | | 575 | | |
|
Additional paid-in capital
|
| | | | 24,425 | | |
|
Accumulated deficit
|
| | | | (5,550) | | |
|
Total Shareholder’s Equity
|
| | | | 19,450 | | |
|
TOTAL LIABILITIES AND SHAREHOLDER’S EQUITY
|
| | | $ | 107,322 | | |
|
Formation and operating costs
|
| | | $ | 5,550 | | |
|
Net loss
|
| | | $ | (5,550) | | |
|
Weighted average shares outstanding, basic and diluted(1)
|
| | | | 5,000,000 | | |
|
Basic and diluted net loss per ordinary share
|
| | | $ | (0.00) | | |
| | |
Class B Ordinary Shares
|
| |
Additional
Paid-in Capital |
| |
Accumulated
Deficit |
| |
Total
Shareholder’s Equity |
| ||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||
Balance at March 7, 2023 (inception)
|
| | | | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Issuance of Class B ordinary shares to Sponsor(1)
|
| | | | 5,750,000 | | | | | | 575 | | | | | | 24,425 | | | | | | — | | | | | | 25,000 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | (5,550) | | | | | | (5,550) | | |
Balance at March 31, 2023
|
| | | | 5,750,000 | | | | | $ | 575 | | | | | $ | 24,425 | | | | | $ | (5,550) | | | | | $ | 19,450 | | |
| Cash Flows from Operating Activities: | | | | | | | |
|
Net loss
|
| | | $ | (5,550) | | |
| Changes in operating assets and liabilities: | | | | | | | |
|
Accrued Expenses
|
| | | | 5,500 | | |
|
Net cash used in operating activities
|
| | | | (50) | | |
| Cash Flows from Financing Activities: | | | |||||
|
Payment of operating expenses via promissory note – related party
|
| | | | 50 | | |
|
Net cash provided by financing activities
|
| | | | 50 | | |
|
Net Change in Cash
|
| | | | — | | |
|
Cash – Beginning of period
|
| | | | — | | |
|
Cash – End of period
|
| | | $ | — | | |
| Supplemental disclosure of non-cash investing and financing activities: | | | | | | | |
|
Deferred offering costs included in accrued offering costs
|
| | | $ | 9,822 | | |
|
Deferred offering costs paid via promissory note – related party
|
| | | $ | 72,500 | | |
|
Deferred offering costs paid by Sponsor in exchange for issuance of Class B ordinary shares
|
| | | $ | 25,000 | | |
|
Legal fees and expenses
|
| | | | 350,000 | | |
|
Printing and engraving expenses
|
| | | | 30,000 | | |
|
Accounting fees and expenses
|
| | | | 40,000 | | |
|
SEC/FINRA Expenses
|
| | | | 94,758 | | |
|
Travel and road show
|
| | | | 10,500 | | |
|
NYSE listing and filing fees
|
| | | | 85,000 | | |
|
Trustee and transfer agent fees
|
| | | | 40,000 | | |
|
Miscellaneous
|
| | | | 25,742 | | |
|
Total
|
| | | $ | 676,000 | | |
|
Exhibit No.
|
| |
Description
|
|
| 1.1 | | | Form of Underwriting Agreement.*** | |
| 3.1 | | | | |
| 3.2 | | | Form of Amended and Restated Memorandum and Articles of Association.*** | |
| 4.1 | | | | |
| 4.2 | | | | |
| 4.3 | | | Specimen Warrant Certificate.*** | |
| 4.4 | | | Form of Warrant Agreement between Continental Stock Transfer & Trust Company and the Registrant.*** | |
| 5.1 | | | Opinion of Ellenoff Grossman & Schole LLP.*** | |
| 5.2 | | | Opinion of Ogier (Cayman) LLP, Cayman Islands counsel to the Registrant.*** | |
| 10.1 | | | Form of Letter Agreement among the Registrant, Haymaker Sponsor IV LLC and each of the executive officers and directors of the Registrant.*** | |
| 10.2 | | | Form of Investment Management Trust Agreement between Continental Stock Transfer & Trust Company and the Registrant.*** | |
| 10.3 | | | Form of Registration Rights Agreement among the Registrant, Haymaker Sponsor IV LLC and the Holders signatory thereto.*** | |
| 10.4 | | | Form of Private Placement Units Purchase Agreement between the Registrant and Haymaker Sponsor IV LLC.*** | |
| 10.5 | | | Form of Indemnity Agreement.*** | |
| 10.6 | | | | |
| 10.7 | | | | |
| 10.8 | | | Form of Administrative Services Agreement between the Registrant and Haymaker Sponsor IV LLC.* | |
| 14 | | | | |
| 23.1 | | | |
|
Exhibit No.
|
| |
Description
|
|
| 23.2 | | | Consent of Ellenoff Grossman & Schole LLP (included on Exhibit 5.1).*** | |
| 23.3 | | | Consent of Ogier (Cayman) LLP (included on Exhibit 5.2).*** | |
| 24 | | | Power of Attorney (included on signature page to the initial filing of this Registration Statement).* | |
| 99.1 | | | | |
| 99.2 | | | | |
| 99.3 | | | | |
| 99.4 | | | | |
| 99.5 | | | | |
| 99.6 | | | | |
| 107 | | | |
|
Name
|
| |
Position
|
| |
Date
|
|
|
/s/ Andrew R. Heyer
Andrew R. Heyer
|
| |
Chief Executive Officer and Chairman
(Principal Executive Officer) |
| |
July 3, 2023
|
|
|
/s/ Steven J. Heyer
Steven J. Heyer
|
| | President and Director | | |
July 3, 2023
|
|
|
/s/ Christopher Bradley
Christopher Bradley
|
| |
Chief Financial Officer
(Principal Financial and Accounting Officer) |
| |
July 3, 2023
|
|
Dated 22 March 2023
Companies Act (Revised)
Company Limited by Shares
Haymaker Acquisition Corp. 4
AMENDED AND RESTATED
MEMORANDUM OF ASSOCIATION
(Adopted by special resolution passed on 22 March 2023)
505258.00001
www.verify.gov.ky File#: 398186
Companies Act (Revised)
Company Limited by Shares
Amended and Restated Memorandum of Association
of
Haymaker Acquisition Corp. 4
(Adopted by special resolution passed on 22 March 2023)
1 | The name of the Company is Haymaker Acquisition Corp. 4. |
2 | The Company's registered office will be situated at the office of Ogier Global (Cayman) Limited, 89 Nexus Way, Camana Bay, Grand Cayman, KY1-9009, Cayman Islands or at such other place in the Cayman Islands as the directors may at any time decide. |
3 | The Company's objects are unrestricted. As provided by section 7(4) of the Companies Act (Revised), the Company has full power and authority to carry out any object not prohibited by any law of the Cayman Islands. |
4 | The Company has unrestricted corporate capacity. Without limitation to the foregoing, as provided by section 27 (2) of the Companies Act (Revised), the Company has and is capable of exercising all the functions of a natural person of full capacity irrespective of any question of corporate benefit. |
5 | Nothing in any of the preceding paragraphs permits the Company to carry on any of the following businesses without being duly licensed, namely: |
(a) | the business of a bank or trust company without being licensed in that behalf under the Banks and Trust Companies Act (Revised); or |
(b) | insurance business from within the Cayman Islands or the business of an insurance manager, agent, sub-agent or broker without being licensed in that behalf under the Insurance Act (Revised);or |
(c) | the business of company management without being licensed in that behalf under the Companies Management Act (Revised). |
6 | Unless licensed to do so, the Company will not trade in the Cayman Islands with any person, firm or corporation except in furtherance of its business carried on outside the Cayman Islands. Despite this, the Company may effect and conclude contracts in the Cayman Islands and exercise in the Cayman Islands any of its powers necessary for the carrying on of its business outside the Cayman Islands. |
103-13498269-1 |
www.verify.gov.ky File#: 398186
2
7 | The Company is a company limited by shares and accordingly the liability of each member is limited to the amount (if any) unpaid on that member's shares. |
8 | The share capital of the Company is US $55,100 divided into 500,000,000 Class A ordinary shares of a par value of US $0.0001 each, 50,000,000 Class B ordinary shares of a par value of US $0.0001 each and 1,000,000 preference shares of a par value of US $0.0001 each. However, subject to the Companies Act (Revised) and the Company's articles of association, the Company has power to do any one or more of the following: |
(a) to redeem or repurchase any of its shares; and
(b) to increase or reduce its capital; and
(c) to issue any part of its capital (whether original, redeemed, increased or reduced):
(i) | with or without any preferential, deferred, qualified or special rights, privileges or conditions; or |
(ii) | subject to any limitations or restrictions |
and unless the condition of issue expressly declares otherwise, every issue of shares (whether declared to be ordinary, preference or otherwise) is subject to this power; or
(d) to alter any of those rights, privileges, conditions, limitations or restrictions.
9 | The Company has power to register by way of continuation as a body corporate limited by shares under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman Islands. |
103-13498269-1 |
www.verify.gov.ky File#: 398186
3
Dated 07 March 2023
Companies Act (Revised)
Company Limited by Shares
Haymaker Acquisition Corp. 4
ARTICLES OF ASSOCIATION
#VPF:FRQ46588#
Auth Code: J01002530591
www.verify.gov.ky
CONTENTS
1 Definitions, interpretation and exclusion of Table A | 1 |
Definitions | 1 |
Interpretation | 3 |
Exclusion of Table A Articles | 4 |
2 Shares | 4 |
Power to issue Shares and options, with or without special rights | 4 |
Power to issue fractions of a Share | 4 |
Power to pay commissions and brokerage fees | 4 |
Trusts not recognised | 5 |
Power to vary class rights | 5 |
Effect of new Share issue on existing class rights | 5 |
Capital contributions without issue of further Shares | 6 |
No bearer Shares or warrants | 6 |
Treasury Shares | 6 |
Rights attaching to Treasury Shares and related matters | 6 |
3 Share certificates | 7 |
Issue of share certificates | 7 |
Renewal of lost or damaged share certificates | 7 |
4 Lien on Shares | 8 |
Nature and scope of lien | 8 |
Company may sell Shares to satisfy lien | 8 |
Authority to execute instrument of transfer | 8 |
Consequences of sale of Shares to satisfy lien | 9 |
Application of proceeds of sale | 9 |
5 Calls on Shares and forfeiture | 9 |
Power to make calls and effect of calls | 9 |
Time when call made | 10 |
Liability of joint holders | 10 |
Interest on unpaid calls | 10 |
Deemed calls | 10 |
Power to accept early payment | 10 |
Power to make different arrangements at time of issue of Shares | 11 |
Notice of default | 11 |
Forfeiture or surrender of Shares | 11 |
Disposal of forfeited or surrendered Share and power to cancel forfeiture or surrender | 11 |
Effect of forfeiture or surrender on former Member | 12 |
Evidence of forfeiture or surrender | 12 |
Sale of forfeited or surrendered Shares | 12 |
Auth Code: J01002530591
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6 Transfer of Shares | 13 |
Form of transfer | 13 |
Power to refuse registration | 13 |
Notice of refusal to register | 13 |
Power to suspend registration | 13 |
Fee, if any, payable for registration | 13 |
Company may retain instrument of transfer | 13 |
7 Transmission of Shares | 14 |
Persons entitled on death of a Member | 14 |
Registration of transfer of a Share following death or bankruptcy | 14 |
Indemnity | 14 |
Rights of person entitled to a Share following death or bankruptcy | 14 |
8 Alteration of capital | 15 |
Increasing, consolidating, converting, dividing and cancelling share capital | 15 |
Dealing with fractions resulting from consolidation of Shares | 15 |
Reducing share capital | 16 |
9 Redemption and purchase of own Shares | 16 |
Power to issue redeemable Shares and to purchase own Shares | 16 |
Power to pay for redemption or purchase in cash or in specie | 16 |
Effect of redemption or purchase of a Share | 17 |
10 Meetings of Members | 17 |
Power to call meetings | 17 |
Content of notice | 18 |
Period of notice | 18 |
Persons entitled to receive notice | 18 |
Publication of notice on a website | 19 |
Time a website notice is deemed to be given | 19 |
Required duration of publication on a website | 19 |
Accidental omission to give notice or non-receipt of notice | 19 |
11 Proceedings at meetings of Members | 20 |
Quorum | 20 |
Lack of quorum | 20 |
Use of technology | 20 |
Chairman | 20 |
Right of a director to attend and speak | 21 |
Adjournment | 21 |
Method of voting | 21 |
Outcome of vote by show of hands | 21 |
Withdrawal of demand for a poll | 21 |
Taking of a poll | 22 |
Chairman's casting vote | 22 |
Amendments to resolutions | 22 |
Auth Code: J01002530591
www.verify.gov.ky
Written resolutions | 23 |
Sole-member company | 23 |
12 Voting rights of Members | 24 |
Right to vote | 24 |
Rights of joint holders | 24 |
Representation of corporate Members | 24 |
Member with mental disorder | 25 |
Objections to admissibility of votes | 25 |
Form of proxy | 25 |
How and when proxy is to be delivered | 26 |
Voting by proxy | 27 |
13 Number of directors | 27 |
14 Appointment, disqualification and removal of directors | 27 |
First directors | 27 |
No age limit | 27 |
Corporate directors | 27 |
No shareholding qualification | 27 |
Appointment of directors | 28 |
Removal of directors | 28 |
Resignation of directors | 28 |
Termination of the office of director | 29 |
15 Alternate directors | 29 |
Appointment and removal | 29 |
Notices | 30 |
Rights of alternate director | 30 |
Appointment ceases when the appointor ceases to be a director | 31 |
Status of alternate director | 31 |
Status of the director making the appointment | 31 |
16 Powers of directors | 31 |
Powers of directors | 31 |
Appointments to office | 31 |
Remuneration | 32 |
Disclosure of information | 33 |
17 Delegation of powers | 33 |
Power to delegate any of the directors' powers to a committee | 33 |
Power to appoint an agent of the Company | 33 |
Power to appoint an attorney or authorised signatory of the Company | 34 |
Power to appoint a proxy | 34 |
18 Meetings of directors | 34 |
Regulation of directors' meetings | 34 |
Auth Code: J01002530591
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Calling meetings | 35 |
Notice of meetings | 35 |
Period of notice | 35 |
Use of technology | 35 |
Place of meetings | 35 |
Quorum | 35 |
Voting | 35 |
Validity | 35 |
Recording of dissent | 36 |
Written resolutions | 36 |
Sole director's minute | 36 |
19 Permissible directors' interests and disclosure | 36 |
Permissible interests subject to disclosure | 36 |
Notification of interests | 37 |
Voting where a director is interested in a matter | 37 |
20 Minutes | 38 |
21 Accounts and audit | 38 |
Accounting and other records | 38 |
No automatic right of inspection | 38 |
Sending of accounts and reports | 38 |
Time of receipt if documents are published on a website | 39 |
Validity despite accidental error in publication on website | 39 |
When accounts are to be audited | 39 |
22 Financial year | 39 |
23 Record dates | 40 |
24 Dividends | 40 |
Declaration of dividends by Members | 40 |
Payment of interim dividends and declaration of final dividends by directors | 40 |
Apportionment of dividends | 41 |
Right of set off | 41 |
Power to pay other than in cash | 41 |
How payments may be made | 41 |
Dividends or other moneys not to bear interest in absence of special rights | 42 |
Dividends unable to be paid or unclaimed | 42 |
25 Capitalisation of profits | 43 |
Capitalisation of profits or of any share premium account or capital redemption reserve | 43 |
Applying an amount for the benefit of members | 43 |
26 Share premium account | 43 |
Directors to maintain share premium account | 43 |
Debits to share premium account | 43 |
Auth Code: J01002530591
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27 Seal | 44 |
Company seal | 44 |
Duplicate seal | 44 |
When and how seal is to be used | 44 |
If no seal is adopted or used | 44 |
Power to allow non-manual signatures and facsimile printing of seal | 44 |
Validity of execution | 45 |
28 Indemnity | 45 |
Indemnity | 45 |
Release | 46 |
Insurance | 46 |
29 Notices | 46 |
Form of notices | 46 |
Electronic communications | 47 |
Persons authorised to give notices | 47 |
Delivery of written notices | 47 |
Joint holders | 47 |
Signatures | 47 |
Evidence of transmission | 48 |
Giving notice to a deceased or bankrupt Member | 48 |
Date of giving notices | 48 |
Saving provision | 49 |
30 Authentication of Electronic Records | 49 |
Application of Articles | 49 |
Authentication of documents sent by Members by Electronic means | 49 |
Authentication of document sent by the Secretary or Officers of the Company by Electronic means | 50 |
Manner of signing | 50 |
Saving provision | 50 |
31 Transfer by way of continuation | 51 |
32 Winding up | 51 |
Distribution of assets in specie | 51 |
No obligation to accept liability | 52 |
The directors are authorised to present a winding up petition | 52 |
33 Amendment of Memorandum and Articles | 52 |
Power to change name or amend Memorandum | 52 |
Power to amend these Articles | 52 |
Auth Code: J01002530591
www.verify.gov.ky
Companies Act (Revised)
Company Limited by Shares
Articles of Association
of
Haymaker Acquisition Corp. 4
1 Definitions, interpretation and exclusion of Table A
Definitions
1.1 | In these Articles, the following definitions apply: Act means the Companies Act (Revised). Articles means, as appropriate: |
(a) these Articles of Association as amended from time to time: or
(b) two or more particular Articles of these Articles;
and Article refers to a particular Article of these Articles.
Business Day means a day other than a public holiday in the place where the Company's registered office is located, a Saturday or a Sunday.
Clear Days, in relation to a period of notice, means that period excluding:
(a) the day when the notice is given or deemed to be given; and
(b) the day for which it is given or on which it is to take effect.
Company means the above-named company.
Default Rate means 10% (ten per cent) per annum.
Electronic has the meaning given to that term in the Electronic Transactions Act (Revised).
Electronic Record has the meaning given to that term in the Electronic Transactions Act (Revised).
#VPF:FRQ46588#
Auth Code: J01002530591
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1
Electronic Signature has the meaning given to that term in the Electronic Transactions Act (Revised).
Fully Paid and Paid Up:
(a) | in relation to a Share with par value, means that the par value for that Share and any premium payable in respect of the issue of that Share, has been fully paid or credited as paid in money or money's worth; |
(b) | in relation to a Share without par value, means that the agreed issue price for that Share has been fully paid or credited as paid in money or money's worth. |
Islands means the British Overseas Territory of the Cayman Islands.
Member means any person or persons entered on the register of members from time to time as the holder of a Share.
Memorandum means the Memorandum of Association of the Company as amended from time to time.
Officer means a person appointed to hold an office in the Company; and the expression includes a director, alternate director or liquidator, but does not include the Secretary.
Ordinary Resolution means a resolution of a duly constituted general meeting of the Company passed by a simple majority of the votes cast by, or on behalf of, the Members entitled to vote. The expression also includes a unanimous written resolution.
Secretary means a person appointed to perform the duties of the secretary of the Company, including a joint, assistant or deputy secretary.
Share means a share in the share capital of the Company; and the expression:
(a) | includes stock (except where a distinction between shares and stock is expressed or implied); and |
(b) | where the context permits, also includes a fraction of a share. |
Special Resolution has the meaning given to that term in the Act; and the expression includes a unanimous written resolution.
Treasury Shares means Shares of the Company held in treasury pursuant to the Act and Article 2.12.
Auth Code: J01002530591
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2
Interpretation
1.2 | In the interpretation of these Articles, the following provisions apply unless the context otherwise requires: |
(a) | A reference in these Articles to a statute is a reference to a statute of the Islands as known by its short title, and includes: |
(i) any statutory modification, amendment or re-enactment; and
(ii) any subordinate legislation or regulations issued under that statute.
Without limitation to the preceding sentence, a reference to a revised Act of the Cayman Islands is taken to be a reference to the revision of that Act in force from time to time as amended from time to time.
(b) | Headings are inserted for convenience only and do not affect the interpretation of these Articles, unless there is ambiguity. |
(c) | If a day on which any act, matter or thing is to be done under these Articles is not a Business Day, the act, matter or thing must be done on the next Business Day. |
(d) | A word which denotes the singular also denotes the plural, a word which denotes the plural also denotes the singular, and a reference to any gender also denotes the other genders. |
(e) | A reference to a person includes, as appropriate, a company, trust, partnership, joint venture, association, body corporate or government agency. |
(f) | Where a word or phrase is given a defined meaning another part of speech or grammatical form in respect to that word or phrase has a corresponding meaning. |
(g) | All references to time are to be calculated by reference to time in the place where the Company's registered office is located. |
(h) | The words written and in writing include all modes of representing or reproducing words in a visible form, but do not include an Electronic Record where the distinction between a document in writing and an Electronic Record is expressed or implied. |
(i) | The words including, include and in particular or any similar expression are to be construed without limitation. |
Auth Code: J01002530591
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3
Exclusion of Table A Articles
1.3 | The regulations contained in Table A in the First Schedule of the Act and any other regulations contained in any statute or subordinate legislation are expressly excluded and do not apply to the Company. |
2 Shares
Power to issue Shares and options, with or without special rights
2.1 | Subject to the provisions of the Act and the Articles about the redemption and purchase of the Company's own Shares, the directors have general and unconditional authority to allot (with or without confirming rights of renunciation), grant options over or otherwise deal with any unissued Shares of the Company to such persons, at such times and on such terms and conditions as they may decide. No Share may be issued at a discount except in accordance with the provisions of the Act. |
2.2 | Without limitation to the preceding Article, the directors may so deal with the unissued Shares of the Company: |
(a) | either at a premium or at par; |
(b) | with or without preferred, deferred or other special rights or restrictions whether in regard to dividend, voting, return of capital or otherwise. |
Power to issue fractions of a Share
2.3 | Subject to the Act, the Company may issue fractions of a Share of any class. A fraction of a Share shall be subject to and carry the corresponding fraction of liabilities (whether with respect to calls or otherwise), limitations, preferences, privileges, qualifications, restrictions, rights and other attributes of a Share of that class of Shares. |
Power to pay commissions and brokerage fees
2.4 | The Company may pay a commission to any person in consideration of that person: |
(a) | subscribing or agreeing to subscribe, whether absolutely or conditionally; or |
(b) | procuring or agreeing to procure subscriptions, whether absolute or conditional |
for any Shares in the Company. That commission may be satisfied by the payment of cash or the allotment of Fully Paid or partly-paid Shares or partly in one way and partly in another.
