Terms & Conditions

TERMS AND CONDITIONS OF USE FOR THE SEKONDARY PLATFORM

These Terms and Conditions will come into effect starting December 19, 2023, and will not apply to Offers published before their effective date. Offers published before December 19, 2023, will be subject to the Terms and Conditions, as well as the Prices in effect at that time.

INTRODUCTION

This document includes the terms and conditions of use (“Terms”) of Sekondary platform (“Platform”) available on the website www.sekondary.com (“Website”) and owned by Sekondary, S.L. (“Sekondary” or “We”) with registered office at Av Diagonal, 359, A Principal Barcelona, VAT number B-72794613, registered in the Commercial Register of Barcelona, volume 48567, folio 71, sheet B588425 and contact at legal@sekondary.com.

By accessing or using the Platform the user hereby agrees to accept the Terms set forth in this agreement as individual or investors in emerging or early-stage companies or its authorised person/s (“Business Angel/s”) and the organisations that register to use the Platform as (i) institutional investors or its authorised person (“Institutional Investor/s”), (ii) startup or scale up companies or its authorized person (“Enterprise”) (iii) partner of a company (“Shareholder/s”), (iii) administrator of a company or its authorised person (“Director/s”). Therefore, Enterprises, Business Angels and Institutional Investors shall be bound by these Terms with respect to its access or use of this Platform and any further upgrade, modification, addition or change to this Platform.

For the purposes of these Terms and the Platform, the Business Angels and Institutional Investors shall be collectively referred to as “Investors” and Investors, Enterprises, Shareholders, and Directors shall be collectively referred to as “User/s”. This Terms are entered into between the User and Sekondary (“Agreement”).

DESCRIPTION AND PURPOSE OF THE PLATFORM

Sekondary provides a comprehensive equity management Platform for Enterprises and management of the portfolio of companies in which they have invested (‘Portfolio’) for Business Angels and Institutional Investors. The Platform allows Business Angels, Institutional Investors, and Enterprises to create private investment opportunities in startups (‘Offers’) with the purpose of enabling only those Investors registered on the Platform and selected by Sekondary according to its investment criteria, and those qualified investors selected in advance by Sekondary who meet the investment criteria (‘Selected Investors’), to access these Offers, upon invitation by Sekondary, and compete for investment opportunities. The aforementioned constitutes the service provided by Sekondary (‘The Service’)

The Platform offers free and paid Services based on the detailed description on the website and/or the specific terms outlined in the order confirmation, all of which are subject to this Agreement. For paid Services, the User may access and use the payment service as specified on the Website and in the order confirmation.

Likewise, the Platform has the following purposes for Investors, Shareholders and Directors and Enterprises:

For Investors

The Platform provides Investors with the opportunity to create and manage the Portfolio of companies in which they have invested. The Platform allows an Investor that wants to sell its shares in any of their invested companies (“Seller/s”), to create Offers for Selected Investors to access.

Furthermore, the Platform allows Investors to access Offers of investment opportunities selected for them based on their investment criteria. Upon invitation by Sekondary, Selected Investors can view Offers from various companies and bid for them.

For Shareholders

The Platform allows Shareholders to view the Offers related with its participated or investee companies Shareholders registered on the Platform as Business Angel or Institutional Investor, shall be considered as Investors in the use of the Platform.

For the Enterprise

The Platform provides the Enterprise with a comprehensive tool for equity management as well as the opportunity to create Offers to find Investors to raise capital in the Enterprise or to facilitate its Partners in finding an interested buyer to acquire the shares held by its Partners in the Enterprise.

PLATFORM REGISTRATION AND USE

In order to access the Services and certain functionalities offered through the Platform, selecting their professional profile (Business Angel, Institutional Investor, or Company Director, Enterprise), and providing their name. The User must also accept these Terms and the Privacy Policy.

If the User chooses to access the Platform through Google account authentication and verification, the terms and conditions of Google Ireland Ltd. may also apply.

When required by Sekondary, the User must complete a Know Your Customer (“KYC”) form and be validated by Sekondary before being able to access certain functions of the Platform, such as creating Offers or accessing specific features.

When uploading a company to the Portfolio, or create an Enterprise profile, the company’s information will be obtained by Sekondary from public databases such as (e.g. Crunchbase or Apollo) and from the Platform’s own database in relation to other companies or Investors already registered on the Platform.

The Users agree that, when adding companies to their Portfolio or create an Enterprise profile, these companies become visible to other registered Users. This includes the visibility of information available in the mentioned public databases including company name and logos and their reference on the Platform, allowing users to add them to their personal wishlist.

HOW TO MAKE AN OFFER

4.1 By Sellers

Once completed the KYC and validated by Sekondary the Sellers will be able to publish Offers at that time.

