Exhibit
99.14
Execution
Version
Settlement
Agreement
THIS SETTLEMENT
AGREEMENT (this "Agreement") is entered into as of 14 June 2024 (the "Effective Date") by and between
the following parties:
| 1. | NATIXIS,
incorporated in France and the liability of its members is limited ("Natixis");
and |
| 2. | FOSUN
INTERNATIONAL LIMITED, a limited company incorporated and existing under the laws of
Hong Kong ("FIL" or "Buyer"). |
each of them a "Party",
and together the "Parties".
RECITALS
| A. | As
of the date of this Agreement, FIL and Natixis each respectively holds 60,171,565 and 7,919,466
Ordinary Shares (as defined below) of the Company (as defined below). |
| B. | FIL
and Natixis entered into a total return swap ("TRS") evidenced by an amended
and restated confirmation dated 4 November 2022 (the "2022 TRS Confirmation")
between FIL and Natixis referencing Shares of the Issuer. |
| C. | On
or around the date of this Agreement, pursuant to the 2022 TRS Confirmation, Natixis delivered
or will deliver an Optional Early Termination Notice to FIL, proposing to early terminate
a portion of the TRS and reduce the Equity Notional Amount of the TRS from EUR 60,000,000
(as of the date of the Optional Early Termination Notice) to EUR 20,000,000 after completion
of the proposed Optional Early Termination. FIL has agreed to such Optional Early Termination. |
| D. | Following
the Optional Early Termination Notice being validly delivered to FIL, Natixis will Dispose
of a portion of the Underlying Shares corresponding to the Termination Portion pursuant to
the provisions of the 2022 TRS Confirmation. For the purpose of such Disposal, Natixis agrees
to sell to Buyer (the "Share Sale"), and Buyer agrees to purchase from Natixis,
5,279,644 Shares (the "Sale Shares") at the Purchase Price (defined below),
subject to the terms and conditions hereof. |
| E. | The
Parties agree to settle (i) the sale and purchase of the Sale Shares, (ii) the
partial early termination of the TRS described in Paragraph C above and release of the relevant
credit cushion and (iii) the payment of the relevant the credit cushion under the Amended
TRS (as defined below) in accordance with the terms and conditions set out in this Agreement. |
Execution
Version
AGREEMENT
NOW, THEREFORE,
in consideration of the foregoing, the mutual covenants and agreements set forth herein and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1. DEFINITIONS
AND INTERPRETATION
| 1.1. | Definitions.
Capitalised terms not defined under this Agreement shall have the meaning given to them
in the 2022 TRS Confirmation. In addition to the capitalised terms defined in the context
or body of this Agreement, the following capitalised terms shall have the meaning ascribed
to them as follows, unless the contrary is expressly stated or the contrary clearly appears
from the context: |
"Action"
means any charge, claim, action, complaint, petition, investigation, appeal, suit, litigation, grievance, inquiry, prosecution, mediation,
arbitration or other proceeding, whether administrative, civil, regulatory or criminal, whether at law or in equity, or otherwise under
any applicable Law, and whether or not before any mediator, arbitrator or Governmental Entity;
"Affiliate"
means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with such
Person. Without limiting the foregoing, any other Person whose assets and financial results are consolidated with the assets and financial
results of such given Person for financial reporting purposes shall be deemed an Affiliate of such given Person. For purposes of this
Agreement, the Group Companies shall not be treated as Affiliates of the Natixis;
"Amended
TRS" means the TRS evidenced by an amended and restated confirmation in relation to the 2022 TRS Confirmation in the form attached
as Schedule 2 to this Agreement (the "2024 TRS Confirmation");
"Anti-Corruption
Laws" means, with respect to any person, the applicable anti bribery and corruption statutes of jurisdictions where such person
conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency in such jurisdictions including without limitation the Article 17 of the Act no. 2016-1691
dated 9 December 2016 on transparency, fight against corruption and modernisation of economy as well as the decree adopted for its
implementation, the United Kingdom Bribery Act 2010 and the United States Foreign Corrupt Practices Act 1977;
Execution
Version
"Anti-Money
Laundering Laws" means, with respect to any person, the applicable anti-money laundering statutes of jurisdictions where such
person conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency in such jurisdictions;
"Authorisation"
means any consent, registration, filing, agreement, notarisation, certificate, licence, approval, permit, authority or exemption from,
by or with, or report or notice to, any Governmental Entity or any other Person (including creditors, director and shareholders), whether
given by express action or deemed given by failure to act within any specified time periods;
"Business
Day" means any day other than a Saturday, a Sunday or any other day on which commercial banks are generally open for business
in Paris and Hong Kong;
"Buyer Group"
means Buyer and its Affiliates from time to time;
"Charter
Documents" means, with respect to a particular legal entity, the articles of incorporation, certificate of incorporation, constitution,
memorandum of association, articles of association, bylaws, articles of organisation, certificate of formation, limited liability company
agreement, operating agreement, or similar or other constitutive, governing, or charter documents of such Person;
"Closing"
means the completion of the Purchase of the Sale Shares by Buyer in accordance with Clause 3.1;
"Closing Date"
means the date on which Closing takes place;
"Collateral Shares" means Shares subject to the Security Agreement;
"Company"
means Lanvin Group Holdings Limited, an exempted company incorporated in the Cayman Islands with registered number 382280 and whose registered
office is at Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands;
"Contract"
means a contract, agreement, indenture, note, bond, loan, instrument, lease, mortgage, franchise, license, legally binding commitment,
purchase order, and other legally binding arrangement;
"Control"
means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through ownership of voting securities, by contract or otherwise;
Execution
Version
"Custody
Agreement" means the Custody Agreement by and between Natixis, FIL and THE BANK OF NEW YORK MELLON, LONDON BRANCH dated on or
around the date of this Agreement;
"Encumbrance"
means any pledge, mortgage, lien, charge (whether fixed or floating), hypothecation, security interest, beneficial ownership, adverse
claim, license, assignment, deed of trust (voting or otherwise), option, title retention, preemptive right, attachment, distraint or
encumbrance, including without limitation, any restriction on use, enjoyment, voting, alienation, disposal, gift, exchange, receipt of
income or exercise of any attributes of ownership;
"Exchange Act"
means the Securities and Exchange Act of 1934, as amended;
"Governmental
Entity" means any (i) nation, state, county, city, town, village, district or other jurisdiction of any nature; (ii) federal,
state, local, municipal, foreign or other government; (iii) governmental or quasi-Governmental Entity of any nature (including any
governmental agency, branch, board, commission, department, instrumentality, office or other entity, and any court or other tribunal);
(iv) multi-national organisation or body; and/or (v) government entity exercising, or entitled or purporting to exercise, any
administrative, executive, judicial, legislative, police, regulatory or taxing authority or other power of any nature (including but
not limited to stock exchanges);
"Government
Official" means (a) an officer, agent or employee of a government (or any agency, department or instrumentality thereof),
political party or public international organisation, (b) a candidate for government or political office, or (c) an agent,
officer, or employee of any entity owned by a government (other than government owned enterprise);
"Governmental
Order" means any applicable order, ruling, decision, verdict, decree, writ, subpoena, mandate, precept, command, directive,
consent, approval, award, judgment, injunction or other similar determination or finding by, before or under the supervision of any Governmental
Entity;
"Group Company"
means the Company or any of its subsidiaries;
"Issuer
Acknowledgment" means the Issuer Acknowledgment and Consent issued by Company and acknowledged by Natixis and FIL dated on or
around the date of this Agreement;
"Law"
means any applicable foreign, multinational, national, federal, state, local, municipal, or other law, statute, treaty, constitution,
ordinance, code, edict, rule, regulation, ruling, or requirement, whether temporary, preliminary or permanent, issued, enacted, adopted,
promulgated or implemented or otherwise put into effect by or under the authority of any Governmental Entity, including but not limited
to the Listing Rules;
Execution
Version
"Listing Rules"
means the New York Stock Exchange Listed Company Manual;
"Longstop Date"
means 14 days upon the Effective Date;
"Material Non-public Information"
means:
| (i) | any
information to which an investor would reasonably attach importance in reaching a decision
to buy, sell or hold any securities of the Company; or |
| (ii) | any
insider information which would be likely to have a significant effect on the price (including
value) of any securities of FIL or the Company and "insider information"
refers to any information of a precise nature about circumstances or events, which have not
been made public, referring to FIL or the Company or to any of their respective securities
and which, if it were made public, would be likely to have a significant effect on the stock
exchange or market price or value of any securities of FIL or the Company (as applicable)
such information which constitutes "inside information" (as defined in sections
245 and 285 of the Securities and Futures Ordinance (Cap. 571 of Hong Kong)); |
"Natixis
Group" means Natixis, its branches, subsidiaries, associates and Affiliates and its and their respective directors, members,
officers, employees, agents, and controlling persons;
"Ordinary
Shares" or "Shares" means the ordinary shares of the Company of a par value USD 0.000001 each;
"Person"
means an individual, general partnership, limited partnership, limited liability company, corporation, trust, estate, real estate investment
trust, association or any other entity;
"Relevant
Person" means, FIL and any of their Affiliates, as well as the respective officers, directors or employees of FIL and any of
their Affiliates;
"Restricted
Party" means any persons or entities that are the subject of Sanctions;
"Securities Act" means the U.S. Securities
Act of 1933, as amended.
"Security
Agreement" means the Security Agreement dated on or around the date of this Agreement whereby FIL creates security over certain
cash account and all cash therein and certain securities account and all securities therein in favour of Natixis;
Execution
Version
"Security
Ancillary Documents" means the Custody Agreement, the Transfer Agent Letter and Issuer Acknowledgement;
"Transfer
Agent Letter" means the Transfer Agent Letter from Natixis to and acknowledged by Continental Stock Transfer & Trust
Company as the transfer agent of the Shares dated on or around the date of this Agreement;
"Transaction
Documents" means this Agreement, the Optional Early Termination Notice, the Security Agreement, Security Ancillary Documents
and Stock Power and any other document, certificate, and agreement delivered in connection with the transactions contemplated hereby
and thereby; and
"Warranties"
means the warranties and representations given by FIL pursuant to this Agreement, and a "Warranty" means any one of
them.
1.2. Interpretation.
The following provisions shall have effect in the interpretation of
this Agreement:
| 1.2.1. | Any
reference herein to any Clause, Exhibit or Schedule is to such Clause, Exhibit or
Schedule in this Agreement unless the context otherwise requires. The Exhibits and Schedules
to this Agreement shall constitute an integral part of this Agreement. |
| 1.2.2. | The
index bold typeface, headings and titles herein are used for convenience of reference only
and shall not affect the construction of this Agreement. |
| 1.2.3. | Unless
the context otherwise requires, words importing the singular include the plural and vice
versa, and pronouns importing a gender include all other genders. |
| 1.2.4. | Reference
to any legislation or law or to any provision thereof shall include references to any such
legislation or law as it may, after the Effective Date, from time to time, be amended, supplemented
or re-enacted, and any reference to a statutory provision shall include any subordinate legislation
made from time to time under that provision. |
| 1.2.5. | The
terms "hereof", "herein", "hereby, "hereto" and derivative
or similar words refer to this entire Agreement or specified Clauses, Exhibits or Schedules
of this Agreement, as the case may be. |
Execution
Version
| 1.2.6. | Where
any obligation in this Agreement is expressed to be undertaken or assumed by any Party, that
obligation is to be construed as requiring the Party concerned to exercise, to the extent
possible, all rights and powers of control over the affairs of any other Person which it
is able to exercise (whether directly or indirectly) in order to secure performance of the
obligation. |
| 1.2.7. | Reference
to "Parties" means the parties to this Agreement and to a "Party" means
a party to this Agreement. |
| 1.2.8. | Where
a word or expression is defined herein, cognate words and expressions will, if capitalised,
be construed analogously. |
| 1.2.9. | Unless
the context otherwise requires, if any rights or obligations under this Agreement fall on
a date which happens not to be a Business Day, such rights and obligations shall instead
fall on the next succeeding Business Day after such date. All references to dates and time
are, unless the context requires otherwise, to Hong Kong time. |
| 1.2.10. | References
to "including" or "include" are made on a non-exclusive and without limitation
basis. |
| 1.2.11. | Any
reference to a number or price of Shares or Shares shall be appropriately adjusted to reflect
any share split, share consolidation, share dividend, share reclassification, reorganisation,
capitalisation issuance or similar transaction affecting the share capital of the Company. |
2. SALE
AND PURCHASE OF SALE SHARES
| 2.1. | Sale
and Purchase. Subject to the terms and conditions of this Agreement, Natixis agrees to
sell to Buyer, and Buyer agrees to purchase from Natixis, such number of Sale Shares as specified
in Clause 2.2 at the Purchase Price (as defined in Clause 2.2) (the "Purchase"). |
| 2.2. | Purchase
Price. The purchase price (the "Purchase Price") for Buyer to purchase
the number of Sale Shares from Natixis is specified below: |
| Purchase
Price |
Number
of Sale Shares |
| EUR40,000,000 |
5,279,644 |
2.3. Conditions
Precedent. The obligations of Natixis to sell the Sale Shares to Buyer is subject to the fulfilment of the following conditions on
terms that are satisfactory to Natixis or waived by Natixis in accordance with this Agreement by not later than 3 pm on the Longstop
Date:
Execution
Version
| 2.3.1. | each
of the Transaction Documents (excluding the Transfer Agent Letter) having been duly executed
and delivered by the parties thereto (other than Natixis); |
| 2.3.2. | the
Warranties remaining true, accurate and complete as of the Closing Date as though made on
such date; |
| 2.3.3. | the
transactions contemplated by the Transaction Documents remaining permitted by applicable
Laws and not in violation of applicable Laws, and no Person has instituted or threatened
any Action to restrain, prohibit or otherwise challenge any of the transactions contemplated
by the Transaction Documents or threatened to take any action as a result of or in anticipation
of the implementation of any of the transactions contemplated by the Transaction Documents; |
| 2.3.4. | Buyer
having performed and complied with all agreements, obligations and conditions contained in
this Agreement that are required or contemplated to be performed or complied with by it on
or before Closing; |
| 2.3.5. | all
Authorisations that are required to be obtained by FIL in connection with the consummation
of the transactions contemplated by this Agreement and the other Transaction Documents having
been duly obtained by FIL and effective as of Closing, and evidence thereof having been delivered
to Natixis; |
| 2.3.6. | FIL
having delivered a copy of the meeting minutes or board resolutions of its board of directors
in respect of the following matters (each certified as a true copy by a member of FIL's in-house
legal department or the board of directors): (i) the execution, delivery and performance
by FIL of the Transaction Documents to which it is a party and the transactions contemplated
by the Transaction Documents to which it is a party; (ii) authorisation of a specified
person or persons, on its behalf, to sign and dispatch the Transaction Documents to which
it is a party; (iii) purchase of the Sale Shares from Natixis, and (iv) create
security in favour of Natixis in accordance with the terms of the Security Agreement; |
| 2.3.7. | Buyer
having executed and delivered a closing certificate to Natixis, dated as of the Closing Date,
certifying the conditions specified in Clauses 2.3.1 to 2.3.6 above; and |
Execution
Version
| 2.3.8. | on
or prior to the Closing Date, Natixis has received, in form and substance satisfactory to
Natixis, a legal opinion, addressed to Natixis of English counsel, as to enforceability of
the Security Agreement. |
| 2.4. | Communication
with Governmental Entity. The Parties shall, to the extent permitted by applicable Law,
give Notice to each other of the receipt of any communication from any Governmental Entity
in connection with the Purchase within one (1) Business Day after becoming aware thereof,
shall, to the extent permitted by applicable Law, use their best endeavours to deal with
all requests and enquiries from such Governmental Entity in consultation with each other,
and upon being requested to do so by a Party, the other Parties shall, to the extent permitted
under applicable Law, promptly co-operate with and provide all necessary and reasonable information
and assistance to any Governmental Entity. |
| 2.5. | Non-satisfaction/Waiver.
FIL shall give a written Notice in accordance with Clause 6.1 to Natixis of the non-satisfaction
of any condition precedent in Clause 2.3. Natixis may, at any time, waive in whole or in
part any of the conditions set out in Clause 2.3 by written Notice to FIL. |
| 2.6. | If
the conditions set out in Clause 2.3 are not fulfilled by the Longstop Date or waived in
writing by Natixis in accordance with Clause 2.5 on or prior to the Longstop Date, Natixis
may, at its sole discretion, extend the Longstop Date or terminate this Agreement, save and
except this Clause 2.6, Clauses 4 (Fees and Expenses), 6.1 (Notices), 6.9 (Specific Performance),
6.12 (Confidentiality), 6.5 (Governing Law), 6.7 (Dispute Resolution) and 6.13 (No Rights
of Third Parties), which shall survive termination of this Agreement. |
| 2.7. | Conditions
Subsequent. FIL shall provide evidence to the satisfaction of Natixis that: |
| 2.7.1. | on
or before the date falling five days after the Closing Date, the Company's transfer agent
shall deliver a book entry account statement to the parties reflecting the direct registration
transfer of the Sale Shares on the Company's books and records, together with the Company's
customary restrictive legend to reflect the Buyer's status as an "Affiliate"; |
| 2.7.2. | on
or before the date falling one week after the Closing Date, the Transfer Agent Letter has
been duly executed and delivered by the parties thereto (other than Natixis); |
| 2.7.3. | on
or before the date falling one month after the Closing Date, FIL shall procure the Company
to complete delegending of the remaining 2,639,822 Ordinary Shares held by Natixis, including
to cause its counsel to issue a delegending opinion to its transfer agent; and |
Execution
Version
| 2.7.4. | on
or before the date falling six months after the Closing Date, FIL shall procure the Company
to complete delegending of the Collateral Shares held by Natixis, including to cause its
counsel to issue a delegending opinion to its transfer agent, assuming that the applicable
conditions to a resale under Rule 144 are satisfied. |
3. CLOSING
AND NET SETTLEMENT
| 3.1. | Date
and Place. Subject to the satisfaction of the conditions precedent set out in Clause
2.3 above (except for the conditions precedent waived by Natixis in accordance with Clause
2.5 above), at the closing of the sale and purchase of the Sale Shares, Natixis shall deliver
the Stock Power to Buyer evidencing the assignment in full of the Sale Shares to Buyer. In
accordance with Section 2(c) of the Issuer Acknowledgement, the Company shall take
all required actions to effect the direct registration of the Sale Shares on the books and
records of the Company with an instruction to reapply the restrictive legend appliable to
securities held by "Affiliates" (within the meaning of Rule 144). |
| 3.2. | Payment
and Net Settlement on Closing. By no later than the second Business Day immediately following
Closing, Buyer shall pay to Natixis the Net Settlement Amount as calculated below (the date
of such payment being the "Payment Date"). The Parties agree that: |
| 3.2.1. | any
amounts payable by FIL under the 2022 TRS Confirmation as calculated and notified by Natixis
(the "Outstanding Amounts") shall instead become due and payable on the
Payment Date by Buyer to Natixis; |
| 3.2.2. | the
Independent Credit Cushion and/or Reset Credit Cushion (if any) (each as defined in the 2022
TRS Confirmation), as calculated and notified by Natixis (such aggregate amount as the "Existing
Credit Cushion"), which shall be returned by Natixis to FIL in accordance with the
terms of the 2022 TRS Confirmation, shall instead become due and payable on the Payment Date
by Natixis to Buyer; and |
| 3.2.3. | (i) the
Independent Credit Cushion and/or (ii) the Reset Credit Cushion (if any) with respect
to the first Reset Credit Cushion Valuation Date immediately after the Closing (the "New
Credit Cushion") and (iii) the Structuring Fee (each as defined in the 2024
TRS Confirmation) (the "Structuring Fee") payable by FIL under the 2024
TRS Confirmation as calculated and notified by Natixis shall instead become due and payable
on the Payment Date by Buyer to Natixis. |
Execution
Version
Subject to the paragraph
below, the Parties agree that on or prior to the Payment Date, Buyer (or any third party designated by Buyer) shall pay Natixis a net
settlement amount (the "Net Settlement Amount") calculated as:
| (a) | the
Purchase Price; plus |
| (b) | the
Outstanding Amounts; plus |
| (c) | the
sum of the New Credit Cushion and the Structuring Fee; minus |
| (d) | the
Existing Credit Cushion, |
by wire transfer of immediately
available funds, to the bank account specified below:
| Beneficiary: |
Natixis
(Natixis Capital Market) |
| Beneficiary
Swift: |
NATXFRPPMAR |
| Account
Number: |
FR7630007000110001048019244 |
| Agent: |
Natixis |
| Agent
SWIFT: |
NATXFRPPXXX |
| Reference: |
SET
COSTUME |
The Parties further acknowledge
and agree that:
| (a) | if
calculation the Net Settlement Amount renders a number below zero, the Net Settlement Amount
shall be payable by Natixis to Buyer on the Payment Date; |
| (b) | legal
title of the Sale Shares will not be transferred from Natixis to Buyer until Natixis has
duly received the Net Settlement Amount in full; |
| (c) | upon
Natixis' execution of this Agreement, Natixis' obligation to return the Existing Credit Cushion
under the 2022 TRS Confirmation will be discharged promptly and in all respects; |
| (d) | upon
Natixis' receipt of the Net Settlement Amount, FIL's obligation to pay to Natixis (i) the
Outstanding Amounts under the 2022 TRS Confirmation and (ii) the New Credit Cushion
and Structuring Fee under the 2024 TRS Confirmation will be discharged promptly and in all
respects; and |
Execution
Version
| (e) | if
Buyer (or any third party designated by Buyer) fails to pay Natixis the Net Settlement Amount
in full, (x) Buyer shall indemnify FIL, upon demand, any and all loss, costs, claims,
liabilities and expenses on a full indemnity basis arising out of or in connection with the
Existing Credit Cushion, and (y) FIL shall, upon demand, indemnify and hold Natixis
harmless from, and reimburse as incurred, any and all loss, costs, claims, liabilities and
expenses (including legal fees and expenses) on a full indemnity basis arising out of or
in connection with this Agreement, the 2022 TRS Confirmation and/or the 2024 TRS Confirmation. |
| 3.3. | Amendment
and Restatement to the TRS. Natixis and FIL agree that upon Closing, 2022 TRS Confirmation
shall be amended and restated in the form as set out in Schedule 2 to this Agreement, provided
that Natixis has duly received the Net Settlement Amount when due in accordance with Clause
3.2 above. |
| 3.4. | Breach
of Closing Obligations by FIL. If FIL fails to comply with any obligation with respect
to the Closing (including but not limited to the payment obligation under Clause 3.2 above),
Natixis shall be entitled (in addition to and without prejudice to their rights and remedies
available, including the right to claim damages) by written Notice to FIL: |
| 3.4.1. | to
fix a new date for the Closing (not being more than twenty (20) Business Days after the originally
agreed date for Closing) in which case the provisions of Clauses 2 and 3 shall apply to such
Closing as so deferred, but provided such deferral may only occur once; or |
| 3.4.2. | to
terminate this Agreement. |
4. FEES
AND EXPENSES
FIL
shall bear all the costs and expenses (including all direct costs and expenses incurred by the members, partners or employees) incurred
by the Parties in connection with the transactions contemplated by the Transaction Documents.
