As filed with the Securities and Exchange
Commission on June 17, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Zenvia Inc.
(Exact name of Registrant as specified in its
charter)
Not Applicable
(Translation of Registrant’s name into
English)
|
The Cayman Islands
(State or other jurisdiction of
incorporation or organization) |
98-1598403
(I.R.S. Employer
Identification No.) |
Avenida Paulista, 2300, 18th Floor
São Paulo, São Paulo, CEP 01310-300
Brazil
+55 (11) 99904-5082
(Address and telephone number of registrant’s
principal executive offices)
______________________
Cogency Global Inc.
122 East 42nd Street, 18th Floor
New York, New York 10168
+1 (212) 947-7200
(Name, address, and telephone number of agent for service)
______________________
Copies to:
Grenfel S. Calheiros
Paulo F. Cardoso
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
+1 (212) 455-2000
Approximate date of commencement of proposed
sale to the public: From time to time after the effective date of this registration statement.
If only securities being registered on this Form
are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on
this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following
box. ☒
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant
to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to
a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company ☒
If an emerging growth company that prepares its
financial statements in accordance with U.S. GAAP, 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 7(a)(2)(B) of the Securities
Act . ☐
† The term “new or revised financial
accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification
after April 5, 2012.
The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states
that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended,
or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this preliminary prospectus is not complete
and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission
is effective. This preliminary prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities
in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED
JUNE 17, 2024 PROSPECTUS
![[MISSING IMAGE: lg_zenvianew-bw.jpg]](https://www.sec.gov/Archives/edgar/data/1836934/000129281424002442/image_001.jpg)
Zenvia Inc.
(incorporated
in the Cayman Islands)
US$100,000,000
Class A Common Shares
Debt Securities
Warrants
Rights
Units
This prospectus will allow us to issue, from
time to time at prices and on terms to be determined at or prior to the time of the offering, up to US$100,000,000 of any combination
of the securities described in this prospectus, either individually or in units. We may also offer Class A common shares upon conversion
of or exchange for debt securities or upon the exercise of warrants or rights.
This prospectus describes the general terms
of these securities and the general manner in which these securities will be offered. We will provide you with the specific terms of any
offering in one or more supplements to this prospectus. The prospectus supplements will also describe the specific manner in which these
securities will be offered and may also supplement, update or amend information contained in this document. You should read this prospectus
and any prospectus supplement, as well as any documents incorporated by reference into this prospectus or any prospectus supplement, carefully
before you invest.
We may offer and sell the securities from time
to time at fixed prices, at market prices or at negotiated prices to or through agents designated from time to time or to or through underwriters
or dealers or through a combination of these methods. For additional information on the methods of sale, you should refer to the section
titled “Plan of Distribution” in this prospectus and in the applicable prospectus supplement. If any underwriters or agents
are involved in the sale of our securities with respect to which this prospectus is being delivered, the names of such underwriters or
agents and any applicable fees, commissions or discounts and over-allotment options will be set forth in a prospectus supplement. The
price to the public of such securities and the net proceeds that we expect to receive from such sale will also be set forth in a prospectus
supplement.
Our Class A common shares are listed on the
Nasdaq Capital Market, or the Nasdaq, under the symbol “ZENV.” On June 14, 2024, the last reported sale price of our Class
A common shares on the Nasdaq Capital Market was US$2.74 per share. The applicable prospectus supplement will contain information, where
applicable, as to any other listing, if any, on the Nasdaq Capital Market or any securities market or other securities exchange of the
securities covered by the prospectus supplement. Prospective purchasers of our securities are urged to obtain current information as to
the market prices of our securities, where applicable.
As of the date of this prospectus, the aggregate
market value of our outstanding common shares held by non-affiliates, was determined to be US$66,605,077 based on 27,080,080 Class A
common shares and 23,664,925 Class B common shares outstanding, of which 17,300,020 Class A common shares are held by non-affiliates,
and the closing sale price of our Class A common shares on the Nasdaq of US$3.85 on May 20, 2024, which is within 60 days of the date
of this prospectus. Pursuant to General Instruction I.B.5. of Form F-3, in no event will we sell the securities covered hereby in a public
primary offering with a value exceeding more than one-third of the aggregate market value of our Class A common shares held by non-affiliates
in any 12-month period so long as the aggregate market value of our outstanding common shares held by non-affiliates remains below US$75,000,000.
As of the date hereof, we have not offered any securities pursuant to General Instruction I.B.5 of Form F-3 during the twelve calendar
month period that ends on and includes the date hereof.
Investing in our securities involves a high
degree of risk. Before deciding whether to invest in our securities, you should consider carefully the risks that we have described on
page 7 of this prospectus under the caption “Risk Factors.” We may also include specific risk factors in supplements
to this prospectus under the caption “Risk Factors.” This prospectus may not be used to sell our securities
unless accompanied by a prospectus supplement.
Neither the U.S. Securities and Exchange
Commission, or the SEC, nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy
or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2024.
Table of Contents
Page
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
that we filed with the SEC utilizing a “shelf” registration process. Under this shelf registration process, we may offer our
Class A common shares, various series of debt securities or warrants, and rights to purchase any of such securities, either individually
or in units, in one or more offerings, with a total value of up to US$100,000,000. This prospectus provides you with a general description
of the securities we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus
supplement that will contain specific information about the terms of that offering.
This prospectus does not contain all of the
information included in the registration statement. For a more complete understanding of the offering of the securities, you should refer
to the registration statement, including its exhibits. The prospectus supplement may also add, update or change information contained
or incorporated by reference in this prospectus. However, no prospectus supplement will offer a security that is not registered and described
in this prospectus at the time of its effectiveness. This prospectus, together with the applicable prospectus supplements and the documents
incorporated by reference into this prospectus, includes all material information relating to the offering of securities under this prospectus.
You should carefully read this prospectus, the applicable prospectus supplement, the information and documents incorporated herein by
reference and the additional information under the captions “Where You Can Find More Information” and “Incorporation
of Documents by Reference” before making an investment decision.
You should rely only on the information we have
provided or incorporated by reference in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with
information different from that contained or incorporated by reference in this prospectus. No dealer, salesperson or other person is authorized
to give any information or to represent anything not contained or incorporated by reference in this prospectus. You must not rely on any
unauthorized information or representation. If you are in a jurisdiction where offers to sell, or solicitations of offers to purchase,
the securities offered by this document are unlawful, or if you are a person to whom it is unlawful to direct these types of activities,
then the offer presented in this document does not extend to you. You should assume that the information in this prospectus or any prospectus
supplement is accurate only as of the date on the front of the document and that any information we have incorporated herein by reference
is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus or any
sale of a security.
We further note that the representations, warranties
and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference in this prospectus
were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among
the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations,
warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should
not be relied on as accurately representing the current state of our affairs.
Wherever references are made in this prospectus
to information that will be included in a prospectus supplement, to the extent permitted by applicable law, rules or regulations, we may
instead include such information or add, update or change the information contained in this prospectus by means of a post-effective amendment
to the registration statement of which this prospectus is a part, through filings we make with the SEC that are incorporated by reference
in this prospectus or by any other method as may then be permitted under applicable law, rules or regulations.
This prospectus may not be used to consummate
sales of our securities unless it is accompanied by a prospectus supplement. To the extent there are inconsistencies between any prospectus
supplement, this prospectus and any documents incorporated by reference, the document with the most recent date will control.
Unless otherwise indicated or the context otherwise
requires, in this prospectus, “Zenvia,” the “Company,” the “Issuer,” “we,” “us,”
“our” or similar terms refer to Zenvia Inc. and its consolidated subsidiaries, except where the context otherwise requires.
SPECIAL NOTE
REGARDING FORWARD-LOOKING STATEMENTS
The statements contained in this prospectus
and the documents incorporated by reference herein include forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act,
that relate to future events and, as such, are subject to risks, uncertainties and other factors that may cause our actual results, levels
of activity, performance or achievements to differ materially from any future results, levels of activity, performance or achievements
expressed or implied by these forward-looking statements. Words such as, but not limited to, “aim,” “anticipate,”
“believe,” “can,” “confident,” “continue,” “could,” “estimate,”
“expect,” “intend,” “likely,” “may,” “might,” “plan,” “potential,”
“predict,” “probable,” “project,” “seek,” “should,” “target,”
“will,” “would” and similar expressions or phrases or the opposite of those terms, expressions or phrases, are
intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words.
Readers
are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date on which they are made.
There is no assurance that the expected events, trends or results will actually occur and we undertake no obligation to update publicly
or revise any forward-looking statements and estimates whether as a result of new information, future events or otherwise.
Forward-looking statements include, but
are not limited to, statements regarding our current belief or expectations as of the date any such statements were made and estimates
on future events and trends that affect or may affect our business, financial condition, results of operations, liquidity, prospects and
the trading price of our Class A common shares. Although we believe that we have a reasonable basis for each forward-looking statement
contained in this prospectus and incorporated by reference herein, we caution you that these statements are based on assumptions and information
currently available to us, which are subject to risks and uncertainties and other factors that may cause our actual results, level of
activity, performance or achievements expressed or implied by these forward-looking statements, to differ.
The sections in our periodic reports, including
our annual report on Form 20-F for the fiscal year ended December 31, 2023, titled “Information on the Company,” “Risk
Factors,” and “Operating and Financial Review and Prospects,” as well as other sections in this prospectus and the documents
or reports incorporated by reference herein, discuss some of the factors that could contribute to these differences.
These forward-looking statements include,
among other things, statements about:
| · | our ability to increase cash generation and/or obtain funding through issuance of new equity or debt to comply with short and long
term liabilities; |
| · | our ability to achieve or maintain profitability; |
| · | our ability to face challenges in the expansion of our operations into new market segments and/or new geographic regions within and
outside of Brazil; |
| · | our ability to successfully develop, acquire and integrate new businesses as customers in new industry verticals and appropriately
manage our international expansion; |
| · | our failure to enhance our brand recognition or maintain a positive public image; |
| · | our failure to implement adequate internal controls, including in the acquired companies; |
| · | the inherent risks related to the SaaS and CPaaS market, such as the interruption, failure or breach of our computer or information
technology systems, resulting in the degradation of the quality or a decline in the use of the products and services we offer; |
| · | general macro- and micro-economic, political and business conditions in Brazil and other countries where we operate and the impact
on our business, notably with respect to inflation and interest rates and their impact on the discretionary spending of businesses, as
well as the impact of these conditions into our growth expectations and overall performance of our operations; |
| · | the impact of substantial and increasing competition in our market, innovation by our competitors, and our ability to compete effectively; |
| · | our compliance with applicable regulatory and legislative developments and regulations and legislation that currently apply or become
applicable to our business as we continue to grow; |
| · | our ability to attract and retain qualified personnel while controlling our personnel related expenses, as well as the lack of a qualified
labor force (particularly developers); |
| · | the dependence of our business on our relationship with service providers as well with certain cloud infrastructure providers, and
volatility of the costs related therewith; |
| · | our ability to maintain, protect and enhance our brand and intellectual property; |
| · | our ability to maintain our classification as an emerging growth company under the JOBS Act; |
| · | other factors that may affect our financial condition, liquidity and results of operations; and |
| · | other risk factors discussed under the section titled “Risk Factors” in our most recent annual report on Form 20-F for
the fiscal year ended December 31, 2023, as revised or supplemented by our subsequent periodic reports filed under the Exchange Act, as
well as any amendments thereto, as filed with the SEC and which are incorporated by reference. |
Given such limitations, you should not
place undue reliance on or make any investment decision on the basis of the forward-looking statements contained herein. You are cautioned
that any such forward-looking statements are not guarantees of future performance and involve risks and uncertainties, and that actual
results may differ materially from those in the forward-looking statements. In light of the risks, uncertainties and assumptions associated
with forward-looking statements, you should not place undue reliance on any forward-looking statements. Additional risks that we may currently
deem immaterial or that are not presently known to us could also cause the forward-looking events discussed in this prospectus not to
occur.
The forward-looking statements contained in
this document speak only as of the date they are made. We do not undertake any obligation or intend to update any of the forward-looking
statements after the date of this prospectus to conform these statements in light of new information or future developments to actual
results or changes in our expectations, except as required by law.
PROSPECTUS SUMMARY
The following is a summary of some of the
information related to our business and the offering of our securities under this prospectus that appear later in this prospectus or in
documents incorporated by reference herein. We urge you to read this entire prospectus, including the more detailed audited consolidated
financial statements as of December 31, 2023 and 2022 and for each of the three years in the period ended December 31, 2023, or the consolidated
financial statements, notes to the consolidated financial statements and other information incorporated by reference herein from our other
filings with the SEC or included in any applicable prospectus supplement. Investing in our securities involves risks. Therefore, carefully
consider the risk factors set forth in any prospectus supplements and in our most recent filings with the SEC incorporated by reference
herein, including our annual report on Form 20-F, as well as other information in this prospectus and any prospectus supplements and any
other document incorporated by reference herein or therein, before purchasing our securities. Each of the risk factors could adversely
affect our business, operating results and financial condition, as well as adversely affect the value of an investment in our securities.
Our Pledge
We are
driven by the purpose of shaping a new world of experiences, empowering companies to create unique experiences for end-consumer through
a unified end-to-end platform.
Overview
We create differentiated customer journeys
by empowering companies to transform their existing customer experience from non-scalable, physical and impersonal interactions into highly
scalable, digital first and hyper contextualized experiences.
Businesses all over the world are shaping
new customer experiences with the power of digital communications and process automations. However, businesses seeking to implement multi-channel
communication experiences for their end-consumers are frequently faced with multiple challenges given the complexities of implementing
and integrating such processes and level of investments that they require. We provide businesses with a solution to this problem by offering
a unified end-to-end CX SaaS platform at affordable prices. Our comprehensive platform assists our customers across multiple use cases,
including marketing campaigns, customer acquisition, customer support, through tickets resolutions, and enabling companies to continuously
engage customers based on their unique background, promoting healthy and long-lasting relationships, transforming data into insights.
Also, our CPaaS products provide warnings, fraud control, as well as marketing campaigns and others.
Our CX SaaS platform allows companies to
digitally interact with their end-consumers in a personalized and highly contextualized way, with the support of artificial intelligence
along with a human touch throughout the end-consumer journey. Our unified end-to-end CX SaaS platform provides a combination of our (i)
SaaS portfolio, which includes Zenvia Attraction, Zenvia Conversion, Zenvia Service, and Zenvia Success and (ii) CPaaS solutions, such
as SMS, Voice, WhatsApp, Instagram and Webchat, all such applications being orchestrated and automated by chatbots, single customer view,
journey designer, documents composer and authentication. Moreover, our platform allows the integration with legacy systems and has native
integrations with software such as Customer Relationship Management (CRM), Enterprise Resource Planning (ERP) and others.
From small family-owned businesses to
large corporations, our customers use our platform to attract, convert, serve and nurture their end-consumers. Businesses use our platform
to frequently and more seamlessly connect with their end-consumers while also offering new mobile application experiences. Also, the
use of our platform brings opportunities to digitalize communications that were previously sent through offline traditional methods,
such printing hardcopies of documents, generating time efficiency and a positive contribution to the environment, by helping a variety
of businesses adopt paperless communications. One of our clients, a Brazilian insurance company, reported that in 2022 it had reduced
paper use by 97 tons, by replacing traditional paper-based communication with digital communication. In addition, during the same period
with the same customer, we also contributed to the environmental initiatives by reducing plastic consumption by 7 tons and water consumption
by more than 1 million liters.
Zenvia has evolved its product portfolio
organically and through acquisitions. As a result, our platform now provides four SaaS solutions (Zenvia Attraction, Zenvia Conversion,
Zenvia Service and Zenvia Success) and Consulting designed for each phase of our customers’ journey, allowing a continuous relationship
with our brand.
The SaaS segment carries higher Gross Margin
compared to our other products and we believe which will bring the most growth in the future. Due to our strategy, our SaaS solutions
represent a significant part of our Gross Profit, which was almost nonexistent nearly three years ago.
In the year ended December 31, 2023, 41.2% of
our gross profit originated from our SaaS segment while 58.8% of our gross profit originated from our CPaaS segment.
Additional Information
For additional information related to our business
and operations, please refer to the reports incorporated herein by reference, including our annual report on Form 20-F for the year ended
December 31, 2023, as described under the caption “Incorporation of Documents by Reference.”
Our Corporate Information
Zenvia Inc. was incorporated on November
3, 2020, as a Cayman Islands exempted company with limited liability duly registered with the Cayman Islands Registrar of Companies. We
are subject to applicable laws of the Cayman Islands including the Companies Act (as amended) of the Cayman Islands and the common law
of the Cayman Islands.
Our principal executive office is located
at Avenida Paulista, 2300, 18th Floor, São Paulo, São Paulo, CEP 01310-300, Brazil. Our registered office is located at
Maples Corporate Services Limited, P.O. Box 309, Ugland House, Grand Cayman KYI-1104, Cayman Islands. Our investor relations website is
https://investors.zenvia.com. The information contained on, or that can be accessed through, our website is not a part of this prospectus.
Foreign Private Issuer
We are a “foreign private issuer”
as defined under the Exchange Act. As a foreign private issuer under the Exchange Act, we are exempt from certain rules under the Exchange
Act, including the proxy rules, which impose certain disclosure and procedural requirements for proxy solicitations. Moreover, we are
not required to file periodic reports and financial statements with the SEC as frequently or as promptly as domestic U.S. companies with
securities registered under the Exchange Act, and we are not required to comply with Regulation FD, which imposes certain restrictions
on the selective disclosure of material information. In addition, our officers, directors, and principal shareholders are exempt from
the reporting and “short-swing” profit recovery provisions of Section 16 of the Exchange Act. They are, however, subject to
the obligations to report changes in share ownership under Section 13 of the Exchange Act and related SEC rules.
In addition, as Zenvia Inc. is a publicly-held
company listed on the Nasdaq Capital Market since July 2021, we are subject to the Nasdaq corporate governance requirements. However,
the Nasdaq listing standards provide that foreign private issuers, like us, are permitted to follow home country corporate governance
practices in lieu of the Nasdaq rules, with certain exceptions. In accordance with this exception, we follow Cayman Islands corporate
governance practices in lieu of certain of the Nasdaq corporate governance standards.
Emerging Growth Company
We are an “emerging growth company,” as
defined in Section 2(a) of the Securities Act, as modified by the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. We will
remain an emerging growth company until the earlier of (1) the last day of the fiscal year (a) following the fifth anniversary of the
completion of our initial public offering, (b) in which we have total annual revenues of at least US$1.235 billion, or (c) in which we
are deemed to be a large accelerated filer, which means the market value of our shares that is held by non-affiliates exceeds US$700.0
million, as of the prior June 30, and (2) the date on which we have issued more than US$1.00 billion in non-convertible debt during the
prior three-year period. As an emerging growth company, we are eligible to take advantage of certain exemptions from various reporting
requirements that are applicable to other public companies in the United States that are not emerging growth companies including, but
not limited to, exemptions from the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, or the Sarbanes-Oxley
Act, and any Public Company Accounting Oversight Board, or PCAOB, rules, including any future audit rule promulgated by the PCAOB (unless
the SEC determines otherwise). Accordingly, the information about us available to investors will not be the same as, and may be more
limited than, the information available to shareholders of a non-emerging growth company.
Offerings Under This Prospectus
Under this prospectus, we may offer, through
one or more offerings, Class A common shares, various series of debt securities or warrants or rights to purchase any of such securities,
either individually or in units, with a total value of up to US$100,000,000, from time to time at prices and on terms to be determined
by market conditions at the time of the offering. This prospectus provides you with a general description of the securities we may offer.
Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will describe the
specific amounts, prices and other important terms of the securities, including, to the extent applicable:
| · | designation or classification; |
| · | aggregate principal amount or aggregate offering price; |
| · | maturity, if applicable; |
| · | rates and times of payment of interest or dividends, if any; |
| · | redemption, conversion or sinking fund terms, if any; |
| · | voting or other rights, if any; and |
| · | conversion or exercise prices, if any. |
The prospectus supplement also may add, update
or change information contained in this prospectus or in documents we have incorporated by reference into this prospectus. However, no
prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered
and described in this prospectus at the time of its effectiveness.
We may sell the securities directly to you or
to or through agents, underwriters or dealers. We, and our agents or underwriters, reserve the right to accept or reject all or part of
any proposed purchase of securities. If we offer securities through agents or underwriters, we will include in the applicable prospectus
supplement:
| · | the names of those agents or underwriters; |
| · | applicable fees, discounts and commissions to be paid to them; |
| · | details regarding over-allotment options, if any; and |
This prospectus may not be used to consummate
a sale of any securities unless it is accompanied by a prospectus supplement.
RISK FACTORS
Investing in our securities involves significant
risk. The prospectus supplement applicable to each offering of our securities will contain a discussion of the risks applicable to an
investment into us. Prior to making a decision about investing in our securities, you should carefully consider the specific factors discussed
under the caption “Risk Factors” in the applicable prospectus supplement, together with all of the other information contained
or incorporated by reference in the prospectus supplement or appearing or incorporated by reference in this prospectus. You should also
consider the risks, uncertainties and assumptions discussed under the caption “Risk Factors” included in our most recent annual
report on Form 20-F and any subsequent annual reports on Form 20-F we file after the date of this prospectus, and all other information
contained in or incorporated by reference into this prospectus or the registration statement of which this prospectus forms a part, as
updated by our subsequent filings under the Exchange Act, and the risk factors and other information contained in any applicable prospectus
supplement before acquiring any of our securities. Additional risks and uncertainties not presently known to us or that we currently deem
immaterial may also affect our operations. The occurrence of any of these risks might cause you to lose all or part of your investment
in the offered securities. Please see “Where You Can Find More Information” and “Incorporation of Documents by Reference”
for information on where you can find the documents we have filed with or furnished to the SEC and which are incorporated into this prospectus
by reference.
CAPITALIZATION
Our capitalization will be set forth in a prospectus
supplement to this prospectus or in a Report on Form 6-K subsequently furnished to the SEC and specifically incorporated herein by
reference.
USE OF PROCEEDS
Unless otherwise indicated in the applicable
prospectus supplement, we intend to use any net proceeds from the sale of securities under this prospectus to provide additional capital
to support the development and growth of our business, increase our capitalization, prepay outstanding indebtedness, provide us with greater
financial flexibility and allocate for general corporate purposes including, but not limited to, working capital, capital expenditures,
investments, acquisitions, if any. We have not determined the amounts we plan to spend on any of the areas listed above or the timing
of these expenditures. As a result, our management will have broad discretion to allocate the net proceeds, if any, we receive in connection
with securities offered pursuant to this prospectus for any purpose. Pending application of the net proceeds as described above, we may
initially invest the net proceeds in short-term, investment-grade and interest-bearing securities.
PLAN OF DISTRIBUTION
We may sell or distribute the securities included
in this prospectus through underwriters, through agents, to dealers in private transactions, at market prices prevailing at the time of
sale, at prices related to market prices, at a fixed price or prices subject to change, at varying prices determined at the time of sale
(which may be above or below market prices prevailing at the time of sale) or at negotiated prices.
In addition, we may sell some or all of our
securities included in this prospectus through:
| · | a block trade in which a broker-dealer may resell a portion of the block, as principal, in order to facilitate the transaction; |
| · | purchases by a broker-dealer, as principal, and resale by the broker-dealer for its account; |
| · | ordinary brokerage transactions and transactions in which a broker solicits purchasers; or |
| · | trading plans entered into by us pursuant to Rule 10b5-1 under the Securities Exchange Act of 1934, as amended, or the Exchange Act,
that are in place at the time of an offering pursuant to this prospectus and any applicable prospectus supplement hereto that provide
for periodic sales of our securities on the basis of parameters described in such trading plans. |
In addition, we may enter into options or other
types of transactions that require us to deliver our securities to a broker-dealer, who will then resell or transfer the securities under
this prospectus. We may enter into hedging transactions with respect to our securities. For example, we may:
| · | enter into transactions involving short sales of our Class A common shares by broker-dealers; |
| · | sell common shares short and deliver the shares to close out short positions; |
| · | enter into options or other types of transactions that require us to deliver common shares to a broker-dealer, who will then resell
or transfer the Class A common shares under this prospectus; or |
| · | loan or pledge the Class A common shares to a broker-dealer, who may sell the loaned shares or, in the event of default, sell the
pledged shares. |
We may enter into derivative transactions with
third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable
prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus
and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by us
or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received
from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions
will be an underwriter and, if not identified in this prospectus, will be identified in the applicable prospectus supplement (or a post-effective
amendment). In addition, we may otherwise loan or pledge securities to a financial institution or other third party that in turn may sell
the securities short using this prospectus. Such financial institution or other third party may transfer its economic short position to
investors in our securities or in connection with a concurrent offering of other securities.
Any broker-dealers or other persons acting on
our behalf that participate with us in the distribution of the securities may be deemed to be underwriters and any commissions received
or profit realized by them on the resale of the securities may be deemed to be underwriting discounts and commissions under the Securities
Act of 1933, as amended, or the Securities Act.
At the time that any particular offering of
securities is made, to the extent required by the Securities Act, a prospectus supplement will be distributed, setting forth the terms
of the offering, including the aggregate number of securities being offered, the purchase price of the securities, the initial offering
price of the securities, the names of any underwriters, dealers or agents, any discounts, commissions and other items constituting compensation
from us and any discounts, commissions or concessions allowed or reallowed or paid to dealers. Furthermore, we, our executive officers,
our directors and major shareholders may agree, subject to certain exemptions, that for a certain period from the date of the prospectus
supplement under which the securities are offered, we and they will not, without the prior written consent of an underwriter, offer,
sell, contract to sell, pledge or otherwise dispose of any of our Class A common shares or any securities convertible into or exchangeable
for common shares. However, an underwriter, in its sole discretion, may release any of the securities subject to these lock-up agreements
at any time without notice.
We expect an underwriter to exclude from these
lock-up agreements securities exercised and/or sold pursuant to trading plans entered into by us pursuant to Rule 10b5-1 under the Exchange
Act, that are in place at the time of an offering pursuant to this prospectus and any applicable prospectus supplement hereto that provide
for periodic sales of our securities on the basis of parameters described in such trading plans.
Underwriters or agents could make sales in privately
negotiated transactions and/or any other method permitted by law, including sales deemed to be an at-the-market offering as defined in
Rule 415 promulgated under the Securities Act, which includes sales made directly on or through the Nasdaq Capital Market, the existing
trading market for our shares of common stock, or sales made to or through a market maker other than on an exchange.
At the time that any particular offering of
common shares is made, to the extent required by the Securities Act, a prospectus or prospectus supplement or, if appropriate, a post-effective
amendment, will be distributed, setting forth the terms of the offering, including the aggregate number of common shares being offered,
the purchase price of the Class A common shares, the public offering price of the Class A common shares, the names of any underwriters,
dealers or agents and any applicable discounts or commission.
In order to comply with the securities laws
of some states, if applicable, our Class A common shares may be sold in these jurisdictions only through registered or licensed brokers
or dealers. In addition, in some states our Class A common shares may not be sold unless they have been registered or qualified for sale
or an exemption from registration or qualification requirements is available and is complied with.
Underwriters or agents could make sales in privately
negotiated transactions and/or any other method permitted by law, including sales deemed to be an at-the-market offering as defined in
Rule 415 promulgated under the Securities Act, which includes sales made directly on or through the Nasdaq Capital Market, the existing
trading market for our Class A common shares, or sales made to or through a market maker other than on an exchange.
We will bear the costs relating to the securities
offered and sold by us under this registration statement.
Indemnification
Agreements that we may enter into with underwriters,
dealers or agents may entitle them to indemnification by us against certain civil liabilities. These include liabilities under the Securities
Act of 1933, as amended. The agreements may also entitle them to contribution for payments which they may be required to make as a result
of these liabilities. Underwriters, dealers or agents may be customers of, engage in transactions with, or perform services for, us in
the ordinary course of business.
DESCRIPTION
OF SHARE CAPITAL
General
Zenvia Inc.
was incorporated on November 3, 2020, as a Cayman Islands exempted company with limited liability duly registered with the Cayman Islands
Registrar of Companies. Our corporate purposes are unrestricted, and we have the authority to carry out any object not prohibited by any
law as provided by Section 7(4) of Companies Act (as amended) of the Cayman Islands, or the Companies Act.
Our affairs
are governed principally by our second amended and restated memorandum and articles of association, or articles of association, the Companies
Act (as amended) of the Cayman Islands and the common law of the Cayman Islands. As provided in our articles of association, subject to
Cayman Islands law, we have full capacity to carry on or undertake any business or activity, do any act or enter into any transaction,
and, for such purposes, full rights, powers and privileges. Our registered office is c/o Maples Corporate Services Limited, P.O. Box 309,
Ugland House, Grand Cayman, KY1 1104, Cayman Islands.
The following is a summary of the material provisions
of our authorized share capital and our articles of association. This discussion does not purport to be complete and is qualified in its
entirety by reference to our articles of association. The form of our articles of association is filed as an exhibit to this prospectus.
Share Capital
Our articles of association authorize two classes
of common shares: Class A common shares, which are entitled to one vote per share, and Class B common shares, which are entitled to 10
votes per share and to maintain a proportional ownership interest in the event that additional Class A common shares are issued. Any holder
of Class B common shares may convert his or her shares at any time into Class A common shares on a share-for-share basis. The rights of
the two classes of common shares are otherwise identical, except as described below. See “—Anti-Takeover Provisions in Our
Articles of Association—Two Classes of Shares.”
At the date of this prospectus, our total authorized
share capital was US$50,000, divided into 1,000,000,000 shares with par value of US$0.00005 each, of which:
| · | 500,000,000 shares are designated as Class A common shares; |
| · | 250,000,000 shares are designated as Class B common shares; and |
| · | 250,000,000 which are as yet undesignated and may be issued as common shares or shares with preferred rights. |
As of the date of this prospectus, 27,080,080
Class A common shares and 23,664,925 Class B common shares of our authorized share capital were issued, fully paid and outstanding.
Our Class A common shares are listed on the
Nasdaq under the symbol “ZENV.”
Treasury Stock
At the date of this prospectus, we have no shares
in treasury.
Issuance of Shares
Except as expressly provided in our articles
of association, our board of directors has general and unconditional authority to allot, grant options over, offer or otherwise deal
with or dispose of any unissued shares in the company’s capital without the approval of our shareholders (whether forming part
of the original or any increased share capital), either at a premium or at par, with or without preferred, deferred or other special
rights or restrictions, whether in regard to dividend, voting, return of capital or otherwise and to such persons, on such terms and
conditions, and at such times as the directors may decide, but so that no share shall be issued at a discount, except in accordance with
the provisions of the Companies Act. In accordance with its articles of association, we shall not issue bearer shares.