In the event the Investor wishes to sell its shares in any of the listed companies of the Company Portfolio, it will create a private sale offer on the Platform indicating the number of shares it wishes to transfer and completing the requested information in the relevant form on the Platform.

4.2 By the Enterprises

Once the KYC verification process is completed and validated by Sekondary, the Enterprise can Create Offers at that time.

4.2.1. Offer to transfer ownership of the shares of the Shereholders of the Enterprise

If the Enterprise wishes to assist its shareholders in finding interested buyers to acquire the shares they hold in the Enterprise, it can create an Offer that includes the number of shares they want to offer, completing the required information in the Platform’s form.

4.2.2. Capital-Raising Interest Offer.

If the Enterprise wishes to raise capital, it can create an Offer that includes the amount it wishes to raise, completing the required information in the Platform’s form.

FEES AND PAYMENT METHOD

The Seller and the Enterprise shall pay to Sekondary the amount indicated in https://sekondary.com/pricing/ (“Fee”). The Fees may be modified any time by Sekondary.

Access to the paid Services will not be available until payment of the price, which will be in advance.

Sekondary will issue the corresponding invoice with the price to be paid in accordance with the provisions of the previous section and in accordance with the order confirmation.

Payments by the User are non-refundable.

The Price does not include Taxes, which will be paid by the party obliged to pay.

Overdue invoices will accrue interest from the due date until payment (both before and after judgment) at a rate of eight (8) percent above the latest published legal interest rate for delays.

USER’S WARRANTIES

Investors and Enterprises represent and warrant that:

they have the full power, capacity, and authority to enter into these terms and conditions and perform the obligations set forth herein.
they are not under any legal restriction, contractual obligation, or other impediment that would prohibit or limit their ability to use the Platform, create a portfolio, an Offer, or engage in any transactions facilitated by the Platform.
they are the legal owner or have the necessary authority to manage the shares they include in the Offer and in their Portfolio on the Platform, and represent and warrant that all required consents, permissions, and approvals necessary for the inclusions of the shares on the Platform have been obtained.
all information provided regarding the shares in their Portfolio and or the Offer, including financial data, valuations, particularly regarding the price per share resulting from the valuation of a Company taken into account in the last approved capital increase, and other related information, is accurate, complete, and up to date to the best of their knowledge. Investors and Enterprises acknowledge that any misrepresentation or inaccurate information may negatively affect the investment decisions made by the Selected
the inclusion of the shares in their Portfolio and/or Offer and the subsequent sale of those shares or issuance of new shares, comply with all applicable laws, regulations, and contractual obligations, and that they have fulfilled any disclosure requirements, regulatory filings, or other obligations pertaining to the shares being offered on the Platform.
that they are not aware that any of the companies included in their Porflolio (i) is subject to bankruptcy proceedings, (ii) its current financial situation jeopardizes the continuity of its business, or (iii) there is a reason that could potentially jeopardize the continuation of its business due to its current financial situation.
the transfer of the shares and when applicable, the capital increase are subject to compliance with applicable regulations, the Company’s bylaws, and the conditions provided for such transactions in the shareholders’ agreement, if any, that is in force for the company whose shares are intended to be transferred or issued Therefore, the signing of the Binding Offer does not guarantee the completion of the transaction between the Seller and the Selected
will promptly disclose any material information or changes that may impact the value or viability of the shares included in their Portfolio and/or Offer. Investors and the Enterprise understand the importance of providing accurate and timely information to Selected Investors and acknowledges that failure to disclose material information may result in legal consequences.
they acknowledge and agree that certain shared information in the Platform, such as the shareholders’ agreement, may be of a confidential nature. Therefore, they commit to reviewing any confidentiality agreements they have entered with the Company and other shareholders, assuming responsibility for not disclosing or misusing such confidential information.
they are solely responsible for making their own investment decisions and will not hold the platform liable for any investment gains or losses.
They will cancel the Offer and promptly communicate Sekondary in the event the Offer is internally hedged by the Company, any current Shareholders in the Company or by a third party at the Company’s discretion when the transaction is completed by the execution between Seller and the shareholders or buyers of the deed of purchase and sale of shares or in the event that the company redeems the shares.
they will indemnify Sekondary and the Selected Investor, as an obligation of a contractual nature in accordance with the provisions of article 1. 091 of the civil code, up to a maximum amount equal to the price for the shares offered plus an additional 100.000 €, and for events occurring up to the day on which the sale and purchase takes place, from any damage that the Institutional Investors may suffer, as a consequence of any inaccuracy or breach of the above representations or any loss, liability, claim, obligation, damage, deficiency, cost, expense, fine or sanction, including judicial or extrajudicial fees of lawyers, solicitors and experts, of any other reasonable cost of defense, investigation and other response actions suffered by Sekondary or the Selected Investor, as a direct or indirect consequence of such inaccuracies or breaches or of third party claims for non-compliance, by the company whose shares are offered, of its obligations of any kind once its judicial or extrajudicial resolution is final.

