OXUSU Oxus Acquisition Corporation

Exhibit 5.1

 

 

 

January 5, 2024

 

Oxus Acquisition Corp.

300/26 Dostyk Avenue

Almaty, Kazakhstan 050020

 

Dear Sirs and Mesdames:

 

Re:	Registration Statement on Form S-4 of Oxus Acquisition Corp.
	(File No. Registration No. 333-273967)

 

We have acted as Canadian counsel to Oxus Acquisition Corp., a Cayman Islands exempted company (“Oxus”), in connection with the transactions (the “Business Combination”) contemplated by the Business Combination Agreement, dated February 23, 2023 (as may be amended, supplemented, or otherwise modified from time to time, the “Business Combination Agreement”), that Oxus has entered into with Borealis Foods Inc., a corporation incorporated under the Canada Business Corporations Act (the “CBCA”) (“Borealis”), and 1000397116 Ontario Inc., a corporation incorporated under the Business Corporations Act (Ontario) (the “OBCA”) and a wholly-owned subsidiary of Oxus (“Newco”).

 

This opinion is being delivered in connection with the Registration Statement on Form S-4 (the “Registration Statement”) relating to the registration of certain securities to be issued in connection with the Business Combination, filed by Oxus with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement relates to the registration of certain common shares (the “New Borealis Common Shares”) and warrants by the entity (“New Borealis”) to be formed pursuant to the amalgamation of Borealis and Oxus (the “New Oxus Amalgamation”), following the continuation of Oxus under the OBCA and (i) the conversion of all outstanding Borealis Convertible Notes (as defined in the Plan of Arrangement) and Borealis Options (as defined in the Plan of Arrangement) into common shares of Borealis, and (ii) the amalgamation of Newco and Borealis (the “Borealis Amalgamation”), pursuant to the terms of a Plan of Arrangement under section 192 of the CBCA and section 182 of the OBCA, attached as Annex C to the Registration Statement (as may be amended, supplemented or otherwise modified from time to time, the “Plan of Arrangement”).

 

 

Any terms used in this opinion that are not otherwise defined herein have the meanings ascribed to them in the Registration Statement or the Plan of Arrangement, as the context requires.

 

We, as your counsel, have made such investigations and examined originals or copies, certified or otherwise identified to our satisfaction, of such certificates of public officials and of such other certificates, documents, agreements and records as we have considered necessary or relevant for the purposes of rendering this opinion, including:

 

a)

Amendment No. 2 to the Registration Statement dated November 13, 2023 (including the exhibits thereto);

 

b)

the Business Combination Agreement (including all amendments thereto), including the form of New SPAC Articles of Continuance and New SPAC Bylaws attached thereto as exhibits;

 

c)

the Plan of Arrangement (including all amendments thereto);

 

d)

resolutions of the board of directors of Borealis approving, among other things, the Business Combination Agreement and the transactions contemplated thereby, the Plan of Arrangement and the transactions contemplated thereby and the performance of Borealis’ obligations under the Business Combination Agreement and the Plan of Arrangement;

 

e)

resolutions of the sole director of Newco approving, among other things, the Business Combination Agreement and the transactions contemplated thereby, the Plan of Arrangement and the transactions contemplated thereby and the performance of Newco’s obligations under the Business Combination Agreement and the Plan of Arrangement;

 

f)

resolutions of the sole shareholder of Newco approving, among other things, the Business Combination Agreement and the transactions contemplated thereby, the Plan of Arrangement and the transactions contemplated thereby and the performance of Newco’s obligations under the Business Combination Agreement and the Plan of Arrangement;

 

g)

resolutions of the board of directors of Oxus approving, among other things, the Business Combination Agreement and the transactions contemplated thereby, the Plan of Arrangement and the transactions contemplated thereby and the performance of Oxus’ obligations under the Business Combination Agreement and the Plan of Arrangement;

 

h)

the form of special resolution of the shareholders of Borealis in respect of the Plan of Arrangement to be considered at the special meeting of the shareholders of Borealis attached as Exhibit A to the Business Combination Agreement;

 

i)

the form of special resolution of the shareholders of Oxus in respect of the Plan of Arrangement to be considered at the special meeting of shareholders of Oxus; and

 

j)

a certificate of compliance for Borealis issued under the federal laws of Canada on January 4, 2024.

 

 

In rendering our opinion, we have, without independent inquiry or verification, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all signatures on documents we reviewed are genuine, (iv) all natural persons executing documents had and have the legal capacity to do so, (v) all statements in certificates of public officials, directors and officers, as the case may be, that we reviewed were and are accurate, and (vi) all representations made by Oxus as to matters of fact in the documents that we reviewed and are accurate.

 

Further, we have assumed that:

 

a)

the Registration Statement will become effective under the Securities Act and such effectiveness shall not be terminated or rescinded;

 

b)

the proxy statement of Oxus included in the Registration Statement (the “Proxy Statement”) will be delivered by Oxus to its shareholders in accordance with applicable securities laws;

 

c)

the extraordinary general Meeting of Oxus shareholders is held as set forth in the Proxy Statement and the Registration Statement, and at such Meeting the requisite approval of the Business Combination Proposal and related proposals (including the Continuance Proposal, the Governing Documents Proposal, the Share Issuance Proposal and the Incentive Plan Proposal) is duly obtained;

 

d)

an Interim Order of the Ontario Superior Court of Justice (the “Court”) providing for certain matters related to the proposed special meeting (the “Borealis Meeting”) of the holders of common shares of Borealis (the “Borealis Shareholders”) and the Plan of Arrangement is granted in the manner contemplated by the Business Combination Agreement;

 

e)

an information circular and proxy statement for the Borealis Meeting at which among other matters, the Plan of Arrangement will be considered (the “Information Circular”) is approved by the board of directors of Borealis and complies with all applicable laws and is mailed to Borealis Shareholders in accordance with the OBCA and the Interim Order;