Our articles of association provide that at
any time that there are Class A common shares in issue, additional Class B common shares may only be issued pursuant to (1) a share split,
subdivision of shares or similar transaction or where a dividend or other distribution is paid by the issue of shares or rights to acquire
shares or following capitalization of profits, (2) a merger, consolidation, or other business combination, or (3) an issuance of shares,
including Class A common shares, whereby holders of the Class B common shares are entitled to purchase a number of Class B common shares
that would allow them to maintain their proportional ownership interests in us (following an offer by us to each holder of Class B common
shares to issue to such holder, upon the same economic terms and at the same price, such number of Class B common shares as would ensure
such holder may maintain a proportional ownership interest in us pursuant to our articles of association). In light of: (a) the above
provisions; (b) the fact that future transfers by holders of Class B common shares will generally result in those shares converting to
Class A common shares, subject to limited exceptions as provided in the articles of association; and (c) the ten-to-one voting ratio between
our Class B common shares and Class A common shares, means that holders of our Class B common shares will in many situations continue
to maintain control of all matters requiring shareholder approval. This concentration of ownership and voting power will limit or preclude
your ability to influence corporate matters for the foreseeable future. For more information see “—Preemptive or Similar Rights.”
Our articles of association also provide that
the issuance of non-voting common shares requires the affirmative vote of a majority of the of then-outstanding Class A common shares.
Fiscal Year
Our fiscal year begins on January 1 of each
year and ends on December 31 of the same year.
Voting Rights
The holders of the Class A common shares and
Class B common shares have identical rights, except that (1) the holder of Class B common shares is entitled to 10 votes per share, whereas
holders of Class A common shares are entitled to one vote per share, (2) Class B common shares have certain conversion rights and (3)
the holder of Class B common shares is entitled to maintain a proportional ownership interest in the event that additional Class A common
shares are issued. For more information see “—Preemptive or Similar Rights” and “—Conversion.” The
holders of Class A common shares and Class B common shares vote together as a single class on all matters (including the election of directors)
submitted to a vote of shareholders, except as provided below and as otherwise required by law.
Our articles of association provide as follows
regarding the respective rights of holders of Class A common shares and Class B common shares:
| (1) | Class consents from the holders of Class A common shares or Class B common shares, as applicable,
shall be required for any variation to the rights attached to their respective class of shares, however, the Directors may treat any
two or more classes of shares as forming one class if they consider that all such classes would be affected in the same way by the proposal; |
| (2) | the rights conferred on holders of Class A common shares shall not be deemed to be varied
by the creation or issue of further Class B common shares and vice versa; and |
| (3) | the rights attaching to the Class A common shares and the Class B common shares shall not
be deemed to be varied by the creation or issue of shares with preferred or other rights, including, without limitation, shares with
enhanced or weighted voting rights. |
As set forth in the articles of association,
the holders of Class A common shares and Class B common shares, respectively, do not have the right to vote separately if the number
of authorized shares of such class is increased or decreased. Rather, the number of authorized Class A common shares and Class B common
shares may be increased or decreased (but not below the number of shares of such class then outstanding) by the affirmative vote of the
holders of a majority of the voting power of the issued and outstanding Class A common shares and Class B common shares, voting together
in a general meeting.
Preemptive or Similar Rights
The Class A common shares and Class B common
shares are not entitled to preemptive rights upon transfer and are not subject to conversion (except as described below under “—Conversion”),
redemption or sinking fund provisions.
The Class B common shares are entitled to maintain
a proportional ownership interest in the event that additional Class A common shares are issued. As such, except for certain exceptions,
including the issuance of Class A common shares in furtherance of our initial public offering, if we issue Class A common shares, we must
first make an offer to each holder of Class B common shares to issue to such holder on the same economic terms such number of Class B
common shares as would ensure such holder may maintain a proportional ownership interest into us. This right to maintain a proportional
ownership interest may be waived by all of the holders of Class B common shares.
Conversion
The outstanding Class B common shares are convertible
at any time as follows: (1) at the option of the holder, a Class B common share may be converted at any time into one Class A common share
or (2) upon the election of the holders of all of the then outstanding Class B common shares, all outstanding Class B common shares may
be converted into a like number of Class A common shares. In addition, each Class B common share will convert automatically into one Class
A common share upon any transfer, whether or not for value, except for certain transfers described in the articles of association, including
transfers to affiliates, with the restrictions set forth thereto. Furthermore, each Class B common share will convert automatically into
one Class A common share and no Class B common shares will be issued thereafter if, at any time, the voting power of outstanding Class
B common shares represents less than 10% of the aggregate voting power of the Class A common shares and Class B common shares then outstanding.
No class of our common shares may be subdivided
or combined unless the other class of common shares is concurrently subdivided or combined in the same proportion and in the same manner.
Equal Status
Except as expressly provided in our articles
of association, Class A common shares and Class B common shares have the same rights and privileges and rank equally, share proportionally
and are identical in all respects as to all matters. In the event of any merger, consolidation, scheme, arrangement or other business
combination requiring the approval of our shareholders entitled to vote thereon (whether or not we are the surviving entity), the holders
of Class A common shares shall have the right to receive, or the right to elect to receive, the same form of consideration as the holders
of Class B common shares, and the holders of Class A common shares shall have the right to receive, or the right to elect to receive,
at least the same amount of consideration on a per share basis as the holders of Class B common shares. In the event of any (1) tender
or exchange offer to acquire any Class A common shares or Class B common shares by any third-party pursuant to an agreement to which we
are a party, or (2) any tender or exchange offer by us to acquire any Class A common shares or Class B common shares, the holders of Class
A common shares shall have the right to receive, or the right to elect to receive, the same form of consideration as the holders of Class
B common shares, and the holders of Class A common shares shall have the right to receive, or the right to elect to receive, at least
the same amount of consideration on a per share basis as the holders of Class B common shares.
Record Dates
For the purpose of determining shareholders
entitled to notice of, or to vote at any general meeting of shareholders or any adjournment thereof, or shareholders entitled to receive
dividend or other distribution payments, or in order to make a determination of shareholders for any other purpose, our board of directors
may set a record date which shall not exceed forty (40) clear days prior to the date where the determination will be made.
General Meetings of Shareholders
As a condition of admission to a shareholders’
meeting, a shareholder must be duly registered as our shareholder at the applicable record date for that meeting and, in order to vote,
all calls or installments then payable by such shareholder to us in respect of the shares that such shareholder holds must have been paid.
Subject to any special rights or restrictions
as to voting then attached to any shares, at any general meeting every shareholder who is present in person or by proxy (or, in the case
of a shareholder being a corporation, by its duly authorized representative not being himself or herself a shareholder entitled to vote)
shall have one vote per Class A common share and 10 votes per Class B common share.
As a Cayman Islands exempted company, we are
not obliged by the Companies Act to call annual general meetings; however, the articles of association provide that in each year the company
will hold an annual general meeting of shareholders, at a time determined by the board of directors. The agenda for an annual general
meeting of shareholders will only include such items as have been included therein by the board of directors.
Also, we may, but are not required to (unless
required by the laws of the Cayman Islands), hold other extraordinary general meetings during the year. General meetings of shareholders
are generally expected to take place in São Paulo, Brazil, but may be held elsewhere if the directors so decide. To the extent
permitted by law, annual general meetings may also be held virtually.
The Companies Act provides shareholders a limited
right to request a general meeting and does not provide shareholders with any right to put any proposal before a general meeting in default
of a company’s articles of association. However, these rights may be provided in a company’s articles of association. Our
articles of association provides that upon the requisition of one or more shareholders representing not less than one-third of the voting
rights entitled to vote at general meetings, the board will convene an extraordinary general meeting and put the resolutions so requisitioned
to a vote at such meeting. The articles of association provide no other right to put any proposals before annual general meetings or extraordinary
general meetings.
Subject to regulatory requirements, the annual
general meeting and any extraordinary general meetings must be called by not less than five (5) clear days’ notice prior to the
relevant shareholders meeting and convened by a notice, as discussed below. Alternatively, upon the prior consent of all holders entitled
to receive notice, with regards to the annual general meeting, and the holders of two-thirds in par value of the shares entitled to attend
and vote at an extraordinary general meeting, that meeting may be convened by a shorter notice and in a manner deemed appropriate by those
holders.
We will give notice of each general meeting
of shareholders by publication on its website and in any other manner that it may be required to follow in order to comply with Cayman
Islands law, Nasdaq and SEC requirements. The holders of registered shares may be given notice of a shareholders’ meeting by means
of letters sent to the addresses of those shareholders as registered in our shareholders’ register, or, subject to certain statutory
requirements, by electronic means.
Holders whose shares are registered in
the name of DTC or its nominee, which we expect will be the case for substantially all holders of Class A common shares, will not be a
shareholder or member of the company and must rely on the procedures of DTC regarding notice of shareholders’ meetings and the exercise
of rights of a holder of the Class A common shares.
A quorum for a general meeting consists of any
one or more persons holding or representing by proxy not less than one-third of the aggregate voting power of all shares in issue and
entitled to vote upon the business to be transacted, provided that such a quorum must also include (i) Oria Zenvia Co-investment Holdings,
LP, Oria Tech Zenvia Co-investment – Fundo de Investimento em Participações Multiestratégia, Oria Tech I Inovação
Fundo de Investimento em Participações Multiestratégia and any investment fund, limited partnership or equivalent
entity managed by Oria Gestão de Recursos Ltda. (including any successor entity), or Oria, for so long as they hold Class B common
shares, and (ii) any affiliate of Cassio Bobsin for so long as it holds Class B common shares.
A resolution put to a vote at a general meeting
shall be decided on a poll. An ordinary resolution to be passed by the shareholders at a general meeting requires the affirmative vote
of a simple majority of the votes cast by, or on behalf of, the shareholders entitled to vote, present in person or by proxy and voting
at the meeting. A special resolution requires the affirmative vote on a poll of no less than two-thirds of the votes cast by the shareholders
entitled to vote who are present in person or by proxy at a general meeting. Both ordinary resolutions and special resolutions may also
be passed by a unanimous written resolution signed by all the shareholders of our Company, as permitted by the Companies Act and our articles
of association.
Pursuant to our articles of association, general
meetings of shareholders are to be chaired by the chairman of our board of directors or in his absence the vice-chairman of the board
of directors. If both the chairman and vice-chairman of our board of directors are absent, the directors present at the meeting shall
appoint one of them to be chairman of the general meeting. If neither the chairman nor another director is present at the general meeting
within 15 minutes after the time appointed for holding the meeting, the shareholders present in person or by proxy and entitled to vote
may elect any one of the shareholders to be chairman. The order of business at each meeting shall be determined by the chairman of the
meeting, and he or she shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts
and things as are necessary or desirable for the proper conduct of the meeting, including, without limitation, the establishment of procedures
for the maintenance of order and safety, limitations on the time allotted to questions or comments on the affairs of the Company, restrictions
on entry to such meeting after the time prescribed for the commencement thereof, and the opening and closing of the polls. The chairman
shall not have the right to vote in his capacity as chairman and shall not have a casting vote.
Liquidation Rights
If we are voluntarily wound up, the liquidator,
after taking into account and giving effect to the rights of preferred and secured creditors and to any agreement between us and any creditors
that the claims of such creditors shall be subordinated or otherwise deferred to the claims of any other creditors and to any contractual
rights of set-off or netting of claims between us and any person or persons (including without limitation any bilateral or any multi-lateral
set-off or netting arrangements between the company and any person or persons) and subject to any agreement between us and any person
or persons to waive or limit the same, shall apply our property in satisfaction of its liabilities pari passu and subject thereto shall
distribute the property amongst the shareholders according to their rights and interests into us.
Special Matters
We may not without the prior written consent
of (i) Oria for so long as it holds Class B common shares and (ii) an affiliate of Cassio Bobsin for so long as it holds Class B common
shares: change the number of directors; change the structure, function, and/or number of officers; amend our articles of association;
vary the rights attaching to shares; approve any corporate restructuring, merger or consolidation of us with one or more constituent companies
(as defined in the Companies Act), the contribution by us of any assets to any subsidiary and/or the creation of any joint venture by
us; approve any business combination; approve the winding-up, liquidation or dissolution of us; or take certain actions in respect of
its share capital as set out in the articles of association; register as an exempted limited duration company; or approve the transfer
by way of our continuation to a jurisdiction outside the Cayman Islands.
Changes to Capital
Subject to the restrictions contained in the
articles of association and summarized above in “—Special Matters,” we may from time to time by ordinary resolution:
| · | increase our share capital by such sum, to be divided into shares of such amount, as the resolution shall prescribe; |
| · | consolidate and divide all or any of our share capital into shares of a larger amount than its existing shares; |
| · | convert all or any of our paid-up shares into stock and reconvert that stock into paid up shares of any denomination; |
| · | subdivide our existing shares or any of them into shares of a smaller amount, provided that in the subdivision the proportion between
the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the
reduced share is derived; or |
| · | cancel any shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person and
diminish the amount of our share capital by the amount of the shares so cancelled. |
Our shareholders may by special resolution,
subject to confirmation by the Grand Court of the Cayman Islands on an application by the Company for an order confirming such reduction,
reduce its share capital or any capital redemption reserve in any manner permitted by law.
In addition, subject to the provisions of the
Companies Act and our articles of association, we may:
| · | issue shares on terms that they are to be redeemed or are liable to be redeemed; |
| · | purchase its own shares (including any redeemable shares); and |
| · | make a payment in respect of the redemption or purchase of its own shares in any manner authorized by the Companies Act, including
out of its own capital. |
Transfer of Shares
Subject to any applicable restrictions set forth
in the articles of association, any of our shareholder may transfer all or any of his or her common shares by an instrument of transfer
in the usual or common form or in the form prescribed by the Nasdaq or any other form approved by the Company’s board of directors.
The Class A common shares sold in our initial
public offering are traded on the Nasdaq in book-entry form and may be transferred in accordance with our articles of association and
the Nasdaq rules and regulations.
However, our board of directors may, in its
absolute discretion, decline to register any transfer of any common share which is either not fully paid up to a person of whom it does
not approve or is issued under any share incentive scheme for employees which contains a transfer restriction that is still applicable
to such common share. The board of directors may also decline to register any transfer of any common share unless:
| · | the instrument of transfer is lodged with us, accompanied by the certificate (if any) for the Class A common shares to which it relates
and such other evidence as our board of directors may reasonably require to show the right of the transferor to make the transfer; |
| · | the instrument of transfer is in respect of only one class of shares; |
| · | the instrument of transfer is properly stamped, if required; |
| · | the Class A common shares transferred are free of any lien in our favor; and |
| · | in the case of a transfer to joint holders, the transfer is not to more than four joint holders. |
If the directors refuse to register a transfer
they are required, within fifteen business days after the date on which the instrument of transfer was lodged, to send to the transferee
notice of such refusal.
Share Repurchase
The Companies Act and the articles of association
permit us to purchase our own shares, subject to certain restrictions. The board of directors may only exercise this power on our behalf,
subject to the Companies Act, the articles of association and to any applicable requirements imposed from time to time by the SEC, the
Nasdaq or any recognized stock exchange on which our securities are listed.
Dividends and Capitalization of Profits
We have not adopted a dividend policy with respect
to payments of any future dividends by us. Subject to the Companies Act, our shareholders may, by resolution passed by a simple majority
of the voting rights entitled to vote at a general meeting, declare dividends (including interim dividends) to be paid to shareholders
but no dividend shall be declared in excess of the amount recommended by the board of directors. The board of directors may also declare
dividends. Dividends may be declared and paid out of funds lawfully available to us. Except as otherwise provided by the rights attached
to shares and our articles of association, all dividends shall be paid in proportion to the number of Class A common shares or Class
B common shares a shareholder holds at the date the dividend is declared (or such other date as may be set as a record date); but, (1)
if any share is issued on terms providing that it shall rank for dividend as from a particular date, that share shall rank for dividend
accordingly, and (2) where we have shares in issue which are not fully paid up (as to par value) we may pay dividends in proportion to
the amounts paid up on each share.
The holders of Class A common shares and
Class B common shares shall be entitled to share equally in any dividends that may be declared in respect of our common shares from time
to time. In the event that there is a capitalization of profits in the form of Class A common shares or Class B common shares, or
rights to acquire Class A common shares or Class B common shares, (1) the holders of Class A common shares shall receive
Class A common shares, or rights to acquire Class A common shares, as the case may be; and (2) the holders of Class B common
shares shall receive Class B common shares, or rights to acquire Class B common shares, as the case may be.
Appointment, Disqualification and Removal of Directors
We are managed by our board of directors. The
articles of association provide that, unless otherwise determined by a special resolution of shareholders, the board of directors will
be composed of four (4) to nine (9) directors, with the number being determined by a majority of the directors then in office. There are
no provisions relating to retirement of directors upon reaching any age limit. The articles of association also provide that, while our
shares are admitted to trading on the Nasdaq, the board of directors must always comply with the residency and citizenship requirements
of the U.S. securities laws applicable to foreign private issuers.
Oria for so long as it holds (i) at least 30%
of our combined voting power of the Class A and Class B common shares then outstanding, may appoint up to four directors at its discretion
and (ii) at least 10% of our combined voting power of the Class A and Class B common shares then outstanding, may appoint up to one director
at its discretion (and is entitled at any time to remove substitute or replace such directors).
An affiliate of Cassio Bobsin for so long as
it holds (i) at least 30% of our combined voting power of Class A and Class B common shares then outstanding, may appoint up to three
directors at its discretion and (ii) at least 10% of our combined voting power of Class A and Class B common shares then outstanding,
may appoint up to two directors at its discretion (and is entitled at any time to remove substitute or replace such directors).
In addition, for so long as both Oria and an
affiliate of Cassio Bobsin hold Class B common shares, they may jointly appoint two additional directors and are entitled at any time
to jointly remove, substitute or replace such director. The board of directors shall have a chairman, for so long as both Oria and an
affiliate of Cassio Bobsin hold Class B common shares, which chairman will be appointed in rotation for a term of a year by each of them
as prescribed in the articles of association, such right to be exercised initially by an affiliate of Cassio Bobsin. Once neither Oria
nor an affiliate of Cassio Bobsin hold Class B common shares, the chairman will be elected by the board of directors then in office instead.
The directors may elect a vice chairman of the board of directors.
Subject to the foregoing, the articles of association
provide that directors shall be elected by an ordinary resolution of our shareholders, which requires the affirmative vote of a simple
majority of the votes cast on the resolution by the shareholders entitled to vote who are present, in person or by proxy, at the meeting.
Each director shall be appointed and elected for a two-year term or until his or her death, resignation or removal, and is eligible for
re-election.
The members of our board of directors are Jorge
Steffens, Cassio Bobsin, Eduardo Aspesi, Paulo Sergio Caputo, Piero Lara Rosatelli and Ana Dolores Moura Carneiro de Novaes. Eduardo Aspesi
and Ana Dolores Moura Carneiro de Novaes are “independent” as that term is defined under the applicable rules and regulations
of the SEC and the listing standards of the Nasdaq.
Any vacancies on the board of directors that
arise other than in respect of appointments of the directors appointed by Oria or an affiliate of Cassio Bobsin as set out above or upon
the removal of a director by resolution passed at a general meeting can be filled by the remaining directors (notwithstanding that they
may constitute less than a quorum). Any such appointment shall be as an interim director to fill such vacancy until the next annual general
meeting of shareholders.
Subject to the foregoing, additions to the existing
board (within the limits set pursuant to the articles of association) may be made by ordinary resolution of the shareholders.
Grounds for Removing a Director
A director may be removed
with or without cause by ordinary resolution, save that the director appointed by an affiliate of Cassio Bobsin may be removed by such
affiliate of Cassio Bobsin at its discretion and the director appointed by Oria may be removed by Oria at its discretion. The notice of
general meeting must contain a statement of the intention to remove the director and must be served on the director not less than ten
calendar days before the meeting. The director is entitled to attend the meeting and be heard on the motion for his removal.
The office of a director
will be vacated automatically if he or she (1) becomes prohibited by law from being a director, (2) becomes bankrupt or makes
an arrangement or composition with his creditors, (3) dies or is, in the opinion of all his co-directors, incapable by reason of
mental disorder of discharging his duties as director, (4) resigns his office by notice to us or (5) has for more than six months
been absent without permission of the directors from meetings of the board of directors held during that period, and the remaining directors
resolve that his or her office be vacated.
Proceedings of the Board of Directors
Our articles of association
provide that our business is to be managed and conducted by the board of directors, save that we may not without (i) the consent of Cassio
Bobsin, or in his absence, a director appointed by him while there is such director and (ii) the consent of a director appointed by Oria
while there is such director: create new classes of shares, issue new shares, options, warrants or convertible securities of similar nature
conferring the right upon the holders thereof to subscribe for purchase or receive any class of shares or securities in our capital; capital
reduction, repurchase, amortization or redemption of any shares; approve the payment of any remuneration to a Director or executive Officer;
approve any incentive plan (as set out in the articles of association); change our accounting practices except as required by applicable
law; execute and/or terminate any shareholders’ agreement, quotaholders’ agreement, or any other agreements related to our
interest in any subsidiary; approve our financial statements; observed rights of any affiliate of Cassio Bobsin or Oria under their applicable
registration rights agreement, to effect offerings securities by us, or hire any investment banks or service providers inherent to any
such offerings; approve the listing and/or the delisting of our securities with any designated stock exchange; change our dividend policy
and/or approve any dividend, create and/or use our reserves; approve any budget, as well as any amendment to an approved budget or increases
above five percent (5%) on its global approved amount and/or ten percent (10%) in each line; raise capital, borrow money, mortgage or
charge all or any part of the undertaking, property and assets (present and future) and uncalled capital in one transaction or in a series
of transactions which value exceeds the equivalent of ten million Reais (R$10,000,000.00); subject to the Law, issue debentures, bonds
and other securities, whether outright or as collateral security for any debt, liability or obligation of the Company or of any third
party in one transaction or in a series of transactions which value exceeds the equivalent of ten million
Reais (R$10,000,000.00); acquire, sell
or encumber any of our permanent assets, in one transaction or in a series of transactions, which value exceeds the equivalent of ten
million Brazilian Reais (R$10,000,000); approve any sale or encumbrance, for the benefit of a person of shares issued by any subsidiary
or entities where we have an interest, or the admission of any new partner or shareholder in such subsidiaries; create or dissolve any
permanent committees of the directors or committees where powers are delegated by the board of directors; carry out any investments outside
the scope of our or our subsidiaries’ core business (as set out in the articles of association); incorporate any subsidiary (other
than a wholly-owned subsidiary); acquire, sell or encumber the capital stock of entities in which we have an interest; appoint or terminate
the engagement of any auditor that is not an Authorized Auditor as set out in the articles of association; provide any guarantee in respect
of any person or related person of any of our shareholders, director and/or officers inter alia; appoint any officer; or approve the delegation
of any powers by the board of directors.
The quorum necessary
for the board meeting shall be a simple majority of the directors then in office (subject to there being a minimum of three directors
present) and business at any meeting shall be decided by a majority of votes. In the case of an equality of votes, the chairman shall
not have a casting vote.
Subject to the foregoing
and the provisions of the articles of association, the board of directors may regulate its proceedings as they determine is appropriate.
Board meetings shall be held at least once every calendar quarter and shall take place either in São Paulo, Brazil or at such other
place as the directors may determine.
Subject to the provisions
of the articles of association, to any directions given by ordinary resolution of the shareholders and the listing rules of the Nasdaq,
the board of directors may from time to time at its discretion exercise all powers of Zenvia Inc., including, subject to the Companies
Act, the power to issue debentures, bonds and other securities of the company, whether outright or as collateral security for any debt,
liability or obligation of our company or of any third party.
Inspection of Books and Records
Other than Oria, that
so long as it holds Class B common shares, will have certain inspection rights set forth in the articles of association, holders of our
shares will have no general right under Cayman Islands law to inspect or obtain copies of the list of shareholders or corporate records
of the Company. However, the board of directors may determine from time to time whether and to what extent our accounting records and
books shall be open to inspection by shareholders who are not members of the board of directors. Notwithstanding the above, the articles
of association provide shareholders with the right to receive annual financial statements. Such right to receive annual financial statements
may be satisfied by publishing the same on the company’s website or filing such annual reports as we are required to file with the
SEC.
Register of Shareholders
Our Class A common
shares are generally held through DTC, and DTC or Cede & Co., as nominee for DTC, recorded in the shareholders’ register
as the holder of our Class A common shares.
Under Cayman Islands
law, we must keep a register of shareholders that includes:
| · | the names and addresses of the shareholders, a statement of the shares held by each member, and of the amount paid or agreed to be
considered as paid, on the shares of each member; |
| · | whether voting rights attach to the shares in issue; |
| · | the date on which the name of any person was entered on the register as a member; and |
| · | the date on which any person ceased to be a member. |
Under Cayman Islands
law, our register of shareholders is prima facie evidence of the matters set out therein (i.e., the register of
shareholders will raise a presumption of fact on the matters referred to above unless rebutted) and a shareholder registered in the register
of shareholders is deemed as a matter of Cayman Islands law to have prima facie legal title to the shares as set against
his or her name in the register of shareholders. Once the register of shareholders has been updated,
the shareholders recorded in the register of shareholders should be deemed to have legal title to the shares set against their name.
However, there are
certain limited circumstances where an application may be made to a Cayman Islands court for a determination on whether the register of
shareholders reflects the correct legal position. Further, the Cayman Islands court has the power to order that the register of shareholders
maintained by a company should be rectified where it considers that the register of shareholders does not reflect the correct legal position.
If an application for an order for rectification of the register of shareholders were made in respect of our common shares, then the validity
of such shares may be subject to re-examination by a Cayman Islands court.
Exempted Company
We are an exempted
company with limited liability under the Companies Act. The Companies Act distinguishes between ordinary resident companies and exempted
companies. Any company that is registered in the Cayman Islands but conducts business mainly outside of the Cayman Islands may apply to
be registered as an exempted company. The requirements for an exempted company are essentially the same as for an ordinary company except
for the exemptions and privileges listed below:
| · | an exempted company does not have to file an annual return of its shareholders with the Registrar of Companies; |
| · | an exempted company’s register of shareholders is not open to inspection; |
| · | an exempted company does not have to hold an annual general meeting; |
| · | an exempted company may obtain an undertaking against the imposition of any future taxation (such undertakings are usually given for
20 years in the first instance); |
| · | an exempted company may register by way of continuation in another jurisdiction and be deregistered in the Cayman Islands; |
| · | an exempted company may register as a limited duration company; and |
| · | an exempted company may register as a segregated portfolio company. |
“Limited liability”
means that the liability of each shareholder is limited to the amount unpaid by the shareholder on the shares of the company (except in
exceptional circumstances, such as involving fraud, the establishment of an agency relationship or an illegal or improper purpose or other
circumstances in which a court may be prepared to pierce or lift the corporate veil).
Anti-Takeover Provisions in Our Articles
of Association
Some provisions of
the articles of association may discourage, delay or prevent a change in our control or management that shareholders may consider favorable.
In particular, our capital structure concentrates ownership of voting rights in the hands of Cassio Bobsin, Oria Zenvia Co-investment
Holdings, LP, Oria Tech Zenvia Co-investment – Fundo de Investimento em Participações Multiestratégia and Oria
Tech I Inovação Fundo de Investimento em Participações Multiestratégia. These provisions, which are
summarized below, are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed
to encourage persons seeking to acquire our control to first negotiate with the board of directors. However, these provisions could also
have the effect of discouraging others from attempting hostile takeovers and, consequently, they may also inhibit temporary fluctuations
in the market price of the Class A common shares that often result from actual or rumored hostile takeover attempts. These provisions
may also have the effect of preventing changes in our management. It is possible that these provisions could make it more difficult to
accomplish transactions that shareholders may otherwise deem to be in their best interests.
Two Classes of Common Shares
Our Class B common
shares of are entitled to 10 votes per share, while the Class A common shares are entitled to one vote per share. Since Cassio
Bobsin, Oria Zenvia Co-investment Holdings, LP, Oria Tech Zenvia Co-investment – Fundo de Investimento em Participações
Multiestratégia and Oria Tech I Inovação Fundo de Investimento em Participações Multiestratégia
own all of our Class B common shares, they have the ability to elect all directors and to determine the outcome of most matters
submitted for a vote of shareholders. This concentrated voting control could discourage others from initiating any potential merger,
takeover, or other change of control transaction that other shareholders may view as beneficial.
So long as Cassio Bobsin,
Oria Zenvia Co-investment Holdings, LP, Oria Tech Zenvia Co-investment – Fundo de Investimento em Participações Multiestratégia
and Oria Tech I Inovação Fundo de Investimento em Participações Multiestratégia have the ability to
determine the outcome of most matters submitted to a vote of shareholders as well as the overall management and direction of Zenvia Inc.,
third parties may be deterred in their willingness to make an unsolicited merger, takeover, or other change of control proposal, or to
engage in a proxy contest for the election of directors. As a result, the fact that we have two classes of common shares may have the
effect of depriving you as a holder of Class A common shares of an opportunity to sell your Class A common shares at a premium
over prevailing market prices and make it more difficult to replace the directors and management of Zenvia Inc.
Preferred Shares
Our board of directors
is given wide powers to issue one or more classes or series of shares with preferred rights. Such preferences may include, for example,
dividend rights, conversion rights, redemption privileges, enhanced voting powers and liquidation preferences.
Despite the anti-takeover
provisions described above, under Cayman Islands law, our board of directors may only exercise the rights and powers granted to them under
the articles of association, for what they believe in good faith to be in our best interests.
Protection of Non-Controlling Shareholders
The Grand Court of
the Cayman Islands may, on the application of shareholders holding not less than one fifth of our shares in issue, appoint an inspector
to examine the Company’s affairs and report thereon in a manner as the Grand Court shall direct.
Subject to the provisions
of the Companies Act, any shareholder may petition the Grand Court of the Cayman Islands which may make a winding up order, if the court
is of the opinion that this winding up is just and equitable.
Notwithstanding the
U.S. securities laws and regulations that are applicable to us, general corporate claims against us by our shareholders must, as a general
rule, be based on the general laws of contract or tort applicable in the Cayman Islands or their individual rights as shareholders as
established by our articles of association.