Moreover, the Users acknowledge and agree that (i) Sekondary assumes no responsibility in the event that the transaction is not completed, and the Seller and the Enterprise agree to hold Sekondary harmless from any claims, demands, or damages that may arise as a result of the non-completion of the transaction (ii) that the Platform does not provide investment advice or recommendations.

Selected Investors and Directors acknowledge and agree that they shall comply with points 1), 2), 7) and 10) of this warranties clause, as applicable.

TERM AND TERMINATION

These Terms shall commence upon the User’s registration on the Platform and acceptance of the Terms and shall continue until terminated in accordance with the provisions herein.

Unless otherwise agreed by the parties, the paid service will commence on the date specified in the order confirmation and will have have a mandatory minimum duration of 1 month. After that date, it will be tacitly understood as extended for monthly periods unless terminated by either party, with at least thirty days’ notice before the expiration date, both for the initial period and its extensions.

Upon termination, the User’s right to access and use the Platform and its services shall cease immediately. Termination shall not relieve the User of any obligations and liabilities incurred prior to termination.

The provisions related to intellectual property rights, confidentiality, indemnification, limitations of liability, and dispute resolution shall survive the termination of these Terms and continue to be binding upon the Parties.

Following termination, Sekondary may retain certain User data in accordance with its privacy policy and legal obligations.

END OF THE RELATIONSHIP

By Sekondary

Sekondary may suspend or terminate a User’s account at any time by giving no less than 24-hour notice to the User.

However, that notice is not required for such termination if (a) in Sekondary’s determination, there is any breach of the provisions of this Agreement by the User; or (b) Sekondary has reasonable grounds to suspect that such information provided by a User is untrue, inaccurate or is not current or complete, or (c) Sekondary believes that the User’s actions may cause financial loss or legal liability to such User, other Users or affiliates.

Sekondary may refuse registration and deny the issuance of an account and/or email account and Password to any User for whatever reason.

By the User

If the Use of a paid Service wishes to deactivate its paid Service account on the Platform, they must deactivate such service in their account on the Platform and comply with the notice period indicated in clause 7.

Likewise, If any other User wishes to deactivate their account on the Platform, the User should send an email to legal@sekondary.com indicating his or her willingness to deactivate the User’s account. Once the User’s account is deactivated, the User will not be able to access his/her account. For information on the retention of User data, the User should refer to our Privacy Policy.

Payments made by the User are non-refundable.

The termination of this Agreement implies the cancellation of all current Offers.

The termination of this Agreement will not exonerate the parties from fulfilling their pending obligations derived from this Agreement.

SEKONDARY’S WARRANTIES AND LIABILITY DISCLAIMER

The features and services on the Platform are provided on an “AS IS” and “AS AVAILABLE” basis, and Sekondary hereby expressly disclaims any and all warranties, express or implied, including but not limited to any warranties of condition, quality, durability, performance, accuracy, reliability, merchantability or fitness for a particular purpose. All such warranties, representations, conditions, undertakings and terms are hereby excluded.
Sekondary makes no representations or warranties about the validity, accuracy, correctness, reliability, quality, stability, completeness or correctness of any information provided on or through the Platform.. Sekondary does not represent the Investor, the Enterprise or Shareholder in any of the transactions. The specific terms of each investment opportunity, including size, price, and other relevant details, will be mutually agreed upon by the parties involved in the transaction.
Any material downloaded or otherwise obtained through the Platform is done at each User’s sole discretion and risk and each User is solely responsible for any damage to its computer system or loss of data that may result from the download of any such material. No advice or information, whether oral or written, obtained by any User from Sekondary or through or from the Platform shall create any warranty not expressly stated herein.
Under no circumstances shall Sekondary be held liable for an delay or failure or disruption of the content or services delivered through the Platform resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labour or materials, fires, flood, storms, explosions, war, governmental actions, orders of domestic or foreign courts or tribunals or non-performance of third parties.

Each User hereby agrees to indemnify and hold Sekondary, its affiliates, directors, officers and employees harmless, from any and all losses, claims, liabilities (including reasonable legal costs on a full indemnity basis) which may arise:

From User’s use of the Platform (including but not limited to the display of such User’s information on the Platform);
From breach of these Terms.
From User’s breach of any representations and warranties made by User to Sekondary, including but not limited to those set forth in Sections 6 above.
Directly or indirectly, as a result of any claims asserted by third party rights claimants or other third parties relating to products offered or displayed on the Platform. Each User hereby further agrees that Sekondary is not responsible and shall have no liability to it, for any material posted by others, including defamatory, offensive or illicit material and that the risk of damages from such material rests entirely with each User. Sekondary reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by User, in which event User shall cooperate with Sekondary in asserting any available defenses.

