UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form
Current Report
Pursuant to Section 13 or 15(d)
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On September 24, 2021, Uma Sinha PhD was appointed to the board of directors (the “Board”) of Social Capital Suvretta Holdings Corp. III (the “Company”), effective immediately. Effective September 24, 2021, Dr. Sinha was also appointed to the audit committee, the compensation committee and the nominating and corporate governance committee of the Board. The Board has determined that Dr. Sinha is an independent director under applicable Securities and Exchange Commission and Nasdaq Capital Market rules.
In connection with the appointment of Dr. Sinha, the Company entered into the following agreements:
• | A Letter Agreement, dated September 24, 2021 (the “Letter Agreement”), between the Company and Dr. Sinha, pursuant to which Dr. Sinha has agreed to: vote any ordinary shares of the Company held by her in favor of the Company’s initial business combination; facilitate the liquidation and winding up of the Company if an initial business combination is not consummated within the time period required by the Company’s amended and restated memorandum and articles of association; and certain transfer restrictions with respect to the Company’s securities. |
• | An Indemnity Agreement, dated September 24, 2021 (the “Indemnity Agreement”), between the Company and Dr. Sinha, providing Dr. Sinha contractual indemnification in addition to the indemnification provided for in the Company’s amended and restated memorandum and articles of association. |
• | A Director Restricted Stock Unit Award Agreement, dated September 24, 2021 (the “Restricted Stock Unit Award Agreement”), between the Company and Dr. Sinha, providing for the grant of 30,000 restricted stock units (“RSUs”) to Dr. Sinha, which grant is contingent on (i) the Company’s consummation of an initial business combination and (ii) a shareholder approved equity plan. The RSUs will vest upon the consummation of such initial business combination (the “Vesting Date”) and represent 30,000 Class A ordinary shares (or, following a domestication by the Company as a Delaware corporation, shares of common stock) of the Company that will settle on a date determined in the sole discretion of the Company that shall occur between the Vesting Date and March 15 of the year following the year in which vesting occurs. |
The foregoing descriptions of the Letter Agreement, the Indemnity Agreement and Restricted Stock Unit Award Agreement do not purport to be complete and are qualified in their entireties by reference to the Letter Agreement, the Indemnity Agreement and Restricted Stock Unit Award Agreement, copies of which are attached hereto as Exhibits 10.1, 10.2 and 10.3, respectively, and are incorporated herein by reference.
The Company will reimburse Dr. Sinha for reasonable out-of-pocket expenses incurred in connection with fulfilling her role as a director. Other than the foregoing, Dr. Sinha is not party to any arrangement or understanding with any person pursuant to which she was appointed as a director, nor is she party to any transactions required to be disclosed under Item 404(a) of Regulation S-K involving the Company.
Effective September 24, 2021, Chamath Palihapitiya resigned from his position as a member of the audit committee of the Board.
Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
Exhibit No. |
Description | |
10.1 | Letter Agreement, dated September 24, 2021, between the Company and Dr. Sinha. | |
10.2 | Indemnity Agreement, dated September 24, 2021, between the Company and Dr. Sinha. | |
10.3 | Director Restricted Stock Unit Award Agreement, dated September 24, 2021, between the Company and Dr. Sinha. | |
104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
SOCIAL CAPITAL SUVRETTA HOLDINGS CORP. III | ||
By: | /s/ Chamath Palihapitiya | |
Chamath Palihapitiya | ||
Chief Executive Officer |
Dated: September 24, 2021
Exhibit 10.1
September 24, 2021
Social Capital Suvretta Holdings Corp. III
2850 W. Horizon Ridge Parkway, Suite 200
Henderson, NV 89052
Re: | Director Appointment |
Ms. Uma Sinha:
This letter (this Letter Agreement) is being delivered to you in connection with your appointment to the board of directors of Social Capital Suvretta Holdings Corp. III, a Cayman Islands exempted company (the Company). Reference is made to the Companys initial public offering (the Public Offering) of 25,000,000 of the Companys Class A ordinary shares, par value $0.0001 per share (the Ordinary Shares). The Ordinary Shares were sold in the Public Offering pursuant to registration statements on Form S-1 (File Nos. 333-256725 and 333-257545) and a prospectus (the Prospectus) filed by the Company with the Securities and Exchange Commission (the Commission). Certain capitalized terms used herein are defined in paragraph 11 hereof.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned (the Insider), hereby agrees with the Company as follows:
1. The Insider agrees with the Company that if the Company seeks shareholder approval of a proposed initial Business Combination, then in connection with such proposed initial Business Combination, the Insider shall (a) vote any Shares owned by the Insider in favor of such proposed initial Business Combination (including any proposals recommended by the Companys board of directors in connection with such proposed initial Business Combination) and (b) not redeem any Shares owned by the Insider in connection with such shareholder approval.