The Cayman Islands
courts ordinarily would be expected to follow English case law precedents, which permit a minority shareholder to commence a representative
action against us, or derivative actions in our name, to challenge (1) an act which is ultra vires or illegal, (2) an act which
constitutes a fraud against the minority and the wrongdoers themselves control Zenvia Inc., and (3) an irregularity in the passing
of a resolution that requires a qualified (or special) majority.
Registration Rights
We entered into a
registration rights agreement with substantially all of our pre-IPO shareholders pursuant to which we granted them customary registration
rights for the resale of the Class A common shares held by them (including Class A common shares acquired upon conversion of Class B
common shares). Registration of these shares under the Securities Act would result in these shares becoming freely tradable without restriction
under the Securities Act immediately upon the effectiveness of the registration, except for shares purchased by affiliates. Class A common
shares covered by a registration statement will be eligible for sales in the public. In addition, even if such shareholders do not exercise
their formal registration rights, they or entities controlled by them or their permitted transferees will, subject to customary lock-up
agreements, be able to sell their shares in the public market from time to time without registering them, subject to certain limitations
on the timing, amount and method of those sales imposed by regulations promulgated by the SEC.
On March 22, 2024,
we amended and restated our Registration Rights Agreement to provide that, with respect to the allocation available to Pre-IPO Shareholders
in any underwritten offering associated with the exercise of (i) a demand registration and (ii) a piggyback registration (a) Oria Zenvia
Co-Investment I, Oria Tech Zenvia FIP and Oria Tech FIP I and (b) Bobsin Corp. shall have the right to allocate the same number of
registrable securities. See Exhibit 4.01 - Amended and Restarted Registration Rights Agreement.
Principal Differences between Cayman Islands and U.S. Corporate
Law
The Companies Act was modelled originally
after similar laws in England and Wales but does not follow subsequent statutory enactments in England and Wales. In addition, the Companies
Act differs from laws applicable to U.S. corporations and their shareholders. Set forth below is a summary of the significant differences
between the provisions of the Companies Act applicable to us and the laws applicable to companies incorporated in the United States and
their shareholders.
Mergers and Similar Arrangements
In certain circumstances the Companies
Act allows for mergers or consolidations between two Cayman Islands companies, or between a Cayman Islands company and a company incorporated
in another jurisdiction (provided that is facilitated by the laws of that other jurisdiction).
Where the merger or consolidation is between
two Cayman Islands companies, the directors of each company must approve a written plan of merger or consolidation, containing certain
prescribed information. That plan or merger or consolidation must then be authorized by either (a) a special resolution (usually
a majority of 66 2/3 % in value) of the shareholders of each company; or (b) such other authorization, if any, as may be specified
in such company’s articles of association. No shareholder resolution is required for a merger between a parent company (i.e., a
company that owns at least 90% of the issued shares of each class in a subsidiary company) and its subsidiary company. The consent of
each holder of a fixed or floating security interest of a constituent company must be obtained, unless the court waives such requirement.
If the Cayman Islands Registrar of Companies is satisfied that the requirements of the Companies Act (which includes certain other formalities)
have been complied with, the Registrar of Companies will register the plan of merger or consolidation. Where the merger or consolidation
involves a foreign company, the procedure is similar, save that with respect to the foreign company, the director of the Cayman Islands
company is required to make a declaration to the effect that, having made due enquiry, he is of the opinion that the requirements set
out below have been met: (i) that the merger or consolidation is permitted or not prohibited by the constitutional documents of the foreign
company and by the laws of the jurisdiction in which the foreign company is incorporated, and that those laws and any requirements of
those constitutional documents have been or will be complied with; (ii) that no petition or other similar proceeding has been filed
and remains outstanding or order made or resolution adopted to wind up or liquidate the foreign company in any jurisdictions; (iii) that
no receiver, trustee, administrator or other similar person has been appointed in any jurisdiction and is acting in respect of the foreign
company, its affairs or property or any part thereof; (iv) that no scheme, order, compromise or other similar arrangement has been
entered into or made in any jurisdiction whereby the rights of creditors of the foreign company are and continue to be suspended or restricted.
Where the surviving company is the Cayman
Islands company, the director of the Cayman Islands company is further required to make a declaration to the effect that, having made
due enquiry, he is of the opinion that the requirements set out below have been met: (i) that the foreign company is able to pay its
debts as they fall due and that the merger or consolidated is bona fide and not intended to defraud unsecured creditors of the foreign
company; (ii) that in respect of the transfer of any security interest granted by the foreign company to the surviving or consolidated
company (a) consent or approval to the transfer has been obtained, released or waived; (b) the transfer is permitted by and has been
approved in accordance with the constitutional documents of the foreign company; and (c) the laws of the jurisdiction of the foreign
company with respect to the transfer have been or will be complied with; (iii) that the foreign company will, upon the merger or consolidation
becoming effective, cease to be incorporated, registered or exist under the laws of the relevant foreign jurisdiction; and (iv) that
there is no other reason why it would be against the public interest to permit the merger or consolidation.
Where the above procedures are adopted,
the Companies Act provides for a right of dissenting shareholders to be paid a payment of the fair value of his shares upon their dissenting
to the merger or consolidation if they follow a prescribed procedure. In essence, that procedure is as follows (a) the shareholder must
give his written objection to the merger or consolidation to the constituent company before the vote on the merger or consolidation,
including a statement that the shareholder proposes to demand payment for his shares if the merger or consolidation is authorized by
the vote; (b) within 20 days following the date on which the merger or consolidation is approved by the shareholders, the constituent
company must give written notice to each shareholder who made a written objection; (c) a shareholder must within 20 days following receipt
of such notice from the constituent company, give the constituent company a written notice of his intention to dissent including, among
other details, a demand for payment of the fair value of his shares; (d) within seven days following the date of the expiration of the
period set out in paragraph (b) above or seven days following the date on which the plan of merger or consolidation is filed, whichever
is later, the constituent company, the surviving company or the consolidated company must make a written offer to each dissenting shareholder
to purchase his shares at a price that the company determines is the fair value and if the company and the shareholder agree the price
within 30 days following the date on which the offer was made, the company must pay the shareholder such amount; (e) if the company and
the shareholder fail to agree a price within such 30 day period, within 20 days following the date on which such 30 day period expires,
the company (and any dissenting shareholder) must file a petition with the Cayman Islands Grand Court to determine the fair value and
such petition must be accompanied by a list of the names and addresses of the dissenting shareholders with whom agreements as to the
fair value of their shares have not been reached by the company. At the hearing of that petition, the court has the power to determine
the fair value of the shares together with a fair rate of interest, if any, to be paid by the company upon the amount determined to be
the fair value. Any dissenting shareholder whose name appears on the list filed by the company may participate fully in all proceedings
until the determination of fair value is reached. These rights of a dissenting shareholder are not be available in certain circumstances,
for example, to dissenters holding shares of any class in respect of which an open market exists on a recognized stock exchange or recognized
interdealer quotation system at the relevant date or where the consideration for such shares to be contributed are shares of any company
listed on a national securities exchange or shares of the surviving or consolidated company.
Moreover, Cayman Islands law also has separate
statutory provisions that facilitate the reconstruction or amalgamation of companies in certain circumstances, schemes of arrangement
will generally be more suited for complex mergers or other transactions involving widely held companies, commonly referred to in the
Cayman Islands as a “scheme of arrangement” which may be tantamount to a merger. In the event that a merger was sought pursuant
to a scheme of arrangement (the procedure of which are more rigorous and take longer to complete than the procedures typically required
to consummate a merger in the United States), the arrangement in question must be approved by shareholders representing three-fourths
in value of each class of shareholders with whom the arrangement is to be made, or by a majority in number of each class of creditors
with whom the arrangement is to be made, and who must in addition represent three-fourths in value of each such class creditors, as the
case may be, that are present and voting either in person or by proxy at a meeting, or meeting summoned for that purpose. The convening
of the meetings and subsequently the terms of the arrangement must be sanctioned by the Grand Court of the Cayman Islands. While a dissenting
shareholder would have the right to express to the court the view that the transaction should not be approved, the court can be expected
to approve the arrangement if it satisfies itself that:
| · | we are not proposing to act illegally or beyond the scope of our corporate authority and the statutory provisions as to majority vote
have been complied with; |
| · | the shareholders have been fairly represented at the meeting in question; |
| · | the arrangement is such as a businessman would reasonably approve; and |
| · | the arrangement is not one that would more properly be sanctioned under some other provision of the Companies Act or that would amount
to a “fraud on the minority.” |
If a scheme of arrangement or takeover offer
(as described below) is approved, any dissenting shareholder would have no rights comparable to appraisal rights, which would otherwise
ordinarily be available to dissenting shareholders of United States corporations, providing rights to receive payment in cash for the
judicially determined value of the shares.
Squeeze-Out Provisions
When a takeover offer is made and accepted
by holders of 90.0% of the shares to whom the offer is made within four months, the offeror may, within a two-month period, require the
holders of the remaining shares to transfer such shares on the terms of the offer. An objection may be made to the Grand Court of the
Cayman Islands but is unlikely to succeed unless there is evidence of fraud, bad faith, collusion or inequitable treatment of the shareholders.
Further, transactions similar to a merger,
reconstruction and/or an amalgamation may in some circumstances be achieved through other means to these statutory provisions, such as
a share capital exchange, asset acquisition or control, through contractual arrangements, of an operating business.
Shareholders’ Suits
Our Cayman Islands counsel is not aware
of any reported class action having been brought in a Cayman Islands court. Derivative actions have been brought in the Cayman Islands
courts, and the Cayman Islands courts have confirmed the availability for such actions. In most cases, we will be the proper plaintiff
in any claim based on a breach of duty owed to us, and a claim against (for example) our officers or directors usually may not be brought
by a shareholder. However, based on English authorities, which would in all likelihood be of persuasive authority and be applied by a
court in the Cayman Islands, exceptions to the foregoing principle apply in circumstances in which:
| · | a company is acting or proposing to act illegally or beyond the scope of its authority; |
| · | the act complained of, although not beyond the scope of the authority, could be effected if duly authorized by more than the number
of votes which have actually been obtained; or |
| · | those who control the company are perpetrating a “fraud on the minority.” |
A shareholder may have a direct right of
action against us where the individual rights of that shareholder have been infringed or are about to be infringed.
Borrowing Powers
Except as expressly provided in our articles
of association, our directors may exercise all the powers of Zenvia Inc. to borrow money and to mortgage or charge its undertaking, property
and assets (present and future) and uncalled capital or any part thereof and to issue debentures, debenture stock, mortgages, bonds and
other such securities whether outright or as security for any debt, liability or obligation of Zenvia Inc. or of any third party. Such
powers may be varied by a special resolution of shareholders (requiring a two-thirds majority vote).
Indemnification of Directors and Executive Officers and
Limitation of Liability
The Companies Act does not limit the extent
to which a company’s articles of association may provide for indemnification of directors and officers, except to the extent that
it may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification against civil fraud or
the consequences of committing a crime. Our articles of association provides that we shall indemnify and hold harmless our directors
and officers against all actions, proceedings, costs, charges, expenses, losses, damages, liabilities, judgments, fines, settlements
and other amounts incurred or sustained by such directors or officers, other than by reason of such person’s dishonesty, willful
default or fraud, in or about the conduct of our company’s business or affairs (including as a result of any mistake of judgment)
or in the execution or discharge of his duties, powers, authorities or discretions, including without prejudice to the generality of
the foregoing, any costs, expenses, losses or liabilities incurred by such director or officer in defending (whether successfully or
otherwise) any civil, criminal or other proceedings concerning us or our affairs in any court whether in the Cayman Islands or elsewhere.
This standard of conduct is generally the same as permitted under the Delaware General Corporation Law for a Delaware corporation.
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to our directors, officers or persons controlling the Company under the foregoing provisions,
we have been informed that, in the opinion of the SEC, this indemnification is against public policy as expressed in the Securities Act
and is therefore unenforceable.
Directors’ and Controlling Shareholders’ Fiduciary
Duties
As a matter of Cayman Islands law, a director
of a Cayman Islands company is in the position of a fiduciary with respect to the company. Accordingly, directors owe fiduciary duties
to their companies to act bona fide in what they consider to be the best interests of the company, to exercise their powers for the purposes
for which they are conferred and not to place themselves in a position where there is a conflict between their personal interests and
their duty to the company. Accordingly, a director owes a company a duty not to make a profit based on his or her position as director
(unless the company permits him or her to do so) and a duty not to put himself or herself in a position where the interests of the company
conflict with his or her personal interest or his or her duty to a third party. However, this obligation may be varied by the company’s
articles of association, which may permit a director to vote on a matter in which he has a personal interest provided that he has disclosed
that nature of his interest to the board of directors. Our Articles of Association provides that a director must disclose the nature and
extent of his or her interest in any contract or arrangement, and following such disclosure and subject to any separate requirement under
applicable law or the listing rules of the Nasdaq, and unless disqualified by the chairman of the relevant meeting, such director may
vote in respect of any transaction or arrangement in which he or she is interested and may be counted in the quorum at the meeting.
A director of a Cayman Islands company
also owes to the company duties to exercise independent judgment in carrying out his functions and to exercise reasonable skill, care
and diligence, which has both objective and subjective elements. Recent Cayman Islands case law confirmed that directors must exercise
the care, skill and diligence that would be exercised by a reasonably diligent person having the general knowledge, skill and experience
reasonably to be expected of a person acting as a director. Additionally, a director must exercise the knowledge, skill and experience
which he or she actually possesses.
A general notice may be given to the board
of directors to the effect that (1) the director is a member or officer of a specified company or firm and is to be regarded as interested
in any contract or arrangement which may after the date of the notice be made with that company or firm; or (2) he or she is to be
regarded as interested in any contract or arrangement which may after the date of the notice to the board of directors be made with a
specified person who is connected with him or her, will be deemed sufficient declaration of interest. This notice shall specify the nature
of the interest in question. Following the disclosure being made pursuant to our articles of association and subject to any separate requirement
under applicable law or the listing rules of the Nasdaq, and unless disqualified by the chairman of the relevant meeting, a director may
vote in respect of any transaction or arrangement in which he or she is interested and may be counted in the quorum at the meeting.
In comparison, under Delaware corporate
law, a director of a Delaware corporation has a fiduciary duty to the corporation and its shareholders. This duty has two components:
the duty of care and the duty of loyalty. The duty of care requires that a director act in good faith, with the care that an ordinarily
prudent person would exercise under similar circumstances. Under this duty, a director must inform himself or herself of, and disclose
to shareholders, all material information reasonably available regarding a significant transaction. The duty of loyalty requires that
a director act in a manner he or she reasonably believes to be in the best interests of the corporation. He or she must not use his or
her corporate position for personal gain or advantage. This duty prohibits self-dealing by a director and mandates that the best interest
of the corporation and its shareholders take precedence over any interest possessed by a director, officer or controlling shareholder
and not shared by the shareholders generally. In general, actions of a director are presumed to have been made on an informed basis,
in good faith and in the honest belief that the action taken was in the best interests of the corporation. However, this presumption
may be rebutted by evidence of a breach of one of the fiduciary duties. Should such evidence be presented concerning a transaction by
a director, a director must prove the procedural fairness of the transaction, and that the transaction was of fair value to the corporation.
Furthermore,
as a matter of Cayman Islands law and in contrast to the position under Delaware corporate law, controlling shareholders of Cayman Islands
companies do not owe fiduciary duties to those companies, other than the limited duty that applies to all shareholders to exercise their
votes to amend a company’s articles of association in good faith in the interests of the company. The absence of this minority
shareholder protection might impact the ability of minority shareholders to protect their interests.
Shareholder Proposals
Under the Delaware General Corporation
Law, a shareholder has the right to put any proposal before the annual meeting of shareholders, provided it complies with the notice provisions
in the governing documents. The Delaware General Corporation Law does not provide shareholders an express right to put any proposal before
the annual meeting of shareholders, but Delaware corporations generally afford shareholders an opportunity to make proposals and nominations
provided that they comply with the notice provisions in the certificate of incorporation or bylaws. A special meeting may be called by
the board of directors or any other person authorized to do so in the governing documents, but shareholders may be precluded from calling
special meetings.
The Companies Act provides shareholders
with only limited rights to requisition a general meeting and does not provide shareholders with any right to put any proposal before
a general meeting. However, these rights may be provided in a company’s articles of association. Our articles of association provides
that upon the requisition of one or more shareholders representing not less than one-third of the voting rights entitled to vote at general
meetings, the board will convene an extraordinary general meeting and put the resolutions so requisitioned to a vote at such meeting.
The articles of association provide no other right to put any proposals before annual general meetings or extraordinary general meetings.
Cumulative Voting
Under the Delaware General Corporation
Law, cumulative voting for elections of directors is not permitted unless the corporation’s certificate of incorporation specifically
provides for it. Cumulative voting potentially facilitates the representation of minority shareholders on a board of directors since it
permits the minority shareholder to cast all the votes to which the shareholder is entitled on a single director, which increases the
shareholder’s voting power with respect to electing such director. As permitted under Cayman Islands law, our articles of association
does not provide for cumulative voting. As a result, our shareholders are not afforded any less protections or rights on this issue than
shareholders of a Delaware corporation.
Removal of Directors
The office of a director shall be vacated
automatically if, among other things, he or she (1) becomes prohibited by law from being a director, (2) becomes bankrupt or
makes an arrangement or composition with his creditors, (3) dies or is, in the opinion of all his co-directors, incapable by reason
of mental disorder of discharging his duties as director (4) resigns his office by notice to us or (5) has for more than six
months been absent without permission of the directors from meetings of the board of directors held during that period, and the remaining
directors resolve that his/her office be vacated.
Transaction with Interested Shareholders
The Delaware General Corporation Law provides
that; unless the corporation has specifically elected not to be governed by this statute, it is prohibited from engaging in certain business
combinations with an “interested shareholder” for three years following the date that this person becomes an interested shareholder.
An interested shareholder generally is a person or a group who or which owns or owned 15% or more of the target’s outstanding voting
shares or who or which is an affiliate or associate of the corporation and owned 15% or more of the corporation’s outstanding voting
shares within the past three years. This has the effect of limiting the ability of a potential acquirer to make a two-tiered bid for
the target in which all shareholders would not be treated equally. The statute does not apply if, among other things, prior to the date
on which the shareholder becomes an interested shareholder, the board of directors approves either the business combination or the transaction
which resulted in the person becoming an interested shareholder. This encourages any potential acquirer of a Delaware corporation to
negotiate the terms of any acquisition transaction with the target’s board of directors.
Cayman Islands law has no comparable statute.
As a result, we cannot avail itself of the types of protections afforded by the Delaware business combination statute. However, although
Cayman Islands law does not regulate transactions between a company and its significant shareholders, it does provide that the board
of directors owe duties to ensure that these transactions are entered into bona fide in the best interests of the company and for a proper
corporate purpose and, as noted above, a transaction may be subject to challenge if it has the effect of constituting a fraud on the
minority shareholders.
Dissolution; Winding Up
Under the Delaware General Corporation
Law, unless the board of directors approves the proposal to dissolve, dissolution must be approved by shareholders holding 100% of the
total voting power of the corporation. If the dissolution is initiated by the board of directors, it may be approved by a simple majority
of the corporation’s outstanding shares. Delaware law allows a Delaware corporation to include in its certificate of incorporation
a supermajority voting requirement in connection with dissolutions initiated by the board. Under Cayman Islands law, a company may be
wound up by either an order of the courts of the Cayman Islands or by a special resolution of its members or, if the company resolves
by ordinary resolution that it be wound up because it is unable to pay its debts as they fall due. The court has authority to order winding
up in a number of specified circumstances including where it is, in the opinion of the court, just and equitable to do so.
Under the Companies Act, we may be dissolved,
liquidated or wound up by a special resolution of shareholders (requiring a two-thirds majority vote). Our articles of association also
give our board of directors the authority to petition the Cayman Islands Court to wind up Zenvia.
Variation of Rights of Shares
Under the Delaware General Corporation
Law, a corporation may vary the rights of a class of shares with the approval of a majority of the outstanding shares of that class, unless
the certificate of incorporation provides otherwise. Under our articles of association, if the share capital is divided into more than
one class of shares, the rights attached to any class may only be varied with the written consent of the holders of two-thirds of the
shares of that class or the sanction of a special resolution passed at a separate meeting of the holders of the shares of that class.
Also, except with respect to share capital
(as described above), alterations to our articles of association may only be made by special resolution of shareholders (requiring a two-thirds
majority vote).
Amendment of Governing Documents
Under the Delaware General Corporation
Law, a corporation’s certificate of incorporation may be amended only if adopted and declared advisable by the board of directors
and approved by a majority of the outstanding shares entitled to vote, and the bylaws may be amended with the approval of a majority of
the outstanding shares entitled to vote and may, if so provided in the certificate of incorporation, also be amended by the board of directors.
Under Cayman Islands law, our articles of association generally (and save for certain amendments to share capital described in this section)
may only be amended by special resolution of shareholders (requiring a two-thirds majority vote).
Rights of Non-Resident or Foreign Shareholders
There are no limitations imposed by our
articles of association on the rights of non-resident or foreign shareholders to hold or exercise voting rights on our shares. In addition,
there are no provisions in the articles of association governing the ownership threshold above which shareholder ownership must be disclosed.
Handling of Mail
Mail addressed to us and received at our
registered office will be forwarded unopened to the forwarding address, which will be supplied by us. None of us, our directors, officers,
advisors or service providers (including the organization which provides registered office services in the Cayman Islands) will bear any
responsibility for any delay whatsoever caused in mail reaching the forwarding address.
Cayman Islands Data Protection
We have certain duties under the Data Protection
Act (As Revised) of the Cayman Islands, or the DPA, based on internationally accepted principles of data privacy.
Privacy Notice
This privacy notice puts our shareholders
on notice that through your investment in us you will provide us with certain personal information which constitutes personal data within
the meaning of the DPA, or personal data.
Investor Data
We will collect, use, disclose, retain
and secure personal data to the extent reasonably required only and within the parameters that could be reasonably expected during the
normal course of business. We will only process, disclose, transfer or retain personal data to the extent legitimately required to conduct
our activities on an ongoing basis or to comply with legal and regulatory obligations to which we are subject. We will only transfer personal
data in accordance with the requirements of the DPA, and will apply appropriate technical and organizational information security measures
designed to protect against unauthorized or unlawful processing of the personal data and against the accidental loss, destruction or damage
to the personal data.
In our use of this personal data, we will
be characterized as a “data controller” for the purposes of the DPA, while our affiliates and service providers who may receive
this personal data from us in the conduct of our activities may either act as our “data processors” for the purposes of the
DPA or may process personal information for their own lawful purposes in connection with services provided to us.
We may also obtain personal data from other
public sources. Personal data includes, without limitation, the following information relating to a shareholder and/or any individuals
connected with a shareholder as an investor: name, residential address, email address, contact details, corporate contact information,
signature, nationality, place of birth, date of birth, tax identification, credit history, correspondence records, passport number, bank
account details, source of funds details and details relating to the shareholder’s investment activity.
Who this Affects
If you are a natural person, this will
affect you directly. If you are a corporate investor (including, for these purposes, legal arrangements such as trusts or exempted limited
partnerships) that provides us with personal data on individuals connected to you for any reason in relation your investment in us, this
will be relevant for those individuals and you should transmit the content of this Privacy Notice to such individuals or otherwise advise
them of its content.
How We May Use a Shareholder’s Personal Data
We may, as the data controller, collect,
store and use personal data for lawful purposes, including, in particular: (i) where this is necessary for the performance of our rights
and obligations under any agreements; (ii) where this is necessary for compliance with a legal and regulatory obligation to which we
are or may be subject (such as compliance with anti-money laundering and FATCA/CRS requirements); and/or (iii) where this is necessary
for the purposes of our legitimate interests and such interests are not overridden by your interests, fundamental rights or freedoms.
Should we wish to use personal data for
other specific purposes (including, if applicable, any purpose that requires your consent), we will contact you.
Why We May Transfer the Personal Data of Investors
In certain circumstances we may be legally
obliged to share personal data and other information with respect to your shareholding with the relevant regulatory authorities such as
the Cayman Islands Monetary Authority or the Tax Information Authority. They, in turn, may exchange this information with foreign authorities,
including tax authorities.
We anticipate disclosing personal data
to persons who provide services to us and their respective affiliates (which may include certain entities located outside the US, the
Cayman Islands or the European Economic Area), who will process your personal data on our behalf.
The Data Protection Measures We Take
Any transfer of personal data by us or
our duly authorized affiliates and/or delegates outside of the Cayman Islands shall be in accordance with the requirements of the DPA.
We and our duly authorized affiliates and/or
delegates shall apply appropriate technical and organizational information security measures designed to protect against unauthorized
or unlawful processing of personal data, and against accidental loss or destruction of, or damage to, personal data.
We shall notify you of any personal data
breach that is reasonably likely to result in a risk to your interests, fundamental rights or freedoms or those data subjects to whom
the relevant personal data relates.
Certain Cayman Islands Legal Requirements Related to Dividends
Under the
Companies Act and our articles of association, a Cayman Islands company may pay a dividend out of either its profit or share premium account,
but a dividend may not be paid if this would result in the company being unable to pay its debts as they fall due in the ordinary course
of business. According to our articles of association, dividends can be declared and paid out of funds lawfully available to us, which
include the share premium account. Dividends, if any, would be paid in proportion to the number of common shares a shareholder holds.
Transfer Agent and Registrar
The transfer agent and registrar for our Class
A common shares is Computershare Trust Company, N.A., Computershare Inc. The transfer agent and registrar’s address is 150 Royall
Street, Canton, Massachusetts, 02021.
Listing
Our Class A common shares are listed on the
Nasdaq Capital Market under the symbol “ZENV.”
DESCRIPTION
OF DEBT SECURITIES
The debt securities will be senior debt securities
and our direct general obligations. The debt securities may be secured or unsecured and may be convertible into other securities, including
our Class A common shares. The debt securities will be issued under one or more separate indentures between us and a financial institution
that will act as trustee. Senior debt securities will be issued under a senior indenture, which is referred to as the indenture. The material
terms of any indenture will be set forth in the applicable prospectus supplement.
We have summarized certain terms and provisions
of the indentures. The summary is not complete. The indentures are subject to and governed by the Trust Indenture Act of 1939, as amended.
The indenture will not limit the amount of debt
securities that we may issue. We may issue debt securities up to an aggregate principal amount as we may authorize from time to time.
The applicable prospectus supplement will describe the terms of any debt securities being offered. These terms will include some or all
of the following:
| · | classification as senior debt securities; |
| · | ranking of the specific series of debt securities relative to other outstanding indebtedness, including subsidiaries’ debt; |
| · | the designation, aggregate principal amount and authorized denominations; |
| · | the date or dates on which the principal of the debt securities may be payable; |
| · | the rate or rates (which may be fixed or variable) per annum at which the debt securities shall bear interest, if any; |
| · | the date or dates from which such interest shall accrue, on which such interest shall be payable, and on which a record shall be taken
for the determination of holders of the debt securities to whom interest is payable; |
| · | the place or places where the principal and interest shall be payable; |
| · | our right, if any, to redeem the debt securities, in whole or in part, at our option and the period or periods within which, the price
or prices at which and any terms and conditions upon which such debt securities may be so redeemed, pursuant to any sinking fund or otherwise; |
| · | our obligation, if any, of the Company to redeem, purchase or repay any debt securities pursuant to any mandatory redemption, sinking
fund or other provisions or at the option of a holder of the debt securities; |
| · | if other than denominations of US$2,000 and any higher integral multiple of US$1,000, the denominations in which the debt securities
will be issuable; |
| · | if other than the currency of the United States, the currency or currencies, in which payment of the principal and interest shall
be payable; |
| · | whether the debt securities will be issued in the form of global securities; |
| · | provisions, if any, for the defeasance of the debt securities; |
| · | any U.S. federal income tax consequences; and |
| · | other specific terms, including any deletions from, modifications of or additions to the events of default or covenants described
below or in the applicable indenture. |
We may issue the debt securities that will constitute
part of our senior debt under the indenture. These senior debt securities will rank equally and pari passu with all our other unsecured
debt.
Authentication and Delivery
We will deliver the debt securities to the trustee
for authentication, and the trustee will authenticate and deliver the debt securities upon our written order.
Events of Default
When we use the term “Event of Default”
in the indentures with respect to the debt securities of any series, set forth below are some examples of what we mean:
| (1) | default in the payment of the principal on the debt securities when it becomes due and payable at maturity or otherwise; |
| (2) | default in the payment of interest on the debt securities when it becomes due and payable, and such default continues for a period
of 30 days; |
| (3) | default in the performance, or breach, of any covenant in the indenture (other than defaults specified in clauses (1) or (2) above)
and the default or breach continues for a period of 90 consecutive days or more after written notice to us by the trustee or to us and
the trustee by the holders of 25% or more in aggregate principal amount of the outstanding debt securities of all series affected thereby; |
| (4) | the occurrence of certain events of bankruptcy, insolvency, or similar proceedings with respect to us or any substantial part of our
property; or |
| (5) | any other Events of Default that may be set forth in the applicable prospectus supplement. |
If an Event of Default (other than an Event
of Default specified in clause (4) above) with respect to the debt securities of any series then outstanding occurs and is continuing,
then either the trustee or the holders of not less than 25% in principal amount of the securities of all such series then outstanding
in respect of which an Event of Default has occurred may by notice in writing to us declare the entire principal amount of all debt securities
of the affected series, and accrued interest, if any, to be due and payable immediately, and upon any such declaration the same shall
become immediately due and payable.
If an Event of Default described in clause (4)
above occurs and is continuing, then the principal amount of all the debt securities then outstanding and accrued interest shall be and
become due immediately and payable without any declaration, notice or other action by any holder of the debt securities or the trustee.
The trustee will, within 90 days after
the occurrence of any default actually known to it, give notice of the default to the holders of the debt securities of that series, unless
the default was already cured or waived. Unless there is a default in paying principal or interest when due, the trustee can withhold
giving notice to the holders if it determines in good faith that the withholding of notice is in the interest of the holders.