2.5 | The Company may employ a broker in the issue of its capital and pay him any proper commission or brokerage. |
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Trusts not recognised
2.6 | Except as required by law: |
(a) | no person shall be recognised by the Company as holding any Share on any trust; and |
(b) | no person other than the Member shall be recognised by the Company as having any right in a Share. |
Power to vary class rights
2.7 | If the share capital is divided into different classes of Shares then, unless the terms on which a class of Shares was issued state otherwise, the rights attaching to a class of Shares may only be varied if one of the following applies: |
(a) | the Members holding two thirds of the issued Shares of that class consent in writing to the variation; or |
(b) | the variation is made with the sanction of a Special Resolution passed at a separate general meeting of the Members holding the issued Shares of that class. |
2.8 | For the purpose of paragraph (b) of the preceding Article, all the provisions of these Articles relating to general meetings apply, mutatis mutandis, to every such separate meeting except that: |
(a) | the necessary quorum shall be one or more persons holding, or representing by proxy, not less than one third of the issued Shares of the class; and |
(b) | any Member holding issued Shares of the class, present in person or by proxy or, in the case of a corporate Member, by its duly authorised representative, may demand a poll. |
Effect of new Share issue on existing class rights
2.9 | Unless the terms on which a class of Shares was issued state otherwise, the rights conferred on the Member holding Shares of any class shall not be deemed to be varied by the creation or issue of further Shares ranking pari passu with the existing Shares of that class. |
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Capital contributions without issue of further Shares
2.10 | With the consent of a Member, the directors may accept a voluntary contribution to the capital of the Company from that Member without issuing Shares in consideration for that contribution. In that event, the contribution shall be dealt with in the following manner: |
(a) It shall be treated as if it were a share premium.
(b) Unless the Member agrees otherwise:
(i) | if the Member holds Shares in a single class of Shares - it shall be credited to the share premium account for that class of Shares; |
(ii) | if the Member holds Shares of more than one class - it shall be credited rateably to the share premium accounts for those classes of Shares (in the proportion that the sum of the issue prices for each class of Shares that the Member holds bears to the total issue prices for all classes of Shares that the Member holds). |
(c) | It shall be subject to the provisions of the Act and these Articles applicable to share premiums. |
No bearer Shares or warrants
2.11 | The Company shall not issue Shares or warrants to bearers. |
Treasury Shares
2.12 | Shares that the Company purchases, redeems or acquires by way of surrender in accordance with the Act shall be held as Treasury Shares and not treated as cancelled if: |
(a) | the directors so determine prior to the purchase, redemption or surrender of those shares; and |
(b) | the relevant provisions of the Memorandum and Articles and the Act are otherwise complied with. |
Rights attaching to Treasury Shares and related matters
2.13 | No dividend may be declared or paid, and no other distribution (whether in cash or otherwise) of the Company's assets (including any distribution of assets to members on a winding up) may be made to the Company in respect of a Treasury Share. |
2.14 | The Company shall be entered in the Register as the holder of the Treasury Shares. However: |
(a) | the Company shall not be treated as a member for any purpose and shall not exercise any right in respect of the Treasury Shares, and any purported exercise of such a right shall be void; |
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(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 Act. |
2.15 | Nothing in the preceding Article prevents an allotment of Shares as fully paid bonus shares in respect of a Treasury Share and Shares allotted as fully paid bonus shares in respect of a Treasury Share shall be treated as Treasury Shares. |
2.16 | Treasury Shares may be disposed of by the Company in accordance with the Act and otherwise on such terms and conditions as the directors determine. |
3 | Share certificates |
Issue of share certificates
3.1 | Upon being entered in the register of members as the holder of a Share, a Member shall be entitled: |
(a) | without payment, to one certificate for all the Shares of each class held by that Member (and, upon transferring a part of the Member's holding of Shares of any class, to a certificate for the balance of that holding); and |
(b) | upon payment of such reasonable sum as the directors may determine for every certificate after the first, to several certificates each for one or more of that Member's Shares. |
3.2 | Every certificate shall specify the number, class and distinguishing numbers (if any) of the Shares to which it relates and whether they are Fully Paid or partly paid up. A certificate may be executed under seal or executed in such other manner as the directors determine. |
3.3 | The Company shall not be bound to issue more than one certificate for Shares held jointly by several persons and delivery of a certificate for a Share to one joint holder shall be a sufficient delivery to all of them. |
Renewal of lost or damaged share certificates
3.4 | If a share certificate is defaced, worn-out, lost or destroyed, it may be renewed on such terms (if any) as to: |
(a) | evidence; |
(b) | indemnity; |
(c) | payment of the expenses reasonably incurred by the Company in investigating the evidence; and |
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(d) | payment of a reasonable fee, if any, for issuing a replacement share certificate |
as the directors may determine, and (in the case of defacement or wearing-out) on delivery to the Company of the old certificate.
4 | Lien on Shares |
Nature and scope of lien
4.1 | The Company has a first and paramount lien on all Shares (whether Fully Paid or not) registered in the name of a Member (whether solely or jointly with others). The lien is for all moneys payable to the Company by the Member or the Member's estate: |
(a) | either alone or jointly with any other person, whether or not that other person is a Member; and |
(b) | whether or not those moneys are presently payable. |
4.2 | At any time the directors may declare any Share to be wholly or partly exempt from the provisions of this Article. |
Company may sell Shares to satisfy lien
4.3 | The Company may sell any Shares over which it has a lien if all of the following conditions are met: |
(a) | the sum in respect of which the lien exists is presently payable; |
(b) | the Company gives notice to the Member holding the Share (or to the person entitled to it in consequence of the death or bankruptcy of that Member) demanding payment and stating that if the notice is not complied with the Shares may be sold; and |
(c) | that sum is not paid within 14 Clear Days after that notice is deemed to be given under these Articles. |
4.4 | The Shares may be sold in such manner as the directors determine. |
4.5 | To the maximum extent permitted by law, the directors shall incur no personal liability to the Member concerned in respect of the sale. |
Authority to execute instrument of transfer
4.6 | To give effect to a sale, the directors may authorise any person to execute an instrument of transfer of the Shares sold to, or in accordance with the directions of, the purchaser. The title of the transferee of the Shares shall not be affected by any irregularity or invalidity in the proceedings in respect of the sale. |
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Consequences of sale of Shares to satisfy lien
4.7 | On sale pursuant to the preceding Articles: |
(a) | the name of the Member concerned shall be removed from the register of members as the holder of those Shares; and |
(b) | that person shall deliver to the Company for cancellation the certificate for those Shares. |
Despite this, that person shall remain liable to the Company for all monies which, at the date of sale, were presently payable by him to the Company in respect of those Shares. That person shall also be liable to pay interest on those monies from the date of sale until payment at the rate at which interest was payable before that sale or, failing that, at the Default Rate. The directors may waive payment wholly or in part or enforce payment without any allowance for the value of the Shares at the time of sale or for any consideration received on their disposal.
Application of proceeds of sale
4.8 | The net proceeds of the sale, after payment of the costs, shall be applied in payment of so much of the sum for which the lien exists as is presently payable. Any residue shall be paid to the person whose Shares have been sold: |
(a) | if no certificate for the Shares was issued, at the date of the sale; or |
(b) | if a certificate for the Shares was issued, upon surrender to the Company of that certificate for cancellation |
but, in either case, subject to the Company retaining a like lien for all sums not presently payable as existed on the Shares before the sale.
5 | Calls on Shares and forfeiture |
Power to make calls and effect of calls
5.1 | Subject to the terms of allotment, the directors may make calls on the Members in respect of any moneys unpaid on their Shares including any premium. The call may provide for payment to be by instalments. Subject to receiving at least 14 Clear Days' notice specifying when and where payment is to be made, each Member shall pay to the Company the amount called on his Shares as required by the notice. |
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5.2 | Before receipt by the Company of any sum due under a call, that call may be revoked in whole or in part and payment of a call may be postponed in whole or in part. Where a call is to be paid in instalments, the Company may revoke the call in respect of all or any remaining instalments in whole or in part and may postpone payment of all or any of the remaining instalments in whole or in part. |
5.3 | A Member on whom a call is made shall remain liable for that call notwithstanding the subsequent transfer of the Shares in respect of which the call was made. He shall not be liable for calls made after he is no longer registered as Member in respect of those Shares. |
Time when call made
5.4 | A call shall be deemed to have been made at the time when the resolution of the directors authorising the call was passed. |
Liability of joint holders
5.5 | Members registered as the joint holders of a Share shall be jointly and severally liable to pay all calls in respect of the Share. |
Interest on unpaid calls
5.6 | If a call remains unpaid after it has become due and payable the person from whom it is due and payable shall pay interest on the amount unpaid from the day it became due and payable until it is paid: |
(a) | at the rate fixed by the terms of allotment of the Share or in the notice of the call; or |
(b) | if no rate is fixed, at the Default Rate. |
The directors may waive payment of the interest wholly or in part.
Deemed calls
5.7 | Any amount payable in respect of a Share, whether on allotment or on a fixed date or otherwise, shall be deemed to be payable as a call. If the amount is not paid when due the provisions of these Articles shall apply as if the amount had become due and payable by virtue of a call. |
Power to accept early payment
5.8 | The Company may accept from a Member the whole or a part of the amount remaining unpaid on Shares held by him although no part of that amount has been called up. |
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Power to make different arrangements at time of issue of Shares
5.9 | Subject to the terms of allotment, the directors may make arrangements on the issue of Shares to distinguish between Members in the amounts and times of payment of calls on their Shares. |
Notice of default
5.10 | If a call remains unpaid after it has become due and payable the directors may give to the person from whom it is due not less than 14 Clear Days' notice requiring payment of: |
(a) | the amount unpaid; |
(b) | any interest which may have accrued; |
(c) | any expenses which have been incurred by the Company due to that person's default. |
5.11 | The notice shall state the following: |
(a) | the place where payment is to be made; and |
(b) | a warning that if the notice is not complied with the Shares in respect of which the call is made will be liable to be forfeited. |
Forfeiture or surrender of Shares
5.12 | If the notice under the preceding Article is not complied with, the directors may, before the payment required by the notice has been received, resolve that any Share the subject of that notice be forfeited. The forfeiture shall include all dividends or other moneys payable in respect of the forfeited Share and not paid before the forfeiture. Despite the foregoing, the directors may determine that any Share the subject of that notice be accepted by the Company as surrendered by the Member holding that Share in lieu of forfeiture. |
Disposal of forfeited or surrendered Share and power to cancel forfeiture or surrender
5.13 | A forfeited or surrendered Share may be sold, re-allotted or otherwise disposed of on such terms and in such manner as the directors determine either to the former Member who held that Share or to any other person. The forfeiture or surrender may be cancelled on such terms as the directors think fit at any time before a sale, re-allotment or other disposition. Where, for the purposes of its disposal, a forfeited or surrendered Share is to be transferred to any person, the directors may authorise some person to execute an instrument of transfer of the Share to the transferee. |
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Effect of forfeiture or surrender on former Member
5.14 | On forfeiture or surrender: |
(a) | the name of the Member concerned shall be removed from the register of members as the holder of those Shares and that person shall cease to be a Member in respect of those Shares; and |
(b) | that person shall surrender to the Company for cancellation the certificate (if any) for the forfeited or surrendered Shares. |
5.15 | Despite the forfeiture or surrender of his Shares, that person shall remain liable to the Company for all moneys which at the date of forfeiture or surrender were presently payable by him to the Company in respect of those Shares together with: |
(a) | all expenses; and |
(b) | interest from the date of forfeiture or surrender until payment: |
(i) | at the rate of which interest was payable on those moneys before forfeiture; or |
(ii) | if no interest was so payable, at the Default Rate. |
The directors, however, may waive payment wholly or in part.
Evidence of forfeiture or surrender
5.16 | A declaration, whether statutory or under oath, made by a director or the Secretary shall be conclusive evidence of the following matters stated in it as against all persons claiming to be entitled to forfeited Shares: |
(a) | that the person making the declaration is a director or Secretary of the Company, and |
(b) | that the particular Shares have been forfeited or surrendered on a particular date. |
Subject to the execution of an instrument of transfer, if necessary, the declaration shall constitute good title to the Shares.
Sale of forfeited or surrendered Shares
5.17 | Any person to whom the forfeited or surrendered Shares are disposed of shall not be bound to see to the application of the consideration, if any, of those Shares nor shall his title to the Shares be affected by any irregularity in, or invalidity of the proceedings in respect of, the forfeiture, surrender or disposal of those Shares. |
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6 | Transfer of Shares |
Form of transfer
6.1 | Subject to the following Articles about the transfer of Shares, a Member may transfer Shares to another person by completing an instrument of transfer, in a common form or in a form approved by the directors, executed: |
(a) | where the Shares are Fully Paid, by or on behalf of that Member; and |
(b) | where the Shares are partly paid, by or on behalf of that Member and the transferee. |
Power to refuse registration
6.2 | The directors may refuse to register the transfer of a Share to any person. They may do so in their absolute discretion, without giving any reason for their refusal, and irrespective of whether the Share is Fully Paid or the Company has no lien over it. |
Notice of refusal to register
6.3 | If the directors refuse to register a transfer of a Share, they must send notice of their refusal to the existing Member within two months after the date on which the transfer was lodged with the Company. |
Power to suspend registration
6.4 | The directors may suspend registration of the transfer of Shares at such times and for such periods, not exceeding 30 days in any calendar year, as they determine. |
Fee, if any, payable for registration
6.5 | If the directors so decide, the Company may charge a reasonable fee for the registration of any instrument of transfer or other document relating to the title to a Share. |
Company may retain instrument of transfer
6.6 | The Company shall be entitled to retain any instrument of transfer which is registered; but an instrument of transfer which the directors refuse to register shall be returned to the person lodging it when notice of the refusal is given. |
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7 | Transmission of Shares |
Persons entitled on death of a Member
7.1 | If a Member dies, the only persons recognised by the Company as having any title to the deceased Members' interest are the following: |
(a) | where the deceased Member was a joint holder, the survivor or survivors; and |
(b) | where the deceased Member was a sole holder, that Member's personal representative or representatives. |
7.2 | Nothing in these Articles shall release the deceased Member's estate from any liability in respect of any Share, whether the deceased was a sole holder or a joint holder. |
Registration of transfer of a Share following death or bankruptcy
7.3 | A person becoming entitled to a Share in consequence of the death or bankruptcy of a Member may elect to do either of the following: |
(a) | to become the holder of the Share; or |
(b) | to transfer the Share to another person. |
7.4 | That person must produce such evidence of his entitlement as the directors may properly require. |
7.5 | If the person elects to become the holder of the Share, he must give notice to the Company to that effect. For the purposes of these Articles, that notice shall be treated as though it were an executed instrument of transfer. |
7.6 | If the person elects to transfer the Share to another person then: |
(a) | if the Share is Fully Paid, the transferor must execute an instrument of transfer; and |
(b) | if the Share is partly paid, the transferor and the transferee must execute an instrument of transfer. |
7.7 | All the Articles relating to the transfer of Shares shall apply to the notice or, as appropriate, the instrument of transfer. |
Indemnity
7.8 | A person registered as a Member by reason of the death or bankruptcy of another Member shall indemnify the Company and the directors against any loss or damage suffered by the Company or the directors as a result of that registration. |
Rights of person entitled to a Share following death or bankruptcy
7.9 | A person becoming entitled to a Share by reason of the death or bankruptcy of a Member shall have the rights to which he would be entitled if he were registered as the holder of the Share. But, until he is registered as Member in respect of the Share, he shall not be entitled to attend or vote at any meeting of the Company or at any separate meeting of the holders of that class of Shares in the Company. |
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8 | Alteration of capital |
Increasing, consolidating, converting, dividing and cancelling share capital
8.1 | To the fullest extent permitted by the Act, the Company may by Ordinary Resolution do any of the following and amend its Memorandum for that purpose: |
(a) | increase its share capital by new Shares of the amount fixed by that Ordinary Resolution and with the attached rights, priorities and privileges set out in that Ordinary Resolution; |
(b) | consolidate and divide all or any of its share capital into Shares of larger amount than its existing Shares; |
(c) | convert all or any of its Paid Up Shares into stock, and reconvert that stock into Paid Up Shares of any denomination; |
(d) | sub-divide its Shares or any of them into Shares of an amount smaller than that fixed by the Memorandum, so, however, that in the sub-division, the proportion between the amount paid and the amount, if any, unpaid on each reduced Share shall be the same as it was in case of the Share from which the reduced Share is derived; and |
(e) | cancel Shares which, at the date of the passing of that Ordinary Resolution, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the Shares so cancelled or, in the case of Shares without nominal par value, diminish the number of Shares into which its capital is divided. |
Dealing with fractions resulting from consolidation of Shares
8.2 | Whenever, as a result of a consolidation of Shares, any Members would become entitled to fractions of a Share the directors may on behalf of those Members: |
(a) | sell the Shares representing the fractions for the best price reasonably obtainable to any person (including, subject to the provisions of the Act, the Company); and |
(b) | distribute the net proceeds in due proportion among those Members. |
For that purpose, the directors may authorise some person to execute an instrument of transfer of the Shares to, or in accordance with the directions of, the purchaser. The transferee shall not be bound to see to the application of the purchase money nor shall the transferee's title to the Shares be affected by any irregularity in, or invalidity of, the proceedings in respect of the sale.
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Reducing share capital
8.3 | Subject to the Act and to any rights for the time being conferred on the Members holding a particular class of Shares, the Company may, by Special Resolution, reduce its share capital in any way. |
9 | Redemption and purchase of own Shares |
Power to issue redeemable Shares and to purchase own Shares
9.1 | Subject to the Act, and to any rights for the time being conferred on the Members holding a particular class of Shares, the Company may by its directors: |
(a) | issue Shares that are to be redeemed or liable to be redeemed, at the option of the Company or the Member holding those redeemable Shares, on the terms and in the manner its directors determine before the issue of those Shares; |
(b) | with the consent by Special Resolution of the Members holding Shares of a particular class, vary the rights attaching to that class of Shares so as to provide that those Shares are to be redeemed or are liable to be redeemed at the option of the Company on the terms and in the manner which the directors determine at the time of such variation; and |
(c) | purchase all or any of its own Shares of any class including any redeemable Shares on the terms and in the manner which the directors determine at the time of such purchase. |
The Company may make a payment in respect of the redemption or purchase of its own Shares in any manner authorised by the Act, including out of any combination of the following: capital, its profits and the proceeds of a fresh issue of Shares.
Power to pay for redemption or purchase in cash or in specie
9.2 | When making a payment in respect of the redemption or purchase of Shares, the directors may make the payment in cash or in specie (or partly in one and partly in the other) if so authorised by the terms of the allotment of those Shares, or by the terms applying to those Shares in accordance with Article 9.1, or otherwise by agreement with the Member holding those Shares. |
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Effect of redemption or purchase of a Share
9.3 | Upon the date of redemption or purchase of a Share: |
(a) | the Member holding that Share shall cease to be entitled to any rights in respect of the Share other than the right to receive: |
(i) | the price for the Share; and |
(ii) | any dividend declared in respect of the Share prior to the date of redemption or purchase; |
(b) | the Member's name shall be removed from the register of members with respect to the Share; and |
(c) | the Share shall be cancelled or held as a Treasury Shares, as the directors may determine. |
For the purpose of this Article, the date of redemption or purchase is the date when the redemption or purchase falls due.
