ACGC 8-K
ACP Holdings Acquisition Corp. (ACGC)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
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Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| The Stock Market LLC | ||||
| The Stock Market LLC | ||||
| The Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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Item 1.01. Entry Into A Material Definitive Agreement.
Business Combination Agreement
On September 15, 2026 (the “Signing Date”), ACP Holdings Acquisition Corp., a Cayman Islands exempted company (which shall de-register from the Register of Companies in the Cayman Islands and transfer by way of continuation out of the Cayman Islands and domesticate as a Delaware corporation prior to the Closing) (“ACP”), entered into a Business Combination Agreement (as it may be amended, supplemented or otherwise modified from time to time in accordance with its terms, the “Business Combination Agreement”), by and among ACP, Maestro Merger Sub, Inc., a Delaware corporation and a direct wholly owned subsidiary of ACP (“Merger Sub”), and May Mobility, Inc., a Delaware corporation (“May Mobility”), pursuant to which, among other things and subject to the terms and conditions therein, Merger Sub will merge with and into May Mobility, with May Mobility continuing as the surviving corporation (the “Merger”) and Merger Sub ceasing to exist. The transactions contemplated by the Business Combination Agreement and the ancillary documents thereto, including the Domestication (as defined below) and the Merger, are referred to herein as the “Business Combination.” ACP, Merger Sub and May Mobility are individually referred to herein as a “Party” and, collectively, as the “Parties.”
The Business Combination Agreement and the transactions contemplated thereby were approved by the boards of directors of each of ACP, Merger Sub and May Mobility.
The Business Combination is expected to close (the “Closing”) on or before May 26, 2027 (the “Outside Date”), following the receipt of the required approval by ACP’s shareholders, the approval of May Mobility’s stockholders and the fulfillment of other customary closing conditions.
The Domestication
ACP will, subject to obtaining the required shareholder approvals and prior to the date of Closing (the “Closing Date”), change its jurisdiction of incorporation by deregistering as a Cayman Islands exempted company and continuing and domesticating as a corporation incorporated under the laws of the State of Delaware (the “Domestication”), with the continuing entity following the Domestication to be named “May Mobility, Inc.”
Subject to the satisfaction or waiver of the conditions of the Business Combination Agreement, including approval of ACP’s shareholders: (a) immediately prior to the Domestication, pursuant to the Sponsor Support Agreement (as defined below), the holders of the then issued and outstanding Class B ordinary shares of ACP, par value $0.0001 per share (each, a “Cayman Class B Share”), will elect to convert each such Cayman Class B Share, on a one-for-one basis, into a Class A ordinary share of ACP, par value $0.0001 per share (each, a “Cayman Class A Share”) (the “Sponsor Share Conversion”); and (b) in connection with the Domestication, (i) each of the then issued and outstanding Cayman Class A Shares will convert automatically, on a one-for-one basis, into one share of common stock, par value $0.0001 per share, of ACP (the “Domesticated Purchaser Common Stock”); (ii) each of the then issued and outstanding warrants of ACP will convert automatically into a warrant to acquire one share of Domesticated Purchaser Common Stock (each, a “Domesticated Purchaser Warrant”), pursuant to that certain Warrant Agreement, dated as of April 6, 2026, by and between ACP and Odyssey Transfer & Trust Company, as warrant agent; and (iii) each of the then issued and outstanding units of ACP will be cancelled and will thereafter entitle the holder thereof to one share of Domesticated Purchaser Common Stock and one-half of one Domesticated Purchaser Warrant.
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The Merger and Consideration
Upon the terms and subject to the satisfaction or waiver of the conditions of the Business Combination Agreement, at the effective time of the Merger (the “Effective Time”), Merger Sub and May Mobility shall consummate the Merger by filing a certificate of merger with the Secretary of State of the State of Delaware, pursuant to which Merger Sub will be merged with and into May Mobility, following which the separate corporate existence of Merger Sub shall cease and May Mobility shall continue as the surviving corporation after the Merger and as a direct, wholly-owned subsidiary of ACP.
Immediately prior to the Effective Time:
| (1) | each convertible security of May Mobility that is outstanding immediately prior to the Effective Time (if any), including all principal and interest thereunder, to the extent applicable, will automatically convert in full into shares of preferred stock or common stock of May Mobility, as applicable, in accordance with the terms thereof; |
| (2) | each warrant of May Mobility exercisable for shares of preferred stock of May Mobility that is outstanding and unexercised immediately prior to the Effective Time will automatically be exercised on a cashless basis in full in accordance with its terms or otherwise exercised in full, such that upon such exercise, such warrant shall be converted into preferred stock of May Mobility and shall no longer be outstanding and shall cease to exist; |
| (3) | immediately after giving effect to the conversions and exercises set forth in clauses (1) and (2) above, each issued and outstanding share of preferred stock of May Mobility (including each share of preferred stock issued upon the conversions and exercises described in clauses (1) and (2) above) will automatically convert into such number of shares of common stock of May Mobility, par value $0.0001 per share (“May Mobility Common Stock”), into which such shares of preferred stock of May Mobility, as applicable, are convertible in connection with the Merger pursuant to the organizational documents of May Mobility; and |
| (4) | each warrant of May Mobility exercisable for May Mobility Common Stock that is outstanding and unexercised immediately prior to the Effective Time shall automatically be exercised on a cashless basis in full in accordance with its terms or otherwise exercised in full, such that upon such exercise, such warrant shall be converted into May Mobility Common Stock and shall no longer be outstanding and shall cease to exist. |
Pursuant to the Business Combination Agreement, the aggregate consideration (the “Aggregate Consideration”) to be paid to the holders of May Mobility Common Stock in, or in connection with, the Merger shall be the number of shares of Domesticated Purchaser Common Stock equal to (a) the quotient of (i) $1,350,000,000 (the “Purchase Price”) divided by (ii) $10.00, less (b) the lesser of (i) 50% of the aggregate number of (A) Non-Redemption Shares (as defined below) subject to payment by ACP, plus (B) Backstop Shares (as defined below) issuable by ACP, and (ii) 1,375,000.
