UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM 8-K
CURRENT REPORT
_____________________
Pursuant
to Section 13 OR 15(d) of the
Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported):
December 18, 2015
GP INVESTMENTS ACQUISITION CORP.
(Exact name of registrant as specified in
its charter)
Cayman Islands |
001-37397 |
N/A |
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
150 E. 52nd Street, Suite 5003 |
|
New York, New York |
10022 |
(Address of principal executive offices) |
(Zip Code) |
(212) 430-4340
(Registrant’s telephone number, including
area code)
Not Applicable
(Former name or former address, if changed
since last report)
Check the appropriate box below if the Form 8-K is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
|
¨ |
Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
¨ |
Pre-commencements communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. |
Entry into a Material Definitive Agreement. |
On December
18, 2015, GP Investments Acquisition Corp. (the “Company”) entered into an indemnification agreement (the “Indemnification
Agreement”) with Mr. Alexandre Hohagen pursuant to which the Company will indemnify Mr. Hohagen under certain circumstances
for acts or omissions in connection with his service on the Board.
On December 18, 2015,
the Company entered into a letter agreement with Mr. Hohagen (the “Letter Agreement”) pursuant to which Mr. Hohagen
has agreed to be bound by the terms of the Insider Letter entered into among the Company, and its officers, its directors, GPIC,
Ltd. and GPIAC, LLC on May 19, 2015.
On December 18, 2015,
Mr. Hohagen, Continental Stock Transfer & Trust Company and the Company entered into a securities escrow agreement (the “Escrow
Agreement”).
The foregoing is intended only to be a summary
of the Indemnification Agreement, the Letter Agreement and the Escrow Agreement, does not purport to be complete and is qualified
in its entirety by the terms of the foregoing agreements, copies of which are attached as Exhibits 10.1 through 10.3 to this Current
Report on Form 8-K and incorporated herein by reference.
Item 5.02. |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Departure of Director
On December 18, 2015,
Mr. Jaime Cohen Szulc notified the Company of his resignation from the board of directors (the “Board”), effective
immediately. Mr. Szulc’s resignation as a director did not arise from any disagreement with the Company on any matter relating
to the Company’s operations, policies or practices
New Director
On December 18, 2015, the Board elected
Mr. Hohagen to the Board as a director, effective immediately. Concurrent with his election as a director, Mr. Hohagen was appointed
to serve as a member of the audit committee and a member and chairperson of the compensation committee.
Mr. Hohagen, 47, is an investor and
board advisor with more than 20 years of experience in technology and media in Latin America and US Hispanics. Until June of
this year, Mr. Hohagen was the Vice President for Facebook in Latin America & US Hispanics, a position he held since
February 2011. Before Facebook, Mr. Hohagen was responsible for initiating Google's operations in the Latin America. Between
2005 and 2011, Mr. Hohagen led Google’s operations in more than 20 countries in Latin America. Mr. Hohagen also
previously held the position of Head of Global Sales in the U.S. and vice president of advertising and e-commerce for UOL
(Universo Online). He was also previously General Manager for HBO in Brazil, where he led the commercial area of the premium
channels (HBO, Warner). Mr. Hohagen previously worked for Dow Chemical Company, Boehringer Ingelheim and ABN Amro Bank. Mr.
Hohagen serves on the board of directors of Estácio Participações S.A. Mr. Hohagen has a degree in
journalism and advertising from FIAM, a master's degree in Human Resources from University of Sao Paulo and has attended
people management courses at IMD (Switzerland), FGV (Brazil) and IIHR (Netherlands). Mr. Hohagen is well qualified to serve
as a director due to his leadership experience and business acumen.
On December 18, 2015, Mr. Hohagen received
20,000 ordinary shares of the Company pursuant to a securities assignment agreement with GPIAC, LLC, a Delaware limited liability
whose sole member is GPIC, Ltd., a Bermuda limited liability company which is an affiliate of GP Investments, Ltd. Mr. Hohagen
has agreed to hold these shares in escrow pursuant to the Escrow Agreement described above.
The information provided in Item 1.01 of
this Current Report on Form 8-K is incorporated by reference into this Item 5.02.
Item 9.01 |
Financial Statements and Exhibits. |
|
(d) |
Exhibits. The following exhibits are filed with this Form 8-K: |
Exhibit No. |
|
Description of Exhibits |
10.1 |
|
Indemnity Agreement, dated December 18, 2015, between the Company and Alexandre Hohagen. |
10.2 |
|
Letter Agreement, dated December 18, 2015, between the Company and the Alexandre Hohagen. |
10.3 |
|
Securities Escrow Agreement, dated December 18, 2015, among Continental Stock Transfer & Trust Company, the Company and Alexandre Hohagen. |
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned,
hereunto duly authorized.
|
GP Investments Acquisition Corp. |
|
|
|
|
|
By: |
/s/ Antonio Bonchristiano |
Dated: December 21, 2015 |
|
Name: Antonio Bonchristiano |
|
|
Title: Chief Executive Officer |
Exhibit 10.1
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (this
“Agreement”) is made as of December 18, 2015, by and between GP INVESTMENTS ACQUISITION CORP., a Cayman
Islands exempted company (the “Company”), and Alexandre Hohagen (“Indemnitee”).
RECITALS
WHEREAS, highly competent persons
have become more reluctant to serve publicly-held corporations as directors, officers or in other capacities unless they are provided
with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them
arising out of their service to and activities on behalf of such corporations;
WHEREAS, the Board of Directors of
the Company (the “Board”) has determined that, in order to attract and retain qualified individuals,
the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the
Company and its subsidiaries from certain liabilities. Although the furnishing of such insurance has been a customary and widespread
practice among publicly traded corporations and other business enterprises, the Company believes that, given current market conditions
and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time,
directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive
and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against
the Company or business enterprise itself. The amended and restated memorandum and articles of association of the Company provide
for the indemnification of the officers and directors of the Company. Indemnitee may also be entitled to indemnification pursuant
to applicable Cayman Islands law. The amended and restated memorandum and articles of association expressly provide that the indemnification
provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company
and members of the board of directors, officers and other persons with respect to indemnification, hold harmless, exoneration,
advancement and reimbursement rights;
WHEREAS, the uncertainties relating
to such insurance and to indemnification have increased the difficulty of attracting and retaining such persons’;
WHEREAS, the Board has determined
that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company’s
shareholders and that the Company should act to assure such persons that there will be increased certainty of such protection in
the future;
WHEREAS, it is reasonable, prudent
and necessary for the Company contractually to obligate itself to indemnify, hold harmless, exonerate and to advance expenses on
behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company
free from undue concern that they will not be so protected against liabilities;
WHEREAS, this Agreement is a supplement
to and in furtherance of the amended and restated memorandum and articles of association and any resolutions adopted pursuant thereto,
and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder;
WHEREAS, Indemnitee may not be willing
to serve as an officer or director, advisor or in another capacity without adequate protection, and the Company desires Indemnitee
to serve in such capacity. Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf
of the Company on the condition that he be so indemnified; and
NOW, THEREFORE, in consideration
of the premises and the covenants contained herein and subject to the provisions of the letter agreement dated as of May 19, 2015
between the Company and the Indemnitee pursuant to the Underwriting Agreement between the Company and the Underwriters in connection
with the Company’s initial public offering, the Company and Indemnitee do hereby covenant and agree as follows:
TERMS AND CONDITIONS
1. SERVICES TO THE COMPANY. Indemnitee will serve or
continue to serve as an officer, director, advisor, key employee or in any other capacity of the Company, as applicable, for so
long as Indemnitee is duly elected, appointed or retained or until Indemnitee tenders his resignation or is removed.
2. DEFINITIONS. As used in this Agreement:
2.1. References to “agent”
shall mean any person who is or was a director, officer or employee of the Company or a subsidiary of the Company or other person
authorized by the Company to act for the Company, to include such person serving in such capacity as a director, officer, employee,
advisor, fiduciary or other official of another corporation, partnership, limited liability company, joint venture, trust or other
enterprise at the request of, for the convenience of, or to represent the interests of the Company or a subsidiary of the Company.
2.2. The terms “Beneficial
Owner” and “Beneficial Ownership” shall have the meanings set forth in Rule 13d-3
promulgated under the Exchange Act (as defined below) as in effect on the date hereof.
2.3. “Cayman Court”
shall mean the courts of the Cayman Islands.
2.4. A “Change in Control”
shall be deemed to occur upon the earliest to occur after the date of this Agreement of any of the following events:
2.4.1. Acquisition of Shares by Third
Party. Other than an affiliate of GPIC, Ltd., any Person (as defined below) is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s
then outstanding securities entitled to vote generally in the election of directors, unless (1) the change in the relative
Beneficial Ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of
outstanding shares entitled to vote generally in the election of directors, or (2) such acquisition was approved in advance
by the Continuing Directors (as defined below) and such acquisition would not constitute a Change in Control under part 2.4.3 of
this definition;
2.4.2. Change in Board of Directors.
Individuals who, as of the date hereof, constitute the Board, and any new director whose election by the Board or nomination for
election by the Company’s shareholders was approved by a vote of at least two thirds of the directors then still in office
who were directors on the date hereof or whose election for nomination for election was previously so approved (collectively, the
“Continuing Directors”), cease for any reason to constitute at least a majority of the members of the
Board;
2.4.3. Corporate Transactions.
The effective date of a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination,
involving the Company and one or more businesses (a “Business Combination”), in each case, unless, following
such Business Combination: (1) all or substantially all of the individuals and entities who were the Beneficial Owners of
securities entitled to vote generally in the election of directors immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 51% of the combined voting power of the then outstanding securities of the Company entitled
to vote generally in the election of directors resulting from such Business Combination (including, without limitation, a corporation
which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly
or through one or more Subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business
Combination, of the securities entitled to vote generally in the election of directors; (2) other than an affiliate of GPIC,
Ltd., no Person (excluding any corporation resulting from such Business Combination) is the Beneficial Owner, directly or indirectly,
of 15% or more of the combined voting power of the then outstanding securities entitled to vote generally in the election of directors
of the surviving corporation except to the extent that such ownership existed prior to the Business Combination; and (3) at
least a majority of the Board of Directors of the corporation resulting from such Business Combination were Continuing Directors
at the time of the execution of the initial agreement, or of the action of the Board of Directors, providing for such Business
Combination;
2.4.4. Liquidation. The approval
by the shareholders of the Company of a liquidation of the Company or an agreement or series of agreements for the sale or disposition
by the Company of all or substantially all of the Company’s assets, other than factoring the Company’s current receivables
or escrows due (or, if such approval is not required, the decision by the Board to proceed with such a liquidation, sale, or disposition
in one transaction or a series of related transactions); or
2.4.5. Other Events. There occurs
any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
(or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether
or not the Company is then subject to such reporting requirement.