 

f)

the Borealis Meeting is held as set forth in the Information Circular and the Interim Order and at such Borealis Meeting the requisite approval of the Borealis Shareholders of the Plan of Arrangement is obtained in accordance with the terms of the Interim Order;

 

g)

a Final Order of the Court approving the Plan of Arrangement is granted prior to the Arrangement Effective Time;

 

h)

there are no material amendments to the Business Combination Agreement, the Plan of Arrangement, or other relevant documents after the date hereof and prior to the Arrangement Effective Time;

 

 

i)

the articles of continuance of Oxus under the OBCA are filed prior to the New Oxus Amalgamation and the Arrangement Effective Time, and New Oxus is a corporation validly existing under the OBCA at the Arrangement Effective Time;

 

j)

articles of amalgamation and articles of arrangement, as applicable, required to be filed to give effect to the Plan of Arrangement are in the form prescribed under the OBCA and the CBCA, as applicable, and are filed at the applicable times set forth in the Plan of Arrangement and, upon such filing and issuance of proof of filing to be issued by the Director, the Plan of Arrangement will become effective at the Arrangement Effective Time; and

 

k)

at or prior to the issuance of the New Borealis Common Shares, all corporate or other action required to be taken to duly authorize such proposed issuance and any related documentation shall remain in full force and effect.

 

We are qualified to practice law in the Province of Ontario and we do not express any opinion on any laws other than the laws of the Province of Ontario and the laws of Canada applicable therein, in each case in effect on the date hereof.

 

Based upon and relying on the foregoing, and subject to the assumptions and qualifications expressed herein, we are of the opinion that upon issuance in accordance with the terms and conditions of the Plan of Arrangement, the New Borealis Common Shares will be duly authorized, validly issued, fully paid and non-assessable.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. By the giving of such consent, we do not admit that we are experts with respect to any part of the Registration Statement, or otherwise, within the meaning of the rules and regulations of the SEC. This opinion is furnished for the sole benefit of Oxus and may not be relied upon by any other person or entity or quoted from or referred to in any documents other than the Registration Statement as provided for herein without our prior written consent.

 

This opinion is being delivered prior to the consummation of the Business Combination and therefore is prospective and dependent on future events. This opinion is expressed as of the date hereof, and we are under no obligation to supplement or revise our opinion to reflect any legal developments, any factual matters arising subsequent to the date hereof, or the impact of any information, document, certificate, record, statement, representation, covenant, or assumption relied upon herein that becomes incorrect or untrue.

 

Yours very truly,

 

/s/ TORYS LLP

 

TORYS LLP

 

 

Exhibit 8.1

 

 

January 5, 2024

 

Oxus Acquisition Corp.

300/26 Dostyk Avenue

Almaty, Kazakhstan 050020

 

Dear Sirs and Mesdames:

 

We have acted as counsel to Oxus Acquisition Corp., a Cayman Islands exempted company (“Oxus”), in connection with: (i) the transactions (the “Business Combination”) contemplated by the Business Combination Agreement, dated February 23, 2023 (as may be amended, supplemented, or otherwise modified from time to time, the “Business Combination Agreement”), that Oxus has entered into with Borealis Foods Inc., a corporation incorporated under the Canada Business Corporations Act (“Borealis”), and 1000397116 Ontario Inc., an Ontario corporation and a wholly-owned subsidiary of Oxus (“Newco”) and (ii) the Registration Statement on Form S-4 (the “Registration Statement”), relating to the registration by Oxus of its securities to be issued in connection with the Business Combination, filed by Oxus with the Securities and Exchange Commission (the “SEC”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations of the SEC promulgated thereunder. Capitalized terms used but not defined herein have the respective meanings ascribed to them in the Registration Statement.

 

In connection with the Registration Statement, you have requested our opinion as to certain Canadian federal income tax matters set forth in the section entitled “Material Canadian Federal Income Tax Considerations” (the “Canadian Tax Disclosure”). In providing our opinion, we have examined the Business Combination Agreement, the Registration Statement, the Plan of Arrangement attached as an exhibit to the Business Combination Agreement, and such other documents, records, and papers as we have deemed necessary or appropriate to give the opinion set forth herein. Further, in providing our opinion, we have made certain reasonable assumptions (without any independent investigation or review thereof), including that:

 

i.

the Business Combination will be consummated in accordance with the provisions of the Business Combination Agreement and the other agreements referred to therein and as described in the Registration Statement (and no covenants or conditions described therein and affecting this opinion will be waived or modified), and the Business Combination will have effect under applicable corporate law as described in the Business Combination Agreement and the other agreements referred to therein;

 

ii.

all of the information, facts, statements, representations, covenants, and assumptions set forth in the Business Combination Agreement, the Registration Statement, the other agreements entered into in connection with the Business Combination Agreement and the Registration Statement and other documents referenced therein, the registration statement filed in connection with Oxus’ initial public offering, and Oxus’ other public filings (collectively, the “Documents”) are true, correct, and complete in all respects and will remain true, correct, and complete in all respects at all times up to and including the completion of the Business Combination, and no actions have been taken or will be taken that are inconsistent with the factual statements, descriptions, or representations therein or that will make any such factual statements, descriptions, or representations untrue, incomplete, or incorrect through the consummation of the Business Combination;

 

iii.

any representations and statements made in any of the Documents qualified by knowledge, belief, or materiality (or comparable qualification) are true, complete, and correct in all respects and will continue to be true, complete, and correct in all respects at all times up to and including the completion of the Business Combination, in each case, without such qualification;

 

 

iv.

the Documents represent the entire understanding of the parties with respect to the Business Combination, there are no other written or oral agreements regarding the Business Combination other than the Business Combination Agreement and the other agreements referred to therein, and none of the material terms and conditions thereof have been or will be waived or modified;

 

v.

all documents, records, and papers submitted to us as originals (including signatures thereto) are authentic; all documents, records, and papers submitted to us as copies conform to the originals; all relevant documents, records, and papers have been or will be, as applicable, duly executed in the form presented to us; and all parties to such documents, records, and papers had or will have, as applicable, the requisite corporate powers and authority to enter into such documents, records, and papers and to undertake and consummate the Business Combination; and

 

vi.

all applicable reporting requirements have been or will be satisfied.