10 | Meetings of Members |
Power to call meetings
10.1 | The directors may call a general meeting at any time. |
10.2 | If there are insufficient directors to constitute a quorum and the remaining directors are unable to agree on the appointment of additional directors, the directors must call a general meeting for the purpose of appointing additional directors. |
10.3 | The directors must also call a general meeting if requisitioned in the manner set out in the next two Articles. |
10.4 | The requisition must be in writing and given by one or more Members who together hold at least 10% of the rights to vote at such general meeting. |
10.5 | The requisition must also: |
(a) | specify the purpose of the meeting. |
(b) | be signed by or on behalf of each requisitioner (and for this purpose each joint holder shall be obliged to sign). The requisition may consist of several documents in like form signed by one or more of the requisitioners. |
(c) | be delivered in accordance with the notice provisions. |
10.6 | Should the directors fail to call a general meeting within 21 Clear Days from the date of receipt of a requisition, the requisitioners or any of them may call a general meeting within three months after the end of that period. |
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10.7 | Without limitation to the foregoing, if there are insufficient directors to constitute a quorum and the remaining directors are unable to agree on the appointment of additional directors, any one or more Members who together hold at least 10% of the rights to vote at a general meeting may call a general meeting for the purpose of considering the business specified in the notice of meeting which shall include as an item of business the appointment of additional directors. |
10.8 | If the Members call a meeting under the above provisions, the Company shall reimburse their reasonable expenses. |
Content of notice
10.9 | Notice of a general meeting shall specify each of the following: |
(a) | the place, the date and the hour of the meeting; |
(b) | if the meeting is to be held in two or more places, the technology that will be used to facilitate the meeting; |
(c) | subject to paragraph (d), the general nature of the business to be transacted; and |
(d) | if a resolution is proposed as a Special Resolution, the text of that resolution. |
10.10 | In each notice there shall appear with reasonable prominence the following statements: |
(a) | that a Member who is entitled to attend and vote is entitled to appoint one or more proxies to attend and vote instead of that Member; and |
(b) | that a proxyholder need not be a Member. |
Period of notice
10.11 | At least five Clear Days' notice of a general meeting must be given to Members. But a meeting may be convened on shorter notice with the consent of the Member or Members who, individually or collectively, hold at least 90% of the voting rights of all those who have a right to vote at that meeting. |
Persons entitled to receive notice
10.12 | Subject to the provisions of these Articles and to any restrictions imposed on any Shares, the notice shall be given to the following people: |
(a) | the Members; |
(b) | persons entitled to a Share in consequence of the death or bankruptcy of a Member; and |
(c) | the directors. |
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Publication of notice on a website
10.13 | Subject to the Act, a notice of a general meeting may be published on a website providing the recipient is given separate notice of: |
(a) | the publication of the notice on the website; |
(b) | the place on the website where the notice may be accessed; |
(c) | how it may be accessed; and |
(d) | the place, date and time of the general meeting. |
10.14 | If a Member notifies the Company that he is unable for any reason to access the website, the Company must as soon as practicable give notice of the meeting to that Member by any other means permitted by these Articles. But this will not affect when that Member is deemed to have received notice of the meeting. |
Time a website notice is deemed to be given
10.15 | A website notice is deemed to be given when the Member is given notice of its publication. |
Required duration of publication on a website
10.16 | Where the notice of meeting is published on a website, it shall continue to be published in the same place on that website from the date of the notification until the conclusion of the meeting to which the notice relates. |
Accidental omission to give notice or non-receipt of notice
10.17 | Proceedings at a meeting shall not be invalidated by the following: |
(a) | an accidental failure to give notice of the meeting to any person entitled to notice; or |
(b) | non-receipt of notice of the meeting by any person entitled to notice. |
10.18 | In addition, where a notice of meeting is published on a website, proceedings at the meeting shall not be invalidated merely because it is accidentally published: |
(a) | in a different place on the website; or |
(b) | for part only of the period from the date of the notification until the conclusion of the meeting to which the notice relates. |
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11 | Proceedings at meetings of Members |
Quorum
11.1 | Save as provided in the following Article, no business shall be transacted at any meeting unless a quorum is present in person or by proxy. A quorum is as follows: |
(a) | if the Company has only one Member: that Member; |
(b) | if the Company has more than one Member: two Members. |
Lack of quorum
11.2 | If a quorum is not present within 15 minutes of the time appointed for the meeting, or if at any time during the meeting it becomes inquorate, then the following provisions apply: |
(a) | If the meeting was requisitioned by Members, it shall be cancelled. |
(b) | In any other case, the meeting shall stand adjourned to the same time and place seven days hence, or to such other time or place as is determined by the directors. If a quorum is not present within 15 minutes of the time appointed for the adjourned meeting, then the Members present in person or by proxy shall constitute a quorum. |
Use of technology
11.3 | A person may participate in a general meeting through the medium of conference telephone, video or any other form of communications equipment providing all persons participating in the meeting are able to hear and speak to each other throughout the meeting. A person participating in this way is deemed to be present in person at the meeting. |
Chairman
11.4 | The chairman of a general meeting shall be the chairman of the board or such other director as the directors have nominated to chair board meetings in the absence of the chairman of the board. Absent any such person being present within 15 minutes of the time appointed for the meeting, the directors present shall elect one of their number to chair the meeting. |
11.5 | If no director is present within 15 minutes of the time appointed for the meeting, or if no director is willing to act as chairman, the Members present in person or by proxy and entitled to vote shall choose one of their number to chair the meeting. |
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Right of a director to attend and speak
11.6 | Even if a director is not a Member, he shall be entitled to attend and speak at any general meeting and at any separate meeting of Members holding a particular class of Shares in the Company. |
Adjournment
11.7 | The chairman may at any time adjourn a meeting with the consent of the Members constituting a quorum. The chairman must adjourn the meeting if so directed by the meeting. No business, however, can be transacted at an adjourned meeting other than business which might properly have been transacted at the original meeting. |
11.8 | Should a meeting be adjourned for more than seven Clear Days, whether because of a lack of quorum or otherwise, Members shall be given at least seven Clear Days' notice of the date, time and place of the adjourned meeting and the general nature of the business to be transacted. Otherwise it shall not be necessary to give any notice of the adjournment. |
Method of voting
11.9 | A resolution put to the vote of the meeting shall be decided on a show of hands unless before, or on the declaration of the result of the show of hands, a poll is duly demanded. A poll may be demanded: |
(a) | by the chairman; or |
(b) | by any Member or Members present who, individually or collectively, hold at least 10% of the voting rights of all those who have a right to vote on the resolution. |
Outcome of vote by show of hands
11.10 | Unless a poll is duly demanded, a declaration by the chairman as to the result of a resolution and an entry to that effect in the minutes of the meeting shall be conclusive evidence of the outcome of a show of hands without proof of the number or proportion of the votes recorded in favour of or against the resolution. |
Withdrawal of demand for a poll
11.11 | The demand for a poll may be withdrawn before the poll is taken, but only with the consent of the chairman. The chairman shall announce any such withdrawal to the meeting and, unless another person forthwith demands a poll, any earlier show of hands on that resolution shall be treated as the vote on that resolution; if there has been no earlier show of hands, then the resolution shall be put to the vote of the meeting. |
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Taking of a poll
11.12 | A poll demanded on the question of adjournment shall be taken immediately. |
11.13 | A poll demanded on any other question shall be taken either immediately or at an adjourned meeting at such time and place as the chairman directs, not being more than 30 Clear Days after the poll was demanded. |
11.14 | The demand for a poll shall not prevent the meeting continuing to transact any business other than the question on which the poll was demanded. |
11.15 | A poll shall be taken in such manner as the chairman directs. He may appoint scrutineers (who need not be Members) and fix a place and time for declaring the result of the poll. If, through the aid of technology, the meeting is held in more than place, the chairman may appoint scrutineers in more than place; but if he considers that the poll cannot be effectively monitored at that meeting, the chairman shall adjourn the holding of the poll to a date, place and time when that can occur. |
Chairman's casting vote
11.16 | If the votes on a resolution, whether on a show of hands or on a poll, are equal the chairman may if he wishes exercise a casting vote. |
Amendments to resolutions
11.17 | An Ordinary Resolution to be proposed at a general meeting may be amended by Ordinary Resolution if: |
(a) | not less than 48 hours before the meeting is to take place (or such later time as the chairman of the meeting may determine), notice of the proposed amendment is given to the Company in writing by a Member entitled to vote at that meeting; and |
(b) | the proposed amendment does not, in the reasonable opinion of the chairman of the meeting, materially alter the scope of the resolution. |
11.18 | A Special Resolution to be proposed at a general meeting may be amended by Ordinary Resolution, if: |
(a) | the chairman of the meeting proposes the amendment at the general meeting at which the resolution is to be proposed, and |
(b) | the amendment does not go beyond what the chairman considers is necessary to correct a grammatical or other non-substantive error in the resolution. |
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11.19 | If the chairman of the meeting, acting in good faith, wrongly decides that an amendment to a resolution is out of order, the chairman's error does not invalidate the vote on that resolution. |
Written resolutions
11.20 | Members may pass a resolution in writing without holding a meeting if the following conditions are met: |
(a) | all Members entitled to vote are given notice of the resolution as if the same were being proposed at a meeting of Members; |
(b) | all Members entitled so to vote : |
(i) | sign a document; or |
(ii) | sign several documents in the like form each signed by one or more of those Members; and |
(c) | the signed document or documents is or are delivered to the Company, including, if the Company so nominates, by delivery of an Electronic Record by Electronic means to the address specified for that purpose. |
Such written resolution shall be as effective as if it had been passed at a meeting of the Members entitled to vote duly convened and held. |
11.21 | If a written resolution is described as a Special Resolution or as an Ordinary Resolution, it has effect accordingly. |
11.22 | The directors may determine the manner in which written resolutions shall be put to Members. In particular, they may provide, in the form of any written resolution, for each Member to indicate, out of the number of votes the Member would have been entitled to cast at a meeting to consider the resolution, how many votes he wishes to cast in favour of the resolution and how many against the resolution or to be treated as abstentions. The result of any such written resolution shall be determined on the same basis as on a poll. |
Sole-member company
11.23 | If the Company has only one Member, and the Member records in writing his decision on a question, that record shall constitute both the passing of a resolution and the minute of it. |
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12 | Voting rights of Members |
Right to vote
12.1 | Unless their Shares carry no right to vote, or unless a call or other amount presently payable has not been paid, all Members are entitled to vote at a general meeting, whether on a show of hands or on a poll, and all Members holding Shares of a particular class of Shares are entitled to vote at a meeting of the holders of that class of Shares. |
12.2 | Members may vote in person or by proxy. |
12.3 | On a show of hands, every Member shall have one vote. For the avoidance of doubt, an individual who represents two or more Members, including a Member in that individual's own right, that individual shall be entitled to a separate vote for each Member. |
12.4 | On a poll a Member shall have one vote for each Share he holds, unless any Share carries special voting rights. |
12.5 | A fraction of a Share shall entitle its holder to an equivalent fraction of one vote. |
12.6 | No Member is bound to vote on his Shares or any of them; nor is he bound to vote each of his Shares in the same way. |
Rights of joint holders
12.7 | If Shares are held jointly, only one of the joint holders may vote. If more than one of the joint holders tenders a vote, the vote of the holder whose name in respect of those Shares appears first in the register of members shall be accepted to the exclusion of the votes of the other joint holder. |
Representation of corporate Members
12.8 | Save where otherwise provided, a corporate Member must act by a duly authorised representative. |
12.9 | A corporate Member wishing to act by a duly authorised representative must identify that person to the Company by notice in writing. |
12.10 | The authorisation may be for any period of time, and must be delivered to the Company not less than two hours before the commencement of the meeting at which it is first used. |
12.11 | The directors of the Company may require the production of any evidence which they consider necessary to determine the validity of the notice. |
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12.12 | Where a duly authorised representative is present at a meeting that Member is deemed to be present in person; and the acts of the duly authorised representative are personal acts of that Member. |
12.13 | A corporate Member may revoke the appointment of a duly authorised representative at any time by notice to the Company; but such revocation will not affect the validity of any acts carried out by the duly authorised representative before the directors of the Company had actual notice of the revocation. |
Member with mental disorder
12.14 | A Member in respect of whom an order has been made by any court having jurisdiction (whether in the Islands or elsewhere) in matters concerning mental disorder may vote, whether on a show of hands or on a poll, by that Member's receiver, curator bonis or other person authorised in that behalf appointed by that court. |
12.15 | For the purpose of the preceding Article, evidence to the satisfaction of the directors of the authority of the person claiming to exercise the right to vote must be received not less than 24 hours before holding the relevant meeting or the adjourned meeting in any manner specified for the delivery of forms of appointment of a proxy, whether in writing or by Electronic means. In default, the right to vote shall not be exercisable. |
Objections to admissibility of votes
12.16 | An objection to the validity of a person's vote may only be raised at the meeting or at the adjourned meeting at which the vote is sought to be tendered. Any objection duly made shall be referred to the chairman whose decision shall be final and conclusive. |
Form of proxy
12.17 | An instrument appointing a proxy shall be in any common form or in any other form approved by the directors. |
12.18 | The instrument must be in writing and signed in one of the following ways: |
(a) | by the Member; or |
(b) | by the Member's authorised attorney; or |
(c) | if the Member is a corporation or other body corporate, under seal or signed by an authorised officer, secretary or attorney. |
If the directors so resolve, the Company may accept an Electronic Record of that instrument delivered in the manner specified below and otherwise satisfying the Articles about authentication of Electronic Records. |
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12.19 | The directors may require the production of any evidence which they consider necessary to determine the validity of any appointment of a proxy. |
12.20 | A Member may revoke the appointment of a proxy at any time by notice to the Company duly signed in accordance with the Article above about signing proxies; but such revocation will not affect the validity of any acts carried out by the proxy before the directors of the Company had actual notice of the revocation. |
How and when proxy is to be delivered
12.21 | Subject to the following Articles, the form of appointment of a proxy and any authority under which it is signed (or a copy of the authority certified notarially or in any other way approved by the directors) must be delivered so that it is received by the Company at any time before the time for holding the meeting or adjourned meeting at which the person named in the form of appointment of proxy proposes to vote. They must be delivered in either of the following ways: |
(a) | In the case of an instrument in writing, it must be left at or sent by post: |
(i) | to the registered office of the Company; or |
(ii) | to such other place within the Islands specified in the notice convening the meeting or in any form of appointment of proxy sent out by the Company in relation to the meeting. |
(b) | If, pursuant to the notice provisions, a notice may be given to the Company in an Electronic Record, an Electronic Record of an appointment of a proxy must be sent to the address specified pursuant to those provisions unless another address for that purpose is specified: |
(i) | in the notice convening the meeting; or |
(ii) | in any form of appointment of a proxy sent out by the Company in relation to the meeting; or |
(iii) | in any invitation to appoint a proxy issued by the Company in relation to the meeting. |
12.22 | Where a poll is taken: |
(a) | if it is taken more than seven Clear Days after it is demanded, the form of appointment of a proxy and any accompanying authority (or an Electronic Record of the same) must be delivered as required under the preceding Article not less than 24 hours before the time appointed for the taking of the poll; |
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(b) | but if it to be taken within seven Clear Days after it was demanded, the form of appointment of a proxy and any accompanying authority (or an Electronic Record of the same) must be e delivered as required under the preceding Article not less than two hours before the time appointed for the taking of the poll. |
12.23 | If the form of appointment of proxy is not delivered on time, it is invalid. |
Voting by proxy
12.24 | A proxy shall have the same voting rights at a meeting or adjourned meeting as the Member would have had except to the extent that the instrument appointing him limits those rights. Notwithstanding the appointment of a proxy, a Member may attend and vote at a meeting or adjourned meeting. If a Member votes on any resolution a vote by his proxy on the same resolution, unless in respect of different Shares, shall be invalid. |
13 | Number of directors |
Unless otherwise determined by Ordinary Resolution, the minimum number of directors shall be one and the maximum number shall be ten. There shall be no directors, however, until the first director is or the first directors are appointed by the subscriber or subscribers to the Memorandum.
14 | Appointment, disqualification and removal of directors |
First directors
14.1 | The first directors shall be appointed in writing by the subscriber or subscribers to the Memorandum. |
No age limit
14.2 | There is no age limit for directors save that they must be aged at least 18 years. |
Corporate directors
14.3 | Unless prohibited by law, a body corporate may be a director. If a body corporate is a director, the Articles about representation of corporate Members at general meetings apply, mutatis mutandis, to the Articles about directors' meetings. |
No shareholding qualification
14.4 | Unless a shareholding qualification for directors is fixed by Ordinary Resolution, no director shall be required to own Shares as a condition of his appointment. |
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Appointment of directors
14.5 | A director may be appointed by Ordinary Resolution or by the directors. Any appointment may be to fill a vacancy or as an additional director. |
14.6 | Notwithstanding the other provisions of these Articles, in any case where, as a result of death, the Company has no directors and no shareholders, the personal representatives of the last shareholder to have died have the power, by notice in writing to the Company, to appoint a person to be a director. For the purpose of this Article: |
(a) | where two or more shareholders die in circumstances rendering it uncertain who was the last to die, a younger shareholder is deemed to have survived an older shareholder; |
(b) | if the last shareholder died leaving a will which disposes of that shareholder's shares in the Company (whether by way of specific gift, as part of the residuary estate, or otherwise): |
(i) | the expression personal representatives of the last shareholder means: |
(A) | until a grant of probate in respect of that will has been obtained from the Grand Court of the Cayman Islands, all of the executors named in that will who are living at the time the power of appointment under this Article is exercised; and |
(B) | after such grant of probate has been obtained, only such of those executors who have proved that will; |
(ii) | without derogating from section 3(1) of the Succession Act (Revised), the executors named in that will may exercise the power of appointment under this Article without first obtaining a grant of probate. |
14.7 | A remaining director may appoint a director even though there is not a quorum of directors. |
14.8 | No appointment can cause the number of directors to exceed the maximum; and any such appointment shall be invalid. |
Removal of directors
14.9 | A director may be removed by Ordinary Resolution. |
Resignation of directors
14.10 | A director may at any time resign office by giving to the Company notice in writing or, if permitted pursuant to the notice provisions, in an Electronic Record delivered in either case in accordance with those provisions. |
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14.11 | Unless the notice specifies a different date, the director shall be deemed to have resigned on the date that the notice is delivered to the Company. |
Termination of the office of director
14.12 | A director's office shall be terminated forthwith if: |
(a) | he is prohibited by the law of the Islands from acting as a director; or |
(b) | he is made bankrupt or makes an arrangement or composition with his creditors generally; or |
(c) | in the opinion of a registered medical practitioner by whom he is being treated he becomes physically or mentally incapable of acting as a director; or |
(d) | he is made subject to any law relating to mental health or incompetence, whether by court order or otherwise; or |
(e) | without the consent of the other directors, he is absent from meetings of directors for a continuous period of six months. |
15 | Alternate directors |
Appointment and removal
15.1 | Any director may appoint any other person, including another director, to act in his place as an alternate director. No appointment shall take effect until the director has given notice of the appointment to the other directors. Such notice must be given to each other director by either of the following methods: |
(a) | by notice in writing in accordance with the notice provisions; |
(b) | if the other director has an email address, by emailing to that address a scanned copy of the notice as a PDF attachment (the PDF version being deemed to be the notice unless Article 30.7 applies), in which event notice shall be taken to be given on the date of receipt by the recipient in readable form. For the avoidance of doubt, the same email may be sent to the email address of more than one director (and to the email address of the Company pursuant to Article 15.4(c)). |
15.2 | Without limitation to the preceding Article, a director may appoint an alternate for a particular meeting by sending an email to his fellow directors informing them that they are to take such email as notice of such appointment for such meeting. Such appointment shall be effective without the need for a signed notice of appointment or the giving of notice to the Company in accordance with Article 15.4. |
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15.3 | A director may revoke his appointment of an alternate at any time. No revocation shall take effect until the director has given notice of the revocation to the other directors. Such notice must be given by either of the methods specified in Article 15.1. |
15.4 | A notice of appointment or removal of an alternate director must also be given to the Company by any of the following methods: |
(a) | by notice in writing in accordance with the notice provisions; |
(b) | if the Company has a facsimile address for the time being, by sending by facsimile transmission to that facsimile address a facsimile copy or, otherwise, by sending by facsimile transmission to the facsimile address of the Company's registered office a facsimile copy (in either case, the facsimile copy being deemed to be the notice unless Article 30.7 applies), in which event notice shall be taken to be given on the date of an error-free transmission report from the sender's fax machine; |
(c) | if the Company has an email address for the time being, by emailing to that email address a scanned copy of the notice as a PDF attachment or, otherwise, by emailing to the email address provided by the Company's registered office a scanned copy of the notice as a PDF attachment (in either case, the PDF version being deemed to be the notice unless Article 30.7 applies), in which event notice shall be taken to be given on the date of receipt by the Company or the Company's registered office (as appropriate) in readable form; or |
(d) | if permitted pursuant to the notice provisions, in some other form of approved Electronic Record delivered in accordance with those provisions in writing. |
Notices
15.5 | All notices of meetings of directors shall continue to be given to the appointing director and not to the alternate. |
Rights of alternate director
15.6 | An alternate director shall be entitled to attend and vote at any board meeting or meeting of a committee of the directors at which the appointing director is not personally present, and generally to perform all the functions of the appointing director in his absence. |
15.7 | For the avoidance of doubt: |
(a) | if another director has been appointed an alternate director for one or more directors, he shall be entitled to a separate vote in his own right as a director and in right of each other director for whom he has been appointed an alternate; and |
(b) | if a person other than a director has been appointed an alternate director for more than one director, he shall be entitled to a separate vote in right of each director for whom he has been appointed an alternate. |
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15.8 | An alternate director, however, is not entitled to receive any remuneration from the Company for services rendered as an alternate director. |
Appointment ceases when the appointor ceases to be a director
15.9 | An alternate director shall cease to be an alternate director if the director who appointed him ceases to be a director. |
Status of alternate director
15.10 | An alternate director shall carry out all functions of the director who made the appointment. |
15.11 | Save where otherwise expressed, an alternate director shall be treated as a director under these Articles. |
15.12 | An alternate director is not the agent of the director appointing him. |
15.13 | An alternate director is not entitled to any remuneration for acting as alternate director. |
Status of the director making the appointment
15.14 | A director who has appointed an alternate is not thereby relieved from the duties which he owes the Company. |
16 | Powers of directors |
Powers of directors
16.1 | Subject to the provisions of the Act, the Memorandum and these Articles, the business of the Company shall be managed by the directors who may for that purpose exercise all the powers of the Company. |
16.2 | No prior act of the directors shall be invalidated by any subsequent alteration of the Memorandum or these Articles. However, to the extent allowed by the Act, Members may by Special Resolution validate any prior or future act of the directors which would otherwise be in breach of their duties. |
Appointments to office
16.3 | The directors may appoint a director: |
(a) | as chairman of the board of directors; |
(b) | as managing director; |
(c) | to any other executive office |
for such period and on such terms, including as to remuneration, as they think fit. |
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16.4 | The appointee must consent in writing to holding that office. |
16.5 | Where a chairman is appointed he shall, unless unable to do so, preside at every meeting of directors. |
16.6 | If there is no chairman, or if the chairman is unable to preside at a meeting, that meeting may select its own chairman; or the directors may nominate one of their number to act in place of the chairman should he ever not be available. |
16.7 | Subject to the provisions of the Act, the directors may also appoint any person, who need not be a director: |
(a) | as Secretary; and |
(b) | to any office that may be required |
for such period and on such terms, including as to remuneration, as they think fit. In the case of an Officer, that Officer may be given any title the directors decide. |
16.8 | The Secretary or Officer must consent in writing to holding that office. |
16.9 | A director, Secretary or other Officer of the Company may not the hold the office, or perform the services, of auditor. |
Remuneration
16.10 | Every director may be remunerated by the Company for the services he provides for the benefit of the Company, whether as director, employee or otherwise, and shall be entitled to be paid for the expenses incurred in the Company's business including attendance at directors' meetings. |
16.11 | A director's remuneration shall be fixed by the Company by Ordinary Resolution. Unless that resolution provides otherwise, the remuneration shall be deemed to accrue from day to day. |
16.12 | Remuneration may take any form and may include arrangements to pay pensions, health insurance, death or sickness benefits, whether to the director or to any other person connected to or related to him. |
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16.13 | Unless his fellow directors determine otherwise, a director is not accountable to the Company for remuneration or other benefits received from any other company which is in the same group as the Company or which has common shareholdings. |
Disclosure of information
16.14 | The directors may release or disclose to a third party any information regarding the affairs of the Company, including any information contained in the register of members relating to a Member, (and they may authorise any director, Officer or other authorised agent of the Company to release or disclose to a third party any such information in his possession) if: |
(a) | the Company or that person, as the case may be, is lawfully required to do so under the laws of any jurisdiction to which the Company is subject; or |
(b) | such disclosure is in compliance with the rules of any stock exchange upon which the Company's shares are listed; or |
(c) | such disclosure is in accordance with any contract entered into by the Company; or |
(d) | the directors are of the opinion such disclosure would assist or facilitate the Company's operations. |
17 | Delegation of powers |
Power to delegate any of the directors' powers to a committee
17.1 | The directors may delegate any of their powers to any committee consisting of one or more persons who need not be Members. Persons on the committee may include non-directors so long as the majority of those persons are directors. |
17.2 | The delegation may be collateral with, or to the exclusion of, the directors' own powers. |
17.3 | The delegation may be on such terms as the directors think fit, including provision for the committee itself to delegate to a sub-committee; save that any delegation must be capable of being revoked or altered by the directors at will. |
17.4 | Unless otherwise permitted by the directors, a committee must follow the procedures prescribed for the taking of decisions by directors. |
Power to appoint an agent of the Company
17.5 | The directors may appoint any person, either generally or in respect of any specific matter, to be the agent of the Company with or without authority for that person to delegate all or any of that person's powers. The directors may make that appointment: |
(a) | by causing the Company to enter into a power of attorney or agreement; or |
(b) | in any other manner they determine. |
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Power to appoint an attorney or authorised signatory of the Company
17.6 | The directors may appoint any person, whether nominated directly or indirectly by the directors, to be the attorney or the authorised signatory of the Company. The appointment may be: |
(a) | for any purpose; |
(b) | with the powers, authorities and discretions; |
(c) | for the period; and |
(d) | subject to such conditions |
as they think fit. The powers, authorities and discretions, however, must not exceed those vested in, or exercisable, by the directors under these Articles. The directors may do so by power of attorney or any other manner they think fit. |
17.7 | Any power of attorney or other appointment may contain such provision for the protection and convenience for persons dealing with the attorney or authorised signatory as the directors think fit. Any power of attorney or other appointment may also authorise the attorney or authorised signatory to delegate all or any of the powers, authorities and discretions vested in that person. |
Power to appoint a proxy
17.8 | Any director may appoint any other person, including another director, to represent him at any meeting of the directors. If a director appoints a proxy, then for all purposes the presence or vote of the proxy shall be deemed to be that of the appointing director. |
17.9 | Articles 15.1 to 15.4 inclusive (relating to the appointment by directors of alternate directors) apply, mutatis mutandis, to the appointment of proxies by directors. |
17.10 | A proxy is an agent of the director appointing him and is not an officer of the Company. |
18 | Meetings of directors |
Regulation of directors' meetings
18.1 | Subject to the provisions of these Articles, the directors may regulate their proceedings as they think fit. |
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Calling meetings
18.2 | Any director may call a meeting of directors at any time. The Secretary, if any, must call a meeting of the directors if requested to do so by a director. |
Notice of meetings
18.3 | Every director shall be given notice of a meeting, although a director may waive retrospectively the requirement to be given notice. Notice may be oral. |
Period of notice
18.4 | At least five Clear Days' notice of a meeting of directors must be given to directors. But a meeting may be convened on shorter notice with the consent of all directors. |
Use of technology
18.5 | A director may participate in a meeting of directors through the medium of conference telephone, video or any other form of communications equipment providing all persons participating in the meeting are able to hear and speak to each other throughout the meeting. |
18.6 | A director participating in this way is deemed to be present in person at the meeting. |
Place of meetings
18.7 | If all the directors participating in a meeting are not in the same place, they may decide that the meeting is to be treated as taking place wherever any of them is. |
Quorum
18.8 | The quorum for the transaction of business at a meeting of directors shall be two unless the directors fix some other number or unless the Company has only one director. |
Voting
18.9 | A question which arises at a board meeting shall be decided by a majority of votes. If votes are equal the chairman may, if he wishes, exercise a casting vote. |
Validity
18.10 | Anything done at a meeting of directors is unaffected by the fact that it is later discovered that any person was not properly appointed, or had ceased to be a director, or was otherwise not entitled to vote. |
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Recording of dissent
18.11 | A director present at a meeting of directors shall be presumed to have assented to any action taken at that meeting unless: |
(a) | his dissent is entered in the minutes of the meeting; or |
(b) | he has filed with the meeting before it is concluded signed dissent from that action; or |
(c) | he has forwarded to the Company as soon as practical following the conclusion of that meeting signed dissent. |
A director who votes in favour of an action is not entitled to record his dissent to it.