The Business Combination Agreement further provides that May Mobility or its subsidiaries may repay, refinance, convert into equity of ACP or May Mobility, or otherwise satisfy any Closing Indebtedness (as defined in the Business Combination Agreement) (or any portion thereof) by any combination of the foregoing, prior to or at the Closing; provided, that no such action by May Mobility shall cause the Minimum Cash Amount condition (as described below) to not be satisfied.
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Upon the terms and subject to the satisfaction or waiver of the conditions of the Business Combination Agreement, at the Effective Time:
| (1) | each share of May Mobility Common Stock that is owned by ACP, Merger Sub or May Mobility (in treasury or otherwise) immediately prior to the Effective Time (each, an “Excluded Share”) will be cancelled and shall cease to exist and no consideration will be delivered in exchange therefor; |
| (2) | each share of May Mobility Common Stock that is issued and outstanding immediately prior to the Effective Time (other than Excluded Shares) will be cancelled and converted into the right to receive a number of shares of Domesticated Purchaser Common Stock equal to the Exchange Ratio, where the “Exchange Ratio” means the Aggregate Consideration divided by the Company Fully Diluted Capital. The “Company Fully Diluted Capital” means the sum (without duplication) of the aggregate number of shares of May Mobility Common Stock that are (i) issued and outstanding immediately prior to the Effective Time (including all shares issued upon the conversions and exercises described above), (ii) issuable upon full exercise of all issued and outstanding warrants of May Mobility exercisable for May Mobility Common Stock (calculated using the treasury method of accounting on a cashless exercise basis), and (iii) issuable upon full exercise of all vested options of May Mobility (calculated on a net exercise basis), but excluding shares issuable upon exercise of options that are not vested. |
| (3) | each option to purchase equity securities of May Mobility granted under May Mobility’s 2017 Stock Plan, as amended (a “Company Option”), whether or not vested, will automatically cease to represent an option to purchase or acquire shares of May Mobility Common Stock and be assumed and converted, as applicable, into an option to acquire that number of shares of Domesticated Purchaser Common Stock equal to the product of (A) the number of shares of May Mobility Common Stock subject to such Company Option and (B) the Exchange Ratio, at an exercise price per share equal to the quotient obtained by dividing (x) the exercise price per share of May Mobility Common Stock of such Company Option by (y) the Exchange Ratio. |
Governance
The Parties have agreed to take all such action within their power as may be necessary or appropriate, including ACP using its reasonable best efforts to obtain resignations effective immediately after the Closing from the directors of ACP that are not to remain directors on the Post-Closing Purchaser Board (as defined below), so that effective as of the Closing, the board of directors of ACP (the “Post-Closing Purchaser Board”) will be classified as to term and will initially consist of no fewer than five (5) directors, which will include (i) May Mobility’s designees; (ii) one director designated by ACP and reasonably acceptable to May Mobility; and (iii) one director identified by Maestro SPV LLC, who will be reasonably acceptable to May Mobility. One of the directors designated by May Mobility will be appointed as initial chairperson of the Post-Closing Purchaser Board, one of the directors designated by May Mobility as initial chairperson of the audit committee and one of the directors designated by May Mobility as initial chairperson of the compensation committee. To the extent any such director designated by May Mobility declines, is unable to serve or is anticipated to fail to meet the applicable independence and other requirements of the Nasdaq Stock Market LLC (“Nasdaq”) and the U.S. Securities and Exchange Commission (the “SEC”), May Mobility will determine the replacement individual in its sole discretion; to the extent a director designated by ACP declines, is unable to serve or is anticipated to fail to meet such requirements, ACP and May Mobility will mutually agree upon a replacement individual.
Representations and Warranties; Covenants
The Parties have made customary representations, warranties, and covenants in the Business Combination Agreement, including, among others, covenants with respect to the conduct of ACP and May Mobility prior to the Closing Date. In addition, ACP and May Mobility have agreed to use their commercially reasonable efforts to agree, prior to the Closing, to a form of equity incentive plan that provides for the grant of equity and equity-based incentive awards to eligible service providers of May Mobility and its subsidiaries following the Closing and a form of employee stock purchase plan in which eligible employees of May Mobility and its subsidiaries may be eligible to participate following the Closing. The representations, warranties and covenants made in the Business Combination Agreement do not survive the Closing other than covenants and agreements that by their terms expressly apply at or after the Closing.
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Conditions to Each Party’s Obligations
The obligations of ACP and May Mobility to consummate the Business Combination are subject to the satisfaction or waiver of certain customary closing conditions, including without limitation: (i) the adoption and/or approval, as applicable, by ACP’s shareholders (the “ACP Shareholder Approval”) of (A) the Business Combination Agreement and the Business Combination, including the Domestication and the Merger, in accordance with applicable law and exchange rules and regulations, (B) the Domestication, (C) the proposed charter and the bylaws of ACP upon the Domestication, (D) separate or unbundled advisory proposals relating to the proposed charter and bylaws of ACP upon the Domestication, (E) the issuance of shares of Domesticated Purchaser Common Stock, shares of Domesticated Purchaser Series A Preferred Stock and the PIPE Investor Warrants (each as defined below), as required by Nasdaq Listing Rule 5635, (F) the adoption by ACP of an equity incentive plan and an employee stock purchase plan as described in the Business Combination Agreement, (G) the appointment of the director nominees in accordance with the terms of the Business Combination Agreement, (H) any other proposals as the SEC (or staff member thereof) may indicate are necessary in its comments to the registration statement on Form S-4, or other appropriate form (the “Registration Statement”), to be filed by ACP or correspondence related thereto, (I) adoption and approval of any other proposals as reasonably agreed to by the Parties to be necessary or appropriate in connection with the Business Combination, and (J) adjournment of the ACP Shareholders Meeting (as defined below) to a later date or dates, if necessary or convenient, in the reasonable determination of the chairman of ACP, to (x) permit further solicitation and vote of proxies in the event that there are insufficient votes for any of the foregoing, (y) if ACP determines that one or more of the conditions to Closing is not or will not be satisfied or waived or (z) to facilitate the Domestication, the Merger or any other transactions contemplated by the Business Combination Agreement and the ancillary documents (such proposals in (A) through (J), together, the “Transaction Proposals”), (ii) the approval of the Business Combination Agreement and the Business Combination (including the Merger) by the affirmative vote or written consent of the stockholders of May Mobility, pursuant to the terms and in accordance with satisfaction of the conditions of the organizational documents of May Mobility and applicable law, (iii) no adverse law or order, (iv) the Registration Statement becoming effective as of the Closing, with no stop order in effect, (v) the expiration or termination of all applicable waiting periods (and any extensions thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, with respect to the Business Combination, (vi) the accuracy of the representations and warranties of each Party and the performance of the covenants and agreements of the Parties, in each case subject to certain qualifiers, (vii) the absence of a material adverse effect with respect to ACP or the target companies, (viii) the completion of the Domestication, (ix) the net proceeds remaining in ACP’s trust account (after giving effect to the redemption of Cayman Class A Shares and any payment of Closing Indebtedness (as defined in the Business Combination Agreement) actually paid in cash by May Mobility at Closing but prior to paying any transaction costs), plus the proceeds of the PIPE Investment (as defined below) to be funded at or prior to the Closing, equaling no less than $120,000,000, (x) the conditional approval of the listing of the shares of Domesticated Purchaser Common Stock to be issued in connection with the Business Combination on Nasdaq, subject to satisfaction of the round lot holders requirement and (xi) the delivery of customary closing deliverables, duly executed pay-off letters and lien releases with respect to certain indebtedness of May Mobility and its subsidiaries, as specified in the Business Combination Agreement.