Sekondary shall not be liable for direct or indirect damages or any damages whatsoever (including but not limited to damages for loss of profits or savings, business interruption, loss of information), whether in contract, negligence, tort, strict liability or otherwise or any other damages resulting from any of the following:

the use or the inability to use the Platform;
any defect in data, information or services purchased or obtained from a User or a third-party service provider through the Platform;
violation of third party rights or claims or demands that Users’ Offer may violate or may be asserted to violate third party rights;
or claims by any party that they are entitled to defense or indemnification in relation to assertions of rights, demands or claims by third party rights claimants;

INTELLECTUAL AND INDUSTRIAL PROPERTY

Sekondary or its licensors shall own all intellectual and industrial property rights over the Platform, including, without limitation, all software used herein, the graphic design, programming and structure of the Platform, as well as other rights and know-how related the Platform (including any modifications or enhancements) and all associated rights under copyright, trademarks and patents (hereinafter the “Content”).

All third-party names, logos, product and service names, designs, and slogans (collectively, “Third-Party Trademark(s)”) contained in the Platform are the property of their respective owners. Third-Party Trademarks are used by Sekondary to refer to the owners of the Third-Party Trademark(s) in question and its use by Sekondary is not intended to (and does not) constitute or imply any kind of relationship between Sekondary and the owners of the Third-Party Trademark(s) in question, including any affiliation, sponsorship, endorsement, or approval of products and/or services, unless otherwise expressly indicated.

The Users will not challenge Sekondary’s ownership of the Platform and will not alter or delete any copyright notices or trademarks included in the Platform. All rights in relation to such Content are reserved and express permission must be requested to Sekondary for its use and exploitation not expressly provided for in these Terms.

Any use of the Content for which Sekondary has not given express authorization, whether directly or indirectly for profit or not, including downloading, storage, transmission, public disclosure, distribution, reproduction or transformation, reuse, the use of scraping, data mining, data harvesting or similar techniques, for private or commercial purposes, in whole or in part, is expressly prohibited. It is expressly stated that in accordance with art. 67 inc 3 of Royal Decree Law 24/2021, Sekondary reserves the right to use the works, thus not authorizing the mining of texts and data.

Users may not alter, copy, download, modify, decompile, disassemble, reverse engineer, license, lease, sell or imitate the Platform or its underlying software. Sekondary may exercise all the judicial and extrajudicial actions it deems appropriate in the event of any breach of its rights.

DATA PROTECTION

The personal data collected though the Platform related to access and use of the Users, as well as communications or requests addressed between Users and Sekondary, will be processed by Sekondary, as owner of the Platform and responsible for processing, in accordance with the applicable regulations at all times and ensuring the confidentiality of the same, as set out in the Privacy Policy (including the Data Processing Addendum) and Cookies Policy.

CONFIDENTIALITY

The Users undertake to keep confidential and secret the existence and content of all documentation and information provided, accessed, transmitted, or disclosed through the Platform, regardless of the method, form, or medium used (hereinafter referred to as “Confidential Information”), and commit not to disclose or publicly communicate such information to third parties and not to disclose to any third party (except its professional advisors under obligations of confidentiality).

Sekondary undertakes to keep confidential and secure the Confidential Information and agrees not to disclose or publicly communicate such information to third parties without the prior consent of the issuing party (except to its professional advisors under confidentiality obligations). The User acknowledges and consents that (i) Selected Investors have access to the information provided through the Platform by the User, and (ii) other Users registered on the Platform who are also shareholders in the Enterprise or in a company from the User’s Portfolio have access to the information included in the User’s Portfolio regarding that company, including the User’s name and email.

The obligation of confidentiality shall survive even after the termination, for any reason, of the Agreement.

The breach of the confidentiality obligation assumed in this Agreement shall entitle either party to claim full compensation for the damages and losses caused by such breach.

SUPPORT

Sekondary shall provide reasonable support services to Users regarding the Platform and its functionalities, subject to these Terms. The support services may include assistance with technical issues, clarifications on the Platform features and general guidance related to the use of the Platform.

Sekondary will endeavour to respond to the User inquiries and requests for support within a reasonable timeframe, but response times may vary based on the complexity and volume of requests. Users may report to Sekondary any incident related to the use of the Platform at: support@sekondary.com.

Support services will be provided on a best-effort basis and may be subject to certain limitations. Sekondary does not guarantee that all support inquiries or issues will be resolved, and it reserves the right to determine the level and extent of support provided.