2.5. “Corporate Status”
describes the status of a person who is or was a director, officer, trustee, general partner, managing member, fiduciary, employee
or agent of the Company or of any other Enterprise (as defined below) which such person is or was serving at the request of the
Company.
2.6. "Companies Law"
shall mean the Companies Law (2013 Revision) of the Cayman Islands, as amended from time to time.
2.7. “Disinterested Director”
shall mean a director of the Company who is not and was not a party to the Proceeding (as defined below) in respect of which indemnification
is sought by Indemnitee.
2.8. “Enterprise”
shall mean the Company and any other corporation, constituent corporation (including any constituent of a constituent) absorbed
in a consolidation or merger to which the Company (or any of its wholly owned subsidiaries) is a party, limited liability company,
partnership, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the request
of the Company as a director, officer, trustee, general partner, managing member, fiduciary, employee or agent.
2.9. “Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended.
2.10. “Expenses”
shall include all direct and indirect costs, fees and expenses of any type or nature whatsoever, including, without limitation,
all reasonable attorneys’ fees and costs, retainers, court costs, transcript costs, fees of experts, witness fees, travel
expenses, fees of private investigators and professional advisors, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, fax transmission charges, secretarial services and all other disbursements, obligations or expenses
in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness
in, settlement or appeal of, or otherwise participating in, a Proceeding (as defined below), including reasonable compensation
for time spent by the Indemnitee for which he or she is not otherwise compensated by the Company or any third party. Expenses also
shall include Expenses incurred in connection with any appeal resulting from any Proceeding (as defined below), including without
limitation the principal, premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond
or its equivalent. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or
fines against Indemnitee.
2.11. References to “fines”
shall include any excise tax assessed on Indemnitee with respect to any employee benefit plan; references to “serving at
the request of the Company” shall include any service as a director, officer, employee, agent or fiduciary of the Company
which imposes duties on, or involves services by, such director, officer, employee, agent or fiduciary with respect to an employee
benefit plan, its participants or beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed
to be in the best interests of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have
acted in a manner “not opposed to the best interests of the Company” as referred to in this Agreement.
2.12. “Independent Counsel”
shall mean a law firm or a member of a law firm with significant experience in matters of corporation law and neither presently
is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either
such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar
indemnification agreements); or (ii) any other party to the Proceeding (as defined below) giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the
applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company
or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.
2.13. The term “Person”
shall have the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act as in effect on the date hereof; provided,
however, that “Person” shall exclude: (i) the Company; (ii) any Subsidiaries (as defined below) of the Company;
(iii) any employment benefit plan of the Company or of a Subsidiary (as defined below) of the Company or of any corporation
owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of shares
of the Company; and (iv) any trustee or other fiduciary holding securities under an employee benefit plan of the Company or
of a Subsidiary (as defined below) of the Company or of a corporation owned directly or indirectly by the shareholders of the Company
in substantially the same proportions as their ownership of shares of the Company.
2.14. The term “Proceeding”
shall include any threatened, pending or completed action, suit, arbitration, mediation, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the
right of the Company or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative,
or investigative or related nature, in which Indemnitee was, is, will or might be involved as a party or otherwise by reason of
the fact that Indemnitee is or was a director or officer of the Company, by reason of any action (or failure to act) taken by him
or of any action (or failure to act) on his part while acting as a director or officer of the Company, or by reason of the fact
that he is or was serving at the request of the Company as a director, officer, trustee, general partner, managing member, fiduciary,
employee or agent of any other Enterprise, in each case whether or not serving in such capacity at the time any liability or expense
is incurred for which indemnification, reimbursement, or advancement of expenses can be provided under this Agreement.
2.15. The term “Subsidiary,”
with respect to any Person, shall mean any corporation or other entity of which a majority of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by that Person.
3. INDEMNITY IN THIRD-PARTY PROCEEDINGS.
To the fullest extent permitted by applicable law, the Company
shall indemnify, hold harmless and exonerate Indemnitee in accordance with the provisions of this Section 3 if
Indemnitee was, is, or is threatened to be made, a party to or a participant (as a witness or otherwise) in any Proceeding, other
than a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 3,
Indemnitee shall be indemnified, held harmless and exonerated against all Expenses, judgments, liabilities, fines, penalties and
amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect
of such Expenses, judgments, fines, penalties and amounts paid in settlement) actually and reasonably incurred by Indemnitee or
on his behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal Proceeding,
had no reasonable cause to believe that his conduct was unlawful.
4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY.
To the fullest extent permitted by applicable law, the Company
shall indemnify, hold harmless and exonerate Indemnitee in accordance with the provisions of this Section 4 if
Indemnitee was, is, or is threatened to be made, a party to or a participant (as a witness or otherwise) in any Proceeding by or
in the right of the Company to procure a judgment in its favor. Pursuant to this Section 4, Indemnitee shall be
indemnified, held harmless and exonerated against all Expenses actually and reasonably incurred by him or on his behalf in connection
with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Company. No indemnification, hold harmless or exoneration for Expenses shall
be made under this Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have been
finally adjudged by a court to be liable to the Company, unless and only to the extent that any court in which the Proceeding was
brought or the Cayman Court shall determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification, to be held harmless or to exoneration.
5. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY
OR PARTLY SUCCESSFUL.
Notwithstanding any other provisions of this Agreement except
for Section 27, to the extent that Indemnitee is a party to (or a participant in) and is successful, on the merits or otherwise,
in any Proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Company shall, to the fullest extent
permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses actually and reasonably incurred
by him in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise,
as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall, to the fullest extent permitted
by applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses actually and reasonably incurred by him
or on his behalf in connection with each successfully resolved claim, issue or matter. If the Indemnitee is not wholly successful
in such Proceeding, the Company also shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate
Indemnitee against all Expenses reasonably incurred in connection with a claim, issue or matter related to any claim, issue, or
matter on which the Indemnitee was successful. For purposes of this Section 5 and without limitation, the termination
of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful
result as to such claim, issue or matter.
6. INDEMNIFICATION FOR EXPENSES OF A WITNESS.
Notwithstanding any other provision of this Agreement except
for Section 27, to the extent that Indemnitee is, by reason of his Corporate Status, a witness in any Proceeding to which Indemnitee
is not a party, he shall, to the fullest extent permitted by applicable law, be indemnified, held harmless and exonerated against
all Expenses actually and reasonably incurred by him or on his behalf in connection therewith.
7. ADDITIONAL INDEMNIFICATION, HOLD HARMLESS AND EXONERATION
RIGHTS.
7.1 Notwithstanding any limitation in Sections 3, 4,
or 5, except for Section 27, the Company shall, to the fullest extent permitted by applicable law, indemnify, hold
harmless and exonerate Indemnitee if Indemnitee is a party to or threatened to be made a party to any Proceeding (including a Proceeding
by or in the right of the Company to procure a judgment in its favor) against all Expenses, judgments, fines, penalties and amounts
paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such
Expenses, judgments, fines, penalties and amounts paid in settlement) actually and reasonably incurred by Indemnitee in connection
with the Proceeding. No indemnification, hold harmless or exoneration rights shall be available under this Section 7.1 on
account of Indemnitee’s conduct which constitutes a breach of Indemnitee’s duty of loyalty to the Company or its shareholders
or is an act or omission not in good faith or which involves intentional misconduct or a knowing violation of the law.
7.2 Notwithstanding any limitation in Sections 3, 4, 5 or 7.1,
except for Section 27, the Company shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate
Indemnitee if Indemnitee is a party to or threatened to be made a party to any Proceeding (including a Proceeding by or in the
right of the Company to procure a judgment in its favor) against all Expenses, judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses,
judgments, fines, penalties and amounts paid in settlement) actually and reasonably incurred by Indemnitee in connection with the
Proceeding.
8. CONTRIBUTION IN THE EVENT OF JOINT LIABILITY.
8.1. To the fullest extent permissible
under applicable law, if the indemnification, hold harmless and/or exoneration rights provided for in this Agreement are unavailable
to Indemnitee in whole or in part for any reason whatsoever, the Company, in lieu of indemnifying, holding harmless or exonerating
Indemnitee, shall pay, in the first instance, the entire amount incurred by Indemnitee, whether for judgments, liabilities, fines,
penalties, amounts paid or to be paid in settlement and/or for Expenses, in connection with any Proceeding without requiring Indemnitee
to contribute to such payment, and the Company hereby waives and relinquishes any right of contribution it may have at any time
against Indemnitee.
8.2. The Company shall not enter into
any settlement of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding)
unless such settlement provides for a full and final release of all claims asserted against Indemnitee.
8.3. The Company hereby agrees to fully
indemnify, hold harmless and exonerate Indemnitee from any claims for contribution which may be brought by officers, directors
or employees of the Company other than Indemnitee who may be jointly liable with Indemnitee.