2. The Insider hereby agrees with the Company that in the event that the Company fails to consummate its initial Business Combination within 24 months from the closing of the Public Offering, or such later period approved by the Companys shareholders in accordance with the Companys amended and restated memorandum and articles of association, as they may be amended from time to time, the Insider shall take all reasonable steps to cause the Company to (a) cease all operations except for the purpose of winding up, (b) as promptly as reasonably possible but not more than ten (10) business days thereafter, redeem 100% of the Ordinary Shares sold in the Public Offering (the Public Shares), at a per share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest (less up to $100,000 of interest to pay dissolution expenses and which interest shall be net of taxes payable), divided by the number of then issued and outstanding Public Shares, which redemption will completely extinguish all Public Shareholders rights as shareholders (including the right to receive further liquidation distributions, if any), and (c) as promptly as reasonably possible following such redemption, subject to the approval of the Companys remaining shareholders and the Companys board of directors, liquidate and dissolve, subject in each case to the Companys obligations under Cayman Islands law to provide for claims of creditors and the other requirements of applicable law. The Insider agrees not to propose any amendment to the Companys amended and restated memorandum and articles of association (i) to modify the substance or timing of the Companys obligation to allow redemption in connection with the Companys initial Business Combination or to redeem 100% of the Public Shares if the Company does not complete its initial Business Combination within 24 months from the closing of the Public Offering, or (ii) with respect to any other material provisions relating to shareholders rights or pre-initial Business Combination activity, unless the Company provides its Public Shareholders with the opportunity to redeem their Public Shares upon approval of any such amendment at a per share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest (which interest shall be net of taxes payable), divided by the number of then issued and outstanding Public Shares.
The Insider acknowledges that the Insider 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 any Founder Shares or Private Placement Shares held by the Insider (if any). The Insider hereby further waives, with respect to any Shares held by the Insider, if any, any redemption rights the Insider may have in
connection with (x) the consummation of an initial Business Combination, including, without limitation, any such rights available in the context of a shareholder vote to approve such initial Business Combination or in the context of a tender offer made by the Company to purchase Ordinary Shares and (y) a shareholder vote to amend the Companys amended and restated memorandum and articles of association (i) to modify the substance or timing of the Companys obligation to allow redemption in connection with the Companys initial Business Combination or to redeem 100% of the Public Shares if the Company does not complete its initial Business Combination within 24 months from the closing of the Public Offering, or (ii) with respect to any other material provisions relating to shareholders rights or pre-initial Business Combination activity (although the Insider shall be entitled to redemption and liquidation rights with respect to any Public Shares the Insider holds if the Company fails to consummate its initial Business Combination within 24 months from the closing of the Public Offering).
3. Notwithstanding the provisions set forth in paragraphs 7(a) and (b) below, during the period commencing on June 29, 2021 and ending 180 days after such date, the Insider shall not, without the prior written consent of the Underwriters (as defined below), offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any transaction that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise)), 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 (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 Shares or any securities convertible into, or exercisable or exchangeable for, Shares, or publicly announce an intention to effect any such transaction. The restrictions of this paragraph 3 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. Reserved.
5. Reserved.
6. The Insider hereby agrees and acknowledges that: (a) the underwriters party to the underwriting agreement related to the Public Offering, dated as of June 29, 2021, between the Company and Morgan Stanley Co. LLC, as representative of the underwriters named therein (the Underwriters), and the Company would be irreparably injured in the event of a breach by the Insider of the Insiders obligations under paragraphs 1, 2, 3, 7(a), 7(b), and 9 of this Letter Agreement; (b) monetary damages may not be an adequate remedy for such breach; and (c) the non-breaching party shall be entitled to seek 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 Insider agrees that the Insider shall not Transfer (as defined below) any Founder Shares (or Ordinary Shares issuable upon conversion thereof) or shares underlying restricted stock unit awards granted to the Insider until the earlier of (i) one year after the completion of the Companys initial Business Combination and (ii) subsequent to the initial Business Combination, (x) if the last reported sale price of the Ordinary Shares equals or exceeds $12.00 per share (as adjusted for share sub-divisions, share dividends, rights issuances, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 150 days after the Companys initial Business Combination or (y) the date following the completion of the Companys initial Business Combination on which the Company completes a liquidation, merger, share exchange, reorganization or other similar transaction that results in all of the Companys shareholders having the right to exchange their Ordinary Shares for cash, securities or other property (the Founder Shares Lock-up Period).
(b) The Insider agrees that the Insider shall not Transfer any Private Placement Shares until 30 days after the completion of an initial Business Combination (the Private Placement Shares 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 Founder Shares, Private Placement Shares and Ordinary Shares issued or issuable upon the conversion of the Founder Shares and shares underlying restricted stock unit awards granted to the Insider are permitted: (i) to the Companys directors or officers, any affiliates or family members of the Companys directors or officers, SCS Sponsor III LLC, a Cayman Islands limited liability company (the Sponsor), any members of the Sponsor or any affiliates of the
Sponsor; (ii) in the case of an individual, by gift to a member of the individuals immediate family, or to a trust, the beneficiary of which is a member of the individuals immediate family or an affiliate of such person, or to a charitable organization; (iii) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual; (iv) in the case of an individual, pursuant to a qualified domestic relations order; (v) 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; (vi) in the event of the Companys liquidation prior to the Companys completion of an initial Business Combination; (vii) in the case of an entity, by virtue of the laws of its jurisdiction or its organizational documents or operating agreement; and (viii) in the event of the Companys completion of a liquidation, merger, share exchange, reorganization or other similar transaction which results in all of the Companys shareholders having the right to exchange their Ordinary Shares for cash, securities or other property subsequent to the completion of the Companys initial Business Combination; provided, however, that, in the case of clauses (i) through (v), these permitted transferees must enter into a written agreement with the Company agreeing to be bound by the transfer restrictions in this Letter Agreement.
8. The Insider represents and warrants that the Insider 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. The Insiders biographical information furnished to the Company, if any, is true and accurate in all respects and does not omit any material information with respect to the Insiders background. The Insiders questionnaire furnished to the Company, if any, is true and accurate in all respects. The Insider represents and warrants that: (a) the Insider 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; and (b) the Insider 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 Insider is not currently a defendant in any such criminal proceeding.