Sekondary’s support services do not extend to general business, investment or legal advice. Users are responsible for making their own investment decisions and seeking professional advice when necessary.

MODIFICATIONS TO THE TERMS

Sekondary reserves the right to modify or update the Terms at any time, to adapt them to any changes or new regulations, for technical reasons, changes in the services offered by Sekondary, or strategic decisions of Sekondary giving prior notice to Users. If the User does not agree with the changes, the User must deactivate his or her account on the Platform.

Sekondary will give prior notice to the Users through the notification systems provided on the Platform or via email, for a reasonable period before the entry into force of the modifications. In case the User does not agree to such new Terms, the User may deactivate his or her account according to the previous section.

The termination of this Agreement by deactivating the account according to this section will not exonerate the parties from fulfilling their pending obligations derived from this Agreement.

GOVERNING LAW, JURISDICTION AND NOTIFICATIONS

These Terms and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Spain.

Each Party irrevocably agrees that the courts of the city of Barcelona shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).

All notifications, requests, petitions and other communications that the User wishes to make to Sekondary must be made in writing and will be understood to have been correctly made when they have been received at the following address at legal@sekondary.com.

Version: December 19, 2023

TERMS AND CONDITIONS OF USE FOR THE SEKONDARY PLATFORM UNTIL DECEMBER 19, 2023

INTRODUCTION

DESCRIPTION AND PURPOSE OF THE PLATFORM

Sekondary provides a comprehensive equity management Platform for Enterprises and management of the portfolio of companies in which they have invested (‘Portfolio’) for Business Angels and Institutional Investors. The Platform allows Business Angels, Institutional Investors, and Enterprises to create private investment opportunities in startups (‘Offers’) with the purpose of enabling only those Investors registered on the Platform and selected by Sekondary according to its investment criteria, and those qualified investors selected in advance by Sekondary who meet the investment criteria (‘Selected Investors’), to access these Offers, upon invitation by Sekondary, and submit Binding Offers to compete for investment opportunities. The aforementioned constitutes the service provided by Sekondary (‘The Service’)

A Binding Offer shall be understood as any proposal submitted by a Selected Investor, which may be subject to various conditions, including, but not limited to, the completion of Due Diligence and its positive outcome, waiver of the right of pre-emption rights by shareholders, the assignment of contractual position by Beneficiaries in the case of Offers of the rights granted by the ESOP plan, the willingness of ESOP beneficiaries or company partners creating the offer to sell their shares or the rights granted by the ESOP plan, or approval of the transaction by the company’s board when necessary.

Binding Offers also include documents expressing the serious and committed intention of the Selected Investor to carry out the transaction in question, including, among others, term sheets or letters of intent.

Likewise, the Platform has the following purposes for Investors, Shareholders and Directors and Enterprises:

For Investors

For Directors

Directors will be notified when Investors decide to sell shares of their company as well as when they have received a Binding Offer from a Selected Investor. Directors may be able to register the company on the Platform to view the Offering and provide the email addresses of the Shareholders so that they can be informed of the Offer or the Binding Offer, as the case may be.

For Shareholders

For the Enterprise

The Platform provides the Enterprise with a comprehensive tool for equity management as well as the opportunity to provide liquidity to its employees by allowing the creation of Offers to transfer a portion of the consolidated rights granted by incentive plans to its employees or beneficiaries (‘Beneficiaries’) to assume shares in the Enterprise (the ‘Stock Options’) or granted by the Phantom Share Plan (the ‘Phantom Shares’), collectively referred to as Employee Stock Ownership Plans (‘ESOP’). Selected Investors can access the Offer and submit Binding Offers to subscribe to new shares in the Enterprise to be issued.

Additionally, the Platform offers the Enterprise the opportunity to create Offers to find Investors to raise capital in the Enterprise or to facilitate its Partners in finding an interested buyer to acquire the shares held by its Partners in the Enterprise.

PLATFORM REGISTRATION AND USE

If the User chooses to access the Platform through Google account authentication and verification, the terms and conditions of Google Ireland Ltd. may also apply.

HOW TO MAKE AN OFFER: PROCESS AND RESPONSABILITIES

4.1 By Sellers

Once completed the KYC and validated by Sekondary the Sellers will be able to publish Offers at that time.

If the Seller provides the email address of the Company’s CEO the Platform may send an e-mail to the e-mail address of the Company’s Administrator or CEO (“Director”) so that he/she can register and access the Offer on the Platform and at their discretion communicate the Offer to the shareholders in case they are interested in it and they wish to exercise their pre-emption right.

If the Offer is internally hedged, the transaction is perfected outside of the Platform by the execution between the Seller and the shareholders of the deed of purchase and sale of shares.