5. REPRESENTATIONS
AND WARRANTIES
5.1. Representations
and Warranties by Buyer
As of the date hereof,
Buyer represents and warrants to Natixis on the date hereof:
Execution
Version
| 5.1.1. | the
statements set out in Schedule 1 are true and accurate and not misleading as of the date
of this Agreement; |
| 5.1.2. | it
acknowledges that Natixis has entered into this Agreement in reliance upon the Warranties
and undertakings made by Buyer (including in connection with compliance with applicable securities
laws). Buyer agrees to notify Natixis promptly in writing if any of its agreements or acknowledgements,
representations or warranties, or undertakings herein cease to be accurate or complete. Buyer
irrevocably consents to the production of, and authorise the Natixis Group to produce, the
Transaction Documents to any interested party in any potential or actual dispute or any administrative,
regulatory, arbitration or legal proceeding, investigation or official enquiry with respect
to the matters set forth herein or pursuant to any requirement of law, regulation or any
judicial, administrative, governmental, regulatory or self-regulatory authority or body (including
securities exchange); |
| 5.1.3. | each
of the Warranties shall be separate and independent and shall not be limited by reference
to other paragraph or anything in this Agreement; |
| 5.1.4. | neither
Buyer, nor to its knowledge any of its Affiliates (nor to its knowledge any director, officer,
employee, affiliate, agent or representative of it or any of its Affiliates) is a person
that is, or is 50% (or more) owned or controlled by a person that is: |
| (i) | the
subject of any economic or financial sanctions or trade embargoes implemented, administered
or enforced by the U.S. Department of the Treasury's Office of Foreign Assets Control, the
U.S. Departments of State or Commerce or any other US government authority (including all
sanctions administered by OFAC, and its "Specially Designated Nationals and Blocked
Persons" lists), the United Nations Security Council, the European Union, Her Majesty's
Treasury, the Department for Business, Innovation and Skills or any other UK government
authority, the PRC, Hong Kong, or any other relevant sanctions Governmental Entity ("Sanctions
Authority") (collectively, "Sanctions"); |
| (ii) | located,
organised or resident in a country or territory that as a whole is the subject of Sanctions
(as of the date of this Agreement, comprising Crimea, Cuba, Iran, North Korea and Syria,
but subject to such changes as take place over time) ("Sanctioned Country");
or |
Execution
Version
| |
(iii) |
is engaged in any activity that could result in a violation of existing applicable Sanctions
administered by a Sanctions Authority by Buyer ("Sanctionable Activity"); |
| 5.1.5. | Buyer
is not and has never been subject to any claim, proceeding, formal notice or investigation
with respect to Sanctions. Buyer shall not (and shall ensure that no other member of the
Buyer Group will) engage in any Sanctionable Activity or knowingly violate applicable Sanctions.
To the extent Buyer engages in any business involving Restricted Parties or Sanctioned Countries,
it shall do so without any involvement, directly or indirectly, of Natixis or the transactions
contemplated by this Agreement and shall maintain policies and procedures designed to prevent
such business from violating applicable Sanctions; |
| 5.1.6. | Buyer
is not engaging nor has it engaged in any transaction that evades or avoids, or has the purpose
of evading or avoiding, or breaches or attempts to breach, directly or indirectly, any Sanctions
applicable to it. Buyer shall ensure that no Restricted Party will have any property interest
in any funds repaid or remitted by Buyer in connection with this Agreement or any other Transaction
Document. Buyer shall not (and shall ensure that no other member of Buyer Group will), fund
all or part of any payment under or in connection with the transactions under this Agreement
or any other Transaction Document out of proceeds derived from business or transactions with
a Restricted Party or from any activity which is in breach of any applicable Sanctions; |
| 5.1.7. | Buyer
shall supply to Natixis details of any claim, action, suit, proceedings or investigation
against it with respect to Sanctions by any Sanctions Authority (on becoming aware of them,
and to the extent permitted by law); |
| 5.1.8. | Buyer
shall provide written notice of any business or transaction undertaken by Buyer, or any member
of Buyer Group, involving (directly or indirectly) any Sanctioned Countries, or that otherwise
involves a Restricted Party, in breach of applicable Sanction, to the extent practicable
in advance of, and in any event promptly upon, Buyer, or the relevant member of Buyer Group,
commencing such business or transaction, together with sufficient details of such business
or transaction as Natixis may require to satisfy any Sanctions-related laws, regulations
or requirements to which Natixis is subject; |
Execution
Version
| 5.1.9. | none
of the Relevant Persons is in possession of any Material Non-public Information in relation
to the Company or the Shares; |
| 5.1.10. | each
Relevant Person shall make such timely notifications and seek such approvals as required
in connection with this Agreement by or from applicable regulatory authorities or stock exchanges,
as the case may be. Buyer will procure each Relevant Person to comply with this Clause; |
| 5.1.11. | neither
Buyer nor (to Buyer's knowledge) any Relevant Person is, or at any time up until immediately
after the termination of this Agreement will be, engaged in insider dealing, false trading,
price rigging, stock market manipulation or similar conduct that is unlawful or improper
pursuant to any applicable laws or regulations; |
| 5.1.12. | neither
Buyer nor (to Buyer's knowledge) any Relevant Person knows of, or plans to announce, any
transaction or matter which might have a significant effect on, or be likely materially to
affect, the price of securities of FIL or the Company that has not been disclosed to Natixis
or otherwise become public information; |
| 5.1.13. | neither
Buyer nor (to Buyer's knowledge) any Relevant Person has taken any action in connection with
this Agreement, with the express intention of affecting the price of securities of FIL or
the Company (including having an intention to raise, depress, peg or stabilise the price
of such securities) or of creating a false or misleading appearance of active trading in
securities of FIL or the Company; and Buyer has procured that each Relevant Person to comply
with this Clause; |
| 5.1.14. | Buyer
and (to Buyer's knowledge) each Relevant Person have and will at all times fully comply with
all applicable laws, rules and regulations in each jurisdiction with regard to this
Agreement, including without limitation, those obligations arising with regard to disclosure
and reporting under the Exchange Act. Buyer will procure each Relevant Person to comply with
this Clause; |
| 5.1.15. | in
the course of negotiating the Transaction Documents, other than information about the Transaction
Documents themselves, neither Buyer nor any Relevant Person has given Natixis any relevant
information which, as determined by Buyer is price sensitive information in relation to FIL
or the Company; |
Execution
Version
| 5.1.16. | except
for the Transaction Documents and the transactions contemplated thereby, neither Buyer nor,
to Buyer's knowledge, any Relevant Person is in possession of any information relating to
FIL, the Company, or their respective businesses or securities that is required to be disclosed
and has not yet been disclosed by FIL or the Company (as applicable) under the applicable
laws, regulations and rules; |
| 5.1.17. | neither
Buyer, nor to the knowledge of Buyer, any of its subsidiaries, affiliates, any directors,
officers, employees or agents have violated any applicable Anti-Corruption Laws or will take
any action that would constitute a violation, or implicate Natixis in violation of any applicable
Anti-Corruption Laws. Buyer has not made, directly or indirectly, any payment, loan or gift
of any money or anything of value to, or for the use of, any Government Official, or any
other person in violation of any Anti-Corruption Laws; |
| 5.1.18. | Buyer
is not a Governmental Entity or an instrumentality of a government; |
| 5.1.19. | to
the knowledge of Buyer, none of Buyer's shareholders, officers, directors or agents is currently
a Government Official; |
| 5.1.20. | Buyer
has reasonable controls in place and, to its knowledge, will continue to ensure and maintain
such controls to provide reasonable assurances that violations of applicable Anti-Corruption
Laws will be prevented, detected and deterred; and |
| 5.1.21. | the
operations of Buyer do not violate any applicable Anti-Money Laundering Laws. |
| 5.2. | Buyer
further warrants and represents to Natixis that the Warranties will be true and accurate
and not misleading at Closing as if they had been repeated at Closing. |
5.3. Notification.
If after the signing of this Agreement and before Closing:
| 5.3.1. | Buyer
shall become aware that any of the Warranties was untrue, inaccurate or misleading as of
the signing of this Agreement; or |
| 5.3.2. | any
event shall occur or matter shall arise of which Buyer becomes aware which would reasonably
be expected to result in any of the Warranties becoming untrue, inaccurate or misleading
at Closing, had the Warranties been repeated at Closing, |
Buyer shall notify Natixis in writing
as soon as reasonably practicable and in any event prior to Closing setting out full details
of the matter and Buyer (as applicable) shall make any investigation concerning the event
or matter and take such action, at its own cost, as Natixis may reasonably require.
Execution
Version
| 5.4. | Effect
of Closing. The Warranties and all other provisions of this Agreement, to the extent
that they have not been performed by Closing with respect to the Purchase, shall not be extinguished
or affected by Closing or by any other event or matter (including any satisfaction and/or
waiver of conditions precedent contained in Clause 2.3), except by a specific and duly authorised
written waiver or release by Natixis. |
5.5. Representations
and Warranties of Natixis and FIL
Natixis
and FIL each represents, warrants and covenants that each of the following statements is true and accurate and not misleading as of the
date of this Agreement and will be true and accurate and not misleading at Closing:
| 5.5.1. | it
is duly organised, validly existing and in good standing under the Laws of the place of its
incorporation or establishment; |
| 5.5.2. | all
corporate action necessary on its part has been taken for the authorisation, execution and
delivery by it of this Agreement and the performance of its obligations hereunder. This Agreement
has been duly executed and delivered by it and, assuming due authorisation, execution and
delivery by the other parties hereto, constitutes the valid, legal and binding obligation
of it, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganisation, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles; and |
| 5.5.3. | the
execution, delivery and performance of this Agreement by it does not, and the consummation
and effectiveness of the transactions contemplated hereunder will not, constitute or result
in (a) a breach or violation of, or a default under, its Charter Documents or (b) with
or without notice, lapse of time or both, a breach or violation of, a termination (or right
of termination) or default under, the creation or acceleration of any obligations under or
the creation of any lien on any of its assets pursuant to any contract binding upon it or
under any Law to which it is subject, except, in the case of item (b) above, for any
such breach, violation, termination, default, creation or acceleration that would not, individually
or in the aggregate, reasonably be likely to prevent, materially delay or materially impair
the execution, delivery and performance of this Agreement and the consummation and effectiveness
of the transactions contemplated hereunder. |
Execution
Version
| 5.5.4. | The
Shares in the Share Sale and Security Agreement are "restricted securities", as
that term is used in Rule 144(a)(3) under the Securities Act. |
| 5.5.5. | Natixis,
with respect to the Share Sale, acquired and fully paid for the Shares subject to the Share
Sale more than one year ago from the date hereof. With respect to the Security Agreement,
FIL acquired and fully paid for |
| (i) |
3,000,000
Collateral Shares, the holding period of which commences on 2 February 2024; |
| (ii) |
5,279,644
Collateral Shares from Natixis under the Share Sale, the holding period of which commences
on Closing; and |
| (iii) |
3,437,656
Collateral Shares from Fosun Fashion Group (Cayman) Limited, the holding period of which
commences on 6 June 2024. |
| 5.5.6. | Natixis
is not now, and has not been during the preceding three months, an officer, trustee or more
than 10% shareholder of the Company or in any other way an "affiliate" of the Company
(as that term is defined in Rule 144(a)(1) under the Securities Act), and covenants
that it will not dispose of the Sale Shares at any time that it is, or has been during the
three months preceding any such proposed disposal, an affiliate of the Company within the
meaning of Rule 144 under the Securities Act. |
| 5.5.7. | FIL
is an "affiliate" of the Company (as that term is defined in Rule 144(a)(1) under
the Securities Act). |
| 5.5.8. | FIL
represents and warrants that its potential liability under the Amended TRS is recourse not
only to the Collateral Shares but to FIL in a personal capacity. |
| 5.5.9. | The
Company has been subject to the requirements of Section 12(b) of the Exchange for
more than 90 days and is not, and has not been in the last 12 months, a shell company as
described in Rule 144(i)(1). |
| 5.5.10. | As
of the date hereof, neither Natixis with respect to the Share Sale nor FIL with respect to
the Security Agreement is in possession of any Material Non-public Information in relation
to the Company or the Shares and FIL shall not provide Natixis with Material Non-Public Information
during the term of the Amended TRS. |
Execution
Version
| 5.5.11. | FIL
represent and warrant, to their knowledge and in reliance on Section 1 of the Issuer
Acknowledgment that the Security Agreement does not violate (x) any organizational documents
of the Company, (y) any contract to which the Company is a party (including that there
is no lock-up, pooling agreement or other contractual restriction on transfer, nor to any
pledge, lien, mortgage, hypothecation, security interest, charge, option or other encumbrance),
or (z) any provision of any trading or corporate policy applicable to the and there
are no restrictions applicable to the transfer, pledge or disposition of the Collateral Shares,
other than transfer restrictions on the Collateral Shares arising solely from the fact that
FIL is an "affiliate" of the Company, within the meaning of Rule 144 ("Rule 144")
under the Securities Act of 1933 ("Securities Act"). |
| 5.5.12. | The
Collateral Shares represent less than 10% of the Company's outstanding voting shares. |
| 5.5.13. | Each
of Natixis and FIL have their jurisdiction of incorporation and organization and principal
place of business outside of the United States. |
| 5.5.14. | FIL
has and will at all times fully comply with all applicable laws, rules and regulations
in each jurisdiction with regard to this Agreement, including without limitation, those obligations
arising with regard to disclosure and reporting under the Exchange Act. |
| 5.5.15. | FIL
will procure that the Company shall be current in its filings as required by US securities
Law after six months upon effective date of the Security Agreement. |
6. MISCELLANEOUS
| 6.1. | Notices.
All notices, demands and other communications (collectively the "Notices")
which may or are required to be given or made by any Party to another in connection with
this Agreement shall be in writing (including facsimile) and shall be: |
| (B) | sent
by documented overnight delivery service; |
| (D) | sent
by facsimile transmission. |
Execution
Version
Such
Notice shall be deemed to have been duly given (1) on the date of delivery if delivered personally; (2) on the Business Day
after dispatch by documented overnight delivery service; (3) on the Business Day after the delivering Party's receipt of electronic
confirmation of receipt if sent by e-mail; and (4) on the date of facsimile transmission provided that confirmation of a successful
transmission is received by the sending Party.
In
any case, Notices shall be addressed to the respective Parties as set forth below:
Natixis
| Attn: |
SECM
MO |
| Address: |
Level
72, International Commerce Centre
1 Austin Road West, Kowloon, Hong Kong |
| Facsimile: |
N/A |
| Email: |
set.moasia@natixis.com |
FIL
| Attn: |
Kenneth
Yeung / Max Liu / Paul Szeto |
| Address: |
Room
808, ICBC Tower, 3 Garden Road, Hong Kong |
| Facsimile: |
N/A |
| Email: |
kenneth.yeung@fosun.com/ maxliu@fosun.com /
paulszeto@fosun.com / hkbank@fosun.com |
| 6.2. | Succession
and Assignment. Except as otherwise provided herein, this Agreement and the rights
and obligations of the Parties hereunder shall inure to the benefit of, and be binding upon,
their respective successors, assigns and legal representatives, but shall not otherwise be
for the benefit of any third party. This Agreement and the rights and obligations of each
other Party hereunder shall not otherwise be assigned or transferred without the mutual written
consent of the other Parties except as expressly provided herein. |
| 6.3. | Amendments
and Waiver. Any provision in this Agreement may be amended and the observance thereof
may be waived (either generally or in a particular instance and either retroactively or prospectively),
only by the written consent of each Party. Notwithstanding the foregoing, any Party hereunder
may waive any of its rights hereunder without obtaining the consent of any Parties. |
Execution
Version
| 6.4. | Entire
Agreement. This Agreement constitutes the entire agreement and understanding between
the Parties relating to the subject matter hereof and thereof and supersedes all prior representations,
endorsements, premises, agreements, memoranda, communications, negotiations, discussions,
understandings, and arrangements, whether oral, written or inferred, among the Parties relating
to the subject matter hereof. |
| 6.5. | Governing
Law. This Agreement shall be governed by and construed in all respects in accordance
with English law, without reference to conflict of laws principles or their equivalent under
the law of any jurisdiction. |
| 6.6. | Counterparts.
This Agreement may be executed in any number of counterparts, including by facsimile
or PDF signature page, and each such counterpart will be deemed an original Agreement for
all purposes; provided that no Party will be bound to this Agreement unless and until Natixis
has executed a counterpart. For purposes of assembling all counterparts into one document,
each Party is authorised to detach the signature page from one or more counterparts
and, after signature thereof by the respective Party, attach each signed signature page to
a counterpart. |
| 6.7.1. | Any
dispute, claim, difference or controversy arising out of, relating to or having any connection with this Agreement, including any dispute
as to its existence, validity, interpretation, performance, breach or termination or the consequences of its nullity and any dispute
relating to any non-contractual obligations arising out of or in connection with it (a "Dispute"), shall be referred
to and finally resolved by arbitration. |
| 6.7.2. | The
arbitration shall be conducted in accordance with the Hong Kong International Arbitration
Centre Administrated Arbitration Rules (the "Rules"). Capitalised terms
used in this Section which are not otherwise defined in this Agreement have the meaning
given to them in the Rules. |
| 6.7.3. | The
arbitral tribunal shall consist of three arbitrators. The members of the arbitral tribunal shall be appointed in accordance with the
Rules. |
| 6.7.4. | The
seat, or legal place of arbitration, shall be Hong Kong. |
| 6.7.5. | The
language used in the arbitral proceedings shall be English. |
Execution
Version
| 6.7.6. | When
any Dispute occurs and is under arbitration, except for the matters in dispute, the parties hereto shall continue to fulfill their respective
obligations and shall be entitled to exercise their rights under this Agreement. The Parties agree that, without prejudice to their respective
rights and remedies in respect of a Dispute, they shall each take such actions as may be necessary to ensure that the non-resolution
of such Dispute does not cause FIL or Natixis to breach its statutory or contractual obligations, pending its resolution. |
| 6.7.7. | The
award of the arbitration tribunal shall be final and binding upon the parties thereto, and the prevailing party may apply to a court
of competent jurisdiction for enforcement of such award. |
| 6.7.8. | Any
Party shall be entitled to seek preliminary injunctive relief from any court of competent jurisdiction prior to the constitution of the
arbitral tribunal. |
6.8. Announcements.
| 6.8.1. | No
Party shall, without the prior agreement of the other Parties, make any announcement, communication or circular (except to their respective
professional advisers) on information regarding the existence or subject matter of this Agreement, or any other agreement or transaction
referred to in, or executed in connection with, this Agreement. Each Party agrees that it shall not, and shall not permit any of its
related corporations to, make any public announcement in connection with the existence or the subject matter of this Agreement, or any
other agreement or transaction referred to in, or executed in connection with, this Agreement, whether in the form of press release or
otherwise, without first consulting with and obtaining the written consent of the other Parties. Nothing in this Clause 6.8.1 shall prevent
any Party from complying with any obligations imposed on it or them by any statute or any stock exchange or regulatory authority having
jurisdiction over such Party or its related corporations, but the Party which has an obligation to make an announcement, communication
or issue a circular shall consult with the other Parties insofar as is reasonably practicable before complying with such obligation. |
| 6.8.2. | Notwithstanding
the terms of Clause 6.8.1 above, no announcement or circular relating to the Transaction
Documents or the transactions contemplated by the Transaction Documents shall in any circumstances
disclose or refer in any way to Natixis, Natixis's role as a Party to the Transaction Documents
or its involvement in the transactions contemplated by the Transaction Documents (including,
without limitation, sale by Natixis of the Sale Shares), unless such disclosure is required
by law or any regulatory body or the rules of any relevant stock exchange. Specifically,
Natixis' shareholding in the Company may not be announced or disclosed as an equity investment
in the Company by Natixis; it may only be announced or disclosed as a financing transaction
to FIL, provided that such announcement or disclosure is allowed under this Agreement. |
Execution
Version
| 6.8.3. | Notwithstanding
the terms of Clause 6.8.1 above, if Natixis is required to make an announcement or disclosure
in relation to the Transaction Documents or the transactions contemplated by the Transaction
Documents for the purpose of reacting to any market rumour or leakage by any third party
in respect of its investment in the Company or by applicable Laws or listing rules of
any relevant stock exchange (the terms of which such announcement or disclosure may include,
without limitation, that Natixis is not acting as a traditional private equity investor in
relation to the Transaction Documents and the transactions contemplated thereby and that
the purpose of such transactions is to provide financing only), such announcement or disclosure
shall not be subject to the requirements set forth in Clause 6.8.1. |
6.9. Specific
Performance. Each and all of the various rights, powers and remedies of a Party hereto will be considered to be cumulative with and
in addition to any other rights, powers and remedies which such Party may have at Law or in equity in the event of the breach of any
of the terms of this Agreement. The exercise or partial exercise of any right, power or remedy will neither constitute the exclusive
election thereof nor the waiver of any other right, power or remedy available to such Party. Without limiting the foregoing, the Parties
hereto acknowledge and agree irreparable harm may occur for which money damages would not be an adequate remedy in the event that any
of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly
agreed that the Parties shall be entitled to injunction to prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement.
6.10.
Further Assurance. Each of Natixis and FIL shall execute and deliver such instruments, documents and other papers, give such written
assurances and written consents, and do, or cause to be done, all things otherwise reasonably necessary, proper or advisable under applicable
Law, and otherwise reasonably cooperate with each other, in each case as may be required or reasonably requested by the other Party in
order to cause, evidence, reflect, consummate and make effective any and all of the matters contemplated by this Agreement, provided
that, for purposes of clarification, none of the foregoing shall require a Party to waive any right, term or condition under this Agreement.
Execution
Version
6.11.
Severance. If any provision of this Agreement or part thereof is rendered void,
illegal or unenforceable by any legislation to which it is subject, it shall be rendered void, illegal or unenforceable to that extent
and it shall in no way affect or prejudice the enforceability of the remainder of such provision or the other provisions of this Agreement.
6.12.