9. EXCLUSIONS.
Notwithstanding any provision in this Agreement except for Section
27, the Company shall not be obligated under this Agreement to make any indemnification, hold harmless or exoneration payment in
connection with any claim made against Indemnitee:
(a) |
for which payment has actually been received by or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount actually received under any insurance policy, contract, agreement, other indemnity provision or otherwise; |
|
|
(b) |
for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of statutory law or common law; or |
|
|
(c) |
except as otherwise provided in Sections 14.5 and 14.6 hereof, prior to a Change in Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, hold harmless or exoneration payment, in its sole discretion, pursuant to the powers vested in the Company under applicable law. |
10. ADVANCES OF EXPENSES; DEFENSE OF CLAIM.
10.1. Notwithstanding any provision of
this Agreement to the contrary except for Section 27, and to the fullest extent not prohibited by applicable law, the Company shall
pay the Expenses incurred by Indemnitee (or reasonably expected by Indemnitee to be incurred by Indemnitee within three months)
in connection with any Proceeding within ten (10) days after the receipt by the Company of a statement or statements requesting
such advances from time to time, prior to the final disposition of any Proceeding. Advances shall be unsecured and interest free.
Advances shall be made without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s
ultimate entitlement to be indemnified, held harmless or exonerated under the other provisions of this Agreement. Advances shall
include any and all reasonable Expenses incurred pursuing a Proceeding to enforce this right of advancement, including Expenses
incurred preparing and forwarding statements to the Company to support the advances claimed. To the fullest extent required by
applicable law, such payments of Expenses in advance of the final disposition of the Proceeding shall be made only upon the Company’s
receipt of an undertaking, by or on behalf of the Indemnitee, to repay the advance to the extent that it is ultimately determined
that Indemnitee is not entitled to be indemnified by the Company under the provisions of this Agreement, the Charter, the Bylaws
of the Company, applicable law or otherwise. This Section 10.1 shall not apply to any claim made by Indemnitee
for which an indemnification, hold harmless or exoneration payment is excluded pursuant to Section 9.
10.2. The Company will be entitled
to participate in the Proceeding at its own expense.
10.3. The Company shall not settle any
action, claim or Proceeding (in whole or in part) which would impose any Expense, judgment, fine, penalty or limitation on the
Indemnitee without the Indemnitee’s prior written consent.
11. PROCEDURE FOR NOTIFICATION AND APPLICATION FOR INDEMNIFICATION.
11.1. Indemnitee agrees to notify promptly
the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document
relating to any Proceeding or matter which may be subject to indemnification, hold harmless or exoneration rights, or advancement
of Expenses covered hereunder. The failure of Indemnitee to so notify the Company shall not relieve the Company of any obligation
which it may have to the Indemnitee under this Agreement, or otherwise.
11.2. Indemnitee may deliver to the Company
a written application to indemnify, hold harmless or exonerate Indemnitee in accordance with this Agreement. Such application(s)
may be delivered from time to time and at such time(s) as Indemnitee deems appropriate in his or her sole discretion. Following
such a written application for indemnification by Indemnitee, the Indemnitee’s entitlement to indemnification shall be determined
according to Section 12.1 of this Agreement.
12. PROCEDURE UPON APPLICATION FOR INDEMNIFICATION.
12.1. A determination, if required by
applicable law, with respect to Indemnitee’s entitlement to indemnification shall be made in the specific case by one of
the following methods, which shall be at the election of Indemnitee: (i) by a majority vote of the Disinterested Directors,
even though less than a quorum of the Board (ii) by Independent Counsel in a written opinion to the Board, a copy of which
shall be delivered to Indemnitee; or (iii) by vote of the shareholders. The Company promptly will advise Indemnitee in writing
with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason
or basis for which indemnification has been denied. If it is so determined that Indemnitee is entitled to indemnification, payment
to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall reasonably cooperate with the
person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including
providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged
or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination.
Any costs or Expenses (including reasonable attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with
the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to
Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
12.2. In the event the determination
of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12.1 hereof, the Independent
Counsel shall be selected as provided in this Section 12.2. The Independent Counsel shall be selected by Indemnitee
(unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company
advising it of the identity of the Independent Counsel so selected and certifying that the Independent Counsel so selected meets
the requirements of “Independent Counsel” as defined in Section 2 of this Agreement. If the Independent
Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him of the identity of the Independent
Counsel so selected and certifying that the Independent Counsel so selected meets the requirements of “Independent Counsel”
as defined in Section 2 of this Agreement. In either event, Indemnitee or the Company, as the case may be,
may, within ten (10) days after such written notice of selection shall have been received, deliver to the Company or to Indemnitee,
as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground
that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 of
this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely
objection, the person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the
Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of
competent jurisdiction has determined that such objection is without merit. If, within twenty (20) days after submission by Indemnitee
of a written request for indemnification pursuant to Section 11.2 hereof, no Independent Counsel shall have been
selected and not objected to, either the Company or Indemnitee may petition the Cayman Court for resolution of any objection which
shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment
as Independent Counsel of a person selected by the Cayman Court, and the person with respect to whom all objections are so resolved
or the person so appointed shall act as Independent Counsel under Section 12.1 hereof. Upon the due commencement
of any judicial proceeding or arbitration pursuant to Section 14.1 of this Agreement, Independent Counsel shall
be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional
conduct then prevailing).
12.3. The Company agrees to pay the reasonable
fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all
Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
13. PRESUMPTIONS AND EFFECT OF
CERTAIN PROCEEDINGS.
13.1. In making a determination with
respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall presume that
Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance
with Section 11.2 of this Agreement, and the Company shall have the burden of proof to overcome that presumption
in connection with the making by any person, persons or entity of any determination contrary to that presumption. Neither the failure
of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any
action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable
standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that Indemnitee
has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not
met the applicable standard of conduct.
13.2. If the person, persons or entity
empowered or selected under Section 12 of this Agreement to determine whether Indemnitee is entitled to indemnification
shall not have made a determination within thirty (30) days after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification,
absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification, or (ii) a final judicial determination
that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such 30-day period may
be extended for a reasonable time, not to exceed an additional fifteen (15) days, if the person, persons or entity making
the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining
or evaluating of documentation and/or information relating thereto.
13.3. The termination of any Proceeding
or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee
to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable
cause to believe that his conduct was unlawful.
13.4. For purposes of any determination
of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books
of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors or officers
of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise, its Board, any committee
of the Board or any director, or on information or records given or reports made to the Enterprise, its Board, any committee of
the Board or any director, by an independent certified public accountant or by an appraiser or other expert selected by the Enterprise,
its Board, any committee of the Board or any director. The provisions of this Section 13.4 shall not be deemed
to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable
standard of conduct set forth in this Agreement.
13.5. The knowledge and/or actions, or
failure to act, of any other director, officer, trustee, partner, managing member, fiduciary, agent or employee of the Enterprise
shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.
14. REMEDIES OF INDEMNITEE.
14.1. In the event that (i) a determination
is made pursuant to Section 12 of this Agreement that Indemnitee is not entitled to indemnification under
this Agreement, (ii) advancement of Expenses, to the fullest extent permitted by applicable law, is not timely made pursuant
to Section 10 of this Agreement, (iii) no determination of entitlement to indemnification shall have been
made pursuant to Section 12.1 of this Agreement within thirty (30) days after receipt by the Company of the
request for indemnification, (iv) payment of indemnification is not made pursuant to Sections 5, 6, 7 or
the last sentence of Section 12.1 of this Agreement within ten (10) days after receipt by the Company of
a written request therefor, (v) a contribution payment is not made in a timely manner pursuant to Section 8 of
this Agreement, (vi) payment of indemnification pursuant to Section 3 or 4 of this Agreement
is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification, or (vii) payment
to Indemnitee pursuant to any hold harmless or exoneration rights under this Agreement or otherwise is not made within ten (10) days
after receipt by the Company of a written request therefor, Indemnitee shall be entitled to an adjudication by the Cayman Court
to such indemnification, hold harmless, exoneration, contribution or advancement rights. Alternatively, Indemnitee, at his option,
may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. Except as set forth herein, the provisions of Cayman law (without regard to its conflict of laws rules)
shall apply to any such arbitration. The Company shall not oppose Indemnitee’s right to seek any such adjudication or award
in arbitration.
14.2. In the event that a determination
shall have been made pursuant to Section 12.1 of this Agreement that Indemnitee is not entitled to indemnification,
any judicial proceeding or arbitration commenced pursuant to this Section 14 shall be conducted in all respects
as a de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination.
In any judicial proceeding or arbitration commenced pursuant to this Section 14, Indemnitee shall be presumed
to be entitled to be indemnified, held harmless, exonerated to receive advances of Expenses under this Agreement and the Company
shall have the burden of proving Indemnitee is not entitled to be indemnified, held harmless, exonerated and to receive advances
of Expenses, as the case may be, and the Company may not refer to or introduce into evidence any determination pursuant to Section
12.1 of this Agreement adverse to Indemnitee for any purpose. If Indemnitee commences a judicial proceeding or arbitration
pursuant to this Section 14, Indemnitee shall not be required to reimburse the Company for any advances pursuant
to Section 10 until a final determination is made with respect to Indemnitee’s entitlement to indemnification
(as to which all rights of appeal have been exhausted or lapsed).
14.3. If a determination shall have been
made pursuant to Section 12.1 of this Agreement that Indemnitee is entitled to indemnification, the Company shall
be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 14,
absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification
under applicable law.
14.4. The Company shall be precluded
from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 14 that the procedures
and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such
arbitrator that the Company is bound by all the provisions of this Agreement.