If the Director does not respond or responds denying access to the Platform, or if the Offer is not covered by the Shareholders and the Offer is not canceled, the Offer will be shared by Sekondary exclusively with the Selected Investors via email so that it can be viewed and accessed by them. This allows them to express interest in the Offer.

When a Selected Investor wishes to formally participate in the Offer, Sekondary will make available to the Selected Investor and the Seller a model of a Binding Offer after the Seller completes certain information on the Platform to include in the Binding Offer. The Binding Offer, if applicable, will be formalized by the parties outside the Platform.

As soon as the Sellers receive a signed Binding Offer, the Platform may send an email to the Director to inform them about the Binding Offer so that, in accordance with the regulations contained in the company’s Shareholders agreement regarding provisions on the transfer of shares and the Shareholders pre-emption right, the Director can communicate the Binding Offer to the rest of the Shareholders.

The processing of emails will be carried out by Sekondary in accordance with our Privacy Policy.

If the Offer is covered internally, the transaction is completed outside the Platform through the execution of a shares purchase agreement between the Investors and the Shareholders.

In the event that Binding Offers have been signed by a Selected Investor, the Sellers must guarantee that the following steps are taken for the transfer of shares:

Agreement by which the Company itself waives its pre-emption right, if it has such right by virtue of the shareholders’ agreement or the Company’s bylaws; and
Waiver by all the shareholders of their pre-emption right.

4.2 By the Enterprises

Once the KYC verification process is completed and validated by Sekondary, the Enterprise can Create Offers at that time.

4.2.1. Offers for the Transfer of Rights Derived from the ESOP Plan

If an Enterprise wishes to provide liquidity to beneficiaries of an ESOP plan, it can create an Offer for the transfer of rights derived from the ESOP plan on behalf of the Beneficiaries. This offer will include the number of shares resulting from the exercise of vested Stock Options to be transferred and the information required in the Platform’s form. In the case of an incentive plan being a Phantom Share plan, the consolidated Phantom Shares must be converted into Stock Options.

When a Selected Investor wishes to formally participate in the Offer, Sekondary will provide the Selected Investor and Seller with a model of a Binding Offer after the Seller completes certain information on the Platform to include in the Binding Offer. The Binding Offer will be formalized by the parties outside the Platform if applicable.

The Enterprise will be responsible for carrying out the necessary internal formalities to accept the Binding Offer on behalf of the Beneficiaries wishing to transfer the ESOP rights, including, among other things:

Approval of the transfer of rights to third parties and the conversion of Phantom Shares into Stock Options.
Signing of an addendum to the ESOP Incentive Plan by the Beneficiaries, authorizing the conversion of Phantom Shares into Stock Options and the transfer of rights to third parties in accordance with the plan.
Approval of the corresponding capital increases for the converted or transferred Stock Options, assumed by the Investors.
Waiver by all Partners of their pre-emption right.

The Enterprise will be responsible for completing the transaction by issuing new shares, and recording them in the corresponding Commercial Registry as applicable. Additionally, the Enterprise must pay the agreed-upon amount to the Beneficiaries and withhold any required withholding tax for the sale of the Stock Options.

4.2.2. Offer to transfer ownership of the shares of the Shereholders of the Enterprise

In the event that a Selected Investor has signed a Binding Offer, the Company will be responsible for carrying out the necessary internal formalities for the shareholders to proceed with the transfer of shares, including, among other things:

Shareholders must waive their pre-emption right.

4.2.3. Capital-Raising Interest Offer.

If the Enterprise wishes to raise capital, it can create an Offer that includes the amount it wishes to raise, completing the required information in the Platform’s form.

Offers created on the Platform will be available to Selected Investors for a period of 12 months. After 12 months, Sekondary may withdraw the Offer at any time.

FEES AND PAYMENT METHOD

The Seller and the Enterprise shall pay to Sekondary the amount indicated in https://sekondary.com/pricing/ (“Fee”). The Fees may be modified any time by Sekondary.

Sekondary will issue the corresponding invoice with the Fees to be paid by virtue of the provisions of the previous section by the Seller and the Enterprise as applicable and will send it to the email provided by them as indicated below, (i) the monthly subscription for Enterprises will be invoiced monthly in advanced (ii) in the event that a Binding offer is signed by an Institutional Investor within the first 15 days from the signature of the Binding Offer by the Selected Investor (iii) in the event an Offer is cancelled by the Seller, within 30 days from the day of the cancellation of the Offer (iv) in the event the Offer is internally hedged by the company or any current Shareholder of the company and the Seller has not cancelled it, on communication by the Seller to Sekondary that the transaction is completed by the execution between the Seller and the shareholders of the deed of purchase and sale of shares or when Sekondary becomes aware through other means that the transaction has been completed by the execution between the Seller and the shareholders of the deed of purchase and sale of shares. The Seller and the Enterprise will pay the Fee within the following 30 days.