 

If any of the assumptions described above are untrue for any reason, our opinion may be adversely affected.

 

Our opinion is based upon the provisions of the Income Tax Act (Canada) (“Tax Act”) in force as of the date hereof, all specific proposals to amend the Tax Act that have been publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof (the “Proposed Amendments”), the Canada-United States Tax Convention (1980), and counsel’s understanding of the current administrative policies of the Canada Revenue Agency made publicly available prior to the date hereof. The Canadian Tax Disclosure assumes the Proposed Amendments will be enacted in the form proposed, however, no assurance can be given that the Proposed Amendments will be enacted in the form proposed, if at all. The Canadian Tax Disclosure is not exhaustive of all possible Canadian federal income tax considerations with respect to the ownership and disposition of New Borealis Securities and, except for the Proposed Amendments, does not take into account any changes in the law or administrative policy or assessing practice, whether by legislative, governmental or judicial action, nor does it take into account other federal or any provincial, territorial or foreign tax considerations, which may differ significantly from those discussed therein.

 

Based upon and subject to the foregoing, we confirm that the statements set forth in the Registration Statement under the heading “Material Canadian Federal Income Tax Considerations”, to the extent that they set forth the material Canadian federal income tax consequences generally applicable to a Holder (as defined and limited in the Canadian Tax Disclosure) with respect to the ownership and disposition of New Borealis Securities, except to the extent stated otherwise therein, are our opinion, subject to the assumptions, qualifications, and limitations stated herein and therein.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. By the giving of such consent, we do not admit that we are experts with respect to any part of the Registration Statement, or otherwise, within the meaning of the rules and regulations of the SEC. This opinion is furnished for the sole benefit of Oxus and may not be relied upon by any other person or entity or quoted from or referred to in any documents other than the Registration Statement as provided for herein without our prior written consent.

 

Yours very truly,

 

/s/ TORYS LLP

 

TORYS LLP

 

 

Exhibit 8.2

 

 

January 5, 2024

Oxus Acquisition Corp.

300/26 Dostyk Avenue

Almaty, Kazakhstan 050020

 

Ladies and Gentlemen:

 

We have acted as counsel to Oxus Acquisition Corp., a Cayman Islands exempted company (“Oxus”), in connection with the transactions (the “Business Combination”) contemplated by the Business Combination Agreement, dated February 23, 2023 (as may be amended, supplemented, or otherwise modified from time to time, the “Business Combination Agreement”), that Oxus has entered into with Borealis Foods Inc., a corporation incorporated under the Canada Business Corporations Act (“Borealis”), and 1000397116 Ontario Inc., a corporation incorporated under the Business Corporations Act (Ontario) and a wholly-owned subsidiary of Oxus.

 

Oxus has requested that we render our opinion as to certain tax matters relating to the Business Combination in connection with the Registration Statement on Form S-4 (the “Registration Statement”), relating to the registration by Oxus of its securities to be issued in connection with the Business Combination, filed by Oxus with the Securities and Exchange Commission (the “SEC”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”) and the rules and regulations of the SEC promulgated thereunder. Capitalized terms used but not defined herein have the respective meanings ascribed to them in the Registration Statement.

 

In rendering our opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such agreements and other documents as we have deemed relevant and necessary and we have made such investigations of law as we have deemed appropriate as a basis for the opinion expressed below. In our examination, we have assumed, without independent verification, (i) the authenticity of original documents, (ii) the accuracy of copies and the genuineness of signatures, (iii) that the execution and delivery by each party to a document and the performance by such party of its obligations thereunder have been authorized by all necessary measures and do not violate or result in a breach of or default under such party’s certificate or instrument of formation and by-laws or the laws of such party’s jurisdiction of organization, (iv) that each agreement represents the entire agreement between the parties with respect to the subject matter thereof, (v) that the parties to each agreement have complied, and will comply, with all of their respective covenants, agreements and undertakings contained therein, (vi) that the transactions provided for by each agreement were and will be carried out in accordance with their terms, and (vii) that all factual representations, warranties and statements made in the Business Combination Agreement, the Ancillary Agreements and the Registration Statement are true, correct and complete and will remain true, correct and complete at all times up to the Closing, in each case without regard to any qualification as to knowledge, belief, materiality, or otherwise. In rendering our opinion, we have made no independent investigation of the facts referred to herein and have relied for the purpose of rendering this opinion exclusively upon those facts that have been provided to us by you and your agents, which we assume have been, and will continue to be, true.

 

 

January 5, 2024

Page 2

 

The opinion set forth below is based on the Internal Revenue Code of 1986, as amended, administrative rulings, judicial decisions, Treasury regulations and other applicable authorities, all as in effect on the effective date of the Registration Statement. The statutory provisions, regulations, and interpretations upon which our opinion is based are subject to change, and such changes could apply retroactively. Any change in law or the facts regarding the Business Combination or any of the transactions related thereto, or any inaccuracy in the facts or assumptions upon which we relied, could affect the continuing validity of the opinion set forth below. We assume no responsibility to inform you of any such changes or inaccuracy that may occur or come to our attention.

 

Based upon and subject to the foregoing, and subject to the limitations and qualifications set forth herein and in the Registration Statement, the discussion set forth in the Registration Statement under the caption “Material U.S. Federal Income Tax Considerations — Material U.S. Federal Income Tax Considerations to U.S. Holders,” insofar as it expresses conclusions as to the application of United States federal income tax law, is our opinion as to the material United States federal income tax consequences applicable to a U.S. Holder of Class A Shares and Public Warrants (other than Sponsor, Oxus’ directors or any of their respective affiliates), regarding the consequences of (i) electing to have their shares redeemed for cash pursuant to a Redemption, (ii) the Business Combination, and/or (iii) the ownership and disposition of New Borealis Common Shares and New Borealis Warrants after the Business Combination.