14.5. The Company shall indemnify and
hold harmless Indemnitee to the fullest extent permitted by law against all Expenses and, if requested by Indemnitee, shall (within
ten (10) days after the Company’s receipt of such written request) pay to Indemnitee, to the fullest extent permitted
by applicable law, such Expenses which are incurred by Indemnitee in connection with any judicial proceeding or arbitration brought
by Indemnitee (i) to enforce his rights under, or to recover damages for breach of, this Agreement or any other indemnification,
hold harmless, exoneration, advancement or contribution agreement or provision of the Company's amended and restated memorandum
and articles of association now or hereafter in effect; or (ii) for recovery or advances under any insurance policy maintained
by any person for the benefit of Indemnitee, regardless of the outcome and whether Indemnitee ultimately is determined to be entitled
to such indemnification, hold harmless or exoneration right, advancement, contribution or insurance recovery, as the case may be
(unless such judicial proceeding or arbitration was not brought by Indemnitee in good faith).
14.6. Interest shall be paid by the Company
to Indemnitee at the legal rate under Cayman law for amounts which the Company indemnifies, holds harmless or exonerates, or is
obliged to indemnify, hold harmless or exonerate for the period commencing with the date on which Indemnitee requests indemnification,
to be held harmless, exonerated, contribution, reimbursement or advancement of any Expenses and ending with the date on which such
payment is made to Indemnitee by the Company.
15. SECURITY.
Notwithstanding anything herein to the contrary except for Section
27, to the extent requested by the Indemnitee and approved by the Board, the Company may at any time and from time to time provide
security to the Indemnitee for the Company’s obligations hereunder through an irrevocable bank line of credit, funded trust
or other collateral. Any such security, once provided to the Indemnitee, may not be revoked or released without the prior written
consent of the Indemnitee.
16. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
16.1. The rights of Indemnitee as provided
by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable
law, the Company's amended and restated memorandum and articles of association, any agreement, a vote of shareholders or a resolution
of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict
any right of Indemnitee under this Agreement in respect of any Proceeding (regardless of when such Proceeding is first threatened,
commenced or completed) arising out of, or related to, any action taken or omitted by such Indemnitee in his Corporate Status prior
to such amendment, alteration or repeal. To the extent that a change in applicable law, whether by statute or judicial decision,
permits greater indemnification, hold harmless or exoneration rights or advancement of Expenses than would be afforded currently
under the Company's amended and restated memorandum and articles of association or this Agreement, then this Agreement (without
any further action by the parties hereto) shall automatically be deemed to be amended to require that the Company indemnify Indemnitee
to the fullest extent permitted by law. No right or remedy herein conferred is intended to be exclusive of any other right or remedy,
and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other right or remedy.
16.2. The Companies Law and the Company’s
amended and restated memorandum and articles of association permit the Company to purchase and maintain insurance or furnish similar
protection or make other arrangements including, but not limited to, providing a trust fund, letter of credit, or surety bond (“Indemnification
Arrangements”) on behalf of Indemnitee against any liability asserted against him or incurred by or on behalf of
him or in such capacity as a director, officer, employee or agent of the Company, or arising out of his status as such, whether
or not the Company would have the power to indemnify him against such liability under the provisions of this Agreement or under
the Companies Law, as it may then be in effect. The purchase, establishment, and maintenance of any such Indemnification Arrangement
shall not in any way limit or affect the rights and obligations of the Company or of the Indemnitee under this Agreement except
as expressly provided herein, and the execution and delivery of this Agreement by the Company and the Indemnitee shall not in any
way limit or affect the rights and obligations of the Company or the other party or parties thereto under any such Indemnification
Arrangement.
16.3. To the extent that the Company
maintains an insurance policy or policies providing liability insurance for directors, officers, trustees, partners, managing members,
fiduciaries, employees, or agents of the Company or of any other Enterprise which such person serves at the request of the Company,
Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage
available for any such director, officer, trustee, partner, managing member, fiduciary, employee or agent under such policy or
policies. If, at the time the Company receives notice from any source of a Proceeding as to which Indemnitee is a party or a participant
(as a witness or otherwise), the Company has director and officer liability insurance in effect, the Company shall give prompt
notice of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall
thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable
as a result of such Proceeding in accordance with the terms of such policies.
16.4. In the event of any payment under
this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who
shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as
are necessary to enable the Company to bring suit to enforce such rights.
16.5. The Company’s obligation
to indemnify, hold harmless, exonerate or advance Expenses hereunder to Indemnitee who is or was serving at the request of the
Company as a director, officer, trustee, partner, managing member, fiduciary, employee or agent of any other Enterprise shall be
reduced by any amount Indemnitee has actually received as indemnification, hold harmless or exoneration payments or advancement
of expenses from such Enterprise. Notwithstanding any other provision of this Agreement to the contrary except for Section 27,
(i) Indemnitee shall have no obligation to reduce, offset, allocate, pursue or apportion any indemnification, hold harmless,
exoneration, advancement, contribution or insurance coverage among multiple parties possessing such duties to Indemnitee prior
to the Company’s satisfaction and performance of all its obligations under this Agreement, and (ii) the Company shall
perform fully its obligations under this Agreement without regard to whether Indemnitee holds, may pursue or has pursued any indemnification,
advancement, hold harmless, exoneration, contribution or insurance coverage rights against any person or entity other than the
Company.
17. DURATION OF AGREEMENT.
All agreements and obligations of the Company contained herein
shall continue during the period Indemnitee serves as a director or officer of the Company or as a director, officer, trustee,
partner, managing member, fiduciary, employee or agent of any other corporation, partnership, joint venture, trust, employee benefit
plan or other Enterprise which Indemnitee serves at the request of the Company and shall continue thereafter so long as Indemnitee
shall be subject to any possible Proceeding (including any rights of appeal thereto and any Proceeding commenced by Indemnitee
pursuant to Section 14 of this Agreement) by reason of his Corporate Status, whether or not he is acting
in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement.
18. SEVERABILITY.
If any provision or provisions of this Agreement shall be held
to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each portion of any Section, paragraph or sentence of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such
provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect
to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any Section, paragraph or sentence of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect
to the intent manifested thereby.
19. ENFORCEMENT AND BINDING EFFECT.
19.1. The Company expressly confirms
and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee
to serve as a director, officer or key employee of the Company, and the Company acknowledges that Indemnitee is relying upon this
Agreement in serving as a director, officer or key employee of the Company.
19.2. Without limiting any of the rights
of Indemnitee under the Charter or Bylaws of the Company as they may be amended from time to time, this Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings,
oral, written and implied, between the parties hereto with respect to the subject matter hereof.
19.3. The indemnification, hold harmless,
exoneration and advancement of expenses rights provided by or granted pursuant to this Agreement shall be binding upon and be enforceable
by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business or assets of the Company), shall continue as to an Indemnitee
who has ceased to be a director, officer, employee or agent of the Company or of any other Enterprise at the Company’s request,
and shall inure to the benefit of Indemnitee and his or her spouse, assigns, heirs, devisees, executors and administrators and
other legal representatives.
19.4. The Company shall require and cause
any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all or a substantial
part, of the business and/or assets of the Company, by written agreement in form and substance satisfactory to the Indemnitee,
expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required
to perform if no such succession had taken place.
19.5. The Company and Indemnitee agree
herein that a monetary remedy for breach of this Agreement, at some later date, may be inadequate, impracticable and difficult
of proof, and further agree that such breach may cause Indemnitee irreparable harm. Accordingly, the parties hereto agree that
Indemnitee may enforce this Agreement by seeking, among other things, injunctive relief and/or specific performance hereof, without
any necessity of showing actual damage or irreparable harm and that by seeking injunctive relief and/or specific performance, Indemnitee
shall not be precluded from seeking or obtaining any other relief to which he may be entitled. The Company and Indemnitee further
agree that Indemnitee shall be entitled to such specific performance and injunctive relief, including temporary restraining orders,
preliminary injunctions and permanent injunctions, without the necessity of posting bonds or other undertaking in connection therewith.
The Company acknowledges that in the absence of a waiver, a bond or undertaking may be required of Indemnitee by a Court of competent
jurisdiction and the Company hereby waives any such requirement of such a bond or undertaking.
20. MODIFICATION AND WAIVER.
No supplement, modification or amendment of this Agreement shall
be binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a continuing waiver.
21. NOTICES.
All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given (i) if delivered by hand and receipted for
by the party to whom said notice or other communication shall have been directed, or (ii) mailed by certified or registered
mail with postage prepaid, on the third (3rd) business day after the date on which it is so mailed:
(a) |
If to Indemnitee, at the address indicated on the signature page of this Agreement, or such other address as Indemnitee shall provide in writing to the Company. |
|
|
(b) |
If to the Company, to: |
GP Investments Acquisition Corp.
150 E. 52nd Street, Suite 5003
New York, New York 10022
Attn: Antonio Bonchristiano
Chief Executive Officer & Chief
Financial Officer
With a copy, which shall not constitute notice, to:
Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue
Palo Alto, California 94301
Attn: Gregg A. Noel, Esq.
Michael J. Mies, Esq.
Fax No.: (650) 798-6510
or to any other address as may have been furnished to Indemnitee
in writing by the Company.
22. APPLICABLE LAW AND CONSENT TO JURISDICTION.
This Agreement and the legal relations among the parties shall
be governed by, and construed and enforced in accordance with, the laws of the Cayman Islands, without regard to its conflict of
laws rules. Except with respect to any arbitration commenced by Indemnitee pursuant to Section 14.1 of this Agreement,
the Company and Indemnitee hereby irrevocably and unconditionally: (a) agree that any action or proceeding arising out of
or in connection with this Agreement shall be brought only in the Cayman Court and not in any other state or federal court in the
United States of America or any court in any other country; (b) consent to submit to the exclusive jurisdiction of the Cayman Court
for purposes of any action or proceeding arising out of or in connection with this Agreement; (c) waive any objection to the
laying of venue of any such action or proceeding in the Cayman Court; and (d) waive, and agree not to plead or to make, any
claim that any such action or proceeding brought in the Cayman Court has been brought in an improper or inconvenient forum, or
is subject (in whole or in part) to a jury trial.
23. IDENTICAL COUNTERPARTS.
This Agreement may be executed in one or more counterparts,
each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement.
Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence
of this Agreement.