Termination
The Business Combination Agreement may be terminated under certain customary and limited circumstances prior to the Closing, including, among others, (i) by mutual written consent of ACP and May Mobility; (ii) by May Mobility if ACP’s board of directors withdraws, amends, qualifies or modifies its recommendation to ACP’s shareholders at any time prior to the receipt of the ACP Shareholder Approval; (iii) by either ACP or May Mobility if the ACP Shareholder Approval is not obtained by reason of the failure to obtain the required vote at the extraordinary general meeting of ACP’s shareholders (the “ACP Shareholders Meeting”) held for the purpose of voting on the Transaction Proposals; (iv) by either ACP or May Mobility if the Closing has not occurred on or before the Outside Date, which date is subject to automatic extension by 30 days if certain conditions have not been satisfied as of the Outside Date, and, solely with respect to May Mobility’s termination right, by one calendar day for each day that certain updated financial statements are not timely delivered; (v) by ACP if May Mobility fails to deliver valid Seller Voting and Support Agreements with stockholders of May Mobility holding, in the aggregate, shares of May Mobility representing at least the percentage of outstanding voting power required to obtain the May Mobility requisite stockholder approval in accordance with the organizational documents of May Mobility (the “Requisite Stockholder Approval”) on or prior to November 4, 2026; and (vi) by ACP if May Mobility’s board of directors withdraws, amends, qualifies or modifies its recommendation to the stockholders of May Mobility at any time prior to the receipt of the Requisite Stockholder Approval.
The foregoing description of the Business Combination Agreement, the Business Combination and the related transactions does not purport to be complete and is qualified in its entirety by the terms and conditions of the Business Combination Agreement, a copy of which is filed with this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference. The Business Combination Agreement contains representations, warranties and covenants that the parties to the Business Combination Agreement made to each other as of the date of the Business Combination Agreement or other specific dates. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract among the parties and are subject to important qualifications and limitations agreed to by the parties in connection with negotiating the Business Combination Agreement. In particular, the representations, warranties, covenants and agreements contained in the Business Combination Agreement, which were made only for purposes of the Business Combination Agreement and as of specific dates, were solely for the benefit of the parties to the Business Combination Agreement, may be subject to limitations agreed upon by the contracting parties (including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Business Combination Agreement instead of establishing these matters as facts) and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors and reports and documents filed with the SEC. Investors should not rely on the representations, warranties, covenants and agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of any party to the Business Combination Agreement. In addition, the representations, warranties, covenants and agreements and other terms of the Business Combination Agreement may be subject to subsequent waiver or modification. Moreover, information concerning the subject matter of the representations and warranties and other terms may change after the date of the Business Combination Agreement, which subsequent information may or may not be fully reflected in ACP’s public disclosures.
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Sponsor Support Agreement
Concurrently with the execution of the Business Combination Agreement, ACP and May Mobility entered into the Sponsor Support Agreement (the “Sponsor Support Agreement”) with Union Street Sponsor, LLC, a Delaware limited liability company (the “Sponsor”), which is the record and beneficial owner of (x) 7,153,867 Cayman Class B Shares (the “Founder Shares”) (before giving effect to the transfer of the Sponsor Accommodation Shares to certain PIPE Investors, as described below) and (y) 435,000 units of ACP (the “Units” and, together with the Founder Shares, the “Subject Securities”), pursuant to which the Sponsor agreed to, among other things, vote (i) in favor of each Transaction Proposal, (ii) against any Alternative Transaction (as defined in the Business Combination Agreement) or any proposal relating to an Alternative Transaction, in each case other than the Transaction Proposals, (iii) against any merger agreement or merger (other than the Business Combination Agreement and the Business Combination), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by ACP, (iv) against any change in the business, management or board of directors of ACP (other than in connection with the Transaction Proposals or pursuant to the Business Combination Agreement or the ancillary documents), and (v) against any proposal, action or agreement that would (A) impede, interfere, frustrate, prevent or nullify any provision of the Sponsor Support Agreement, the Business Combination Agreement or the Business Combination, (B) result in a breach in any respect of any covenant, representation, warranty or any other obligation or agreement of ACP under the Business Combination Agreement, (C) result in any of the closing conditions of the Business Combination Agreement not being fulfilled, (D) result in a breach of any covenant, representation or warranty or other obligation or agreement of the Sponsor contained in the Sponsor Support Agreement or (E) change in any manner the dividend policy or capitalization of, including the voting rights of any class of capital stock of, ACP.
The Sponsor also agreed not to transfer its Subject Securities, subject to certain permitted transfers, prior to the earliest of (i) the Closing, (ii) the termination of the Business Combination Agreement (iii) and the liquidation of ACP, to deliver a duly executed copy of the A&R Registration Rights Agreement and the Sponsor Lock-Up Agreement (each as defined below) on the Closing Date, not to demand redemption of the Subject Securities and to opt out of certain challenges to the validity of or claims of breach of fiduciary duty of any person in connection with the Business Combination Agreement, the Sponsor Support Agreement or the Business Combination. The Sponsor further agreed to comply with, and fully perform its obligations under, that certain letter agreement, dated as of April 6, 2026, by and among ACP, the Sponsor and certain of ACP’s current and former officers and directors (the “Insider Letter”), including its obligation not to redeem any ordinary shares of ACP in connection with the Business Combination, and not to amend, terminate or otherwise modify the Insider Letter without May Mobility’s prior written consent.