For the avoidance of doubt, in the event that a Binding offer is signed by a Selected Investor, Sekondary will issue the corresponding invoice with the Fees to be paid by the Seller or the Enterprise in accordance with the provisions of this clause, irrespective of whether thetransaction is completed by parties.

Except as indicated below, payments by the User are non-refundable.

If the transaction is not completed or the proceeds received by the Seller are less than the total amount indicated in the Binding Offer, or in the case of the Enterprise, the transaction is executed for an amount less than indicated in the Binding Offer, Sekondary will refund the excess paid by the Seller or the Company as applicable. However, to be eligible for a refund, the Seller and the Enterprise must request such a refund from Sekondary no later than 6 natural months from the execution of the transaction and must provide evidence of the circumstances justifying the refund.

The Price does not include Taxes, which will be paid by the party obliged to pay.

Overdue invoices will accrue interest from the due date until payment (both before and after judgment) at a rate of two (2) percent above the latest published legal interest rate for delays.

USER’S WARRANTIES

Investors and Enterprises represent and warrant that:

they have the full power, capacity, and authority to enter into these terms and conditions and perform the obligations set forth herein.
they are not under any legal restriction, contractual obligation, or other impediment that would prohibit or limit their ability to use the Platform, create a portfolio, an Offer, or engage in any transactions facilitated by the Platform.
they are the legal owner or have the necessary authority to manage the shares they include in the Offer and in their Portfolio on the Platform, and represent and warrant that all required consents, permissions, and approvals necessary for the inclusions of the shares on the Platform have been obtained.
all information provided regarding the shares in their Portfolio and or the Offer, including financial data, valuations, particularly regarding the price per share resulting from the valuation of a Company taken into account in the last approved capital increase, and other related information, is accurate, complete, and up to date to the best of their knowledge. Investors and Enterprises acknowledge that any misrepresentation or inaccurate information may negatively affect the investment decisions made by the Selected
the inclusion of the shares in their Portfolio and/or Offer and the subsequent sale of those shares or issuance of new shares, comply with all applicable laws, regulations, and contractual obligations, and that they have fulfilled any disclosure requirements, regulatory filings, or other obligations pertaining to the shares being offered on the Platform.
that they are not aware that any of the companies included in their Porflolio (i) is subject to bankruptcy proceedings, (ii) its current financial situation jeopardizes the continuity of its business, or (iii) there is a reason that could potentially jeopardize the continuation of its business due to its current financial situation.
the transfer of the shares and when applicable, the capital increase are subject to compliance with applicable regulations, the Company’s bylaws, and the conditions provided for such transactions in the shareholders’ agreement, if any, that is in force for the company whose shares are intended to be transferred or issued Therefore, the signing of the Binding Offer does not guarantee the completion of the transaction between the Seller and the Selected
will promptly disclose any material information or changes that may impact the value or viability of the shares included in their Portfolio and/or Offer. Investors and the Enterprise understand the importance of providing accurate and timely information to Selected Investors and acknowledges that failure to disclose material information may result in legal consequences.
they acknowledge and agree that certain shared information in the Platform, such as the shareholders’ agreement, may be of a confidential nature. Therefore, they commit to reviewing any confidentiality agreements they have entered with the Company and other shareholders, assuming responsibility for not disclosing or misusing such confidential information.
they are solely responsible for making their own investment decisions and will not hold the platform liable for any investment gains or losses.
They will cancel the Offer and promptly communicate Sekondary in the event the Offer is internally hedged by the Company, any current Shareholders in the Company or by a third party at the Company’s discretion when the transaction is completed by the execution between Seller and the shareholders or buyers of the deed of purchase and sale of shares or in the event that the company redeems the shares.
they will indemnify Sekondary and the Selected Investor, as an obligation of a contractual nature in accordance with the provisions of article 1. 091 of the civil code, up to a maximum amount equal to the price for the shares offered plus an additional 100.000 €, and for events occurring up to the day on which the sale and purchase takes place, from any damage that the Institutional Investors may suffer, as a consequence of any inaccuracy or breach of the above representations or any loss, liability, claim, obligation, damage, deficiency, cost, expense, fine or sanction, including judicial or extrajudicial fees of lawyers, solicitors and experts, of any other reasonable cost of defense, investigation and other response actions suffered by Sekondary or the Selected Investor, as a direct or indirect consequence of such inaccuracies or breaches or of third party claims for non-compliance, by the company whose shares are offered, of its obligations of any kind once its judicial or extrajudicial resolution is final.

Selected Investors and Directors acknowledge and agree that they shall comply with points 1), 2), 7) and 10) of this warranties clause, as applicable.