Written resolutions
18.12 | The directors may pass a resolution in writing without holding a meeting if all directors sign a document or sign several documents in the like form each signed by one or more of those directors. |
18.13 | Despite the foregoing, a resolution in writing signed by a validly appointed alternate director or by a validly appointed proxy need not also be signed by the appointing director. But if a written resolution is signed personally by the appointing director, it need not also be signed by his alternate or proxy. |
18.14 | Such written resolution shall be as effective as if it had been passed at a meeting of the directors duly convened and held; and it shall be treated as having been passed on the day and at the time that the last director signs. |
Sole director's minute
18.15 | Where a sole director signs a minute recording his decision on a question, that record shall constitute the passing of a resolution in those terms. |
19 | Permissible directors' interests and disclosure |
Permissible interests subject to disclosure
19.1 | Save as expressly permitted by these Articles or as set out below, a director may not have a direct or indirect interest or duty which conflicts or may possibly conflict with the interests of the Company. |
19.2 | If, notwithstanding the prohibition in the preceding Article, a director discloses to his fellow directors the nature and extent of any material interest or duty in accordance with the next Article, he may: |
(a) | be a party to, or otherwise interested in, any transaction or arrangement with the Company or in which the Company is or may otherwise be interested; |
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(b) | be interested in another body corporate promoted by the Company or in which the Company is otherwise interested. In particular, the director may be a director, secretary or officer of, or employed by, or be a party to any transaction or arrangement with, or otherwise interested in, that other body corporate. |
19.3 | Such disclosure may be made at a meeting at a meeting of the board or otherwise (and, if otherwise, it must be made in writing). The director must disclose the nature and extent of his direct or indirect interest in or duty in relation to a transaction or arrangement or series of transactions or arrangements with the Company or in which the Company has any material interest. |
19.4 | If a director has made disclosure in accordance with the preceding Article, then he shall not, by reason only of his office, be accountable to the Company for any benefit that he derives from any such transaction or arrangement or from any such office or employment or from any interest in any such body corporate, and no such transaction or arrangement shall be liable to be avoided on the ground of any such interest or benefit. |
Notification of interests
19.5 | For the purposes of the preceding Articles: |
(a) | a general notice that a director gives to the other directors that he is to be regarded as having an interest of the nature and extent specified in the notice in any transaction or arrangement in which a specified person or class of persons is interested shall be deemed to be a disclosure that he has an interest in or duty in relation to any such transaction of the nature and extent so specified; and |
(b) | an interest of which a director has no knowledge and of which it is unreasonable to expect him to have knowledge shall not be treated as an interest of his. |
19.6 | A director shall not be treated as having an interest in a transaction or arrangement if he has no knowledge of that interest and it is unreasonable to expect the director to have that knowledge. |
Voting where a director is interested in a matter
19.7 | A director may vote at a meeting of directors on any resolution concerning a matter in which that director has an interest or duty, whether directly or indirectly, so long as that director discloses any material interest pursuant to these Articles. The director shall be counted towards a quorum of those present at the meeting. If the director votes on the resolution, his vote shall be counted. |
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19.8 | Where proposals are under consideration concerning the appointment of two or more directors to offices or employment with the Company or any body corporate in which the Company is interested, the proposals may be divided and considered in relation to each director separately and each of the directors concerned shall be entitled to vote and be counted in the quorum in respect of each resolution except that concerning his or her own appointment. |
20 | Minutes |
The Company shall cause minutes to be made in books kept for the purpose in accordance with the Act.
21 | Accounts and audit |
Accounting and other records
21.1 | The directors must ensure that proper accounting and other records are kept, and that accounts and associated reports are distributed in accordance with the requirements of the Act. |
No automatic right of inspection
21.2 | Members are only entitled to inspect the Company's records if they are expressly entitled to do so by law, or by resolution made by the directors or passed by Ordinary Resolution. |
Sending of accounts and reports
21.3 | The Company's accounts and associated directors' report or auditor's report that are required or permitted to be sent to any person pursuant to any law shall be treated as properly sent to that person if: |
(a) they are sent to that person in accordance with the notice provisions: or
(b) they are published on a website providing that person is given separate notice of:
(i) | the fact that publication of the documents has been published on the website; |
(ii) | the address of the website; and |
(iii) | the place on the website where the documents may be accessed; and |
(iv) | how they may be accessed. |
21.4 | If, for any reason, a person notifies the Company that he is unable to access the website, the Company must, as soon as practicable, send the documents to that person by any other means permitted by these Articles. This, however, will not affect when that person is taken to have received the documents under the next Article. |
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Time of receipt if documents are published on a website
21.5 | Documents sent by being published on a website in accordance with the preceding two Articles are only treated as sent at least five Clear Days before the date of the meeting at which they are to be laid if: |
(a) | the documents are published on the website throughout a period beginning at least five Clear Days before the date of the meeting and ending with the conclusion of the meeting; and |
(b) | the person is given at least five Clear Days' notice of the hearing. |
Validity despite accidental error in publication on website
21.6 | If, for the purpose of a meeting, documents are sent by being published on a website in accordance with the preceding Articles, the proceedings at that meeting are not invalidated merely because: |
(a) | those documents are, by accident, published in a different place on the website to the place notified; or |
(b) | they are published for part only of the period from the date of notification until the conclusion of that meeting. |
When accounts are to be audited
21.7 | Unless the directors or the Members, by Ordinary Resolution, so resolve or unless the Act so requires, the Company's accounts will not be audited. If the Members so resolve, the Company's accounts shall be audited in the manner determined by Ordinary Resolution. Alternatively, if the directors so resolve, they shall be audited in the manner they determine. |
22 | Financial year |
Unless the directors otherwise specify, the financial year of the Company:
(a) | shall end on 31st December in the year of its incorporation and each following year; and |
(b) | shall begin when it was incorporated and on 1st January each following year. |
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23 | Record dates |
Except to the extent of any conflicting rights attached to Shares, the directors may fix any time and date as the record date for declaring or paying a dividend or making or issuing an allotment of Shares. The record date may be before or after the date on which a dividend, allotment or issue is declared, paid or made.
24 | Dividends |
Declaration of dividends by Members
24.1 | Subject to the provisions of the Act, the Company may by Ordinary Resolution declare dividends in accordance with the respective rights of the Members but no dividend shall exceed the amount recommended by the directors. |
Payment of interim dividends and declaration of final dividends by directors
24.2 | The directors may pay interim dividends or declare final dividends in accordance with the respective rights of the Members if it appears to them that they are justified by the financial position of the Company and that such dividends may lawfully be paid. |
24.3 | Subject to the provisions of the Act, in relation to the distinction between interim dividends and final dividends, the following applies: |
(a) | Upon determination to pay a dividend or dividends described as interim by the directors in the dividend resolution, no debt shall be created by the declaration until such time as payment is made. |
(b) | Upon declaration of a dividend or dividends described as final by the directors in the dividend resolution, a debt shall be created immediately following the declaration, the due date to be the date the dividend is stated to be payable in the resolution. |
If the resolution fails to specify whether a dividend is final or interim, it shall be assumed to be interim.
24.4 | In relation to Shares carrying differing rights to dividends or rights to dividends at a fixed rate, the following applies: |
(a) | If the share capital is divided into different classes, the directors may pay dividends on Shares which confer deferred or non-preferred rights with regard to dividends as well as on Shares which confer preferential rights with regard to dividends but no dividend shall be paid on Shares carrying deferred or non-preferred rights if, at the time of payment, any preferential dividend is in arrears. |
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(b) | The directors may also pay, at intervals settled by them, any dividend payable at a fixed rate if it appears to them that there are sufficient funds of the Company lawfully available for distribution to justify the payment. |
(c) | If the directors act in good faith, they shall not incur any liability to the Members holding Shares conferring preferred rights for any loss those Members may suffer by the lawful payment of the dividend on any Shares having deferred or non-preferred rights. |
Apportionment of dividends
24.5 | Except as otherwise provided by the rights attached to Shares, all dividends shall be declared and paid according to the amounts paid up on the Shares on which the dividend is paid. All dividends shall be apportioned and paid proportionately to the amount paid up on the Shares during the time or part of the time in respect of which the dividend is paid. But if a Share is issued on terms providing that it shall rank for dividend as from a particular date, that Share shall rank for dividend accordingly. |
Right of set off
24.6 | The directors may deduct from a dividend or any other amount payable to a person in respect of a Share any amount due by that person to the Company on a call or otherwise in relation to a Share. |
Power to pay other than in cash
24.7 | If the directors so determine, any resolution declaring a dividend may direct that it shall be satisfied wholly or partly by the distribution of assets. If a difficulty arises in relation to the distribution, the directors may settle that difficulty in any way they consider appropriate. For example, they may do any one or more of the following: |
(a) | issue fractional Shares; |
(b) | fix the value of assets for distribution and make cash payments to some Members on the footing of the value so fixed in order to adjust the rights of Members; and |
(c) | vest some assets in trustees. |
How payments may be made
24.8 | A dividend or other monies payable on or in respect of a Share may be paid in any of the following ways: |
(a) | if the Member holding that Share or other person entitled to that Share nominates a bank account for that purpose - by wire transfer to that bank account; or |
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(b) | by cheque or warrant sent by post to the registered address of the Member holding that Share or other person entitled to that Share. |
24.9 | For the purpose of paragraph (a) of the preceding Article, the nomination may be in writing or in an Electronic Record and the bank account nominated may be the bank account of another person. For the purpose of paragraph (b) of the preceding Article, subject to any applicable law or regulation, the cheque or warrant shall be made to the order of the Member holding that Share or other person entitled to the Share or to his nominee, whether nominated in writing or in an Electronic Record, and payment of the cheque or warrant shall be a good discharge to the Company. |
24.10 | If two or more persons are registered as the holders of the Share or are jointly entitled to it by reason of the death or bankruptcy of the registered holder (Joint Holders), a dividend (or other amount) payable on or in respect of that Share may be paid as follows: |
(a) | to the registered address of the Joint Holder of the Share who is named first on the register of members or to the registered address of the deceased or bankrupt holder, as the case may be; or |
(b) | to the address or bank account of another person nominated by the Joint Holders, whether that nomination is in writing or in an Electronic Record. |
24.11 | Any Joint Holder of a Share may give a valid receipt for a dividend (or other amount) payable in respect of that Share. |
Dividends or other moneys not to bear interest in absence of special rights
24.12 | Unless provided for by the rights attached to a Share, no dividend or other monies payable by the Company in respect of a Share shall bear interest. |
Dividends unable to be paid or unclaimed
24.13 | If a dividend cannot be paid to a Member or remains unclaimed within six weeks after it was declared or both, the directors may pay it into a separate account in the Company's name. If a dividend is paid into a separate account, the Company shall not be constituted trustee in respect of that account and the dividend shall remain a debt due to the Member. |
24.14 | A dividend that remains unclaimed for a period of six years after it became due for payment shall be forfeited to, and shall cease to remain owing by, the Company. |
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25 | Capitalisation of profits |
Capitalisation of profits or of any share premium account or capital redemption reserve
25.1 | The directors may resolve to capitalise: |
(a) | any part of the Company's profits not required for paying any preferential dividend (whether or not those profits are available for distribution); or |
(b) | any sum standing to the credit of the Company's share premium account or capital redemption reserve, if any. |
The amount resolved to be capitalised must be appropriated to the Members who would have been entitled to it had it been distributed by way of dividend and in the same proportions. The benefit to each Member so entitled must be given in either or both of the following ways:
(a) | by paying up the amounts unpaid on that Member's Shares; |
(b) | by issuing Fully Paid Shares, debentures or other securities of the Company to that Member or as that Member directs. The directors may resolve that any Shares issued to the Member in respect of partly paid Shares (Original Shares) rank for dividend only to the extent that the Original Shares rank for dividend while those Original Shares remain partly paid. |
Applying an amount for the benefit of members
25.2 | The amount capitalised must be applied to the benefit of Members in the proportions to which the Members would have been entitled to dividends if the amount capitalised had been distributed as a dividend. |
25.3 | Subject to the Act, if a fraction of a Share, a debenture, or other security is allocated to a Member, the directors may issue a fractional certificate to that Member or pay him the cash equivalent of the fraction. |
26 | Share premium account |
Directors to maintain share premium account
26.1 | The directors shall establish a share premium account in accordance with the Act. They shall carry to the credit of that account from time to time an amount equal to the amount or value of the premium paid on the issue of any Share or capital contributed or such other amounts required by the Act. |
Debits to share premium account
26.2 | The following amounts shall be debited to any share premium account: |
(a) | on the redemption or purchase of a Share, the difference between the nominal value of that Share and the redemption or purchase price; and |
(b) | any other amount paid out of a share premium account as permitted by the Act. |
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26.3 | Notwithstanding the preceding Article, on the redemption or purchase of a Share, the directors may pay the difference between the nominal value of that Share and the redemption purchase price out of the profits of the Company or, as permitted by the Act, out of capital. |
27 | Seal |
Company seal
27.1 | The Company may have a seal if the directors so determine. |
Duplicate seal
27.2 | Subject to the provisions of the Act, the Company may also have a duplicate seal or seals for use in any place or places outside the Islands. Each duplicate seal shall be a facsimile of the original seal of the Company. However, if the directors so determine, a duplicate seal shall have added on its face the name of the place where it is to be used. |
When and how seal is to be used
27.3 | A seal may only be used by the authority of the directors. Unless the directors otherwise determine, a document to which a seal is affixed must be signed in one of the following ways: |
(a) by a director (or his alternate) and the Secretary; or
(b) by a single director (or his alternate).
If no seal is adopted or used
27.4 | If the directors do not adopt a seal, or a seal is not used, a document may be executed in the following manner: |
(a) by a director (or his alternate) and the Secretary; or
(b) by a single director (or his alternate); or
(c) in any other manner permitted by the Act.
Power to allow non-manual signatures and facsimile printing of seal
27.5 | The directors may determine that either or both of the following applies: |
(a) | that the seal or a duplicate seal need not be affixed manually but may be affixed by some other method or system of reproduction; |
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(b) | that a signature required by these Articles need not be manual but may be a mechanical or Electronic Signature. |
Validity of execution
27.6 | If a document is duly executed and delivered by or on behalf of the Company, it shall not be regarded as invalid merely because, at the date of the delivery, the Secretary, or the director, or other Officer or person who signed the document or affixed the seal for and on behalf of the Company ceased to be the Secretary or hold that office and authority on behalf of the Company. |
28 | Indemnity |
Indemnity
28.1 | To the extent permitted by law, the Company shall indemnify each existing or former Secretary, director (including alternate director), and other Officer of the Company (including an investment adviser or an administrator or liquidator) and their personal representatives against: |
(a) | all actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred or sustained by the existing or former Secretary or Officer in or about the conduct of the Company's business or affairs or in the execution or discharge of the existing or former Secretary's or Officer's duties, powers, authorities or discretions; and |
(b) | without limitation to paragraph (a), all costs, expenses, losses or liabilities incurred by the existing or former Secretary or Officer in defending (whether successfully or otherwise) any civil, criminal, administrative or investigative proceedings (whether threatened, pending or completed) concerning the Company or its affairs in any court or tribunal, whether in the Islands or elsewhere. |
No such existing or former Secretary or Officer, however, shall be indemnified in respect of any matter arising out of his own dishonesty.