9. Except as disclosed in, or as expressly contemplated by, the Prospectus, or pursuant to agreements entered between the Company and the Insider on the date hereof and disclosed in the public filings of the Company, the Insider shall not receive from the Company any finders 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 Companys initial Business Combination (regardless of the type of transaction that it is).
10. The Insider has full right and power, without violating any agreement to which the Insider 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 to serve as a director on the board of directors of the Company and hereby consents to being named in public filings of the Company as a director of the Company.
11. As used herein, (a) Business Combination shall mean a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination, involving the Company and one or more businesses; (b) Shares shall mean, collectively, the Ordinary Shares, the Founder Shares and the Private Placement Shares; (c) Founder Shares shall mean the 5,750,000 Class B ordinary shares, par value $0.0001 per share, of the Company issued and outstanding immediately prior to the consummation of the Public Offering; (d) Private Placement Shares shall mean the Ordinary Shares that were acquired by the Sponsor for an aggregate purchase price of $6,000,000, or $10.00 per Ordinary Share, in a private placement that occurred concurrently with the consummation of the Public Offering; (e) Public Shareholders shall mean the holders of Public Shares; (f) Trust Account shall mean the trust fund into which a portion of the net proceeds of the Public Offering were deposited; and (g) Transfer shall mean the (i) 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, (ii) 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 (iii) public announcement of any intention to effect any transaction specified in clause (i) or (ii).
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 the 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 Company. Any purported assignment in violation of this paragraph 13 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 Insider and the Insiders successors, heirs and assigns and permitted transferees.
14. This Letter Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York. Each of the parties hereto (a) agrees 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 submits to such jurisdiction and venue, which jurisdiction and venue shall be exclusive, and (b) waives any objection to such exclusive jurisdiction and venue or that such courts represent an inconvenient forum.
15. This Letter Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Letter Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Letter Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
16. 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 by electronic transmission.
17. Each party hereto shall not be liable for any breaches or misrepresentations contained in this Letter Agreement by any other party to this Letter Agreement, and no party shall be liable or responsible for the obligations of another party, including, without limitation, indemnification obligations and notice obligations.
18. This Letter Agreement shall terminate on the earlier of (a) the expiration of the Lock-up Periods and (b) the liquidation of the Company.
19. This Letter Agreement may be executed in any number of original or electronic counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
[Signature page follows]
Sincerely, |
/s/ Uma Sinha |
Name: Uma Sinha |
[Signature Page to Letter Agreement]
Acknowledged and Agreed: | ||
Social Capital Suvretta Holdings Corp. III | ||
By: | /s/ Kishan Mehta | |
Name: Kishan Mehta | ||
Title: President |
[Signature Page to Letter Agreement]
Exhibit 10.2
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (this Agreement) is made as of September 24, 2021, by and between Social Capital Suvretta Holdings Corp. III, a Cayman Islands exempted company (the Company), and Uma Sinha (Indemnitee).
WHEREAS, highly competent persons have become more reluctant to serve publicly-held companies as directors, officers or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against risks of claims and actions against them arising out of their service to and activities on behalf of such companies;
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 any of its subsidiaries from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among publicly traded companies 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 companies 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 (the Articles) 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 Articles 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, 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 Companys 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 and the Articles 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 Articles and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of, Indemnitee thereunder; and
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 take on additional service for or on behalf of the Company on the condition that Indemnitee be so indemnified.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein and subject to the provisions of the letter agreement dated as of September 24, 2021 between the Company and Indemnitee, the Company and Indemnitee do hereby covenant and agree as follows:
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 Indemnitees resignation or until Indemnitee is removed. The foregoing notwithstanding, this Agreement shall continue in full force and effect after Indemnitee has ceased to serve as a director, officer, advisor, key employee or in any other capacity of the Company, as provided in Section 17. This Agreement, however, shall not impose any obligation on Indemnitee or the Company to continue Indemnitees service to the Company beyond any period otherwise required by law or by other agreements or commitments of the parties, if any.