Satisfaction, Discharge and Defeasance
We may discharge our obligations under each
indenture, except as to:
| · | the rights of registration of transfer and exchange of debt securities, and our right of optional redemption, if any; |
| · | substitution of mutilated, defaced, destroyed, lost or stolen debt securities; |
| · | the rights of holders of the debt securities to receive payments of principal and interest; |
| · | the rights, obligations and immunities of the trustee; and |
| · | the rights of the holders of the debt securities as beneficiaries with respect to the property deposited with the trustee payable
to them (as described below); |
when:
| · | all debt securities of any series issued that have been authenticated and delivered have been delivered by us to the trustee for cancellation;
or |
| · | all the debt securities of any series issued that have not been delivered by us to the trustee for cancellation have become due and
payable or will become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory
to the trustee for the giving of notice of redemption by such trustee in our name and at our expense, and we have irrevocably deposited
or caused to be deposited with the trustee as trust funds the entire amount sufficient to pay at maturity or upon redemption all debt
securities of such series not delivered to the trustee for cancellation, including principal and interest due or to become due on or prior
to such date of maturity or redemption; |
| · | we have paid or caused to be paid all other sums then due and payable under such indenture; and |
| · | we have delivered to the trustee an officers’ certificate and an opinion of counsel, each stating that all conditions precedent
under such indenture relating to the satisfaction and discharge of such indenture have been complied with. |
In addition, unless the applicable prospectus
supplement and supplemental indenture otherwise provide, we may elect either (i) to have our obligations under each indenture discharged
with respect to the outstanding debt securities of any series, or legal defeasance, or (ii) to be released from our obligations under
each indenture with respect to certain covenants applicable to the outstanding debt securities of any series, or covenant defeasance.
Legal defeasance means that we will be deemed to have paid and discharged the entire indebtedness represented by the outstanding debt
securities of such series under such indenture and covenant defeasance means that we will no longer be required to comply with the obligations
with respect to such covenants (and an omission to comply with such obligations will not constitute a default or event of default).
In order to exercise legal defeasance or covenant
defeasance with respect to outstanding debt securities of any series:
| · | we must irrevocably have deposited or caused to be deposited with the trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely to the benefits of the holders of the debt securities of
a series:
money in an amount; |
| · | U.S. government obligations; or |
| · | a combination of money and U.S. government obligations, |
in each case sufficient without reinvestment, in the written
opinion of a nationally recognized firm of independent public accountants, to pay and discharge, and which shall be applied by the trustee
to pay and discharge, all of the principal and interest at due date or maturity or if we have made irrevocable arrangements satisfactory
to the trustee for the giving of notice of redemption by the trustee, the redemption date;
| · | we have delivered to the trustee an opinion of counsel stating that, under then applicable U.S. federal income tax law, the beneficial
owners of the debt securities of that series will not recognize gain or loss for U.S. federal income tax purposes as a result of the defeasance
and will be subject to the same federal income tax as would be the case if the defeasance did not occur; |
| · | no default relating to bankruptcy or insolvency and, in the case of a covenant defeasance, no other default has occurred and is continuing
at any time; |
| · | if at such time the debt securities of such series are listed on a national securities exchange, we have delivered to the trustee
an opinion of counsel to the effect that the debt securities of such series will not be delisted as a result of such defeasance; and |
| · | we have delivered to the trustee an officers’ certificate and an opinion of counsel stating that all conditions precedent with
respect to the defeasance have been complied with. |
We are required to furnish to each trustee
an annual statement as to compliance with all conditions and covenants under the indenture.
DESCRIPTION
OF WARRANTS
We may issue warrants to purchase our debt or
equity securities or securities of third parties or other rights, including rights to receive payment in cash or securities based on the
value, rate or price of one or more specified currencies, securities or indices, or any combination of the foregoing. Warrants may be
issued independently or together with any other securities and may be attached to, or separate from, such securities. Each series of warrants
will be issued under a separate warrant agreement to be entered into between us and a warrant agent. The terms of any warrants to be issued
and a description of the material provisions of the applicable warrant agreement will be set forth in the applicable prospectus supplement.
DESCRIPTION
OF RIGHTS
The following description summarizes only the
general features of the rights that we may offer from time to time under this prospectus. The specific terms of a series of rights will
be described in the applicable prospectus supplement relating to that series of rights along with any general provisions applicable to
that series of rights. We may issue rights to our shareholders to purchase our Class A common shares and/or any of the other securities
offered hereby. Each series of rights may be issued under a separate rights agreement to be entered into between us and a bank or trust
company, as rights agent. The following description of the rights and any description of the rights in a prospectus supplement may not
be complete and is subject to, and qualified in its entirety by reference to, the underlying rights agreement, which we will file with
the SEC at or prior to the time of the sale of the rights. You should refer to, and read this summary together with, the rights agreement
and the applicable prospectus supplement to review the terms of a particular series of rights. You can obtain copies of any form of rights
agreement or other agreement pursuant to which the rights are issued by following the directions described under the caption “Where
You Can Find More Information.” The applicable prospectus supplement relating to any rights will describe the terms of the offered
rights, including, where applicable, the following:
| · | the date for determining the persons entitled to participate in the rights distribution; |
| · | the exercise price for the rights; |
| · | the aggregate number or amount of underlying securities purchasable upon exercise of the rights; |
| · | the number of rights issued to each shareholder and the number of rights outstanding, if any; |
| · | the extent to which the rights are transferable; |
| · | the date on which the right to exercise the rights will commence and the date on which the right will expire; |
| · | the extent to which the rights include an over-subscription privilege with respect to unsubscribed securities; |
| · | anti-dilution provisions of the rights, if any; and |
| · | any other material terms of the rights, including terms, procedures and limitations relating to the distribution, exchange and exercise
of the rights. |
Holders may exercise rights as described in
the applicable prospectus supplement. Upon receipt of payment and, where applicable, the rights certificate properly completed and duly
executed at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement, we will, as soon
as practicable, forward the securities purchasable upon exercise of the rights. If less than all of the rights issued in any rights offering
are exercised, we may offer any unsubscribed securities directly to persons other than existing shareholders, to or through agents, underwriters
or dealers or through a combination of such methods, including pursuant to standby underwriting arrangements, as described in the applicable
prospectus supplement.
DESCRIPTION
OF UNITS
We may issue units that include senior debt
securities, common shares, warrants, rights or other securities. Each unit will be issued under a unit agreement or indenture and will
represent an interest in two or more securities, which may or may not be separable from one another. The prospectus supplement relating
to a particular issue of units will describe the terms of those units.
TAXATION
Tax considerations relating to the ownership
and disposition of any of the securities offered by this prospectus will be set forth in the applicable prospectus supplement relating
to the offering of those securities.
EXPENSES
The following are the estimated expenses of
the issuance and distribution of the securities being registered under the registration statement of which this prospectus forms a part,
all of which will be paid by us. All amounts shown are estimates, except for the SEC registration fee.
| SEC registration fee |
US$ 14,760 |
| FINRA fee |
(1) |
| Legal fees and expenses |
(1) |
| Accounting fees and expenses |
(1) |
| Printing expenses |
(1) |
| Miscellaneous expenses |
(1) |
| Total |
US$ (1) |
| (1) | To be updated, if necessary, by amendment, supplement or as an exhibit to a Report on Form 6-K that is incorporated by reference in
this registration statement. |
MATERIAL CHANGES
Except as otherwise described in our most recent
annual report on Form 20-F, in our Reports on Form 6-K filed or submitted under the Exchange Act and specifically incorporated by reference
herein, and as disclosed in this prospectus or the applicable prospectus supplement, no reportable material changes have occurred since
December 31, 2023.
LEGAL MATTERS
We are being represented by Simpson Thacher
& Bartlett LLP with respect to the validity of the debt securities, warrants, rights and units governed by New York State law and
certain other matters of United States federal securities and New York State law. The validity of our Class A common shares and certain
matters governed by Cayman Islands law will be passed on for us by Maples and Calder (Cayman) LLP. Additional legal matters may be passed
upon for any underwriters, dealers or agents by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Zenvia
Inc. at December 31, 2023, and for the year then ended appearing in Zenvia Inc.’s Annual Report (20-F) for the year ended December
31, 2023 have been audited by Ernst & Young Auditores Independentes S.S. Ltda., an independent registered public accounting firm,
as set forth in their report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements
are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
The consolidated financial statements of Zenvia
Inc. as of December 31, 2022, and for each of the years in the two-year period ended December 31, 2022, have been incorporated by reference
herein in reliance upon the report of KPMG Auditores Independentes Ltda., independent registered public accounting firm, incorporated
by reference herein, and upon the authority of said firm as experts in accounting and auditing.
ENFORCEMENT
OF JUDGMENTS
Cayman Islands
We are incorporated
under the laws of the Cayman Islands as an exempted company with limited liability. We are incorporated in the Cayman Islands because
of certain benefits associated with being a Cayman Islands company, such as political and economic stability, an effective judicial system,
a favorable tax system, the absence of foreign exchange control or currency restrictions and the availability of professional and support
services. However, the Cayman Islands have a less prescriptive body of securities laws as compared to the United States and some U.S.
states, such as Delaware, have more fulsome and judicially interpreted bodies of corporate law than the Cayman Islands. In addition, Cayman
Islands companies may not have standing to sue before the federal courts of the United States.
Enforceability of Civil
Liabilities
We have
been advised by our Cayman Islands legal counsel, Maples and Calder (Cayman) LLP, that the courts of the Cayman Islands are unlikely (i) to
recognize or enforce against us judgments of courts of the United States predicated upon the civil liability provisions of the securities
laws of the United States or any State; and (ii) in original actions brought in the Cayman Islands, to impose liabilities against
us predicated upon the civil liability provisions of the securities laws of the United States or any State, so far as the liabilities
imposed by those provisions are penal in nature. In those circumstances, although there is no statutory enforcement in the Cayman Islands
of judgments obtained in the United States, the courts of the Cayman Islands will recognize and enforce a foreign money judgment of a
foreign court of competent jurisdiction without retrial on the merits based on the principle that a judgment of a competent foreign court
imposes upon the judgment debtor an obligation to pay the sum for which judgment has been given provided certain conditions are met. For
a foreign judgment to be enforced in the Cayman Islands, such judgment must be final and conclusive and for a liquidated sum, and must
not be in respect of taxes or a fine or penalty, inconsistent with a Cayman Islands judgment in respect of the same matter, impeachable
on the grounds of fraud or obtained in a manner, and or be of a kind the enforcement of which is, contrary to natural justice or the public
policy of the Cayman Islands (awards of punitive or multiple damages may well be held to be contrary to public policy). A Cayman Islands
Court may stay enforcement proceedings if concurrent proceedings are being brought elsewhere.
Anti-Money Laundering
If any person
in the Cayman Islands knows or suspects or has reasonable grounds for knowing or suspecting that another person is engaged in criminal
conduct or money laundering or is involved with terrorism or terrorist financing and property and the information for that knowledge or
suspicion came to their attention in the course of business in the regulated sector, or other trade, profession, business or employment,
the person will be required to report such knowledge or suspicion to (i) the Financial Reporting Authority of the Cayman Islands,
pursuant to the Proceeds of Crime Act (As Revised) of the Cayman Islands, if the disclosure relates to criminal conduct or money laundering,
or (ii) a police officer of the rank of constable or higher, or the Financial Reporting Authority, pursuant to the Terrorism Act
(As Revised) of the Cayman Islands, if the disclosure relates to involvement with terrorism or terrorist financing and property. Such
a report shall not be treated as a breach of confidence or of any restriction upon the disclosure of information imposed by any enactment
or otherwise.
Brazil
Most of
our assets are located outside the United States, in Brazil. In addition, all of the members of our board of directors and board of executive
officers are nationals or residents of Brazil or non-U.S. residents and all or a substantial portion of their assets are located outside
the United States. As a result, it may be difficult for you to effect service of process within the United States upon us or these persons,
or to enforce against us or them judgments obtained in United States courts, including judgments predicated upon the civil liability provisions
of the securities laws of the United States or any state in the United States.
A judgment
of a United States court for civil liabilities predicated upon the federal securities laws of the United States may be enforced in Brazil,
subject to certain requirements described below. Such counsel has advised that a judgment against us, the members of our board of directors
or our executive officers obtained in the United States would be enforceable in Brazil without retrial or re-examination of the merits
of the original action including, without limitation, any final judgment for payment of a certain amount rendered by any such court, provided
that such judgment has been previously recognized by the Brazilian Superior Tribunal of Justice (Superior Tribunal de Justiça),
or STJ. That recognition will only be available, pursuant to Articles 963 and 964 of the Brazilian Code of Civil Procedure (Código
de Processo Civil, Law No. 13,105, dated March 16, 2015, as amended), if the U.S. judgment:
| · | complies with all formalities required for its enforceability, including issuance by a competent
court and/or authority, after proper service of process on the parties is made in accordance with applicable law, considering that service
of process on individuals in Brazil must comply with applicable Brazilian law, or after sufficient evidence of the parties’ absence
(revelia) has been given, in accordance with the applicable law of the jurisdiction where the foreign judgment was issued; |
| · | is not rendered in an action upon which Brazilian courts have exclusive jurisdiction, pursuant
to the provisions of art. 23 of the Brazilian Code of Civil Procedure (Law No. 13,105/2015, as amended); |
| · | is final binding and therefore not subject to appeal in the jurisdiction in which it was issued
(res judicata); |
| · | it is not contrary to a final and binding award issued by Brazilian courts in the case records
of a lawsuit that involves the same parties, cause of action; |
| · | creates no conflict between the United States judgment and a previous final and binding (res
judicata) judgment on the same matter and involving the same parties issued in Brazil; |
| · | is duly apostilled by a competent authority of the United States, according to the Hague Convention
Abolishing the Requirement of Legalization for Foreign Public Documents dated as of October 5, 1961 authentication, or the Hague Convention.
If such decision emanates from a country that is not a signatory of the Hague Convention, it must be duly authenticated by a Brazilian
Diplomatic Office or Consulate; |
| · | is accompanied by a sworn translation into Brazilian Portuguese made by a certified translator
in Brazil, unless an exemption is provided by an international treaty to which Brazil is a signatory; and |
| · | is not contrary to Brazilian national sovereignty, good morals or public policy and does not violate
the dignity of the human person, as set forth in Brazilian law. |
The
judicial recognition process may be time-consuming and may also give rise to difficulties in enforcing such foreign judgment in Brazil.
Accordingly, we cannot assure you that judicial recognition of a foreign judgment would be successful, that the judicial recognition process
would be conducted in a timely manner or that a Brazilian court would enforce a judgment of countries other than Brazil.
We believe
original actions may be brought in connection with this initial public offering predicated on the federal securities laws of the United
States in Brazilian courts and that, subject to applicable law, Brazilian courts may enforce liabilities in such actions against us or
the members of our board of directors or our executive officers and certain advisors named herein.
In addition,
a plaintiff, whether Brazilian or non-Brazilian, who resides outside Brazil or is outside Brazil during the course of litigation in Brazil
and who does not own real property in Brazil must post a bond to guarantee the payment of the defendant’s legal fees and court
expenses in connection with court procedures for the collection of money according to Article 83 of the Brazilian Code of Civil Procedure
(Código de Processo Civil). This bond must have a value sufficient to satisfy the payment of court fees and defendant’s
attorneys’ fees, as determined by the Brazilian judge based on the amount under dispute. This is so except in the case of: (1)
claims for collection on a título executivo extrajudicial (an instrument which may be enforced in Brazilian courts without a review
on the merits), or (2) in the case of an enforcement of a judgment, including foreign judgments that have been duly recognized by the
STJ; (3) counterclaims as established; and (4) when an exemption is provided by an international agreement or treaty to which Brazil
is a signatory.
If proceedings
are brought in Brazilian courts seeking to enforce our obligations with respect to our Class A common shares, payment shall be made in
reais. Any judgment rendered in Brazilian courts in respect of any payment obligations with respect to our Class A common shares
would be expressed in reais. See “Risk Factors — Risks Relating to Our Class A Common Shares
and the Offering — Judgments of Brazilian courts to enforce our obligations with respect to our Class A common
shares may be payable only in reais. The exchange rate in force at the time may not offer non-Brazilian investors full compensation for
any claim arising from our obligations.”
We have
also been advised that the ability of a judgment creditor to satisfy a judgment by attaching certain assets of the defendant in Brazil
is governed and limited by provisions of Brazilian law.
Notwithstanding
the foregoing, we cannot assure you that confirmation of any judgment will be obtained, or that the process described above can be conducted
in a timely manner.
Agent for Service of Process
We have
appointed Cogency Global Inc. as our agent to receive service of process with respect to any action brought against us in the United States
under U.S. federal or state securities laws arising out of or in connection with this offering. The address of Cogency Global Inc. is
122 East 42nd Street, 18th Floor, New York, New York 10168.
WHERE YOU CAN
FIND MORE INFORMATION
We have filed a registration statement with
the SEC on Form F-3 under the Securities Act relating to the securities offered by this prospectus. This prospectus, which is a part of
that registration statement, does not contain all of the information set forth in the registration statement. For more information with
respect to us and the securities offered by this prospectus, you should refer to the registration statement and to the exhibits filed
with it. Statements contained or incorporated by reference in this prospectus regarding the contents of any contract or other document
are not necessarily complete, and, where the contract or other document is an exhibit to the registration statement or incorporated or
deemed to be incorporated by reference, each of these statements is qualified in all respects by the provisions of the actual contract
or other document.
We are subject to the information requirements
of the Exchange Act, applicable to a foreign private issuer, and accordingly file or furnish reports, including annual reports on Form
20-F, reports on Form 6-K and other information with the SEC. The SEC maintains a website that contains reports and information statements
and other information about issuers, such as us, who file electronically with the SEC. The address of that website is www.sec.gov.
We also maintain a website at https://investors.zenvia.com/
through which you can access our SEC filings. The information contained on, or that can be accessed through, our website is not a part
of this prospectus.
INCORPORATION
OF DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference”
information that we file with them. Incorporation by reference allows us to disclose important information to you by referring you to
those other documents. The information incorporated by reference is an important part of this prospectus, and information that we file
later with the SEC will automatically update and supersede the information included in this prospectus or previously incorporated by reference
into this prospectus. We filed a registration statement on Form F-3 under the Securities Act, with the SEC with respect to the securities
we may offer pursuant to this prospectus. This prospectus omits certain information contained in the registration statement, as permitted
by the SEC. You should refer to the registration statement, including the exhibits, for further information about us and the securities
we may offer pursuant to this prospectus. Statements in this prospectus regarding the provisions of certain documents filed with, or incorporated
by reference in, the registration statement are not necessarily complete and each statement is qualified in all respects by that reference.
Copies of all or any part of the registration statement, including the documents incorporated by reference or the exhibits, may be obtained
upon payment of the prescribed rates at the offices of the SEC listed above in “Where You Can Find More Information.” We incorporate
by reference the following documents and any future filings that we make with the SEC under Sections 13(a), 13(c) and 15(d) of the Securities
Exchange Act of 1934, as amended, until we complete the offerings using this prospectus:
| · | Our annual report on Form 20-F for the fiscal year ended December 31, 2023, filed with the SEC on May 15, 2024; |
| · | The description of our Class A common shares contained in our registration statement on Form 8-A filed with the SEC on July 19, 2021,
including any amendments or reports filed for the purpose of updating such description; and |
| · | All subsequent annual reports on Form 20-F that we file with the SEC; |
| · | Certain reports on Form 6-K that we furnish to the SEC after the date of this prospectus (if they state that they are incorporated
by reference into the registration statement of which this prospectus forms a part) prior to the termination of this offering. We are
also incorporating by reference any reports on Form 6-K submitted to the SEC by us pursuant to the Exchange Act after the date of the
initial registration statement and prior to effectiveness of the registration statement that we specifically identify in such forms as
being incorporated by reference into the registration statement of which this prospectus forms a part. |
In all cases, you should rely on the later information
over different information included in this prospectus or any accompanying prospectus supplement.
Unless expressly incorporated by reference,
nothing in this prospectus shall be deemed to incorporate by reference information furnished to, but not filed with, the SEC. Copies of
all documents incorporated by reference in this prospectus, other than exhibits to those documents unless such exhibits are specifically
incorporated by reference in this prospectus, will be provided at no cost to each person, including any beneficial owner, who receives
a copy of this prospectus on the written or oral request of that person made to:
Avenida Paulista, 2300, 18th Floor
São Paulo, São Paulo, CEP 01310-300
Brazil
+55 (11) 99904-5082
You may also access these documents on our website
at https://investors.zenvia.com/. The information contained on, or that can be accessed through, our website is not a part of this prospectus.
We have included our website address in this prospectus solely as an inactive textual reference.
You should rely only on information contained
in, or incorporated by reference into, this prospectus. We have not authorized anyone to provide you with information different from
that contained in this prospectus or incorporated by reference in this prospectus. We are not making offers to sell the securities in
any jurisdiction in which such an offer or solicitation is not authorized or in which the person making such offer or solicitation is
not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Officers.
Cayman Islands law does not limit the extent
to which a company’s articles of association may provide indemnification of officers and directors, except to the extent that it
may be held by the Cayman Islands courts to be contrary to public policy, such as providing indemnification against civil fraud or the
consequences of committing a crime.
The registrant’s second amended and restated
memorandum and articles of association provide that each director or officer of the registrant shall be indemnified out of the assets
of the registrant against all actions, proceedings, costs, charges, expenses, losses, damages, or liabilities, judgments, fines, settlements
and other amounts (including reasonable attorneys’ fees and expenses and amounts paid in settlement and costs of investigation (collectively
“Losses”) incurred or sustained by such directors or officers, other than by reason of such person’s dishonesty, willful
default or fraud, in or about the conduct of our business or affairs (including as a result of any mistake of judgment) or in the execution
or discharge of such person’s duties, powers, authorities or discretions, including without prejudice to the generality of the foregoing,
any Losses incurred by such director or officer in defending or investigating (whether successfully or otherwise) any civil, criminal,
investigative and administrative proceedings concerning or in any way related to us or our affairs in any court whether in the Cayman
Islands or elsewhere.
Also, the registrant expects to maintain director’s
and officer’s liability insurance covering its directors and officers with respect to general civil liability, including liabilities
under the Securities Act, which he or she may incur in his or her capacity as such.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers or persons controlling us under the foregoing provisions, we have been
informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore
unenforceable.
Item 9. Exhibits.
The following exhibits are filed with this registration
statement or incorporated herein by reference.
| * | To be subsequently filed, if applicable, by an amendment to this registration statement or by a Report on Form 6-K to be incorporated
by reference into this registration statement. |
| ** | To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939. |
Item 10. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation
of Filing Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i),
(a)(1)(ii), and (a)(1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs
is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934, as amended, that are incorporated by reference in the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is a part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective
amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(4)
To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A.
of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Securities Act of 1933, as amended, need not be furnished, provided, that the registrant includes
in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information
necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding
the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial
statements and information required by Section 10(a)(3) of the Securities Act of 1933, as amended, or 3-19 of Regulation S-X if such financial
statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934, as amended, that are incorporated by reference in the Form F-3.
(5)
That, for the purpose of determining liability under the Securities Act of 1933, as amended, to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as
of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933, as amended, shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at
that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities
in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective date.
(6)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933, as amended, to any purchaser
in the initial distribution of securities:
The undersigned registrant undertakes
that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to
such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to
Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communications that is an offer in the offering made by the undersigned registrant to the purchaser.
(7)
That, for purposes of determining any liability under the Securities Act of 1933, as amended, each filing of the Registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934, as amended) that is
incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(8)
If applicable, the undersigned Registrant hereby undertakes to supplement the prospectus, after the expiration of the subscription
period, to set forth the results of the subscription offer, the transaction by the underwriters during the subscription period, the amount
of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering
by the underwriters is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment
will be filed to set forth the terms of such offering.
(9)
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised
that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities
Act of 1933, as amended, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in
the Securities Act of 1933, as amended, and will be governed by the final adjudication of such issue.
(10)
To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section
310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under
Section 305(b)(2) of the Trust Indenture Act.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in City of São Paulo, State of São Paulo, Brazil, on June 17, 2024.
ZENVIA INC.
By: /s/ Cassio Bobsin
Name: Cassio Bobsin
Title: Chief Executive Officer and Director
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of
Zenvia Inc. hereby severally constitute and appoint Cassio Bobsin and Shay Chor, and each of them singly, our true and lawful attorneys
with full power to any of them, and to each of them singly, to sign for us and in our names in the capacities indicated below the registration
statement on Form F-3 filed herewith and any and all amendments (including post-effective amendments) to said registration statement,
and any registration statement filed pursuant to Rule 462 under the Securities Act of 1933, as amended, in connection with said registration
statement, and to file or cause to be filed the same, with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, and generally to do all such things in our name and on our behalf in our capacities as officers and
directors to enable Zenvia Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities
and Exchange Commission, hereby ratifying and confirming all that said attorneys, and each of them, or their substitute or substitutes,
shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
|
Name |
Title |
Date |
| |
|
|
|
/s/ Cassio Bobsin
Cassio Bobsin |
Chief Executive Officer (Principal Executive Officer) and Director |
June 17, 2024 |
|
/s/ Shay Chor
Shay Chor |
Chief Financial Officer (Principal Financial
and Accounting Officer) |
June 17, 2024 |
|
/s/ Jorge Steffens |
Director |
June 17, 2024 |
| Jorge Steffens |
|
|
|
/s/ Paulo Caputo |
Director |
June 17, 2024 |
| Paulo Caputo |
|
|
|
/s/ Eduardo Aspesi |
Director |
June 17, 2024 |
| Eduardo Aspesi |
|
|
|
/s/ Piero Lara Rosatelli |
Director |
June 17, 2024 |
| Piero Lara Rosatelli |
|
|
|
/s/ Ana Novaes |
Director |
June 17, 2024 |
| Ana Novaes |
|
|
SIGNATURE OF AUTHORIZED U.S. REPRESENTATIVE
OF THE REGISTRANT
Pursuant to the Securities Act of 1933, as amended,
the undersigned, the duly authorized representative in the United States of Zenvia Inc. has signed this registration statement on June
17, 2024.
By: /s/ Colleen A. De Vries
On behalf of Cogency Global Inc.
Name: Colleen A. De Vries
Title: Senior Vice President
Exhibit 4.2
Zenvia Inc.
as the Company
and
[ ]
as Trustee
Indenture
Dated as of [ ], [ ]
TABLE OF CONTENTS
Page
| Article 1 Definitions and Incorporation by Reference |
| Section 1.01. Definitions |
1 |
| Section 1.02. Other Definitions |
4 |
| Section 1.03. Incorporation by Reference of Trust Indenture Act |
5 |
| Section 1.04. Rules of Construction |
5 |
| Article 2 The Securities |
| Section 2.01. Form and Dating |
5 |
| Section 2.02. Execution and Authentication |
6 |
| Section 2.03. Amount Unlimited; Issuable in Series |
7 |
| Section 2.04. Denomination and Date of Securities; Payments of Interest |
9 |
| Section 2.05. Registrar and Paying Agent; Agents Generally |
9 |
| Section 2.06. Paying Agent to Hold Money in Trust |
10 |
| Section 2.07. Transfer and Exchange |
10 |
| Section 2.08. Replacement Securities |
12 |
| Section 2.09. Outstanding Securities |
13 |
| Section 2.10. Temporary Securities |
14 |
| Section 2.11. Cancellation |
14 |
| Section 2.12. CUSIP Numbers |
14 |
| Section 2.13. Defaulted Interest |
14 |
| Section 2.14. Series May Include Tranches |
15 |
| Article 3 Redemption |
| Section 3.01. Applicability of Article |
15 |
| Section 3.02. Notice of Redemption; Partial Redemptions |
15 |
| Section 3.03. Payment of Securities Called for Redemption |
16 |
| Section 3.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption |
17 |
| Section 3.05. Mandatory and Optional Sinking Funds |
17 |
| Article 4 Covenants |
| Section 4.01. Payment of Securities |
19 |
| Section 4.02. Maintenance of Office or Agency |
19 |
| Section 4.03. Securityholders’ Lists |
19 |
| Section 4.04. Certificate to Trustee |
20 |
| Section 4.05. Reports by the Company |
20 |
| Section 4.06. Additional Amounts |
20 |
| Article 5 Successor Corporation |
| Section 5.01. When Company May Merge, Etc. |
21 |
| Section 5.02. Successor Substituted |
21 |
| Article 6 Default and Remedies |
| Section 6.01. Events of Default |
22 |
| Section 6.02. Acceleration |
22 |
| Section 6.03. Other Remedies |
23 |
| Section 6.04. Waiver of Past Defaults |
24 |
| Section 6.05. Control by Majority |
24 |
| Section 6.06. Limitation on Suits |
24 |
| Section 6.07. Rights of Holders to Receive Payment |
25 |
| Section 6.08. Collection Suit by Trustee |
25 |
| Section 6.09. Trustee May File Proofs of Claim |
25 |
| Section 6.10. Application of Proceeds |
25 |
| Section 6.11. Restoration of Rights and Remedies |
26 |
| Section 6.12. Undertaking for Costs |
26 |
| Section 6.13. Rights and Remedies Cumulative |
26 |
| Section 6.14. Waiver of Stay or Extension Laws |
26 |
| Section 6.15. Delay or Omission not Waiver |
26 |
| Article 7 Trustee |
| Section 7.01. General |
27 |
| Section 7.02. Certain Rights of Trustee |
27 |
| Section 7.03. Individual Rights of Trustee |
28 |
| Section 7.04. Trustee’s Disclaimer |
28 |
| Section 7.05. Notice of Default |
28 |
| Section 7.06. Reports by Trustee to Holders |
28 |
| Section 7.07. Compensation and Indemnity |
29 |
| Section 7.08. Replacement of Trustee |
29 |
| Section 7.09. Acceptance of Appointment by Successor |
30 |
| Section 7.10. Successor Trustee By Merger, Etc. |
31 |
| Section 7.11. Eligibility |
31 |
| Section 7.12. Money Held in Trust |
32 |
| Article 8 Satisfaction and Discharge of Indenture; Unclaimed Moneys |
| Section 8.01. Satisfaction and Discharge of Indenture |
32 |
| Section 8.02. Application by Trustee of Funds Deposited for Payment of Securities |
33 |
| Section 8.03. Repayment of Moneys Held by Paying Agent |
33 |
| Section 8.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years |
33 |
| Section 8.05. Defeasance and Discharge of Indenture |
33 |
| Section 8.06. Defeasance of Certain Obligations |
35 |
| Section 8.07. Reinstatement |
36 |
| Section 8.08. Indemnity |
36 |
| Section 8.09. Excess Funds |
36 |
| Section 8.10. Qualifying Trustee |
36 |
| Article 9 Amendments, Supplements and Waivers |
| Section 9.01. Without Consent of Holders |
37 |
| Section 9.02. With Consent of Holders |
37 |
| Section 9.03. Revocation and Effect of Consent |
38 |
| Section 9.04. Notation on or Exchange of Securities |
39 |
| Section 9.05. Trustee to Sign Amendments, Etc. |
39 |
| Section 9.06. Conformity with Trust Indenture Act |
39 |
| Article 10 Miscellaneous |
| Section 10.01. Trust Indenture Act of 1939 |
39 |
| Section 10.02. Notices |
39 |
| Section 10.03. Certificate and Opinion as to Conditions Precedent |
40 |
| Section 10.04. Statements Required in Certificate or Opinion |
40 |
| Section 10.05. Evidence of Ownership |
41 |
| Section 10.06. Rules by Trustee, Paying Agent or Registrar |
41 |
| Section 10.07. Payment Date Other Than a Business Day |
41 |
| Section 10.08. Governing Law |
41 |
| Section 10.09. No Adverse Interpretation of Other Agreements |
41 |
| Section 10.10. Successors |
41 |
| Section 10.11. Duplicate Originals |
41 |
| Section 10.12. Separability |
41 |
| Section 10.13. Table of Contents, Headings, Etc. |
41 |
| Section 10.14. Incorporators, Stockholders, Officers and Directors of Company Exempt from Individual Liability |
42 |
| Section 10.15. Consent to Jurisdiction; Appointment of Agent to Accept Service of Process |
42 |
| Section 10.16. Judgment Currency |
43 |
| Section 10.17. Waiver of Jury Trial |
43 |
| Section 10.18. Force Majeure |
43 |
INDENTURE, dated as of [ ], between
Zenvia Inc., an exempted company with limited liability incorporated under the laws of the Cayman Islands, as the Company, and [ ],
as trustee, in such capacity, the Trustee, registrar, paying agent, transfer agent and authenticating agent.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the
issue from time to time of its senior debentures, notes or other evidences of indebtedness to be issued in one or more series (the “Securities”)
up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of this Indenture and to provide,
among other things, for the authentication, delivery and administration thereof, the Company has duly authorized the execution and delivery
of this Indenture; and
WHEREAS, all things necessary to make this Indenture
a valid indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases
of the Securities by the holders thereof, the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit
of the respective holders from time to time of the Securities or of any and all series thereof as follows:
Article
1
Definitions and Incorporation by Reference
Section 1.01.