 

We hereby consent to use of this opinion as an exhibit to the Registration Statement and to the use of our name therein. In giving this consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC thereunder, nor do we admit that we are experts with respect to any part of the Registration Statement within the meaning of the term “experts” as used in the Securities Act or the rules and regulations of the SEC thereunder.

 

This opinion is being delivered prior to the consummation of the Business Combination and therefore is prospective and dependent on future events. This opinion is expressed as of the date hereof, and we are under no obligation to supplement or revise our opinion to reflect any legal developments, any factual matters arising subsequent to the date hereof, or the impact of any information, document, certificate, record, statement, representation, covenant, or assumption relied upon herein that becomes incorrect or untrue.

 

We express our opinion herein only as to those matters specifically set forth above and no opinion should be inferred as to the tax consequences of the Business Combination under any state, local or foreign law, or with respect to other areas of United States federal taxation. We do not express any opinion herein concerning any law other than the federal income tax law of the United States.

 

	Very truly yours,
	/s/ Greenberg Traurig, P.A.
	GREENBERG TRAURIG, P.A.

 

 

 

Exhibit 10.42

 

FORM OF BOARD NOMINATION AGREEMENT

 

This Board Nomination Agreement (this “Agreement”) made as of the ____ day of __________, 2024.

 

BETWEEN:

 

BOREALIS FOODS INC., a corporation amalgamated under the laws of the Province of Ontario (the “Corporation”)

 

- and -

 

BELPHAR LTD., a corporation incorporated under the laws of the British Virgin Islands (the “Investor”)

 

RECITALS:

 

A.

On February 8, 2023, Borealis Foods Inc. (a corporation incorporated under the Canada Business Corporations Act, which subsequently amalgamated with other corporations pursuant to the amalgamations described in recital B to form the Corporation, “Old Borealis”) and the Investor entered into a note purchase agreement (the “Purchase Agreement”), pursuant to which, among other things, the Corporation agreed to issue convertible promissory notes in the aggregate principal amount of USD$20,000,000 (the “Convertible Notes”), on the terms and conditions set forth in the Purchase Agreement.

 

B.

On February 23, 2023, Oxus Acquisition Corp. (“Oxus”), 1000397116 Ontario Inc. (“Newco”) and Old Borealis entered into a business combination agreement (the “Business Combination Agreement”) that contemplates, among other things, an arrangement of Old Borealis under Section 182 of the Business Corporations Act (Ontario) (the “OBCA”), pursuant to which, among other things, Newco and Old Borealis will amalgamate (Newco and Old Borealis as amalgamated, “Amalco”) and, immediately thereafter, Oxus and Amalco will amalgamate, with the Corporation resulting from such amalgamation (the “Business Combination Transaction”).

 

C.

Pursuant to Section 4.1(h) of the Purchase Agreement, the Investor has certain rights with respect to the designation of one individual for election to the Board (as defined herein).

 

D.

On the date of this Agreement, immediately following the New SPAC Amalgamation (as defined in the Business Combination Agreement) and subject to the terms of the Business Combination Agreement, the Plan of Arrangement (as defined in the Business Combination Agreement) and the Purchase Agreement, the Convertible Notes converted into [n] common shares of the Corporation (“Common Shares”).

 

E.

Immediately following the Business Combination Transaction, the Board consisted of Reza Soltanzadeh and Barthelemy Helg (designated by Old Borealis), Kanat Mynzhanov and Shiv Vikram Khemka (designated by Oxus Capital Pte. Ltd.), Shukhrat Ibragimov (designated by the Investor) and Steven Oyer and Ertharin Cousin.

 

 

NOW THEREFORE, in consideration of the mutual covenants in this Agreement and the Business Combination Agreement and for other consideration (the receipt and sufficiency of which are hereby acknowledged), the Parties agree as follows:

 

Article 1
INTERPRETATION

 

1.1

Definitions

 

Unless otherwise defined below, all capitalized terms used herein shall have the meanings ascribed to them in the Business Combination Agreement. In this Agreement:

 

“Agreement”, “this Agreement”, “the Agreement”, “hereof”, “herein”, “hereto”, “hereby”, “hereunder” and similar expressions mean this Agreement, including all instruments supplementing, amending or confirming this Agreement. All references to “Articles” or “Sections” refer to the specified Article or Section of this Agreement;

 

“Board” means the board of directors of the Corporation;

 

“Business Day” means any day which is not a Saturday, a Sunday, statutory holiday or a day on which the principal commercial banks located in Toronto, Ontario and New York, New York are not open for business during normal banking hours;

 

“Canadian Securities Laws” means the applicable securities legislation of each of the provinces and territories of Canada and all regulations and rules thereunder and the blanket rulings, orders, policy statements, instruments and written interpretation issued by the applicable securities regulators;

 