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, including a person serving in such capacity as a director, officer, employee, advisor, fiduciary or other official of another company, 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 | 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: |
(a) | Acquisition of Shares by Third Party. Other than an affiliate of SCS Sponsor III LLC (the Sponsor), ChaChaCha DNA III, LLC or SVAV Sponsor III, LLC, 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 Companys then outstanding securities entitled to vote generally in the election of directors, unless (1) the change in the relative Beneficial Ownership of the Companys securities by any Person results solely from a reduction in the aggregate number of outstanding shares or securities 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 (c) of this definition; |
(b) | 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 Companys 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 or 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; |
(c) | Corporate Transactions. The effective date of a merger, share exchange, asset acquisition, share 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 fifty-one percent (51%) of the combined voting power of |
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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 company or corporation which as a result of such transaction owns the Company or all or substantially all of the Companys 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 the Sponsor, ChaChaCha DNA III, LLC or SVAV Sponsor III, LLC, no Person (excluding any company or corporation resulting from such Business Combination) is the Beneficial Owner, directly or indirectly, of fifteen percent (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 company or 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 company or 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, providing for such Business Combination; |
(d) | Liquidation. The approval by the shareholders of the Company of a complete 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 Companys assets, other than factoring the Companys current receivables or escrows due (or, if such approval is not required, a decision by the Board to proceed with such a liquidation, sale, or disposition in one transaction or a series of related transactions); or |
(e) | 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, whether or not the Company is then subject to such reporting requirement. |
2.4 | Corporate Status describes the status of a person who is or was a director, director nominee, officer, trustee, general partner, manager, 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. |
2.5 | Delaware Court shall mean the Court of Chancery of the State of Delaware. |
2.6 | 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. |
2.7 | Enterprise shall mean the Company and any other company, corporation, constituent company or 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, manager, managing member, fiduciary, employee or agent. |
2.8 | Exchange Act shall mean the Securities Exchange Act of 1934, as amended. |
2.9 | Expenses shall include all direct and indirect costs, fees and expenses of any type or nature whatsoever, including, without limitation, all attorneys fees and costs, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, fees of private |
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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, including reasonable compensation for time spent by Indemnitee for which Indemnitee is not otherwise compensated by the Company or any third party. Expenses also shall include any such direct and indirect costs, fees and expenses incurred in connection with any appeal resulting from any Proceeding, 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. Notwithstanding the foregoing, the term Expenses shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee. |
2.10 | Independent Counsel shall mean a law firm or a member of a law firm with significant experience in matters of corporate law that neither presently is, nor in the past five (5) 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 Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements); or (ii) any other party to the Proceeding 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 Indemnitees rights under this Agreement. |
2.11 | References to fines shall include any excise tax assessed on Indemnitee with respect to any employee benefit plan. |
2.12 | 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. |
2.13 | 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 of the Company or of any company or 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 of the Company or of a company or 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 |
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Company, by reason of any action (or failure to act) taken by Indemnitee or of any action (or failure to act) on Indemnitees part while acting as a director, director nominee or officer of the Company, or by reason of the fact that Indemnitee is or was serving at the request of the Company as a director, director nominee or officer, trustee, general partner, manager, 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 company, corporation, limited liability company, partnership, joint venture, trust 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 and the Articles, 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, deponent or otherwise) in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor, by reason of Indemnitees Corporate Status. 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 Indemnitees behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee 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 Indemnitees conduct was unlawful.
4. | INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY |
To the fullest extent permitted by applicable law and the Articles, 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, deponent or otherwise) in any Proceeding by or in the right of the Company to procure a judgment in its favor by reason of Indemnitees Corporate Status. Pursuant to this Section 4, Indemnitee shall be indemnified, held harmless and exonerated against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitees behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee 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 of competent jurisdiction to be liable to the Company, unless and only to the extent that any court in which the Proceeding was brought or the Delaware 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, but subject to Section 27, to the extent that Indemnitee was or is, by reason of Indemnitees Corporate Status, 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 and the Articles, indemnify, hold harmless and exonerate Indemnitee against all Expenses actually and reasonably incurred by Indemnitee 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 and the Articles, indemnify, hold harmless and exonerate Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitees behalf in connection with each successfully resolved
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claim, issue or matter. If Indemnitee is not wholly successful in such Proceeding, the Company also shall, to the fullest extent permitted by applicable law and the Articles, 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 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, but subject to Section 27, to the extent that Indemnitee is, by reason of Indemnitees Corporate Status, a witness or deponent in any Proceeding to which Indemnitee is not a party or threatened to be made a party, Indemnitee shall, to the fullest extent permitted by applicable law and the Articles, be indemnified, held harmless and exonerated against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitees behalf in connection therewith.
7. | ADDITIONAL INDEMNIFICATION, HOLD HARMLESS AND EXONERATION RIGHTS |
7.1 | Notwithstanding any limitation in Section 3, 4, or 5, but subject to Section 27, the Company shall, to the fullest extent permitted by applicable law and the Articles, 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 Indemnitees conduct which constitutes a breach of Indemnitees duties 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 applicable law. |
7.2 | Notwithstanding any limitation in Section 3, 4, 5 or 7.1, but subject to Section 27, the Company shall, to the fullest extent permitted by applicable law and the Articles, 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 and the Articles, 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. |
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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 |
The Company shall not be obligated under this Agreement to make any indemnification, advance Expenses, 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 or advancement provision and which payment has not subsequently been returned, except with respect to any excess beyond the amount actually received under any insurance policy, contract, agreement, other indemnity or advancement 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 any successor rule) or similar provisions of state statutory law or common law; or |
(c) | prior to a Change in Control, other than as provided in Sections 14.5 and 14.6 hereof, 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, but subject to Section 2.7, and to the fullest extent not prohibited by applicable law or the Articles, 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, to the fullest extent permitted by law, be unsecured and interest free. Advances shall be made without regard to Indemnitees ability to repay the Expenses and without regard to Indemnitees 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 Companys receipt of an undertaking, by or on behalf of 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 Articles, 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. |
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10.2 | The Company will be entitled to participate in any 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 Indemnitee without Indemnitees 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 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 Indemnitees sole discretion. Following such a written application for indemnification by Indemnitee, Indemnitees 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 Indemnitees 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 by ordinary resolution. The Company will promptly 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 Indemnitees 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 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 Indemnitees entitlement to indemnification) and the Company hereby agrees to indemnify and 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 12.1. 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 Indemnitee 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 |