TERM AND TERMINATION

These Terms shall commence upon the User’s registration on the Platform and acceptance of the Terms and shall continue until terminated in accordance with the provisions herein.

Unless otherwise agreed by the parties, the service contracted by Enterprise will have a mandatory minimum duration of 3 months. After that date, it will be tacitly understood as extended for monthly periods unless terminated by either party, with at least thirty days’ notice before the expiration date, both for the initial period and its extensions.

Following termination, Sekondary may retain certain User data in accordance with its privacy policy and legal obligations.

END OF THE RELATIONSHIP

By Sekondary

Sekondary may suspend or terminate a User’s account at any time by giving no less than 24-hour notice to the User, unless the User has contracted a Service subject to a mandatory minimum duration.

Sekondary may refuse registration and deny the issuance of an account and/or email account and Password to any User for whatever reason.

By the User

If the Enterprise wishes to deactivate its account on the Platform, it must comply with the notice period indicated in clause 7. The Enterprise must send an email to legal@sekondary.com indicating its intention to deactivate the User’s account.

Except as indicated in clause 5, payments made by the User are non-refundable.

The termination of this Agreement implies the cancellation of all current Offers.

The termination of this Agreement will not exonerate the parties from fulfilling their pending obligations derived from this Agreement.

SEKONDARY’S WARRANTIES AND LIABILITY DISCLAIMER

The features and services on the Platform are provided on an “AS IS” and “AS AVAILABLE” basis, and Sekondary hereby expressly disclaims any and all warranties, express or implied, including but not limited to any warranties of condition, quality, durability, performance, accuracy, reliability, merchantability or fitness for a particular purpose. All such warranties, representations, conditions, undertakings and terms are hereby excluded.
Sekondary makes no representations or warranties about the validity, accuracy, correctness, reliability, quality, stability, completeness or correctness of any information provided on or through the Platform.. Sekondary does not represent the Investor, the Enterprise or Shareholder in any of the transactions. The specific terms of each investment opportunity, including size, price, and other relevant details, will be mutually agreed upon by the parties involved in the transaction.
Any material downloaded or otherwise obtained through the Platform is done at each User’s sole discretion and risk and each User is solely responsible for any damage to its computer system or loss of data that may result from the download of any such material. No advice or information, whether oral or written, obtained by any User from Sekondary or through or from the Platform shall create any warranty not expressly stated herein.
Under no circumstances shall Sekondary be held liable for an delay or failure or disruption of the content or services delivered through the Platform resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labour or materials, fires, flood, storms, explosions, war, governmental actions, orders of domestic or foreign courts or tribunals or non-performance of third parties.
Each User hereby agrees to indemnify and hold Sekondary, its affiliates, directors, officers and employees harmless, from any and all losses, claims, liabilities (including reasonable legal costs on a full indemnity basis) which may arise:

- From User’s use of the Platform (including but not limited to the display of such User’s information on the Platform);
- From breach of these Terms.
- From User’s breach of any representations and warranties made by User to Sekondary, including but not limited to those set forth in Sections 6 above.
- Directly or indirectly, as a result of any claims asserted by third party rights claimants or other third parties relating to products offered or displayed on the Platform. Each User hereby further agrees that Sekondary is not responsible and shall have no liability to it, for any material posted by others, including defamatory, offensive or illicit material and that the risk of damages from such material rests entirely with each User. Sekondary reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by User, in which event User shall cooperate with Sekondary in asserting any available defenses.

6. Sekondary shall not be liable for direct or indirect damages or any damages whatsoever (including but not limited to damages for loss of profits or savings, business interruption, loss of information), whether in contract, negligence, tort, strict liability or otherwise or any other damages resulting from any of the following:
- the use or the inability to use the Platform;
- any defect in data, information or services purchased or obtained from a User or a third-party service provider through the Platform;
- violation of third party rights or claims or demands that Users’ Offer may violate or may be asserted to violate third party rights;
- or claims by any party that they are entitled to defense or indemnification in relation to assertions of rights, demands or claims by third party rights claimants;

INTELLECTUAL AND INDUSTRIAL PROPERTY

DATA PROTECTION

CONFIDENTIALITY

The obligation of confidentiality shall survive even after the termination, for any reason, of the Agreement.

The breach of the confidentiality obligation assumed in this Agreement shall entitle either party to claim full compensation for the damages and losses caused by such breach.

SUPPORT

MODIFICATIONS TO THE TERMS

The termination of this Agreement by deactivating the account according to this section will not exonerate the parties from fulfilling their pending obligations derived from this Agreement.

GOVERNING LAW, JURISDICTION AND NOTIFICATIONS

Version: November 2023

Terms and conditions