24. MISCELLANEOUS.
Use of the masculine pronoun shall be deemed to include usage
of the feminine pronoun where appropriate. The headings of the paragraphs of this Agreement are inserted for convenience only and
shall not be deemed to constitute part of this Agreement or to affect the construction thereof.
25. PERIOD OF LIMITATIONS.
No legal action shall be brought and no cause of action shall
be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action
of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year
period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter
period shall govern.
26. ADDITIONAL ACTS.
If for the validation of any of the provisions in this Agreement
any act, resolution, approval or other procedure is required, the Company undertakes to cause such act, resolution, approval or
other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement.
27. WAIVER OF CLAIMS TO TRUST ACCOUNT.
Indemnitee hereby agrees that it does not have any right, title,
interest or claim of any kind (each, a “Claim”) in or to any monies in the trust account established in connection
with the Company’s initial public offering for the benefit of the Company and holders of shares issued in such offering,
and hereby waives any Claim it may have in the future as a result of, or arising out of, any services provided to the Company and
will not seek recourse against such trust account for any reason whatsoever.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto
have caused this Indemnity Agreement to be signed as of the day and year first above written.
|
GP INVESTMENTS ACQUISITION CORP. |
|
|
|
|
By: |
/s/ Antonio Bonchristiano |
|
|
Name: Antonio Bonchristiano |
|
|
Title: Chief Executive Officer & Chief Financial Officer |
|
|
|
|
By: |
/s/ Alexandre Hohagen |
|
|
Name: Alexandre Hohagen |
|
|
|
[Signature Page to Indemnity Agreement]
Exhibit 10.2
Insider Letter Acknowledgement and Agreement
Reference is made to the letter agreement delivered to GP
Investments Acquisition Corp. (the “Company”), dated May 19, 2015 and attached hereto as Exhibit A (the
“Insider Letter”). In exchange for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the undersigned acknowledges and agrees as follows: (i) he is an Insider (as such term is defined in the
Insider Letter) for the purposes of the Insider Letter and (ii) to be bound by the terms of the Insider Letter as they relate
to directors and Insiders (as such term is defined in the Insider Letter) of the Company.
This acknowledgement and agreement shall be governed by and
construed in accordance with the laws of the State of New York without reference to such state’s principles of conflicts
of law that would cause the laws of any other jurisdiction to apply.
Agreed and acknowledged this 18th day of December
2015.
|
DIRECTOR |
|
|
|
|
|
/s/ Alexandre Hohagen |
|
Alexandre Hohagen |
Acknowledged and Agreed: |
|
GP Investments Acquisition Corp. |
|
|
|
|
By: |
/s/ Antonio Bonchristiano |
|
Name: |
Antonio Bonchristiano |
|
Title: |
Chief Executive Officer & Chief Financial Officer |
|
Exhibit
A – Insider Letter
May 19, 2015
GP Investments Acquisition Corp.
150 E. 52nd Street, Suite 5003
New York, NY 10022
| Re: | Initial Public Offering |
Gentlemen:
This letter (this “Letter
Agreement”) is being delivered to you in accordance with the Underwriting Agreement (the “Underwriting
Agreement”) entered into or proposed to be entered into by and between GP Investments Acquisition Corp., a Cayman
Islands exempted company (the “Company”), and Citigroup Global Markets Inc. (the “Underwriters”),
relating to an underwritten initial public offering (the “Public Offering”), of 17,250,000 of the Company’s
units (including up to 2,250,000 Units that may be purchased to cover over-allotments, if any) (the “Units”),
each comprised of one of the Company's ordinary shares, par value $0.0001 per share (the “Ordinary Shares”),
and one-half of one warrant. Each warrant (each, a “Warrant”) entitles the holder thereof to purchase
one Ordinary Share at a price of $11.50 per share, subject to adjustment. The Units shall be sold in the Public Offering pursuant
to a registration statement on Form S-1 and prospectus (the “Prospectus”) filed by the Company with the
Securities and Exchange Commission (the “Commission”) and the Company shall apply to have the Units listed
on the Nasdaq Capital Market. Certain capitalized terms used herein are defined in paragraph 11 hereof.
In order to induce the Company
and the Underwriters to enter into the Underwriting Agreement and to proceed with the Public Offering and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, GPIC, Ltd. (the “Sponsor”)
and the undersigned individuals, each of whom is a director or member of the Company’s management team (each, an “Insider”
and collectively, the “Insiders”), hereby agrees with the Company as follows:
1.
The Sponsor and each Insider agrees that if the Company seeks shareholder approval of a proposed Business Combination, then
in connection with such proposed Business Combination, it, he or she shall (i) vote any Ordinary Shares owned by it, him or her
in favor of any proposed Business Combination and (ii) not redeem any Ordinary Shares owned by it, him or her in connection with
such shareholder approval.
2.
The Sponsor and each Insider hereby agrees that in the event that the Company fails to consummate a Business Combination
within 24 months from the closing of the Public Offering, or such later period approved by the Company’s shareholders in
accordance with the Company’s amended and restated memorandum and articles of association, the Sponsor and Insiders shall
take all reasonable steps to cause the Company to (i) cease all operations except for the purpose of winding up, (ii) as promptly
as reasonably possible but not more than 10 business days thereafter subject to lawfully available funds therefor, redeem 100%
of the Ordinary Shares sold as part of the Units in the Public Offering (the “Offering Shares”), at a
per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest (which
interest shall be net of taxes payable and less up to $100,000 of interest to pay dissolution expenses), divided by the number
of then outstanding public shares, which redemption will completely extinguish all Public Shareholders’ rights as shareholders
(including the right to receive further liquidation distributions, if any), subject to applicable law, and (iii) as promptly as
reasonably possible following such redemption, subject to the approval of the Company’s remaining shareholders and the Company’s
board of directors, dissolve and liquidate, subject in each case to the Company’s obligations under Cayman Islands law to
provide for claims of creditors and other requirements of applicable law. The Sponsor and each Insider agrees to not propose any
amendment to the Company’s amended and restated memorandum and articles of association that would affect the substance or
timing of the Company’s obligation to redeem 100% of the Offering Shares if the Company does not complete a Business Combination
within 24 months from the closing of the Public Offering, unless the Company provides its public shareholders with the opportunity
to redeem their Ordinary Shares upon approval of any such amendment at a per-share price, payable in cash, equal to the aggregate
amount then on deposit in the Trust Account, including interest (which interest shall be net of taxes payable), divided by the
number of then outstanding public shares.
The Sponsor and each Insider
acknowledges that it, he or she has no right, title, interest or claim of any kind in or to any monies held in the Trust
Account or any other asset of the Company as a result of any liquidation of the Company with respect to the Founder Shares.
The Sponsor and each Insider hereby further waives, with respect to any Ordinary Shares held by it, him or her, if any, any
redemption rights it, he or she may have in connection with the consummation of a Business Combination, including, without
limitation, any such rights available in the context of a shareholder vote to approve such Business Combination or in the
context of a tender offer made by the Company to purchase Ordinary Shares (although the Sponsor and Insiders shall be
entitled to redemption and liquidation rights with respect to any Ordinary Shares (other than the Founder Shares) it or they
hold if the Company fails to consummate a Business Combination within 24 months from the date of the closing of the Public
Offering).
3.
Notwithstanding the provisions set forth in paragraphs 7(a) and (b) below, during the period commencing on the effective
date of the Underwriting Agreement and ending 180 days after such date, the Sponsor and each Insider shall not, without the prior
written consent of Citigroup Global Markets Inc., (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant
any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission promulgated thereunder, with respect to any Units, Ordinary Shares,
Warrants or any securities convertible into, or exercisable, or exchangeable for, Ordinary Shares owned by it, if any, (ii) enter
into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership
of any Units, Ordinary Shares, Warrants or any securities convertible into, or exercisable, or exchangeable for, Ordinary Shares
owned by it, if any, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (iii)
publicly announce any intention to effect any transaction, including the filing of a registration statement, specified in clause
(i) or (ii). Each of the Insiders and the Sponsor acknowledges and agrees that, prior to the effective date of any release or waiver,
of the restrictions set forth in this paragraph 3 or paragraph 7 below, the Company shall announce the impending release or waiver
by press release through a major news service at least two business days before the effective date of the release or waiver. Any
release or waiver granted shall only be effective two business days after the publication date of such press release. The provisions
of this paragraph will not apply if the release or waiver is effected solely to permit a transfer not for consideration and the
transferee has agreed in writing to be bound by the same terms described in this Letter Agreement to the extent and for the duration
that such terms remain in effect at the time of the transfer.
4.
In the event of the liquidation of the Trust Account, the Sponsor (which for purposes of clarification shall not extend
to any shareholders, members or managers of the Sponsor) agrees to indemnify and hold harmless the Company against any and all
loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all legal or other expenses reasonably
incurred in investigating, preparing or defending against any litigation, whether pending or threatened, or any claim whatsoever)
to which the Company may become subject as a result of any claim by (i) any third party for services rendered or products sold
to the Company or (ii) a prospective target business with which the Company has entered into an acquisition agreement (a “Target”);
provided, however, that such indemnification of the Company by the Sponsor shall apply only to the extent necessary to ensure
that such claims by a third party for services rendered (other than the Company’s independent public accountants) or products
sold to the Company or a Target do not reduce the amount of funds in the Trust Account, except as to any claims by a third party
who executed a waiver of any and all rights to seek access to the trust account and except as to any claims under the Company’s
indemnity of the Underwriters against certain liabilities, including liabilities under the Securities Act of 1933, as amended.
In the event that any such executed waiver is deemed to be unenforceable against such third party, the Sponsor shall not be responsible
to the extent of any liability for such third party claims. The Sponsor shall have the right to defend against any such claim with
counsel of its choice reasonably satisfactory to the Company if, within 15 days following written receipt of notice of the claim
to the Sponsor, the Sponsor notifies the Company in writing that it shall undertake such defense.