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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 Delaware Court for resolution of any objection which shall have been made by the Company or Indemnitee to the others selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Delaware 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, to the fullest extent permitted by applicable law and the Articles, 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 Indemnitees 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. |
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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 Indemnitee 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 Indemnitees conduct was unlawful. |
13.4 | For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitees 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, managers, managing members, 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, trustee, general partner, manager or managing member or on information or records given or reports made to the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member 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, trustee, general partner, manager or managing member. 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 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 action, or failure to act, of any other director, officer, trustee, partner, manager, 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 and the Articles, 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 in accordance with this Agreement 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 Delaware Court to such indemnification, hold harmless, exoneration, contribution or advancement rights. Alternatively, Indemnitee, at Indemnitees option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association. Except as set forth herein, the provisions of Delaware law (without regard to its conflict of laws rules) shall apply to any such arbitration. The Company shall not oppose Indemnitees right to seek any such adjudication or award in arbitration. |
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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 and 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 Indemnitees 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 Indemnitees 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 applicable law and the Articles against all Expenses and, if requested by Indemnitee, shall (within ten (10) days after the Companys receipt of such written request) pay to Indemnitee, to the fullest extent permitted by applicable law and the Articles, such Expenses which are incurred by Indemnitee in connection with any judicial proceeding or arbitration brought by Indemnitee (i) to enforce Indemnitees 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 Articles 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 a rate to be agreed between the Company and Indemnitee 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. |
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15. | SECURITY |
Notwithstanding anything herein to the contrary, but subject to Section 27, to the extent requested by Indemnitee and approved by the Board, the Company may at any time and from time to time provide security to Indemnitee for the Companys obligations hereunder through an irrevocable bank line of credit, funded trust or other collateral. Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of 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 Articles, 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 Indemnitees 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 Articles 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 Articles 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 Indemnitee or incurred by or on behalf of Indemnitee or in such capacity as a director, officer, employee or agent of the Company, or arising out of Indemnitees status as such, whether or not the Company would have the power to indemnify Indemnitee against such liability under the provisions of this Agreement, 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 Indemnitee under this Agreement except as expressly provided herein, and the execution and delivery of this Agreement by the Company and 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, managers, 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, manager, 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, deponent 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 Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
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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 Companys 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, manager, 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, but subject to 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 Companys 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, manager, managing member, fiduciary, employee or agent of any other company, 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 Indemnitees Corporate Status, whether or not Indemnitee is acting in any such capacity at the time any liability or expense is incurred for which indemnification or advancement 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, advisor or key employee of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director, officer, advisor or key employee of the Company. |
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19.2 | Without limiting any of the rights of Indemnitee under the Articles 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 and/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 a director, officer, trustee, general partner, manager, managing member, fiduciary, employee or agent of any other Enterprise at the Companys request, and shall inure to the benefit of Indemnitee and Indemnitees 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 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 that a monetary remedy for breach of this Agreement, at some later date, may be inadequate, impracticable and difficult to prove, 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 Indemnitee 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 Company and Indemnitee. 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 received for by the party to whom said notice or other communication shall have been directed, on such delivery, or (ii) if mailed by certified or registered mail with postage prepaid, on the third (3rd) business day after the date on which it is so mailed:
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(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: |
Social Capital Suvretta Holdings Corp. III
2850 W. Horizon Ridge Parkway, Suite 200
Henderson, NV 89052
Attn: Chief Executive Officer
With a copy, which shall not constitute notice, to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Attn: Raaj S. Narayan, Esq.
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 State of Delaware, without giving effect to conflicts of law principles that would result in the application of the laws of another jurisdiction. 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 Delaware 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 Delaware 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 Delaware Court; and (d) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum, or is subject (in whole or in part) to a jury trial.
23. | 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. Signatures to this Agreement transmitted via electronic transmission shall be valid and effective to bind the party so signing.
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, Indemnitees spouse, heirs, executors or personal or legal representatives after the expiration of two (2) 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 (2)-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.
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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 effected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement.
27. | WAIVER OF CLAIMS TO TRUST ACCOUNT |
Notwithstanding anything contained herein to the contrary, 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 Companys 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. For the avoidance of doubt, this Section 27 shall not limit any Claims that Indemnitee may have against such trust account in its capacity as a holder of securities of the Company that are otherwise permitted by applicable law and the Articles.
28. | INTERPRETATION |
In this Agreement:
(a) | written and in writing include all modes of representing or reproducing words in visible form, including in the form of an Electronic Record; |
(b) | shall shall be construed as imperative and may shall be construed as permissive; |
(c) | references to provisions of any law or regulation shall be construed as references to those provisions as amended, modified, re-enacted or replaced; |
(d) | any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and |
(e) | the term and/or is used herein to mean both and as well as or. The use of and/or in certain contexts in no respects qualifies or modifies the use of the terms and or or in others. The term or shall not be interpreted to be exclusive and the term and shall not be interpreted to require the conjunctive (in each case, unless the context otherwise requires). |
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed as of the day and year first above written.
SOCIAL CAPITAL SUVRETTA HOLDINGS CORP. III | ||
By: | /s/ Kishan Mehta | |
Name: Kishan Mehta | ||
Title: Authorized Signatory |
INDEMNITEE | ||
By: | /s/ Uma Sinha | |
Name: Uma Sinha | ||
Address: c/o Social Capital Suvretta | ||
Holdings Corp. III | ||
2850 W. Horizon Ridge Parkway, Suite 200 | ||
Henderson, NV 89052 |
[Signature Page to Indemnity Agreement]
Exhibit 10.3
SOCIAL CAPITAL SUVRETTA HOLDINGS CORP. III
DIRECTOR RESTRICTED STOCK UNIT AWARD AGREEMENT
This Director Restricted Stock Unit Award Agreement (this RSU Award Agreement), dated as of September 24, 2021 (the Grant Date), is made by and between Social Capital Suvretta Holdings Corp. III, an exempted company incorporated with limited liability under the laws of the Cayman Islands (the Company), and Uma Sinha (the Participant). The terms of this RSU Award Agreement shall be governed by the terms of the omnibus equity incentive plan to be adopted by the Company and submitted for approval by the Companys shareholders in connection with the Companys initial Business Combination (as defined below) (the Plan). Certain capitalized terms used herein and not otherwise defined are defined in Section 6.