Confidentiality. The existence or terms of this Agreement, or any other agreement
or transaction referred to in, or executed in connection with, this Agreement, all communications between the Parties and all information
and other material supplied to or received by any of them from any one or more of the others which is either marked "confidential"
or is by its nature intended to be exclusively for the knowledge of the recipient alone, or to be used by the recipient only for the
benefit of the Parties, any information concerning the business transactions, financial arrangements or technical know-how of any of
the Parties, or of any person with whom any of them is in a confidential relationship with regard to the matter in question coming to
the knowledge of the recipient (the "Confidential Information") shall be kept confidential by the recipient unless and
to the extent that:
| (A) | disclosure
is required by any governmental or regulatory authority or stock exchange having jurisdiction
over such Party or person in order to comply with any official directive or guideline, whether
or not having the force of law; |
| (B) | disclosure
is made in confidence to professional consultants of such Party or an Affiliate of such Party
or any other person, provided that such disclosure is made in confidence or in a confidential
offering memorandum and that each such person to whom such disclosure is made has given an
undertaking on the same terms as this Clause 6.12; |
| (C) | disclosure
or use is required for the purpose of any judicial, arbitration or other similar proceedings
arising out of this Agreement, the disclosure is reasonably required to be made to a tax
authority in connection with the taxation affairs of the receiving Party or the disclosure
is reasonably required for the purpose of preparing any statutory accounts of the receiving
Party; or |
Execution
Version
| |
(D) |
the disclosing Party has given prior written
approval to the disclosure or use, |
provided that prior to disclosure or use of any
information pursuant to Clause 6.12 (C) (except in the case of disclosure to a tax authority and to the extent permitted by applicable
Law), the receiving Party shall give reasonable prior written Notice to the disclosing Party (including a copy of any relevant written
request which may exist) and the information is disclosed in a manner that is designed to preserve its confidential nature to the extent
permitted by applicable Law. If on the receipt of such a Notice, a Party wishes to take action to oppose or limit such potential disclosure
or seek a protective order in respect of the information required to be disclosed, it may do so at its own cost and the receiving Party
shall provide it with any reasonable assistance required. For this purpose, "receiving Party" means the Party in receipt of
the Confidential Information and "disclosing Party" means the Party who discloses the Confidential Information.
For
the purpose of this Agreement, Confidential Information does not include any document, material or other information that:
| (i) | was
lawfully in the possession of the receiving Party prior to its disclosure by the disclosing
Party and had not been obtained from the disclosing Party; |
| (ii) | is
or becomes available to the receiving Party other than as a result of a disclosure by a person
known by the receiving Party to be bound by an obligation of secrecy to the disclosing Party; |
| (iii) | is
independently developed by the receiving Party without reference to the Confidential Information;
or |
| (iv) | can
be demonstrated by the disclosing Party or person to be in the public domain through no breach
or default on the part of such Party, and to the extent that it is in the public domain the
confidentiality obligations in this Clause 6.12 shall cease to apply to such Confidential
Information. |
6.13.
No Rights of Third Parties. The terms and conditions of this Agreement are intended
for the benefit of the Parties and are not intended to confer third party beneficiary rights upon any other person nor may any provision
of this Agreement be enforced by any other person. A person who is not a party to this Agreement has no right under the Contracts (Rights
of Third Parties) Act, Chapter 53B of Singapore to enforce any term of, or enjoy any benefit under this Agreement.
[Remainder of page intentionally
left blank]
IN WITNESS
WHEREOF, the Parties hereto have caused their respective duly authorised representatives to execute this Agreement as of the date
and year first above written.
For and on
behalf of
Natixis
| By: |
/s/
Stephan Verhelst |
|
| |
|
|
| Name: |
Stephan Verhelst |
|
| |
|
|
| Title: |
Managing Director |
|
| By: |
/s/ Cathy Lam |
|
| |
|
|
| Name: |
Cathy Lam |
|
| |
|
|
| Title: |
Vice President |
|
Settlement
Agreement Signature Page
IN WITNESS WHEREOF, the
Parties hereto have caused their respective duly authorised representatives to execute this Agreement as of the date and year first above
written.
For and on behalf of
FOSUN INTERNATIONAL LIMITED
| By: |
/s/ LI Yuanquan |
|
| |
|
|
| Name: |
LI Yuanquan |
|
| |
|
|
| Title: |
Co-CFO |
|
Settlement
Agreement Signature Page
Schedule
1 Warranties
| 1 | Due
Organization and Power: Buyer is duly incorporated, validly existing and in good standing
under the Laws of Hong Kong. Buyer (i) has all requisite power and authority to own
its properties and assets and to carry on its business as it is now being conducted and (ii) is
in good standing and is duly qualified to transact business in each jurisdiction in which
it is required to be so qualified. |
| 2 | Capacity:
Buyer has the legal right and capacity and full power and authority to enter into and perform
this Agreement, each other Transaction Document and any other documents to be executed by
it pursuant to or in connection with this Agreement or any other Transaction Document, which
when executed will constitute valid and binding obligations on and will be enforceable against
such Party in accordance with their respective terms. |
| 3 | Authority:
Buyer has taken all necessary corporate actions to authorise the execution, delivery and
performance of each Transaction Document to which it is a party, and such actions remain
in full force and effect. The representative of Buyer who has signed such Transaction Document
has the full power and authority to do so on behalf of Buyer. |
| 4 | Approvals
and Consents: All Authorisations necessary for each of Buyer and the Group Companies
to enter into each Transaction Document to which it is a party and to perform its obligations
thereunder and, in the case of the Transaction Documents, for Natixis to enforce such obligations,
have been duly obtained or effected or will be obtained or effected by Closing. |
| 5 | Enforceability:
Each Transaction Document to which Buyer or a Group Company is a party will, when executed,
constitute valid and binding obligations on such Person, in accordance with their respective
terms subject to applicable Laws and rights on insolvency generally. |
| 6 | No
Breach: The execution and delivery of, and the performance by Buyer or any of the Group
Companies of its obligations under each Transaction Document to which it is a party will
not and are not likely to: (a) result in a breach of the Charter Documents of such Person,
(b) result in a breach of, constitute a default or require any Authorisation under or
give any Person a right to terminate, accelerate, cancel or modify, any Governmental Order
or any Contract, (c) result in any termination, modification, cancellation or suspension
of any material right of, or any augmentation or acceleration of any material obligation
of such Person or (d) result in the creation or enforcement of any Encumbrance under
any Contract, licence or other instrument, or (e) result in a breach of any applicable
Laws. |
| 7 | No
Litigation: There is no action, suit, proceeding,
claim, arbitration or investigation pending (or, to the knowledge of Buyer currently threatened),
as of the date of this Agreement, against Buyer or its properties or assets or, to the knowledge
of Buyer, as applicable, against any officer, director or employee of Buyer in connection
with such officer's, director's or employee's actions taken on behalf of Buyer, as applicable. |
Schedule
2 Amended and Restated Confirmation
EXECUTION
VERSION
| To: | FOSUN
INTERNATIONAL LIMITED
(“Party B”) |
Room 808, ICBC Tower,
3 Garden
Road, Central, Hong Kong
| |
From: |
NATIXIS (“Party A”)
|
| |
|
7, promenade Germaine Sablon |
| |
|
Paris 75013 Paris |
| |
|
France |
Date: ___________ 2024
Ref.: SET
Costume
Dear Sirs
The
purpose of this amended and restated confirmation (this “Confirmation”) is to amend and restate the confirmation entered
into between Party A and Party B on 16 September 2019, as amended and restated on 30 December 2021 and 4 November 2022
(the "Original Confirmation") and to confirm the terms and conditions of Transaction (the “Transaction”)
entered into between us on the Trade Date specified below. This Confirmation constitutes a “Confirmation” as referred to
in the ISDA Master Agreement specified below.
With
effect from (and including) the Amendment Effective Date 2, the Original Confirmation shall be amended and restated in its entirety on
the terms set forth herein.
The
definitions and provisions contained in the 2006 ISDA Definitions (the “2006 Definitions”) and the 2002 ISDA Equity
Derivatives Definitions (the “Equity Definitions”, and together with the 2006 Definitions, the “Definitions”),
in each case as published by the International Swaps and Derivatives Association, Inc. (ISDA), are incorporated into this Confirmation.
In the event of any inconsistency between the 2006 Definitions and the Equity Definitions, the Equity Definitions will govern. In the
event of any inconsistency between the Definitions and this Confirmation, this Confirmation will govern.
This
Confirmation supplements, forms a part of, and is subject to, the ISDA Master Agreement dated as of 12 September 2017, as amended
and supplemented from time to time (the “Agreement”), between Party A and Party B. All provisions contained in the
Agreement govern this Confirmation except as expressly modified below. In the event of any inconsistency between the Agreement and this
Confirmation, this Confirmation will govern.
The
parties agree that, notwithstanding the terms of sections 6(d) and 6(e) of the Agreement or anything else in the Agreement
to the contrary
| (a) | the
provisions of sections 6(d) (Calculations; Payment Date) and 6(e) (Payments
on Early Termination) of the Agreement shall apply separately to: |
| (i) | the
Transaction evidenced by this Confirmation ("This Transaction"); and |
| (ii) | all
Transactions, other than This Transaction, which are at any time outstanding under the Agreement
("Other Transactions"), |
with
the effect inter alia that, following the designation under the Agreement of an Early Termination Date in respect of which both
this Transaction and the Other Transactions shall be Terminated Transactions, two separate Early Termination Amounts shall be calculated
in accordance with the terms of the Agreement, one in respect of This Transaction and one in respect of the Other Transactions.
| (b) | The
terms of the Agreement shall be construed to give effect to the foregoing including, without
limitation: |
| (i) | references
in the Agreement to the singular "Early Termination Amount" shall be construed,
as the context requires, to the plural "Early Termination Amounts" or "each"
"Early Termination Amount"; |
| (ii) | for
the purposes of section 6(d)(i) (Statement) of the Agreement, there shall be
separate statements in respect of each Early Termination Amount; |
| (iii) | each
Early Termination Amount shall be payable on the relevant date determined pursuant to section
6(d)(ii) (Payment Date); one Early Termination Amount may accordingly become
payable on a different date from the other Early Termination Amount; and |
| (iv) | the
Early Termination Amount calculated in respect of: |
| (A) | this
Transaction shall be calculated in accordance with the provisions of section 6(e)(i) (Events
of Default) or 6(e)(ii) (Termination Events) of the Agreement, as modified
by the modifications to the calculation of the Early Termination Amount set out in "Disposal
Following Transaction Early Termination Date"; and |
| (B) | the
Other Transactions shall be calculated in accordance with the provisions of section 6(e)(i) (Events
of Default) or 6(e)(ii) (Termination Events) without regard to the modifications
to the calculation of the Early Termination Amount set out in "Disposal Following Transaction
Early Termination Date". |
This Confirmation
evidences a complete binding agreement between you and us as to the terms of the Transaction to which this Confirmation relates.
The terms of the particular Transaction
to which this Confirmation relates are as follows:
1. GENERAL TERMS
| Trade Date: | 16
September 2019 |
| Effective Date: | Subject
to paragraph 6.1 (Initial Conditions Precedent) below, the Subscription Date. |
Amendment Effective
Date 1: | The date on which Party A executes
and/or agrees to be bound by the Lock-Up Agreement and the IRA, provided that: |
| (a) | all
conditions precedent in paragraph 6.2 (Amendment Conditions Precedent) are satisfied
in the reasonable discretion of Natixis; and |
| (b) | on
the Amendment Effective Date 1: |
| (i) | no
Event of Default or Potential Event of Default has occurred and is continuing in respect
of which Party B is the Defaulting Party; |
| (ii) | no
Termination Event has occurred and is continuing in respect of which this Transaction is
an Affected Transaction; and |
| (iii) | no
Extraordinary Event has occurred in relation to the Shares where Cancellation and Payment
applies or is deemed to apply to this Transaction (and the transactions implemented by the
SPAC Documents shall not be considered to be an Extraordinary Event). |
If
the Amendment Effective Date 1 does not occur on or prior to the Amendment Effective Long Stop Date then, other than with respect to
the costs and expenses payable by Party B to Party A pursuant to subparagraphs (k) of paragraph 5.2 (Additional Agreements and
Undertakings) below (which, for the avoidance of doubt, shall remain payable by Party B on the dates specified in those sub-paragraphs),
the Amended and Restated Confirmation shall not take effect and no amendment will be made to this Confirmation.
"Amendment
Effective Long Stop Date" means 15 November 2022. "SPAC Documents" means the following documents:
| (a) | the
Lock-Up Agreement by and among Party A, LGHL (as defined below), Primavera Capital Acquisition
Corporation (the "SPAC") and other parties dated on or around the date of
this Confirmation (the "Lock-Up Agreement"); |
| (b) | the
Investor Rights Agreement by and among Party A, LGHL, the SPAC and other parties dated on
or around the date of this Confirmation (the "IRA"); and |
| (c) | the
Business Combination Agreement by and among LGHL, Lanvin Group Heritage I Limited, Lanvin
Group Heritage II Limited, the SPAC and other parties dated March 23, 2022 and as amended
on October 17, 2022 and October 20, 2022 (as may be further amended, restated,
modified or varied from time to time, the "BCA"). |
Amendment Effective
Date 2: | Closing Date (as defined in the Settlement
Agreement by and between Party A and Party B dated on or around the date of this Confirmation (the "Settlement
Agreement")), provided that Party A has received the Net Settlement Amount (as defined in the Settlement
Agreement) when due in accordance with the terms of the Settlement Agreement. |
| Termination Date: | The
Termination Date shall be: |
| (a) | if
an IPO Date has not occurred before the Auction Period Cut-off Date, the Non-IPO Termination
Date; and |
| (b) | if
an IPO Date has occurred before the Auction Period Cut-off Date, the Post-IPO Termination
Date, |
where:
"Non-IPO
Termination Date" means the earlier of:
| (a) | the
date on which Party A has received or is deemed to have received the Total Disposal Proceeds
in respect of the Disposal of all of the Underlying Shares pursuant to the provisions of
"Disposal of Underlying Shares" below; |
| (b) | the
Auction Period Cut-off Date which is deemed to be a Non-IPO Termination Date pursuant to
paragraph (g) of the provisions in "Private Auction Process" below;
and |
| (c) | the
Non-IPO Termination Long-Stop Date. |
"Post-IPO
Termination Date" means the earlier of:
| (a) | the
date on which Party A has received or is deemed to have received the Total Disposal Proceeds
in respect of the Disposal of all of the Underlying Shares pursuant to the provisions of
"Disposal of Underlying Shares" below; and |
| (b) | the
Post-IPO Termination Long-Stop Date. |
"Non-IPO
Termination Long-Stop Date" means:
| (a) | if
Party A has not elected to extend the Non-IPO Termination Long-Stop Date pursuant to the
provisions of "Non-IPO Termination Long-Stop Date Extension Option" below,
the Original Non-IPO Termination Long-Stop Date; or |
| (b) | if
Party A has elected to extend the Non-IPO Termination Long-Stop Date pursuant to the provisions
of "Non-IPO Termination Long-Stop Date Extension Option" below, the Extended
Non-IPO Termination Long-Stop Date. |
"Original
Non-IPO Termination Long-Stop Date" means the date falling 48 calendar months after the Effective Date.
"Extended
Non-IPO Termination Long-Stop Date" means the date falling 60 calendar months after the Effective Date.
"Post-IPO
Termination Long-Stop Date" means 15 June 2025.
Each
of the above shall be subject to adjustment in accordance with the Business Day Convention.
| Non-IPO Termination
Long-Stop Date
Extension Option: | Party
A may, in its sole discretion, on any day during the First Lock-up Period, by written notice
to Party B, elect to extend the Non-IPO Termination Long-Stop Date from the Original Non-IPO
Termination Long-Stop Date to the Extended Non-IPO Termination Long-Stop Date. |
"First
Lock-up Period" means the period from and including the Effective Date to and excluding the date falling thirty six (36) calendar
months after the Effective Date.
| Post-IPO Termination
Long-Stop Date
Extension Option: | Party
A may, in its sole discretion, on or after the IPO Date, by notice to Party B, elect to extend
the Post-IPO Termination Long-Stop Date from the Original Post-IPO Termination Long-Stop
Date to the Extended Post-IPO Termination Long-Stop Date. |
"Second
Lock-up Period" means the period from and including the IPO Date to and excluding the date falling fifteen (15) calendar
months after the IPO Date.
| IPO: | (i) | Any
initial public offering of the Shares on an Agreed Stock Exchange (other than the SPAC Listing)
provided that the minimum number of investors purchasing Shares in such initial public
offering shall satisfy the requirements prescribed by the Agreed Stock Exchange and/or the
relevant regulatory authorities and such initial public offering results in the listing and
commencement of trading of the Shares on such Agreed Stock Exchange; or |
Any
reference in this Confirmation to the "occurrence of an IPO" or other terms having a similar effect shall mean the commencement
of trading of the Shares in the manner set forth above on the Agreed Stock Exchange (including, for these purposes, the SPAC Listing).
"Agreed
Stock Exchange" means any of the New York Stock Exchange, the Nasdaq Stock Market’s National Market System, Euronext,
the Main Market of the London Stock Exchange, the Main Board of the Hong Kong Stock Exchange, the Main Board of the Singapore Exchange
Limited, or such other stock exchange as agreed by the Parties.
"SPAC
Listing" means the ordinary shares of LGHL being listed on the New York Stock Exchange or a successor that is a national securities
exchange registered under Section 6 of the Securities Exchange Act of 1934 (as amended) from or shortly after (as the case may be)
the Closing under the BCA.
If
an IPO (other than the SPAC Listing) occurs on any Agreed Stock Exchange other than the Main Board of the Hong Kong Stock Exchange, then
the Calculation Agent may adjust such of the terms of this Confirmation as it in its sole discretion considers necessary or desirable
to address any legal, regulatory or other requirements resulting from the fact that the IPO is taking place on such other Agreed Stock
Exchange. The consent of Party B to any such adjustments to the terms of this Confirmation shall not be required. The Calculation Agent
shall use reasonable endeavours to consult with Party B prior to making any such adjustments to the terms of this Confirmation, but failure
of the Calculation Agent to do so shall not in any way affect any such adjustments to the terms of this Confirmation.
"Closing"
means the closing of the Mergers and the other Transactions (each as defined in the BCA) contemplated by the BCA to occur or become effective
in connection therewith in accordance with the terms and subject to the conditions of the BCA, as determined by the Calculation Agent.
"Closing
Date" means the date on which Closing occurs.
| IPO Date: | The
date of the occurrence of an IPO in respect of the Shares; provided that if the SPAC
Listing occurs, the IPO Date shall be the date on which the SPAC Listing occurs. |
| Issuer: | (i) | Prior
to the Merger Effective Time, Fosun Fashion Group (Cayman) Limited ("FFG"),
an exempted company incorporated in the Cayman Islands with registered number 333622 and
whose registered office address is at Tricor Services (Cayman Islands) Limited, P.O. Box
10008, Willow House, Cricket Square, Grand Cayman KY1-1001, Cayman Islands; and |
| (ii) | following
the Merger Effective Time, Lanvin Group Holdings Limited (“LGHL”), an
exempted company incorporated in the Cayman Islands with registered number 382280 and whose
registered office is at Maples Corporate Services Limited, PO Box 309, Ugland House, Grand
Cayman, KY1-1104, Cayman Islands. |
"Merger
Effective Time" means the time at which the Initial Underlying Shares are cancelled in exchange for 7,919,466 PubCo Ordinary
Shares pursuant to the Second Merger (as defined under the BCA).
"PubCo
Ordinary Shares" means ordinary shares of LGHL of a par value USD 0.000001 each.
| Shares: | (i) | Prior
to the Merger Effective Time, the ordinary shares of par value EUR 1.00 each in the capital
of FFG; and |
(ii) following
the Merger Effective Time, the PubCo Ordinary Shares.
| Underlying Shares: | Means,
on any day, a number of Shares determined by the Calculation Agent equal to: |
(X) Prior
to the Merger Effective Time,
| (a) | the
29,411,764 of Shares subscribed for and purchased by Party A on the Subscription Date pursuant
to the Subscription Agreement (the "Initial Underlying Shares"), minus |
| (b) | the
aggregate number of such Shares of which Party A has disposed pursuant to "Early
Disposal" below; and |
| (Y) | following
the Merger Effective Time and prior to the Amendment Effective Date 2 (exclusive), 7,919,466
PubCo Ordinary Shares issued to Party A pursuant to the Second Merger (as defined in the
BCA) at the Merger Effective Time; and |
(Z) following
the Amendment Effective Date 2 (inclusive),
| (a) | 2,639,822
PubCo Ordinary Shares, minus |
| (b) | the
aggregate number of the Shares of which Party A has disposed pursuant to "Early Disposal"
below. |
"Subscription
Agreement" means the subscription agreement dated 16 September 2019 between, inter alia, FFG and Party A pursuant
to which Party A subscribed for 29,411,764 Shares, as amended and supplemented from time to time.
"Subscription
Date" means the Completion Date in respect of the subscription of the Relevant Subscription Shares (each as defined in the Subscription
Agreement) for which Party A shall subscribe pursuant to the Subscription Agreement.
Party
B shall have no beneficial or other property interest in or rights to the Underlying Shares (including but not limited to voting rights),
and no charge, mortgage, pledge, lien or other security or quasi-security interest is being granted to Party B in respect of the Underlying
Shares pursuant to the terms of, or in connection with, this Transaction.
| Exchange: | Prior
to the occurrence of the IPO Date, none. On or after the IPO Date, the Agreed Stock Exchange
on which the Shares are listed or are to be listed. |
| Structuring
Fee: | Party B shall,
by no later than five (5) Business Days prior to the Effective Date, pay the following
Structuring Fee to Party A: |
| (a) | if
the Equity Notional Amount as of the Effective Date is less than or equal to EUR 60,000,000,
the Structuring Fee shall be an amount in EUR equal to 3 per cent. of the Equity Notional
Amount as of the Effective Date; and |
| (b) | if
the Equity Notional Amount as of the Effective Date is greater than EUR 60,000,000, the Structuring
Fee shall be an amount in EUR equal to the aggregate of: |
| (i) | 3
per cent. of EUR 60,000,000; and |
| (ii) | 1.5
per cent. of the difference between the Equity Notional Amount as of the Effective Date and
EUR 60,000,000. |
Unless
otherwise agreed by the parties, Party B shall, by no later than two (2) Business Days following the Amendment Effective Date 2,
pay to Party A an amount in EUR equal to 0.7 per cent. of the Equity Notional Amount as of the Amendment Effective Date 2.