5. To
the extent that the Underwriters do not exercise their over-allotment option to purchase up to an additional
2,250,000 Ordinary Shares within 45 days from the date of the Prospectus (and as further described in the Prospectus), the
Sponsor agrees that it shall forfeit, at no cost, a number of Founder Shares in the aggregate equal to 562,500 multiplied by
a fraction, (i) the numerator of which is 2,250,000 minus the number of Ordinary Shares purchased by the Underwriters upon
the exercise of their over-allotment option, and (ii) the denominator of which is 2,250,000. All references in this Letter
Agreement to shares of the Company being forfeited shall take effect as surrenders for no consideration of such shares as a
matter of Cayman Islands law. The forfeiture will be adjusted to the extent that the overallotment option is not exercised in
full by the Underwriters so that the pre-offering shareholders will own an aggregate of 20.0% of the Company’s issued
and outstanding Ordinary Shares after the Public Offering. The Sponsor further agrees that to the extent that the size of the
Public Offering is increased or decreased, the Company will purchase or sell Ordinary Shares or effect a share repurchase or
share capitalization, as applicable, immediately prior to the consummation of the Public offering in such amount as to
maintain the ownership of the pre-offering shareholders prior to the Public Offering at 20.0% of its issued and outstanding
Ordinary Shares upon the consummation of the Public Offering. In connection with such increase or decrease in the size of the
Public Offering, then (A) the references to 2,250,000 in the numerator and denominator of the formula in the first sentence
of this paragraph shall be changed to a number equal to 15% of the number of shares included in the Units issued in the
Public Offering and (B) the reference to 562,500 in the formula set forth in the immediately preceding sentence shall be
adjusted to such number of Ordinary Shares that the Sponsor would have to return to the Company in order to hold (with all of
the pre-offering shareholders) an aggregate of 20.0% of the Company’s issued and outstanding shares after the Public
Offering.
6. (a) The Sponsor and each Insider
hereby agrees not to participate in the formation of, or become an officer or director of, any other blank check company unless
the Company has failed to complete a Business Combination within 24 months after the closing of the Public Offering. Such restriction
does not preclude the Sponsor from pursuing limited partnership interests in asset management companies.
(b) The Sponsor and each Insider hereby
agrees and acknowledges that: (i) each of the Underwriters and the Company would be irreparably injured in the event of a breach
by such Sponsor or Insider of his, her or its obligations under paragraphs 1, 2, 3, 4, 5, 6(a), 7(a), 7(b), and 9 of this Letter
Agreement, (ii) monetary damages may not be an adequate remedy for such breach and (iii) the non-breaching party shall be entitled
to injunctive relief, in addition to any other remedy that such party may have in law or in equity, in the event of such breach.
7. (a) The Sponsor and each Insider agrees
that it, he or she shall not Transfer (as defined below) any Founder Shares until one year after the completion of the Company’s
initial Business Combination or earlier if, subsequent to the Business Combination, (x) the last sale price of the Ordinary Shares
equals or exceeds $12.00 per share (as adjusted for share splits, share dividends, reorganizations, recapitalizations and the like)
for any 20 trading days within any 30-trading day period commencing at least 150 days after the Company’s initial Business
Combination or (y) the date following the completion of the Company’s initial Business Combination on which the Company completes
a liquidation, merger, share exchange or other similar transaction that results in all of the Company’s shareholders having
the right to exchange their Ordinary Shares for cash, securities or other property (the “Founder Shares Lock-up Period”).
(b)
The Sponsor and each Insider agrees that it, he or she shall not effectuate any Transfer of Private Placement Warrants or
Ordinary Shares issued or issuable upon the conversion of the Private Placement Warrants, until 30 days after the completion of
a Business Combination (the “Private Placement Warrants Lock-up Period”, together with the Founder Shares
Lock-up Period, the “Lock-up Periods”).
(c)
Notwithstanding the provisions set forth in paragraphs 7(a) and (b), Transfers of the Founder Shares, Private Placement
Warrants and Ordinary Shares issued or issuable upon the exercise or conversion of the Private Placement Warrants and that are
held by the initial purchasers of the Private Placement Warrants or their permitted transferees (that have complied with this paragraph
7(c)), are permitted (a) to the Company’s officers or directors, any affiliates or family members of any of the Company’s
officers or directors, any members of the Sponsor or their affiliates, or any affiliates of the Sponsor; (b) in the case of an
individual, transfers by gift to a member of the individual’s immediate family, to a trust, the beneficiary of which is a
member of the individual’s immediate family or an affiliate of such person, or to a charitable organization; (c) in the case
of an individual, transfers by virtue of laws of descent and distribution upon death of the individual; (d) in the case of an individual,
transfers pursuant to a qualified domestic relations order; (e) transfers by private sales or transfers made in connection with
the consummation of a Business Combination at prices no greater than the price at which the securities were originally purchased;
(f) transfers by virtue of the laws of Bermuda or the Sponsor’s limited liability company agreement upon dissolution of the
Sponsor; (g) transfers in the event of the Company's liquidation prior to the completion of an initial Business Combination; and
(h) in the event of the Company's completion of a liquidation, merger, share exchange or other similar transaction which results
in all of the Company's shareholders having the right to exchange their Ordinary Shares for cash, securities or other property
subsequent to the completion of the Company's initial Business Combination; provided, however, that in the case of clauses
(a) through (f), these permitted transferees must enter into a written agreement agreeing to be bound by these transfer restrictions.
8. The Sponsor and each
Insider represents and warrants that it, he or she has never been suspended or expelled from membership in any securities or
commodities exchange or association or had a securities or commodities license or registration denied, suspended or revoked.
Each Insider’s biographical information furnished to the Company (including any such information included in the
Prospectus) is true and accurate in all respects and does not omit any material information with respect to the
undersigned’s background. Each Insider’s questionnaire furnished to the Company is true and accurate in all
respects. Each Insider represents and warrants that: the undersigned is not subject to or a respondent in any legal action
for, any injunction, cease-and-desist order or order or stipulation to desist or refrain from any act or practice relating to
the offering of securities in any jurisdiction; the undersigned has never been convicted of, or pleaded guilty to, any crime
(i) involving fraud, (ii) relating to any financial transaction or handling of funds of another person, or (iii) pertaining
to any dealings in any securities and the undersigned is not currently a defendant in any such criminal proceeding.
9. Except as disclosed in the Prospectus, neither the Sponsor or any Insider nor any affiliate of the Sponsor or any Insider,
nor any director or officer of the Company, shall receive from the Company any finder’s fee, reimbursement, consulting fee,
monies in respect of any repayment of a loan or other compensation prior to, or in connection with any services rendered in order
to effectuate the consummation of the Company’s initial Business Combination (regardless of the type of transaction that
it is), other than the following, none of which will be made from the proceeds of the Public Offering held in the Trust Account
prior to the completion of the initial Business Combination: repayment of a loan and advances of an aggregate of $100,000 made
to the Company by the Sponsor; repayment of an advance of $16,321 to our Sponsor; payment to an affiliate of the Sponsor for office
space, utilities and secretarial support for a total of $10,000 per month; reimbursement for any reasonable out-of-pocket expenses
related to identifying, investigating and consummating an initial Business Combination, and repayment of loans, if any, and on
such terms as to be determined by the Company from time to time, made by the Sponsor or certain of the Company’s officers
and directors to finance transaction costs in connection with an intended initial Business Combination, provided, that, if the
Company does not consummate an initial Business Combination, a portion of the working capital held outside the Trust Account may
be used by the Company to repay such loaned amounts so long as no proceeds from the Trust Account are used for such repayment.
Up to $1,000,000 of such loans may be convertible into warrants of the post Business Combination entity at a price of $1.00 per
warrant at the option of the lender. Such warrants would be identical to the Private Placement Warrants.
10.
The Sponsor and each Insider has full right and power, without violating any agreement to which it is bound (including,
without limitation, any non-competition or non-solicitation agreement with any employer or former employer), to enter into this
Letter Agreement and, as applicable, to serve as a director on the board of directors of the Company and hereby consents to being
named in the Prospectus as a director of the Company.
11.
As used herein, (i) “Business Combination” shall mean a merger, capital stock exchange, asset
acquisition, stock purchase, reorganization or similar business combination, involving the Company and one or more businesses;
(ii) “Founder Shares” shall mean the 4,312,500 Ordinary Shares beneficially held by the Sponsor's wholly
owned subsidiary GPIAC, LLC (or 3,750,000 shares if the over-allotment option is not exercised by the Underwriters) for an aggregate
purchase price of $25,000, or approximately $0.0001 per share, prior to the consummation of the Public Offering; (iii) “Private
Placement Warrants " shall mean the Warrants to purchase up to 5,500,000 Ordinary Shares of the Company (or 6,062,500
Ordinary Shares if the over-allotment option is exercised in full) that are acquired by the Sponsor for an aggregate purchase price
of $5,500,000 in the aggregate (or $6,062,500 if the over-allotment option is exercised in full), or $1.00 per Warrant, in a private
placement that shall occur simultaneously with the consummation of the Public Offering; (iv) “Public Shareholders”
shall mean the holders of securities issued in the Public Offering; (v) “Trust Account” shall mean the
trust fund into which a portion of the net proceeds of the Public Offering shall be deposited; and (vi) “Transfer”
shall mean the (a) sale of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase
or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position
or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder with respect to, any security,
(b) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of
ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise,
or (c) public announcement of any intention to effect any transaction specified in clause (a) or (b).
12.
This Letter Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject
matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or
oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Letter Agreement
may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except
by a written instrument executed by all parties hereto.
13.
No party hereto may assign either this Letter Agreement or any of its rights, interests, or obligations hereunder without
the prior written consent of the other party. Any purported assignment in violation of this paragraph shall be void and ineffectual
and shall not operate to transfer or assign any interest or title to the purported assignee. This Letter Agreement shall be binding
on the Sponsor and Insiders and their respective successors and assigns.
14.
This Letter Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York,
without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction.