1. Grant of Restricted Units. The Company hereby grants to the Participant 30,000 restricted stock units (the RSUs), subject to all of the terms and conditions of this RSU Award Agreement and the Plan.
2. Vesting.
(a) Subject to Sections 2(b) and 7, the RSUs shall become vested in full upon the consummation of the Companys initial Business Combination (the Vesting Date); provided that the Participant remains in continuous service as a member of the Board of Directors of the Company (the Board) through the time that is immediately prior to the consummation of the Companys initial Business Combination. In the event that the Company does not consummate a Business Combination prior to the date required under its Governing Documents, all RSUs shall be automatically forfeited without consideration, and this RSU Award Agreement shall be null and void.
(b) If the Participants service as a member of the Board is terminated for any reason prior to the time that is immediately prior to the consummation of the Companys initial Business Combination, then on the date of such termination from service (i) this RSU Award Agreement shall terminate and all rights of the Participant with respect to the RSUs shall immediately terminate, (ii) the RSUs shall be forfeited without payment of any consideration, and (iii) neither the Participant nor any of the Participants successors, heirs, assigns, or personal representatives shall thereafter have any further rights or interests in the RSUs.
3. Settlement. Each RSU granted hereunder shall represent the notional right to receive a single Ordinary Share and, upon a Domestication, if any, each RSU shall be converted into the notional right to receive a single share of Common Stock. Vested RSUs shall be settled in Ordinary Shares or shares of Common Stock, as applicable, on a date determined in the sole discretion of the Company that shall occur between the Vesting Date and March 15 of the year following the year in which vesting occurs.
4. Equitable Adjustment. In the event of any Change in Capitalization (other than in connection with a Business Combination), an equitable substitution or proportionate adjustment shall be made in (i) the kind and number of Shares or other securities or the amount of cash or amount or type of other property subject to outstanding RSUs granted under this Agreement; and/or (ii) the terms and conditions of this RSU Award Agreement; provided, however, that any
fractional shares resulting from the adjustment shall be eliminated. The Company is further authorized to make adjustments in the terms and conditions of, and the criteria included in, this RSU Award Agreement in recognition of unusual or infrequent events (including, without limitation, the events described in this Section 4, but excluding an initial Business Combination) affecting the Company or the financial statements of the Company, including but not limited to changes in the number or conversion rights associated with the Class B Shares, or of changes in applicable laws, regulations, or accounting principles, whenever the Company determines that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under this RSU Award Agreement.
5. Voting and Other Rights. The Participant shall have no rights of a stockholder with respect to the RSUs (including, without limitation, the right to vote and the right to receive distributions or dividends) unless and until Shares are issued in respect thereof in accordance with Section 3; provided that with respect to the period commencing on the Grant Date and ending on the date the Shares subject to such RSUs are issued in accordance with Section 3, the Participant shall be eligible to receive an amount equal to the product of (a) the number of Shares to be delivered as a result of such vesting and settlement, multiplied by (b) the amount of cash distributed by the Company with respect to an outstanding Share during such period, which amount shall be paid to the Participant on the date such Shares are issued (provided that such amount shall not be paid to the extent that any RSUs do not become vested and Shares are not delivered). No interest or other earnings shall be credited with respect to such payment.
6. Definitions. As used herein, the following defined terms have the definitions set forth below:
(a) Business Combination shall mean a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination, involving the Company and one or more businesses.
(b) Change in Capitalization means any (i) merger, consolidation, reclassification, recapitalization, spin-off, spin-out, repurchase or other reorganization or corporate transaction or event, (ii) special or extraordinary dividend or other extraordinary distribution (whether in the form of cash, Shares or other property), share split, reverse share split, share subdivision or consolidation, (iii) combination or exchange of Shares or (iv) other change in corporate structure, which, in any such case, the Company determines, in its sole discretion, affects the Shares such that an adjustment pursuant to Section 4 is appropriate.
(c) Class B Shares shall mean the Class B ordinary shares of the Company, par value $0.0001 per share.
(d) Common Stock shall mean the common stock, par value $0.0001 per share, of the Company following a Domestication.
(e) Domestication shall mean a domestication by the Company as a Delaware corporation.
(f) Governing Document shall mean (i) prior to a Domestication, the Companys amended and restated memorandum and articles of association, as the same may be amended from time to time, and (ii) upon and following a Domestication, its certificate of incorporation and bylaws, as the same may be amended from time to time.
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(g) Ordinary Shares shall mean the Class A ordinary shares of the Company, par value $0.0001 per share.
(h) Shares shall mean, collectively, Ordinary Shares, shares of Common Stock and Class B Shares, as applicable.
(i) Trust Account shall mean the trust fund into which a portion of the net proceeds of the Companys initial public offering were deposited for the benefit of the Company, certain of its public shareholders and the underwriters of the Companys initial public offering.