Equity Amounts
Payable by Party A
| Equity Amount
Payer: | Party A |
| Equity Amount
Receiver: | Party B |
| Number of Shares: | On
any day, a number of Shares equal to the Underlying Shares. |
| Equity Notional
Amount: | On any day, the Number of Shares multiplied
by the Initial Price. |
| Equity Notional
Reset: | Not Applicable |
| Type of Return: | Total
Return |
| Initial Price: | Prior
to the Merger Effective Time, the price per Share at which Party A subscribes for the Initial
Underlying Shares pursuant to the Subscription Agreement. |
Following
the Merger Effective Time, EUR 60,000,000 divided by the number of PubCo Ordinary Shares issued to Party A pursuant to section 2.3(f)(i) of
the BCA at the Merger Effective Time, rounded to the nearest two decimal places with 0.005 or above being rounded upwards.
| Final Price: | Notwithstanding
section 5.9(c) of the Equity Definitions, the Final Price per Share shall be an amount
in EUR determined by the Calculation Agent on the Valuation Date equal to the Proceeds per
Share realized by Party A in respect of the Disposal of the Underlying Shares. |
"Proceeds
per Share" means:
| (a) | in
respect of any Disposal (including, without limitation, by way of Block Sale) of the Underlying
Shares which is not an On-Exchange Disposal, an amount in EUR determined by the Calculation
Agent equal to the consideration per Share (as reduced by any Transaction Expenses) realized
by Party A in Disposing of the Underlying Shares; and |
| (b) | in
respect of an On-Exchange Disposal, an amount in EUR determined by the Calculation Agent
equal to the volume weighted average of the consideration per Share (as reduced by any Transaction
Expenses) realized by Party A in selling the Underlying Shares by way of such On-Exchange
Disposal; provided that if such consideration is denominated in a currency other than
EUR, the value of such consideration shall be converted into EUR by the Calculation Agent,
taking into consideration all available information that it considers relevant, including
the rate of exchange which the Hedging Party would apply acting in a commercially reasonable
manner on a date and at a time determined by the Calculation Agent, |
provided
always that if Party A has been unable to Dispose of some or all of the Underlying Shares by the applicable Disposal Cut-off Date,
for the purposes of this Transaction, such Underlying Shares that are not Disposed of shall be deemed to have been Disposed of for zero
consideration.
For
the avoidance of doubt, if the amount of the Transaction Expenses in respect of the Disposal of any Underlying Shares is greater than
the consideration received in respect of the Disposal of such Underlying Shares, the Proceeds per Share shall be a negative number equal
to the consideration per Share minus the Expenses per Share.
"Total
Disposal Proceeds" means, in respect of any Disposal, an amount in EUR determined by the Calculation Agent equal to the product
of (a) the relevant Proceeds per Share and (b) the number of Shares subject to such Disposal.
"Expenses
per Share" means, in respect of any Disposal, an amount in EUR determined by the Calculation Agent equal to (a) the relevant
Transaction Expenses divided by (b) the number of Shares subject to such Disposal.
"Transaction
Expenses" means any reasonably incurred expenses, brokerage, legal or other fees, costs, stock transfer taxes, stamp duties,
levies, charges, and commissions incurred, deducted or withheld by Party A in connection with the Disposal of any of the Underlying Shares
in accordance with the terms of this Confirmation, provided that if any such amount is denominated in a currency other than EUR,
the value of such amount shall be converted into EUR by the Calculation Agent, taking into consideration all available information that
it considers relevant, including the rate of exchange which the Hedging Party would apply acting in a commercially reasonable manner
on a date and at a time determined by the Calculation Agent.
Disposal of Underlying
Shares: | (a) | Prior
to the occurrence of the Amendment Effective Date 1, Party A shall Dispose of the Underlying
Shares in accordance with the following procedure: |
| (i) | Disposal
of Underlying Shares prior to an IPO Date: Subject to sub-paragraphs (ii), (iii) and
(iv) below: |
| (A) | if,
during the First Lock-up Period, Party A or Party B, as the case may be, consents to a Request
for Sale in respect of some or all of the Underlying Shares pursuant to paragraph (a)(iii) of
"Early Disposal" below, Party A shall use reasonable endeavours to sell
or transfer the relevant Underlying Shares to the person(s) identified in such Request
for Sale by the final day of the First Lock-up Period; and |
| (B) | if,
on the Business Day immediately following the end of the First Lock-up Period, Party A has
not completed the Disposal of all of the Underlying Shares, Party A shall use reasonable
endeavours to Dispose of all of the remaining Underlying Shares by the Auction Period Cut-off
Date in accordance with the provisions of "Private Auction Process" below; |
| (ii) | Disposal
of Underlying Shares pursuant to Tagalong Right or Drag-along Right: Subject to subparagraph
(iv) below, and regardless of whether Party A may have commenced any process for the
Disposal of the Underlying Shares pursuant to sub-paragraph (i) above, if, at any time
prior to the Auction Period Cut-off Date: |
| (A) | Party
A is required, pursuant to clause 6.7 (Drag-Along Rights) of the Shareholders Agreement,
to transfer all of the Underlying Shares to a Proposed Purchaser (as defined in the Shareholders
Agreement), Party A shall, as permitted pursuant to the provisions of "Early Disposal"
below, use reasonable endeavours to sell all of the Underlying Shares to the Proposed Purchaser
in accordance with the terms of the Shareholders Agreement; or |
| (B) | Party
A elects to exercise its rights under the provisions of "Tag-along Right" below
to transfer some or all of the Underlying Shares to a Proposed Purchaser, Party A shall use
reasonable endeavours to transfer some or all of the Underlying Shares to the Proposed Purchaser
in accordance with the provisions of "Tag-along Right" below. |
"Shareholders
Agreement" means the shareholders agreement dated 31 May 2021 hereof between, inter alia, Party A, Fosun Fashion
Holdings (Cayman) Limited and FFG in respect of FFG, as amended and supplemented from time to time.
| (iii) | Disposal
of Underlying Shares following an IPO Date: Subject to sub-paragraph (iv) below,
if, at any time prior to the Auction Period Cut-off Date, an IPO Date occurs, and if, on
the Business Day immediately preceding such IPO Date, Party A has not completed the Disposal
of all of the Underlying Shares, then Party A shall, following the exercise of the Optional
Early Termination in respect of all of those remaining Underlying Shares pursuant to the
provisions of paragraph 8 (Optional Early Termination) below, use reasonable endeavours
to Dispose of those remaining Underlying Shares by way of On-Exchange Disposal or Block Sale
by the Post-IPO Termination Date, subject to any lock-up restrictions under the SPAC Documents. |
| (iv) | Disposal
of Underlying Shares following Transaction Early Termination Date: If, at any time
prior to the Termination Date, a Transaction Early Termination Date occurs, then, notwithstanding
the terms of sub-paragraphs (i) to (iii) above, and notwithstanding that Party
A may have commenced a process for the Disposal of the Underlying Shares pursuant to any
of the methods of Disposal specified in sub-paragraphs (i) to (iii) above, the
provisions of "Disposal Following Transaction Early Termination Date" below
shall apply. |
| (b) | Following
the occurrence of the Amendment Effective Date 1 but prior to the expiration of the "Lock-Up
Period" (as defined in the Lock-Up Agreement) applicable to Party A (the "SPAC
Lock-Up", and such expiration date as the "PubCo Lock-Up Expiration Date"): |
| (i) | Disposal
of Underlying Shares before PubCo Lock-Up Expiration Date: Party A shall not have
any obligation to Dispose of the Underlying Shares if it would result in a breach of the
SPAC Documents or any applicable securities laws; and |
| (ii) | Disposal
of Underlying Shares following Transaction Early Termination Date (Pre-PubCo Lock-Up Expiration
Date): If, at any time prior to the Termination Date and prior to the PubCo Lock-Up
Expiration Date, a Transaction Early Termination Date occurs, then, notwithstanding the terms
of sub-paragraph (i) above, and notwithstanding that Party A may have commenced a process
for the Disposal of the Underlying Shares pursuant to the terms of the SPAC Documents (including,
without limitation, a Disposal to one or more Permitted Transferees (as defined in the Lock-Up
Agreement), the provisions of "Disposal Following Transaction Early Termination Date"
below shall apply. |
| (c) | Following
the PubCo Lock-Up Expiration Date, Party A shall Dispose of the Underlying Shares in accordance
with the following procedure: |
| (i) | Disposal
of Underlying Shares following PubCo Lock-Up Expiration Date: Subject to sub-paragraph
(ii) below, if the Optional Early Termination is exercised in respect of some or all
of the Underlying Shares pursuant to the provisions of paragraph 8 (Optional Early Termination)
below, Party A shall use reasonable endeavours to Dispose of such Underlying Shares by way
of On-Exchange Disposal or Block Sale by the Post-IPO Termination Date, subject to any lock-up
restrictions under the SPAC Documents. |
| (ii) | Disposal
of Underlying Shares following Transaction Early Termination Date (Post-PubCo Lock-Up Expiration
Date): If, at any time prior to the Termination Date, a Transaction Early Termination
Date occurs, then, notwithstanding the terms of sub-paragraph (i) above, and notwithstanding
that Party A may have commenced a process for the Disposal of the Underlying Shares pursuant
to the method of Disposal specified in sub-paragraph (i) above, the provisions of "Disposal
Following Transaction Early Termination Date" below shall apply. |
| (d) | "Disposal"
shall mean an orderly sale or other realisation by Party A of some or all of the Underlying
Shares by Party A in the relevant manner contemplated under paragraphs (a) to (c) above,
subject to all applicable contractual limitations or requirements under the Transaction Documents,
the SPAC Documents and other documentation relating to the Underlying Shares. "Dispose"
and cognate terms shall be construed accordingly. Party A may take such steps as it, in its
sole and absolute discretion, considers appropriate in order to effect a Disposal including,
but not limited to, selecting an alternative method of Disposal if Party A determines that
it will not be possible to effect the Disposal using any method of Disposal contemplated
under paragraphs (a) to (c) above; provided that such Disposal shall not breach
any provision of the Shareholders Agreement, the Subscription Agreement or the SPAC Documents
(as applicable). Except where, pursuant to paragraphs (a) to (c) above, Party A
is required to Dispose of some or all of the Underlying Shares to an identified person, Party
A shall be entitled to effect a Disposal by way of one or multiple transaction(s) on
one or more day(s). |
| (e) | Party
A shall use commercially reasonable endeavours to attempt to effect the Disposal of the relevant
Underlying Shares on the relevant date, or by the applicable cut-off date, specified in paragraphs
(a) to (c) above, and, in respect of a Disposal of the Underlying Shares pursuant
to, as the case may be, subparagraph (a)(i)(B) (Disposal of Underlying Shares Prior
to an IPO Date), sub-paragraph (a)(iii) (Disposal of Underlying Shares following
an IPO Date) or sub-paragraph (c)(i) (Disposal of Underlying Shares following
Transaction Early Termination Date (Post-PubCo Lock-Up Expiration Date)) above, Party
A shall in any event use commercially reasonable endeavours to Dispose of the Underlying
Shares by the applicable Disposal Cut-off Date. However, Party A shall not have any liability
if the Disposal of the relevant Underlying Shares has not been completed on the relevant
date, or by the applicable cut-off date, specified in paragraphs (a) to (c) above,
or, in respect of a Disposal of the Underlying Shares pursuant to sub-paragraph (a)(i)(B) (Disposal
of Underlying Shares Prior to an IPO Date), sub-paragraph (a)(iii) (Disposal
of Underlying Shares following an IPO Date) or subparagraph c(ii)(c)(ii) (Disposal
of Underlying Shares following Transaction Early Termination Date (Post-PubCo Lock-Up Expiration
Date)) above, by the applicable Disposal Cut-off Date (as the case may be). |
| (f) | In
respect of a Disposal of the Underlying Shares pursuant to subparagraph (a)(i)(B) (Disposal
of Underlying Shares Prior to an IPO Date), sub-paragraph (a)(iii) (Disposal
of Underlying Shares following an IPO Date) or sub-paragraph (c)(ii) (c)(ii) (Disposal
of Underlying Shares following Transaction Early Termination Date (Post-PubCo Lock-Up Expiration
Date)) above, if Party A has been unable to Dispose of some or all of the Underlying
Shares by the applicable Disposal Cut-off Date, for the purposes of this Transaction, all
such Underlying Shares shall be deemed to have been Disposed of for zero consideration on
the applicable Disposal Cut-off Date and the applicable Disposal Cut-off Date shall be the
Termination Date. |
| (g) | Party
B shall, within 2 Business Days of demand, indemnify Party A against (without double counting
any expenses incurred under sub-paragraph (g) of the provisions of "Disposal
Following Transaction Early Termination Date" or sub-paragraph (k) of paragraph
5.2 (Additional Agreements and Undertakings)) any cost, expenses, loss or liability
incurred by Party A in connection with the Disposal of the Underlying Shares (including,
without limitation, the costs of defending any litigation, court or other proceedings in
connection with the Disposal of the Underlying Shares) except to the extent any such cost,
expenses, loss or liability was incurred as a direct result of any wilful default, gross
negligence or fraud of Party A. |
"Auction
Period Cut-off Date" means the date falling nine (9) calendar months after the first Business Day immediately following
the end of the First Lock-up Period or such later date notified to Party B by Party A in writing in its sole discretion, provided
that such later date shall fall on or prior to the Non-IPO Termination Long-Stop Date.
"Disposal
Cut-off Date" means:
| (a) | in
respect of a Disposal of Underlying Shares pursuant to subparagraph (a)(i)(B) (Disposal
of Underlying Shares Prior to an IPO Date) above, the Auction Period Cut-off Date; or |
| (b) | in
respect of a Disposal of Underlying Shares pursuant to subparagraph (a)(iii) (Disposal
of Underlying Shares following an IPO Date) or sub-paragraph (c)(ii)(c)(ii) (Disposal
of Underlying Shares following Transaction Early Termination Date (Post-PubCo Lock-Up Expiration
Date)) above, the Post-IPO Termination Date. |
"Transaction
Early Termination Date" means:
| (a) | any
Early Termination Date designated in respect of this Transaction pursuant to sections 6(a) or
6(b)(iv) of the Agreement; or |
| (b) | in
respect of an Extraordinary Event where Cancellation and Payment applies or is deemed to
apply to this Transaction, the date on which the Calculation Agent gives notice to the parties
that the consequence of such Extraordinary Event is the cancellation of this Transaction. |
| Restriction
on Disposal of
Underlying Shares: | Subject
to "Early Disposal" below and provided that no Material Event has
occurred and is continuing, Party A shall not: |
| (i) | at
any time during the First Lock-up Period Dispose of or otherwise deal in or transfer any
Underlying Shares to any person other than by way of a transfer to a Permitted Transferee
(as defined in this "Restriction on Disposal of Underlying Shares" below);
or |
| (ii) | if
the Second Lock-up Period expires after the PubCo Lock-Up Expiration Date, (a) at any
time during the SPAC Lock-Up, Dispose of or otherwise deal in or transfer any Underlying
Shares to any person other than by way of a transfer to a Permitted Transferee (as defined
in the Lock-Up Agreement); and (b) at any time from and including the PubCo Lock-Up
Expiration Date to and excluding the expiration date of the Second Lock-Up Period, Dispose
of or otherwise deal in or transfer any Underlying Shares to any person other than by way
of a transfer to a Permitted Transferee (as defined in this "Restriction on Disposal
of Underlying Shares" below); or |
| (iii) | if
the Second Lock-up Period expires on or before PubCo Lock-Up Expiration Date, at any time
during the SPAC Lock-Up, Dispose of or otherwise deal in or transfer any Underlying Shares
to any person other than by way of a transfer to a Permitted Transferee (as defined in the
Lock-Up Agreement); or |
| (iv) | at
any time during the Third Lock-up Period Dispose of or otherwise deal in or transfer any
Underlying Shares to any person other than by way of a transfer to a Permitted Transferee. |
"Material
Event" means:
| (a) | the
occurrence of any Early Termination Date following the occurrence of: |
| (i) | an
Event of Default in respect of which Party B is the Defaulting Party; and/or |
| (ii) | a
Termination Event in respect of which this Transaction is an Affected Transaction; and/or |
| |
(b) |
any Extraordinary Event in relation to the Shares where Cancellation and Payment applies or is deemed
to apply to this Transaction; and/or |
| |
|
|
| |
(C) |
breach of any material obligations under the BCA or the other SPAC Documents in the reasonable discretion
of Party A. |
Restrictions on Disposal
of Shares by Party B
following an IPO Date: |
"Permitted
Transferee" means Party A or any Affiliate (as defined in the Shareholders Agreement) of Party A.
"Third
Lock-up Period" means the period from and including Amendment Effective Date 2 to and including 15 May 2025.
At
any time during the period from and including an IPO Date to and including the Termination Date, except as otherwise provided in
this Confirmation, Party B undertakes not to sell or transfer (whether in the IPO, or following the IPO Date, by way of On-Exchange
Disposal or Block Sale) any Shares in the Issuer held by Party B, whether directly or indirectly (including, without limitation,
through any of Party B's Subsidiaries). |
| Private Auction Process: | In
respect of a Disposal of the Underlying Shares pursuant to the provisions of item (B) of
sub-paragraph (a)(i) (Disposal of Underlying Shares Prior to an IPO Date) of
"Disposal of Shares" above, Party A shall use reasonable endeavors to Dispose
of all of the Underlying Shares in accordance with the following auction process: |
| (a) | Party A
shall, following the end of the First Lock-up Period and by no later than three (3) months
following the end of the First Lockup Period, appoint a Leading Dealer and then give notice
to Party B requiring Party B to appoint a Leading Dealer by no later than 10 Business Days
after the date of such notice (the "Appointment Cut-off Date"). If Party
B fails to appoint a Leading Dealer by the Appointment Cut-off Date, the Leading Dealer appointed
by Party A shall be the sole Leading Dealer. If there is any disagreement or dispute between
the Leading Dealer appointed by Party A and the Leading Dealer appointed by Party B with
regards to any matter relating to the Disposal of the Underlying Shares pursuant to the provisions
of this "Private Auction Process", both Leading Dealers shall act in accordance
with the instructions of Party A, which shall be binding on both parties; |
| (b) | during
the Auction Period, the Leading Dealer(s) shall use commercially reasonable endeavours
to obtain binding and irrevocable firm offers (“Offers”) from potential
purchasers to purchase all or part of the Underlying Shares held by Party A and to ensure
the validity of the Offers and the capacity of the relevant potential purchasers to purchase
the Underlying Shares. For this purpose, Party B shall be permitted to submit an Offer in
respect of the Underlying Shares as any other potential purchaser; |
| (c) | the Underlying
Shares shall be sold to the potential purchaser(s) who has made the highest Offer (the
“Purchaser(s)”). In the event that the highest Offer is made in respect
of only a portion of the Underlying Shares, then the Leading Dealer(s) shall allocate
the Underlying Shares to the potential purchasers in such a way as to maximize the Total
Disposal Proceeds of the Underlying Shares (which for the avoidance of doubt may involve
selling the Underlying Shares in part to different potential purchasers); |
| (d) | Party A
shall not be required to give any representation or warranty to the Purchaser(s) in
respect of the Underlying Shares except that (i) the Underlying Shares are free and
clear of any Encumbrances (as defined in the Shareholders Agreement) (ii) Party A is
authorized to sell the Underlying Shares, and (iii) Party A is the beneficial owner
and owner of record of such Underlying Shares; |
| (e) | Party B
undertakes to cooperate with Party A and to facilitate the Private Auction Process. Party
B shall provide the potential purchasers with: |
| (i) | the same
information in respect of the Underlying Shares as is provided to Party A pursuant to Applicable
Law and the terms of the Shareholders' Agreement; |
| (ii) | any other
legal, financial, tax and/or commercial due diligence information that may be reasonably
requested by the potential purchasers subject to compliance with anti-trust and/or other
regulatory requirements; and |
| (iii) | the opportunity
to submit questions to the management of the Issuer and Party B relating to the Shares; |
| (f) | the Purchaser(s) of
the Underlying Shares shall not be required to be party to the Shareholders Agreement and
Party B is not obliged to grant to the Purchaser(s) the same rights as those set out
in the Shareholders Agreement; |
| (g) | for the
avoidance of doubt, as provided in sub-paragraph (f) of "Disposal of Underlying
Shares" above, if Party A has been unable to Dispose of some or all of the Underlying
Shares by the Auction Period Cut-off Date (being the applicable Disposal Cut-off Date for
the purposes of this sub-paragraph (g)), all such Underlying Shares shall be deemed to have
been Disposed of for zero consideration on the Auction Period Cut-off Date and the Auction
Period Cut-off Date shall be the Non-IPO Termination Date; and |
| (h) | Party B
agrees that Party A has sole discretion as to when the Auction Period commences, provided
that the Auction Period shall commence by no later than three (3) months following the
end of the First Lock-up Period. Party B undertakes not to raise any dispute with respect
to the term of the Auction Period as long as Party A acts pursuant to the provisions of this
"Private Auction Process". |
"Auction
Period" means the period from (and including) the Business Day immediately following the end of the First Lock-up Period or
such later date as determined by Party A in its sole discretion that falls on or prior to three (3) months following the end of
the First Lock-up Period, to (and excluding) the Auction Period Cut-off Date.
"Leading
Dealer" means any leading investment bank or regulated financial entity with expertise in acquiring and disposing of private
company shares comparable to the Shares in the relevant market for transactions in the Shares.
| Tag-along | Right:
If, at any time prior to an IPO Date, Party B proposes to sell or transfer, or procure the
sale or transfer, to any person (a "Proposed Transferee") of any Shares
held directly or indirectly by it (a "Party B Share Transfer") (including,
but without limitation, where Party B is required to do so in accordance with the provisions
of clause 8 (Anti-Dilution Protection) of the Shareholders Agreement) Party B shall
first deliver a written notice (a "Transfer Notice") to Party A prior to
such Party B Share Transfer specifying the following information: |
| (a) | the name of the Proposed Transferee; |
| (b) | the number
of Shares to be sold or transferred (the "Transfer Shares"); |
| (c) | the proposed
consideration for the Transfer Shares (which, for the avoidance of doubt, may be zero) (the
"Transfer Consideration"); and |
| (d) | the other
terms and conditions of the proposed Party B Share Transfer. |
Party
A shall then have the right (the “Tag-Along Right”) but not the obligation to require Party B to procure the Proposed
Transferee to purchase or receive the transfer from Party A, for the same Transfer Consideration, timing and terms and conditions given
to Party B:
| (a) | if the
Party B Share Transfer would not give rise to an Issuer Change of Control, up to such number
of Shares in respect of the Underlying Shares equal to (x) the Underlying Shares held
by Party A, multiplied by (y) a fraction, the numerator of which is the number of Shares
proposed to be purchased from Party B by the Proposed Purchaser, and the denominator of which
is the total number of Shares then held by Party B; or |
| (b) | if the
Party B Share Transfer would give rise to an Issuer Change of Control, all of the Underlying
Shares then held by Party A. |
"Issuer
Change of Control" means Party B, together with its Affiliates, ceasing to own 51 per cent. or more of the equity interests
of the Issuer.