Definitions.
“Affiliate” of any Person
means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person.
For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,”
“controlled by” and “under common control with”) when used with respect to any Person means the possession, directly
or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
“Agent” means any Registrar,
Paying Agent, transfer agent or Authenticating Agent.
“Board Resolution” means one
or more resolutions of the board of directors of the Company or any authorized committee thereof, certified by the secretary or an assistant
secretary to have been duly adopted and to be in full force and effect on the date of certification, and delivered to the Trustee.
“Brazil” means The Federative
Republic of Brazil and any branch of power, ministry, department, authority or statutory corporation or other entity (including a trust)
owned or controlled directly or indirectly by it or any of the foregoing or created by law as a public entity.
“Business Day” means any day,
other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions are authorized or required by
law or regulation to close in New York City, New York, the Cayman Islands or São Paulo, Brazil.
“Commission” means the Securities
and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing
such duties at such time.
“Company” means the party
named as such in the first paragraph of this Indenture until a successor replaces it pursuant to Article 5 of this Indenture and thereafter
means the successor.
“Corporate Trust Office” means
the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time, be administered, which office
is, at the date of this Indenture, located at [ ].
“Default” means any event
that is, or after notice or passage of time or both would be, an Event of Default.
“Depositary” means, with respect
to the Securities of any series issuable or issued in the form of one or more Registered Global Securities, the Person designated as Depositary
by the Company pursuant to Section 2.03 until a successor Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder, and if
at any time there is more than one such Person, “Depositary” as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Registered Global Securities of that series.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
“Holder” or “Securityholder”
means the registered holder of any Security.
“IFRS” means International
Financial Reporting Standards as issued by the International Accounting Standards Board, as in effect as of the date hereof.
“Indenture” means this Indenture
as originally executed and delivered or as it may be amended or supplemented from time to time by one or more indentures supplemental
to this Indenture entered into pursuant to the applicable provisions of this Indenture and shall include the forms and terms of the Securities
of each series established as contemplated pursuant to Section 2.01 and Section 2.03.
“Officer” means, with respect
to the Company, the chairman of the board of directors, the president or chief executive officer, any executive vice president, any senior
vice president, any vice president, the chief financial officer, the treasurer or any assistant treasurer, or the secretary or any assistant
secretary.
“Officers’ Certificate”
means a certificate signed in the name of the Company (i) by the chairman of the board of directors, president or chief executive officer,
an executive vice president, a senior vice president or a vice president, and (ii) by the chief financial officer, the treasurer or any assistant treasurer, or the secretary or any assistant
secretary, and delivered to the Trustee. Each such certificate shall comply with Section 314 of the Trust Indenture Act, if applicable,
and include (except as otherwise expressly provided in this Indenture) the statements provided in Section 10.04, if applicable.
“Opinion of Counsel” means
a written opinion signed by legal counsel, who may be an employee of or counsel to the Company, satisfactory to the Trustee. Each such
opinion shall comply with Section 314 of the Trust Indenture Act, if applicable, and include the statements provided in Section 10.04,
if and to the extent required thereby.
“original issue date” of any
Security (or portion thereof) means the earlier of (a) the date of authentication of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution.
“Original Issue Discount Security”
means any Security that provides for an amount less than the Principal amount thereof to be due and payable upon a declaration of acceleration
of the maturity thereof pursuant to Section 6.02.
“Periodic Offering” means
an offering of Securities of a series from time to time, the specific terms of which Securities, including, without limitation, the rate
or rates of interest, if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any, with respect thereto,
are to be determined by the Company or its agents upon the issuance of such Securities.
“Person” means an individual,
a corporation, a partnership, a limited liability company, an association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
“Principal” of a Security
means the principal amount of, and, unless the context indicates otherwise, includes any premium payable on, the Security.
“Registered Global Security”
means a Security evidencing all or a part of a series of Securities, issued to the Depositary for such series in accordance with Section
2.02, and bearing the legend prescribed in Section 2.02.
“Responsible Officer” when
used with respect to the Trustee, shall mean an officer of the Trustee in the Corporate Trust Office, having direct responsibility for
the administration of this Indenture, and also, with respect to a particular matter, any other officer to whom such matter is referred
because of such officer’s knowledge of and familiarity with the particular subject.
“Securities” means any of
the securities, as defined in the first paragraph of the recitals hereof, that are authenticated and delivered under this Indenture.
“Securities Act” means the
Securities Act of 1933, as amended.
“Subsidiary” means, with respect
to any Person, any corporation, association or other business entity of which a majority of the capital stock or other ownership interests
having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time
directly or indirectly owned by such Person.
“Trustee” means the party
named as such in the first paragraph of this Indenture until a successor replaces it in accordance with the provisions of Article 7 and
thereafter shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person; “Trustee”
as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“Trust Indenture Act” means
the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb), as it may be amended from time to time.
“U.S. Government Obligations”
means securities that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is
pledged or (ii) obligations of an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any
such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt.
“Yield to Maturity” means,
as the context may require, the yield to maturity (i) on a series of Securities or (ii) if the Securities of a series are issuable from
time to time, on a Security of such series, calculated at the time of issuance of such series in the case of clause (i) or at the time
of issuance of such Security of such series in the case of clause (ii), or, if applicable, at the most recent redetermination of interest
on such series or on such Security, and calculated in accordance with the constant interest method or such other accepted financial practice
as is specified in the terms of such Security.
Section 1.02.
Other Definitions. Each of the following terms is defined in the section set forth opposite such term:
| Authenticating Agent |
Section 2.02 |
| cash transaction |
Section 7.03(b) |
| Event of Default |
Section 6.01 |
| Judgment Currency |
Section 10.16 |
| mandatory sinking fund payment |
Section 3.05 |
| optional sinking fund payment |
Section 3.05 |
| Paying Agent |
Section 2.05 |
| record date |
Section 2.04 |
| Registrar |
Section 2.05 |
| Required Currency |
Section 10.16 |
| Security Register |
Section 2.05 |
| self-liquidating paper |
Section 7.03(b) |
| sinking fund payment date |
Section 3.05 |
| Surviving Entity |
Section 5.01(a) |
| tranche |
Section 2.14 |
Section 1.03.
Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in and made a part of this Indenture. The following terms used in this Indenture
that are defined by the Trust Indenture Act have the following meanings:
“indenture securities” means
the Securities;
“indenture security holder”
means a Holder or a Securityholder;
“indenture to be qualified”
means this Indenture;
“indenture trustee” or “institutional
trustee” means the Trustee; and
“obligor” on the indenture
securities means the Company or any other obligor on the Securities.
All other terms used in this Indenture that are
defined by the Trust Indenture Act, defined by reference in the Trust Indenture Act to another statute or defined by a rule of the Commission
and not otherwise defined herein have the meanings assigned to them therein.
Section 1.04.
Rules of Construction. Unless the context otherwise requires:
(a)
an accounting term not otherwise defined has the meaning assigned to it in accordance with IFRS;
(b)
words in the singular include the plural, and words in the plural include the singular;
(c)
“herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision;
(d)
all references to Sections or Articles refer to Sections or Articles of this Indenture unless otherwise indicated; and
(e)
use of masculine, feminine or neuter pronouns should not be deemed a limitation, and the use of any such pronouns should
be construed to include, where appropriate, the other pronouns.
Article
2
The Securities
Section 2.01.
Form and Dating. The Securities of each series shall be substantially in such form or forms (not inconsistent
with this Indenture) as shall be established by or pursuant to one or more Board Resolutions or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends
or endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law, or with any rules
of any securities exchange or usage, all as may be determined by the Officers executing such Securities as evidenced by their execution
of the Securities.
Section 2.02.
Execution and Authentication. Two Officers shall execute the Securities for the Company by facsimile or manual
signature in the name and on behalf of the Company. If an Officer whose signature is on a Security no longer holds that office at the
time the Security is authenticated, the Security shall nevertheless be valid.
The Trustee, at the expense of the Company, may
appoint an authenticating agent (the “Authenticating Agent”) to authenticate Securities. The Authenticating Agent may
authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication
by such Authenticating Agent.
A Security shall not be valid until the Trustee
or Authenticating Agent signs, manually or by facsimile, the certificate of authentication on the Security. The signature shall be conclusive
evidence that the Security has been authenticated under this Indenture.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication
together with the applicable documents referred to below in this Section, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the written order of the Company. In authenticating any Securities of a series, the Trustee shall be entitled to
receive prior to the authentication of any Securities of such series, and (subject to Article 7) shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked:
(a)
any Board Resolution and/or executed supplemental indenture referred to in Section 2.01 and Section 2.03 by or pursuant
to which the forms and terms of the Securities of that series were established;
(b)
an Officers’ Certificate setting forth the form or forms and terms of the Securities, stating that the form or forms
and terms of the Securities of such series have been, or, in the case of a Periodic Offering, will be when established in accordance with
such procedures as shall be referred to therein, established in compliance with this Indenture; and
(c)
an Opinion of Counsel substantially to the effect that the form or forms and terms of the Securities of such series have
been, or, in the case of a Periodic Offering, will be when established in accordance with such procedures as shall be referred to therein,
established in compliance with this Indenture and that the supplemental indenture, to the extent applicable, and Securities have been
duly authorized and, if executed and authenticated in accordance with the provisions of the Indenture and delivered to and duly paid for
by the purchasers thereof on the date of such opinion, would be entitled to the benefits of the Indenture and would be valid and binding
obligations of the Company, enforceable against the Company in accordance with their respective terms, subject to bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar laws affecting creditors’ rights generally,
general principles of equity, and covering such other matters as shall be specified therein and as shall be reasonably requested by the
Trustee.
The Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 2.01
and Section 2.03, if, in connection with a Periodic Offering, all Securities of a series are not to be originally issued at one time,
it shall not be necessary to deliver the Board Resolution otherwise required pursuant to Section 2.01 or the written order, Officers’
Certificate and Opinion of Counsel otherwise required pursuant to Section 2.02 at or prior to the authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to
be issued.
With respect to Securities of a series offered
in a Periodic Offering, the Trustee may rely, as to the authorization by the Company of any of such Securities, the forms and terms thereof
and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and the other documents delivered pursuant
to Section 2.01 and Section 2.02, as applicable, in connection with the first authentication of Securities of such series.
If the Company shall establish pursuant to Section
2.03 that the Securities of a series or a portion thereof are to be issued in the form of one or more Registered Global Securities, then
the Company shall execute and the Trustee shall authenticate and deliver one or more Registered Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate Principal amount of all of the Securities of such series issued in such form
and not yet cancelled, (ii) shall be registered in the name of the Depositary for such Registered Global Security or Securities or the
nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or its custodian or pursuant to such Depositary’s
instructions and (iv) shall (unless provided otherwise in the form of such Security) bear a legend substantially to the following effect:
“Unless and until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred
except as a whole by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee
of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.”
Section 2.03.
Amount Unlimited; Issuable in Series. The aggregate Principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series
and each such series shall rank equally and pari passu with all other unsecured and unsubordinated debt of the Company. There shall
be established in or pursuant to a Board Resolution or one or more indentures supplemental hereto, prior to the initial issuance of Securities
of any series, subject to the last sentence of this Section 2.03,
(a)
the designation of the Securities of the series, which shall distinguish the Securities of the series from the Securities
of all other series;
(b)
any limit upon the aggregate Principal amount of the Securities of the series that may be authenticated and delivered under
this Indenture and any limitation on the ability of the Company to increase such aggregate Principal amount after the initial issuance
of the Securities of that series (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for,
or in lieu of, or upon redemption of, other Securities of the series pursuant hereto);
(c)
the date or dates on which the Principal of the Securities of the series is payable (which date or dates may be fixed or
extendible);
(d)
the rate or rates (which may be fixed or variable) per annum at which the Securities of the series shall bear interest,
if any, the date or dates from which such interest shall accrue, on which such interest shall be payable and on which a record shall be
taken for the determination of Holders to whom interest is payable and/or the method by which such rate or rates or date or dates shall
be determined;
(e)
if other than as provided in Section 4.02, the place or places where the Principal of and any interest on Securities of
the series shall be payable, any Securities of the series may be surrendered for exchange, and notices and demands to or upon the Company
in respect of the Securities of the series and this Indenture may be served;
(f)
the right, if any, of the Company to redeem Securities of the series, in whole or in part, at its option and the period
or periods within which, the price or prices at which and any terms and conditions upon which Securities of the series may be so redeemed,
pursuant to any sinking fund or otherwise;
(g)
the obligation, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within
which and any of the terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(h)
if other than denominations of US$2,000 and any higher integral multiple of US$1,000, the denominations in which Securities
of the series shall be issuable;
(i)
if other than the Principal amount thereof, the portion of the Principal amount of Securities of the series which shall
be payable upon declaration of acceleration of the maturity thereof;
(j)
if other than the coin or currency in which the Securities of the series are denominated, the coin or currency in which
payment of the Principal of or interest on the Securities of the series shall be payable or if the amount of payments of principal of
and/or interest on the Securities of the series may be determined with reference to an index based on a coin or currency other than that
in which the Securities of the series are denominated, the manner in which such amounts shall be determined;
(k)
if other than the currency of the United States of America, the currency or currencies, including composite currencies,
in which payment of the Principal of and interest on the Securities of the series shall be payable, and the manner in which any such currencies
shall be valued against other currencies in which any other Securities shall be payable;
(l)
whether the Securities of the series or any portion thereof will be issuable as Registered Global Securities;
(m)
whether the Securities of the series may be exchangeable for and/or convertible into the common stock of the Company or
any other security;
(n)
whether and under what circumstances the Company will pay additional amounts on the Securities of the series in respect
of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Company will have the option to redeem such
Securities rather than pay such additional amounts;
(o)
if the Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the
form and terms of such certificates, documents or conditions;
(p)
any trustees, depositaries, authenticating or paying agents, transfer agents or the registrar or any other agents with respect
to the Securities of the series;
(q)
provisions, if any, for the defeasance of the Securities of the series (including provisions permitting defeasance of less
than all Securities of the series), which provisions may be in addition to, in substitution for, or in modification of (or any combination
of the foregoing) the provisions of Article 8;
(r)
if the Securities of the series are issuable in whole or in part as one or more Registered Global Securities, the identity
of the Depositary or common Depositary for such Registered Global Security or Securities;
(s)
any other or alternative Events of Default or covenants with respect to the Securities of the series; and
(t)
any other terms of the Securities of the series.
All Securities of any one series shall be substantially
identical, except as to date and denomination, except in the case of any Periodic Offering and except as may otherwise be provided by
or pursuant to the Board Resolution referred to above or as set forth in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to such Board Resolution or in any such indenture supplemental hereto and any forms and terms of Securities to
be issued from time to time may be completed and established from time to time prior to the issuance thereof by procedures described in
such Board Resolution or supplemental indenture.
Unless otherwise expressly provided with respect
to a series of Securities, the aggregate principal amount of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized with respect to such series as increased.
Section 2.04.
Denomination and Date of Securities; Payments of Interest. The Securities of each series shall be issuable in
denominations established as contemplated by Section 2.03 or, if not so established with respect to Securities of any series, in denominations
of US$2,000 and any higher integral multiple of US$1,000. The Securities of each series shall be numbered, lettered or otherwise distinguished
in such manner or in accordance with such plan as the Officers of the Company executing the same may determine, as evidenced by their
execution thereof.
Unless otherwise specified with respect to a
series of Securities, each Security shall be dated the date of its authentication. The Securities of each series shall bear interest,
if any, from the date, and such interest shall be payable on the dates, established as contemplated by Section 2.03.
The person in whose name any Security of any
series is registered at the close of business on any record date applicable to a particular series with respect to any interest payment
date for such series shall be entitled to receive the interest, if any, payable on such interest payment date notwithstanding any transfer
or exchange of such Security subsequent to the record date and prior to such interest payment date, except if and to the extent the Company
shall default in the payment of the interest due on such interest payment date for such series, in which case the provisions of Section
2.13 shall apply. The term “record date” as used with respect to any interest payment date (except a date for payment of defaulted
interest) for the Securities of any series shall mean the date specified as such in the terms of the Securities of such series established
as contemplated by Section 2.03, or, if no such date is so established, the fifteenth day next preceding such interest payment date, whether
or not such record date is a Business Day.
Section 2.05.
Registrar and Paying Agent; Agents Generally. The Company shall maintain an office or agency where Securities
may be presented for registration, registration of transfer or for exchange (the “Registrar”) and an office or agency
where Securities may be presented for payment (the “Paying Agent”), which shall be in the United States of America.
The Company shall cause the Registrar to keep a register of the Securities and of their registration, transfer and exchange (the “Security
Register”). The Company may have one or more additional Paying Agents or transfer agents with respect to any series.
The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture and the Trust Indenture
Act that relate to such Agent. The Company shall give prompt written notice to the Trustee of the name and address of any Agent and any
change in the name or address of an Agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such.
The Company may remove any Agent upon written notice to such Agent and the Trustee; provided that no such removal shall become
effective until (i) the acceptance of an appointment by a successor Agent to such Agent as evidenced by an appropriate agency agreement
entered into by the Company and such successor Agent and delivered to the
Trustee or (ii) notification to the Trustee that the Trustee shall serve as such Agent until the appointment of a successor Agent in accordance
with clause (i) of this proviso. The Company or any Affiliate of the Company may act as Paying Agent or Registrar; provided that
neither the Company nor an Affiliate of the Company shall act as Paying Agent in connection with the defeasance of the Securities or the
discharge of this Indenture under Article 8.
The Company initially appoints the Trustee as
Registrar, Paying Agent and Authenticating Agent. If, at any time, the Trustee is not the Registrar, the Registrar shall make available
to the Trustee ten days prior to each interest payment date and at such other times as the Trustee may reasonably request the names and
addresses of the Holders as they appear in the Security Register.
Section 2.06.
Paying Agent to Hold Money in Trust. Not later than 10:00 a.m. New York City time on each due date of any Principal
or interest on any Securities, the Company shall deposit with the Paying Agent money in immediately available funds sufficient to pay
such Principal or interest. The Company shall require each Paying Agent other than the Trustee to agree in writing that such Paying Agent
shall hold in trust for the benefit of the Holders of such Securities or the Trustee all money held by the Paying Agent for the payment
of Principal of and interest on such Securities and shall promptly notify the Trustee of any default by the Company in making any such
payment. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and account for any funds disbursed,
and the Trustee may at any time during the continuance of any payment default, upon written request to a Paying Agent, require such Paying
Agent to pay all money held by it to the Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent shall have no
further liability for the money so paid over to the Trustee. If the Company or any affiliate of the Company acts as Paying Agent, it will,
on or before each due date of any Principal of or interest on any Securities, segregate and hold in a separate trust fund for the benefit
of the Holders thereof a sum of money sufficient to pay such Principal or interest so becoming due until such sum of money shall be paid
to such Holders or otherwise disposed of as provided in this Indenture, and will promptly notify the Trustee in writing of its action
or failure to act as required by this Section.
Section 2.07.
Transfer and Exchange. At the option of the Holder thereof, Securities of any series (other than a Registered
Global Security, except as set forth below) may be exchanged for a Security or Securities of such series and tenor having authorized denominations
and an equal aggregate Principal amount, upon surrender of such Securities to be exchanged at the agency of the Company that shall be
maintained for such purpose in accordance with Section 2.05 and upon payment, if the Company shall so require, of the charges hereinafter
provided. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver,
the Securities which the Holder making the exchange is entitled to receive.
Upon surrender for registration of transfer of
any Security of a series at the agency of the Company that shall be maintained for that purpose in accordance with Section 2.05 and upon
payment, if the Company shall so require, of the charges hereinafter provided, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of like tenor and aggregate Principal amount.
All Securities presented for registration of
transfer, exchange, redemption or payment shall be duly endorsed by, or be accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company and the Trustee duly executed by, the holder or his attorney duly authorized in writing.
The Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection with any exchange or registration of transfer of Securities.
No service charge shall be made for any such transaction.
Notwithstanding any other provision of this Section
2.07, unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Registered Global Security
representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series
to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered
Global Securities of any series notifies the Company that it is unwilling or unable to continue as Depositary for such Registered Global
Securities or if at any time the Depositary for such Registered Global Securities shall no longer be eligible under applicable law, the
Company shall appoint a successor Depositary eligible under applicable law with respect to such Registered Global Securities. If a successor
Depositary eligible under applicable law for such Registered Global Securities is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company will execute, and the Trustee, upon receipt of the Company’s
order for the authentication and delivery of definitive Securities of such series and tenor, will authenticate and deliver certificated
Securities of such series and tenor, in any authorized denominations, in an aggregate Principal amount equal to the Principal amount of
such Registered Global Securities, in exchange for such Registered Global Securities.
The Company may at any time and in its sole discretion
and subject to the procedures of the Depositary determine that any Registered Global Securities of any series shall no longer be maintained
in global form. In such event the Company will execute, and the Trustee, upon receipt of the Company’s order for the authentication
and delivery of definitive Securities of such series and tenor, will authenticate and deliver, certificated Securities of such series
and tenor in any authorized denominations, in an aggregate Principal amount equal to the Principal amount of such Registered Global Securities,
in exchange for such Registered Global Securities.
Any time the Securities of any series are not
in the form of Registered Global Securities pursuant to the preceding two paragraphs, the Company agrees to supply the Trustee with a
reasonable supply of certificated Securities without the legend required by Section 2.02 and the Trustee agrees to hold such Securities
in safekeeping until authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section
2.03 with respect to any Registered Global Security, the Depositary for such Registered Global Security may surrender such Registered
Global Security in exchange in whole or in part for Securities of the same series and tenor in definitive registered form on such terms
as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver,
without service charge,
(a)
to the Person specified by such Depositary new certificated Securities of the same series and tenor, of any authorized denominations
as requested by such Person, in an aggregate Principal amount equal to and in exchange for such Person’s beneficial interest in
the Registered Global Security; and
(b)
to such Depositary a new Registered Global Security in a denomination equal to the difference, if any, between the Principal
amount of the surrendered Registered Global Security and the aggregate Principal amount of certificated Securities authenticated and delivered
pursuant to clause (a) above.
Certificated Securities issued in exchange for
a Registered Global Security pursuant to this Section 2.07 shall be registered in such names and in such authorized denominations as the
Depositary for such Registered Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Company or the Trustee. The Trustee or such agent shall deliver such Securities to or as directed
by the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange
of Securities shall be valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such transfer or exchange.
The Registrar shall not be required (i) to issue,
authenticate, register the transfer of or exchange Securities of any series for a period of 15 days before a selection of such Securities
to be redeemed or (ii) to register the transfer of or exchange any Security selected for redemption in whole or in part.
Section 2.08.
Replacement Securities. If any mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver, in exchange for such mutilated Security, a new Security of the same series and of like tenor
and Principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as
may be required by them to save each of them and any agent of any of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and Principal amount
and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or
stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security (without surrender thereof except in the case
of a mutilated Security) if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as
may be required by them to save each of them and any agent of any of them harmless, and in the case of destruction, loss or theft, evidence
satisfactory to the Company and the Trustee and any agent of them of the destruction, loss or theft of such Security and the ownership
thereof.
Upon the issuance of any new Security under this
Section, the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security or in exchange for any mutilated Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and any such new Security shall be entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) any other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
Section 2.09.
Outstanding Securities. Securities outstanding at any time are all Securities that have been authenticated by
the Trustee except for those cancelled by it, those delivered to it for cancellation, those described in this Section as not outstanding
and those that have been defeased pursuant to Section 8.05.
If a Security is replaced pursuant to Section
2.08, it ceases to be outstanding unless and until the Trustee and the Company receive proof satisfactory to them that the replaced Security
is held by a holder in due course.
If the Paying Agent (other than the Company or
an affiliate of the Company) holds on the maturity date or any redemption date or date for repurchase of the Securities money sufficient
to pay Securities payable or to be redeemed or repurchased on that date, then on and after that date such Securities cease to be outstanding
and interest on them shall cease to accrue.
A Security does not cease to be outstanding because
the Company or one of its affiliates holds such Security, provided, however, that, in determining whether the Holders of
the requisite Principal amount of the outstanding Securities have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, Securities owned by the Company or any affiliate of the Company shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities as to which a Responsible Officer of the Trustee has received written notice to be so owned
shall be so disregarded. Any Securities so owned which are pledged by the Company, or by any affiliate of the Company, as security for
loans or other obligations, otherwise than to another such affiliate of the Company, shall be deemed to be outstanding, if the pledgee is entitled pursuant
to the terms of its pledge agreement and is free to exercise in its or his discretion the right to vote such securities, uncontrolled
by the Company or by any such affiliate.
Section 2.10.
Temporary Securities. Until definitive Securities of any series are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities of such series. Temporary Securities of any series shall be substantially in the
form of definitive Securities of such series but may have insertions, substitutions, omissions and other variations determined to be appropriate
by the Officers executing the temporary Securities, as evidenced by their execution of such temporary Securities. If temporary Securities
of any series are issued, the Company will cause definitive Securities of such series to be prepared without unreasonable delay. After
the preparation of definitive Securities of any series, the temporary Securities of such series shall be exchangeable for definitive Securities
of such series and tenor upon surrender of such temporary Securities at the office or agency of the Company designated for such purpose
pursuant to Section 4.02, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like Principal amount of definitive
Securities of such series and tenor and authorized denominations. Until so exchanged, the temporary Securities of any series shall be
entitled to the same benefits under this Indenture as definitive Securities of such series.
Section 2.11.
Cancellation. The Company at any time may deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation
any Securities previously authenticated hereunder which the Company has not issued and sold. The Registrar, any transfer agent and the
Paying Agent shall forward to the Trustee any Securities surrendered to them for transfer, exchange or payment. The Trustee shall cancel
and dispose of in accordance with its customary procedures all Securities surrendered for transfer, exchange, payment or cancellation
and shall deliver a certificate of disposition to the Company. The Company may not issue new Securities to replace Securities it has paid
in full or delivered to the Trustee for cancellation.
Section 2.12.
CUSIP Numbers. The Company in issuing the Securities may use “CUSIP,” “ISIN” and/or “CINS”
numbers (if then generally in use), and the Trustee shall use CUSIP numbers, ISIN numbers or CINS numbers, as the case may be, in notices
of redemption or exchange as a convenience to Holders and no representation shall be made as to the correctness of such numbers either
as printed on the Securities or as contained in any notice of redemption or exchange.
Section 2.13.
Defaulted Interest. If the Company defaults in a payment of interest on the Securities, it shall pay, or shall
deposit with the Paying Agent money in immediately available funds sufficient to pay, the defaulted interest plus (to the extent lawful)
any interest payable on the defaulted interest (as may be specified in the terms thereof, established pursuant to Section 2.03) to the
Persons who are Holders on a subsequent special record date, which shall mean the 15th day next preceding the date fixed by the Company
for the payment of defaulted interest, whether or not such day is a Business Day. At least 15 days before such special record date, the Company shall mail to each Holder of such Securities and
to the Trustee a notice that states the special record date, the payment date and the amount of defaulted interest to be paid.
Section 2.14.
Series May Include Tranches. A series of Securities may include one or more tranches (each a “tranche”)
of Securities, including Securities issued in a Periodic Offering. The Securities of different tranches may have one or more different
terms, including authentication dates and public offering prices, but all the Securities within each such tranche shall have identical
terms, including authentication date and public offering price. Notwithstanding any other provision of this Indenture, with respect to
Section 2.02 (other than the fourth, sixth and seventh paragraphs thereof) through Section 2.04, Section 2.07, Section 2.08, Section 2.10,
Section 3.01 through Section 3.05, Section 4.02, Section 6.01 through Section 6.15, Section 8.01 through Section 8.07, Section 9.02 and
Section 10.07, if any series of Securities includes more than one tranche, all provisions of such sections applicable to any series of
Securities shall be deemed equally applicable to each tranche of any series of Securities in the same manner as though originally designated
a series unless otherwise provided with respect to such series or tranche pursuant to Section 2.03. In particular, and without limiting
the scope of the next preceding sentence, any of the provisions of such sections which provide for or permit action to be taken with respect
to a series of Securities shall also be deemed to provide for and permit such action to be taken instead only with respect to Securities
of one or more tranches within that series (and such provisions shall be deemed satisfied thereby), even if no comparable action is taken
with respect to Securities in the remaining tranches of that series.