“Confidential Information” means, any and all information, whether written or oral, visual, electronic or any form or medium, whether concerning or relating to the Corporation, its subsidiaries or its and their respective officers and employees (whether prepared by or on behalf of the Corporation or otherwise, and irrespective of the form or means of communication) that is furnished to the Investor or its Representatives by or on behalf of the Corporation at any time, whether before, upon or after the execution of this Agreement, including all oral and written information relating to financial statements, projections, evaluations, plans, strategy, programs, customers, suppliers, facilities, equipment and other assets, products, processes, manufacturing, marketing, research and development, trade secrets, know-how, patent applications that have not been published, technology and intellectual property of the Corporation and its subsidiaries, whether or not it is expressly identified as “confidential”. “Confidential Information” shall be deemed to include the portion of all notes, analyses, studies, interpretations, memoranda and other documents, material or reports (in any form or medium) prepared by the Investor and its Representatives that contain, reflect or are based upon, in whole or part, the information furnished to or on behalf of the Corporation; provided that “Confidential Information” shall exclude any information that: (i) was generally available to the public prior to the date hereof; (ii) becomes generally available to the public (through no violation hereof by the Investor or its affiliates or Representatives); (iii) was, as evidenced by written records of the Investor or its affiliates or Representatives, within the Investor’s or its affiliates’ or Representatives’ possession prior to it being furnished to the Investor or its affiliates or Representatives by or on behalf of the Corporation, provided that such information is not, to the Investor’s knowledge, subject to any contractual, legal or fiduciary obligations of confidentiality to the Corporation that would prevent its use or disclosure; (iv) is lawfully obtained by the Investor or its affiliates or Representatives from a third party who, to the Investor’s knowledge, at the time of disclosure, is not prohibited by an obligation to the Corporation from disclosing such information on a non-confidential basis to the Investor or its affiliates or Representatives; (v) was independently developed, as evidenced by the records of the Investor or its affiliates or Representatives, by the Investor or its affiliates or Representatives, or on the Investor’s behalf, without use of or reference to the Confidential Information, and which can be substantiated by written evidence; or (vi) is expressly permitted in writing by the Corporation to be disclosed to third parties on a non-confidential basis.

 

 

“Independent Director” means a director who is independent within the meaning of Nasdaq Rules 5605(a)(2) and 5605(c)(2);

 

“Nomination Right Ownership Requirement” means, as at any date, that the Investor and its affiliates beneficially own or control at least 8% of the issued and outstanding Common Shares as at such date;

 

“Order” means any judgment, decision, decree, injunction, ruling, writ, assessment or order of any governmental entity that is binding on a Person or its property under applicable law;

 

“Parties” means the parties to this Agreement and “Party” means any of them;

 

“Person” means an individual, corporation, partnership, limited partnership, limited liability company, syndicate, person (including, without limitation, a “person” as defined in Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political subdivision, agency or instrumentality of a government;

 

“Representatives” means, in respect of any Person, the officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives of such Person, and in the case of the Investor and its affiliates, includes any Investor Nominee (as defined herein);

 

“Securities Laws” means, collectively, Canadian Securities Laws and U.S. Securities Laws;

 

“Transfer” includes any direct or indirect transfer, sale, assignment, gift, pledge, encumbrance, hypothecation, mortgage, granting of any option, right or warrant to purchase (including any short sale, put option or call option) or other disposition; and

 

“U.S. Securities Laws” means the Exchange Act and the Securities Act.

 

Article 2
NOMINATION RIGHTS

 

2.1

Acknowledgement

 

The Parties hereby acknowledge and agree that this Agreement sets out in full the rights contemplated in Section 4.1(h) of the Purchase Agreement and that this Agreement shall be deemed to supersede, and the rights set out herein shall be deemed to satisfy in full the rights to which the Investor is entitled under, Section 4.1(h) of the Purchase Agreement.

 

 

2.2

Board of Director Nominees

 

(a)

As of the date of this Agreement, the Board consists of seven (7) directors. Subject to Section ‎2.4, the Investor shall be entitled to designate one nominee (an “Investor Nominee”) for election to the Board.

 

(b)

Each Investor Nominee must be an individual that meets the qualification requirements to act as a director in accordance with Section ‎2.3. The parties acknowledge that the initial Investor Nominee shall be Shukhrat Ibragimov, who has been determined by the Board to satisfy the requirements set forth in Section ‎2.3 and has been appointed to the Board as of the date hereof.

 

(c)

The Corporation shall (i) recommend and reflect such recommendation in any management information circular relating to any meeting where directors of the Corporation are elected (or submit to shareholders by written consent, if applicable) that the shareholders of the Corporation vote to elect the Investor Nominee to the Board for a term of office expiring at the closing of the subsequent annual meeting of the shareholders of the Corporation; and (ii) solicit proxies in favour of and otherwise support his or her election, each in a manner no less favourable than the manner in which the Corporation supports its other nominees for election to the Board. For any meeting of the Corporation’s shareholders (or written consent in lieu of a meeting) for the election of members to the Board, the Corporation shall not nominate, in the aggregate, a number of nominees greater than the number of members of the Board.

 

(d)

The Investor shall give written notice of its nomination to the secretary of the Corporation. The nomination notice must be received by the Corporation (i) in the case of the annual meeting (or annual and special meeting), not less than 30 days nor more than 65 days before the date of such meeting. No less than 10 Business Days prior to designating an individual as the Investor Nominee, the Investor shall discuss the identity of the proposed Investor Nominee with the Corporation. The Nominating and Governance Committee of the Board shall have 30 days to review the candidate proposed by the Investor and conduct appropriate inquiries into the background and qualifications of any such candidate. Following such discussion, but prior to the later of (i) 45 days prior to any meeting of shareholders at which directors of the Corporation are to be elected and (ii) 10 days after being notified of the record date for such a meeting, the Investor shall advise the Corporation of the identity of the Investor Nominee that satisfies the requirements of Section ‎2.3. If the Investor does not advise the Corporation of the identity of the Investor Nominee prior to such deadline, then the Investor will be deemed to have nominated the incumbent Investor Nominee unless the Investor notifies the Corporation in writing that it does not wish to nominate the Investor Nominee for such election.

 

(e)

In the event that the Investor Nominee is not duly elected to the Board, the Nominating and Governance Committee of the Board finds the Investor Nominee is not suitable because they do not meet the qualification requirements in Section ‎2.3 or the Investor Nominee shall cease to serve as a director of the Corporation, whether due to the Investor Nominee’s death, disability, resignation or removal (including failure to be elected by the Corporation’s shareholders or being required to resign in accordance with any applicable majority voting policy), the Corporation shall cause the Board to appoint an Investor Nominee designated by the Investor to fill the vacancy so created; provided that the Investor remains eligible to designate an Investor Nominee in accordance with Section ‎2.2(a) and that the replacement Investor Nominee meets the qualification requirements in Section ‎2.3.