In addition, pursuant to the Sponsor Support Agreement, the Sponsor has agreed that, within ten (10) business days following the date of the Sponsor Support Agreement, it will transfer and assign an aggregate of 1,375,000 Cayman Class B Shares (the “Sponsor Accommodation Shares”) to the PIPE Investors (as defined below) in accordance with the applicable PIPE Subscription Agreements (as defined below). In consideration for such transfer and assignment, ACP has agreed to issue to the Sponsor, only upon and subject to the occurrence of certain triggering events (as described below), an aggregate number of shares of Domesticated Purchaser Common Stock equal to the number of Sponsor Accommodation Shares (the “Earnout Securities”). The Earnout Securities will be earned and become issuable in four equal tranches, with 25% of the Earnout Securities earned upon the first time that the VWAP of the Domesticated Purchaser Common Stock equals or exceeds $11.00, $12.00, $13.00 and $14.00 per share (subject to customary adjustments for extraordinary dividends and recapitalizations), respectively, for 20 trading days within any 30 consecutive trading day period following the twelve-month anniversary of the date that the registration statement filed by ACP pursuant to the A&R Registration Rights Agreement first becomes effective under the Securities Act (such twelve-month anniversary, the “Triggering Date”), in each case prior to the end of the day on the six-year anniversary of the Triggering Date (the “Earnout Deadline”). If a definitive agreement with respect to a Change of Control (as defined in the Sponsor Support Agreement) is entered into on or prior to the Earnout Deadline, then, effective as of immediately prior to, and subject to the occurrence of, the closing of such Change of Control, all then-unissued Earnout Securities will be earned and become issuable to the Sponsor. Any Earnout Securities not earned by the Earnout Deadline will not be issued, and the Sponsor’s right to receive such Earnout Securities will automatically terminate for no consideration. If the Sponsor Support Agreement terminates for any reason other than the occurrence of the Closing, no Earnout Securities will be issued and the PIPE Investors will return the Sponsor Accommodation Shares to the Sponsor.
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The Sponsor also agreed to waive, subject to the consummation of the Business Combination, any and all anti-dilution rights with respect to the rate at which the Founder Shares convert into Cayman Class A Shares in connection with the transactions contemplated by the Business Combination Agreement.
The foregoing description of the Sponsor Support Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Sponsor Support Agreement, a copy of which is included as Exhibit 10.1 hereto, and the terms of which are incorporated herein by reference.
Seller Voting and Support Agreement
Concurrently with the execution of the Business Combination Agreement, certain holders of equity securities of May Mobility (the “Sellers”) entered into Seller Voting and Support Agreements with ACP and May Mobility (each, a “Seller Voting and Support Agreement”), and, on or prior to October 5, 2026, additional Sellers necessary to obtain the Requisite Stockholder Approval will execute, and May Mobility will deliver to ACP, additional Seller Voting and Support Agreements in substantially the same form attached as an exhibit to the Business Combination Agreement, subject to a review and comment process described in the Business Combination Agreement. In general, pursuant to the agreed upon form Seller Voting and Support Agreement, each Seller will agree to be bound by and comply with the no solicitation, no trading, public announcements and confidential information covenants of the Business Combination Agreement and, among other things, (a) take customary and reasonable actions in support of and, upon the effectiveness of the Registration Statement, vote in favor of the Business Combination Agreement and the other documents contemplated thereby (including the applicable ancillary documents) and the Business Combination; (b) vote against any Alternative Transaction or any proposal relating to an Alternative Transaction; (c) vote against any merger agreement or merger (other than the Business Combination Agreement and the Business Combination), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by May Mobility; (d) vote or consent against any change in the business or board of directors of May Mobility (other than pursuant to the Business Combination Agreement or the ancillary documents); (e) vote against any proposal, action or agreement that would (A) impede, interfere, frustrate, prevent or nullify any provision of the Seller Voting and Support Agreement, the Business Combination Agreement or the Business Combination, (B) result in a breach in any respect of any covenant, representation, warranty or any other obligation or agreement of May Mobility under the Business Combination Agreement, (C) result in any of the closing conditions of the Business Combination Agreement not being fulfilled, (D) result in a breach of any covenant, representation or warranty or other obligation or agreement of such Seller contained in the Seller Voting and Support Agreement or any ancillary document to which such Seller is or will be a party or (E) change in any manner the dividend policy or capitalization of, including the voting rights of any class of capital stock of, May Mobility; and (f) to convert all outstanding shares of preferred stock of May Mobility into May Mobility Common Stock as of immediately prior to the Effective Time, and after giving effect to the conversions and exercises of Company Convertible Securities and Company Warrants (as defined in the Business Combination Agreement), conditioned upon and subject to the closing of the Business Combination, in accordance with the organizational documents of May Mobility. Subject to certain exceptions, any substantive revisions to or material deviations from the form Seller Voting and Support Agreement proposed by Sellers are subject to ACP’s consent.
Pursuant to the form Seller Voting and Support Agreement, until the earliest of the Closing, the termination of the Business Combination Agreement and the liquidation of May Mobility, Sellers will agree not to (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, file (or participate in the filing of) a registration statement with the SEC (other than the Proxy Statement/Registration Statement) or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to any Subject Securities (as defined in the Seller Voting and Support Agreement) or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Subject Securities, in each case without the prior written consent of May Mobility and ACP, unless such transfer is deemed a Permitted Transfer (as defined in the Seller Voting and Support Agreement).
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In addition, pursuant to the form Seller Voting and Support Agreement, each Seller will agree not to commence, join in, facilitate, assist or encourage, and has agreed to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against ACP, May Mobility or any of their respective successors or directors, (a) challenging the validity of, or seeking to enjoin the operation of, any provision of the Seller Voting and Support Agreement or the Business Combination Agreement or (b) alleging a breach of any fiduciary duty of any person in connection with the evaluation, negotiation or entry into the Seller Voting and Support Agreement, the Business Combination Agreement or the Business Combination. Each Seller will also waive and agree not to exercise any rights of appraisal or rights to dissent from the Business Combination that they may have in respect of its Subject Securities (as defined in the Seller Voting and Support Agreement).