7. RSU Award Agreement Subject to Plan and Shareholder Approval. This RSU Award Agreement is made pursuant to all of the provisions of the Plan, which is incorporated herein by this reference, and is intended, and shall be interpreted in a manner, to comply therewith. In the event of any conflict between the provisions of this RSU Award Agreement and the provisions of the Plan, the provisions of this RSU Award Agreement shall govern. The Participant hereby acknowledges that all decisions, determinations and interpretations of the Administrator (as defined in the Plan) in respect of the Plan, this RSU Award Agreement and the RSUs shall be final and conclusive. This RSU Award Agreement and the grant of RSUs hereunder is expressly contingent upon approval of the Plan and the overall share limit set forth thereunder by the Board (or a designated committee thereof) and the Companys shareholders. If the Plan is not so approved on or prior to the consummation of the Companys initial Business Combination, this RSU Award Agreement shall be null and void ab initio. Any issuance of Shares in respect of RSUs shall be issued under and pursuant to the terms of the Plan.
8. Regulations and Other Approvals.
(a) Any resale of the Shares received in respect of RSUs shall be made in compliance with the registration requirement of the Securities Act of 1933, as amended (the Securities Act), or an applicable exemption therefrom, including, without limitation, the exemption provided by Rule 144 promulgated thereunder (or any successor rule, Rule 144).
(b) The obligation of the Company to deliver Shares with respect to any RSU granted hereunder shall be subject to all applicable laws, rules and regulations, including all applicable federal and state securities laws, and the obtaining of all such approvals by governmental agencies as may be deemed necessary or appropriate by the Company.
(c) Each RSU is subject to the requirement that, if at any time the Company determines, in its sole discretion, that the listing, registration or qualification of Shares issuable hereunder is required by any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body is necessary or desirable as a condition of, or in connection with, the grant of an RSU or the issuance of Shares, no such RSU shall be granted or Shares issued, in whole or in part, unless such listing, registration, qualification, consent or approval has been effected or obtained free of any conditions not acceptable to the Company.
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9. Participant Representations and Warranties. This RSU Award Agreement and the grant of RSUs hereunder is expressly conditioned on the Participants acceptance and agreement to the representations and warranties set forth in Annex A. All representations and warranties contained in Annex A shall survive the execution of this RSU Award Agreement and the grant of the RSUs contemplated hereby. The Participant agrees to indemnify and hold harmless the Company and its Affiliates from any liability, loss or expense (including, without limitation, reasonable attorneys fees) if the Participant has breached any representation or warranty hereunder.
10. No Rights to Continuation of Service. Nothing in the Plan or this RSU Award Agreement shall confer upon the Participant any right to continue in the service of the Company or any Affiliate thereof or shall interfere with or restrict the right of the Company or its Affiliates to terminate the Participants service at any time for any reason whatsoever.
11. Taxes. The Participant understands that the Participant (and not the Company) shall be responsible for any tax liability that may arise as a result of the transactions contemplated by this RSU Award Agreement.
12. Section 409A and Section 457A. The intent of the parties is that the payments and benefits under this RSU Award Agreement comply with Section 409A of the Code and be exempt from Section 457A of the Code, to the extent subject thereto, and accordingly, to the maximum extent permitted, this RSU Award Agreement shall be interpreted and administered to be in compliance therewith or exempt therefrom, as applicable. Notwithstanding anything contained herein to the contrary, the Participant shall not be considered to have terminated service with the Company for purposes of any payments under this RSU Award Agreement that are subject to Section 409A of the Code until the Participant would be considered to have incurred a separation from service from the Company within the meaning of Section 409A of the Code. Each amount to be paid or benefit to be provided under this RSU Award Agreement shall be construed as a separate identified payment for purposes of Section 409A of the Code. Without limiting the foregoing and notwithstanding anything contained herein to the contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this RSU Award Agreement or any other arrangement between the Participant and the Company during the six-month period immediately following the Participants separation from service shall instead be paid on the first business day after the date that is six months following the Participants separation from service (or, if earlier, the Participants date of death). The Company makes no representation that any or all of the payments described in this RSU Award Agreement will be exempt from or comply with Section 409A or Section 457A of the Code and makes no undertaking to preclude Section 409A or Section 457A of the Code from applying to any such payment. The Participant shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A or Section 457A of the Code.
13. Governing Law and Jurisdiction. This RSU Award Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. All disputes arising out of this RSU Award Agreement shall be subject to the exclusive jurisdiction of the Court of Chancery located in the State of Delaware (and only if such court lacks or declines jurisdiction, any other state or federal court located in the State of Delaware), and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.
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14. RSU Award Agreement Binding on Successors. The terms of this RSU Award Agreement shall be binding upon the Participant and upon the Participants heirs, executors, administrators, personal representatives and successors in interest, and upon the Company and its successors and assignees, subject to the terms of the Plan.
15. No Assignment. Notwithstanding anything to the contrary in this RSU Award Agreement, neither this RSU Award Agreement nor any rights granted herein shall be assignable by the Participant.
16. Necessary Acts. The Participant hereby agrees to perform all acts, and to execute and deliver any other documents that may be reasonably necessary to carry out the provisions of this RSU Award Agreement, including but not limited to all acts and documents related to compliance with federal and/or state securities and/or tax laws.
17. Severability. Should any provision of this RSU Award Agreement be held by a court of competent jurisdiction to be unenforceable, or enforceable only if modified, such holding shall not affect the validity of the remainder of this RSU Award Agreement, the balance of which shall continue to be binding upon the parties hereto with any such modification (if any) to become a part hereof and treated as though contained in this original RSU Award Agreement. Moreover, if one or more of the provisions contained in this RSU Award Agreement shall for any reason be held to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable, in lieu of severing such unenforceable provision, such provision or provisions shall be construed by the appropriate judicial body by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear, and such determination by such judicial body shall not affect the enforceability of such provisions or provisions in any other jurisdiction.