If Party
A elects to exercise the Tag-Along Right, it shall, by no later than 15 Business Days following the receipt by Party A of the Transfer
Notice, deliver a written notice to Party B and the Issuer confirming such election, and specifying the Underlying Shares with respect
to which it has elected to exercise the Tag-Along Right (the “Tag-Along Shares”). Such notice shall be irrevocable
and shall constitute a binding agreement by Party A to sell or transfer such Tag-Along Shares to the Proposed Purchaser on the terms
and conditions set forth in the Transfer Notice.
The
share certificate or certificates shall be transferred to the Proposed Transferee and the register of members of the Issuer shall be
updated on consummation of the sale of the Transfer Shares pursuant to the terms and conditions specified in the Transfer Notice, and
Party B shall procure the Proposed Purchaser to remit to Party A that portion of the sale proceeds (if any) to which Party A is entitled
by reason of its participation in such sale. Where Party A has elected to exercise the Tag-Along Right and the Proposed Transferee fails
to purchase or receive the transfer of the Tag-Along Shares from Party A, Party B shall not consummate the proposed sale or transfer
of the Transfer Shares unless and until, simultaneously with the sale or transfer of the Transfer Shares, the Proposed Purchaser purchases
or receives the transfer of such Tag-Along Shares from Party A.
Party
A shall not be required to give any representations or warranties with respect to such sale of the Tag-Along Shares except to confirm
that (x) such Tag-Along Shares are free and clear of any Encumbrances (as defined in the Shareholders Agreement) (other than Encumbrances
arising under the Shareholders Agreement or attributable to actions by the Issuer or other shareholders of the Issuer), (y) Party
A is authorised to effect such sale and (z) Party A is the beneficial owner and owner of record of such Tag-Along Shares. Any sale
by Party B of Shares in contravention of the "Tag-along Right" shall be void.
| Party A's Sole Discretion to Dispose Following IPO: | Subject
to the provisions of this Confirmation, the Parties agree that following an IPO Date, Party
A has sole discretion over the Disposal of the Underlying Shares. |
Disposel Following
Transaction Early
Termination Date: | (a) |
Notwithstanding anything to the contrary in the Agreement
or the Equity Definitions, the Parties agree that, for the purposes of determining: |
| (i) | the Early
Termination Amount in respect of this Transaction following the occurrence of a Transaction
Early Termination Date, the following shall be deemed to be an Unpaid Amount which has become
payable on such Transaction Early Termination Date: the Equity Amount determined by the Calculation
Agent on the basis that (a) the Valuation Date in respect of such Equity Amount is the
Transaction Early Termination Date, (b) the Equity Notional Amount will be determined
as of the Transaction Early Termination Date and (c) the Rate of Return will be calculated
on the basis that the Final Price is zero. |
| (ii) | the Cancellation
Amount following an Extraordinary Event in respect of the Shares where Cancellation and Payment
applies or is deemed to apply to this Transaction, the following amount shall be deemed to
have become payable on the date this Transaction is cancelled or deemed to be cancelled following
the occurrence of the relevant Extraordinary Event: the Equity Amount determined by the Calculation
Agent on the basis that (a) the Valuation Date in respect of such Equity Amount is the
Transaction Early Termination Date, (b) the Equity Notional Amount will be determined
as of the Transaction Early Termination Date and (c) the Rate of Return will be calculated
on the basis that the Final Price is zero. |
| (b) | For the
avoidance of doubt, the Early Termination Amount or Cancellation Amount, as applicable, shall
be payable in full on the relevant date determined pursuant to section 6(d)(ii) (Payment
Date) of the Agreement or, as the case may be, section 12.7(a) of the Equity Definitions,
and shall be payable without deduction, counterclaim or adjustment, and regardless of the
value of the Underlying Shares (whether realised or otherwise), the Disposal of the Underlying
Shares by Party A to a Third Party in accordance with this "Disposal of Underlying
Shares", or the receipt by Party A of Sale Proceeds in respect of any such Disposal
of the Underlying Shares to a Third Party. |
| (c) | Following
a Transaction Early Termination Date, Party A shall, subject to any lock-up restrictions
imposed by the Exchange and/or the SPAC Documents, use reasonable endeavours to Dispose of
the Underlying Shares to a Third Party by the Early Termination Long Stop Date, but Party
A shall not have any liability if it is unable to Dispose of all of the Underlying Shares
by the Early Termination Long Stop Date. Party B shall pay to Party A an amount equal to
all Transaction Expenses (without double counting any expenses incurred under sub-paragraph
(f) below or under sub-paragraph (k) of paragraph 5.2 (Additional Agreements
and Undertakings)) incurred by Party A in attempting to Dispose of the Underlying Shares
in accordance with this sub-paragraph (c) within two Business Days of Party A's written
demand. If Party A is unable to Dispose of all of the Underlying Shares by the Early Termination
Long Stop Date, Party A shall be under no further obligation to attempt to Dispose of the
Underlying Shares and may take such action in relation to the Underlying Shares as it, in
its sole discretion, sees fit, including, without limitation, exercising its right to transfer
the Underlying Shares to Party B pursuant to the Put Option as provided in sub-paragraph
(h) below. |
| (d) | Subject
to the terms of this Confirmation, Party A grants to Party B a call option (the "Call
Option") pursuant to which Party B may call for the transfer and/or payment to it
(as applicable) of the Call Option Property. Party B may exercise the Call Option provided
that the following conditions precedent are satisfied: |
| (i) | the receipt
by Party A in full and without deduction, counterclaim, set-off or adjustment as determined
by Party A in its sole discretion, of the Early Termination Amount or Cancellation Amount,
as applicable, the amount of any Transaction Expenses incurred by Party A in accordance with
sub-paragraph (c) above, and all other amounts payable by Party B to Party A under this
Confirmation (the "Party B Payment Amounts"); |
| (ii) | the payment
of the Call Option Premium by Party B to Party A; and |
| (iii) | the proposed
Call Option Exercise Date is a Business Day falling (x) in the case of the Call Option
Property comprised of the Sale Proceeds only, before the Early Termination Long Stop Date;
and (y) otherwise, before the IPO Date. |
| (e) | If the
conditions precedent set out in sub-paragraph (d) above are satisfied, Party B may exercise
the Call Option by delivering written notice of such exercise to Party A. Party A shall within
a reasonable period of time following receipt of such notice, transfer (in the case of Call
Option Property comprised of Underlying Shares) or pay (in the case of Call Option Property
comprised of any Sale Proceeds) the Call Option Property to Party B. |
| (f) | If, by
the Early Termination Long Stop Date (i) Party A has not Disposed of all of the Underlying
Shares, and (ii) Party A has not received the Party B Payment Amounts in full, the Call
Option, and each party's rights and obligations thereunder, shall be terminated but without
prejudice to any of the parties' other rights hereunder. |
| (g) | If,
at any time before the Early Termination Long Stop Date: |
| (i) | Party A
sells some or all of the Underlying Shares to a Third Party; and |
| (ii) | on the
date on which Party A receives the Sale Proceeds in respect of such sale, Party A has not
received in payment in full, without deduction, counterclaim, set-off or adjustment of the
Party B Payment Amounts, |
Party
A shall have the right, but not the obligation, to adjust the Party B Payment Amounts by an amount equal to the Sale Proceeds (net of
any Transaction Expenses) received by Party A.
| (h) | Subject
to the terms of this Confirmation, Party B grants to Party A a put option (the "Put
Option") pursuant to which Party A may, but is not obliged to, transfer to Party
B any Underlying Shares for the time being held by Party A in consideration for the payment
by Party A of the Put Option Premium (provided that Party B may, in its discretion,
waive or defer the payment of the Put Option Premium). Party A may exercise the Put Option
at any time (including, for the avoidance of doubt, after the Early Termination Long Stop
Date), provided that the grant of the Put Option to |
Party
A and/or exercise of the Put Option by Party A shall not breach any SPAC Document and/or U.S. securities law.
"Call
Option Exercise Date" means the date on which Party B exercises the Call Option in accordance with sub-paragraph (d) above.
"Call
Option Premium" means EUR 1.
"Call
Option Property" means, with respect to the exercise of the Call Option, on the Call Option Exercise Date:
| (i) | all Underlying
Shares in respect of which Party A has not entered into a binding and irrevocable firm offer
to sell to a Third Party; and |
| (ii) | in respect
of any Underlying Shares which Party A has, between the Transaction Early Termination Date
and the Call Option Exercise Date, sold or entered into a binding and irrevocable offer to
sell to a Third Party, the Sale Proceeds actually received by Party A from the Third Party
in consideration for such sale, as reduced by any Transaction Expenses. |
If,
on or before the Call Option Exercise Date, Party A has entered into a binding and irrevocable offer to sell any Underlying Shares to
a Third Party, but has not by such Call Option Exercise Date actually received the Sale Proceeds in respect of such sale, Party A shall
not be required to deliver and/or pay to Party B any of the Call Option Property until it has actually received the Sale Proceeds in
full from the Third Party.
"Early
Termination Long Stop Date" means the date falling 12 calendar months after the Transaction Early Termination Date.
"Put Option Premium"
means EUR 1.
"Sale
Proceeds" means, in respect of a Disposal of any of the Underlying Shares to a Third Party pursuant to this "Disposal
of Underlying Shares", the proceeds actually received by Party A in consideration of such Disposal, provided that if
such proceeds are denominated in a currency other than EUR, the value of such proceeds shall be converted into EUR by the Calculation
Agent, taking into consideration all available information that it considers relevant, including the rate of exchange which the Hedging
Party would apply acting in a commercially reasonable manner on a date and at a time determined by the Calculation Agent.
"Third
Party" means a person other than Party B or any Affiliate of Party B.
| Early Disposal: | Party
A may only Dispose of the Underlying Shares on the following basis: |
| (a) | at any
time during the First Lock-up Period, Party A may Dispose of or transfer any Underlying Shares,
to the extent permitted by the Shareholders Agreement, the Subscription Agreement or the
SPAC Documents (as applicable): |
| (i) | if required
to do so pursuant to the provisions of clause 6.7 (Drag-Along Rights) of the Shareholders
Agreement; |
| (ii) | in accordance
with the provisions of "Tag-along Right" above; and/or |
| (iii) | before
the IPO Date, to any person pursuant to a Request for Sale; |
| (b) | if an IPO
occurs, after the IPO Date, subject to any lock-up restrictions imposed by the Exchange and/or
the SPAC Documents, Party A may Dispose of any Underlying Shares either by way of On-Exchange
Disposal or by way of Block Sale following the exercise of the Optional Early Termination
pursuant to paragraph 8 (Optional Early Termination); and |
| (c) | notwithstanding
sub-paragraphs (a) and (b) above, at any time following the occurrence of a Transaction
Early Termination Date. |
Notwithstanding
any other provisions of this Confirmation, Party A shall have the right to sell or transfer the Underlying Shares at any time without
the consent of Party B if Party A determines in its sole and absolute discretion that it is required or desirable for Party A to sell
or transfer the Underlying Shares for the purposes of complying with an applicable legal or regulatory requirement.
"Party
A Request for Sale" means a written request from Party A to Party B to Dispose of the Underlying Shares prior to an IPO Date.
The Party A Request for Sale shall identify the person(s) to which Party A proposes to Dispose of the relevant Underlying Shares
and the price at which Party A proposes to Dispose of the Underlying Shares.
"Party
B Request for Sale" means a written request from Party B to Party A to Dispose of the Underlying Shares prior to an IPO Date.
The Party B Request for Sale shall identify the person(s) to which Party B proposes the relevant Underlying Shares shall be Disposed
of, and the price at which Party B proposes the Underlying Shares shall be Disposed of, which shall be not less than the Initial Price
of the Underlying Shares.
"Request
for Sale" means a Party A Request for Sale or a Party B Request for Sale.
| Valuation Time: | Prior
to the occurrence of an IPO Date, not applicable. On or following the IPO Date, the Scheduled
Closing Time of the Exchange. |
| Valuation Date(s): | The
Termination Date. |
Floating Amounts Payable by Party
B
| Floating Rate Payments: | On each
Floating Rate Payer Payment Date, Party B shall pay the Floating Amount to Party A. |
| Floating Amounts: | Means an amount calculated
as of the relevant Floating Rate Calculation Period End Date equal to the aggregate of, in
respect of each calendar day of the relevant Floating Rate Calculation Period, the product
of: |
| (a) | the Equity Notional Amount on such
calendar day; |
| (b) | the sum
of the Floating Rate (subject to a minimum of zero) and the Spread; and |
For the avoidance of doubt,
the Equity Notional Amount may be different on each calendar day during the relevant Floating Rate Calculation Period.
| Floating Rate Option: | EUR-EURIBOR–Reuters |
| Designated Maturity: | Six (6) months,
provided that Linear Interpolation shall apply to any Floating Rate Calculation Period
which is shorter or longer than the Designated Maturity. |
| Spread: | The Spread applicable to
each Floating Rate Calculation Period shall be as follows: |
| (a) | prior to
the Amendment Effective Date 2 (exclusive): |
| |
Floating
Rate Calculation
Period |
Spread |
| |
The
first, second, third and fourth Floating Rate Calculation Periods |
3.5
per cent. per annum |
| |
The
fifth, sixth, seventh and eighth Floating Rate Calculation Periods |
4.0
per cent. per annum |
| |
Each
subsequent Floating Rate Calculation Period thereafter |
4.5
per cent. per annum |
| (b) | following
the Amendment Effective Date 2 (inclusive): 3.05 per cent. per annum |
| | References in this Confirmation
to the "Prevailing Spread" shall mean, in respect of any calendar day, the Spread
applicable to the Calculation Period in which such day falls. |
| | |
| Floating Rate Calculation Period: | Each period from
(and including) a Floating Rate Calculation Period End Date to (but excluding) the next succeeding
Floating Rate Calculation Period End Date, save that the initial Floating Rate Calculation
Period shall commence on (and include) the Effective Date, and the final Floating Rate Calculation
Period will end on (but exclude) the Termination Date. |
| | |
| Floating Rate Calculation Period End Date: | The
first Floating Rate Calculation Period End Date shall be the date falling six (6) calendar
months after the Effective Date, and each subsequent Floating Rate Calculation Period End
Date shall be the date falling six (6) calendar months after the previous Floating Rate
Calculation Period End Date. |
| | |
| Break Costs: | If on any day during a Floating Rate Calculation Period
(a "Relevant Floating Rate Calculation Period") which is not a Floating Rate Calculation Period
End Date, the Equity Notional Amount is reduced, or deemed to be reduced, pursuant to the terms of this Confirmation
(the date of such reduction, the "Notional Amount Reduction Date", and the amount by which the
Equity Notional Amount is reduced, the "Notional Reduction Amount"), Party B shall pay to Party
A on the Floating Rate Payer Payment Date immediately following the Notional Amount Reduction Date, the amount (if
any, and subject to a minimum of zero), determined by the Calculation Agent, by which: |
| (a) | in respect
of the Break Costs Calculation Period, an amount equal to the product of: (i) the Notional
Reduction Amount, (ii) the Floating Rate, and (iii) the Floating Rate Day Count
Fraction for the Break Costs Calculation Period; |
exceeds
| (b) | the amount
which Party A would be able to obtain by placing an amount equal to the Notional Reduction
Amount on deposit with a leading bank for the Break Costs Calculation Period. |
"Break
Costs Calculation Period" means the period from (and including) the Notional Amount Reduction Date to (but excluding) the later
of (i) the Floating Rate Calculation Period End Date in respect of the Relevant Floating Rate Calculation Period in which the Notional
Amount Reduction Date falls, and (ii) if the Relevant Floating Rate Calculation Period is shorter than six (6) calendar
months, the date that would have been the Floating Rate Calculation Period End Date had the Relevant Floating Rate Calculation Period
been of a duration of six (6) calendar months.
For
the avoidance of doubt, if the Equity Notional Amount is reduced, or deemed to be reduced, on more than one occasion during a Floating
Rate Calculation Period, separate Break Costs shall be payable by Party B in respect of each such reduction of the Equity Notional Amount
and these provisions of “Break Costs” shall be construed accordingly.
| Floating Rate Payer Payment Date: | The
last day of each Floating Rate Calculation Period, subject to adjustment in accordance with
the Business Day Convention. |
| | |
| Floating Rate Day Count Fraction: | Actual
/ 360. |
| | |
| Reset Dates: | The first day of each Floating
Rate Calculation Period. |
| | |
| Business Days: | TARGET
Settlement Day, Paris, Hong Kong |
| | |
| Business Day Convention: | Modified Following. |
| | |
| Settlement Terms | |
| | |
| Cash Settlement: | Applicable. |
| | |
| Cash Settlement Payment Date: | Two
(2) Business Days after the Termination Date and each Cash Settlement Payment Date specified
in accordance with sub-paragraph (c) of the provisions of "Early Cash Settlement" below.
|
| | |
| Settlement Currency: | EUR |
| | |
| Early Cash Settlement: | In respect
of any Disposal of the Underlying Shares pursuant to the provisions of "Early Disposal"
above: |
| (a) | the date
falling two (2) Business Days after the final receipt by Party A of the Total Disposal
Proceeds (if any) in respect of such Disposal shall be deemed to be a Cash Settlement Payment
Date; |
| (b) | the Valuation
Date in respect of such Cash Settlement Payment Date shall be deemed to be the Cash Settlement
Payment Date; and |
| (c) | if the
Disposal is in respect of all of the Underlying Shares, the Non-IPO Termination Date or the
Post-IPO Termination Date (specifically, in accordance with paragraph (a) of those definitions),
as the case may be, shall be such Cash Settlement Payment Date; |
| (d) | for the
purposes of determining the Equity Amount payable on such Cash Settlement Payment Date, notwithstanding
section 8.7 of the Equity Definitions, the Equity Notional Amount shall be deemed to be an
amount equal to the Underlying Shares of which were disposed by Party A multiplied by the
Initial Price; |
| (e) | for the
avoidance of doubt, in accordance with Section 8.6 of the Equity Definitions, if the
Equity Amount determined by the Calculation Agent in relation to Party A is a negative number,
then Party B will pay (in addition to any other amounts payable by Party B) to Party
A the absolute value of the Equity Amount on the relevant Cash Settlement Payment Date; and |
| (f) | notwithstanding
section 5.9(c) of the Equity Definitions, the Final Price per Share shall be an amount
in EUR, determined by the Calculation Agent on the Valuation Date, equal to the Proceeds
per Share realized by Party A in respect of the Disposal of the Underlying Shares. |
| Dividends | |
| | Party A shall pay to Party B the relevant Dividend Amount
on each Dividend Payment Date in respect of each Dividend Receipt Date. |
| | |
| | Party A's obligations in connection with Dividend Amounts
are subject to the conditions precedent that (i) no Material Event has occurred, and (ii) there are no amounts
due but unpaid from Party B pursuant to the provisions of "Margin Provisions" below. |
| | |
| Dividend Amount: | Notwithstanding section 10.1 of the Equity Definitions,
the amount (net of any deductions or withholdings) actually received by Party A in respect of the Underlying
Shares on a Dividend Receipt Date. |
| | |
| Dividend Receipt Date: | Any date falling during the period from
and including the Effective Date to but excluding the Termination Date on which Party A actually receives
any dividends or distributions in respect of the Underlying Shares. |
| | |
| Dividend Payment Date: | Two
(2) Business Days after a Dividend Receipt Date. |
| | |
| Extraordinary Dividend: | Notwithstanding anything to the contrary
in Section 10.6 of the Equity Definitions, an amount to be determined by the Calculation Agent.
The Calculation Agent shall determine whether such amount shall be included as part of an adjustment
pursuant to Section 11.2 of the Equity Definitions. |
| | |
| Re-investment of Dividends: | Not Applicable. |
| | |
| Adjustments | |
| | |
| Method of Adjustment: | Calculation Agent Adjustment |
| | |
| | For the avoidance of doubt, the parties agree that: |
| (a) | if FFG
issues any New Securities (as defined in the Shareholders Agreement), Natixis shall be under
no obligation to exercise its Pre-Emptive Right (as defined in the Shareholders Agreement),
or otherwise subscribe, for such New Securities; and |
| (b) | if FFG
issues any New Securities, or there occurs in respect of the Issuer and/or the Shares any
other event or circumstance which the Calculation Agent determines would constitute a Potential
Adjustment Event, the Calculation Agent may adjust the terms of this Transaction in accordance
with section 11.2(c) of the Equity Definitions to account for the dilutive or concentrative
effect to take account of the issue of such New Securities by FFG, or other event or circumstance;
and |
| (c) | where the
Calculation Agent, under sections 11.2(c) and (e) of the Equity Definitions, is
required to make a determination involving the determination of: |
| (i) | the "theoretical
value of the relevant Shares" (as provided in section 11.2(c) of the Equity Definitions); |
| (ii) | whether
a distribution, issue or dividend to existing holders of the relevant Shares is for "payment
(cash or other consideration) at less than the prevailing market price" (as provided
in section 11.2(e)(ii) of the Equity Definitions); or |
| (iii) | whether
a "distribution of preferred stock, warrants, debt instruments or stock rights"
is "at a price below their market value" (as provided in section 11.2(e)(vi) of
the Equity Definitions), |
the
Calculation Agent may make such determination on the basis of such information and factors as it, in good faith and a commercially reasonable
manner, determines appropriate. In respect of any Potential Adjustment Event which occurs before any IPO Date, Party A may request Party
B to provide, or to procure FFG to provide, such information and documentation in relation to such Potential Adjustment Event as Party
A may reasonably require in order to assist the Calculation Agent to adjust the terms of the Transaction in accordance with section 11.2(c) of
the Equity Definitions.
Extraordinary
Events | Notwithstanding Section 12.7
of the Equity Definitions, if, in respect of an Extraordinary Event, "Cancellation and
Payment" applies or is deemed to apply to this Transaction, then an amount to be paid
by one party to the other should be determined in accordance with the terms of this Confirmation.