Article
3
Redemption
Section 3.01.
Applicability of Article. The provisions of this Article shall be applicable to the Securities of any series
that are redeemable before their maturity or to any sinking fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 2.03 for Securities of such series.
Section 3.02.
Notice of Redemption; Partial Redemptions. Notice of redemption to the Holders of Securities of any series to
be redeemed as a whole or in part at the option of the Company shall be given by mailing notice of such redemption by first class mail,
postage prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders of Securities of such
series at their last addresses as they shall appear upon the Security Register. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice. Failure to give notice by mail,
or any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part, shall not affect
the validity of the proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder
shall specify the Principal amount of each Security of such series held by such Holder to be redeemed, the CUSIP numbers of the Securities
to be redeemed, the date fixed for redemption, the redemption price, or if not then ascertainable, the manner of calculation thereof,
the place or places of payment, that payment will be made upon presentation and surrender of such Securities, that such redemption is
pursuant to the mandatory or optional sinking fund, or both, if such be the case, that interest accrued to the date fixed for redemption will be paid as specified in such notice and
that on and after said date interest thereon or on the portions thereof to be redeemed will cease to accrue. In case any Security of a
series is to be redeemed in part only, the notice of redemption shall state the portion of the Principal amount thereof to be redeemed
and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of such
series and tenor in Principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any
series to be redeemed at the option of the Company shall be given by the Company or, at the Company’s request, by the Trustee in
the name and at the expense of the Company.
On or before 10:00 a.m. New York City time on
the redemption date specified in the notice of redemption given as provided in this Section, the Company will deposit with the Trustee
or with one or more Paying Agents (or, if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided
in Section 2.06) an amount of money sufficient to redeem on the redemption date all the Securities of such series so called for redemption
at the appropriate redemption price, together with accrued interest to the date fixed for redemption. If all of the outstanding Securities
of a series are to be redeemed, the Company will deliver to the Trustee at least 10 days prior to the last date on which notice of redemption
may be given to Holders pursuant to the first paragraph of this Section 3.02(or such shorter period as shall be acceptable to the Trustee)
an Officers’ Certificate stating that all such Securities are to be redeemed. If less than all the outstanding Securities of a series
are to be redeemed, the Company will deliver to the Trustee at least 15 days prior to the last date on which notice of redemption may
be given to Holders pursuant to the first paragraph of this Section 3.02(or such shorter period as shall be acceptable to the Trustee)
an Officers’ Certificate stating the aggregate Principal amount of such Securities to be redeemed. In the case of any redemption
of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere
in this Indenture, or (b) pursuant to an election of the Company which is subject to a condition specified in the terms of such Securities
or elsewhere in this Indenture, the Company shall deliver to the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officers’ Certificate evidencing compliance with such restriction or condition.
If less than all the Securities of a series are
to be redeemed, the Trustee shall select, pro rata, by lot or in such manner as it shall deem appropriate and fair, Securities of such
series to be redeemed in whole or in part. Securities may be redeemed in part in Principal amounts equal to authorized denominations for
Securities of such series. The Trustee shall promptly notify the Company in writing of the Securities of such series selected for redemption
and, in the case of any Securities of such series selected for partial redemption, the Principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the portion of the Principal amount of such Security which has
been or is to be redeemed.
Section 3.03.
Payment of Securities Called for Redemption. If notice of redemption has been given as above provided, the Securities
or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at
the applicable redemption price, together with interest accrued to the date fixed
for redemption, and on and after such date (unless the Company shall default in the payment of such Securities at the redemption price,
together with interest accrued to such date) interest on the Securities or portions of Securities so called for redemption shall cease
to accrue, and, except as provided in Section 7.12 and Section 8.02, such Securities shall cease from and after the date fixed for redemption
to be entitled to any benefit under this Indenture, and the Holders thereof shall have no right in respect of such Securities except the
right to receive the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such
Securities at a place of payment specified in said notice, said Securities or the specified portions thereof shall be paid and redeemed
by the Company at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided
that payment of interest becoming due on or prior to the date fixed for redemption shall be payable to the Holders registered as such
on the relevant record date subject to the terms and provisions of Section 2.04 and Section 2.13 hereof.
If any Security called for redemption shall not
be so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed
for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security) borne by such Security.
Upon presentation of any Security of any series
redeemed in part only, the Company shall execute and the Trustee shall authenticate and deliver to or on the order of the Holder thereof,
at the expense of the Company, a new Security or Securities of such series and tenor, of authorized denominations, in Principal amount
equal to the unredeemed portion of the Security so presented.
Section 3.04.
Exclusion of Certain Securities from Eligibility for Selection for Redemption. Unless otherwise provided with
respect to any series of Securities, Securities shall be excluded from eligibility for selection for redemption if they are identified
by registration and certificate number in a written statement signed by an authorized Officer of the Company and delivered to the Trustee
at least 40 days prior to the last date on which notice of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Company or (b) an entity specifically identified in such written statement as directly or indirectly
controlling or controlled by or under direct or indirect common control with the Company.
Section 3.05.
Mandatory and Optional Sinking Funds. The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such
minimum amount provided for by the terms of the Securities of any series is herein referred to as an “optional sinking fund payment.”
The date on which a sinking fund payment is to be made is herein referred to as the “sinking fund payment date.”
In lieu of making all or any part of any mandatory
sinking fund payment with respect to any series of Securities in cash, the Company may at its option (a) deliver to the Trustee Securities
of such series theretofore purchased or otherwise acquired (except through a mandatory sinking fund payment) by the Company or receive
credit for Securities of such series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by the Company and delivered to the Trustee for cancellation pursuant to Section 2.11, (b) receive credit
for optional sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive credit for Securities of
such series (not previously so credited) redeemed by the Company at the option of the Company pursuant to the terms of such Securities
or through any optional sinking fund payment. Securities so delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding
each sinking fund payment date for any series, or such shorter period as shall be acceptable to the Trustee, the Company will deliver
to the Trustee an Officers’ Certificate (a) specifying the portion of the mandatory sinking fund payment to be satisfied by payment
of cash and the portion to be satisfied by credit of specified Securities of such series and the basis for such credit, (b) stating that
none of the specified Securities of such series has theretofore been so credited, (c) stating that no defaults in the payment of interest
or Events of Default with respect to such series have occurred (which have not been waived or cured) and are continuing and (d) stating
whether or not the Company intends to exercise its right to make an optional sinking fund payment with respect to such series and, if
so, specifying the amount of such optional sinking fund payment which the Company intends to pay on or before the next succeeding sinking
fund payment date. Any Securities of such series to be credited and required to be delivered to the Trustee in order for the Company to
be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.11 to the Trustee with such Officers’ Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officers’ Certificate shall be irrevocable and upon its receipt by the Trustee the Company shall become unconditionally
obligated to make all the cash payments or delivery of Securities therein referred to, if any, on or before the next succeeding sinking
fund payment date. Failure of the Company, on or before any such sixtieth day, to deliver such Officer’s Certificate and Securities
specified in this paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election
of the Company (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall
be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and (ii) that the Company
will make no optional sinking fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory
or optional or both) to be made in cash on the next succeeding sinking fund payment date plus any unused balance of any preceding sinking
fund payments made in cash shall exceed US$50,000 (or a lesser sum if the Company shall so request with respect to the Securities of any
series), such cash shall be applied on the next succeeding sinking fund payment date to the redemption of Securities of such series at
the sinking fund redemption price thereof together with accrued interest thereon to the date fixed for redemption. If such amount shall
be US$50,000 (or such lesser sum) or less and the Company makes no such request then it shall be carried over until a sum in excess of
US$50,000 (or such lesser sum) is available. The Trustee shall select, in the manner provided in Section 3.02, for redemption on such
sinking fund payment date a sufficient Principal amount of Securities of such series to absorb said cash, as nearly as may be, and shall
(if requested in writing by the Company) inform the Company of the serial numbers of the Securities of such series (or portions thereof)
so selected. Securities shall be excluded from eligibility for redemption under this Section if they are identified by registration and
certificate number in an Officers’ Certificate delivered to the Trustee at least 60
days prior to the sinking fund payment date as being owned of record and beneficially by, and not pledged or hypothecated by either (a)
the Company or (b) an entity specifically identified in such Officers’ Certificate as directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company. The Trustee, in the name and at the expense of the Company (or the Company,
if it shall so request the Trustee in writing) shall cause notice of redemption of the Securities of such series to be given in substantially
the manner provided in Section 3.02 (and with the effect provided in Section 3.03) for the redemption of Securities of such series in
part at the option of the Company. The amount of any sinking fund payments not so applied or allocated to the redemption of Securities
of such series shall be added to the next cash sinking fund payment for such series and, together with such payment, shall be applied
in accordance with the provisions of this Section. Any and all sinking fund moneys held on the stated maturity date of the Securities
of any particular series (or earlier, if such maturity is accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if necessary, sufficient for the purpose, to the payment of the
Principal of, and interest on, the Securities of such series at maturity.
On or before 10:00 a.m. New York City time on
each sinking fund payment date, the Company shall pay to the Trustee in cash or shall otherwise provide for the payment of all interest
accrued to the date fixed for redemption on Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed
any Securities of a series with sinking fund moneys or mail any notice of redemption of Securities of such series by operation of the
sinking fund during the continuance of a Default in payment of interest on such Securities or of any Event of Default except that, where
the mailing of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum sufficient for such redemption. Except as aforesaid, any
moneys in the sinking fund for such series at the time when any such Default or Event of Default shall occur, and any moneys thereafter
paid into the sinking fund, shall, during the continuance of such Default or Event of Default, be deemed to have been collected under
Article 6 and held for the payment of all such Securities. In case such Event of Default shall have been waived as provided in Section
6.04 or the Default cured on or before the sixtieth day preceding the sinking fund payment date in any year, such moneys shall thereafter
be applied on the next succeeding sinking fund payment date in accordance with this Section to the redemption of such Securities.
Article
4
Covenants
Section 4.01.
Payment of Securities. The Company shall pay the Principal of and interest on the Securities on the dates and
in the manner provided in the Securities and this Indenture. The interest on Securities (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only to the Holders thereof (subject to Section 2.04) and at the option of
the Company may be paid by mailing checks for such interest payable to or upon the written order of such Holders at their last addresses
as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture
and the Securities of any series to the contrary, if the Company and a Holder of any Security so agree, payments of interest on, and any
portion of the Principal of, such Holder’s Security (other than interest payable at maturity or on any redemption or repayment date
or the final payment of Principal on such Security) shall be made by the Paying Agent, upon receipt from the Company of immediately available
funds by 11:00 a.m., New York City time (or such other time as may be agreed to between the Company and the Paying Agent), directly to
the Holder of such Security (by Federal funds wire transfer or otherwise) if the Holder has delivered written instructions to the Trustee
15 days prior to such payment date requesting that such payment will be so made and designating the bank account to which such payments
shall be so made and in the case of payments of Principal, surrenders the same to the Trustee in exchange for a Security or Securities
aggregating the same Principal amount as the unredeemed Principal amount of the Securities surrendered. The Trustee shall be entitled
to rely on the last instruction delivered by the Holder pursuant to this Section 4.01 unless a new instruction is delivered 15 days prior
to a payment date. The Company will indemnify and hold each of the Trustee and any Paying Agent harmless against any loss, liability or
expense (including attorneys’ fees) resulting from any act or omission to act on the part of the Company or any such Holder in connection
with any such agreement or from making any payment in accordance with any such agreement.
The Company shall pay interest on overdue Principal,
and interest on overdue installments of interest, to the extent lawful, at the rate per annum specified in the Securities.
Section 4.02.
Maintenance of Office or Agency. The Company will maintain in the United States of America, an office or agency
where Securities may be surrendered for registration of transfer or exchange or for presentation for payment and where notices and demands
to or upon the Company in respect of the Securities and this Indenture may be served. The Company hereby initially designates [ ], as
such office or agency of the Company. The Company will give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the address
of the Trustee set forth in Section 10.02.
The Company may also from time to time designate
one or more other offices or agencies where the Securities of any series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in the United States of America for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office
or agency.
Section 4.03.
Securityholders’ Lists. The Company will furnish or cause to be furnished to the Trustee a list in such
form as the Trustee may reasonably require of the names and addresses of the holders of the Securities pursuant to Section 312 of the
Trust Indenture Act (a) semi-annually not more than 15 days after each record date for the payment of semi-annual interest on the Securities,
as hereinabove specified, as of such record date, and (b) at such other times as the Trustee may request in writing, within 30 days after
receipt by the Company of any such request as of a date not more than 15 days prior to the time such information is furnished.
Section 4.04.
Certificate to Trustee. The Company will furnish to the Trustee annually, on or before a date not more than four
months after the end of its fiscal year (which, on the date hereof, is a calendar year), a brief certificate (which need not contain the
statements required by Section 10.04) from its principal executive, financial or accounting officer as to his or her knowledge of the
compliance of the Company with all conditions and covenants under this Indenture (such compliance to be determined without regard to any
period of grace or requirement of notice provided under this Indenture) which certificate shall comply with the requirements of the Trust
Indenture Act.
Section 4.05.
Reports by the Company. The Company covenants to file with the Trustee, within 15 days after the Company files
the same with the Commission, copies of the annual reports and of the information, documents, and other reports which the Company may
be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
Section 4.06.
Additional Amounts. If the Securities of a series provide for the payment of additional amounts, at least 10
days prior to the first interest payment date with respect to that series of Securities and at least 10 days prior to each date of payment
of Principal of or interest on the Securities of that series if there has been a change with respect to the matters set forth in the below-mentioned
Officers’ Certificate, the Company shall furnish to the Trustee and the principal paying agent, if other than the Trustee, an Officers’
Certificate instructing the Trustee and such paying agent whether such payment of Principal of or interest on the Securities of that series
shall be made to Holders of the Securities of that series without withholding or deduction for or on account of any tax, assessment or
other governmental charge described in the Securities of that series. If any such withholding or deduction shall be required, then such
Officers’ Certificate shall specify by country the amount, if any, required to be withheld or deducted on such payments to such
Holders and shall certify the fact that additional amounts will be payable and the amounts so payable to each Holder, and the Company
shall pay to the Trustee or such paying agent the additional amounts required to be paid by the terms of the Securities of that series.
The Company covenants to indemnify the Trustee and any paying agent for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officers’ Certificate furnished pursuant to this Section.
Whenever in this Indenture there is mentioned,
in any context, the payment of the Principal of or interest or any other amounts on, or in respect of, any Security of any series, such
mention shall be deemed to include mention of the payment of additional amounts provided by the terms of such series established hereby
or pursuant hereto to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to
such terms, and express mention of the payment of additional amounts (if applicable) in any provision hereof shall not be construed as
excluding the payment of additional amounts in those provisions hereof where such express mention is not made.
Article
5
Successor Corporation
Section 5.01.
When Company May Merge, Etc. Unless otherwise provided pursuant to Section 2.03 in connection with the establishment
of a series, the Company shall not consolidate or combine with, merge with or into, directly or indirectly, or sell, assign, convey, transfer,
lease or otherwise dispose of all or substantially all of its property and assets to any Person or Persons in a single transaction or
through a series of transactions unless:
(a)
the Company shall be the continuing Person or, if the Company is not the continuing Person, the resulting, surviving or
transferee Person (the “Surviving Entity”) is a company organized and existing under the laws of any member state of
the European Union or the United States of America or any State or territory thereof;
(b)
the Surviving Entity shall expressly assume all of the Company’s obligations under the Securities and this Indenture,
and shall, if required by law to effectuate the assumption, execute supplemental indentures which shall be delivered to the Trustee and
shall be in form and substance reasonably satisfactory to the Trustee;
(c)
immediately after giving effect to such transaction or series of transactions on a pro forma basis, no Default has occurred
and is continuing; and
(d)
the Company or the Surviving Entity shall have delivered to the Trustee an Officers’ Certificate and Opinion of Counsel
stating that (x) the transaction or series of transactions and such supplemental indenture, if any, complies with this Section 5.01, (y)
such supplemental indenture (if any) constitutes the legal, valid and binding obligation of the Company and such Surviving Entity enforceable
against such Surviving Entity in accordance with its terms, subject to customary exceptions and (z) all conditions precedent in this Indenture
relating to the transaction or series of transactions have been satisfied.
Section 5.02.
Successor Substituted. Upon any consolidation, combination or merger, or any sale, assignment, conveyance, transfer,
lease or other disposition of all or substantially all of the property and assets of the Company in accordance with Section 5.01 of this
Indenture, the Surviving Entity shall succeed to, and be substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such Surviving Entity had been named as the Company herein and thereafter the predecessor Person,
except in the case of (x) a lease or (y) any sale, assignment, conveyance, transfer, lease or other disposition to one or more Subsidiaries
of the Company, shall be discharged from all obligations and covenants under this Indenture and the Securities.
Article
6
Default and Remedies
Section 6.01.
Events of Default. An “Event of Default” shall occur with respect to the Securities of any
series if:
(a)
the Company defaults in the payment of the Principal of any Security of such series when the same becomes due and payable
at maturity, upon acceleration, redemption or mandatory repurchase, including as a sinking fund installment, or otherwise;
(b)
the Company defaults in the payment of interest on any Security of such series when the same becomes due and payable, and
such default continues for a period of 30 days;
(c)
the Company defaults in the performance of or breaches any other covenant or agreement of the Company in this Indenture
with respect to any Security of such series or in the Securities of such series (other than a covenant or agreement in respect of which
noncompliance by the Company would otherwise be an Event of Default) and such default or breach continues for a period of 90 consecutive
days or more after written notice to the Company by the Trustee or to the Company and the Trustee by the Holders of 25% or more in aggregate
Principal amount of the Securities of all series affected thereby specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder;
(d)
a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property or ordering
the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive
days;
(e)
the Company (i) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (ii) consents to the appointment
of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or for
all or substantially all of the property and assets of the Company or (iii) effects any general assignment for the benefit of creditors;
or
(f)
any other Event of Default established pursuant to Section 2.03 with respect to the Securities of such series occurs.
Section 6.02.
Acceleration. (a) If an Event of Default other than as described in clauses (d) or (e) of Section 6.01 with respect
to the Securities of any series then outstanding occurs and is continuing, then, and in each and every such case, except for any series
of Securities the Principal of which shall have already become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate Principal amount of the Securities of all such series then outstanding hereunder in respect of which an Event of Default
has occurred (all such series voting together as a single class) by notice in writing to the Company (and to the Trustee if given by Securityholders),
may declare the entire Principal (or, if the Securities of any such series are Original Issue Discount Securities, such portion of the
Principal amount as may be specified in the terms of such series established pursuant to Section 2.03) of all Securities of the affected
series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
(b)
If an Event of Default described in clause (d) or (e) of Section 6.01 occurs and is continuing, then the Principal amount
(or, if any Securities are Original Issue Discount Securities, such portion of the Principal as may be specified in the terms thereof
established pursuant to Section 2.03) of all the Securities then outstanding and interest accrued thereon, if any, shall be and become
immediately due and payable, without any declaration, notice or other action by any Holder or the Trustee, to the full extent permitted
by applicable law.
The foregoing provisions, however, are subject
to the condition that if, at any time after the Principal (or, if the Securities are Original Issue Discount Securities, such portion
of the Principal as may be specified in the terms thereof established pursuant to Section 2.03) of the Securities of any series (or of
all the Securities, as the case may be) shall have been so declared or become due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of each such series (or of all the Securities,
as the case may be) and the Principal of any and all Securities of each such series (or of all the Securities, as the case may be) which
shall have become due otherwise than by acceleration (with interest upon such Principal and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest or Yield to Maturity
(in the case of Original Issue Discount Securities) specified in the Securities of each such series to the date of such payment or deposit)
and such amount as shall be sufficient to cover all amounts owing the Trustee under Section 7.07, and if any and all Events of Default
under the Indenture, other than the non-payment of the Principal of and interest on Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein, then and in every such case the Holders of a majority in aggregate
Principal amount of all the then outstanding Securities of all such series that have been accelerated (voting as a single class), by written
notice to the Company and to the Trustee, may waive all defaults with respect to all such series (or with respect to all the Securities,
as the case may be) and rescind and annul such declaration and its consequences, but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion
of the Principal of any Original Issue Discount Securities shall have been accelerated and declared or become due and payable pursuant
to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the Principal
amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the Principal thereof
as shall be due and payable as a result of such acceleration, and payment of such portion of the Principal thereof as shall be due and
payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute
payment in full of such Original Issue Discount Securities.
Section 6.03.
Other Remedies. If a payment default or an Event of Default with respect to the Securities of any series occurs
and is continuing, the Trustee may pursue, in its own name or as trustee of an express trust, any available remedy by proceeding at law
or in equity to collect the payment of Principal of and interest on the Securities of such series or to enforce the performance of any
provision of the Securities of such series or this Indenture.
The Trustee may maintain a proceeding even if
it does not possess any of the Securities or does not produce any of them in the proceeding.
Section 6.04.
Waiver of Past Defaults. Subject to Section 6.02, Section 6.07 and Section 9.02, the Holders of at least a majority
in Principal amount (or, if the Securities are Original Issue Discount Securities, such portion of the Principal as is then accelerable
under Section 6.02) of the outstanding Securities of all series affected (voting as a single class), by notice to the Trustee, may waive
an existing Default or Event of Default with respect to the Securities of such series and its consequences, except a Default in the payment
of Principal of or interest on any Security as specified in clauses (a) or (b) of Section 6.01 or in respect of a covenant or provision
of this Indenture which cannot be modified or amended without the consent of the Holder of each outstanding Security affected.
Upon any such waiver, such Default shall cease
to exist, and any Event of Default with respect to the Securities of such series arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereto.
Section 6.05.
Control by Majority. Subject to Section 7.01 and Section 7.02(e), the Holders of at least a majority in aggregate
Principal amount (or, if any Securities are Original Issue Discount Securities, such portion of the Principal as is then accelerable under
Section 6.02) of the outstanding Securities of all series affected (voting as a single class) may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect
to the Securities of such series by this Indenture; provided, that the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, that may involve the Trustee in personal liability or that the Trustee determines in good faith may be unduly
prejudicial to the rights of Holders not joining in the giving of such direction; and provided further, that the Trustee may take
any other action it deems proper that is not inconsistent with any directions received from Holders of Securities pursuant to this Section
6.05.
Section 6.06.
Limitation on Suits. No Holder of any Security of any series may institute any proceeding, judicial or otherwise,
with respect to this Indenture or the Securities of such series, or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a)
such Holder has previously given to the Trustee written notice of a continuing Event of Default with respect to the Securities
of such series;
(b)
the Holders of at least 25% in aggregate Principal amount of outstanding Securities of all such series affected shall have
made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c)
such Holder or Holders have offered to the Trustee indemnity or security reasonably satisfactory to it against any costs,
liabilities or expenses to be incurred in compliance with such request;
(d)
the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such
proceeding; and
(e)
during such 60-day period, the Holders of a majority in aggregate Principal amount of the outstanding Securities of all
such affected series have not given the Trustee a direction that is inconsistent with such written request.
A Holder may not use this Indenture to prejudice
the rights of another Holder or to obtain a preference or priority over such other Holder.
Section 6.07.
Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of Principal of or interest, if any, on such Holder’s Security on or after the respective
due dates expressed on such Security, or to bring suit for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
Section 6.08.
Collection Suit by Trustee. If an Event of Default with respect to the Securities of any series in payment of
Principal or interest specified in clause (a) or (b) of Section 6.01 occurs and is continuing, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Company for the whole amount (or such portion thereof as specified in the terms
established pursuant to Section 2.03 of Original Issue Discount Securities) of Principal of, and accrued interest remaining unpaid on,
together with interest on overdue Principal of, and, to the extent that payment of such interest is lawful, interest on overdue installments
of interest on, the Securities of such series, in each case at the rate or Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, and such further amount as shall be sufficient to cover all amounts owing the Trustee under Section 7.07.
Section 6.09.
Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee (including any claim for amounts due the Trustee under Section
7.07) and the Holders allowed in any judicial proceedings relative to the Company (or any other obligor on the Securities), its creditors
or its property and shall be entitled and empowered to collect and receive any moneys, securities or other property payable or deliverable
upon conversion or exchange of the Securities or upon any such claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it under Section 7.07. Nothing herein contained shall be deemed to empower the Trustee to authorize
or consent to, or accept or adopt on behalf of any Holder, any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.10.
Application of Proceeds. Any moneys collected by the Trustee pursuant to this Article in respect of the Securities
of any series shall be applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such
moneys on account of Principal or interest, upon presentation of the several Securities in respect of which moneys have been collected and noting thereon the payment, or issuing Securities
of such series and tenor in reduced Principal amounts in exchange for the presented Securities of such series and tenor if only partially
paid, or upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the
Trustee under Section 7.07 applicable to the Securities of such series in respect of which moneys have been collected;
SECOND: In case the Principal of the Securities
of such series in respect of which moneys have been collected shall not have become and be then due and payable, to the payment of interest
on the Securities of such series in default in the order of the maturity of the installments of such interest, with interest (to the extent
that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate as the rate of interest
or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such Securities, such payments to be made ratably
to the persons entitled thereto, without discrimination or preference;
THIRD: In case the Principal of the Securities
of such series in respect of which moneys have been collected shall have become and shall be then due and payable, to the payment of the
whole amount then owing and unpaid upon all the Securities of such series for Principal and interest, with interest upon the overdue Principal,
and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series;
and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then
to the payment of such Principal and interest or Yield to Maturity, without preference or priority of Principal over interest or Yield
to Maturity, or of interest or Yield to Maturity over Principal, or of any installment of interest over any other installment of interest,
or of any Security of such series over any other Security of such series, ratably to the aggregate of such Principal and accrued and unpaid
interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any,
to the Company or any other person lawfully entitled thereto.
Section 6.11.
Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely
to the Trustee or to such Holder, then, and in every such case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored to their former positions hereunder and thereafter all rights and remedies of the Company, Trustee and
the Holders shall continue as though no such proceeding had been instituted.
Section 6.12.
Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any
suit against the Trustee for any action taken or omitted by it as Trustee, in either case in respect to the Securities of any series,
a court may require any party litigant in such suit (other than the Trustee) to file an undertaking to pay the costs of the suit, and
the court may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant (other than the Trustee)
in the suit having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section
6.12 does not apply to a suit by a Holder pursuant to Section 6.07, a suit instituted by the Trustee or a suit by Holders of more than
10% in Principal amount of the outstanding Securities of such series.
Section 6.13.
Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities in Section 2.08, no right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by
law, 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 appropriate right or remedy.
Section 6.14.
Waiver of Stay or Extension Laws. The Company (to the extent it may lawfully do so) shall not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such
law had been enacted.
Section 6.15.
Delay or Omission not Waiver. No delay or omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Article
7
Trustee
Section 7.01.
General. The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act and as
set forth herein. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights
or powers, unless it receives indemnity satisfactory to it against any loss, liability or expense. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Article 7.
Section 7.02.
Certain Rights of Trustee. Subject to Trust Indenture Act Sections 315(a) through (d):
(a)
the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, Officers’
Certificate, Opinion of Counsel (or both), statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented by the proper person or persons. The Trustee need not investigate any fact or matter
stated in the document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters
as it may see fit;
(b)
before the Trustee acts or refrains from acting, it may require an Officers’ Certificate and/or an Opinion of Counsel,
which shall conform to Section 10.04 and shall cover such other matters as the Trustee may reasonably request. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion. Subject to Section 7.01 and
Section 7.02, whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers’ Certificate delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by
it under the provisions of this Indenture upon the faith thereof;
(c)
the Trustee may act through its attorneys and agents not regularly in its employ and shall not be responsible for the misconduct
or negligence of any agent or attorney appointed with due care;
(d)
any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officers’
Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to
the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;
(e)
the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory
to it against any costs, expenses or liabilities that might be incurred by it in compliance with such request or direction;
(f)
the Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized
or within its rights or powers or for any action it takes or omits to take in accordance with the direction of the Holders in accordance
with Section 6.05 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture;
(g)
the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon; and
(h)
prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, Officers’ Certificate,
Opinion of Counsel, Board Resolution, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or
other paper or document unless requested in writing so to do by the Holders of not less than a majority in aggregate Principal amount
of the Securities of all series affected then outstanding; provided that, if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding.
Section 7.03.
Individual Rights of Trustee. The Trustee, in its individual or any other capacity, may become the owner or pledgee
of Securities and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not the Trustee.
Any Agent may do the same with like rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b) and 311. For purposes
of Trust Indenture Act Section 311(b)(4) and (6), the following terms shall mean:
(a)
“cash transaction” means any transaction in which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable
upon demand; and
(b)
“self-liquidating paper” means any draft, bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale
of goods, wares or merchandise and which is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company arising
from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation.
Section 7.04.
Trustee’s Disclaimer. The recitals contained herein and in the Securities (except the Trustee’s certificate
of authentication) shall be taken as statements of the Company and not of the Trustee and the Trustee assumes no responsibility for the
correctness of the same. Neither the Trustee nor any of its agents (a) makes any representation as to the validity or adequacy of this
Indenture or the Securities and (b) shall be accountable for the Company’s use or application of the proceeds from the Securities.
Section 7.05.
Notice of Default. If any Default with respect to the Securities of any series occurs and is continuing and if
such Default is known to the actual knowledge of a Responsible Officer with the Corporate Trust Office of the Trustee, the Trustee shall
give to each Holder of Securities of such series notice of such Default within 90 days after it occurs to all Holders of Securities of
such series in the manner and to the extent provided in Section 313(a) of the Trust Indenture Act, unless such Default shall have been
cured or waived before the mailing of such notice; provided, however, that, except in the case of a Default in the payment
of the Principal of or interest on any Security, the Trustee shall be protected in withholding such notice if the Trustee in good faith
determines that the withholding of such notice is in the interests of the Holders.
Section
7.06. Reports by Trustee to Holders.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture
Act, the Trustee shall, within 60 days after each May 15 following the date of this Indenture, deliver to Holders a brief report, dated
as of such May 15, which complies with the provisions of such Section 313(a).
A copy of each such report shall, at the time
of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission
and with the Company. The Company will promptly notify the Trustee when any Securities are listed on any stock exchange.
Section 7.07.