The foregoing description of the Seller Voting and Support Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the form of Seller Voting and Support Agreement, a copy of which is included as Exhibit 10.2 hereto, and the terms of which are incorporated herein by reference.
Lock-Up Agreements
Sponsor Lock-Up Agreement
At the Closing, ACP, May Mobility and the Sponsor will enter into a lock-up agreement (the “Sponsor Lock-Up Agreement”) in substantially the form attached to the Business Combination Agreement, pursuant to which the Sponsor and its permitted assigns will agree, prior to the date that is twelve (12) months after the date that the registration statement filed by ACP pursuant to the A&R Registration Rights Agreement (as defined below) first becomes effective under the Securities Act of 1933, as amended (the “Securities Act”) (such date, the “Effective Date”, and such twelve-month period, the “Lock-Up Period”), not to, without the prior written consent of the board of directors of ACP, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any Locked-Up Securities, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Locked-Up Securities or (iii) take any action in furtherance of any of the matters described in the foregoing clauses (i) or (ii). The Locked-Up Securities will consist of (a) the 5,778,867 shares of Domesticated Purchaser Common Stock received upon conversion of the Founder Shares in the Sponsor Share Conversion and the Domestication, (b) the 435,000 shares of Domesticated Purchaser Common Stock received upon cancellation of the Units and (c) Domesticated Purchaser Warrants to purchase 217,500 shares of Domesticated Purchaser Common Stock (collectively, the “Locked-Up Securities”). The Sponsor Lock-Up Agreement will provide for certain permitted transfers. In addition, if, prior to the expiration of the Lock-Up Period, ACP consents to release any shares of Domesticated Purchaser Common Stock, or any securities convertible into, exchangeable for or representing the right to receive shares of Domesticated Purchaser Common Stock, held by any director, officer or holder (on an as-converted basis) of 5.0% or more of the shares of May Mobility Common Stock immediately prior to the consummation of the Business Combination that has delivered a lock-up agreement to ACP in connection with the Business Combination, other than the Sponsor, from the restrictions described in the Sponsor Lock-Up Agreement, a pro rata portion of the Sponsor’s Locked-Up Securities will also be released on the same terms. The Sponsor Lock-Up Agreement will terminate upon the earlier of (a) the expiration of the Lock-Up Period applicable to all Locked-Up Securities and (b) the closing of a Company Liquidity Event (as defined in the Sponsor Lock-Up Agreement).
Cyrus Lock-Up Agreement and Keyframe Lock-Up Agreement
At the Closing, ACP, certain Sellers that are funds managed by Cyrus Capital Partners, L.P. (“Cyrus”) and the other parties thereto will enter into a lock-up agreement (the “Cyrus Lock-Up Agreement”) in substantially the form attached to the Business Combination Agreement. The applicable seller lock-up arrangements are expected to restrict transfers of (i) the shares of Domesticated Purchaser Common Stock received as consideration in the Merger in respect of shares of the May Mobility Common Stock held by such Sellers, until the Effective Date, (ii) the shares of Domesticated Purchaser Common Stock acquired in open market transactions or from ACP prior to the Closing until six months after the Effective Date and (iii) the shares of Domesticated Purchaser Series A Preferred Stock purchased from ACP and the related PIPE Investor Warrants, until six months after the Effective Date (such applicable period, the “Seller Lock-Up Period”, and such securities, collectively, the “Seller Locked-Up Securities”). Permitted transfers will include transfers to satisfy U.S. federal, state or local income tax obligations of a Seller (or its direct or indirect owners) arising from a change in the U.S. Internal Revenue Code of 1986, as amended, or the U.S. Treasury Regulations promulgated thereunder after the date on which the Business Combination Agreement was executed, and such change prevents the Business Combination from qualifying as a “reorganization” pursuant to Section 368 of such Code, in each case solely to the extent necessary to cover any tax liability as a direct result thereof. The applicable seller lock-up arrangements are expected to terminate upon the earlier of (a) expiration of the Seller Lock-Up Period applicable to all Seller Locked-Up Securities and (b) the closing of a Company Liquidity Event (as defined in the Cyrus Lock-Up Agreement).
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Separately, at the Closing, ACP, Keyframe Capital Fund III, L.P. and the other parties thereto will enter into a lock-up agreement (the “Keyframe Lock-Up Agreement”) in substantially the form attached to the Business Combination Agreement, and with substantially the same terms as the Cyrus Lock-Up Agreement. The Sponsor Lock-Up Agreement, the Cyrus Lock-Up Agreement and the Keyframe Lock-Up Agreement are each referred to herein as a “Lock-Up Agreement”.
The foregoing description of each Lock-Up Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of (i) the form of Sponsor Lock-Up Agreement, a copy of which is attached as Exhibit 10.3 hereto, (ii) the form of Cyrus Lock-Up Agreement, a copy of which is attached as Exhibit 10.4 hereto, and (iii) the form of Keyframe Lock-Up Agreement, a copy of which is attached as Exhibit 10.5 hereto, and the terms of each of which are incorporated herein by reference.
Amended and Restated Registration Rights Agreement
At the Closing, ACP, the Sponsor, the other holders party thereto (including Cantor Fitzgerald & Co.), the PIPE Investors and certain securityholders of May Mobility will enter into an amended and restated registration rights agreement (the “A&R Registration Rights Agreement”), which will amend and restate in its entirety that certain Registration Rights Agreement, dated as of April 6, 2026, among ACP, the Sponsor and the holders signatory thereto. Pursuant to the A&R Registration Rights Agreement, ACP will grant such holders certain customary registration rights with respect to the securities of ACP that they will hold following the Business Combination.
Under the A&R Registration Rights Agreement, ACP will be required to file, at its sole cost and expense, within 30 days after the Closing Date, a shelf registration statement on Form S-1 or, if eligible, Form S-3, covering the resale of all registrable securities on a delayed or continuous basis. ACP will use commercially reasonable efforts to have such shelf registration statement declared effective as soon as reasonably practicable, but no later than the earlier of (a) the 75th calendar day following the filing date if the SEC notifies ACP that it will review the registration statement and (b) the tenth business day after the date ACP is notified that the SEC will not review or will not subject the registration statement to further review.