The parties hereto (i) all agree that any action, proceeding, claim or dispute arising out of, or relating in any way to, this
Letter Agreement shall be brought and enforced in the courts of New York City, in the State of New York, and irrevocably submit
to such jurisdiction and venue, which jurisdiction and venue shall be exclusive and (ii) waive any objection to such exclusive
jurisdiction and venue or that such courts represent an inconvenient forum.
15.
Any notice, consent or request to be given in connection with any of the terms or provisions of this Letter Agreement shall
be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested),
by hand delivery or facsimile transmission.
16.
This Letter Agreement shall terminate on the earlier of (i) the expiration of the Lock-up Periods or (ii) the liquidation
of the Company; provided, however, that this Letter Agreement shall earlier terminate in the event that the Public Offering
is not consummated and closed by 24 months from the date of the Public Offering, provided further that paragraph 4 of this
Letter Agreement shall survive such liquidation.
[Signature Page follows]
|
|
|
Sincerely, |
|
|
|
|
|
|
|
|
GPIC, LTD. |
|
|
|
|
|
|
|
|
By: |
/s/ Antonio Bonchristiano |
|
|
|
Name: |
Antonio Bonchristiano |
|
|
|
Title: |
Authorized Signatory |
|
|
|
|
|
|
|
|
By: |
/s/ Antonio Bonchristiano |
|
|
|
Name: |
Antonio Bonchristiano |
|
|
|
|
|
|
|
|
By: |
/s/ Fersen Lambranho |
|
|
|
Name: |
Fersen Lambranho |
|
|
|
|
|
|
|
|
By: |
/s/ Jaime Szulc |
|
|
|
Name: |
Jaime Szulc |
|
|
|
|
|
|
|
|
By: |
/s/ Christopher Brotchie |
|
|
|
Name: |
Christopher Brotchie |
|
|
|
|
|
|
|
|
By: |
/s/ Fernando d’Ornellas Silva |
|
|
|
Name: |
Fernando d'Ornellas Silva |
|
|
|
|
|
|
|
|
|
|
|
|
|
GPIAC, LLC |
|
|
|
|
|
|
|
|
By: |
/s/ Alvaro Lopes da Silva Neto |
|
|
|
Name: |
Alvaro Lopes da Silva Neto |
|
|
|
Title: |
Authorized Signatory |
|
|
|
|
|
Acknowledged and Agreed: |
|
|
|
GP Investments Acquisition Corp. |
|
|
|
|
|
|
|
|
By: |
/s/ Antonio Bonchristiano |
|
|
|
Name: |
Antonio Bonchristiano |
|
|
|
Title: |
Chief Executive Officer & Chief Financial Officer |
|
|
|
[Signature Page to Insider Letter Agreement]
Exhibit 10.3
SECURITIES ESCROW AGREEMENT
THIS SECURITIES ESCROW AGREEMENT, dated
as of December 18, 2015 (this “Agreement”), by and among GP Investments Acquisition Corp., a Cayman Islands
exempted company (the “Company”), the party set forth on Exhibit A annexed hereto (the “Private Investor”)
and Continental Stock Transfer & Trust Company (the “Escrow Agent”).
WHEREAS, the Private Investor has agreed
to deposit its ordinary shares, par value $0.0001 per share (the “Ordinary Shares”), as set forth opposite the
Private Investor’s name on Exhibit A attached hereto (the “Escrow Securities”), in escrow as hereinafter
provided; and
WHEREAS, the Company and the Private Investor
desire that the Escrow Agent accept the Escrow Securities, in escrow, to be held and disbursed as hereinafter provided.
IT IS AGREED:
1. Appointment of Escrow Agent. The Company and the Private
Investor hereby appoint the Escrow Agent to act in accordance with and subject to the terms of this Agreement and the Escrow Agent
hereby accepts such appointment and agrees to act in accordance with and subject to such terms.
2. Deposit of Escrow Securities.
2.1. Escrow Securities. The Private
Investor shall deliver to the Escrow Agent certificates representing the Private Investor’s Escrow Securities, which certificates
shall remain in the name of the Private Investor, to be held and disbursed subject to the terms and conditions of this Agreement.
The Private Investor acknowledges that the certificate representing the Private Investor’s Escrow Securities bears a legend
to reflect the deposit of such Escrow Securities under this Agreement.
3. Disbursement of the Escrow Securities. The Escrow
Agent shall hold the Escrow Securities until the first anniversary of the consummation of a Business Combination (as such term
is defined in the amended and restated memorandum and articles of association of the Company) (the “Escrow Period”).
The Company shall promptly provide notice of the consummation of a Business Combination to the Escrow Agent. Upon the completion
of the Escrow Period, the Escrow Agent shall automatically disburse the Escrow Securities to the Private Investor upon receipt
of written request therefor from the Company; provided, however, that if the Escrow Agent is notified by the Company pursuant
to Section 6.7 hereof that the Company has been liquidated at any time prior to the Company completing its initial Business
Combination during the Escrow Period, then the Escrow Agent shall promptly destroy the certificates representing the Escrow Securities;
provided further, however, that if the Company completes a liquidation, merger, share exchange or other similar transaction
after its initial Business Combination which results in all of the shareholders of the Company having the right to exchange their
ordinary shares for cash, securities or other property, then the Escrow Agent shall, upon receipt of a certificate in form reasonably
acceptable to the Escrow Agent, executed by the Chief Executive Officer of the Company, release the Escrow Securities to the Private
Investor on the date on which the transaction is completed; and provided further, however, that if subsequent to the consummation
of a Business Combination, the last sale price of the Company's ordinary shares equals or exceeds $12.00 per share (as adjusted
for share splits, share dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading
day period commencing at least 150 days after our initial business combination, the Escrow Securities shall be released from escrow.
The Escrow Agent shall act as soon as reasonably possible following the receipt of the certificate, and shall not be held liable
for any delay in sending the Escrow Securities caused by the late receipt of the certificate. The Escrow Agent shall have no further
duties hereunder with respect to the Escrow Securities after the disbursement or destruction of the Escrow Securities in accordance
with this Section 3.
4. Rights of Private Investor
in Escrow Securities.
4.1. Rights as a Security Holder.
Subject to the terms of the Insider Letter as described in Section 4.4 hereof and except as herein provided, the Private Investor
shall retain all of its rights as a shareholder of the Company during the Escrow Period, including without limitation, the right
to vote Ordinary Shares. The Escrow Agent shall have no responsibility to determine or verify the contents or limitations of the
Insider Letter and shall be bound only by the terms of this Agreement.
4.2. Dividends and other Distributions
in Respect of the Escrow Securities. During the Escrow Period with respect to the Escrow Securities, all dividends payable
in cash with respect to the Escrow Securities shall be paid to the Private Investor, but all dividends payable in shares or other
non-cash property (the “Non-Cash Dividends”) shall be delivered to the Escrow Agent to hold in accordance with
the terms hereof. As used herein, the terms “Escrow Securities” shall be deemed to include the Non-Cash Dividends
distributed thereon, if any.
4.3. Restrictions on Transfer. During
the Escrow Period, no sale, transfer or other disposition (a “Transfer”) may be made of any or all of the Escrow
Securities by the Private Investor except (a) transfers to the Company's officers or directors, any affiliates or family members
of any of the Company's officers or directors, any members of GPIC, Ltd. (the “Sponsor”), a Bermuda limited
liability company, or their affiliates, or any affiliates of the Sponsor, (b) in the case of an individual, transfers by gift to
a member of the individual’s immediate family, to a trust, the beneficiary of which is a member of the individual’s
immediate family or an affiliate of such person, or to a charitable organization; (c) in the case of an individual, transfers by
virtue of laws of descent and distribution upon death of the individual; (d) in the case of an individual, transfers pursuant to
a qualified domestic relations order; (e) transfers by private sales or transfers made in connection with the consummation of a
business combination at prices no greater than the price at which the securities were originally purchased; (f) transfers by virtue
of the laws of Bermuda or the Sponsor’s limited liability company agreement upon dissolution of the Sponsor; (g) transfers
in the event of the Company's liquidation prior to its completion of an initial business combination; and (h) in the event of the
Company's completion of a liquidation, merger, share exchange or other similar transaction which results in all of its shareholders
having the right to exchange their ordinary shares for cash, securities or other property subsequent to our completion of its initial
business combination provided, however, that in the case of clauses (a) through (f) these permitted Transfers may be implemented
only upon the respective transferee’s written agreement to be bound by the terms and conditions of this Agreement and of
the Insider Letter signed by the Private Investor transferring such Escrow Securities and such other documents as the Company or
Citigroup Global Markets Inc. (“Citigroup”) may reasonably require. During the Escrow Period, the Private Investor
shall not pledge or grant a security interest in the Private Investor’s Escrow Securities or grant a security interest in
the Private Investor’s rights under this Agreement.
4.4. Insider Letter. The Private
Investor has executed a letter agreeing to be bound by the letter agreement with the Company dated May 19, 2015 (collectively,
the “Insider Letter”), such letter agreement with the Company dated May 19, 2015 has been filed as an exhibit
to the Company’s Registration Statement on Form S-1 (File No. 333-203500) (the “Registration Statement”),
with respect to the rights and obligations of the Private Investor in certain events, including but not limited to the liquidation
of the Company.
5. Concerning the Escrow
Agent.
5.1. Good Faith Reliance. The Escrow
Agent shall be protected and shall not be liable for any action taken or omitted by it in good faith and in the exercise of its
best judgment (unless grossly negligent), and may rely conclusively and may act upon any order, notice, demand, certificate, opinion
or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other document which is believed
by the Escrow Agent to be genuine and to be signed or presented by the proper person or persons. The Escrow Agent shall not be
bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement unless evidenced by a writing
delivered to the Escrow Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are affected,
unless it shall have given its prior written consent thereto.