28.2 | To the extent permitted by law, the Company may make a payment, or agree to make a payment, whether by way of advance, loan or otherwise, for any legal costs incurred by an existing or former Secretary or Officer of the Company in respect of any matter identified in paragraph (a) or paragraph (b) of the preceding Article on condition that the Secretary or Officer must repay the amount paid by the Company to the extent that it is ultimately found not liable to indemnify the Secretary or that Officer for those legal costs. |
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Release
28.3 | To the extent permitted by law, the Company may by Special Resolution release any existing or former director (including alternate director), Secretary or other Officer of the Company from liability for any loss or damage or right to compensation which may arise out of or in connection with the execution or discharge of the duties, powers, authorities or discretions of his office; but there may be no release from liability arising out of or in connection with that person's own dishonesty. |
Insurance
28.4 | To the extent permitted by law, the Company may pay, or agree to pay, a premium in respect of a contract insuring each of the following persons against risks determined by the directors, other than liability arising out of that person's own dishonesty: |
(a) | an existing or former director (including alternate director), Secretary or Officer or auditor of: |
(i) | the Company; |
(ii) | a company which is or was a subsidiary of the Company; |
(iii) | a company in which the Company has or had an interest (whether direct or indirect); and |
(b) | a trustee of an employee or retirement benefits scheme or other trust in which any of the persons referred to in paragraph (a) is or was interested. |
29 | Notices |
Form of notices
29.1 | Save where these Articles provide otherwise, any notice to be given to or by any person pursuant to these Articles shall be: |
(a) | in writing signed by or on behalf of the giver in the manner set out below for written notices; or |
(b) | subject to the next Article, in an Electronic Record signed by or on behalf of the giver by Electronic Signature and authenticated in accordance with Articles about authentication of Electronic Records; or |
(c) | where these Articles expressly permit, by the Company by means of a website. |
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Electronic communications
29.2 | Without limitation to Articles 15.1 to 15.4 inclusive (relating to the appointment and removal by directors of alternate directors) and to Articles 17.8 to 17.10 inclusive (relating to the appointment by directors of proxies), a notice may only be given to the Company in an Electronic Record if: |
(a) | the directors so resolve; |
(b) | the resolution states how an Electronic Record may be given and, if applicable, specifies an email address for the Company; and |
(c) | the terms of that resolution are notified to the Members for the time being and, if applicable, to those directors who were absent from the meeting at which the resolution was passed. |
If the resolution is revoked or varied, the revocation or variation shall only become effective when its terms have been similarly notified.
29.3 | A notice may not be given by Electronic Record to a person other than the Company unless the recipient has notified the giver of an Electronic address to which notice may be sent. |
Persons authorised to give notices
29.4 | A notice by either the Company or a Member pursuant to these Articles may be given on behalf of the Company or a Member by a director or company secretary of the Company or a Member. |
Delivery of written notices
29.5 | Save where these Articles provide otherwise, a notice in writing may be given personally to the recipient, or left at (as appropriate) the Member's or director's registered address or the Company's registered office, or posted to that registered address or registered office. |
Joint holders
29.6 | Where Members are joint holders of a Share, all notices shall be given to the Member whose name first appears in the register of members. |
Signatures
29.7 | A written notice shall be signed when it is autographed by or on behalf of the giver, or is marked in such a way as to indicate its execution or adoption by the giver. |
29.8 | An Electronic Record may be signed by an Electronic Signature. |
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Evidence of transmission
29.9 | A notice given by Electronic Record shall be deemed sent if an Electronic Record is kept demonstrating the time, date and content of the transmission, and if no notification of failure to transmit is received by the giver. |
29.10 | A notice given in writing shall be deemed sent if the giver can provide proof that the envelope containing the notice was properly addressed, pre-paid and posted, or that the written notice was otherwise properly transmitted to the recipient. |
Giving notice to a deceased or bankrupt Member
29.11 | A notice may be given by the Company to the persons entitled to a Share in consequence of the death or bankruptcy of a Member by sending or delivering it, in any manner authorised by these Articles for the giving of notice to a Member, addressed to them by name, or by the title of representatives of the deceased, or trustee of the bankrupt or by any like description, at the address, if any, supplied for that purpose by the persons claiming to be so entitled. |
29.12 | Until such an address has been supplied, a notice may be given in any manner in which it might have been given if the death or bankruptcy had not occurred. |
Date of giving notices
29.13 | A notice is given on the date identified in the following table. |
Method for giving notices | When taken to be given |
Personally | At the time and date of delivery |
By leaving it at the member's registered address | At the time and date it was left |
If the recipient has an address within the Islands, by posting it by prepaid post to the street or postal address of that recipient | 48 hours after it was posted |
If the recipient has an address outside the Islands, by posting it by prepaid airmail to the street or postal address of that recipient | 7 Clear Days after posting |
By Electronic Record (other than publication on a website), to recipient's Electronic address | Within 24 hours after it was sent |
By publication on a website | See the Articles about the time when notice of a meeting of Members or accounts and reports, as the case may be, are published on a website |
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Saving provision
29.14 | None of the preceding notice provisions shall derogate from the Articles about the delivery of written resolutions of directors and written resolutions of Members. |
30 | Authentication of Electronic Records |
Application of Articles
30.1 | Without limitation to any other provision of these Articles, any notice, written resolution or other document under these Articles that is sent by Electronic means by a Member, or by the Secretary, or by a director or other Officer of the Company, shall be deemed to be authentic if either Article 30.2 or Article 30.4 applies. |
Authentication of documents sent by Members by Electronic means
30.2 | An Electronic Record of a notice, written resolution or other document sent by Electronic means by or on behalf of one or more Members shall be deemed to be authentic if the following conditions are satisfied: |
(a) | the Member or each Member, as the case may be, signed the original document, and for this purpose Original Document includes several documents in like form signed by one or more of those Members; and |
(b) | the Electronic Record of the Original Document was sent by Electronic means by, or at the direction of, that Member to an address specified in accordance with these Articles for the purpose for which it was sent; and |
(c) | Article 30.7 does not apply. |
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30.3 | For example, where a sole Member signs a resolution and sends the Electronic Record of the original resolution, or causes it to be sent, by facsimile transmission to the address in these Articles specified for that purpose, the facsimile copy shall be deemed to be the written resolution of that Member unless Article 30.7 applies. |
Authentication of document sent by the Secretary or Officers of the Company by Electronic means
30.4 | An Electronic Record of a notice, written resolution or other document sent by or on behalf of the Secretary or an Officer or Officers of the Company shall be deemed to be authentic if the following conditions are satisfied: |
(a) | the Secretary or the Officer or each Officer, as the case may be, signed the original document, and for this purpose Original Document includes several documents in like form signed by the Secretary or one or more of those Officers; and |
(b) | the Electronic Record of the Original Document was sent by Electronic means by, or at the direction of, the Secretary or that Officer to an address specified in accordance with these Articles for the purpose for which it was sent; and |
(c) | Article 30.7 does not apply. |
This Article applies whether the document is sent by or on behalf of the Secretary or Officer in his own right or as a representative of the Company.
30.5 | For example, where a sole director signs a resolution and scans the resolution, or causes it to be scanned, as a PDF version which is attached to an email sent to the address in these Articles specified for that purpose, the PDF version shall be deemed to be the written resolution of that director unless Article 30.7 applies. |
Manner of signing
30.6 | For the purposes of these Articles about the authentication of Electronic Records, a document will be taken to be signed if it is signed manually or in any other manner permitted by these Articles. |
Saving provision
30.7 | A notice, written resolution or other document under these Articles will not be deemed to be authentic if the recipient, acting reasonably: |
(a) | believes that the signature of the signatory has been altered after the signatory had signed the original document; or |
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(b) | believes that the original document, or the Electronic Record of it, was altered, without the approval of the signatory, after the signatory signed the original document; or |
(c) | otherwise doubts the authenticity of the Electronic Record of the document |
and the recipient promptly gives notice to the sender setting the grounds of its objection. If the recipient invokes this Article, the sender may seek to establish the authenticity of the Electronic Record in any way the sender thinks fit.
31 | Transfer by way of continuation |
31.1 | The Company may, by Special Resolution, resolve to be registered by way of continuation in a jurisdiction outside: |
(a) | the Islands; or |
(b) | such other jurisdiction in which it is, for the time being, incorporated, registered or existing. |
31.2 | To give effect to any resolution made pursuant to the preceding Article, the directors may cause the following: |
(a) | an application be made to the Registrar of Companies to deregister the Company in the Islands or in the other jurisdiction in which it is for the time being incorporated, registered or existing; and |
(b) | all such further steps as they consider appropriate to be taken to effect the transfer by way of continuation of the Company. |
32 | Winding up |
Distribution of assets in specie
32.1 | If the Company is wound up, the Members may, subject to these Articles and any other sanction required by the Act, pass a Special Resolution allowing the liquidator to do either or both of the following: |
(a) | to divide in specie among the Members the whole or any part of the assets of the Company and, for that purpose, to value any assets and to determine how the division shall be carried out as between the Members or different classes of Members; |
(b) | to vest the whole or any part of the assets in trustees for the benefit of Members and those liable to contribute to the winding up. |
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No obligation to accept liability
32.2 | No Member shall be compelled to accept any assets if an obligation attaches to them. |
The directors are authorised to present a winding up petition
32.3 | The directors have the authority to present a petition for the winding up of the Company to the Grand Court of the Cayman Islands on behalf of the Company without the sanction of a resolution passed at a general meeting. |
33 | Amendment of Memorandum and Articles |
Power to change name or amend Memorandum
33.1 | Subject to the Act, the Company may, by Special Resolution: |
(a) | change its name; or |
(b) | change the provisions of its Memorandum with respect to its objects, powers or any other matter specified in the Memorandum. |
Power to amend these Articles
33.2 | Subject to the Act and as provided in these Articles, the Company may, by Special Resolution, amend these Articles in whole or in part. |
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Dated 07 March 2023
Name and address of Subscriber | Number of shares taken |
Signature | ||
Ogier Global Subscriber (Cayman) Limited
89 Nexus Way
Camana Bay
Grand Cayman, KY1-9009
Cayman Islands |
1 Ordinary Share |
per: |
/s/ Jayde Johnson |
|
Name: Jayde Johnson
Authorised Signatory
|
Witness to above signature |
/s/ Chelsea Ebanks |
| |
Name: Chelsea Ebanks
Ogier Global (Cayman) Limited 89 Nexus Way Camana Bay Grand Cayman, KY1-9009 Cayman Islands
Occupation: Administrator
|
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Exhibit 4.1
NUMBER | UNITS | |||
U- | ||||
SEE REVERSE FOR CERTAIN DEFINITIONS |
HAYMAKER ACQUISITION CORP. 4 | |||
CUSIP G4375F 124 |
UNITS CONSISTING OF ONE CLASS A ORDINARY SHARE
AND ONE-HALF OF ONE
REDEEMABLE WARRANT,
EACH WARRANT ENTITLING THE HOLDER 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 Haymaker Acquisition Corp. 4, a Cayman Islands limited liability company (the “Company”) and one-half (1/2) of one redeemable warrant (“Warrant”). Each Warrant entitles the holder to purchase one (1) ordinary share (subject to adjustment) for $11.50 per share (subject to adjustment). Each whole Warrant will become exercisable thirty (30) days after the Company’s completion of an acquisition, share exchange, share reconstruction and amalgamation, contractual control arrangement or other similar business combination with one or more businesses or entities (each a “Business Combination”), 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 ordinary shares and Warrants comprising the Units represented by this certificate will begin separate trading on [●] unless Cantor Fitzgerald & Co. and William Blair & Company, L.L.C. elect to allow earlier separate trading, subject to the Company’s filing of a Current Report on Form 8-K with the Securities and Exchange Commission containing an audited balance sheet reflecting the Company’s receipt of the gross proceeds of its initial public offering and issuing a press release announcing when separate trading will begin. The terms of the Warrants are governed by a Warrant Agreement, dated as of [●], 2023, 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 One State Street, 30th Floor, New York, New York 10004, and are available to any Warrant holder on written request and without cost.
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 | ||
Chief Executive Officer |
HAYMAKER ACQUISITION CORP. 4
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 | |||||||
TEN ENT – | as tenants by the entireties | (Cust) | (Minor) | |||||||
JT TEN – | as joint tenants with right of | under Uniform Gifts to Minors | ||||||||
survivorship | ||||||||||
and not as tenants in common | Act | |||||||||
(State) | ||||||||||
Additional abbreviations may also be used though not in the above list.
For value received, hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE |
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
represented by the within Certificate, and do hereby irrevocably constitute and appoint
Attorney to transfer the said Units on the register of members 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 RULE) UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED). |
In each case, as more fully described in the Company’s final prospectus dated [●], 2023, 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 ordinary shares sold in its initial public offering and liquidates because it does not consummate an initial Business Combination by a date calculated by reference to the Company’s amended and restated memorandum and articles of association, (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) to modify the substance or timing of the Company’s obligation to redeem 100% of the ordinary shares if it does not consummate an initial Business Combination by a date calculated by reference to the Company’s amended and restated memorandum and articles of association or (b) with respect to any other provision relating to shareholders’ rights or pre-initial Business Combination activity, 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
NUMBER |
HAYMAKER ACQUISITION CORP. 4
INCORPORATED UNDER THE LAWS OF THE CAYMAN ISLANDS
CLASS A ORDINARY SHARES
SEE REVERSE FOR
CERTAIN DEFINITIONS
This Certifies that is the owner of | CUSIP G4375F 108 |
FULLY PAID AND NON-ASSESSABLE CLASS A
ORDINARY SHARES OF THE PAR VALUE OF
US$0.0001 EACH OF
HAYMAKER ACQUISITION CORP. 4
(THE “COMPANY”)
subject to the Amended and Restated Memorandum
and Articles of Association of the Company and transferable on
the register of members 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 by a date calculated by reference to the Company’s amended and restated memorandum and articles of
association, all as more fully described in the Company’s final prospectus dated [●], 2023.
This certificate is not valid unless countersigned by the Transfer Agent and registered by the Registrar.
Witness the facsimile seal of the Company and the facsimile signatures of its duly authorized officers.
Dated:
CHIEF EXECUTIVE OFFICER | |
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 | |||||||
TEN ENT – | as tenants by the entireties | (Cust) | (Minor) | |||||||
JT TEN – | as joint tenants with right of survivorship and not as | under Uniform Gifts to Minors | ||||||||
tenants in common |
Act_________________ | ||||||
(State) |
Additional abbreviations may also be used though not in the above list.
HAYMAKER ACQUISITION CORP. 4
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 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 amended and restated memorandum and articles of association and all amendments thereto and resolutions of the Company’s Board of Directors providing for the issue of securities (copies of which may be obtained from the secretary of the Company), to all of which the holder of this certificate by acceptance hereof assents.
For value received, hereby sell, assign and transfer unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE(S)) |
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS(ES), INCLUDING ZIP CODE, OF ASSIGNEE(S))
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
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 RULE) UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED).
In each case, as more fully described in the Company’s final prospectus dated [●], 2023, 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 by a date calculated by reference to the Company’s amended and restated memorandum and articles of association, (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) to modify the substance or timing of the Company’s obligation to redeem 100% of the Class A ordinary shares if it does not consummate an initial business combination by a date calculated by reference to the Company’s amended and restated memorandum and articles of association or (b) with respect to any other provision relating to shareholders’ rights or pre-initial business combination activity, 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 10.6
THIS PROMISSORY NOTE (“NOTE”) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF THE RESALE THEREOF UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
PROMISSORY NOTE
Principal Amount: Up to $300,000 |
Dated as of March 15, 2023 New York, New York |
Haymaker Acquisition Corp. IV, a Cayman Islands exempted company and blank check company (the “Maker”), promises to pay to the order of Haymaker Sponsor IV LLC or its registered assigns or successors in interest (the “Payee”), or order, the principal sum of up to Three Hundred Thousand Dollars ($300,000) in lawful money of the United States of America, on the terms and conditions described below. All payments on this Note shall be made by check or wire transfer of immediately available funds or as otherwise determined by the Maker to such account as the Payee may from time to time designate by written notice in accordance with the provisions of this Note.
1. Principal. The principal balance of this Note shall be payable by the Maker on the earlier of: (i) December 31, 2023 or (ii) the date on which Maker consummates an initial public offering of its securities. The principal balance may be prepaid at any time. Under no circumstances shall any individual, including but not limited to any officer, director, employee or shareholder of the Maker, be obligated personally for any obligations or liabilities of the Maker hereunder.
2. Interest. No interest shall accrue on the unpaid principal balance of this Note.
3. Drawdown Requests. Maker and Payee agree that Maker may request up to Three Hundred Thousand Dollars ($300,000) for costs reasonably related to Maker’s initial public offering of its securities. The principal of this Note may be drawn down from time to time prior to the earlier of: (i) December 31, 2023 or (ii) the date on which Maker consummates an initial public offering of its securities, upon written request from Maker to Payee (each, a “Drawdown Request”). Each Drawdown Request must state the amount to be drawn down, and must not be an amount less than Ten Thousand Dollars ($10,000) unless agreed upon by Maker and Payee. Payee shall fund each Drawdown Request no later than five (5) business days after receipt of a Drawdown Request; provided, however, that the maximum amount of drawdowns collectively under this Note is Three Hundred Thousand Dollars ($300,000). Once an amount is drawn down under this Note, it shall not be available for future Drawdown Requests even if prepaid. No fees, payments or other amounts shall be due to Payee in connection with, or as a result of, any Drawdown Request by Maker. Notwithstanding the foregoing, all payments shall be applied first to payment in full of any costs incurred in the collection of any sum due under this Note, including (without limitation) reasonable attorneys’ fees, and then to the reduction of the unpaid principal balance of this Note.
4. Application of Payments. All payments shall be applied first to payment in full of any costs incurred in the collection of any sum due under this Note, including (without limitation) reasonable attorney’s fees, then to the payment in full of any late charges and finally to the reduction of the unpaid principal balance of this Note.
5. Events of Default. The following shall constitute an event of default (“Event of Default”):
(a) Failure to Make Required Payments. Failure by Maker to pay the principal amount due pursuant to this Note within five (5) business days of the date specified above.
(b) Voluntary Bankruptcy, Etc. The commencement by Maker of a voluntary case under any applicable bankruptcy, insolvency, reorganization, rehabilitation or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of Maker or for any substantial part of its property, or the making by it of any assignment for the benefit of creditors, or the failure of Maker generally to pay its debts as such debts become due, or the taking of corporate action by Maker in furtherance of any of the foregoing.
(c) Involuntary Bankruptcy, Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of Maker in an involuntary case under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of Maker or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days.
6. Remedies.
(a) Upon the occurrence of an Event of Default specified in Section 5(a) hereof, Payee may, by written notice to Maker, declare this Note to be due immediately and payable, whereupon the unpaid principal amount of this Note, and all other amounts payable hereunder, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the documents evidencing the same to the contrary notwithstanding.
(b) Upon the occurrence of an Event of Default specified in Sections 5(b) and 5(c), the unpaid principal balance of this Note, and all other sums payable with regard to this Note, shall automatically and immediately become due and payable, in all cases without any action on the part of Payee.
7. Waivers. Maker and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand, notice of dishonor, protest, and notice of protest with regard to the Note, all errors, defects and imperfections in any proceedings instituted by Payee under the terms of this Note, and all benefits that might accrue to Maker by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof or any writ of execution issued hereon, may be sold upon any such writ in whole or in part in any order desired by Payee.
8. Unconditional Liability. Maker hereby waives all notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, and agrees that its liability shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by Payee with respect to the payment or other provisions of this Note, and agrees that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to Maker or affecting Maker’s liability hereunder.
9. Notices. All notices, statements or other documents which are required or contemplated by this Note shall be made in writing and delivered: (i) personally or sent by first class registered or certified mail, overnight courier service or facsimile or electronic transmission to the address designated in writing, (ii) by facsimile to the number most recently provided to such party or such other address or fax number as may be designated in writing by such party or (iii) by electronic mail, to the electronic mail address most recently provided to such party or such other electronic mail address as may be designated in writing by such party. Any notice or other communication so transmitted shall be deemed to have been given on the day of delivery, if delivered personally, on the business day following receipt of written confirmation, if sent by facsimile or electronic transmission, one (1) business day after delivery to an overnight courier service or five (5) days after mailing if sent by mail.
10. Construction. THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
11. Severability. Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
12. Trust Waiver. Notwithstanding anything herein to the contrary, the Payee hereby waives any and all right, title, interest or claim of any kind (“Claim”) in or to any distribution of or from the trust account to be established in which the proceeds of the initial public offering (the “IPO”) to be conducted by the Maker (including the deferred underwriters discounts and commissions) and the proceeds of the sale of the units to be issued in a private placement to occur prior to the closing of the IPO are to be deposited, as described in greater detail in the registration statement and prospectus to be filed with the Securities and Exchange Commission in connection with the IPO, and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the trust account for any reason whatsoever.
13. Amendment; Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent of the Maker and the Payee.
14. Assignment. No assignment or transfer of this Note or any rights or obligations hereunder may be made by any party hereto (by operation of law or otherwise) without the prior written consent of the other party hereto and any attempted assignment without the required consent shall be void.
[Signature page follows]
IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first above written.