None of the transactions expressly set out in the SPAC Documents shall constitute an Extraordinary
Event. |
| | |
| Consequences of Merger Events: | |
| |
Share-for-Share: | Calculation
Agent Adjustment. |
| |
| |
| |
Share-for-Other: | Calculation Agent Adjustment. |
| |
| |
| |
Share-for-Combined: | Calculation Agent
Adjustment |
| |
| |
| Determining Party: | Calculation Agent. |
| | |
| Tender Offer: | "Tender Offer" shall only be applicable
at any time on or after an IPO Date. For these purposes, the definition of "Tender Offer" in
section 12.1(d) of the Equity Definitions is amended by deleting, in the third line thereof, the words
"10%" and replacing them with the words "30%". |
| | |
| Consequences of Tender Offers: | |
| |
Share-for-Share: | Calculation
Agent Adjustment. |
| |
| |
| |
Share-for-Other: | Calculation Agent Adjustment. |
| |
| |
| |
Share-for-Combined: | Calculation Agent
Adjustment. |
| Determining Party: | Calculation
Agent. |
Composition
of Combined Consideration: | Not Applicable. |
| | |
| Nationalization, Insolvency or Delisting: | Applicable,
provided that "Delisting" shall only be applicable at any time on or after
an IPO Date. The consequence of Nationalization, Insolvency or Delisting shall be Cancellation
and Payment. |
| | |
| Determining Party: | Calculation Agent. |
| | |
| Additional Disruption Events | |
| |
Change in Law: | Applicable. |
| |
| |
| |
Failure to Deliver: | Not Applicable. |
| |
| |
| |
Insolvency Filing: | Applicable. |
| |
| |
| |
Hedging Disruption: | Applicable. |
| |
| |
| |
Hedging Party: | Party A. |
| |
| |
| |
Increased Cost of
Hedging: | Applicable. |
| |
| |
| |
Hedging Party: | Party A. |
| |
| |
| |
Loss of Stock
Borrow: | Not Applicable. |
| |
| |
| |
Maximum Stock
Loan Rate: | Not Applicable. |
| |
| |
| |
Hedging Party: | Not Applicable. |
| |
| |
| |
Increased Cost of
Stock Borrow: | Not Applicable. |
| |
| |
| |
Initial Stock Loan
Rate: | Not Applicable. |
| |
| |
| |
Hedging Party: | Not Applicable. |
| Determining Party: | Calculation
Agent. |
| | |
| Non-reliance: | Applicable. |
| | |
Agreements and
Acknowledgments
Regarding Hedging
Activities: | Applicable. |
| | |
Additional
Acknowledgments: | Applicable. |
| | |
| 2. CALCULATION AGENT: | Notwithstanding
Part 4(e) of the Schedule to the Agreement, NATIXIS shall at all times act as Calculation
Agent in respect of this Transaction; provided that, if an Event of Default or Potential
Event of Default occurs with respect to Party A or Party A fails to discharge its obligations
as Calculation Agent within a reasonable period of time, Party B may appoint as Calculation
Agent in relation to any Transaction a leading dealer (the "Substitute Calculation
Agent") until such time as the relevant Event of Default or Potential Event of Default
is no longer continuing or Party A does discharge its obligations as Calculation Agent promptly.
The fees and expenses of the Substitute Calculation Agent shall be met equally by the Parties. |
| Account for payments
to Party A: |
Beneficiary:
Beneficiary Swift: |
Natixis
(Natixis Capital Market)
NATXFRPPMAR |
| |
Account
Number: |
FR7630007000110001048019244 |
| |
Agent: |
Natixis |
| |
Agent SWIFT: |
NATXFRPPXXX |
| |
Reference: |
SET COSTUME |
| Account for payments
to Party B: |
Beneficiary
Bank:
SWIFT: |
Standard
Chartered Bank (Hong Kong) Ltd, Hong Kong
SCBLHKHHXXX |
| |
Correspondent
Bank: |
Standard
Chartered Bank Frankfurt Am Main |
| |
SWIFT: |
SCBLDEFXXXX |
| |
Beneficiary: |
Fosun International
Limited |
| |
Account
Number: |
447 1789
7802 |
| 4. OFFICES: | (a) The
Office of Party A for the Transaction is: |
| | Natixis |
| | 7, promenade Germaine Sablon |
| | Paris 75013 Paris |
| | France |
| | |
| | Telephone: +33 1 58 32 30 00 |
| | |
| | The postal address of Party A is: |
| Address: | NATIXIS
- Strategic Equity Transactions (“SET”) |
| | | Department |
| | | Level 72, International
Commerce Centre |
| | | 1 Austin Road West,
Kowloon, Hong Kong |
| | Attention: | Middle Office
SET |
| | Facsimile: | +852 3915 1218 |
| | Email: | set.moasia@natixis.com |
(b) The Office of Party
B for the Transaction is Room 808, ICBC Tower, 3 Garden Road, Central, Hong Kong.
5. ADDITIONAL
REPRESENTATIONS, AGREEMENTS AND UNDERTAKINGS
5.1
Additional
Representations |
For the purposes of Section 3
of the Agreement, Party B makes the following representations and warranties to Party A on the Trade Date, the Amendment Effective
Date 1 and the Amendment Effective Date 2 and, in the case of the Repeating Representations, at the additional times specified
in paragraph 5.4 (Repeating Representations) below. |
| (a) | Party B's
entry into the Transaction and the performance of its obligations thereunder will comply
with and will not in any way be limited by (i) any trading or "blackout" policies
applicable to Party B in respect of the Shares, (ii) any other conditions or restrictions
(including internal policies or procedures) imposed by Party B in respect of the Shares or
(iii) any contractual, legal, regulatory or other obligations or restrictions in respect
of the Shares to which Party B may be subject. Party B represents that (aa) neither it nor
any Relevant Person is in possession of any material non-public information in relation to
FFG, LGHL or the shares of FFG and LGHL that has not been disclosed to Party A, and (bb)
the entry into, and performance of its obligations in respect of the Transaction are in Party
B's corporate interest; |
| (b) | Party B
and each Relevant Person shall make such timely notifications and seek such approvals as
required in connection with the Transaction by or from applicable regulatory authorities
or stock exchanges, as the case may be. Party B will procure each Relevant Person to comply
with this paragraph (b); |
| (c) | neither
Party B nor (to Party B’s knowledge) any Relevant Person is, or at any time up until
immediately after the termination of the Transaction will be, engaged in insider dealing,
false trading, price rigging, stock market manipulation or similar conduct that is unlawful
or improper pursuant to any applicable laws or regulations, including without limitation,
Parts XIII and XIV of the Securities and Futures Ordinance (Cap. 571) ("SFO")
and the Securities Exchange Act of 1934 (the “Securities Exchange Act”),
the Securities Act of 1933 (the “Securities Act”), the Sarbanes-Oxley
Act of 2022 and the rules and regulations promulgated therefrom; |
| (d) | neither
Party B nor (to Party B’s knowledge) any Relevant Person knows of, or plans to announce,
any transaction or matter which might have a significant effect on, or be likely materially
to affect, the price of securities of Party B, FFG or LGHL that has not been disclosed to
Party A or otherwise become public information; |
| (e) | neither
Party B nor (to Party B’s knowledge) any Relevant Person has taken any action in connection
with the Transaction, with the express intention of affecting the price of securities of
Party B, FFG or LGHL (including having an intention to raise, depress, peg or stabilise the
price of such securities) or of creating a false or misleading appearance of active trading
in securities of Party B, FFG or LGHL; and Party B has procured that each Relevant Person
to comply with this paragraph (e); |
| (f) | Party B
and (to Party B’s knowledge) each Relevant Person have and will at all times fully
comply with all applicable laws, rules and regulations in each jurisdiction with regard
to the Transaction, including without limitation, those obligations arising with regard to
disclosure and reporting under the relevant Listing Rules. |
| | | |
| | | Party B will procure each Relevant Person
to comply with this paragraph (f); |
| | | |
| | | For the purpose of the Transaction, "Listing
Rules" means all applicable laws, rules and regulations in each jurisdiction relevant to
the Transaction with regard to listing or trading of securities, including but not limited to (i) the
SFO, the Codes on Takeovers and Mergers and Share Buy-backs and the Rules Governing the Listing of
Securities on the Stock Exchange of Hong Kong Limited and (ii) the listing rules of the New York
Stock Exchange (NYSE), the Securities Exchange Act, the Securities Act and the rules promulgated therefrom
and the NYSE Listed Company Manual. |
| (g) | in the
course of negotiating the Transaction, other than information about the Transaction itself,
neither Party B nor any Relevant Person has given Party A any relevant information which,
as determined by Party B is material non-public information, including non-public price sensitive
information and/or "relevant information" (as defined in the SFO) ("MNPI")
in relation to Party B; |
| (h) | except
for the Transaction contemplated by this Confirmation, neither Party B nor, to Party B's
knowledge, any Relevant Person is in possession of any information relating to Party B, FFG,
LGHL, or their respective businesses or securities that is required to be disclosed and has
not yet been disclosed by Party B, FFG or LGHL (as applicable) under the Listing Rules; |
| (i) | the Transaction
(including but not limited to the delivery or transfer of any Underlying Shares by Party
A to an entity designated by Party B) does not constitute a connected transaction pursuant
to Chapter 14A of the Listing Rules; |
| (j) | Party B
has fully disclosed to Party A, its reasons and objectives in entering into the Transaction,
which it hereby confirms constitutes a genuine and legitimate business and commercial purpose
of Party B and is not being entered into for speculative purposes; |
| (k) | Party B
has not relied on Party A or any member of the Natixis Group in relation to its entry into
the Transaction in any respect, and confirms that as a sophisticated professional investor
(i.e. a "professional investor" as defined under the SFO). Party B is required
to make and is deemed to have made before entering into the Transaction: |
| (i) | its own
independent investigations as to the legal, regulatory, accounting and tax implications of
entering into the Transaction and to consult with its own independent advisers in connection
therewith; |
| (ii) | its own
independent investigation and analysis of the business, credit, operations, financial condition
and prospects of Party A and any other member of the Natixis Group, based on such sources
as Party B deems appropriate; and |
| (iii) | its own
independent decisions in regard to entering into the Transaction and whether such action
is appropriate or proper for Party B based upon its own judgment and upon advice from its
own independent advisers as Party B deems appropriate; |
| | | |
(l)
| | |
| | (i) | Party B has read and understood the terms and
conditions of the Transaction and is fully capable of assessing the merits of and understanding (on
its own behalf or through independent professional advice) the terms, conditions and risks of
entering into the Transaction; |
| (ii) | Party
B has requested, and has received, all information considered by it to be necessary in connection
with its investment decision and is satisfied that the Transaction is appropriate and suitable
for it in light of its objectives, experience, financial position and operational resources
and other relevant circumstances and Party B fully accepts the risks undertaken by it; |
| (iii) | none
of Party A nor any other members of the Natixis Group has made any representation or warranty,
express or implied, as to Party B or any information contained in any documents provided
by Party A or any other member of the Natixis Group or filed by Party B with any exchange
or with any governmental entity regulating the offer and sale of securities; and |
| (iv) | Party
B has not relied on Party A or any other member of the Natixis Group in any respect in connection
with its investigation of the accuracy and completeness of such information or its investment
decision; |
| (m) | Party B
understands that the Natixis Group does not have any duty to disclose any information to
Party B (including updating any information provided to Party B) in connection with the Transaction
and/or the Underlying Shares. Party B further acknowledges and understands that no member
of the Natixis Group has advised or will advise it or such persons as to whether or not any
information which has been or will be made available to us or such persons constitutes or
might constitute material non-public information; |
| (n) | Party B
has (i) the ability to bear the economic risk of its investment in connection with the
Transaction, and (ii) adequate means of providing for its current and contingent needs; |
| (o) | Party B
is acting as a principal under the Confirmation for its own account and not as a nominee
or agent and not with a view to any distribution, offer or resale thereof and has no arrangement
with any other person to that effect; |
| (p) | neither
Party B nor any of its Affiliates is aware of any person or entity planning to make a tender
offer for the securities of Party B, FFG or LGHL during the term of the Transaction; |
| (q) | Party B
would be a "non-financial counterparty" for the purposes of the Regulation (EU)
No 648/2012 on OTC derivatives, central counterparties and trade repositories ("EMIR")
if it were established in the European Union and its relevant positions in OTC derivative
contracts are below the clearing threshold as set out in EMIR; |
| (i) | neither
Party B, nor any of its Subsidiaries nor, to the knowledge of party B, any of its Affiliates
(nor to its knowledge any director, officer, employee, affiliate, agent or representative
of it or any of its Subsidiaries), nor any Persons acting on its or their behalf in
connection with this Transaction, is a Sanctioned Person; |
| (ii) | Party
B, or any of its Subsidiaries or to its knowledge its Affiliates (or to its knowledge any
director, officer, employee, affiliate, agent or representative of it or any of its Subsidiaries)
is not engaged in, and in the past five years has not engaged in, any Sanctionable Activity; |
| (iii) | Party
B shall not and has not permitted or authorised any person to, directly or indirectly, use,
lend, make payments of, contribute or otherwise make available, all or any part of the proceeds
of this Transaction to fund any trade, business or other activities: relating to, for any
purpose involving, or for the benefit of any Sanctioned Person or any Sanctioned Country,
or in any other manner, in each case as will result in a violation of any applicable Sanctions
by, or would constitute Sanctionable Activity by, any Person participating in the Transaction; |
| (iv) | Party
B shall ensure that no Sanctioned Person will have any property interest in any funds paid
or remitted by Party B in connection with the Transaction resulting in a violation of applicable
Sanctions by or a restriction on the use of such funds with respect to any Person; |
| (v) | Party B
shall (and Party B shall ensure that it and each of its Subsidiaries shall) maintain policies
and procedures reasonably designed to ensure compliance with applicable Sanctions and with
the obligations under this subparagraph (r); |
| (vi) | Party
B is not and has never been subject to any claim, proceeding, formal notice or investigation
with respect to Sanctions; |
| (vii) | Party
B is not engaging nor has it engaged in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or breaches or attempts to breach, directly or indirectly,
any Sanctions applicable to it; and |
| (viii) | Party
B shall supply to Party A details of any claim, action, suit, proceedings or investigation
against it with respect to any Sanctions (on becoming aware of them, and to the extent permitted
by law); |
| (i) | neither
Party B, nor to the knowledge of Party B, any of its subsidiaries, affiliates, any directors,
officers, employees or agents have violated any applicable Anti-Corruption Laws or will take
any action that would constitute a violation, or implicate Party A in violation of any applicable
Anti-Corruption Laws. Party B has not made, directly or indirectly, any payment, loan or
gift of any money or anything of value to, or for the use of, any Government Official, or
any other person in violation of any Anti-Corruption Laws; |
| (ii) | Party
B has taken and shall take at any time all the measures imposed by the Anti-Corruption Laws
that are applicable to it, including, as the case may be, the implementation of the
compliance programme referred to in Article 17 II of the Sapin II Act, involving, in
particular, the establishment of a code of conduct and a disciplinary regime to sanction
the employees of the company in case of a violation of the said code, an internal whistleblowing
system device and a risk mapping in order to ensure the compliance with the said Anti-Corruption
Laws by itself, its directors, officers, employees or agents as well as its Affiliates, their
directors, officers, employees or agents or all measures it deems appropriate to prevent
the risk of corruption, influence peddling, and, more generally, in order to prevent offenses
against probity by itself, its directors, officers, employees or agents as well as its Affiliates,
their directors, officers, employees or agents; |
| (iii) | to the
knowledge of Party B, none of the legal entities or individuals mentioned in subparagraph
(i) and (ii) above is subject to any action, proceedings, or investigation which
relates to the Anti-Corruption Laws applicable to it, including, as the case may be, by the
Sanctions Committee of the French Anti-Corruption Agency or any other foreign authority with
similar powers; |
| (iv) | Party
B agrees that Party A may, at any time, request Party B to provide, within a reasonable period
of time, any document justifying its compliance with the obligations binding upon it under
the applicable Anti-Corruption Laws and, as the case may be, that it has implemented the
compliance programme referred to above; |
| (v) | Party B
is not a governmental entity or an instrumentality of a government; |
| (vi) | to the
knowledge of Party B, none of Party B's shareholders, officers, directors or agents is currently
a Government Official; and |
| (vii) | Party
B has reasonable controls in place and, to its knowledge, will continue to ensure and maintain
such controls to provide reasonable assurances that violations of applicable Anti-Corruption
Laws will be prevented, detected and deterred; and |
| (t) | Anti-Money
Laundering: the operations of Party B do not violate any applicable Anti-Money Laundering
Laws. |
For these purposes:
"Anti-Corruption
Laws" means, with respect to any person, the applicable anti bribery and corruption statutes of jurisdictions where such person
conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency in such jurisdictions including without limitation the Article 17 of the Act no. 2016-1691
dated 9 December 2016 on transparency, fight against corruption and modernisation of economy as well as the decree adopted for its
implementation (the "Sapin II Act"), the United Kingdom Bribery Act 2010 and the United States Foreign Corrupt Practices
Act 1977;
"Anti-Money
Laundering Laws" means, with respect to any person, the applicable anti-money laundering statutes of jurisdictions where such
person conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency in such jurisdictions;
"Government
Official" means (a) an officer, agent or employee of a government (or any agency, department or instrumentality thereof),
political party or public international organization, (b) a candidate for government or political office, or (c) an agent,
officer, or employee of any entity owned by a government (other than government owned enterprise);
"material non-public
information" refers to:
| (i) | any information
to which an investor would reasonably attach importance in reaching a decision to buy, sell
or hold any securities of Party B, FFG or LGHL; or |
| (ii) | any information
which would be likely to have a significant effect on the price (including value) of any
securities of Party B and "insider information" refers to any information
of a precise nature about circumstances or events, which have not been made public, referring
to Party B, FFG or LGHL or to any of their respective securities and which, if it were made
public, would be likely to have a significant effect on the stock exchange or market price
or value of any securities of Party B, FFG or LGHL (as applicable) such information which
constitutes "inside information" (as defined in sections 245 and 285 of the SFO
in relation to Party B; |
"Natixis
Group" means Party A, its branches, subsidiaries, associates and Affiliates and its and their respective directors, members,
officers, employees, agents, and controlling persons;
"Person"
means any individual or entity such as but not limited to any corporation, limited liability company, trust, joint venture, association,
company, partnership, governmental authority;
"Relevant
Person" means FFG, LGHL and Party B and any of their respective officers, directors or employees;
“Restricted
Party” means any persons or entities that are the subject of Sanctions;
"Sanctionable
Activity" means any condition or activity specifically identified under any Sanctions as constituting a basis for the imposition
of Sanctions against a Person engaged in such activity or described by such condition;
"Sanctioned
Country" means any country or territory with which dealings are broadly restricted or prohibited by any Sanctions (as of the
date hereof, Crimea, Cuba, Iran, North Korea, and Syria, but subject to such changes as take place over time);
"Sanctioned
Person" means any Person with whom dealings are restricted or prohibited by any applicable Sanctions, including any Person:
| (a) | that is named as a target of Sanctions
in any list of such Persons; |
| (b) | that is
located, organised or resident in, or owned by, controlled by, or acting on behalf of the
government of, a Sanctioned Country; or |
| (c) | with which
dealings are otherwise restricted or prohibited pursuant to any applicable Sanctions, including
by reason of any relationship of ownership, control, or agency with, or any direct
or indirect commercial dealings with, any Person described in (a) or (b); |
"Sanctions"
means any statute, executive order, regulation, decree, judicial decision, or any other legally binding act with respect to the imposition
or administration of any economic, financial or trade sanctions or embargoes, export controls or other restrictive measures imposed by
the United States of America, the European Union or a member state of the European Union, the United Kingdom, or the United Nations;
and
"Transaction
Documents" means the Agreement (including this Confirmation), the Shareholders Agreement and the Subscription Agreement.
5.2 Additional
Agreements and
Undertakings | (a) | Party B and each
Relevant Person shall make such timely notifications and seek such approvals as required
in connection with the Transaction by or from applicable regulatory authorities or stock
exchanges, as the case may be. Party B will procure each Relevant Person to comply with this
paragraph (a); |
| (b) | none of
Party B or any Relevant Person will take any action in connection with the Transaction, with
the express intention of affecting the price of securities of Party B, FFG or LGHL (including
having an intention to raise, depress, peg or stabilise the price of such securities) or
of creating a false or misleading appearance of active trading in securities of Party B,
FFG or LGHL. Party B will procure each Relevant Person to comply with this paragraph (b); |
| (c) | Party B
acknowledges that members of the Natixis Group will rely upon the truth and accuracy of the
agreements and acknowledgements, representations and warranties, and undertakings made by
Party B with respect to it (including in connection with compliance with applicable securities
laws). Party B agrees to notify Party A promptly in writing if any of its agreements or acknowledgements,
representations or warranties, or undertakings herein cease to be accurate or complete. Party
B irrevocably consents to the production of, and authorises the Natixis Group to produce,
this Confirmation to any interested party in any potential or actual dispute or any administrative,
regulatory, arbitration or legal proceeding, investigation or official enquiry with respect
to the matters set forth herein or pursuant to any requirement of law, regulation or any
judicial, administrative, governmental, regulatory or self-regulatory authority or body (including
securities exchange); |
| | | |
| | (d) | |
| (i) | Subject
to sub-paragraph (ii) below, neither party shall make, and Party B shall procure that
FFG and LGHL shall not make, any announcement, communication or circular concerning the existence
of or the subject matter of this Transaction, the Transaction Documents and/or the applicable
SPAC Documents, without the prior written consent of the other party (such consent not to
be unreasonably withheld or delayed, so long as consent is required by Applicable law). |
| (ii) | Notwithstanding
sub-paragraph (i) above: |
| (A) | Party A
may require Party B, FFG and/or LGHL to make a statement to any relevant third party that
the role of Natixis in respect of this Transaction, the subscription pursuant to the
Subscription Agreement (together the “Structure”), and under the Transaction
Documents and/or the applicable SPAC Documents, is not acting as a traditional private equity
investor and the purpose of the Structure is to provide financing;
|
| (B) | sub-paragraph
(i) above is without prejudice to any announcement, communication or circular required
to be made by a party, FFG or LGHL by Applicable Law, any governmental or regulatory body
or the rules of any stock exchange on which the shares of a party, FFG or LGHL (or their
respective holding companies) are listed; provided that if any party, FFG or LGHL
is under an obligation to make an announcement or communication or issue a circular, such
party shall consult with the other party (or, in the case of an announcement or communication
or circular of FFG or LGHL, Party B shall procure that FFG or LGHL (as applicable) consults
with Party A insofar as is reasonably practicable before complying with such an obligation.