 

 

(f)

The Investor Nominee shall be compensated for the Investor Nominee’s service on the Board and any committee thereof consistent with the Corporation’s policies for director compensation; provided that any full-time employee of the Investor or any of its affiliates who serves as an Investor Nominee shall not be entitled to any salary or compensation from the Corporation for the Investor Nominee’s services. The Investor Nominee shall be reimbursed for all reasonable expenses related to such service on the Board consistent with the Corporation’s policies for director reimbursement.

 

(g)

It is acknowledged by the Investor that the Investor Nominee shall be required to comply with all policies of the Corporation that are applicable to members of the Board.

 

(h)

The Corporation shall enter into an indemnification agreement with the Investor Nominee in a form substantially similar to the Corporation’s form of director indemnification agreement and provide the Investor Nominee with director and officer insurance to the same extent it indemnifies and provides insurance for the other members of the Board pursuant to the constating documents of the Corporation, applicable laws or otherwise.

 

(i)

Notwithstanding anything herein to the contrary, a failure by the Investor to designate the Investor Nominee that it is entitled to designate pursuant to this Section ‎2.1 at any time shall not restrict the ability of the Investor to designate the Investor Nominee at any time in the future. Subject to Section ‎2.2(d), the Corporation and the Board shall use commercially reasonable efforts to take all necessary corporate action, to the fullest extent permitted by law, to promptly: (i) enable the Investor to designate and effect the election or appointment of the Investor Nominee; and (ii) appoint the Investor Nominee to fill any available vacancies or, to the extent not so permitted, nominate the Investor Nominee for election to the Board at the next meeting of shareholders.

 

2.3

Qualifications of Investor Nominee

 

(a)

Notwithstanding anything to the contrary in this Agreement, the Investor Nominee shall, at all times while serving on the Board:

 

(i)

meet the qualification requirements to serve as a director under the OBCA, applicable Securities Laws and/or the applicable rules of any stock exchange on which the Common Shares are then listed or a securities regulatory authority having jurisdiction over the Corporation;

 

(ii)

be an Independent Director pursuant to the requirements of the Nasdaq Stock Market and any applicable requirements of the Securities and Exchange Commission;

 

 

(iii)

be accomplished in his or her field and have a reputation, both personal and professional, that is consistent with the image and reputation of the Corporation;

 

(iv)

have the ability to read and understand basic financial statements;

 

(v)

have relevant education, experience and expertise and would be able to provide insights and practical wisdom based upon that education, experience and expertise;

 

(vi)

have knowledge of the Corporation and issues affecting the Corporation;

 

(vii)

fully understand, or have the capacity to fully understand, the legal responsibilities of a director and the governance processes of a public company;

 

(viii)

be of high moral and ethical character and be willing to apply sound, objective and independent business judgment, and to assume broad fiduciary responsibility; and

 

(ix)

substantially satisfy the recommendations for director nominees in Institutional Shareholder Services’ and Glass Lewis’ proxy voting guidelines applicable to the Corporation in effect from time to time, applied to the Investor Nominee in a manner which is consistent with their application to other members of the Board.

 

Notwithstanding the foregoing, an Investor Nominee will not be considered to not be (or no longer be, as applicable) an Independent Director because he or she is an individual whose immediate family member is, or has been, an executive officer of the Corporation.

 

(b)

No Investor Nominee may be a person (a “Disqualified Person”) who: (i) has been convicted of a felony or a crime involving moral turpitude; (ii) is not acceptable to any stock exchange on which the Common Shares are then listed or a securities regulatory authority having jurisdiction over the Corporation; or (iii) has violated the Corporation’s written policies, in effect from time to time.

 

(c)

Notwithstanding anything to the contrary in this Agreement, if at any time any Investor Nominee ceases to satisfy the requirements set forth in Section ‎2.3(a) or becomes a Disqualified Person, the Investor Nominee shall immediately tender his or her resignation from the Board, which the Board may accept or reject in its sole discretion.

 

2.4

Expiry of Board Nomination Right

 

The provisions of this ‎Article 2 (other than this Section ‎2.4) shall terminate and be of no further force or effect on the first day following the date on which the Nomination Right Ownership Requirement is no longer satisfied.

 

 

Article 3
CONFIDENTIALITY

 

3.1

Confidentiality

 

(a)

The Investor shall, and shall cause its affiliates and Representatives to, keep confidential and shall treat confidentially all Confidential Information. The Investor agrees that it shall, and shall cause its affiliates and Representatives to, not disclose any Confidential Information nor use any Confidential Information other than for the purposes of monitoring, administering or managing the Investor’s investment in the Corporation; provided that the Investor may, subject to compliance with the terms hereof, disclose the Confidential Information to its affiliates and Representatives (including any Investor Nominee) who have a need to know the Confidential Information.

 

(b)

As a condition to the furnishing of Confidential Information to an affiliate or Representative of the Investor, the Investor shall, prior to furnishing such Confidential Information, advise such affiliate or Representative of the confidential nature, and restriction on use, of the information disclosed and that such affiliate or Representative is subject to the applicable Securities Laws in respect of the Confidential Information. The Investor agrees that it shall be fully responsible for any breach of this Section ‎3.1 by such affiliates or Representatives, or to any other person to whom it has provided such Confidential Information, as if such persons are an original party hereto. In addition, the Investor shall take all commercially reasonable steps, including the obtaining of suitable undertakings, to ensure that Confidential Information is not disclosed to any other Person or used in a manner contrary to this Agreement, and, to the extent reasonably practicable, promptly notify the Corporation of any unauthorized disclosure of Confidential Information or breach of this Agreement known to the Investor.