HAYMAKER ACQUISITION CORP. IV | ||
By: | /s/ Steven J. Heyer | |
Name: Steven J. Heyer | ||
Title: Chief Executive Officer |
Exhibit 10.7
HAYMAKER
ACQUISITION CORP. IV
501 Madison Avenue, Floor 5
New York, NY 10022
March 15, 2023
Haymaker Sponsor IV LLC
501 Madison Avenue, Floor 5
New York, NY 10022
RE: | Securities Subscription Agreement |
Ladies and Gentlemen:
Haymaker Acquisition Corp. IV, a Cayman Islands exempted company (the “Company”), is pleased to accept the offer Haymaker Sponsor IV LLC, a Delaware limited liability company, (the “Subscriber” or “you”) has made to subscribe for 5,750,000 Class B ordinary shares of the Company (the “Shares”), $0.0001 par value per share (the “Class B Ordinary Shares”), up to 750,000 of which are subject to complete or partial forfeiture by you if the underwriters of the Company’s initial public offering (“IPO”) of units (“Units”) do not fully exercise their over-allotment option (the “Over-allotment Option”). For the purposes of this Agreement, references to “Ordinary Shares” are to, collectively, the Class B Ordinary Shares and the Company’s Class A ordinary shares, $0.0001 par value per share (the “Class A Ordinary Shares”). Pursuant to the Company’s memorandum and articles of association, as amended to the date hereof (the “Articles”), unless otherwise provided in the definitive agreement for the Company’s initial business combination, Class B Ordinary Shares will convert into Class A Ordinary Shares on a one-for-one basis, subject to adjustment, upon the terms and conditions set forth in the Articles. Unless the context otherwise requires, as used herein “Shares” shall be deemed to include any Class A Ordinary Shares issued upon conversion of the Class B Ordinary Shares comprising the Shares. The terms (this “Agreement”) on which the Company is willing to issue the Shares to the Subscriber, and the Company and the Subscriber’s agreements regarding such Shares, are as follows:
1. Subscription for Shares.
For the sum of $25,000 (the “Purchase Price”), which the Company acknowledges receiving in cash, the Company hereby issues the Shares to the Subscriber, and the Subscriber hereby subscribes for the Shares from the Company, subject to forfeiture, on the terms and subject to the conditions set forth in this Agreement. Concurrently with the Subscriber’s execution of this Agreement, the Company shall update its Register of Members accordingly. All references in this Agreement to shares of the Company being forfeited shall take effect as surrenders for no consideration of such shares as a matter of Cayman Islands law. The Subscriber surrenders for no consideration the one ordinary share of the Company currently held by it following the incorporation of the Company.
2. Representations, Warranties and Agreements.
2.1 Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the Shares to the Subscriber, the Subscriber hereby represents and warrants to the Company and agrees with the Company as follows:
2.1.1 No Government Recommendation or Approval. The Subscriber understands that no federal or state agency has passed upon or made any recommendation or endorsement of the offering of the Shares.
2.1.2 No Conflicts. The execution, delivery and performance of this Agreement and the consummation by the Subscriber of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) the limited liability company agreement of the Subscriber, (ii) any agreement, indenture or instrument to which the Subscriber is a party or (iii) any law, statute, rule or regulation to which the Subscriber is subject, or any agreement, order, judgment or decree to which the Subscriber is subject.
2.1.3 Formation and Authority. The Subscriber is a Delaware limited liability company, formed and registered and validly existing and in good standing under the laws of Delaware and possesses all requisite power and authority necessary to carry out the transactions contemplated by this Agreement. Upon execution and delivery by you, this Agreement is a legal, valid and binding agreement of Subscriber, enforceable against Subscriber in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
2.1.4 Experience, Financial Capability and Suitability. Subscriber is: (i) sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Shares and (ii) able to bear the economic risk of its investment in the Shares for an indefinite period of time because the Shares have not been registered under the Securities Act (as defined below) and therefore cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is available. Subscriber is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect its own interests. Subscriber must bear the economic risk of this investment until the Shares are sold pursuant to: (i) an effective registration statement under the Securities Act or (ii) an exemption from registration available with respect to such sale. Subscriber is able to bear the economic risks of an investment in the Shares and to afford a complete loss of Subscriber’s investment in the Shares.
2.1.5 Access to Information; Independent Investigation. Prior to the execution of this Agreement, the Subscriber has had the opportunity to ask questions of and receive answers from representatives of the Company concerning an investment in the Company, as well as the finances, operations, business and prospects of the Company, and the opportunity to obtain additional information to verify the accuracy of all information so obtained. In determining whether to make this investment, Subscriber has relied solely on Subscriber’s own knowledge and understanding of the Company and its business based upon Subscriber’s own due diligence investigation and the information furnished pursuant to this paragraph. Subscriber understands that no person has been authorized to give any information or to make any representations which were not furnished pursuant to this Section 2 and Subscriber has not relied on any other representations or information in making its investment decision, whether written or oral, relating to the Company, its operations and/or its prospects.
2.1.6 Regulation D Offering. Subscriber represents that it is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”) and acknowledges the sale contemplated hereby is being made in reliance on a private placement exemption to “accredited investors” within the meaning of Section 501(a) of Regulation D under the Securities Act or similar exemptions under state law.
2.1.7 Investment Purposes. The Subscriber is purchasing the Shares solely for investment purposes, for the Subscriber’s own account and not for the account or benefit of any other person, and not with a view towards the distribution or dissemination thereof. The Subscriber did not decide to enter into this Agreement as a result of any general solicitation or general advertising within the meaning of Rule 502 under the Securities Act.
2.1.8 Restrictions on Transfer; Shell Company. Subscriber understands the Shares are being offered in a transaction not involving a public offering within the meaning of the Securities Act. Subscriber understands the Shares will be “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act and Subscriber understands that the certificates or book-entries representing the Shares will contain a legend in respect of such restrictions. If in the future the Subscriber decides to offer, resell, pledge or otherwise transfer the Shares, such Shares may be offered, resold, pledged or otherwise transferred only pursuant to: (i) registration under the Securities Act, or (ii) an available exemption from registration. Subscriber agrees that if any transfer of its Shares or any interest therein is proposed to be made, as a condition precedent to any such transfer, Subscriber may be required to deliver to the Company an opinion of counsel satisfactory to the Company. Absent registration or an exemption, the Subscriber agrees not to resell the Shares. Subscriber further acknowledges that because the Company is a shell company, Rule 144 may not be available to the Subscriber for the resale of the Shares until one year following consummation of the initial business combination of the Company, despite technical compliance with the requirements of Rule 144 and the release or waiver of any contractual transfer restrictions.
2.1.9 No Governmental Consents. No governmental, administrative or other third party consents or approvals are required, necessary or appropriate on the part of Subscriber in connection with the transactions contemplated by this Agreement.
2.2 Company’s Representations, Warranties and Agreements. To induce the Subscriber to purchase the Shares, the Company hereby represents and warrants to the Subscriber and agrees with the Subscriber as follows:
2.2.1 Incorporation and Corporate Power. The Company is a Cayman Islands exempted company and is qualified to do business in every jurisdiction in which the failure to so qualify would reasonably be expected to have a material adverse effect on the financial condition, operating results or assets of the Company. The Company possesses all requisite corporate power and authority necessary to carry out the transactions contemplated by this Agreement.
2.2.2 No Conflicts. The execution, delivery and performance of this Agreement and the consummation by the Company of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) the Memorandum and Articles of Association of the Company, (ii) any agreement, indenture or instrument to which the Company is a party or (iii) any law, statute, rule or regulation to which the Company is subject, or any agreement, order, judgment or decree to which the Company is subject.
2.2.3 Title to Shares. Upon issuance in accordance with, and payment pursuant to, the terms hereof and the Memorandum and Articles of the Company, and registration on the register of members of the Company, the Shares will be duly and validly issued as fully paid and nonassessable. Upon issuance in accordance with, and payment pursuant to, the terms hereof the Subscriber will have or receive good title to the Shares, free and clear of all liens, claims and encumbrances of any kind, other than (a) transfer restrictions hereunder and under the other agreements to which the Shares may be subject, (b) transfer restrictions under federal and state securities laws, and (c) liens, claims or encumbrances imposed due to the actions of the Subscriber.
2.2.4 No Adverse Actions. There are no actions, suits, investigations or proceedings pending, threatened against or affecting the Company which: (i) seek to restrain, enjoin, prevent the consummation of or otherwise affect the transactions contemplated by this Agreement or (ii) question the validity or legality of any transactions or seeks to recover damages or to obtain other relief in connection with any transactions.
2.2.4 Authorization. The Class A Ordinary Shares issuable upon conversion of the Class B Ordinary Shares have been duly authorized and reserved for issuance upon such conversion.
3. Forfeiture of Shares.
3.1 Partial or No Exercise of the Over-allotment Option. In the event the Over-allotment Option granted to the underwriters of the IPO is not exercised in full, the Subscriber acknowledges and agrees that it (and, if applicable, any transferee of Shares) shall forfeit any and all rights to such number of Shares (up to an aggregate of 750,000 Shares and pro rata based upon the percentage of the Over-allotment Option exercised) such that immediately following such forfeiture, the Subscriber (and any such transferees) will own an aggregate number of Shares (not including Class A Ordinary Shares included in the private placement units that are expected to be purchased by Subscriber at the closing of the IPO, Class A Ordinary Shares issuable upon exercise of any warrants or any securities purchased by Subscriber in the IPO or in the aftermarket) equal to 20.0% of the issued and outstanding Ordinary Shares immediately following the IPO (excluding the private units to be issued in connection with the IPO).
3.2 Termination of Rights as Shareholder. If any of the Shares are forfeited in accordance with this Section 3, then after such time the Subscriber (or successor in interest), shall no longer have any rights as a holder of such forfeited Shares, and the Company shall take such action as is appropriate to cancel such forfeited Shares.
4. Waiver of Liquidation Distributions; Redemption Rights.
In connection with the Shares purchased pursuant to this Agreement, the Subscriber hereby waives any and all right, title, interest or claim of any kind in or to any distributions by the Company from the trust account which will be established for the benefit of the Company’s public shareholders and into which substantially all of the proceeds of the IPO will be deposited (the “Trust Account”), in the event of a liquidation of the Company upon the Company’s failure to timely complete an initial business combination. For purposes of clarity, in the event the Subscriber purchases securities in the IPO or in the aftermarket, any Class A Ordinary Shares so purchased shall be eligible to receive any liquidating distributions by the Company. However, in no event will the Subscriber have the right to redeem any Ordinary Shares held by it into funds held in the Trust Account upon the successful completion of an initial business combination.
5. Restrictions on Transfer.
5.1 Securities Law Restrictions. In addition to any restrictions to be contained in that certain letter agreement (commonly known as an “Insider Letter”) dated on or prior to the closing of the IPO by and between Subscriber and the Company, Subscriber agrees not to sell, transfer, pledge, hypothecate or otherwise dispose of all or any part of the Shares unless, prior thereto (a) a registration statement on the appropriate form under the Securities Act and applicable state securities laws with respect to the Shares proposed to be transferred shall then be effective or (b) the Company has received an opinion from counsel reasonably satisfactory to the Company, that such registration is not required because such transaction is exempt from registration under the Securities Act and the rules promulgated by the Securities and Exchange Commission thereunder and with all applicable state securities laws.
5.2 Lock-up. Subscriber acknowledges that the Shares will be subject to lock-up provisions (the “Lock-up”) contained in the Insider Letter.
5.3 Restrictive Legends. All certificates representing the Shares shall have endorsed thereon legends substantially as follows:
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL, IS AVAILABLE.”
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCKUP AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE TERM OF THE LOCKUP.”
5.4 Additional Shares or Substituted Securities. In the event of the declaration of a share capitalization, the declaration of an extraordinary dividend payable in a form other than Ordinary Shares, a spin-off, a share sub-division, an adjustment in conversion ratio, a recapitalization or a similar transaction affecting the Company’s outstanding Ordinary Shares without receipt of consideration, any new, substituted or additional securities or other property which are by reason of such transaction distributed with respect to any Shares subject to this Section 5 or into which such Shares thereby become convertible shall immediately be subject to this Section 5 and Section 3. Appropriate adjustments to reflect the distribution of such securities or property shall be made to the number and/or class of Ordinary Shares subject to this Section 5 and Section 3.
5.5 Registration Rights. Subscriber acknowledges that the Shares are being purchased pursuant to an exemption from the registration requirements of the Securities Act and will become freely tradable only after certain conditions are met or they are registered pursuant to a registration rights agreement to be entered into with the Company prior to the closing of the IPO (the “Registration Rights Agreement”).
6. Other Agreements.
6.1 Further Assurances. Subscriber agrees to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement.
6.2 Notices. All notices, statements or other documents which are required or contemplated by this Agreement shall be: (i) in writing and delivered personally or sent by first class registered or certified mail, overnight courier service or facsimile or electronic transmission to the address designated in writing, (ii) by facsimile to the number most recently provided to such party or such other address or fax number as may be designated in writing by such party and (iii) by electronic mail, to the electronic mail address most recently provided to such party or such other electronic mail address as may be designated in writing by such party. Any notice or other communication so transmitted shall be deemed to have been given on the day of delivery, if delivered personally, on the business day following receipt of written confirmation, if sent by facsimile or electronic transmission, one (1) business day after delivery to an overnight courier service or five (5) days after mailing if sent by mail.
6.3 Entire Agreement. This Agreement, together with that certain Insider Letter to be entered into between Subscriber and the Company and the Registration Rights Agreement, each substantially in the form to be filed as an exhibit to the Registration Statement, embodies the entire agreement and understanding between the Subscriber and the Company with respect to the subject matter hereof and supersedes all prior oral or written agreements and understandings relating to the subject matter hereof.
6.4 Modifications and Amendments. The terms and provisions of this Agreement may be modified or amended only by written agreement executed by all parties hereto.
6.5 Waivers and Consents. The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by written document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.
6.6 Assignment. The rights and obligations under this Agreement may not be assigned by either party hereto without the prior written consent of the other party.
6.7 Benefit. All statements, representations, warranties, covenants and agreements in this Agreement shall be binding on the parties hereto and shall inure to the benefit of the respective successors and permitted assigns of each party hereto. Nothing in this Agreement shall be construed to create any rights or obligations except among the parties hereto, and no person or entity shall be regarded as a third-party beneficiary of this Agreement.
6.8 Governing Law. This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by the laws of New York applicable to contracts wholly performed within the borders of such state, without giving effect to the conflict of law principles thereof.
6.9 Severability. In the event that any court of competent jurisdiction shall determine that any provision, or any portion thereof, contained in this Agreement shall be unreasonable or unenforceable in any respect, then such provision shall be deemed limited to the extent that such court deems it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such provision, or portion thereof, wholly unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full force and effect.
6.10 No Waiver of Rights, Powers and Remedies. No failure or delay by a party hereto in exercising any right, power or remedy under this Agreement, and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power or remedy of such party. No single or partial exercise of any right, power or remedy under this Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Agreement shall entitle the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand.
6.11 Survival of Representations and Warranties. All representations and warranties made by the parties hereto in this Agreement or in any other agreement, certificate or instrument provided for or contemplated hereby, shall survive the execution and delivery hereof and any investigations made by or on behalf of the parties.
6.12 No Broker or Finder. Each of the parties hereto represents and warrants to the other that no broker, finder or other financial consultant has acted on its behalf in connection with this Agreement or the transactions contemplated hereby in such a way as to create any liability on the other. Each of the parties hereto agrees to indemnify and save the other harmless from any claim or demand for commission or other compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of such party and to bear the cost of legal expenses incurred in defending against any such claim.
6.13 Headings and Captions. The headings and captions of the various subdivisions of this Agreement are for convenience of reference only and shall in no way modify or affect the meaning or construction of any of the terms or provisions hereof.
6.14 Counterparts. This Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or any other form of electronic delivery, 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 signature page were an original thereof.
6.15 Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties hereto and no presumption or burden of proof will arise favoring or disfavoring any party hereto because of the authorship of any provision of this Agreement. The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.” Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice versa, unless the context otherwise requires. The words “this Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The parties hereto intend that each representation, warranty, and covenant contained herein will have independent significance. If any party hereto has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party hereto has not breached will not detract from or mitigate the fact that such party hereto is in breach of the first representation, warranty, or covenant.
6.16 Mutual Drafting. This Agreement is the joint product of the Subscriber 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.
7. Voting and Tender of Shares.
Subscriber agrees to vote the Shares in favor of an initial business combination that the Company negotiates and submits for approval to the Company’s shareholders and shall not seek repurchase or redemption with respect to any of the Shares. Additionally, the Subscriber agrees not to tender any Shares in connection with a tender offer presented to the Company’s shareholders in connection with an initial business combination negotiated by the Company.
8. Indemnification.
Each party shall indemnify the other against any loss, cost or damages (including reasonable attorney’s fees and expenses) incurred as a result of such party’s breach of any representation, warranty, covenant or agreement in this Agreement.
[Signature Page Follows]
If the foregoing accurately sets forth our understanding and agreement, please sign the enclosed copy of the Agreement and return it to us.
Very truly yours, | ||
HAYMAKER ACQUISITION CORP. IV | ||
By: | /s/ Steven J. Heyer | |
Name: Steven J. Heyer | ||
Title: Chief Executive Officer | ||
Accepted and agreed, March 15, 2023 | ||
HAYMAKER SPONSOR IV LLC | ||
By: | /s/ Andrew R. Heyer | |
Name: Andrew R. Heyer | ||
Title: Managing Member |
[Signature page to Subscription Agreement]
Exhibit 10.8
Haymaker Acquisition Corp. 4
501 Madison Avenue, Floor 5
New York, NY 10022
, 2023
Mistral Capital Management LLC501 Madison Avenue, Floor 5
New York, NY 10022
Re: Administrative Services Agreement
Ladies and Gentlemen:
This letter agreement (this “Agreement”) by and between Haymaker Acquisition Corp. 4 (the “Company”) and Mistral Capital Management LLC (“Mistral”), 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 New York Stock Exchange (the “Listing Date”), pursuant to a Registration Statement on Form S-1 and prospectus filed with the U.S. Securities and Exchange Commission (the “Registration Statement”) and continuing until the earlier of the consummation by the Company of an initial business combination and the Company’s liquidation (in each case as described in the Registration Statement) (such earlier date hereinafter referred to as the “Termination Date”):
1. Mistral shall make available, or cause to be made available, to the Company, secretarial and administrative support services and other services as may be reasonably required by the Company. In exchange therefor, the Company shall pay Mistral up to $20,000 per month on the Listing Date and continuing monthly thereafter until the Termination Date. Upon completion of the Company’s initial business combination or liquidation, in each case as described in the Registration Statement, any remaining monthly payments from the Company’s 24- month term will be accelerated and due at the closing of its initial business combination or liquidation, in each case as described in the Registration Statement.
2. Mistral 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 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 shareholders 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 may have in the future as a result of, or arising out of, this Agreement, 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.
3. This 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.
4. This Agreement may not be amended, modified or waived as to any particular provision, except by a written instrument executed by the parties hereto.
5. No party hereto may assign either this 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.
6. This Agreement shall be governed by and construed in accordance with the laws of the State of New York for agreements made and to be wholly performed within such state, without regards to the conflicts of laws principles thereof.
[Signature Page Follows]
Very truly yours, | |||
HAYMAKER ACQUISITION CORP. 4 | |||
By: | |||
Name: | |||
Title: | |||
AGREED AND ACCEPTED BY: | |||
Mistral Capital Management LLC | |||
By | |||
Name: | |||
Title: |
[Signature Page to Administrative Services Agreement]
Exhibit 14
FORM OF
CODE OF ETHICS
OF
Haymaker Acquisition Corp. 4
1. | Introduction |
The Board of Directors (the “Board”) of Haymaker Acquisition Corp. 4, a Cayman Islands exempted company (the “Company”), has adopted this code of ethics (this “Code”), as may be amended from time to time by the Board and which is applicable to all of the Company’s directors, officers and employees (to the extent that employees are hired in the future) to:
· | promote honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships; |
· | promote the full, fair, accurate, timely and understandable disclosure in reports and documents that the Company files with, or submits to, the Securities and Exchange Commission (the “SEC”), as well as in other public communications made by or on behalf of the Company; |
· | promote compliance with applicable governmental laws, rules and regulations; |
· | deter wrongdoing; and |
· | require prompt internal reporting of breaches of, and accountability for adherence to, this Code. |
This Code may be amended and modified by the Board. In this Code, references to the “Company” mean Haymaker Acquisition Corp. 4 and, in appropriate context, the Company’s subsidiaries, if any.
2. | Honest, Ethical and Fair Conduct |
Each person owes a duty to the Company to act with integrity. Integrity requires, among other things, being honest, fair and candid. Deceit, dishonesty and subordination of principle are inconsistent with integrity. Service to the Company should never be subordinated to personal gain and advantage.
Each person must:
· | act with integrity, including being honest and candid while still maintaining the confidentiality of the Company’s information where required or when in the Company’s interests; |
· | observe all applicable governmental laws, rules and regulations; |
· | comply with the requirements of applicable accounting and auditing standards, as well as Company policies, in order to maintain a high standard of accuracy and completeness in the Company’s financial records and other business-related information and data; |
· | adhere to a high standard of business ethics and not seek competitive advantage through unlawful or unethical business practices; |
· | deal fairly with the Company’s customers, suppliers, competitors and employees; |
· | refrain from taking advantage of anyone through manipulation, concealment, abuse of privileged information, misrepresentation of material facts or any other unfair-dealing practice; |
· | protect the assets of the Company and ensure their proper use; |
· | Until the earliest of (i) the Company’s initial business combination (as such is defined in the Company’s initial registration statement filed with the U.S. Securities and Exchange Commission (“SEC”)), (ii) liquidation, or (iii) such time as such person ceases to be an officer or director of the Company, to first present to the Company for its consideration, prior to presentation to any other entity, any business opportunity suitable for the Company and presented to such person solely in his or her capacity as an officer or director of the Company, subject to any other fiduciary or contractual obligations such officer may have; and |
· | Avoid conflicts of interest, wherever possible, except as may be allowed under guidelines or resolutions approved by the Board (or the appropriate committee of the Board) or as disclosed in the Company’s public filings with the SEC. Anything that would be a conflict for a person subject to this Code also will be a conflict for a member of his or her immediate family or any other close relative. Examples of conflict of interest situations include, but are not limited to, the following: |
· | any significant ownership interest in any supplier or customer; |
· | any consulting or employment relationship with any supplier or customer; |
· | the receipt of any money, non-nominal gifts or excessive entertainment from any entity with which the Company has current or prospective business dealings; |
· | selling anything to the Company or buying anything from the Company, except on the same terms and conditions as comparable officers or directors are permitted to so purchase or sell; |
· | any other financial transaction, arrangement or relationship (including any indebtedness or guarantee of indebtedness) involving the Company; and |
· | any other circumstance, event, relationship or situation in which the personal interest of a person subject to this Code interferes - or even appears to interfere - with the interests of the Company as a whole. |
3. | Disclosure |
The Company strives to ensure that the contents of and the disclosures in the reports and documents that the Company files with the SEC and other public communications shall be full, fair, accurate, timely and understandable in accordance with applicable disclosure standards, including standards of materiality, where appropriate. Each person must:
· | not knowingly misrepresent, or cause others to misrepresent, facts about the Company to others, whether within or outside the Company, including to the Company’s independent registered public accountants, governmental regulators, self-regulating organizations and other governmental officials, as appropriate; and |
· | in relation to his or her area of responsibility, properly review and critically analyze proposed disclosure for accuracy and completeness. |
In addition to the foregoing, the Chief Executive Officer (“CEO”) and Chief Financial Officer (“CFO”) of the Company and each subsidiary of the Company (or persons performing similar functions), and each other person that typically is involved in the financial reporting of the Company must familiarize himself or herself with the disclosure requirements applicable to the Company as well as the business and financial operations of the Company.