Compensation and Indemnity. The Company shall pay to the Trustee such compensation as shall be agreed upon in
writing from time to time for its services. The compensation of the Trustee shall not be limited by any law on compensation of a Trustee
of an express trust. The Company shall reimburse the Trustee and any predecessor Trustee upon request for all reasonable out-of-pocket
expenses, disbursements and advances incurred or made by the Trustee or such predecessor Trustee. Such expenses shall include the reasonable
compensation and expenses of the Trustee’s or such predecessor Trustee’s agents, counsel and other persons not regularly in
their employ.
The Company shall indemnify the Trustee and any
predecessor Trustee for, and hold them harmless against, any loss or liability or expense incurred by them without negligence or bad faith
on their part arising out of or in connection with the acceptance or administration of this Indenture and the Securities or the issuance
of the Securities or of series thereof or the trusts hereunder and the performance of duties under this Indenture and the Securities,
including the costs and expenses of defending themselves against or investigating any claim or liability and of complying with any process
served upon them or any of their officers in connection with the exercise or performance of any of their powers or duties under this Indenture
and the Securities.
To secure the Company’s payment obligations
in this Section 7.07, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee,
in its capacity as Trustee, except money or property held in trust to pay Principal of, and interest on particular Securities.
The obligations of the Company under this Section
to compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee
for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge
of this Indenture or the rejection or termination of this Indenture under bankruptcy law. Such additional indebtedness shall be a senior
claim to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the
benefit of the Holders of particular Securities, and the Securities are hereby subordinated to such senior claim. Without prejudice to
any other rights available to the Trustee under applicable law, if the Trustee renders services and incurs expenses following an Event
of Default under Section 6.01(d) or Section 6.01(e) hereof, the parties hereto and the holders by their acceptance of the Securities hereby
agree that such expenses are intended to constitute expenses of administration under any bankruptcy law.
Section
7.08. Replacement of Trustee. A resignation or removal of the Trustee
as Trustee with respect to the Securities of any series and appointment of a successor Trustee as Trustee with respect to the Securities
of any series shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08.
The Trustee may resign as Trustee with respect
to the Securities of any series at any time by so notifying the Company in writing. The Holders of a majority in Principal amount of the
outstanding Securities of any series may remove the Trustee as Trustee with respect to the Securities of such series by so notifying the
Trustee in writing and may appoint a successor Trustee with respect thereto with the consent of the Company. The Company may remove the
Trustee as Trustee with respect to the Securities of any series if: (i) the Trustee is no longer eligible under Section 7.11 of this Indenture;
(ii) the Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other public officer takes charge of the Trustee or its property;
or (iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed as Trustee
with respect to the Securities of any series, or if a vacancy exists in the office of Trustee with respect to the Securities of any series
for any reason, the Company shall promptly appoint a successor Trustee with respect thereto. Within one year after the successor Trustee
takes office, the Holders of a majority in Principal amount of the outstanding Securities of such series may appoint a successor Trustee
in respect of such Securities to replace the successor Trustee appointed by the Company. If the successor Trustee with respect to the
Securities of any series does not deliver its written acceptance required by Section 7.09 within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of a majority in Principal amount of the outstanding Securities of such
series may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect thereto.
The Company shall give notice of any resignation
and any removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee in respect of
the Securities of such series to all Holders of Securities of such series. Each notice shall include the name of the successor Trustee
and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with
respect to the Securities of any series pursuant to this Section 7.08 and Section 7.09, the Company’s obligations under Section
7.07 shall continue for the benefit of the retiring Trustee.
Section 7.09.
Acceptance of Appointment by Successor. In case of the appointment hereunder of a successor Trustee with respect
to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its
charges and subject to the lien provided for in Section 7.07, execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect
to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall
be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective
to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be eligible under this Article and qualified under Section 310(b) of
the Trust Indenture Act.
Section 7.10.
Successor Trustee By Merger, Etc. If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation or national banking association, the resulting, surviving
or transferee corporation or national banking association without any further act shall be the successor Trustee with the same effect
as if the successor Trustee had been named as the Trustee herein.
Section 7.11.
Eligibility. This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture Act
Section 310(a). The Trustee shall have a combined capital and surplus of at least US$25,000,000 as set forth in its most recent published
annual report of condition.
Section
7.12. Money Held in Trust. The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by law and except for money held in trust under Article 8 of this Indenture.
Article
8
Satisfaction and Discharge of Indenture; Unclaimed Moneys
Section 8.01.
Satisfaction and Discharge of Indenture. If at any time (a) (i) all Securities of any series issued that have
been authenticated and delivered have been delivered by the Company to the Trustee for cancellation (other than Securities of such series
which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.08); or (ii) all the Securities
of any series issued that have not been delivered by the Company to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by such Trustee in the Company’s name and at the Company’s expense,
the Company shall have irrevocably deposited or caused to be deposited with the Trustee as trust funds the entire amount in cash (other
than moneys repaid by the Trustee or any paying agent to the Company in accordance with Section 8.04) or U.S. Government Obligations,
maturing as to principal and interest in such amounts and at such times as will insure (without consideration of the reinvestment of such
interest) the availability of cash, or a combination thereof, sufficient to pay at maturity or upon redemption all Securities of such
series (other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or
paid as provided in Section 2.08) not theretofore delivered to the Trustee for cancellation, including Principal and interest due or to
become due on or prior to such date of maturity or redemption as the case may be; (b) the Company has paid or caused to be paid all other
sums then due and payable under this Indenture; and (c) the Company has delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this
Indenture pursuant to this Section 8.01 have been complied with, then this Indenture shall cease to be of further effect with respect
to Securities of such series (except as to (i) rights of registration of transfer and exchange of securities of such series, and the Company’s
right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of holders
to receive payments of Principal thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration)
and remaining rights of the holders to receive mandatory sinking fund payments, if any, (iv) the rights, obligations and immunities of
the Trustee hereunder and (v) the rights of the Securityholders of such series as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them), and the Trustee, on demand of the Company accompanied by an Officers’
Certificate and an Opinion of Counsel and at the cost and expense of the Company, shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture with respect to such series; provided that the rights of Holders of the Securities to receive
amounts in respect of Principal of and interest on the Securities held by them shall not be delayed longer than required by then-applicable
mandatory rules or policies of any securities exchange upon which the Securities are listed. The Company agrees to reimburse the Trustee
for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services thereafter reasonably and
properly rendered by the Trustee in connection with this Indenture or the Securities of such series.
Section 8.02.
Application by Trustee of Funds Deposited for Payment of Securities. Subject to Section 8.04, all moneys (including
U.S. Government Obligations and the proceeds thereof) deposited with the Trustee pursuant to Section 8.01, Section 8.05 or Section 8.06
shall be held in trust and applied by it to the payment, either directly or through any paying agent to the Holders of the particular
Securities of such series for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and
to become due thereon for Principal and interest; but such money need not be segregated from other funds except to the extent required
by law.
Section 8.03.
Repayment of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture
with respect to Securities of any series, all moneys then held by any paying agent under the provisions of this Indenture with respect
to such series of Securities shall, upon demand of the Company, be repaid to it or paid to the Trustee and thereupon such paying agent
shall be released from all further liability with respect to such moneys.
Section 8.04.
Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years. Any moneys deposited with or paid
to the Trustee or any paying agent for the payment of the Principal of or interest on any Security of any series and not applied but remaining
unclaimed for two years after the date upon which such Principal or interest shall have become due and payable, shall, upon the written
request of the Company and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be repaid to the Company by the Trustee for such series or such paying agent, and the Holder of the Security of such series shall,
unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only
to the Company for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any paying agent with
respect to such moneys shall thereupon cease.
Section 8.05.
Defeasance and Discharge of Indenture. The Company shall be deemed to have paid and shall be discharged from
any and all obligations in respect of the Securities of any series, after the deposit referred to in clause (i) hereof has been made,
and the provisions of this Indenture shall no longer be in effect with respect to the Securities of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the same), except as to: (a) rights of Holders of the Securities
of such series to receive payments of Principal thereof, premium thereto, and interest thereon, upon the original stated due dates therefor,
(b) the Company’s obligations with respect to the issuance of temporary Securities and the registration of transfer with respect
to the Securities of such series, the Company’s right of optional redemption, substitution of mutilated, defaced, destroyed, lost
or stolen Securities of such series and the maintenance of an office or agency for payment for security payments held in trust pursuant
to clause (i) hereof, (c) the rights, obligations and immunities of the Trustee hereunder, and (d) the defeasance provisions contained
in Article 8 of this Indenture; provided that the following conditions shall have been satisfied:
(i)
with reference to this Section 8.05 the Company irrevocably has deposited or caused to be deposited with the Trustee (or
another qualifying trustee satisfying the requirements of Section 7.11) as trust funds in trust, for the purposes of making the following
payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series,
(A) money in an amount, (B) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance
with their terms will provide not later than one day before the due date of any payment referred to in subclause (x) or (y) of this clause
(i), or (C) a combination thereof, in each case sufficient, in the written opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, without consideration of reinvestment
and after payment of all federal, state and local taxes or other charges and assessments in respect thereof, and which shall be applied
by the Trustee to pay and discharge (x) all of the Principal of, premium, if any, and each installment of interest on the outstanding
Securities of such series on the maturity or due dates thereof or if the Company has made irrevocable arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee, the redemption date, as the case may be, and (y) any mandatory sinking
fund payments or analogous payments applicable to the Securities of such series on the day on which such payments are due and payable
in accordance with the terms of Securities of such series and the Indenture with respect to the Securities of such series;
(ii)
the Company has delivered to the Trustee an Opinion of Counsel to the effect that, under then applicable U.S. federal income
tax law, beneficial owners of the Securities of such series will not recognize gain or loss for U.S. federal income tax purposes as a
result of the Company’s exercise of its option under this Section 8.05 and will be subject to U.S. federal income tax on the same
amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred;
(iii)
no Default under either clause (d) or clause (e) of Section 6.01 shall have occurred and be continuing at such time;
(iv)
if at such time the Securities of such series are listed on a national securities exchange, the Company has delivered to
the Trustee an Opinion of Counsel to the effect that the Securities of such series will not be delisted as a result of such deposit, defeasance
and discharge;
(v)
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
all conditions precedent to the defeasance and discharge under this Section 8.05 have been complied with; and
(vi)
if the Securities of such series are to be redeemed prior to the final maturity thereof (other than from mandatory sinking
fund payments or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee shall have been made.
Section
8.06. Defeasance of Certain Obligations. The Company may omit to
comply with any term, provision or condition set forth in, and this Indenture will no longer be in effect with respect to, any covenant
established pursuant to Section 2.03(s) and clause (c) and clause (f) (with respect to any covenants established pursuant to Section 2.03(s))
of Section 6.01 shall be deemed not to constitute a Default or an Event of Default with respect to Securities of any series, if:
(a)
with reference to this Section 8.06, the Company has irrevocably deposited or caused to be deposited with the Trustee (or
another qualifying trustee satisfying the requirements of Section 7.11) as trust funds in trust, for the purposes of making the following
payments, specifically pledged as security for, and dedicated solely to, the benefits of the Holders of the Securities of such series,
(i) money in an amount, (ii) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance
with their terms will provide not later than one day before the due date of any payment referred to in subclause (x) or (y) of this clause
(a), or (iii) a combination thereof, in each case sufficient, in the written opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, without consideration of reinvestment
and after payment of all federal, state and local taxes or other charges and assessments in respect thereof, and which shall be applied
by the Trustee to pay and discharge (x) all of the Principal of, premium, if any, and each installment of interest on the outstanding
Securities of such series on the maturity or due dates thereof or if the Company has made irrevocable arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee, the redemption date, as the case may be, and (y) any mandatory sinking
fund payments or analogous payments applicable to the Securities of such series on the day on which such payments are due and payable
in accordance with the terms of the Securities of such series and the Indenture with respect to the Securities of such series;
(b)
the Company has delivered to the Trustee an Opinion of Counsel to the effect that, under then applicable U.S. federal income
tax law, beneficial owners of the Securities of such series will not recognize gain or loss for U.S. federal income tax purposes as a
result of the Company’s exercise of its option under this Section 8.06 and will be subject to U.S. federal income tax on the same
amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(c)
no Default with respect to the outstanding Securities of such series shall have occurred and be continuing at the time of
such deposit immediately after giving effect to such deposit;
(d)
if at such time the Securities of such series are listed on a national securities exchange, the Company has delivered to
the Trustee an Opinion of Counsel to the effect that the Securities of such series will not be delisted as a result of such deposit, defeasance
and discharge;
(e)
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
all conditions precedent to the defeasance under this Section have been complied with; and
(f)
if the Securities of such series are to be redeemed prior to the final maturity thereof (other than from mandatory sinking
fund payments or analogous payments), notice of such redemption shall have been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee shall have been made.
Section 8.07.
Reinstatement. If the Trustee or paying agent is unable to apply any monies or U.S. Government Obligations in
accordance with Article 8 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to this Article until such time as the Trustee or paying agent
is permitted to apply all such monies or U.S. Government Obligations in accordance with Article 8; provided, however, that
if the Company has made any payment of Principal of or interest on any Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the monies or U.S. Government
Obligations held by the Trustee or paying agent.
Section 8.08.
Indemnity. The Company shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes
of this Section 8.08 and Section 8.02, the “Trustee”) against any tax, fee or other charge imposed on or assessed against
the U.S. Government Obligations deposited pursuant to Section 8.01, Section 8.05 or Section 8.06 or the principal or interest received
in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Securities.
Section 8.09.
Excess Funds. Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon request of the Company, any money or U.S. Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 8.01, Section 8.05 or Section 8.06 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof
which would then be required to be deposited to effect a discharge or defeasance, as applicable, in accordance with this Article 8.
Section 8.10.
Qualifying Trustee. Any trustee appointed pursuant to Section 8.05 or 8.06 for the purpose of holding money or
U.S. Government Obligations deposited pursuant to such Sections shall be appointed under an agreement in form acceptable to the Trustee
and shall provide to the Trustee a certificate, upon which certificate the Trustee shall be entitled to conclusively rely, that all conditions
precedent provided for herein to the related defeasance have been complied with. In no event shall the Trustee be liable for any acts
or omissions of said trustee.
Article
9
Amendments, Supplements and Waivers
Section 9.01.
Without Consent of Holders. The Company and the Trustee may amend or supplement this Indenture or the Securities
of any series without notice to or the consent of any Holder:
(a)
to cure any ambiguity, defect or inconsistency in this Indenture;
(b)
to comply with Article 5;
(c)
to maintain the qualification of this Indenture under the Trust Indenture Act;
(d)
to evidence and provide for the acceptance of appointment hereunder with respect to the Securities of any or all series
by a successor Trustee and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 7.09;
(e)
to establish the form or forms or terms of Securities of any series as permitted by Section 2.03;
(f)
to provide for uncertificated Securities and to make all appropriate changes for such purpose;
(g)
to conform any provision to the applicable corresponding provision set forth in the offering document for the offering of
such series of Securities; and
(h)
to make any change that does not materially and adversely affect the rights of any Holder.
Section 9.02.
With Consent of Holders. Subject to Section 6.04 and Section 6.07, without prior notice to any Holders, the Company
and the Trustee may amend this Indenture and the Securities of any series with the written consent of the Holders of a majority in Principal
amount of the outstanding Securities of each series affected by such amendment (all such series voting together as a single class), and
the Holders of a majority in Principal amount of the outstanding Securities of each series affected thereby (all such series voting together
as a single class) by written notice to the Trustee may waive future compliance by the Company with any provision of this Indenture or
the Securities of such series.
Notwithstanding the provisions of this Section
9.02, without the consent of each Holder affected thereby, an amendment or waiver, including a waiver pursuant to Section 6.04, may not:
(a)
change the stated maturity of the Principal of, or any sinking fund obligation or any installment of interest on, such Holder’s
Security;
(b)
reduce the Principal amount thereof or the rate of interest thereon (including any amount in respect of original issue discount);
(c)
reduce the above stated percentage of outstanding Securities the consent of whose holders is necessary to modify or amend
the Indenture with respect to the Securities of the relevant series; and
(d)
reduce the percentage in Principal amount of outstanding Securities of the relevant series the consent of whose Holders
is required for any supplemental indenture or for any waiver of compliance with certain provisions of this Indenture
or certain Defaults and their consequences provided for in this Indenture.
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of Holders of Securities of such series with respect to such covenant or provision, shall
be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for the consent of
any Holder under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient
if such consent approves the substance thereof.
After an amendment, supplement or waiver under
this Section 9.02 becomes effective, the Company shall give to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. The Company will mail supplemental indentures to Holders upon request. Any failure of the Company to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.
Section 9.03.
Revocation and Effect of Consent. Until an amendment or waiver becomes effective, a consent to it by a Holder
is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt
as the Security of the consenting Holder, even if notation of the consent is not made on any Security. However, any such Holder or subsequent
Holder may revoke the consent as to its Security or portion of its Security. Such revocation shall be effective only if the Trustee receives
the notice of revocation before the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver shall
become effective with respect to any Securities affected thereby on receipt by the Trustee of written consents from the requisite Holders
of outstanding Securities affected thereby.
The Company may, but shall not be obligated to,
fix a record date (which may be not less than five nor more than 60 days prior to the solicitation of consents) for the purpose of determining
the Holders of the Securities of any series affected entitled to consent to any amendment, supplement or waiver. If a record date is fixed,
then, notwithstanding the immediately preceding paragraph, those Persons who were such Holders at such record date (or their duly designated
proxies) and only those Persons shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent previously
given, whether or not such Persons continue to be such Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
After an amendment, supplement or waiver becomes
effective with respect to the Securities of any series affected thereby, it shall bind every Holder of such Securities unless it is of
the type described in any of clauses (a) through (d) of Section 9.02. In case of an amendment or waiver of the type described in clauses
(a) through (d) of Section 9.02, the amendment or waiver shall bind each such Holder who has consented to it and every subsequent Holder
of a Security that evidences the same indebtedness as the Security of the consenting Holder.
Section
9.04. Notation on or Exchange of Securities. If an amendment, supplement
or waiver changes the terms of any Security, the Trustee may require the Holder thereof to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security about the changed terms and return it to the Holder and the Trustee may place an appropriate
notation on any Security of such series thereafter authenticated. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a new Security of the same series and tenor that reflects
the changed terms
Section 9.05.
Trustee to Sign Amendments, Etc. The Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article 9 is
authorized or permitted by this Indenture, stating that all requisite consents have been obtained or that no consents are required and
stating that such supplemental indenture constitutes the legal, valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms, subject to customary exceptions. The Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver that affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 9.06.
Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article 9 shall conform
to the requirements of the Trust Indenture Act as then in effect.
Article
10
Miscellaneous
Section 10.01.
Trust Indenture Act of 1939. This Indenture shall incorporate and be governed by the provisions of the Trust
Indenture Act that are required to be part of and to govern indentures qualified under the Trust Indenture Act.
Section 10.02.
Notices. Any notice or communication shall be sufficiently given if written and (a) if delivered in person, when
received or (b) if mailed by first class mail, five days after mailing, or (c) as between the Company and the Trustee if sent by facsimile
transmission, when transmission is confirmed, in each case addressed as follows:
if to the Company:
Zenvia Inc.
Avenida Paulista, 2300, 18th Floor
São Paulo, São Paulo, CEP 01310-300
Brazil
Attention: [ ]
if to the Trustee:
[ ]
[ ]
[ ]
Attention: [ ]
The Company or the Trustee by written notice
to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication shall be sufficiently
given to Holders by mailing to such Holders at their addresses as they shall appear on the Security Register. Notice mailed shall be sufficiently
given if so mailed within the time prescribed. Copies of any such communication or notice to a Holder shall also be mailed to the Trustee
and each Agent at the same time.
Failure to mail a notice or communication to
a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. Except as otherwise provided in this Indenture,
if a notice or communication is mailed in the manner provided in this Section 10.02, it is duly given, whether or not the addressee receives
it.
Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case it shall be impracticable to give notice
as herein contemplated, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
Section 10.03.
Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the Trustee:
(a)
an Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been complied with; and
(b)
an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Section 10.04.
Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the certificate required by Section 4.04) shall include:
(a)
a statement that each person signing such certificate or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b)
a brief statement as to the nature and scope of the examination or investigation upon which the statement or opinion contained
in such certificate or opinion is based;
(c)
a statement that, in the opinion of each such person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d)
a statement as to whether or not, in the opinion of each such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion of Counsel may rely on an Officers’ Certificate
or certificates of public officials.
Section 10.05.
Evidence of Ownership. The Company, the Trustee and any agent of the Company or the Trustee may deem and treat
the person in whose name any Security shall be registered upon the Security Register for such series as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose
of receiving payment of or on account of the Principal of and, subject to the provisions of this Indenture, interest on such Security
and for all other purposes; and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary.
Section 10.06.
Rules by Trustee, Paying Agent or Registrar. The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Paying Agent or Registrar may make reasonable rules for its functions.
Section 10.07.
Payment Date Other Than a Business Day. Except as otherwise provided with respect to a series of Securities,
if any date for payment of Principal or interest on any Security shall not be a Business Day at any place of payment, then payment of
Principal of or interest on such Security, as the case may be, need not be made on such date, but may be made on the next succeeding Business
Day at any place of payment with the same force and effect as if made on such date and no interest shall accrue in respect of such payment
for the period from and after such date.
Section 10.08.
Governing Law. The laws of the State of New York shall govern this Indenture and the Securities.
Section 10.09.
No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture
or loan or debt agreement of the Company or any Subsidiary of the Company. Any such indenture or agreement may not be used to interpret
this Indenture.
Section 10.10.
Successors. All agreements of the Company in this Indenture and the Securities shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.
Section 10.11.
Duplicate Originals. The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
Section 10.12.
Separability. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.13.
Table of Contents, Headings, Etc. The Table of Contents and headings of the Articles and Sections of this Indenture
have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify
or restrict any of the terms and provisions hereof.
Section 10.14.
Incorporators, Stockholders, Officers and Directors of Company Exempt from Individual Liability. No recourse
under or upon any obligation, covenant or agreement contained in this Indenture or any indenture supplemental hereto, or in any Security,
or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such or against any past, present or future
stockholder, officer, director or employee, as such, of the Company or of any successor, either directly or through the Company or any
successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the holders thereof
and as part of the consideration for the issue of the Securities.
Section 10.15.
Consent to Jurisdiction; Appointment of Agent to Accept Service of Process. (a) Each of the parties to this Indenture
shall irrevocably submit to the jurisdiction of any New York State or United States Federal court sitting in the Borough of Manhattan,
City of New York in respect of any suit, action or proceeding arising out of or relating to this Indenture or the Securities. Each of
the parties to this Indenture irrevocably waives (and shall waive), to the fullest extent permitted by law, any objection which it may
now or hereafter have to the laying of venue of any such suit, action or proceeding brought in such courts and any claim that any such
suit, action or proceeding brought in such courts, has been brought in an inconvenient forum and any right to which it may be entitled
on account of place of residence or domicile. To the extent that the Company has or hereafter may acquire any immunity from jurisdiction
of any court or from any legal process with respect to itself or its property, the Company irrevocably waives such immunity in respect
of (i) its obligations under this Indenture and (ii) any Securities. Each of the parties to this Indenture agrees that final judgment
in any such suit, action or proceeding brought in such a court shall be conclusive and binding on it and may be enforced in any court
to the jurisdiction of which each of them is subject by a suit upon such judgment; provided, that service of process is effected upon
the Company in the manner specified in the following paragraph or as otherwise permitted by law. (b) As long as any of the Securities
remain outstanding, the Company shall at all times have an authorized agent in the City of New York, upon whom process may be served in
any legal action or proceeding arising out of or relating to this Indenture or any Securities. Service of process upon such agent and
written notice of such service mailed or delivered to the Company shall, to the extent permitted by law, be deemed in every respect effective
service of process upon the Company in any such legal action or proceeding. (c) The Company has validly and effectively appointed [ ]
(the “Process Agent”), with offices on the date hereof at [ ], as its authorized agent upon which process may be served
in any action, suit or proceeding referred to in this Section 10.15. If for any reason such agent hereunder shall cease to be available
to act as such, the Company agrees to designate a new agent in the Borough of Manhattan, New York City, New York on the terms and for
the purposes of this Section 10.15 reasonably satisfactory to the Trustee. The Company further hereby irrevocably consents and agrees
to the service of any and all legal process, summons, notices and documents in any such action, suit or proceeding against the Company
by serving a copy thereof upon the relevant agent for service of process referred to in this Section 10.15 (whether or not the appointment
of such agent shall for any reason prove to be ineffective or such agent shall accept or acknowledge such service) or by mailing copies
thereof by registered or certified air mail, postage prepaid, to the Company at its address specified in or designated
pursuant to this Indenture. The Company agrees that the failure of any such designee, appointee and agent to give any notice of such service
to it shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon.
Nothing herein shall in any way be deemed to limit the ability of the Holders and the Trustee to serve any such legal process, summons,
notices and documents in any other manner permitted by applicable law. (d) The provisions of this Section 10.15 shall survive any termination
of this Indenture, in whole or in part.
Section 10.16.
Judgment Currency. The Company agrees, to the fullest extent that it may effectively do so under applicable law,
that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the Principal of or
interest on the Securities of any series (the “Required Currency”) into a currency in which a judgment will be rendered
(the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures
the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable
judgment is entered, unless such day is not a Business Day, then, to the extent permitted by applicable law, the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the Business Day preceding the day on which final unappealable judgment is entered and (b) its
obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or
any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the
Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause
of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by judgment being obtained for any
other sum due under this Indenture.
Section 10.17.
Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 10.18.
Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance
of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts
of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood
that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance
as soon as practicable under the circumstances.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, all as of the date first written above.
ZENVIA INC.
as the Company
By:
Name:
Title:
By:
Name:
Title:
[ ]
as the Trustee
By:
Name:
Title:
Exhibit 5.1
Our
ref ADN/779735-000001/78978980v3
|
Zenvia Inc.
PO Box 309, Ugland House
Grand Cayman
KY1-1104
Cayman Islands |
17 June 2024
Zenvia Inc.
We have acted as counsel as to Cayman Islands
law to Zenvia Inc. (the "Company") to provide this opinion letter in connection with the Company's registration statement
on Form F-3, including the base prospectus therein and all amendments or supplements thereto, filed with the United States Securities
and Exchange Commission (the "Commission") under the United States Securities Act of 1933, as amended (the "Act"),
(including its exhibits, the "Registration Statement") in connection with:
| (A) | securities which may be offered and sold by the Company from time to time, in one or more offerings (together,
the "Securities"). The Securities include: |
| (i) | Class A common shares of a par value of US$0.00005 each of the Company (the "Class A Common Shares"); |
| (ii) | debt securities, which may be secured or unsecured, including senior debt securities, convertible debt
securities and exchangeable debt securities of the Company (the "Debt Securities"), each series of Debt Securities to
be issued under an indenture to be entered into by the Company (the "Indenture"); |
| (iii) | warrants to purchase securities of the Company (the "Warrants") issuable pursuant to
the terms of a warrant agreement to be entered by the Company (the "Warrant Agreement") and warrant certificate (the
"Warrant Certificate" and, together with the Warrant Agreement, the "Warrant Documents"); |
| (iv) | rights to purchase securities of the Company (the "Rights") issuable pursuant to the
terms of a rights agreement to be entered by the Company (the "Rights Agreement") and rights certificate (the "Rights
Certificate" and, together with the Rights Agreement, the "Rights Documents"); |
| (v) | units which may be comprised of one or more of the other securities described above (the "Units")
issuable pursuant to the terms of a unit agreement to be entered by the Company (the "Unit Agreement") and unit certificate
(the "Unit Certificate" and, together with the Unit Agreement, the "Unit Documents", and together with
the Indenture, Warrant Documents and Rights Documents, the "Documents"). |
This opinion letter is given in accordance with
the terms of the Legal Matters section of the Registration Statement.
We have reviewed originals, copies, drafts or
conformed copies of the following documents:
| 1.1 | The certificate of incorporation dated 3 November 2020 and the second amended and restated memorandum
and articles of association of the Company adopted by special resolution passed on 30 November 2022 (the "Memorandum and Articles"). |
| 1.2 | The written resolutions of the board of directors of the Company dated 17 June 2024 (together, the "Resolutions"). |
| 1.3 | The following corporate records of the Company maintained at its registered office in the Cayman Islands,
each as at the date of this opinion letter: |
| (a) | the Register of Directors; and |
| (b) | the Register of Mortgages and Charges. |
| 1.4 | A certificate of good standing with respect to the Company issued by the Registrar of Companies (the "Certificate of Good Standing"). |
| 1.5 | A certificate from a director of the Company a copy of which is attached to this opinion letter (the "Director's
Certificate"). |
| 1.6 | The Registration Statement. |
The following opinions are given only as to,
and based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate
to the laws of the Cayman Islands which are in force on the date of this opinion letter. In giving the following opinions, we have relied
(without further verification) upon the completeness and accuracy, as at the date of this opinion letter, of the Director's Certificate
and the Certificate of Good Standing. We have also relied upon the following assumptions, which we have not independently verified:
| 2.1 | The Documents will be authorised and duly executed and unconditionally delivered by or on behalf of all
relevant parties in accordance with all relevant laws. |
| 2.2 | The Documents will be, legal, valid, binding and enforceable against all relevant parties in accordance
with their terms under the laws of the State of New York (the "Relevant Law") and all other relevant laws (other than,
with respect to the Company, the laws of the Cayman Islands). |
| 2.3 | The choice of the Relevant Law as the governing law of the Documents will be made in good faith and would
be regarded as a valid and binding selection which will be upheld by the courts of the State of New York and any other relevant jurisdiction
(other than the Cayman Islands) as a matter of the Relevant Law and all other relevant laws (other than the laws of the Cayman Islands). |
| 2.4 | Copies of documents, conformed copies or drafts of documents provided to us are true and complete copies
of, or in the final forms of, the originals. |
| 2.5 | All signatures, initials and seals are genuine. |
| 2.6 | The capacity, power, authority and legal right of all parties under all relevant laws and regulations
(other than, with respect to the Company, the laws and regulations of the Cayman Islands) to enter into, execute, unconditionally deliver
and perform their respective obligations under the Documents. |
| 2.7 | There is no contractual or other prohibition or restriction (other than as arising under Cayman Islands
law) binding on the Company prohibiting or restricting it from entering into and performing its obligations under the Documents. |
| 2.8 | No monies paid to or for the account of any party under the Documents or any property received or disposed
of by any party to the Documents in each case in connection with the Documents or the consummation of the transactions contemplated thereby
represent or will represent proceeds of criminal conduct or criminal property or terrorist property (as defined in the Proceeds of Crime
Act (As Revised) and the Terrorism Act (As Revised), respectively). |
| 2.9 | The Securities will be issued and authenticated in accordance with the provisions of a duly authorised,
executed and delivered Document. |
| 2.10 | The Documents will be duly executed and delivered by an authorised person of the parties thereto. |
| 2.11 | The Company will receive money or money's worth in consideration for the issue of the Class A Common Shares
and none of the Class A Common Shares will be issued for less than their par value. |
| 2.12 | There will be sufficient Class A Common Shares authorised for issue under the Memorandum and Articles. |
| 2.13 | The issue of the Debt Securities issuable under the Indenture Documents, the Warrants issuable under the
Warrant Documents, the Rights issuable under the Rights Documents and the Units issuable under the Unit Documents and the Class A Common
Shares will be of commercial benefit to the Company. |
| 2.14 | No invitation has been or will be made by or on behalf of the Company to the public in the Cayman Islands
to subscribe for any of the Securities. |
| 2.15 | There is nothing under any law (other than the laws of the Cayman Islands) which would or might affect
the opinions set out below. Specifically, we have made no independent investigation of the Relevant Law. |
Save as aforesaid we have not been instructed
to undertake and have not undertaken any further enquiry or due diligence in relation to the transaction the subject of this opinion letter.