At any time an effective shelf registration statement is on file with the SEC, any holder party to the A&R Registration Rights Agreement may request an underwritten shelf takedown, provided that the total offering price reasonably expected from the offering exceeds $50,000,000 in the aggregate. Each of (i) the Sponsor Holders (as defined in the A&R Registration Rights Agreement), collectively, (ii) the MM Holders (as defined in the A&R Registration Rights Agreement), collectively, (iii) the PIPE Holders (as defined in the A&R Registration Rights Agreement), collectively, and (iv) the Other Holders (as defined in the A&R Registration Rights Agreement), collectively, may demand no more than two (2) underwritten shelf takedowns in any 12-month period.
If (i) the registration statement is not filed by the filing deadline, (ii) the registration statement is not declared effective by the effectiveness deadline or (iii) after effectiveness, sales cannot be made pursuant to the registration statement, ACP will make pro rata payments to each PIPE Investor, as liquidated damages and not as a penalty, in an amount equal to 3.0% of the aggregate amount paid pursuant to the applicable PIPE Subscription Agreement by such PIPE Investor for the registrable securities then held by such PIPE Investor for each 30-Business Day period, or pro rata for any portion thereof, during which such failure continues. The A&R Registration Rights Agreement also provides that ACP may delay or suspend the use of a registration statement on no more than two (2) occasions and for not more than 90 consecutive calendar days or 120 total calendar days in any 12-month period and provides for the payment of liquidated damages in the event ACP exercises such right in excess of such permitted time periods.
In addition, the A&R Registration Rights Agreement provides the holders with customary piggyback registration rights with respect to registered offerings conducted by ACP or by other holders.
The foregoing description of the A&R Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the form of A&R Registration Rights Agreement, a copy of which is attached as Exhibit 10.6 hereto, and the terms of which are incorporated herein by reference.
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PIPE Investment
In connection with the Business Combination, on the Signing Date, ACP, May Mobility and certain accredited investors named therein (the “PIPE Investors”) entered into securities purchase agreements (the “PIPE Subscription Agreements”). Pursuant to the PIPE Subscription Agreements, the PIPE Investors have agreed, among other things, to purchase, at Closing, (i) an aggregate of 11,764,704 shares of 12.0% Series A Cumulative Convertible Preferred Stock, par value $0.0001 per share, of ACP (the “Domesticated Purchaser Series A Preferred Stock”), having the rights, preferences and privileges set forth in the form of Certificate of Designation of Preferences, Rights and Limitations of the Domesticated Purchaser Series A Preferred Stock (the “Series A Certificate of Designation”), which will be filed with the Secretary of State of the State of Delaware prior to the Closing, and (ii) warrants (the “PIPE Investor Warrants”) to purchase a number of shares of Domesticated Purchaser Common Stock equal to 100% of the total number of shares of Domesticated Purchaser Common Stock into which such investor’s shares of Domesticated Purchaser Series A Preferred Stock are convertible on the Closing Date, in each case for an aggregate purchase price of approximately $120,000,000 (the “PIPE Investment”). Each share of Domesticated Purchaser Series A Preferred Stock will have a stated value of $12.00. Cantor Fitzgerald & Co. is acting as placement agent in connection with the PIPE Investment.
The PIPE Subscription Agreements include customary representations and warranties from ACP, May Mobility and the PIPE Investors and are subject to customary closing conditions, including the satisfaction or waiver of the conditions precedent to the closing of the Business Combination and the completion of the Domestication. The PIPE Subscription Agreements also include customary covenants and agreements related to transfer restrictions, SEC reports, material non-public information and indemnification. The shares of Domesticated Purchaser Common Stock issuable upon conversion of the Domesticated Purchaser Series A Preferred Stock and upon exercise of the PIPE Investor Warrants (collectively, the “Underlying Shares”), and any additional shares issuable in connection with non-redemption shortfalls (“Backstop Shares”), a volume-weighted-average-price (“VWAP”) true-up or a PIPE upsize or an investment into May Mobility on or before September 30, 2026 (a “prefunding”) that will automatically convert into a PIPE Investment upon the Closing (“Incentive Shares”) will be registrable securities under the A&R Registration Rights Agreement and the PIPE Investors will become parties thereto as holders of such registrable securities.
Sponsor Accommodation Shares: Within ten business days of the date of the PIPE Subscription Agreements, the Sponsor shall transfer to certain PIPE Investors the Sponsor Accommodation Shares, provided that such PIPE Investors have agreed (i) not to, prior to the Closing, transfer such Sponsor Accommodation Shares, (ii) not to submit such Sponsor Accommodation Shares for redemption in connection with any extraordinary general meeting of ACP’s shareholders to approve the transactions contemplated by the Business Combination Agreement or any extension of the deadline to consummate an initial business combination, (iii) to vote all Sponsor Accommodation Shares in favor of any proposals put forth by ACP in connection with any extraordinary general meeting of ACP’s shareholders to approve the transactions contemplated by the Business Combination Agreement or any extension of the deadline to consummate an initial business combination and (iv) that in the event the Business Combination Agreement expires or is terminated or the transactions contemplated thereby are otherwise not consummated, to return such Sponsor Accommodation Shares to the Sponsor within ten Business Days.
Non-Redemption Shares and Non-Redemption Payment: With respect to an amount of Class A ordinary shares of ACP equal to up to 1,000,000 less the number of Sponsor Accommodation Shares received by such PIPE Investor from the Sponsor (such amount, the “Maximum Non-Redemption Share Amount”) held and not submitted for redemption by the applicable PIPE Investor or its designee in connection with the redemption of Class A ordinary shares by ACP’s public shareholders (such shares, the “Non-Redemption Shares”), ACP will, at the election of the applicable PIPE Investor, pay to such PIPE Investor or its designee, in cash within two (2) business days after the Closing, an amount per Non-Redemption Share equal to the price offered to ACP’s public shareholders through the redemption plus any commissions paid or payable by such PIPE Investor or its designee for such share (the “Non-Redemption Payment”). In lieu of cash payment, the applicable PIPE Investor may elect to offset and deduct the Non-Redemption Payment from the purchase price payable at Closing.