For the avoidance of doubt, this provision does not apply to announcements, communications
or circulars relating to subscription of shares in FFG or LGHL by persons other than Party
A; and |
| (C) | Party B
agrees that it shall not, at any time before or after an IPO Date, give to Party A any MNPI
concerning FFG and/or LGHL (as applicable), a shareholder or officer of FFG or LGHL (as applicable),
or the Shares or their derivatives to Party A and, in the event of a breach of this covenant,
Party B agrees that, at any time after an IPO Date, upon a request by Party A, it will take
all commercially reasonable steps to procure that FFG and/or LGHL will publish an announcement
through a Form 6-K, a Form 8-K or a Form 425 furnished to or filed with the
U.S. Securities Exchange Commission or through other means reasonably determined appropriate
by counsel publicly disclosing such MNPI) about FFG or LGHL (as applicable), a shareholder
or officer of FFG or LGHL (as applicable), or the Shares or their derivatives, which is received
by Party A at any time on or before the time at which Party A intends to Dispose of any of
the Underlying Shares pursuant to "Disposal following IPO", "Disposal
Following Transaction Early Termination Date" or "Early Disposal". |
| (D) | Party B
agrees that, at any time after the IPO Date, it shall not initiate any discussion, provide
any instruction with respect to, seek to consult with or otherwise communicate about its
preferences with respect to Party A's voting or disposal rights as forth herein, which Party
B acknowledges and agrees that Party A is entitled to execute in its sole and absolute discretion
free of any influence from Party B. |
| (e) | Party B
undertakes (i) to maintain, together with its Affiliates, not less than 51 per cent.
of the equity interests in the Issuer; (ii) to procure that no Change of Control shall
occur at any time prior to the Termination Date of this Transaction. |
A "Change of Control"
means:
(a) Mr. Guo
Guangchang ceasing to own (directly or indirectly) more than 50 per cent. of the equity interests of Fosun International Holdings; or
(b) Fosun
International Holdings ceasing to own (directly or indirectly) more than 50 per cent. of the equity interests of Party B.
"Fosun
International Holdings" means Fosun International Holdings Ltd., a company established under the laws of the British Virgin
Islands with its registered office at Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110, British Virgin Islands.
| (f) | Prior to
the Amendment Effective Date 2 (exclusive), Party B undertakes that it shall not, and shall
procure that Fosun Fashion Holdings (Cayman) Limited will not create or attempt or agree
to create or permit to arise or exist any Security or Quasi-Security over (i) any Shares
in FFG held by Party B or by Fosun Fashion Holdings (Cayman) Limited as of the Subscription
Date or (ii) any Shares in LGHL held by Party B or by Fosun Fashion Holdings (Cayman)
Limited as of the Closing Date. |
Where:
"Security"
means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement
or arrangement having a similar effect.
"Quasi-Security"
means, in respect of any person, an arrangement or transaction:
| (a) | which involves
the sale, transfer or disposal of any of such person's assets on terms whereby they are or
may be leased to or re-acquired by such person (or an affiliate of such person); and |
| (b) | involving
any other preferential arrangement having a similar effect. |
| (g) | The following
undertakings remain in force from the Trade Date to the Termination Date. Provided that
the Merger Effective Time has not occurred, Party B shall supply or procure the supply
to Party A of the following: |
| (i) | as soon
as they are available, but in any event, within 180 days after the end of each financial
year of each of Party B and the Issuer, copies of the consolidated financial statements of
Party B and the Issuer, as the case may be, in respect of such financial year (including
a profit and loss account and balance sheet) audited and certified without qualification
by an internationally recognised firm of independent accountants acceptable to Party A; and |
| (ii) | all documents
dispatched by Party B or FFG to their respective creditors and shareholders generally, at
the time that such documents are despatched. |
| (h) | Party B
undertakes and agrees, at all times until the Termination Date, that the Underlying Shares
held by Party A will be not more than 15 per cent. of the total number of all outstanding
Shares in the Issuer; |
| (i) | Party B
undertakes and agrees, at all times until the Termination Date, unless Party A otherwise
agrees in writing: |
| (i) | Party B's
Consolidated Tangible Net Worth shall not at any time be less than RMB30,000,000,000; and |
| (ii) | the ratio
of Consolidated Net Borrowings to Consolidated Tangible Net Worth (adding back minority interests)
shall not, for any Relevant Period, exceed 1.0 to 1.0. |
Consolidated
Tangible Net Worth and Consolidated Net Borrowings shall be calculated and interpreted on a consolidated basis in accordance with HKFRS,
shall be expressed in RMB and tested against each set of consolidated financial statements of Party B delivered to Party A pursuant to
paragraph 5.2(g) above.
"Consolidated
Net Borrowings" means the aggregated indebtedness of the Party B Group for or in respect of the outstanding principal, capital
and/or nominal amount of, and any fixed or minimum premium payable on prepayment or redemption of, any borrowings from banks and financial
institutions or bonds issued by any member of the Party B Group, after deduction of the Party B Group’s consolidated cash, bank
deposits and Marketable Securities.
"Consolidated
Tangible Net Worth" means at any time, all those items that in accordance with HKFRS would be included in the shareholders’
equity portion of the latest consolidated balance sheet of Party B, less:
| (a) | the net
book value of all the intangible assets of the Party B Group; and |
"HKFRS"
means Hong Kong Financial Reporting Standards.
"Marketable
Securities" means the amount stated under sub-item “equity investment at fair value through profit or loss”, which
is under the “current asset” item as set out in the balance sheet of the latest consolidated financial statements of Party
B delivered to Party A pursuant to paragraph 5.2(g) above.
"Party
B Group" means Party B and its Subsidiaries from time to time.
"Relevant
Period" means each period of twelve calendar months ending on the last day of Party B's financial year.
"Subsidiaries"
means any person (referred to as the "first person") in respect of which another person (referred to as the "second
person"):
| (a) | holds a
majority of the voting rights in that first person or has the right under the constitution
of the first person to direct the overall policy of the first person or alter the terms of
its constitution; or |
| (b) | is a member
of that first person and has the right to appoint or remove a majority of its board of directors
or equivalent administration, management or supervisory body; or |
| (c) | has the
right to exercise a dominant influence (which must include the right to give directions with
respect to operating and financial policies of the first person which its directors are obliged
to comply with whether or not for its benefit) over the first person by virtue of provisions
contained in the articles (or equivalent) of the first person or by virtue of a control contract
which is in writing and is authorised by the articles (or equivalent) of the first person
and is permitted by the law under which such first person is established; or |
| (d) | is a member
of that first person and controls alone, pursuant to an agreement with other shareholders
or members, a majority of the voting rights in the first person or the rights under its constitution
to direct the overall policy of the first person or alter the terms of its constitution;
or |
| (e) | has the
power to exercise, or actually exercises dominant influence or control over the first person;
or |
| (f) | together
with the first person are managed on a unified basis, and for the purposes of this definition,
a person shall be treated as a member of another person if any of that person's Subsidiaries
is a member of that other person or, if any shares in that other person are held by a person
acting on behalf of it or any of its Subsidiaries. A subsidiary undertaking shall include
any person the shares or ownership interests in which are subject to Security and where the
legal title to the shares or ownership interests so secured are registered in the name of
the secured party or its nominee pursuant to such Security. |
| (j) | If at any
time it is contemplated that an IPO in respect of the Issuer will occur, Party B shall procure
that Party A (or any affiliate of Party A designated by it for this purpose) is offered a
right of first consultation to act in a senior role in respect of such IPO, as follows: |
| (i) | Party B
shall notify Party A (or its designated affiliate) of the proposed IPO in respect of the
Issuer as soon as reasonably practicable after Party B becomes aware that such an IPO is
contemplated, and Party A (or its designated affiliate) and Party B will enter into discussions
in connection therewith; |
| (ii) | if Party
A (or its designated affiliate) wishes to act in a senior role in respect of the proposed
IPO, Party A (or its designated affiliate) shall communicate this to Party B within 30 Business
Days of being notified pursuant to subparagraph (i) above; and Party A (or its designated
affiliate) and Party B shall negotiate in good faith as to the terms on which Party A (or
its designated affiliate) shall be so appointed; and |
| (iii) | if Party
A (or its designated affiliate) declines to take up its right of first refusal in respect
of its appointment to a senior role in respect of the proposed IPO, Party B may proceed
to appoint any relevant third parties to any such senior role. |
(k)
| (i) | If Party
A is required, under clause 8.9 (Costs) of the Subscription Agreement, to pay an amount
in respect of costs and expenses in connection with the preparation, negotiation and entry
into of the Subscription Agreement and the Shareholders Agreement which is greater than USD
50,000, Party B shall, within five (5) Business Days of demand, pay to Party A an amount
which is equal to the difference between (i) the total amount actually paid or required
to be paid by Party A under clause 8.9 (Costs) of the Subscription Agreement, and
(ii) USD 50,000; |
| (ii) | If Party
A is required to pay an amount (including, without limitation, any costs and expenses in
connection with the preparation, negotiation and entry into of the SPAC Documents and the
consummation of the transactions contemplated thereby and any legal counsel fees) under the
SPAC Documents or in connection with the transaction contemplated thereby, Party B shall,
within five (5) Business Days of demand, pay to Party A an amount which is equal to
the total amount actually paid or required to be paid by Party A under subparagraphs (a) and
(b) above; |
| (iii) | Party
B shall pay to Party A, within five (5) Business Days of demand, the amount of all costs
and expenses (including legal fees) incurred by Party A in connection with the negotiation,
preparation, printing and execution of this Confirmation; and |
| (iv) | Party
B shall pay to Party A, within five (5) Business Days of demand the amount of all costs
and expenses (including legal fees) reasonably incurred by it in connection with (if applicable)
the Disposal or attempted Disposal of the Underlying Shares pursuant to "Private
Auction Process" above (including, without limitation, any fees, costs or expenses
incurred by Party A in appointing and retaining the services of any Leading Dealer), but
without double counting with any amount of Transaction Expenses deducted by Party A, in accordance
with the terms of this Confirmation, in respect of the Disposal or attempted Disposal of
the Underlying Shares pursuant to the provisions of "Private Auction Process"
above. For the avoidance of doubt, Party B shall pay such costs and expenses incurred in
connection with "Private Auction Process" above even if Party A does not
Dispose of some or all the Underlying Shares pursuant thereto. |
| (l) | The undertakings
in this sub-paragraph (l) remain in force from the Trade Date until the Termination
Date: |
| (i) | Party B
shall not (and shall ensure that no other member of the Party B Group will) directly or indirectly
use the proceeds of this Transaction, any other Transaction Document or any SPAC Document,
or lend, contribute or otherwise make available such proceeds, to any subsidiary, joint venture
partner or other person to fund or facilitate any activities or business of, with or related
to any Restricted Party or any person who, at the time of such funding or facilitation, is
in a Sanctioned Country, to the extent any applicable Sanctions would prohibit nationals
or residents of the European Union and/or the United States from directly engaging in such
activities or business; or in any other manner that would result in a violation of applicable
Sanctions by any person (including Party A or any other person participating in this Transaction); |
| (ii) | Party
B shall not (and shall ensure that no other member of the Party B Group will) engage in any
Sanctionable Activity or knowingly violate applicable Sanctions; |
| (iii) | to the
extent Party B engages in any business involving Restricted Parties or Sanctioned Countries,
it shall do so without any involvement, directly or indirectly, of Party A or this Transaction
and shall maintain policies and procedures designed to prevent such business from violating
applicable Sanctions; |
| (iv) | Party
B shall provide written notice of any business or transaction undertaken by Party B, or any
member of the Party B Group, involving (directly or indirectly) any Sanctioned Countries,
or that otherwise involves a Restricted Party, in breach of applicable Sanction, to the extent
possible in advance of, and in any event promptly upon, Party B, or the relevant member of
the Party B Group, commencing such business or transaction, together with sufficient details
of such business or transaction as Party A may require to satisfy any Sanctions-related laws,
regulations or requirements to which Party A is subject; |
| (v) | Party B
shall not (and shall ensure that no other member of the Party B Group will), fund all or
part of any payment under or in connection with this Transaction, any other Transaction Document
or any SPAC Document out of proceeds derived from business or transactions with a Restricted
Party or from any activity which is in breach of any applicable Sanctions; and |
| (vi) | Party
B shall ensure that the Party B Group maintains appropriate policies, procedures, controls
and safeguards designed to prevent any action being taken that would be contrary to the undertakings
in this sub-paragraph (l). |
| (m) | Party B
shall not consent to any extension or amendment of the SPAC Lock-Up applicable to Party A. |
5.3 Additional
Events of Default | (a) | In
addition to the Events of Default in Section 5 of the Agreement, it shall be an additional
Event of Default in respect of Party B if any Relevant Person: |
| (i) | at any
time is not in compliance with its disclosure obligations required under applicable law or
undertakes any action that constitutes market abuse under any relevant laws; |
| (ii) | is on
the date of a Party B Request for Sale in possession of any material non-public information
in respect of FFG, LGHL and/or the shares of FFG or LGHL; or |
| (iii) | at any
time is not in compliance with any applicable Anti-Corruption Laws or any applicable Anti-Money
Laundering Laws. |
| (b) | Party B
will notify Party A upon Party B becoming aware that a circumstance that constitutes an Event
of Default under subparagraph (a) above has arisen. |
| (c) | For the
purposes of this Transaction, the "Cross Default" provisions of section
5(a)(vi) of the Agreement are amended as follows: |
| (i) | each of
FFG and LGHL shall be a "Specified Entity" in relation to Party B; |
| (ii) | "Specified
Indebtedness" will have the meaning given to it in Section 14 of the Agreement;
and |
| (iii) | "Threshold
Amount" shall mean, with respect to Party B or a Specified Entity of Party B, USD
30,000,000, determined in accordance with generally accepted accounting principles in the
country of such party's incorporation consistently applied, as at the end of such party's
most recently completed financial year for which audited financial statements are publicly
available (and for such purposes any Specified Indebtedness denominated in a currency other
than the currency in which such audited financial statements of such party are denominated
shall be converted into the currency in which such audited financial statements are denominated
at an exchange rate reasonably chosen by Party A). |
| (d) | It shall
be an Additional Event of Default if Party B, FFG or LGHL, as the case may be, fails to comply
with or perform any agreement or obligation to be complied with or performed by such party
under the Shareholders Agreement, the Subscription Agreement, the Settlement Agreement, the
Security Agreement, the Custody Agreement or the Issuer Acknowledgement, and such failure
is not remedied within 30 days of Party A giving notice to Party B, FFG or LGHL, as the case
may be, of such failure. |
"Custody
Agreement" means the Custody Agreement by and between Party A, Party B and The Bank of New York Mellon, London Branch dated
on or around the Amendment and Effective Date 2 in relation to creation of the security interest pursuant to the Security Agreement.
"Issuer
Acknowledgement Letter" means the Issuer Acknowledgement and Consent issued by LGHL to Party A and acknowledged by Party B dated
on or around the Amendment and Effective Date 2.
(e) It
shall be an Additional Event of Default if:
| (i) | at any
time the trading of the Party B Shares on the Hong Kong Stock Exchange is suspended for a
period of not less than 14 consecutive trading days; or |
| (ii) | at any
time after an IPO Date, the trading of the Shares on the Exchange is suspended for a period
of not less than 14 Exchange Business Days. |
"Party
B Shares" means the ordinary shares of Party B listed on the Hong Kong Stock Exchange (Bloomberg ticker: 0656 HK).
5.4 Repeating
Representations | Party B is deemed to make (by reference to the facts
and circumstances then existing) the following Repeating Representation on each Cash |
Settlement
Payment Date: the representation set out in paragraphs 5.1(j) above.
Party
B is deemed to make (by reference to the facts and circumstances then existing) the following Repeating Representation on each Cash Settlement
Payment Date following an IPO Date: the representation set out in paragraph 5.1(i) above.
Party
B is deemed to make (by reference to the facts and circumstances then existing) the following Repeating Representations on each day from
and including the Trade Date to but excluding the Termination Date: the representations set out in paragraphs 5.1(r), 5.1(s) and
5.1(t).
"Repeating
Representations" means the representations in paragraphs 5.1(j) 5.1(r), 5.1(s), 5.1(t) and 5.1(i) above.
| 5.5 Voting Rights | Party
B shall have no right whatsoever to direct or give instructions to Party A in respect
of the exercise any voting or similar rights which may become exercisable in respect of the
Underlying Shares. |
6. Conditions Precedent
6.1 Initial Conditions Precedent
Each of the following
shall constitute a condition precedent to (i) the Effective Date occurring; and (ii) either party incurring any obligation
under this Transaction:
| (i) | on or prior
to the Effective Date, Party A has received, in form and substance satisfactory to Party
A, a legal opinion, addressed to Party A of Hong Kong counsel to Party B, as to incorporation,
capacity, authority and due execution by Party B in respect of this Confirmation, the Subscription
Agreement and the Shareholders Agreement; |
| (ii) | on or prior
to the Effective Date, Party A has received, in form and substance satisfactory to Party
A, (A) a copy of the constitutional documents of Party B, including its certificate
of incorporation, memorandum and articles of association, register of directors, register
of members and (if any) register of charges, (B) a copy of Party B's Business Registration
Certificate; |
| (iii) | on or
prior to the Effective Date, Party A has received, in form and substance satisfactory to
Party A as true copies, copies of resolutions of the directors of Party B (A) approving
the terms of the Transaction, (B) authorising a specified person or persons to execute
this Confirmation on their behalf; and (C) authorising a specified person or persons,
on their behalf, to sign and/or dispatch all documents and notices to be signed and/or dispatched
by it under or in connection with this Confirmation; |
| (iv) | on or prior
to the Effective Date, Party A has received, in form and substance satisfactory to Party
A, a specimen of the signature of each person authorised by the resolutions referred to in
paragraph (iii) above; |
| (v) | this Confirmation,
the Subscription Agreement and the Shareholders Agreement have been duly executed by the
parties thereto; |
| (vi) | that, upon
the completion of the subscription for the Initial Underlying Shares on the Subscription
Date, (a) the total number of Shares held by Party A will be not more than 15 per cent.
of the total number of all outstanding Shares in the Issuer, and (b) the Initial Underlying
Shares subscribed for by Party A will be not more than two times the aggregate number of
Shares subscribed for, pursuant to the Subscription Agreement, by all other Investors (as
defined in the Subscription Agreement) other than (i) Party A, and (ii) any
Investor which is an Affiliate of Party B; and |
| (vii) | The
Issuer's register of members has been updated to reflect the completion of the subscription
of the Relevant Subscription Shares (as defined in the Subscription Agreement). |
6.2 Amendment Conditions Precedent
Each of the following
shall constitute a condition precedent to (i) the Amendment Effective Date 1 occurring; and (ii) the obligations of the parties
under this Amended and Restated Confirmation:
| (i) | on or prior
to the Amendment Effective Date 1, Party A has received, in form and substance satisfactory
to Party A, a legal opinion, addressed to Party A of Hong Kong counsel to Party B, as to
incorporation, capacity, authority and due execution by Party B in respect of this Confirmation; |
| (ii) | on or prior
to the Amendment Effective Date 1, Party A has received, in form and substance satisfactory
to Party A, (A) a copy of the constitutional documents of the Party B, including its
certificate of incorporation, memorandum and articles of association, register of directors,
register of members and (if any) register of charges, (B) a copy of Party B's Business
Registration Certificate; |
| (iii) | on or prior
to the Amendment Effective Date 1, Party A has received, in form and substance satisfactory
to Party A as true copies, copies of resolutions of the directors of Party B (A) approving
the terms of the Transaction, (B) authorising a specified person or persons to execute
this Confirmation on their behalf; and (C) authorising a specified person or persons,
on their behalf, to sign and/or dispatch all documents and notices to be signed and/or dispatched
by it under or in connection with this Confirmation; |
| (iv) | on or prior
to the Amendment Effective Date 1, Party A has received, in form and substance satisfactory
to Party A, a specimen of the signature of each person authorised by the resolutions referred
to in paragraph (iii) above; |
| (v) | this Confirmation
and the SPAC Documents have been duly executed by the parties thereto; and |
| (vi) | that, upon
the Closing Date, the total number of Shares held by Party A will be not more than 15 per
cent. of the total number of all outstanding Shares in the Issuer. |
7. Margining Provisions
| Independent Credit Cushion: | (a) |
If, on any Independent Credit Cushion Valuation Date during the
Independent Credit Cushion Period, the Independent Credit Cushion Amount exceeds the Independent Credit Cushion Balance, Party A
shall notify Party B and Party B shall, by no later than the third (3rd) Business Day after the date of such notice,
transfer to Party A Eligible Credit Support in an amount at least equal to the Independent Credit Cushion Delivery Amount, provided
that Party B shall not be required to make such a transfer of Eligible Credit Support if the Independent Credit Cushion Delivery
Amount for that Independent Credit Cushion Valuation Date is less than the applicable Independent Credit Cushion Minimum Transfer
Amount. |
| (b) | If, on
any Independent Credit Cushion Valuation Date during the Independent Credit Cushion Period,
the Independent Credit Cushion Balance exceeds the Independent Credit Cushion Amount, if
Party B submits a written request to Party A (a "Return Request"), Party
A shall, by no later than the third (3rd) Business Day after the date on which
it receives such Return Request, transfer to Party B Equivalent Credit Support in an amount
as of the date of transfer at least equal to the applicable Independent Credit Cushion Return
Amount, provided that Party A shall not be required to make such a transfer of Equivalent
Credit Support if the Independent Credit Cushion Return Amount for that Independent Credit
Cushion Valuation Date is less than the applicable Independent Credit Cushion Minimum Transfer
Amount. |
"Eligible Credit
Support" means cash denominated in EUR. "Equivalent Credit Support" means cash denominated in EUR.
"Independent
Credit Cushion Balance" means, with respect to Party B and an Independent Credit Cushion Valuation Date, the aggregate amount
of all Eligible Credit Support that has been transferred to or received by Party A pursuant to the provisions of "Independent
Credit Cushion" above, together with any proceeds of such Eligible Credit Support and accrued interest on such Eligible Credit
Support pursuant to the provisions of "Interest on Independent Credit Cushion Balance" below, in each case as reduced
by any transfer of Equivalent Credit Support from Party A to Party B pursuant to sub-paragraph (b) above and any transfer of an
Independent Credit Cushion Interest Amount from Party A to Party B pursuant to the provisions of "Interest on Independent Credit
Cushion Balance" below.
"Independent
Credit Cushion Commencement Date" means the date falling one (1) calendar year after the Effective Date.
"Independent
Credit Cushion Delivery Amount" means, in respect of Party B and an Independent Credit Cushion Valuation Date, the amount by
which the Independent Credit Cushion Amount exceeds the Independent Credit Cushion Balance.
"Independent Credit
Cushion Minimum Transfer Amount" means:
| (a) | in respect
of a transfer of Equivalent Credit Support by Party A, EUR 1,000,000; and |
| (b) | in respect
of a transfer of Eligible Credit Support by Party B, EUR 1,000,000. |
"Independent
Credit Cushion Period" means the period from and including the Independent Credit Cushion Commencement Date to and including
the Termination Date.