Based upon, and subject to, the foregoing assumptions
and the qualifications set out below, and having regard to such legal considerations as we deem relevant, we are of the opinion that:
| 3.1 | The Company has been duly incorporated as an exempted company with limited liability and is validly existing
and in good standing with the Registrar of Companies under the laws of the Cayman Islands. |
| 3.2 | The Company has all requisite power and authority under the Memorandum and Articles to enter into, execute
and perform its obligations under the Documents to which it will be, a party. |
| 3.3 | With respect to the Class A Common Shares, when: (a) the board of directors of the Company has taken all
necessary corporate action to approve the issue thereof, the terms of the offering thereof and related matters; (b) the issue of such
Class A Common Shares has been recorded in the Company's register of members (shareholders); and (c) the subscription price of such Class
A Common Shares and (being not less than the par value of the Class A Common Shares) has been fully paid in cash or other consideration
approved by the board of directors of the Company, the Class A Common Shares will be duly authorised, validly issued, fully paid and non-assessable. |
| 3.4 | With respect to the Debt Securities, when: (a) the board of directors of the Company has taken all necessary
corporate action to approve the creation and terms of the Debt Securities and to approve the issue thereof, the terms of the offering
thereof and related matters; (b) an Indenture relating to the Debt Securities shall have been duly authorised and validly executed and
delivered by the Company; and (c) such Debt Securities issued thereunder have been duly executed and delivered on behalf of the Company
and authenticated in the manner ser forth in the Indenture relating to such issue of Debt Securities and delivered against due payment
therefor pursuant to, and in accordance with, the terms of the Registration Statement and any relevant prospectus supplement, such Debt
Securities issued pursuant to the Indenture will have been duly executed, issued and delivered. |
| 3.5 | With respect to the Warrants, when: (a) the board of directors of the Company has taken all necessary
corporate action to approve the creation and terms of the Warrants and to approve the issue thereof, the terms of the offering thereof
and related matters; (b) a Warrant Agreement relating to the Warrants shall have been duly authorised and validly executed and delivered
by the Company and the financial institution designated as warrant agent thereunder; and (c) the Warrant Certificates have been duly executed,
countersigned, registered and delivered in accordance with the Warrant Agreement relating to the Warrants and the applicable definitive
purchase, underwriting or similar agreement approved by the board of directors of the Company upon payment of the consideration therefor
provided therein, the Warrants will be duly authorised, legal and binding obligations of the Company. |
| 3.6 | With respect to the Rights, when: (a) the board of directors of the Company has taken all necessary corporate
action to approve the creation and terms of the Rights and to approve the issue thereof, the terms of the offering thereof and related
matters; (b) a Rights Agreement relating to the Rights shall have been duly authorised and
validly executed and delivered by the Company and the financial institution designated as rights agent thereunder; and (c) the Rights
Certificates have been duly executed, countersigned, registered and delivered in accordance with the Rights Agreement relating to the
Rights and the applicable definitive purchase, underwriting or similar agreement approved by the board of directors of the Company upon
payment of the consideration therefor provided therein, the Rights will be duly authorised, legal and binding obligations of the Company. |
| 3.7 | With respect to the Units, when: (a) the board of directors of the Company has taken all necessary corporate
action to approve the creation and terms of the Units and to approve the issue thereof, the terms of the offering thereof and related
matters; (b) a Unit Agreement relating to the Units shall have been duly authorised and validly executed and delivered by the Company
and the financial institution designated as unit agent thereunder; and (c) the Units Certificates have been duly executed, countersigned,
registered and delivered in accordance with the Unit Agreement relating to the Units and the applicable definitive purchase, underwriting
or similar agreement approved by the board of directors of the Company upon payment of the consideration therefor provided therein, the
Units will be duly authorised, legal and binding obligations of the Company. |
The opinions expressed above are subject to the
following qualifications:
| 4.1 | The obligations assumed by the Company under the Documents or the relevant Securities issuable thereunder
will not necessarily be enforceable in all circumstances in accordance with their terms. In particular: |
| (a) | enforcement may be limited by bankruptcy, insolvency, liquidation, reorganisation, readjustment of debts
or moratorium or other laws of general application relating to, protecting or affecting the rights of creditors and/or contributories; |
| (b) | enforcement may be limited by general principles of equity. For example, equitable remedies such as specific
performance may not be available, inter alia, where damages are considered to be an adequate remedy; |
| (c) | some claims may become barred under relevant statutes of limitation or may be or become subject to defences
of set off, counterclaim, estoppel and similar defences; |
| (d) | where obligations are to be performed in a jurisdiction outside the Cayman Islands, they may not be enforceable
in the Cayman Islands to the extent that performance would be illegal under the laws of that jurisdiction; |
| (e) | the courts of the Cayman Islands have jurisdiction to give judgment in the currency of the relevant obligation
and statutory rates of interest payable upon judgments will vary according to the currency of the judgment. If the Company becomes insolvent
and is made subject to a liquidation proceeding, the courts of the Cayman Islands will require all debts to be proved in a common currency,
which is likely to be the "functional currency" of the Company determined in accordance with applicable accounting principles.
Currency indemnity provisions have not been tested, so far as we are aware, in the courts of the Cayman Islands; |
| (f) | arrangements that constitute penalties will not be enforceable; |
| (g) | enforcement may be prevented by reason of fraud, coercion, duress, undue influence, misrepresentation,
public policy or mistake or limited by the doctrine of frustration of contracts; |
| (h) | provisions imposing confidentiality obligations may be overridden by compulsion of applicable law or the
requirements of legal and/or regulatory process; |
| (i) | the courts of the Cayman Islands may decline to exercise jurisdiction in relation to substantive proceedings
brought under or in relation to the Documents in matters where they determine that such proceedings may be tried in a more appropriate
forum; |
| (j) | any provision in a Document which is governed by Cayman Islands law purporting to impose obligations on
a person who is not a party to such Document (a "third party") is unenforceable against that third party. Any provision
in a Document which is governed by Cayman Islands law purporting to grant rights to a third party is unenforceable by that third party,
except to the extent that such Document expressly provides that the third party may, in its own right, enforce such rights (subject to
and in accordance with the Contracts (Rights of Third Parties) Act (As Revised)); |
| (k) | any provision of a Document which is governed by Cayman Islands law which expresses any matter to be determined
by future agreement may be void or unenforceable; |
| (l) | we reserve our opinion as to the enforceability of the relevant provisions of the Documents to the extent
that they purport to grant exclusive jurisdiction as there may be circumstances in which the courts of the Cayman Islands would accept
jurisdiction notwithstanding such provisions; |
| (m) | a company cannot, by agreement or in its articles of association, restrict the exercise of a statutory
power and there is doubt as to the enforceability of any provision in the Documents whereby the Company covenants to restrict the exercise
of powers specifically given to it under the Companies Act (As Revised) (the "Companies Act"), including, without limitation,
the power to increase its authorised share capital, amend its memorandum and articles of association or present a petition to a Cayman
Islands court for an order to wind up the Company; and |
| (n) | if the Company becomes subject to Part XVIIA of the Companies Act, enforcement or performance of any provision
in the Documents which relates, directly or indirectly, to an interest in the Company constituting shares, voting rights or director appointment
rights in the Company may be prohibited or restricted if any such relevant interest is or becomes subject to a restrictions notice issued
under the Companies Act. |
| 4.2 | To maintain the Company in good standing with the Registrar of Companies under the laws of the Cayman
Islands, annual filing fees must be paid and returns made to the Registrar of Companies within the time frame prescribed by law. |
| 4.3 | We express no opinion as to the meaning, validity or effect of any references to foreign (i.e. non-Cayman
Islands) statutes, rules, regulations, codes, judicial authority or any other promulgations and any references to them in the Documents
or the relevant Securities issuable thereunder. |
| 4.4 | We have not reviewed the Documents or the Securities to be issued thereunder to be issued thereunder,
and our opinions are qualified accordingly. |
| 4.5 | We reserve our opinion as to the extent to which the courts of the Cayman Islands would, in the event
of any relevant illegality or invalidity, sever the relevant provisions of the Documents or the Securities to be issued thereunder or
the transaction of which such provisions form a part, notwithstanding any express provisions in the Documents in this regard. |
| 4.6 | Under Cayman Islands law, the register of members (shareholders) is prima facie evidence of title to shares
and this register would not record a third party interest in such shares. However, there are certain limited circumstances where an application
may be made to a Cayman Islands court for a determination on whether the register of members reflects the correct legal position. Further,
the Cayman Islands court has the power to order that the register of members maintained by a company should be rectified where it considers
that the register of members does not reflect the correct legal position. As far as we are aware, such applications are rarely made in
the Cayman Islands and there are no circumstances or matters of fact known to us on the date of this opinion letter which would properly
form the basis for an application for an order for rectification of the register of members of the Company, but if such an application
were made in respect of the Company's Shares, then the validity of such shares may be subject to re-examination by a Cayman Islands court. |
| 4.7 | Except as specifically stated herein, we make no comment with respect
to any representations and warranties which may be made by or with respect to the Company in any of the documents or instruments cited
in this opinion letter or otherwise with respect to the commercial terms of the transactions the subject of this opinion letter. |
| 4.8 | In this opinion letter, the phrase "non-assessable" means, with respect to shares in the Company,
that a shareholder shall not, solely by virtue of its status as a shareholder, be liable for additional assessments or calls on the shares
by the Company or its creditors (except in exceptional circumstances, such as involving fraud, the establishment of an agency relationship
or an illegal or improper purpose or other circumstances in which a court may be prepared to pierce or lift the corporate veil). |
We hereby consent to the filing of this opinion
letter as an exhibit to the Registration Statement and to the references to our firm under the headings "Enforceability of Civil
Liabilities" and "Legal Matters" in the prospectus included in the Registration Statement. In providing our consent, we
do not thereby admit that we are in the category of persons whose consent is required under section 7 of the Securities Act or the Rules
and Regulations of the SEC thereunder.
We express no view as to the commercial terms
of the Documents, the relevant Securities issuable thereunder or the Registration Statement or whether such terms represent the intentions
of the parties and make no comment with regard to warranties or representations that may be made by the Company.
We express no opinion with respect to any direct
or indirect acquisition, disposal or exercise of rights by the Company of or in respect of any interest in any property governed by the
laws of or situated in the Cayman Islands.
The opinions in this opinion letter are strictly
limited to the matters contained in the opinions section above and do not extend to any other matters. We have not been asked to review
and we therefore have not reviewed any of the Documents or the ancillary documents relating to the Documents or the relevant Securities
issuable thereunder and express no opinion or observation upon the terms of any such document.
This opinion letter is addressed to you and may
be relied upon by you, your counsel and purchasers of Securities pursuant to the Registration Statement. This opinion letter is limited
to the matters detailed herein and is not to be read as an opinion with respect to any other matter.
Yours faithfully
/s/ Maples and Calder (Cayman) LLP
Maples and Calder (Cayman) LLP
Zenvia Inc.
PO Box 309, Ugland House
Grand Cayman
KY1-1104
Cayman Islands
| To: |
Maples and Calder (Cayman) LLP
PO Box 309, Ugland House
Grand Cayman
KY1-1104
Cayman Islands |
17 June 2024
Zenvia Inc. (the "Company")
I, the undersigned, being a director of the Company,
am aware that you are being asked to provide an opinion letter (the "Opinion") in relation to certain aspects of Cayman
Islands law. Unless otherwise defined herein, capitalised terms used in this certificate have the respective meanings given to them in
the Opinion. I hereby certify that:
| 1 | The Memorandum and Articles remain in full force and effect and are unamended. |
| 2 | The Company has not entered into any mortgages or charges over its property or assets other than those
entered in the register of mortgages and charges of the Company. |
| 3 | The Resolutions were duly passed in the manner prescribed in the Memorandum and Articles (including, without
limitation, with respect to the disclosure of interests (if any) by directors of the Company) and have not been amended, varied or revoked
in any respect. |
| 4 | The authorised share capital of the Company is US$50,000 divided into 1,000,000,000 shares of a nominal
or par value of US$0.00005 each which, at the date the Memorandum and Articles became effective, comprise (i) 500,000,000 Class A Common
Shares; and (ii) 250,000,000 Class B Common Shares (which Class B Common Shares may be converted into Class A Common Shares in the manner
contemplated in the Articles of Association of the Company); and (iii) 250,000,000 shares of such class or classes (howsoever designated)
and having the rights as the board of directors of the Company may determine from time to time in accordance with Article 4 of the Articles
of Association of the Company. |
| 5 | The issued share capital of the Company is 27,080,080 Class A Common Shares of a par value of US$0.00005
each and 23,664,925 Class B Common Shares of a par value of US$0.00005 each, which have been issued as fully paid and non-assessable. |
| 6 | The shareholders of the Company (the "Shareholders") have not restricted the powers of
the directors of the Company in any way. |
| 7 | The directors of the Company at the date of the Resolutions and at the date of this certificate were and
are as follows: Cassio Bobsin Machado, Eduardo Aspesi, Jorge Steffens, Ana Dolores Moura Carneiro de Novaes, Piero Lara Rosatelli and
Paulo Sergio Caputo. |
| 8 | The minute book and corporate records of the Company as maintained at its registered office in the Cayman
Islands and made available to you are complete and accurate in all material respects, and all minutes and resolutions filed therein represent
a complete and accurate record of all meetings of the Shareholders and directors (or any committee thereof) of the Company (duly convened
in accordance with the Memorandum and Articles) and all resolutions passed at the meetings or passed by written resolution or consent,
as the case may be. |
| 9 | Prior to, at the time of, and immediately following the approval of the transactions the subject of the
Registration Statement the Company was, or will be, able to pay its debts as they fell, or fall, due and has entered, or will enter, into
the transactions the subject of the Registration Statement for proper value and not with an intention to defraud or wilfully defeat an
obligation owed to any creditor or with a view to giving a creditor a preference. |
| 10 | Each director of the Company considers the entry by the Company into the Registration Statement (including
the transactions contemplated thereunder) to be of commercial benefit to the Company and has acted in good faith in the best interests
of the Company, and for a proper purpose of the Company, in relation to the transactions which are the subject of the Opinion. |
| 11 | To the best of my knowledge and belief, having made due inquiry, the Company is not the subject of legal,
arbitral, administrative or other proceedings in any jurisdiction. Nor have the directors or Shareholders taken any steps to have the
Company struck off or placed in liquidation, nor have any steps been taken to wind up the Company. Nor has any receiver been appointed
over any of the Company's property or assets. |
| 12 | The Company has received or will receive money or money's worth in consideration for the issue of the
Class A Common Shares upon exercise of any of the Securities and none of the Class A Common Shares were or will be issued for less than
par value. |
| 13 | The Company is not subject to the requirements of Part XVIIA of the Companies Act. |
| 14 | To the best of my knowledge and belief, having made due inquiry, there are no circumstances or matters
of fact existing which may properly form the basis for an application for an order for rectification of the register of members of the
Company. |
| 15 | The Registration Statement has been, or will be, authorised and duly executed and delivered by or on behalf
of all relevant parties in accordance with all relevant laws. |
| 16 | No invitation has been made or will be made by or on behalf of the Company to the public in the Cayman
Islands to subscribe for any of the Class A Common Shares. |
| 17 | The Class A Common Shares to be issued pursuant to the Registration Statement have been, or will be, duly
registered, and will continue to be registered, in the Company's register of members (shareholders). |
| 18 | The Company is not a central bank, monetary authority or other sovereign entity of any state and is not
a subsidiary, direct or indirect, of any sovereign entity or state. |
| 19 | There is no contractual or other prohibition or restriction (other than as arising under Cayman Islands
law) binding on the Company prohibiting or restricting it from entering into and performing its obligations under the Documents. |
(Signature Page follows)
I confirm that you may continue to rely on this
certificate as being true and correct on the day that you issue the Opinion unless I shall have previously notified you in writing personally
to the contrary.
Signature:
|
|
/s/ Cassio Bobsin Machado
|
Name: |
|
Cassio Bobsin Machado |
Title: |
|
Director |
| |
|
|
Exhibit 5.2
| Simpson Thacher & Bartlett llp |
|
av.
pres. juscelino kubitschek, 1455
12°
andar, conj. 121
são
paulo, sp, brasil 04543-011
|
|
telephone:
+55-11-3546-1000
|
June 17, 2024
Zenvia Inc.
PO Box 309, Ugland House
Grand Cayman KY1-1104
Cayman Islands
Ladies and Gentlemen:
We have acted as U.S.
counsel to Zenvia Inc., an exempted company with limited liability organized under the law of the Cayman Islands (the “Company”),
in connection with the Registration Statement on Form F-3 (the “Registration Statement”) filed by the Company with the
U.S. Securities and Exchange Commission (the “Commission”) under the U.S. Securities Act of 1933, as amended, relating to
(i) Class A common shares of the Company par value U.S.$0.00005 per share (the “Common Stock”); (ii) senior debt
securities (the “Debt Securities”); (iii) warrants to purchase Common Stock or Debt Securities (the “Warrants”);
(iv) rights to purchase Common Stock, Debt Securities or Warrants (the “Rights”); and (v) units consisting of one or
more of the foregoing Securities (as defined below) in any combination (the “Units”). The Common Stock, the Debt Securities,
the Warrants, the Rights and the Units are hereinafter referred to collectively as the “Securities.” The Securities may be
issued and sold or delivered from time to time, as set forth in the Registration Statement, any amendment thereto, the prospectus contained
therein (the “Prospectus”) and supplements to the Prospectus and pursuant to Rule 415 under the Securities Act for an aggregate
initial offering price not to exceed U.S.$100,000,000.
| new york |
BEIJING |
Brussels |
HONG KONG |
Houston |
LONDON |
Los Angeles |
Palo Alto |
TOKYO |
Washington, D.C. |
| Zenvia Inc. | -2- | June 17, 2024 |
The Debt Securities will be
issued under an Indenture (the “Indenture”) among the Company and a trustee to be named therein.
The Warrants will be issued
pursuant to one or more Warrant Agreements (each, a “Warrant Agreement”) between the Company and a warrant agent as shall
be named therein.
The Rights will be issued
pursuant to one or more rights agreements (each, a “Rights Agreement”) between the Company and one or more agents as shall
be named therein.
The Units will be issued pursuant
to one or more Unit Agreements (each, a “Unit Agreement”) between the Company and a unit agent as
shall be named therein (a “Unit Agent”).
The Indenture, the Warrant
Agreements, the Rights Agreements and the Unit Agreements, each of which will be governed under the law of the State of New York, are
hereinafter referred to collectively as the “Securities Agreements.”
We have examined the Registration
Statement and the form of the Indenture (including the form of Debt Securities set forth therein), which is an exhibit to the Registration
Statement. In addition, we have examined, and have relied as to matters of fact upon, originals, or duplicates or certified or conformed
copies, of such records, agreements, documents and other instruments and such certificates or comparable documents of public officials
and of officers and representatives of the Company and have made such other investigations as we have deemed relevant and necessary in
connection with the opinions hereinafter set forth.
In rendering the opinions
set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed
copies, and the authenticity of the originals of such latter documents. We also have assumed that, at the time of execution, authentication,
countersignature, issuance and delivery of any of the Securities, the applicable
Securities Agreement will be the valid and legally binding obligation of each party thereto other than the Company.
| Zenvia Inc. | -3- | June 17, 2024 |
In rendering the opinions
set forth below, we have assumed further that, at the time of execution, authentication, issuance and delivery, as applicable, of each
of the applicable Securities Agreements and Securities, (1) the Company will be validly existing and in good standing under the law of
the Cayman Islands and such Securities Agreement will have been duly authorized, executed and delivered by the Company in accordance with
its organizational documents and the law of the Cayman Islands, (2) the execution, delivery, issuance and performance, as applicable,
by the Company of such Securities Agreement and such Securities will not constitute a breach or violation of its organizational documents
or violate the law of the Cayman Islands or any other jurisdiction (except that no such assumption is made with respect to the law of
the State of New York, assuming there shall not have been any change in such law affecting the validity or enforceability of such Securities
Agreement and such Securities) and (3) the execution, delivery, issuance and performance, as applicable, by the Company of such Securities
Agreement and such Securities (a) will not constitute a breach or default under any agreement or instrument which is binding upon the
Company and (b) will comply with all applicable regulatory requirements.
Based upon the foregoing,
and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:
1.
With respect to the Debt Securities, assuming (a) the taking of all necessary corporate action by the Board of Directors of the
Company (the “Board”) to authorize and approve the issuance and terms of any Debt Securities and the terms of the offering
thereof so as not to violate any applicable law or agreement or instrument then binding on the Company, and (b) the due execution, authentication,
issuance and delivery of such Debt Securities, upon payment therefor in accordance with the applicable definitive underwriting, purchase
or similar agreement approved by the Board and otherwise in accordance with the provisions of such agreement and the Indenture, such Debt Securities will constitute valid
and legally binding obligations of the Company enforceable against the Company in accordance with their terms.
2.
With respect to the Warrants, assuming (a) the taking of all necessary corporate action by the Board to authorize and approve the
issuance and terms of any Warrants and the terms of the offering thereof so as not to violate any applicable law or agreement or instrument
then binding on the Company and (b) the due execution, countersignature, issuance and delivery of such Warrants, upon payment therefor
in accordance with the applicable definitive underwriting, purchase or similar agreement approved by the Board and otherwise in accordance
with the provisions of such agreement and the applicable definitive Warrant Agreement, such Warrants will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance with their terms.
3.
With respect to the Rights, assuming (a) the taking of all necessary corporate action by the Board to authorize and approve the
issuance and terms of any Rights and the terms of the offering thereof so as not to violate any applicable law or agreement or instrument
then binding on the Company, (b) the Common Stock to be issued with respect to such Rights will be validly issued, fully paid and nonassessable,
(c) any Debt Securities or Warrants to be issued with respect to any Rights will constitute valid and legally binding obligations of the
Company, and (d) the due execution, countersignature, issuance and delivery of such Rights, upon payment therefor in accordance with
the applicable definitive underwriting, purchase or similar agreement approved by the Board and otherwise in accordance with the provisions
of such agreement and the applicable definitive Rights Agreement, such Rights will constitute valid and legally binding obligations of
the Company enforceable against the Company in accordance with their terms.
4.
With respect to the Units, assuming (a) the taking of all necessary corporate action by the Board to authorize and approve
the issuance and delivery to the Unit Agent of the Securities that are the components of any Units, the issuance and terms of such Units
and the terms of the offering thereof so as not to violate any applicable law or agreement or instrument then binding on the Company,
(b) the Common Stock that are components of such Units and/or issuable under any Warrants that are components of such Units are or
will be, as applicable, validly issued, fully paid and nonassessable, (c) any Debt Securities or Warrants that are components of such
Units are valid and legally binding obligations of the Company and (d) the due execution, authentication, issuance and delivery, as applicable,
of such Units and the Securities that are the components of such Units, in each case upon payment therefor in accordance with the applicable
definitive underwriting, purchase or similar agreement approved by the Board and otherwise in accordance with the provisions of such agreement
and the applicable definitive Securities Agreements, such Units will constitute valid and legally binding obligations of the Company enforceable
against the Company in accordance with their terms.
| Zenvia Inc. | -4- | June 17, 2024 |
Our opinions set forth above
are subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or
at law), (iii) an implied covenant of good faith and fair dealing and (iv) the effects of the possible judicial application of foreign
laws or foreign governmental or judicial action affecting creditors’ rights. In addition, we express no opinion as to the validity,
legally binding effect or enforceability of (A) the waiver of rights and defenses contained in Sections 6.14 and 10.17 of the Indenture,
(B) Section 10.12 of the Indenture relating to the severability of provisions of the Indenture, or (C) Section 10.16 of the Indenture
setting forth currency indemnity provisions of the Indenture.
In connection with the
provisions of the Indenture whereby the parties submit to the jurisdiction of the U.S. federal courts of the United States of America
or the courts of the State of New York, in each case located in the City and County of New York, we note the limitations of 28 U.S.C.
Sections 1331 and 1332 on subject matter jurisdiction of the U.S. federal courts. In connection with the provisions of the Indenture that
relate to forum selection (including, without limitation, any waiver of any objection to venue or any objection that a court is an inconvenient
forum), we note that under N.Y.C.P.L.R. Section 510 a New York State court may have discretion to transfer the place of trial, and under
28 U.S.C. Section 1404(a) a United States District Court has discretion to transfer an action from one U.S. federal court to another.
We do not express any opinion
herein concerning any law other than the law of the State of New York. We understand that you will be relying with respect to all matters
of Cayman Islands law on the opinion of Maples and Calder (Cayman) LLP, Cayman Islands counsel to the Company, dated the date hereof.
| Zenvia Inc. | -5- | June 17, 2024 |
We hereby consent to the filing
of this opinion letter as Exhibit 5.2 to the Registration Statement and to the use of our name under the caption “Legal Matters”
in the Prospectus included in the Registration Statement.
Very truly yours,
/s/ Simpson Thacher & Bartlett LLP
SIMPSON THACHER & BARTLETT LLP
Exhibit 23.1
Consent of Independent Registered Public
Accounting Firm
We consent to the reference to our firm under the
caption "Experts" in the Registration Statement (Form F-3) and related Prospectus of Zenvia Inc. for the registration of US$100,000,000
Class A Common Shares, Debt Securities, Warrants, Rights and Units and to the incorporation by reference therein of our report dated
May 14, 2024, with respect to the consolidated financial statements of Zenvia Inc. included in its Annual Report (Form 20-F) for the
year ended December 31, 2023, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG
Auditores Independentes S/S Ltda.
São Paulo, Brazil
June 17, 2024
Exhibit 23.2
Consent of Independent Registered Public
Accounting Firm
We consent to the use of our report dated April 28, 2023, except
for Notes 22.1(b) and 22.2, as to which the date is May 14, 2024, with respect to the consolidated financial statements of Zenvia Inc.,
incorporated herein by reference and to the reference to our firm under the heading “Experts” in the prospectus.
/s/ KPMG Auditores Independentes Ltda.
Porto Alegre, Brazil
June 17, 2024
Exhibit 107
Calculation of Filing Fee Tables
Form F-3
(Form Type)
Zenvia Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities and Carry Forward
Securities
|
|
Security Type |
Security Class Title |
Fee Calculation or Carry Forward Rule |
Amount Registered(1) |
Proposed Maximum Offering Price Per Unit(2) |
Maximum Aggregate Offering Price |
Fee Rate |
Amount of Registration Fee(3) |
Carry Forward Form Type |
Carry Forward File Number |
Carry Forward Initial Effective Date |
Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward |
| Newly Registered Securities |
| Fees to be Paid |
Equity |
Class A common shares, par value US$0.00005 per Class A common share |
Rule 457(o) |
|
|
|
|
|
— |
— |
— |
— |
| |
Debt |
Debt securities |
Rule 457(o) |
|
|
|
|
|
— |
— |
— |
— |
| |
Other |
Warrants |
Rule 457(o) |
|
|
|
|
|
— |
— |
— |
— |
| |
Other |
Rights |
Rule 457(o) |
|
|
|
|
|
— |
— |
— |
— |
| |
Other |
Units |
Rule 457(o) |
|
|
|
|
|
— |
— |
— |
— |
| |
Unallocated (Universal) Shelf |
— |
Rule 457(o) |
|
|
US$100,000,000 |
US$ 0.00014760 |
US$14,760 |
— |
— |
— |
— |
| Fees Previously Paid |
— |
— |
— |
— |
— |
— |
— |
— |
— |
— |
— |
— |
| Carry Forward Securities |
| Carry Forward Securities |
— |
— |
— |
— |
— |
— |
— |
— |
— |
— |
— |
— |
| |
Total Offering Amounts |
— |
US$100,000,000 |
— |
US$14,760 |
— |
— |
— |
— |
| |
Total Fees Previously Paid |
— |
— |
— |
— |
— |
— |
— |
— |
| |
Total Fee Offsets |
— |
— |
— |
— |
— |
— |
— |
— |
| |
Net Fee Due |
— |
— |
— |
US$14,760 |
— |
— |
— |
— |
| |
(1) An indeterminate number of securities of each identified class is being
registered as may be sold from time to time at indeterminate prices with the maximum not to exceed US$100,000,000. If any debt securities
are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount as
shall result in an aggregate offering price not to exceed US$100,000,000, less the aggregate dollar amount of all securities previously
issued hereunder. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. The
proposed maximum initial offering price per unit will be determined, from time to time, by the registrant in connection with the issuance
by the registrant of the securities registered hereunder. The securities registered also include such indeterminate number of Class A
common shares and the amount of debt securities as may be issued upon conversion of or exchange for debt securities that provide for conversion
or exchange, upon exercise of warrants or rights or pursuant to the anti-dilution provisions of any such securities.
(2) Pursuant to Rule 416 under the Securities Act, this registration statement
shall be deemed to cover an indeterminate number of additional securities, which may be offered or issued to prevent dilution resulting
from adjustments as a result of stock splits, stock dividends, reverse share splits, mergers, reorganizations, consolidations or other
similar transactions.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act. In no event will the aggregate offering price of all securities sold by the registrant
from time to time pursuant to this registration statement exceed US$100,000,000. |
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