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Backstop Shares and VWAP True-Up: If a PIPE Investor or its designee does not hold at least the Maximum Non-Redemption Share Amount as of the Closing Date for which it has elected to receive the Non-Redemption Payment, ACP will issue to the applicable PIPE Investor a number of Backstop Shares equal to the shortfall between the Maximum Non-Redemption Share Amount and the number of Non-Redemption Shares actually acquired and held through the Closing. In addition, if the VWAP of the Domesticated Purchaser Common Stock for the period beginning on the first day on which the Domesticated Purchaser Common Stock is traded (a “Trading Day”) following the Closing Date and ending on the Trading Day immediately prior to the Effective Date (the “VWAP Price”) is greater than the VWAP of the Domesticated Purchaser Common Stock on the Effective Date (the “Effectiveness Price”), ACP will issue additional shares of Domesticated Purchaser Common Stock (the “VWAP true-up shares”) to the applicable PIPE Investor based on the difference between the VWAP Price and the Effectiveness Price, rounded down to the nearest whole share and subject to a cap of twice the number of Backstop Shares. The VWAP true-up shares and the Backstop Shares will be restricted securities under Rule 144 under the Securities Act and will be entitled to registration rights under the A&R Registration Rights Agreement.
PIPE Upsize and Incentive Shares: The PIPE Investment may be increased by up to $50,000,000 in aggregate in gross cash proceeds from a PIPE Investor, any other Series A investor or any other investors approved by a certain Principal Investor (as defined in the Series A Certificate of Designation) in writing (the “PIPE Upsize”). Such PIPE Upsize may include Incentive Shares equal to 25% of the PIPE Upsize amount divided by $10.00, subject to a maximum of 1,250,000 Incentive Shares. The Incentive Shares issued in a PIPE Upsize or prefunding will be restricted securities under Rule 144 and will have the same registration rights under the A&R Registration Rights Agreement as other registrable securities.
Subsequent Equity Sales Standstill: From the date of the PIPE Subscription Agreements until 180 days after the Effective Date, ACP may not, without the prior written consent of the applicable PIPE Investor, (A) issue shares of Domesticated Purchaser Common Stock or any securities of ACP that would entitle the holder to acquire Domesticated Purchaser Common Stock at any time, including debt, preferred stock, rights, options, warrants or other instruments that are convertible into or exercisable or exchangeable for, or otherwise entitle the holder to receive, Domesticated Purchaser Common Stock (collectively, the “Common Stock Equivalents”), (B) effect a reverse stock split, recapitalization, share consolidation, reclassification or similar transaction affecting the outstanding Domesticated Purchaser Common Stock or (C) file with the SEC a registration statement relating to any shares of Domesticated Purchaser Common Stock or Common Stock Equivalents, except pursuant to the A&R Registration Rights Agreement. These restrictions will not apply to (i) securities or Backstop Shares issued under the PIPE Subscription Agreements, (ii) shares issued upon conversion, exercise or vesting of outstanding securities, subject to the limitations in the PIPE Subscription Agreements, (iii) shares or securities issued pursuant to stock-based compensation plans or in accordance with Nasdaq Stock Market Rule 5635(c)(4), (iv) Form S-8 filings or (v) securities issued in a PIPE Upsize solely from the date of the PIPE Subscription Agreements through the Closing.
No Forward Purchase Agreements; No Non-Redemption Incentives: Except as set forth in the Non-Redemption Shares provisions of the PIPE Subscription Agreements and the Business Combination Agreement, neither ACP, May Mobility nor any of their respective representatives, officers, directors, agents, employees or affiliates will, from the date of the PIPE Subscription Agreements through 180 days after the Effective Date, (i) enter into any forward purchase agreement or (ii) enter into, make or promise any non-redemption incentive, other than to the extent necessary to satisfy the listing requirements of Nasdaq.
Dividends: The Domesticated Purchaser Series A Preferred Stock will accrue dividends daily at the rate of 12% per annum of the Accrued Value (as defined in the Series A Certificate of Designation) (if paid in kind), plus the amount of previously accrued dividends paid in kind, or 10% per annum of the Accrued Value (if paid in cash), plus the amount of previously accrued dividends paid in kind. Such dividends will be cumulative and will accrue whether or not declared and whether or not ACP has earnings or funds legally available for their payment and will compound semi-annually.
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Liquidation Preference: Upon any liquidation or deemed liquidation event, the holders of Domesticated Purchaser Series A Preferred Stock will be entitled to receive out of the available proceeds, before any distribution is made to holders of Domesticated Purchaser Common Stock or any other junior securities, an amount per share equal to the greater of (i) 100% of the Accrued Value on each share of Domesticated Purchaser Series A Preferred Stock or (ii) such amount per share as would have been payable had all shares of Domesticated Purchaser Series A Preferred Stock been converted into Domesticated Purchaser Common Stock immediately prior to the liquidation event. Thereafter, the holders of Domesticated Purchaser Series A Preferred Stock will be entitled to receive their pro-rata share of the remaining proceeds available for distribution to stockholders, on an as-converted to Domesticated Purchaser Common Stock basis.
Voting: The Domesticated Purchaser Series A Preferred Stock will vote together with the Domesticated Purchaser Common Stock as a single class, except as required by law and as noted below under “Protective Provisions.” Each holder of Domesticated Purchaser Series A Preferred Stock shall be entitled to cast the number of votes equal to the number of whole shares of Domesticated Purchaser Common Stock into which the shares of Domesticated Purchaser Series A Preferred Stock held by such holder are convertible as of the record date for determining stockholders entitled to vote on such matter.