 

(c)

The Investor hereby acknowledges that Securities Laws impose restrictions on its ability to purchase, sell, trade or otherwise Transfer, or recommend or encourage another person to purchase, sell, trade or otherwise Transfer, securities of the Corporation until such time as material, non-public information received by the Investor becomes publicly available or is no longer material, and the Investor further hereby agrees to comply with all such restrictions and to inform those of its affiliates and Representatives provided with any Confidential Information of such restrictions.

 

(d)

Nothing in this Section ‎3.1 grants or is to be construed as granting the Investor any title, ownership, license or other right of interest with respect to the Confidential Information. The Corporation retains all right, title and interest in and to the Confidential Information.

 

 

(e)

If the Investor or any of its affiliates or Representatives is requested or required to disclose any Confidential Information in connection with any legal or administrative proceeding or investigation (including pursuant to the terms of a subpoena or order issued by a court of competent jurisdiction or a regulatory or self-regulatory body), or is requested or required by law to disclose any Confidential Information, the Investor or such affiliate or Representative, as applicable, shall provide the Corporation with prompt written notice of any such request or requirement, to the extent reasonably practicable and not prohibited by law, so that the Corporation has an opportunity to seek a protective Order or other appropriate remedy or waive compliance with the provisions of this Section ‎3.1, in each case, at the Corporation’s cost and expense. If the Corporation waives compliance with the provisions of this Section ‎3.1 with respect to a specific request or requirement, the Investor or such affiliate or Representative, as applicable, shall disclose only that portion of the Confidential Information that is covered by such waiver and which is necessary to disclose in order to comply with such request or requirement. If (in the absence of a waiver by the Corporation) the Corporation has not secured a protective Order or other appropriate remedy, and the Investor or such affiliate or Representative is nonetheless required by law to disclose any Confidential Information, the Investor or such affiliate or Representative, as applicable, may, without liability hereunder, disclose only that portion of the Confidential Information that is necessary to be disclosed.

 

(f)

At any time following the Nomination Right Ownership Requirement no longer being satisfied, upon written request by the Corporation, the Investor shall, and shall cause its affiliates and Representatives to, at the option of the Investor, promptly return to the Corporation or promptly destroy all Confidential Information (including, electronic copies) supplied by the Corporation to and in the possession of the Investor or its affiliates or Representatives, as applicable, without retaining any copy thereof. Notwithstanding the foregoing, (i) the Investor and its affiliates and Representatives may retain Confidential Information as required to comply with applicable laws, and (ii) neither the Investor nor its affiliates or Representatives shall be required to purge their respective computer or electronic archives (including routine computer system backup tapes, disks or other backup storage devices).

 

(g)

Notwithstanding the return or destruction of the Confidential Information as contemplated hereby or the termination of this Agreement, the Investor will continue to be bound by the terms of this Section ‎3.1 with respect thereto, including all obligations of confidentiality and restrictions on use.

 

(i)

The Investor acknowledges that all of the Confidential Information is owned solely by the Corporation (or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain. Therefore, in the event of any breach of this Agreement, the Corporation is entitled to seek all forms of equitable relief (including an injunction and order for specific performance), in addition to all other remedies available at law or in equity.

 

 

Article 4
TERMINATION

 

4.1

Termination

 

The term of this Agreement shall commence on the date of this Agreement and shall continue in force until such time that the Investor no longer satisfies the Nomination Right Ownership Requirement (the “Termination Date”); provided that the provisions of Section ‎3.1 shall terminate two (2) years after the Termination Date.

 

Article 5
GENERAL

 

5.1

Public Filing

 

The Parties hereby consent to the public filing of this Agreement if any Party is required to do so by applicable law or by applicable regulations or policies of any regulatory agency of competent jurisdiction or any stock exchange.

 

5.2

Further Assurances

 

Each Party shall provide such further documents or instruments required by any other Party as may be reasonably necessary or desirable to effect the purpose of this Agreement and carry out its provisions.

 

5.3

Assignment and Enurement

 

Neither this Agreement, nor any benefits or duties accruing under this Agreement, shall be assignable by any Party. Subject to the foregoing, this Agreement shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.

 

5.4

Entire Agreement

 

This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions relating to the subject matter hereof. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties with respect thereto except as expressly set forth in this Agreement. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Corporation and the Investor.

 

5.5

Waiver

 

Except as otherwise expressly set out herein, no waiver of any provision of this Agreement shall be binding unless it is in writing. No indulgence or forbearance by a Party shall constitute a waiver of such Party’s right to insist on performance in full and in a timely manner of all covenants in this Agreement. Waiver of any provision shall not be deemed to waive the same provision thereafter, or any other provision of this Agreement, at any other time.

 

 

5.6

Notices

 

All notices, requests, demands or other communications required or permitted to be given by one Party to another under this Agreement shall be given in writing and delivered by personal delivery or delivery by recognized commercial courier, sent by scanned e-mail or delivered by registered mail or postage prepaid, addressed as follows:

 

(a)

to the Corporation:

 

Borealis Foods Inc.