"Independent
Credit Cushion Return Amount" means, in respect of Party A and an Independent Credit Cushion Valuation Date, the amount by which
the Independent Credit Cushion Balance as of the third (3rd) Business Day after the relevant Return Request exceeds the Independent
Credit Cushion Amount as of the third Business Day after the relevant Return Request.
"Independent
Credit Cushion Valuation Date" means each Business Day during the Independent Credit Cushion Period.
Independent Credit
Cushion Amount: | On any Independent
Credit Cushion Valuation Date during the Independent Credit Cushion Period prior to the Amendment Effective Date
2 (exclusive): |
| (a) | if on such
Independent Credit Cushion Valuation Date the Equity Notional Amount is greater than EUR
60,000,000, an amount equal to the Equity Notional Amount on that Independent Credit Cushion
Valuation Date minus EUR 60,000,000; and |
| (b) | if on such
Independent Credit Cushion Valuation Date the Equity Notional Amount is equal to or less
than EUR 60,000,000, zero. |
On any
Independent Credit Cushion Valuation Date during the Independent Credit Cushion Period following the Amendment Effective Date 2 (inclusive):
| (a) | if on such
Independent Credit Cushion Valuation Date the Equity Notional Amount is greater than EUR
20,000,000, an amount equal to the Equity Notional Amount on that Independent Credit Cushion
Valuation Date minus EUR 20,000,000; and |
| (b) | if on such
Independent Credit Cushion Valuation Date the Equity Notional Amount is equal to or less
than EUR 20,000,000, zero. |
Interest on Independent
Credit Cusion Balance: | The "Independent
Credit Cushion Interest Amount" means, with respect to an Independent Credit Cushion
Interest Period, the amount of interest determined in EUR and calculated for each day in that
Independent Credit Cushion Interest Period on the principal amount of the Independent Credit
Cushion Balance, determined for each such day by Party A as follows: |
| (a) | the amount
of the Independent Credit Cushion Balance on that day; multiplied by |
| (b) | Daily Simple
ESTR (as defined below), plus 8.5bps plus the Prevailing Spread for that day,
minus 0.5 per cent. per annum; divided by |
subject to a minimum of zero.
Party
A shall pay the Independent Credit Cushion Interest Amount to Party B on each Floating Rate Payer Payment Date, provided that an
Independent Credit Cushion Delivery Amount would not be created thereby.
“Daily
Simple ESTR” means, for any day (an “ESTR Interest Day”), an interest rate per annum equal to the greater of (a) ESTR
for the day that is one Business Day prior to (i) if such ESTR Interest Day is a Business Day, such ESTR Interest Day or(ii) if
such ESTR Interest Day is not a Business Day, the Business Day immediately preceding such ESTR Interest Day and (b) 0.00%.
“ESTR”
means, with respect to any Business Day, a rate per annum equal to the Euro Short Term Rate for such Business Day published by the ESTR
Administrator on the ESTR Administrator’s Website.
“ESTR
Administrator” means the European Central Bank (or any successor administrator of the Euro Short Term Rate).
"Independent
Credit Cushion Interest Period" means the period from (and including) the last Business Day on which an Independent Credit Cushion
Interest Amount was transferred (or, if no Independent Credit Cushion Interest Amount has yet been transferred, the Business Day on which
Eligible Credit Support or Equivalent Credit Support was transferred to or received by Party A) to (but excluding) the Business
Day on which the current Independent Credit Cushion Interest Amount is transferred.
Reset Credit
Cushion: | (a) |
If, on any Reset Credit Cushion Valuation Date, the Reset Credit Cushion Amount exceeds the Reset
Credit Cushion Balance, Party B shall, by no later than the third (3rd) Business Day after such Reset Credit Cushion Valuation
Date, transfer to Party A Eligible Credit Support in an amount at least equal to the Reset Credit Cushion Delivery Amount, provided
that Party B shall not be required to make such a transfer of Eligible Credit Support if the Reset Credit Cushion Delivery Amount
for that Reset Credit Cushion Valuation Date is less than the applicable Reset Credit Cushion Minimum Transfer Amount. |
| (b) | If, on
any Reset Credit Cushion Valuation Date, the Reset Credit Cushion Balance exceeds the Reset
Credit Cushion Amount, if Party B submits a written request to Party A (a "Return
Request"), Party A shall, by no later than the third (3rd) Business Day
after the date on which it receives such Return Request, transfer to Party B Equivalent Credit
Support having a Value as of the date of transfer at least equal to the applicable Reset
Credit Cushion Return Amount, provided that Party A shall not be required to make
such a transfer of Equivalent Credit Support if the Reset Credit Cushion Return Amount for
that Reset Credit Cushion Valuation Date is less than the applicable Reset Credit Cushion
Minimum Transfer Amount. |
"Reset
Credit Cushion Balance" means, with respect to Party B and a Reset Credit Cushion Valuation Date, the aggregate of all Eligible
Credit Support that has been transferred to or received by Party A pursuant to "Reset Credit Cushion", together with
any proceeds of such Eligible Credit Support and accrued interest on such Eligible Credit Support pursuant to "Interest on Reset
Credit Cushion Balance" below, in each case as reduced by any transfer of Equivalent Credit Support from Party A to Party B
pursuant to sub-paragraph (b) above, and any transfer of a Reset Credit Cushion Interest Amount from Party A to Party B pursuant
to "Interest on Reset Credit Cushion Balance" below.
"Reset
Credit Cushion Delivery Amount" means, in respect of Party B and a Reset Credit Cushion Valuation Date, the amount by which
Reset Credit Cushion Amount exceeds the Reset Credit Cushion Balance.
"Reset
Credit Cushion Return Amount" means, in respect of Party A and a Reset Credit Cushion Valuation Date, the amount by which the
Value of the Reset Credit Cushion Balance as of the third (3rd) Business Day after the relevant Return Request exceeds the
Reset Credit Cushion Amount as of the third Business Day after the relevant Return Request.
"Reset Credit Cushion
Minimum Transfer Amount" means:
prior to the Amendment Effective Date 2 (exclusive):
| (a) | in respect
of a transfer of Equivalent Credit Support by Party A, EUR 1,000,000; and |
| (b) | in respect
of a transfer of Eligible Credit Support by Party B, EUR 1,000,000; and |
following the Amendment Effective
Date 2 (inclusive),
| (a) | in respect
of a transfer of Equivalent Credit Support by Party A, EUR 500,000; and |
| (b) | in respect
of a transfer of Equivalent Credit Support by Party B, EUR 500,000. |
"Reset Credit Cushion
Valuation Date" means:
| (a) | at any time prior to an IPO Date, any
Pre-IPO Valuation Date; and |
| (b) | at any time on or after an IPO Date,
any Post-IPO Valuation Date. |
| | | |
Reset Credit Cushion
Amount: | Means:
|
with
respect to Party B on a Reset Credit Cushion Valuation Date prior to the Amendment Effective Date 2 (exclusive):
| (a) | if the
Reset Credit Cushion Exposure is equal to or less than the Reset Credit Cushion Exposure
Threshold, zero; and |
| (b) | if the
Reset Credit Cushion Exposure is greater than the Reset Credit Cushion Exposure Threshold,
an amount equal to the Reset Credit Cushion Exposure; |
with
respect to Party B on a Reset Credit Cushion Valuation Date following the Amendment Effective Date 2 (inclusive), an amount equal to:
| (i) | the Equity
Notional Amount as of such Reset Credit Cushion Valuation Date minus |
| (ii) | Independent
Credit Cushion Balance as of such Reset Credit Cushion Valuation Date minus |
| (iii) | the product
of: (A) 67.5 per cent. and (B) Reference Price with respect to such Reset Credit
Cushion Valuation Date and (C) the sum of the Number of Collateral Shares and Number
of Shares as of such Reset Credit Cushion Valuation Date. |
Where:
"Reference
Price" means, with respect to a Post-IPO Valuation Date, the arithmetic average of the daily VWAP Price on such Post-IPO Valuation
Date and the Exchange Business Day immediately preceding that date.
"Number
of Collateral Shares" means, with respect to a Post-IPO Valuation Date, the number of Shares charged by Party B in favour of
Party A subject to a Security Agreement between Party A and Party B dated on or around the date of this Confirmation (the "Security
Agreement"), provided that the Number of Collateral Shares shall not exceed 11,717,300 (exclusive).
"VWAP
Price" means, for any Exchange Business Day, the per-Share volume weighted average price based on transactions executed on the
Exchange as displayed under the heading “Bloomberg VWAP” on Bloomberg page “LANV US <Equity> AQR”
with only “Normal Trade” checked in the options, with 9:30 and 16:00 selected (or any successor thereto), at 18:00 New York
time on the same Exchange Business Day (or any successor thereto) in respect of the period from the scheduled open of trading of the
regular trading session on the Exchange until the Scheduled Closing Time on such Exchange Business Day, or, in the event such price is
not so reported on such Exchange Business Day for any reason or is manifestly erroneous, as reasonably determined by the Calculation
Agent, using a commercially reasonable alternate means of calculating such VWAP Price on such day.
Reset Credit
Cushion
Exposure: | (a) | On
any Pre-IPO Valuation Date: |
| (i) | if on such
Pre-IPO Valuation Date, the Latest Valuation Price is equal to or greater than the Reset
Credit Cushion Threshold Price, zero; and |
| (ii) | if on such Pre-IPO Valuation Date,
the Latest Valuation Price is less than the Reset Credit Cushion Threshold Price, an
amount equal to the product of: |
| (A) | the Underlying Shares on such Pre-IPO
Valuation Date; |
| | | |
| (B) |  ;
and |
| (C) | the Initial Price minus the
Latest Valuation Price. |
Where:
In the formula in (B) above:
| A
= |
The
Independent Credit Cushion Amount on such Pre-IPO Valuation Date. |
| B
= |
The
Equity Notional Amount on such Pre-IPO Valuation Date. |
"Latest
Valuation Price" means, with respect to a Pre-IPO Valuation Date, a price per Share determined by the Calculation Agent on such
Periodical Valuation Date, taking into account the Periodical Valuation Price and other relevant information provided to pursuant to
"Periodical Valuation" below.
"Pre-IPO
Valuation Date" has the meaning given to it in "Periodical Valuation" below.
"Reset
Credit Cushion Threshold Price" means a price per Share which is equal to 60 per cent. of the Initial Price.
| (b) | On any
Post-IPO Valuation Date prior to the Amendment Effective Date 2 (exclusive): |
| (i) | if on such
Post-IPO Valuation Date, the Quarterly Average Price is equal to or greater than the Reset
Credit Cushion Threshold Price, zero; and |
| (ii) | if on
such Post-IPO Valuation Date, the Quarterly Average Price is less than the Reset Credit Cushion
Threshold Price, an amount equal to the product of: |
| (A) | the Underlying
Shares on such Post-IPO Valuation Date; |
| (B) |  ;
and |
| (C) | the Initial
Price minus the Quarterly Average Price. |
Where:
In
the formula in (B) above:
| A
= |
The
Independent Credit Cushion Amount on such Post-IPO Valuation Date. |
| B
= |
The
Equity Notional Amount on such Post-IPO Valuation Date. |
"Post-IPO Valuation
Date" means,
| |
(a) | at
any time on or after an IPO Date but prior to the Amendment Effective Date 2 (exclusive),
the Exchange Business Day immediately preceding each 1 January, 1 April, 1 July and
1 October in each year, subject to adjustment in accordance with the Business Day Convention;
and |
| |
| |
| |
(b) | at any time following
the Amendment Effective Date 2 (inclusive), each Exchange Business Day during the period
from and including the Amendment Effective Date 2 to and including the Termination Date,
subject to adjustment in accordance with the Business Day Convention. |
"Post-IPO
Valuation Period" means, at any time on or after an IPO Date but prior to the Amendment Effective Date 2 (exclusive), each period
from (and including) a Post-IPO Valuation Date, to (but excluding) the next succeeding Post-IPO Valuation Date, provided that the
initial Post-IPO Valuation Period shall commence on (and include) the IPO Date, and the final Post-IPO Valuation Period will end on (but
exclude) the Termination Date.
"Quarterly
Average Price" means, in respect of a Post IPO Valuation Date prior to the Amendment Effective Date 2 (exclusive), the average
of the closing price per Share on each Exchange Business Day falling during the Post-IPO Valuation Period ending on such Post-IPO Valuation
Date, as determined by the Calculation Agent. If any Exchange Business Day during such Post-IPO Valuation Period was a Disrupted Day,
the closing price of the Shares in respect of such Disrupted Day will be determined by the Calculation Agent, in good faith and in a
commercially reasonable manner, by reference to the last available closing price of the Shares as of such Disrupted Day and such market
information as it determines to be relevant.
Reset Credit Cushion
Exposure Threshold: | Means, on any Reset Credit Cushion
Valuation Date prior to the Amendment Effective Date 2 (exclusive), an amount equal to the product of: |
| (b) | the
Equity Notional Amount as of such Reset Credit Cushion Valuation Date minus the Independent
Credit Cushion Amount (if any) as of such Reset Credit Cushion Valuation Date. |
| Interest on Reset Credit Cushion Balance: | The
"Reset Credit Cushion Interest Amount" means, with respect to a Reset Credit
Cushion Interest Period, the amount of interest determined in EUR and calculated for each
day in that Reset Credit Cushion Interest Period on the principal amount of the Reset Credit
Cushion Balance, determined for each such day by Party A as follows: |
| (a) | the
amount of the Reset Credit Cushion Balance on that day; multiplied by |
| (b) | Daily
Simple ESTR (as defined above), plus 8.5bps, minus 0.5 per cent. per annum;
divided by |
subject to a minimum of zero.
Party
A shall pay the Reset Credit Cushion Interest Amount to Party B on each Floating Rate Payer Payment Date, provided that a Reset
Credit Cushion Delivery Amount would not be created thereby.
"Reset
Credit Cushion Interest Period" means the period from (and including) the last Business Day on which a Reset Credit Cushion
Interest Amount was transferred (or, if no Reset Credit Cushion Interest Amount has yet been transferred, the Business Day on which Eligible
Credit Support or Equivalent Credit Support was transferred to or received by Party A) to (but excluding) the Business Day on which
the current Reset Credit Cushion Interest Amount is transferred.
| Periodical Valuation: | On
each Pre-IPO Valuation Date, Party B shall provide to Party A: |
| (a) | a
copy of the latest annual report of the Issuer containing audited consolidated financial
statements for the Issuer's most recent fiscal year, certified by independent certified public
accountants and prepared in accordance with IFRS (the "Annual Report");
and |
| (b) | a
report prepared by the Valuation Firm addressed to and for the benefit of Party A containing
an independent estimate of the value of the Underlying Shares as of the Pre-IPO Valuation
Date (the value per Underlying Share so estimated, the "Periodical Valuation Price"),
based on the Annual Report and such other information as the Valuation Firm and Party A may
deem relevant. The report prepared by the Valuation Firm may be relied upon by Party A and
its Affiliates. |
"IFRS" means
the International Financial Reporting Standards.
"Pre-IPO
Valuation Date" means, each date falling 150 calendar days after the end of each fiscal year of the Issuer falling during the
period from (and including) the Effective Date to (but excluding) an IPO Date.
"Valuation
Firm" means an independent third party firm mutually agreed by the parties, provided that if the parties have not agreed
upon a Valuation Firm by the date falling 90 calendar days before a Pre-IPO Valuation Date, Party A shall select the Valuation Firm in
its sole and absolute discretion.
Default: | (a) | The
obligation of each party under this paragraph 7 (Margining Provisions) to make
transfers to each other of Eligible Credit Support or Equivalent Credit Support is subject
to (i) the condition precedent that no Event of Default or Potential Event of Default
with respect to the other party has occurred and is continuing, (ii) the condition precedent
that no Transaction Early Termination Date in respect of this Transaction has occurred or
been effectively designated and (iii) each other condition specified in the Agreement
to be a condition precedent for the purpose of Section 2(a)(iii). |
| (b) | If
a Transaction Early Termination Date is designated or deemed to occur, then an amount equal
to the aggregate of (i) the Independent Credit Cushion Balance (if any) and (ii) the
Reset Credit Cushion Balance (if any), in each case determined as though the Transaction
Early Termination Date were a Valuation Date, will be deemed to be an Unpaid Amount due to
Party B for the purposes of Section 6(e) of the Agreement. |
"Valuation
Date" means, as applicable, a Reset Credit Cushion Valuation Date or an Independent Credit Cushion Valuation Date.
| Indemnity: | Party
B agrees that it will, on demand, indemnify and hold Party A harmless from, and reimburse
as incurred, any and all reasonable costs, claims, liabilities and expenses (including legal
fees and expenses) on a full indemnity basis arising out of or in connection with Party A's
entry into any SPAC Documents, holding of the PubCo Ordinary Shares, entry into the Settlement
Agreement, entry into the Security Agreement and/or entering into this Transaction, unless
such cost, claim, liability and/or expense is attributable solely to the wilful default,
gross negligence or |
fraud
by Party A, and excluding any indirect, consequential, lost profit or opportunities, punitive damages.
Party
B agrees to pay the relevant amount to Party A within 2 Business Days of demand by Party A.
Party
B agrees that this indemnity shall survive any maturity, termination or novation of the Transaction and is a full indemnity without any
limitation.
For
the avoidance of doubt, this "Indemnity" provision will not be triggered solely due to any drop in the price of the
PubCo Ordinary Shares after the IPO Date or the consummation of transactions in accordance with the terms of the SPAC Documents.
| Final Return: | On: (i) any Cash Settlement Payment Date falling after
the Termination Date in accordance with the provisions of “Cash Settlement Payment Date” above, or (ii) in
respect of a Disposal of all (but not less than all) of the Underlying Shares pursuant to the provisions of “Early
Disposal” above, the Cash Settlement Payment Date specified in accordance with sub-paragraph (a) of the provisions
of “Early Cash Settlement” above, Party A shall (without double counting) pay and/or deliver to Party
B Equivalent Credit Support in an amount equal to the aggregate of (i) the Independent Credit Cushion Balance (if any)
and (ii) the Reset Credit Cushion Balance (if any) as of such date. |
For
the avoidance of doubt, any amount payable by Party A to Party B in accordance with the provisions of this “Final Return”
may, in accordance with the terms of Section 2(c) of the Agreement, be netted against any amount payable by Party B to Party
A in the same currency on the same day (including, without limitation, any Equity Amount payable by Party B to Party A).
8. Optional Early Termination
(a) Provided
that the IPO Date has occurred:
| (i) | Party
A shall have the right to early terminate all or part of this Transaction on any Business
Day during the Second Lock-up Period and Third Lock-up Period subject to the prior written
consent (which may be by email) of Party B; |
| (ii) | Party
B shall have the right to early terminate all or part of this Transaction on any Business
Day during the Second Lock-up Period and Third Lock-up Period without the prior written consent
of Party A; and |
| (iii) | either
party shall have the right to early terminate all or part of this Transaction on any Business
Day (x) after the Second Lock-up Period but before the Third Lock-up Period commences
and (y) after the Third Lock-up Period ends without the prior written consent of the
other party, |
(each,
the "Optional Early Termination"), by delivering a notice in writing (which may be by email) (an "Optional Early
Termination Notice") to the other party to commence the Liquidation Period (as defined below) for the Termination Portion (as
defined below). Where this Transaction is terminated in part only, each party shall have the right to exercise Optional Early Termination
on more than one occasion.
| (b) | In
order for the Optional Early Termination Notice to be valid, it must specify the portion
of the Transaction proposed to be terminated (expressed as a percentage, and which may be
100 per cent.) (the "Termination Portion"). |
(c) If
the Optional Early Termination Notice is validly delivered:
| (i) | Party
A shall use reasonable endeavours to Dispose of a portion of the Underlying Shares corresponding
to the Termination Portion pursuant to the provisions of "Disposal of Underlying Shares"
above (subject to, among others, any applicable lock-up restrictions) within a period of
time determined by the Calculation Agent with consultation with Party B (the "Liquidation
Period"); |
| (ii) | if,
upon expiration of the Liquidation Period, Party A is unable to Dispose of the entirety of
the Termination Portion specified by such Optional Early Termination Notice, Party A will
make adjustments in its reasonable discretion (such as adjusting the Termination Portion
accordingly or transferring the portion that fails to be Disposed of to Party B); |
| (iii) | the
Termination Portion of this Transaction shall be settled pursuant to the provisions of "Early
Cash Settlement" above; and |
| (iv) | the
Calculation Agent shall adjust the Underlying Shares for the portion of the Transaction remaining
after giving effect to such Optional Early Termination in good faith and a commercially reasonable
manner to account for such Optional Early Termination and such adjustment shall take effect
from the Cash Settlement Payment Date in respect of the Termination Portion. |
9. Additional
Defined Terms
| "Applicable
Law" or "applicable law" |
means,
with respect to any person, any applicable law, legislation, statute, ordinance, code, order, decree, directive, judgment, decision,
injunction, licence, permit, rule, regulation, treaty, request or guideline of any governmental or regulatory authority that are
applicable to and binding on such person; |
| |
|
| "Block Sale" |
means the sale of Shares by way of a block
sale entered into otherwise than on the Exchange; |
| |
|
| "EUR" |
means the currency introduced at the start
of the third stage of European economic and monetary union pursuant to the Treaty on the Functioning of the European Union, as amended; |
| |
|
| "On-Exchange |
means, at any time on or after an IPO Date,
a sale by Party A of the |
| |
|
| Disposal" |
Underlying Shares on the Exchange, which for
the avoidance of doubt, shall not include a Block Sale; |
| |
|
| "RMB" |
means the lawful currency of the People's Republic
of China; and |
| |
|
| "USD" |
means the lawful currency of the United States
of America. |
10. Amendments
to the ISDA Master Agreement
The parties
agree to make the following amendment to Agreement:
| Credit Support Documents: | Party A: Not applicable. |
| | Party B: Applicable. Each of the Security Agreement, the
Custody Agreement and Issuer Acknowledgement Letter shall be a "Credit Support Document" for purposes of this Transaction. |
Agreement
to deliver
Documents: | For
the purpose of Sections 4(a)(i) and (ii) of the Agreement, Party B agrees to deliver
to Party A each document, each in form and substance satisfactory to Party A, as required
under the Settlement Agreement, Security Agreement and Custody Agreement at such time as
specified in the relevant agreement. Each such document shall be covered by the representation
set forth in Section 3(d) of the Agreement. |
Yours sincerely,
NATIXIS
| | |
| Name: | | Name: |
| | | |
| Title: | | Title: |
FOSUN INTERNATIONAL LIMITED
| | |
| Name: | | Name: |
| | | |
| Title: | | Title: |
The persons named above acknowledge
that they are duly empowered at the signature date to represent their company in connection with the execution of this Confirmation.