5.2. Indemnification. The Escrow
Agent shall be indemnified and held harmless by the Company from and against any expenses, including reasonable counsel fees and
disbursements, or losses suffered by the Escrow Agent in connection with any action, suit or other proceeding involving any claim
which in any way, directly or indirectly, arises out of or relates to this Agreement, the services of the Escrow Agent hereunder,
or the Escrow Securities held by it hereunder, other than expenses or losses arising from the gross negligence or willful misconduct
of the Escrow Agent. Promptly after the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any
action, suit or proceeding, the Escrow Agent shall notify the other parties hereto in writing. In the event of the receipt of such
notice, the Escrow Agent, in its sole discretion, may commence an action in the nature of interpleader in an appropriate court
to determine ownership or disposition of the Escrow Securities or it may deposit the Escrow Securities with the clerk of any appropriate
court or it may retain the Escrow Securities pending receipt of a final, non-appealable order of a court having jurisdiction over
all of the parties hereto directing to whom and under what circumstances the Escrow Securities are to be disbursed and delivered.
The provisions of Sections 5.2 and 5.7 shall survive in the event the Escrow Agent resigns or is discharged pursuant to Sections
5.5 or 5.6 below and in the event of termination under 6.10 below.
5.3. Compensation. The Escrow Agent
shall not be entitled to any additional compensation from the Company for services rendered hereunder beyond the compensation the
Escrow Agent is entitled to receive under the Escrow Agreement entered into among the Company, the Escrow Agent and the Private
Investors named therein dated as of May 19, 2015.
5.4. Further Assurances. From time
to time on and after the date hereof, the Company and the Private Investor shall deliver or cause to be delivered to the Escrow
Agent such further documents and instruments and shall do or cause to be done such further acts as the Escrow Agent shall reasonably
request to carry out more effectively the provisions and purposes of this Agreement, to evidence compliance herewith or to assure
itself that it is protected in acting hereunder.
5.5. Resignation. The Escrow Agent
may resign at any time and be discharged from its duties as escrow agent hereunder by its giving the other parties hereto written
notice, and such resignation shall become effective at such time that the Escrow Agent shall turn over to a successor escrow agent
appointed by the Company the Escrow Securities held hereunder. If no successor escrow agent is so appointed within the sixty (60) day
period following the giving of such notice of resignation, the Escrow Agent may submit an application to deposit the Escrow Securities
with the United States District Court for the Southern District of New York, provided the Escrow Agent provides notice of
such deposit to the Company and the Private Investor in accordance with Section 6.7 hereof.
5.6. Discharge of Escrow Agent.
The Escrow Agent shall resign and be discharged from its duties as escrow agent hereunder if so requested in writing at any time
by the other parties hereto, jointly; provided, however, that such resignation shall become effective only upon acceptance
of appointment by a successor escrow agent as provided in Section 5.5.
5.7. Liability. Notwithstanding
anything herein to the contrary, the Escrow Agent shall not be relieved from liability hereunder for its own gross negligence or
willful misconduct.
5.8. Waiver. The Escrow Agent hereby
waives any and all right, title, interest or claim of any kind (each, a “Claim”) in or to any distribution of
the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of May 19, 2015, by and between the
Company and the Escrow Agent as trustee thereunder), and hereby agrees not to seek recourse, reimbursement, payment or satisfaction
for any Claim against the Trust Account for any reason whatsoever.
5.9. Standard of Care. The Escrow
Agent shall be obligated only to perform the duties specifically set forth in this Escrow Agreement, which shall be deemed purely
ministerial in nature, and the Escrow Agent shall under no circumstances be deemed to be a fiduciary to any party hereto or any
other person. The parties hereto agree that the Escrow Agent shall not assume any responsibility for the failure of the parties
hereto to perform in accordance with this Escrow Agreement or any other agreement or document. This Escrow Agreement sets forth
all matters pertinent to the escrow contemplated hereunder, and no additional obligations of the Escrow Agent shall be inferred
from the terms of this Escrow Agreement or any other agreement or document. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY
OR INDIRECTLY, FOR ANY DAMAGES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, OTHER THAN DAMAGES WHICH RESULT FROM
THE ESCROW AGENT’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
6. Miscellaneous.
6.1. Governing Law and Consent to Jurisdiction.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts
executed in and to be performed in that State, including, without limitation, Sections 5-1401 and 5-1402 of the New York General
Obligations Law and the New York Civil Practice Laws and Rules 327(b). The parties hereto agree that any action, proceeding or
claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State
of New York or the United States District Court for the Southern District of New York, and the parties hereto irrevocably submit
to such jurisdiction, which jurisdiction shall be exclusive. The parties hereto hereby waive any objection to such exclusive jurisdiction
and that such courts represent an inconvenient forum.
6.2. Waiver of Trial by Jury. Each
party hereto hereby irrevocably and unconditionally waives the right to a trial by jury in any action, suit, counterclaim or other
proceeding (whether based on contract, tort or otherwise) arising out of, connected with or relating to this Agreement, the transactions
contemplated hereby, or the actions of the parties in the negotiation, administration, performance or enforcement hereof.
6.3 Third Party Beneficiaries. The
Private Investor hereby acknowledges that the underwriters pursuant to the underwriting agreement between the Company and Citigroup
dated May 19, 2015 (the “Underwriters”) are third party beneficiaries of this Agreement and this Agreement may
not be modified or changed without the prior written consent of Citigroup.
6.4. Entire Agreement. This Agreement
and the Insider Letter as referenced herein contain the entire agreement of the Company and the Private Investor with respect to
the subject matter hereof, and this Agreement contains the entire agreement as it pertains to the Escrow Agent and the other parties
hereto and, except as expressly provided herein, may not be changed or modified except by an instrument in writing signed by all
parties to this Agreement and Citigroup. This Agreement may be executed in several original or facsimile counterparts, each one
of which shall constitute an original, and together shall constitute but one instrument.
6.5. Headings. The headings contained
in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation hereof.
6.6. Binding Effect. This Agreement
shall be binding upon and inure to the benefit of the respective parties hereto and their legal representatives, successors and
permitted assigns. Any corporation or association into which the Escrow Agent may be converted or merged, or with which it may
be consolidated, or to which it may sell or transfer all or substantially all of its corporate trust business and assets as a whole
or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation
or transfer to which the Escrow Agent is a party, shall be and become the successor escrow agent under this Escrow Agreement and
shall have and succeed to the rights, powers, duties, obligations, immunities and privileges of the Escrow Agent, without the execution
or filing of any instrument or paper or the performance of any further act.
6.7. Notices. Any notice or other
communication required or which may be given hereunder shall be in writing and shall be sent by certified or registered mail, by
private national courier service (return receipt requested, postage prepaid), by personal delivery or by facsimile transmission.
Such notice or communication shall be deemed given (a) if mailed, two days after the date of mailing, (b) if sent by
national courier service, one business day after being sent, (c) if delivered personally, when so delivered, or (d) if
sent by facsimile transmission, on the second business day after such facsimile is transmitted, in each case as follows:
If to the Company, to:
GP Investments Acquisition Corp.
150 E. 52nd Street, Suite 5003
New York, NY 10022
Attn: Antonio Bonchristiano
Fax: (212) 430-4365
If to the Private Investor,
to his address set forth in Exhibit A.
If to the Escrow Agent, to:
Continental Stock Transfer & Trust
Company
17 Battery Place, 8th Floor
New York, NY 10004
Attn: Steven G. Nelson or Robert McMonagle
A copy of any notice sent
hereunder shall be sent to each of:
Skadden, Arps, Slate, Meagher &
Flom LLP
525 University Avenue
Suite 1400
Palo Alto, California 94301
| Attn: | Gregg A. Noel, Esq. |
Michael J. Mies, Esq.
(650) 798-6510
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Attn: General Counsel
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
Attn: Deanna L. Kirkpatrick, Esq.
Manuel Garciadiaz, Esq.
Fax: (212) 701-5135
+55-11-4871-8501
The parties may change the persons and
addresses to which the notices or other communications are to be sent by giving written notice to any such change in the manner
provided herein for giving notice.
6.8. Liquidation of the Company.
The Company shall give the Escrow Agent written notification of the liquidation and dissolution of the Company in the event that
the Company fails to consummate a Business Combination within the time period specified in the Registration Statement.
6.9 Disputes. If any disagreement
or dispute arises among the Company and the Private Investor concerning the meaning or validity of any provision hereunder or concerning
any other matter relating to this Escrow Agreement, the Escrow Agent shall be under no obligation to act, except (i) with
joint written instruction of the Company and the Private Investor, or (ii) under process or order of court, and shall sustain
no liability for its failure to act pending such process or court order.
6.10 Termination. This Agreement
shall terminate on the final distribution or destruction of all of the Escrow Securities in accordance with the terms of this Agreement.
IN WITNESS WHEREOF, the parties have
duly executed this Security Escrow Agreement as of the date first written above.
|
GP INVESTMENTS ACQUISITION CORP. |
|
|
|
|
By: |
/s/ Antonio Bonchristiano |
|
Name: |
Antonio Bonchristiano |
|
Title: |
Chief Executive Officer & Chief Financial Officer |
|
|
|
|
CONTINENTAL STOCK TRANSFER & TRUST COMPANY,
AS ESCROW AGENT |
|
|
|
|
By: |
/s/ Robert E. McMonagle |
|
Name: |
Robert E. McMonagle |
|
Title: |
Vice President |
|
|
|
|
PRIVATE INVESTOR: |
|
|
|
|
By: |
/s/ Alexandre Hohagen |
|
Name: |
Alexandre Hohagen |
Exhibit A
Name and Address of Private Investor: |
|
Number of
Ordinary Shares |
Alexandre Hohagen
|
|
20,000 |
GP Investments Acquisition (MM) (NASDAQ:GPIA)
Historical Stock Chart
From Jun 2024 to Jul 2024
GP Investments Acquisition (MM) (NASDAQ:GPIA)
Historical Stock Chart
From Jul 2023 to Jul 2024