Each person must promptly bring to the attention of the Chairman of the Board any information he or she may have concerning (a) significant deficiencies in the design or operation of internal and/or disclosure controls that could adversely affect the Company’s ability to record, process, summarize and report financial data or (b) any fraud that involves management or other employees who have a significant role in the Company’s financial reporting, disclosures or internal controls.
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4. | Compliance |
It is the Company’s obligation and policy to comply with all applicable governmental laws, rules and regulations. All directors, officers and employees of the Company are expected to understand, respect and comply with all of the laws, regulations, policies and procedures that apply to them in their positions with the Company. Employees are responsible for talking to their supervisors to determine which laws, regulations and Company policies apply to their position and what training is necessary to understand and comply with them.
Directors, officers and employees are directed to specific policies and procedures available to persons they supervise.
5. | Reporting and Accountability |
The Board is responsible for applying this Code to specific situations in which questions are presented to it and has the authority to interpret this Code in any particular situation. Any person who becomes aware of any existing or potential breach of this Code is required to notify the Chairman of the Board promptly. Failure to do so is, in and of itself, a breach of this Code.
Specifically, each person must:
· | Notify the Chairman of the Board promptly of any existing or potential violation of this Code. |
· | Not retaliate against any other person for reports of potential violations that are made in good faith. |
The Company will follow the following procedures in investigating and enforcing this Code and in reporting on the Code:
· | The Board will take all appropriate action to investigate any breaches reported to it. |
· | Upon determination by the Board that a breach has occurred, the Board (by majority decision) will take or authorize such disciplinary or preventive action as it deems appropriate, after consultation with the Company’s internal or external legal counsel, up to and including dismissal or, in the event of criminal or other serious violations of law, notification of the SEC or other appropriate law enforcement authorities. |
No person following the above procedure shall, as a result of following such procedure, be subject by the Company or any officer or employee thereof to discharge, demotion suspension, threat, harassment or in any manner, discrimination against such person in terms and conditions of employment.
6. | Waivers and Amendments |
Any waiver (defined below) or an implicit waiver (defined below) from a provision of this Code for the principal executive officer, principal financial officer, principal accounting officer or controller, and persons performing similar functions or any amendment (as defined below) to this Code is required to be disclosed in a Current Report on Form 8- K filed with the SEC. In lieu of filing a Current Report on Form 8-K to report any such waivers or amendments, the Company may provide such information on a website, in the event that it establishes one in the future, and if it keeps such information on the website for at least 12 months and discloses the website address as well as any intention to provide such disclosures in this manner in its most recently filed Annual Report on Form 10-K.
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A “waiver” means the approval by the Board of a material departure from a provision of the Code. An “implicit waiver” means the Company’s failure to take action within a reasonable period of time regarding a material departure from a provision of the Code that has been made known to an executive officer of the Company. An “amendment” means any amendment to this Code other than minor technical, administrative or other non-substantive amendments hereto.
All persons should note that it is not the Company’s intention to grant or to permit waivers from the requirements of this Code. The Company expects full compliance with this Code.
7. | Insider Information and Securities Trading |
The Company’s directors, officers or employees who have access to material, non-public information are not permitted to use that information for securities trading purposes or for any purpose unrelated to the Company’s business. It is also against the law to trade or to “tip” others who might make an investment decision based on inside company information. For example, using non-public information to buy or sell the Company securities, options in the Company shares or the shares of any Company supplier, customer or competitor is prohibited. The consequences of insider trading violations can be severe. These rules also apply to the use of material, nonpublic information about other companies (including, for example, the Company’s customers, competitors and potential business partners). In addition to directors, officers or employees, these rules apply to such person’s spouse, children, parents and siblings, as well as any other family members living in such person’s home.
8. | Financial Statements and Other Records |
All of the Company’s books, records, accounts and financial statements must be maintained in reasonable detail, must appropriately reflect the Company’s transactions and must both conform to applicable legal requirements and to the Company’s system of internal controls. Unrecorded or “off the books” funds or assets should not be maintained unless permitted by applicable law or regulation.
Records should always be retained or destroyed according to the Company’s record retention policies. In accordance with those policies, in the event of litigation or governmental investigation, please consult the Board or the Company’s internal or external legal counsel.
9. | Improper Influence on Conduct of Audits |
No director or officer, or any other person acting under the direction thereof, shall directly or indirectly take any action to coerce, manipulate, mislead or fraudulently influence any public or certified public accountant engaged in the performance of an audit or review of the financial statements of the Company or take any action that such person knows or should know that if successful could result in rendering the Company’s financial statements materially misleading. Any person who believes such improper influence is being exerted should report such action to such person’s supervisor, or if that is impractical under the circumstances, to any of the Company’s directors.
Types of conduct that could constitute improper influence include, but are not limited to, directly or indirectly:
· | Offering or paying bribes or other financial incentives, including future employment or contracts for non-audit services; |
· | Providing an auditor with an inaccurate or misleading legal analysis; |
· | Threatening to cancel or canceling existing non-audit or audit engagements if the auditor objects to the Company’s accounting; |
· | Seeking to have a partner removed from the audit engagement because the partner objects to the Company’s accounting; |
· | Blackmailing; and |
· | Making physical threats. |
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10. | Anti-Corruption Laws |
The Company complies with the anti-corruption laws of the countries in which it does business, including the U.S. Foreign Corrupt Practices Act (“FCPA”). Directors, officers and employees will not directly or indirectly give anything of value to government officials, including employees of state-owned enterprises or foreign political candidates. These requirements apply both to Company employees and agents, such as third party sales representatives, no matter where they are doing business. If you are authorized to engage agents, you are responsible for ensuring they are reputable and for obtaining a written agreement to uphold the Company’s standards in this area.
11. | Violations |
Violation of this Code is grounds for disciplinary action up to and including termination of employment. Such action is in addition to any civil or criminal liability which might be imposed by any court or regulatory agency.
12. | Other Policies and Procedures |
Any other policy or procedure set out by the Company in writing or made generally known to employees, officers or directors of the Company prior to the date hereof or hereafter are separate requirements and remain in full force and effect.
13. | Inquiries |
All inquiries and questions in relation to this Code or its applicability to particular people or situations should be addressed to the Company’s Secretary, or such other compliance officer as shall be designated from time to time by the Company.
PROVISIONS FOR
CHIEF EXECUTIVE OFFICER AND SENIOR FINANCIAL OFFICERS
The CEO and all senior financial officers, including the CFO and principal accounting officer, are bound by the provisions set forth therein relating to ethical conduct, conflicts of interest, and compliance with law. In addition to the Code, the CEO and senior financial officers are subject to the following additional specific policies:
1. Act with honesty and integrity, avoiding actual or apparent conflicts between personal, private interests and the interests of the Company, including receiving improper personal benefits as a result of his or her position.
2. Disclose to the CEO and the Board any material transaction or relationship that reasonably could be expected to give rise to a conflict of interest.
3. Perform responsibilities with a view to causing periodic reports and documents filed with or submitted to the SEC and all other public communications made by the Company to contain information that is accurate, complete, fair, objective, relevant, timely and understandable, including full review of all annual and quarterly reports.
4. Comply with laws applicable to the Company, including but not limited to rules and regulations of U.S. federal, state and other local governments and with the rules and regulations of private and public regulatory agencies having jurisdiction over the Company.
5. Act in good faith, responsibly, with due care, competence and diligence, without misrepresenting or omitting material facts or allowing independent judgment to be compromised or subordinated.
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6. Respect the confidentiality of information acquired in the course of performance of his or her responsibilities except when authorized or otherwise legally obligated to disclose any such information; not use confidential information acquired in the course of performing his or her responsibilities for personal advantage.
7. Share knowledge and maintain skills important and relevant to the needs of the Company, its shareholders and other constituencies and the general public.
8. Proactively promote ethical behavior among subordinates and peers in his or her work environment and community.
9. Use and control all corporate assets and resources employed by or entrusted to him or her in a responsible manner.
10. Not use corporate information, corporate assets, corporate opportunities or his or her position with the Company for personal gain; not compete directly or indirectly with the Company.
11. Comply in all respects with this Code.
12. Advance the Company’s legitimate interests when the opportunity arises.
The Board will investigate any reported violations and will oversee an appropriate response, including corrective action and preventative measures. Any officer who violates this Code will face appropriate, case specific disciplinary action, which may include demotion or discharge.
Any request for a waiver of any provision of this Code must be in writing and addressed to the Chairman of the Board. Any waiver of this Code will be disclosed as provided in Section 6 of this Code.
It is the policy of the Company that each officer covered by this Code shall acknowledge and certify to the foregoing annually and file a copy of such certification with the Chairman of the Board.
OFFICER’S CERTIFICATION
I have read and understand the foregoing Code. I hereby certify that I am in compliance with the foregoing Code and I will comply with the Code in the future. I understand that any violation of the Code will subject me to appropriate disciplinary action, which may include demotion or discharge.
Dated: | ||
Name: | ||
Title: |
6
Exhibit 23.1
Independent Registered Public Accounting Firm’s Consent
We consent to the inclusion in this Registration Statement of Haymaker Acquisition Corp. 4 (the “Company”) on Form S-1 of our report dated May 5, 2023, which includes an explanatory paragraph as to the Company’s ability to continue as a going concern, with respect to our audit of the financial statements of Haymaker Acquisition Corp. 4 as of March 31, 2023 and for the period from March 7, 2023 (inception) through March 31, 2023, which report appears in the Prospectus, which is part of this Registration Statement. We also consent to the reference to our Firm under the heading “Experts” in such Prospectus.
/s/ Marcum LLP
Marcum LLP
New York, NY
July 3, 2023
Exhibit 99.1
Haymaker Acquisition Corp. 4
AUDIT COMMITTEE CHARTER
I. Purpose
The Audit Committee (the “Committee”) of the Board of Directors (the “Board”) of Haymaker Acquisition Corp. 4, a Cayman Islands exempted company (the “Company”), shall provide assistance to the Board in fulfilling its legal and fiduciary obligations to oversee:
(a) the integrity of the financial statements and other financial information provided by the Company to its stockholders, the public, any stock exchange and others;
(b) the Company’s compliance with legal and regulatory requirements; (c) the qualifications and independence of the Company’s independent auditor;
(d) the performance of the Company’s internal audit function and its system of internal controls and independent auditor, and
(e) such other matters as are assigned to the Committee by the Board pursuant to this Charter or as mandated under applicable laws, rules and regulations (including the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder, as amended (the “Exchange Act”)) as well as listing standards of the New York Stock Exchange (together, the “Applicable Requirements”).
Although the Committee has the powers and responsibilities set forth in this Charter, the role of the Committee is oversight. The members of the Committee are not full-time employees of the Company and may or may not be accountants or auditors by profession or experts in the fields of accounting or auditing and, in any event, do not serve in such capacity. Consequently, it is not the duty of the Committee to conduct audits or to determine that the Company’s financial statements and disclosures are complete and accurate and are in accordance with Generally Accepted Accounting Principles (“GAAP”) and other Applicable Requirements. These are the responsibilities of management and the Company’s independent auditor.
II. Organization
The Committee shall consist of three or more directors, each of whom shall satisfy the independence, financial literacy, and other qualifications required by the Company’s corporate governance guidelines, Section 10A-3 of the Exchange Act and any other Applicable Requirements, subject to any phase-in periods or cure periods permitted by Rule 10A-3(b)(1)(iv)(A) under the Exchange Act and other Applicable Requirements. At least one member of the Committee shall be an “audit committee financial expert” (as defined by the SEC). Determinations of independence, financial literacy, experience and expertise shall be made by the Board as the Board interprets such qualifications in its business judgment.
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No Committee member shall simultaneously serve on the audit committees of more than two other public companies unless the Board determines that such simultaneous service does not impair the ability of such member to effectively serve on the Committee and such determination is disclosed in accordance with the Applicable Requirements.
Members of the Committee shall be appointed by the Board on the recommendation of the Nominating and Governance Committee. Members of the Committee may be removed at any time by action of the Board; provided, however, that if removing a member or members of the Committee would cause the Committee to have fewer than three members, then the Board must, based upon the recommendation of the Nominating and Corporate Governance Committee, at the same time appoint enough additional members to the Committee so that the Committee will have at least three qualified members. The Committee’s chairperson shall be designated by the Board on the recommendation of the Nominating and Governance Committee or, if not so designated, the members of the Committee shall elect a chairperson by a vote of the majority of the full Committee.
The Committee may form and delegate authority to subcommittees from time to time as it sees fit, provided that the subcommittees are composed entirely of directors who satisfy the applicable independence requirements of the Company’s corporate governance guidelines and the Applicable Requirements.
III. Meetings
The Committee shall meet at least four times per year on a quarterly basis, or more frequently as required. Meetings shall be called by the chairperson of the Committee or, if there is no chairperson, by a majority of the members of the Committee. Meetings may be held telephonically or by other electronic means to the extent permitted by the Company’s organizational documents and applicable law. Committee actions may be taken by unanimous written consent.
The Committee shall also meet periodically with management, the chief internal auditor and the Company’s independent auditor in separate executive sessions to discuss any matters that the Committee or each of these groups believe should be discussed privately.
The Committee shall maintain minutes of its meetings and records relating to those meetings.
IV. Authority and Responsibilities
In fulfilling its duties and responsibilities hereunder, the Committee will be entitled to rely reasonably on (a) the integrity of those persons within the Company and the professionals and experts (such as the Company’s independent auditor) from whom it receives information, (b) the accuracy of the financial and other information provided to the Committee by such persons and (c) representations made by the Company’s independent auditor as to any services provided by such firm to the Company.
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To fulfill its responsibilities, the Committee shall:
With respect to the engagement of the Company’s independent and other auditors:
1. | Be directly responsible for (a) the appointment, compensation, retention, (including termination), scope and oversight of the work of any independent registered public accounting firm engaged by the Company (including for the purpose of preparing or issuing an audit report or performing other audit, review or attestation services or other work for the Company), and (b) the resolution of any disagreements between management and any such firm regarding financial reporting. |
2. | Have the sole authority to review in advance, and pre-approve (which may be pursuant to pre-approval policies and procedures) all audit or non-audit services to be provided by the Company’s independent or other auditors as permitted by Section 10A of the Exchange Act and to approve all related fees and other terms of engagement. The Committee shall also review and approve disclosures required to be included by the Company in periodic reports filed with the Securities and Exchange Commission (the “SEC”) under Section 13(a) of the Exchange Act with respect to audit and non-audit services. |
3. | At least annually, obtain and review a formal written report from the Company’s independent auditor (a) describing such firm’s internal quality control procedures, (b) describing any material issues raised by the most recent internal quality control review, peer review or Public Company Accounting Oversight Board (“PCAOB”) review or inspection of such firm, or by any inquiry or investigation by governmental or professional authorities, within the preceding five years, respecting one or more independent audits carried out by such firm, and any steps taken to deal with any such issues, and (c) assessing such firm’s independence, including delineating all relationships and engagements that may reasonably be thought to bear on the independence of the auditor, including those between the auditor and the Company. The Committee shall discuss this report with the Company’s independent auditor and shall take appropriate action to ensure the independence of the independent auditor and to address any other matters based on such report. |
4. | Confirm that the “lead partner,” the “concurring partner” and the other “audit partner” rotation requirements under the Applicable Requirements, including Regulation S-X have been complied with and set clear policies for audit partner rotation in compliance with applicable laws and regulations. |
5. | Review all reports and communications required to be submitted by the Company’s independent registered public accounting firm to the Committee under Section 10A of the Securities Exchange Act and other Applicable Requirements. |
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6. | At least annually, evaluate the performance of the Company’s independent auditor, including the lead audit partner. In making its evaluation, the Committee should take into account the opinions of management and the internal audit group. |
7. | Review and discuss with the Company’s independent auditor all relationships the auditor has with the Company and evaluate the auditor’s continued independence. |
8. | Review and approve the Company’s hiring policies regarding partners, employees and former partners and employees of the Company’s independent auditor. |
With respect to the Company’s financial statements and other financial reporting:
9. | Review and discuss the Company’s annual audited and quarterly unaudited financial statements with management (including the Company’s internal audit group) and the Company’s independent auditor, including disclosures made in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” to be included in the Company’s annual report on Form 10-K or quarterly reports on Form 10-Q. |
10. | Recommend to the Board whether the Company’s annual audited financial statements should be included in the Company’s annual report for filing with the SEC and timely prepare the report required by the SEC to be included in the Company’s annual proxy statement, if applicable, and any other reports of the Committee required by any Applicable Requirement. |
11. | Review and discuss with management and the Company’s independent auditor (a) major issues regarding, or significant changes in, the Company’s accounting principles and financial statement presentations, (b) analyses prepared by management or the Company’s independent auditor concerning significant financial reporting issues and judgments made in connection with the preparation of the financial statements, (c) the effect of regulatory and accounting initiatives, as well as off-balance sheet structures, on the financial statements of the Company, and (d) the type and presentation of information to be included in earnings press releases and any financial information and earnings guidance provided to analysts and rating agencies. |
12. | Prior to the filing of any audited financial statements with the SEC, review with management and the Company’s independent auditor (a) all critical accounting policies and practices used by the Company, (b) all alternative accounting treatments of financial information reported in GAAP related to material items that have been discussed with management, including the ramifications of the use of such alternative treatments and disclosures and the treatment preferred by the Company’s independent auditor, (c) any reports or communications (and management’s responses thereto) submitted to the Committee by the Company’s independent auditor in accordance with PCAOB Auditing Standard No. 16, Communications with Audit Committees, as amended or supplemented, and (d) any other material written communications between the Company’s independent auditor and management. |
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13. | Periodically review separately with each of management, the Company’s independent auditor and the internal audit group (a) any significant disagreement between management and the Company’s independent auditor or the internal audit group in connection with the preparation of the financial statements, (b) any audit problems or difficulties encountered during the course of the audit, including any restrictions on the scope of work or access to required information, and (c) management’s response to each. The Committee shall discuss with the independent auditor material issues on which the national office of the independent auditor was consulted by the Company’s audit team. |
14. | Periodically discuss with the Company’s independent auditor, without management being present, (a) their judgment about the quality, integrity and appropriateness of the Company’s accounting principles and financial disclosure practices as applied in its financial reporting and (b) the completeness and accuracy of the Company’s financial statements. |
15. | Review and discuss with management the Company’s earnings press releases, including the use of non-GAAP financial measures and other “pro forma” or “adjusted” presentations, as well as financial information and earnings guidance provided to analysts and rating agencies. Such discussions may be general (consisting of discussing the types of information to be disclosed and the types of presentations to be made), and each earnings release or each instance in which the Company provides earnings guidance need not be discussed in advance. |
16. | Review and discuss with management all material off-balance sheet transactions, arrangements, obligations (including contingent obligations) and other relationships of the Company with unconsolidated entities or other persons. |
17. | Review and approve the Company’s decision to enter into swaps and other derivatives transactions that are exempt from exchange-execution and clearing under “end-user exception” regulations established by the Commodity Futures Trading Commission; and review and approve the Company’s policies governing the Company’s use of swaps and other derivatives transactions subject to the end- user exception. |
18. | Review and discuss with management and the internal audit group the Company’s major financial risk exposures and management’s risk assessment and risk management policies. |
With respect to the internal audit function and internal controls:
19. | Review, based on the recommendation of the Company’s independent auditor and the person responsible for the Company’s internal audit group, the scope and plan of the work to be done by the internal audit group and the responsibilities, budget, audit plan, activities, organizational structure and staffing of the internal audit group as needed. |
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20. | Receive reports from the internal audit group on the status of significant findings and recommendations, and management’s responses. |
21. | Review on an annual basis the performance of the internal audit group. |
22. | In consultation with the Company’s management, independent auditor and the internal audit group, review the adequacy of the Company’s internal controls, disclosure processes and its procedures designed to ensure compliance with laws and regulations, and any special audit steps adopted in light of material control deficiencies. |
23. | Review, at least annually, (a) the internal control report prepared by management, including management’s assessment of the effectiveness of the Company’s internal control over financial reporting and (b) the Company’s independent auditor’s attestation, and report, on the assessment made by management, in each case, as and when required by Section 404 of the Sarbanes-Oxley Act of 2002. Discuss with management, the internal audit group and the independent auditor any changes in internal control over financial reporting disclosed or considered for disclosure in the Company’s periodic filings with the SEC. |
24. | Review with management and the Company’s independent auditor any reports or disclosure submitted by management to the Committee as contemplated by the certifications required under Section 302 of the Sarbanes-Oxley Act of 2002. |
25. | Review with management any management letters and the steps management intends to take to address the issues raised by those letters. |
With respect to the Company’s compliance programs:
26. | Monitor compliance with the Company’s Code of Ethics, and oversee, review and discuss with management, at least annually, the implementation and effectiveness of the Company’s compliance and ethics programs. Review and take appropriate action with respect to any reports to the Committee from legal counsel for the Company concerning any material violation of securities law or breach of fiduciary duty or similar violation by the Company, its subsidiaries or any person acting on their behalf. As appropriate, the Committee shall report and make recommendations to the Board with respect to these matters. |
27. | Establish procedures for (a) the receipt, retention and treatment of complaints received by the Company regarding accounting, internal accounting controls or auditing matters and (b) the confidential, anonymous submission by employees of the Company or any subsidiary or affiliate of the Company whose financial information is included in the Company’s financial statements of concerns regarding questionable accounting or auditing matters. |
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28. | Review and approve (a) any amendment to or waiver from the Company’s code of ethics for the chief executive officer and senior financial officers and (b) any public disclosure made regarding such change or waiver and advise the Board with respect to the Company’s policies and procedures regarding compliance with the Company’s Code of Business Conduct and Ethics. |
29. | Develop and recommend to the Board for approval policies and procedures for the review, approval or ratification of related person transactions required to be disclosed pursuant to Item 404 of Regulation S-K, as may be amended from time to time, and any other applicable requirements (the “Related Person Transactions Policy”). Review the Related Person Transactions Policy at least annually and recommend to the Board for approval any changes to the Policy. Oversee the implementation of and compliance with the Related Person Transactions Policy, including reviewing, approving or ratifying related person transactions, as appropriate pursuant to the Related Person Transaction Policy. |
30. | Review with management, the independent registered public accounting firm, and legal advisors, as appropriate, any legal, regulatory or compliance matters, including any correspondence with regulators or government agencies and any employee complaints or published reports that raise material issues regarding the Company’s financial statements or accounting policies and any significant changes in accounting standards or rules promulgated by the Financial Accounting Standards Board, the SEC or other regulatory authorities. |
With respect to the Committee’s other authorities and responsibilities:
31. | Review and assess annually its own performance and the adequacy of this Charter and recommend to the Board any changes to this Charter deemed appropriate by the Committee. |
32. | Report regularly to the Board. |
33. | Perform any other activities consistent with this Charter, the Company’s organizational documents, as required under the Applicable Requirements or as the Committee or the Board otherwise deems necessary or appropriate. |
V. Resources
The Committee shall have the authority to retain or terminate, at its sole discretion, independent legal, accounting and other advisors, consultants or professionals (collectively, “Advisors”) to assist the Committee in its responsibilities and shall be directly responsible for overseeing the work of such Advisors. The chairperson of the Committee, at the request of any member of the Committee, may request any officer, employee or advisor of the Company or the Company’s independent auditor to attend a meeting of the Committee or otherwise respond to Committee requests.