18. Entire Agreement. This RSU Award Agreement, the Plan and the letter agreement, dated as of the date hereof (the Letter Agreement), between the Company and the Participant, contain the entire agreement and understanding among the parties as to the subject matter hereof, and supersedes any other agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof.
19. Headings. Headings are used solely for the convenience of the parties and shall not be deemed to be a limitation upon or descriptive of the contents of any such Section.
20. Counterparts; Electronic Signature. This RSU Award Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. A partys electronic signature of this RSU Award Agreement shall have the same validity and effect as a signature affixed by such partys hand.
21. Amendment. No amendment or modification hereof shall be valid unless it shall be in writing and signed by all parties hereto.
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22. Waiver against Trust Account. The Participant acknowledges that the Participant 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 RSUs. The Participant hereby further acknowledges that the Participant shall have no right of set-off or any other right, title, interest or claim of any kind (Claim) in, or to any distribution of, the Trust Account and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever. The Participant hereby waives any and all Claims against the Trust Account and any and all rights to seek access to the Trust Account.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this RSU Award Agreement as of the date set forth above.
SOCIAL CAPITAL SUVRETTA HOLDINGS CORP. III | ||
By: | /s/ Kishan Mehta | |
Name: Kishan Mehta | ||
Title: President |
[Signature Page to Director Restricted Stock Unit Award Agreement]
The undersigned hereby accepts and agrees to all the terms and provisions of the foregoing RSU Award Agreement, including Annex A.
PARTICIPANT | ||
Signature: |
/s/ Uma Sinha | |
Print Name: | Uma Sinha |
[Signature Page to Director Restricted Stock Unit Award Agreement]
ANNEX A
REPRESENTATIONS AND WARRANTIES OF THE PARTICIPANT
The Participant hereby represents and warrants to the Company as of the date of this RSU Award Agreement as follows:
1. | The Participants domicile is the State of California, all discussions related to this Agreement, the RSUs, and the offer and acceptance of this RSU Award Agreement, and the RSUs granted hereunder, occurred in the State of California. |
2. | The Participant has such knowledge and experience in financial and business matters that the Participant is capable of evaluating the merits and risks of the investment to be made by the Participant hereunder. The Participant understands and has taken cognizance of all the risk factors related to the investment in the RSUs. |
3. | The Participant is acquiring the RSUs for his or her own account for investment and not with any view to, or for resale in connection with, any distribution or public offering thereof within the meaning of the Securities Act. |
4. | The Participant understands that (a) the RSUs have not been, and any Shares received in respect of RSUs will not be, registered under the Securities Act or applicable state securities laws, in reliance on exemptions from registration under the Securities Act and applicable state securities laws, (b) the RSUs and any Shares received in respect of RSUs may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of without registration under the Securities Act, except: (i) to the Company or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to another applicable exemption from the registration requirements of the Securities Act, and in each of cases (i) and (iii) in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates representing the Shares shall contain a legend to such effect, (c) the availability of an exemption from registration may depend on factors over which the Participant has no control, that unless so registered or exempt from registration the RSUs and any Shares received in respect of RSUs may be required to be held for an indefinite period and (d) no federal or state agency has made any finding or determination as to the fairness for investment, nor any recommendation or endorsement, of the RSUs or any Shares received in respect of RSUs. |
5. | The Participant understands that an exemption from registration is not presently available pursuant to Rule 144, that there is no assurance that such exemption will ever become available to the Participant and that even if it were to become available, sales pursuant to Rule 144 may be limited in amount and could only be made in full compliance with the provisions of Rule 144. |
6. | The Participant acknowledges and agrees that (a) except as expressly provided for in this RSU Award Agreement, no representations or warranties have been made to the Participant by the Company, any manager, officer, agent, employee or affiliate of the |
Company, or any other persons with respect to the Participants investment in the RSUs, (b) except for this RSU Award Agreement, the Letter Agreement and the Plan, there are no agreements, contracts, understandings or commitments between the Participant on the one hand and the Company, any director, manager, officer, agent, employee or affiliate of the Company on the other hand, with respect to the Participants investment in the RSUs, (c) in entering into this transaction the Participant is not relying upon any information, other than that contained in the Plan, this RSU Award Agreement and the results of the Participants own independent investigation, (d) the Participants financial situation is such that the Participant can afford to hold the RSUs and any Shares received in respect of RSUs for an indefinite period of time, has adequate means for providing for his or her current needs and personal contingencies, and can afford the eventuality that the RSUs and any Shares received in respect of RSUs may ultimately have no value, (e) the future value of the RSUs and any Shares received in respect of RSUs is speculative, and (f) the Participants investment in the RSUs and any Shares received in respect of RSUs is subject to dilution by the issuance of additional equity securities by the Company and the Participant is not entitled to any preemptive, tag-along, information or other minority investor rights with respect to the RSUs and any Shares received in respect of RSUs, other than as expressly set forth in this RSU Award Agreement, the Plan or as otherwise provided under applicable law. |
7. | The Participant understands that the Participant must bear the economic risk of his or her investment in the RSUs for an indefinite period of time. |
8. | The Participant understands that the grant of RSUs to the Participant is predicated, in part, on the representations, warranties and covenants of the Participant contained herein. |
9. | The Participant hereby acknowledges that neither the Company nor any representative of the Company has provided, or will provide, the Participant with tax advice regarding the RSUs, the Company or the execution of this Agreement, and the Company has advised the Participant to consult the Participants own tax advisor with respect to the tax consequences of each of the foregoing, including but not limited to any applicable elections, withholdings or other matters relating to the RSUs, the Company or the execution of this Agreement. |