1540 Cornwall Rd., Suite 104

Oakville, Ontario L6J 7W5

 

Attention:

Pouneh Rahimi

E-mail:

prahimi@borealisfoods.ca

 

with a copy (which shall not constitute notice) to:

 

Bennett Jones LLP

4500, 855-2nd Street SW

Calgary, Alberta T2P 4K7

 

Attention:

John Mercury; James McClary

E-mail:

MercuryJ@bennettjones.com; McClaryJ@bennettjones.com

 

(b)

to the Investor:

 

Belphar Ltd.
3rd Floor, Yamraj Building, Market Square P.O. Box 3175

Road Town, Tortola British Virgin Islands

 

Attention:

Shukhrat Ibragimov, Director

E-mail:

[n]

 

with a copy (which shall not constitute notice) to:

 

[n]

 

Attention:

[n]

E-mail:

[n]

 

or at such other address or e-mail of which the addressee may from time to time notify the addressor. Any notice delivered by personal delivery or by courier to the Party to whom it is addressed as provided above shall be deemed to have been given and received on the day it is so delivered at such address. If such day is not a Business Day, or if the notice is received after 4:00 p.m. (addressee’s local time), then the notice shall be deemed to have been given and received on the next Business Day. Any notice transmitted by e-mail shall be deemed to have been given and received on the day in which transmission is confirmed. If such day is not a Business Day or if the transmission of the e-mail is received after 4:00 p.m. (addressee’s local time), then the notice shall be deemed to have been given and received on the first Business Day after its transmission.

 

5.7

Severability

 

If the whole or any portion of this Agreement or the application thereof to any circumstance will be held invalid or unenforceable to an extent that does not affect the operation of this Agreement in question in a fundamental way, the remainder of this Agreement, or its application to any circumstance other than that to which it has been held invalid or unenforceable, will not be affected thereby and will be valid and enforceable to the fullest extent permitted by applicable law.

 

 

5.8

Counterparts and Electronic Signatures

 

This Agreement may be signed in one or more counterparts, each of which once signed shall be deemed to be an original. All such counterparts together shall constitute one and the same instrument. Notwithstanding the date of execution of any counterpart, each counterpart shall be deemed to bear the effective date first written above. This Agreement, any and all agreements and instruments executed and delivered in accordance herewith, along with any amendments hereto or thereto, to the extent signed and delivered by means of a scanned e-mail or internet transmission copy or other means of electronic transmission, shall be treated in all manner and respects and for all purposes as an original signature, agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.

 

5.9

Governing Law and Jurisdiction for Disputes

 

This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein and shall be treated, in all respects, as an Ontario contract. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the Province of Ontario.

 

5.10

Remedies

 

Each Party agrees that an award of monetary damages would not be an adequate remedy for any loss incurred by reason of any breach of this Agreement and that, in the event of any breach or threatened breach of this Agreement by a Party, the other Parties will be entitled to equitable relief, including injunctive relief and specific performance. Each Party hereby waives any requirement for the posting of any bond or other security in connection with the obtaining of any injunctive relief or specific performance. Such remedies will not be the exclusive remedies for any breach or threatened breach of this Agreement but will be in addition to all other remedies available at law or in equity.

 

[Remainder of page intentionally blank; signature page follows]

 

 

IN WITNESS WHEREOF the Parties have duly executed this Agreement on the date first above written.

 

	BOREALIS FOODS INC.
	Per:
	Name:	Reza Soltanzadeh
	Title:	President
	BELPHAR LTD.
	Per:
	Name:	Shukhrat Ibragimov
	Title:	Director

 

[Signature Page to Board Nomination Agreement]

 

 

 Exhibit 99.2

 

Consent of Person to be Named as Director

 

Pursuant to Rule 438 under the Securities Act of 1933, as amended, the undersigned hereby consents to being named in the proxy statement /prospectus on Form S-4 of Oxus Acquisition Corp (the “proxy statement/prospectus”), as filed with the U.S. Securities and Exchange Commission, as may be amended from time to time, as a nominee to the board of directors of Combined Entity (as defined in the proxy statement/prospectus). The undersigned also consents to the filing of this consent as an exhibit to such proxy statement/prospectus and any amendments thereto.

 

	/s/ Kanat Mynzhanov
Name:	Kanat Mynzhanov
Dated:	December 31, 2023

 

Exhibit 99.3

 

Consent of Person to be Named as Director

 

Pursuant to Rule 438 under the Securities Act of 1933, as amended, the undersigned hereby consents to being named in the proxy statement /prospectus on Form S-4 of Oxus Acquisition Corp (the “proxy statement/prospectus”), as filed with the U.S. Securities and Exchange Commission, as may be amended from time to time, as a nominee to the board of directors of Combined Entity (as defined in the proxy statement/prospectus). The undersigned also consents to the filing of this consent as an exhibit to such proxy statement/prospectus and any amendments thereto.

 

	/s/ Shiv Vikram Khemka
Name:	Shiv Vikram Khemka
Dated:	December 31, 2023

 

Exhibit 99.4

 

Consent of Person to be Named as Director

 

Pursuant to Rule 438 under the Securities Act of 1933, as amended, the undersigned hereby consents to being named in the proxy statement /prospectus on Form S-4 of Oxus Acquisition Corp (the “proxy statement/prospectus”), as filed with the U.S. Securities and Exchange Commission, as may be amended from time to time, as a nominee to the board of directors of Combined Entity (as defined in the proxy statement/prospectus). The undersigned also consents to the filing of this consent as an exhibit to such proxy statement/prospectus and any amendments thereto.

 

	/s/ Shukhrat Ibragimov
Name:	Shukhrat Ibragimov
Dated:	December 31, 2023

 

 

 

 

v3.23.4

Document And Entity Information	9 Months Ended
	Sep. 30, 2023
Document Information Line Items
Entity Registrant Name	OXUS ACQUISITION CORP.
Document Type	S-4/A
Amendment Flag	true
Amendment Description	Oxus Acquisition Corp. is filing this Amendment No. 4 to its registration statement on Form S-4 (File No. 333-273967) (the “Registration Statement”) as an exhibits-only filing. Accordingly, this amendment consists only of the facing page, this explanatory note, Item 21 of Part II of the Registration Statement, the signature page to the Registration Statement and the filed exhibits. The remainder of the Registration Statement is unchanged and has therefore been omitted.
Entity Central Index Key	0001852973
Entity Filer Category	Non-accelerated Filer
Entity Small Business	true
Entity Emerging Growth Company	true
Entity Ex Transition Period	false
Entity Incorporation, State or Country Code	E9

---