The Committee shall have the sole authority to determine the terms of engagement and the extent of funding necessary (and to be provided by the Company) for payment of (a) compensation to the Company’s independent auditor engaged for the purpose of preparing or issuing an audit report or performing other audit, review or attest services for the Company, (b) any compensation to any Advisors retained to advise the Committee and (c) ordinary administrative expenses of the Committee that are necessary or appropriate in carrying out its duties.
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Exhibit 99.2
Haymaker Acquisition Corp. 4
COMPENSATION COMMITTEE CHARTER
I. | Purpose |
The Compensation Committee (the “Committee”) of the Board of Directors of Haymaker Acquisition Corp. 4, a Cayman Islands exempted company (the “Company”), shall have responsibility for the compensation of the Company’s executive officers, including the Company’s Chief Executive Officer (the “CEO”), and for incentive compensation, equity-based and pension plans as further provided in this Charter.
II. | Organization |
The Committee shall consist of two or more directors, each of whom shall satisfy the applicable independence and other compensation committee membership requirements of the Company’s corporate governance guidelines, the New York Stock Exchange and any other applicable regulatory requirements subject to any exceptions or cure periods that are applicable pursuant to the foregoing requirements and the phase-in periods permitted under the rules of the New York Stock Exchange under which the Committee is required to have only one independent member at the time of listing, a majority of independent members within 90 days of listing and all independent members within one year of listing.
At least one member of the Committee shall have experience in matters relating to executive compensation either as a professional or as a business executive. At least two members shall qualify as (a) “outside directors” within the meaning of Section 162(m) of the U.S. Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder, including Treasury Regulations Section 1.162-27 (“Outside Directors”), and (b) “non-employee directors” within the meaning of Section 16 of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder (“Non-Employee Directors”).
Members of the Committee shall be appointed by the Board on the recommendation of the Nominating and Governance Committee and may be removed by the Board at any time; provided, however, that if removing a member or members of the Committee would cause the Committee to have fewer than two members, then the Board must, based upon the recommendation of the Nominating and Corporate Governance Committee, at the same time appoint an additional member to the Committee so that the Committee will have at least two members who qualifies as an (a) Outside Directors and (b) Non-Employee Directors. The Committee’s chairperson shall be designated by the Board on the recommendation of the Nominating and Governance Committee or, if not so designated, the members of the Committee shall elect a chairperson by a vote of the majority of the full Committee.
The Committee may form and delegate authority to subcommittees from time to time as it sees fit, provided that the subcommittees are composed entirely of directors who satisfy the applicable independence requirements of the Company’s corporate governance guidelines and the New York Stock Exchange.
III. | Meetings |
The Committee shall meet as often as necessary to carry out its responsibilities. Meetings shall be called by the chairperson of the Committee or, if there is no chairperson, by a majority of the members of the Committee. Meetings may be held telephonically or by other electronic means to the extent permitted by the Company’s organizational documents and applicable law. Committee actions may be taken by unanimous written consent.
IV. | Authority and Responsibilities |
To fulfill its responsibilities, the Committee shall:
1. | Review and make recommendations to the Board with respect to the Company’s compensation strategy to ensure it is appropriate to attract, retain and motivate senior management and other key employees. |
2. | Review and make recommendations to the Board with respect to the executive compensation philosophy, policies and programs that in the Committee’s judgment support the Company’s overall business strategy and review and discuss, at least annually, the material risks associated with executive compensation structure, policies and programs to determine whether such structure, policies and programs encourage excessive risk-taking and to evaluate compensation policies and practices that could mitigate any such risk. |
3. | On an annual basis, review and approve corporate goals and objectives relevant to the compensation of the Company’s CEO, evaluate the CEO’s performance in light of those goals and objectives and determine and approve CEO compensation based on this evaluation. In evaluating, determining and approving the long-term incentive component of CEO compensation, the Committee may consider, among such other factors as it may deem relevant, the Company’s performance, shareholder returns, the value of similar incentive awards to executive officers at comparable companies, the value of similar awards given to other executive officers of the Company, the results of the most recent shareholder advisory vote on executive compensation required by Section 14A of the Exchange Act (the “Say-on-Pay Vote”) and the awards given to the executive officer in past years. The CEO shall not be present during voting or deliberations relating to his or her compensation. |
4. | On an annual basis, review and make recommendations to the Board with respect to corporate goals and objectives relevant to the compensation of the Company’s other executive officers, evaluate the executive officers’ performance in light of those goals and objectives and determine and make recommendations to the Board with respect to executive officer compensation based on this evaluation. In evaluating and making recommendations with respect to the long-term incentive component of executive officer compensation, the Committee may consider, among such other factors as it may deem relevant, the Company’s performance, shareholder returns, the value of similar incentive awards to executive officers at comparable companies, the value of similar awards given to other executive officers of the Company, the results of the most recent shareholder advisory vote on executive compensation required by Section 14A of the Exchange Act (the “Say-on-Pay Vote”) and the awards given to the executive officer in past years. No executive officer may be present during voting or deliberations relating to his or her compensation. |
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5. | Review on an annual basis and make recommendations to the Board with respect to the Company’s incentive compensation, equity-based and pension plans, if any. With respect to each such plan, the Committee shall have responsibility for: |
(a) | implementing and administering the plan; |
(b) | setting performance targets under all annual bonus and long-term incentive compensation plans as appropriate and committing to writing any and all performance targets for executive officers who may be “covered employees” under applicable laws and regulations; |
(c) | if called for by the plan, certifying that any and all performance targets used for any performance-based equity compensation plans have been met before payment of any executive bonus or compensation or exercise of any executive award granted under any such plans; |
(d) | approving all amendments to, and terminations of, all compensation plans and any awards under such plans; |
(e) | granting any awards under any performance-based annual bonus, long- term incentive compensation and equity compensation plans to executive officers or current employees with the potential to become the CEO or an executive officer, including stock options and other equity rights (e.g., restricted stock and stock purchase rights); |
(f) | approving which executive officers are entitled to awards under the Company’s stock option plans; and |
(g) | approving repurchases of securities from terminated employees. | |
(h) |
In reviewing the Company’s incentive compensation, equity-based and pension plans, the Committee may consider the plan’s administrative costs, current plan features relative to any proposed new features, the results of the most recent Say- on-Pay Vote and the performance of the plan’s internal and external administrators if any duties have been delegated. |
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6. | Review and recommend to the Board for approval any employment agreement or compensatory transaction with an executive officer of the Company involving compensation in excess of $120,000 per year. |
7. | Establish and periodically review policies concerning perquisite benefits and approve all special perquisites, special cash payments and other special compensation and benefits arrangements for officers and employees of the Company and approve all special perquisites, special cash payments and other special compensation and benefit arrangements for officers and employees of the Company. |
8. | Determine and recommend to the Board for approval the Company’s policy with respect to change-of-control or “parachute” payments. In reviewing the Company’s policy with respect to change of control or “parachute” payments, the Committee may consider, among such other factors as it may deem relevant, the results of the most recent Say-on-Pay Vote on “parachute” payments, if any. |
9. | Review and make recommendations to the Board with respect to executive officer and director indemnification and insurance matters. |
10. | Review and recommend to the Board for approval the compensation of directors for their service to the Board. Review, evaluate and recommend changes, if appropriate, to the remuneration of directors. |
11. | Approve compensation awards, including individual awards, as may be required to comply with applicable tax and state corporate laws. |
12. | Review the Company’s compensation disclosures in its annual proxy statement and its Annual Report on Form 10-K filed with the SEC and assist management in complying with proxy statement and annual report requirements. Review and discuss the Company’s Compensation Discussion and Analysis (“CD&A”) with management and based on such review and discussion, determine whether to recommend to the Board that such compensation disclosures and CD&A be disclosed in the Company’s Annual Report on Form 10-K or annual proxy statement filed with the SEC, as applicable. |
13. | Review and recommend to the Board for approval the frequency with which the Company will conduct Say-on-Pay Votes, taking into account the results of the most recent shareholder advisory vote on frequency of Say-on-Pay Votes required by Section 14A of the Exchange Act, and review and recommend to the Board for approval the proposals regarding the Say-on-Pay Vote and the frequency of the Say-on-Pay Vote to be included in the Company’s proxy statement filed with the SEC. |
14. | Prepare any report required by applicable rules and regulations or listing standards, including reports on executive compensation required by the SEC to be included in the Company’s annual proxy statement, or, if the Company does not file a proxy statement, in the Company’s Annual Report filed on Form 10-K with the SEC. |
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15. | Review and assess the adequacy of this Charter annually and recommend to the Board any changes deemed appropriate by the Committee. |
16. | Review its own performance annually. |
17. | Report regularly to the Board. |
18. | Perform any other activities consistent with this Charter, the Company’s by-laws and governing law, as the Committee or the Board deems necessary or appropriate. |
V. | Resources |
The Committee shall have the authority to retain or terminate, at its sole discretion, compensation consultants, independent legal counsel or other advisors (collectively, “Advisors”) to assist the Committee in its responsibilities and shall be directly responsible for the appointment, compensation and oversight of the work of such Advisors. Before retaining an Advisor (other than in-house legal counsel and any Advisor whose role is limited to consulting on broad-based, non-discriminatory plans or providing information that is not customized in particular for the Company (as described in Item 407(e)(3)(iii) of Regulation S-K), the Committee shall consider the independence of such Advisor, including any independence factors that it is required to consider by law or New York Stock Exchange rules.
The chairperson of the Committee, at the request of any member of the Committee, may request that any officer, employee or advisor of the Company attend a meeting of the Committee or otherwise respond to Committee requests.
The Committee shall have the sole authority to determine the terms of engagement and the extent of funding necessary (and to be provided by the Company) for payment of compensation to any Advisors or other professionals retained to advise the Committee and ordinary administrative expenses of the Committee that are necessary or appropriate in carrying out its duties.
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Exhibit 99.3
Haymaker Acquisition Corp. 4
NOMINATING AND CORPORATE GOVERNANCE COMMITTEE CHARTER
I. | Purpose |
The Nominating and Corporate Governance Committee (the “Committee”) of the Board of Directors of Haymaker Acquisition Corp. 4, a Cayman Islands exempted company (the “Company”), shall
(a) | identify, screen and review individuals qualified to serve as directors, consistent with criteria approved by the Company’s board of directions (the “Board”), and recommend to the Board, candidates for nomination for election at the annual meeting of shareholders or to fill vacancies on the board of directors; |
(b) | develop and recommend to the Board and oversee implementation of our corporate governance guidelines; |
(c) | coordinate and oversee the annual self-evaluation of the Board, its committees, individual directors and management in the governance of the company; and |
(d) | review on a regular basis our overall corporate governance and recommend improvements as and when necessary. |
II. | Organization |
The Committee shall consist of two or more directors, each of whom shall satisfy the applicable independence requirements of the Company’s corporate governance guidelines, the New York Stock Exchange and any other applicable regulatory requirements, subject to the phase-in periods permitted under the rules of the New York Stock Exchange under which the Committee is required to have only one independent member at the time of listing, a majority of independent members within 90 days of listing and all independent members within one year of listing.
Members of the Committee shall be appointed by the Board and may be removed by the Board at any time. The Committee’s chairperson shall be designated by the Board or, if not so designated, the members of the Committee shall elect a chairperson by a vote of the majority of the full Committee.
The Committee may form and delegate authority to subcommittees from time to time as it sees fit, provided that the subcommittees are composed entirely of directors who satisfy the applicable independence requirements of the Company’s corporate governance guidelines, the New York Stock Exchange and any other applicable regulatory requirements.
III. | Meetings |
The Committee shall meet as often as necessary to carry out its responsibilities but no less frequently than two times annually unless the Committee determines that fewer meetings are required in a particular year. Meetings shall be called by the chairperson of the Committee or, if there is no chairperson, by a majority of the members of the Committee. Meetings may be held telephonically or by other electronic means to the extent permitted by the Company’s organizational documents and applicable law. Committee actions may be taken by unanimous written consent.
IV. | Authority and Responsibilities |
To fulfill its responsibilities, the Committee shall:
1. | Develop and recommend to the Board for approval (as part of the Company’s corporate governance guidelines or otherwise) the criteria for Board membership, including as to director independence and diversity, and periodically review these qualifications with the Board. |
2. | Identify, screen and review individuals qualified to become members of the Board in a manner consistent with the criteria approved by the Board and recommend to the Board the director nominees for the next annual meeting of stockholders or to fill vacancies on the Board. As part of this process the Committee shall formally review each director’s continuation on the Board each time such director is nominated to serve on the Board. In identifying and reviewing the qualifications of candidates for membership on the Board, the Committee shall consider all factors which it deems appropriate, including the requirements of the Company’s corporate governance guidelines and any other criteria approved by the Board. |
3. | Develop and periodically assess the Company’s policies and procedures with respect to the consideration of director nominees submitted by stockholders of the Company and review the qualifications of such candidates pursuant to these policies and procedures. |
4. | At the request of the Board, review and make recommendations to the Board with respect to the size, composition and organization of the Board and committees of the Board. |
5. | At the request of the Board, review and make recommendations to the Board with respect to Board process, including the calendar, agenda and information requirements for meetings of the Board and its committees, executive sessions of non-management directors and executive sessions of independent directors. |
6. | Assist the Board in determining whether individual directors have material relationships with the Company that may interfere with their independence, as provided under the requirements of the Company’s corporate governance guidelines, the New York Stock Exchange or any other applicable regulatory requirements. |
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7. | Develop and recommend to the Board for approval a Chief Executive Officer (“CEO”) and executive officer succession plan (the “Succession Plan”), develop and recommend to the Board for approval an interim CEO succession plan in the event of an unexpected occurrence and, as the Committee deems appropriate, to review the Succession Plan from time to time with the CEO and any other executive officers and recommend to the Board for approval any changes to, or candidates for succession under, the Succession Plan. |
8. | Coordinate and oversee the annual evaluation of the Board, its committees, individual directors and management in the governance of the Company. |
9. | Develop, review and assess the adequacy of the Company’s corporate governance principles and guidelines annually, recommend to the Board any changes the Committee deems appropriate and oversee implementation of such guidelines. |
10. | Develop and maintain the Company’s orientation programs for new directors and continuing education programs for directors. |
11. | Review and discuss as appropriate with management the Company’s disclosures relating to director independence, governance and director nomination matters and, based on such review and discussion, determine whether to recommend to the Board that such disclosures be disclosed in the Company’s Annual Report on Form 10-K or annual proxy statement filed with the SEC, as applicable. |
12. | Review on a regular basis the Company’s overall corporate governance and recommend improvements as and when necessary. |
13. | Review and assess the adequacy of this Charter annually and recommend to the Board any changes deemed appropriate by the Committee. |
14. | Report regularly to the Board. |
15. | Perform any other activities consistent with this Charter, the Company’s by-laws and governing law, as the Committee or the Board deems appropriate. |
V. | Resources |
The Committee shall have the authority, at its sole discretion, to retain and terminate search firms to identify director candidates, consultants and any other advisors (the “Advisors”) to assist it in carrying out its duties. The chairperson of the Committee, at the request of any member of the Committee, may request any officer, employee or advisor of the Company to attend a meeting of the Committee or otherwise respond to Committee requests.
The Committee shall have the sole authority to determine the terms of engagement and the extent of funding necessary (and to be provided by the Company) for payment of compensation to any Advisor retained to advise the Committee and ordinary administrative expenses of the Committee that are necessary or appropriate in carrying out its duties.
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Exhibit 99.4
Consent to be Named as a Director Nominee
In connection with the filing by Haymaker Acquisition Corp. 4 of the Registration Statement on Form S-1 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named as a nominee to the board of directors of by Haymaker Acquisition Corp. 4 in the Registration Statement and any and all amendments and supplements thereto. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.
Dated: July 3, 2023 | |
/s/ Roger Meltzer | |
Roger Meltzer |
Exhibit 99.5
Consent to be Named as a Director Nominee
In connection with the filing by Haymaker Acquisition Corp. 4 of the Registration Statement on Form S-1 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named as a nominee to the board of directors of by Haymaker Acquisition Corp. 4 in the Registration Statement and any and all amendments and supplements thereto. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.
Dated: July 3, 2023 | |
/s/ Walter F. McLallen | |
Walter F. McLallen |
Exhibit 99.6
Consent to be Named as a Director Nominee
In connection with the filing by Haymaker Acquisition Corp. 4 of the Registration Statement on Form S-1 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named as a nominee to the board of directors of by Haymaker Acquisition Corp. 4 in the Registration Statement and any and all amendments and supplements thereto. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.
Dated: July 3, 2023 | |
/s/ Brian Shimko | |
Brian Shimko |
EX-FILINGFEES
Calculation of Filing Fee Tables
S-1
(Form Type)
Haymaker Acquisition Corp. 4
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward Securities
Security Type |
Security Class Title |
Fee Calculation or Carry Forward Rule |
Amount Registered |
Proposed Maximum Offering Price Per Unit |
Maximum Aggregate Offering Price |
Fee Rate |
Amount of Registration Fee |
Carry Forward Form Type |
Carry Forward File Number |
Carry Forward Initial effective date |
Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward | |
Newly Registered Securities | ||||||||||||
Fees to Be Paid |
||||||||||||
Equity | Units, each consisting of one Class A ordinary share, $0.0001 par value, and one-half of one redeemable warrant(2) | Rule 457(a) | 23,000,000 | $10.00 | $230,000,000 | $110.20 per $1,000,000 | $25,346 | |||||
Equity | Class A ordinary shares included as part of the units(3) | Rule 457(g) | 23,000,000 | — | — | $110.20 per $1,000,000 | (4) | |||||
Equity | Redeemable warrants included as part of the units(3) | Rule 457(g) | 11,500,000 | — | — | $110.20 per $1,000,000 | (4) | |||||
Equity | Class A ordinary shares underlying redeemable warrants included as part of the units(3) | Rule 457(g) | 11,500,000 | $11.50 | $132,250,000 | $110.20 per $1,000,000 | $14,574 | |||||
Fees Previously Paid |
||||||||||||
Carry Forward Securities | ||||||||||||
Carry Forward Securities |
||||||||||||
Total Offering Amounts | $362,250,000 | |||||||||||
Total Fees Previously Paid | ||||||||||||
Total Fee Offsets | ||||||||||||
Net Fee Due | $39,920 |
(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(a).
(2) Includes 3,000,000 units, consisting of 3,000,000 Class A ordinary shares and 1,500,000 redeemable warrants, which may be issued upon exercise of a 45-day option granted to the underwriters to cover over-allotments, if any.
(3) Pursuant to Rule 416, there are also being registered an indeterminable number of additional securities as may be issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
(4) No fee pursuant to Rule 457(g).