Protective Provisions: For as long as at least 20% of the shares of Domesticated Purchaser Series A Preferred Stock issued as of Closing are outstanding, ACP shall not, without the affirmative vote or action by written consent of the holders of at least a majority of the issued and outstanding shares of Domesticated Purchaser Series A Preferred Stock, which majority must include each Principal Investor (as defined in the Series A Certificate of Designation), for so long as each such Principal Investor holds at least 50% of the number of shares of Domesticated Purchaser Series A Preferred Stock originally issued to such Principal Investor as of Closing (the “Required Holders”), take any of the following actions, whether directly or indirectly by amendment, merger, consolidation, domestication, transfer, continuance, reorganization, recapitalization, reclassification, waiver, statutory conversion or otherwise: (i) liquidate, dissolve or wind up the affairs of ACP; (ii) enter into any transaction with an affiliate, other than (A) any transaction with a wholly owned subsidiary of ACP or (B) the issuance of equity or awards to eligible participants under ACP’s incentive plan, equity plan or equity-based compensation plan, or with respect to employment, consulting or award agreements with respect to executive officers of ACP, in each case regardless of whether such person (or such person’s affiliates) would be considered an affiliate of ACP; or (iii) incur or guarantee, in each case by ACP, any new indebtedness, other than equipment leases or trade payables incurred in the ordinary course of business; provided, however, that the Domesticated Purchaser Series A Preferred Stock shall not be considered indebtedness for purposes of this calculation. In addition, for as long as at least 5% of the shares of Domesticated Purchaser Series A Preferred Stock issued as of Closing are outstanding, ACP shall not, without the affirmative vote or action by written consent of the Required Holders, (i) amend, alter or repeal any provision of the certificate of incorporation, bylaws, Series A Certificate of Designation or any similar document of ACP (A) in a manner that materially and adversely affects the powers, preferences or rights given to the Domesticated Purchaser Series A Preferred Stock or (B) to increase or decrease the aggregate number of authorized shares of Domesticated Purchaser Series A Preferred Stock; (ii) create, authorize the creation of, classify or reclassify any equity security, or issue any other security convertible into or exercisable for any equity security, unless such security ranks junior to the Domesticated Purchaser Series A Preferred Stock with respect to its rights, preferences and privileges; or (iii) purchase or redeem or pay any cash dividend on any capital stock ranking junior to the Domesticated Purchaser Series A Preferred Stock prior to payment of such cash dividend on the Domesticated Purchaser Series A Preferred Stock, or purchase or redeem any capital stock ranking junior to the Domesticated Purchaser Series A Preferred Stock, other than stock repurchased at cost from former employees and consultants in connection with the cessation of their service or pursuant to the terms of any equity incentive plan of ACP. Any such action taken without the required vote or consent will be null and void ab initio.
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Conversion: Each share of Domesticated Purchaser Series A Preferred Stock will be convertible into Domesticated Purchaser Common Stock at any time at the option of the holder at a rate equal to the Accrued Value, divided by the then-applicable conversion price. The conversion price will initially be $12.00, subject to adjustments for stock dividends, splits, combinations and similar events and customary anti-dilution adjustments, including with respect to future issuances or sales of Domesticated Purchaser Common Stock at prices less than the conversion price then in effect. In addition, if the 20-Trading Day volume-weighted average price of the Domesticated Purchaser Common Stock measured as of the twenty-first Trading Day following the date that is six months after the Closing Date is less than the conversion price then in effect, the conversion price will be adjusted to the greater of (i) such volume weighted average price and (ii) $5.00, as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction occurring after the date of the PIPE Subscription Agreements (the “VWAP Adjustment”).
Put Rights: Unless prohibited by applicable law governing distributions to stockholders, the Domesticated Purchaser Series A Preferred Stock shall be redeemable at the option of any requesting holder, as to all of such holder’s shares, commencing any time after the 5th anniversary of the Closing at a price equal to the Accrued Value. If any portion of such redemption price is not paid within five (5) business days following the applicable redemption date, interest will accrue on the unpaid portion until paid in full at a rate equal to the lesser of 24% per annum and the maximum rate permitted under applicable law.
Call Rights: Unless prohibited by applicable law governing distributions to stockholders, the Domesticated Purchaser Series A Preferred Stock shall be redeemable at the option of ACP, in whole or in part, commencing any time (A) on or after the 3rd anniversary of the Closing but prior to the 4th anniversary of the Closing at a price equal to the greater of (i) 120% of the Accrued Value (which shall be payable in cash) and (ii) such amount per share as would have been payable had all shares of Domesticated Purchaser Series A Preferred Stock been converted into Domesticated Purchaser Common Stock immediately prior to such redemption based on the then effective rate of conversion (which shall be payable in cash; provided that ACP may, at its option, pay the amount payable per share that is in excess of 120% of the Accrued Value in shares of Domesticated Purchaser Common Stock, with the value of such shares of Domesticated Purchaser Common Stock being the closing price of such shares of Domesticated Purchaser Common Stock on the principal trading market on which such shares are listed or quoted (the “Trading Market”) on the applicable date of redemption), (B) on or after the 4th anniversary of the Closing but prior to the 5th anniversary of the Closing at a price equal to the greater of (i) 110% of the Accrued Value (which shall be payable in cash) and (ii) such amount per share as would have been payable had all shares of Domesticated Purchaser Series A Preferred Stock been converted into Domesticated Purchaser Common Stock immediately prior to such redemption based on the then effective rate of conversion (which shall be payable in cash; provided that ACP may, at its option, pay the amount payable per share that is in excess of 110% of the Accrued Value in shares of Domesticated Purchaser Common Stock, with the value of such shares of Domesticated Purchaser Common Stock being the closing price of such shares of Domesticated Purchaser Common Stock on the Trading Market on the applicable date of redemption), or (C) on or after the 5th anniversary of the Closing at a price equal to the greater of (i) 100% of the Accrued Value (which shall be payable in cash) and (ii) such amount per share as would have been payable had all shares of Domesticated Purchaser Series A Preferred Stock been converted into Domesticated Purchaser Common Stock immediately prior to such redemption based on the then effective rate of conversion (which shall be payable in cash; provided that ACP may, at its option, pay the amount payable per share that is in excess of 100% of the Accrued Value in shares of Domesticated Purchaser Common Stock, with the value of such shares of Domesticated Purchaser Common Stock being the closing price of such shares of Domesticated Purchaser Common Stock on the Trading Market on the applicable date of redemption).
PIPE Investor Warrants: At the closing of the PIPE Investment, the PIPE Investors will receive PIPE Investor Warrants to purchase a number of shares of Domesticated Purchaser Common Stock equal to 100% of the total number of shares of Domesticated Purchaser Common Stock into which such investor’s shares of Domesticated Purchaser Series A Preferred Stock are convertible on the Closing Date. The PIPE Investor Warrants will be immediately exercisable upon issuance at Closing and will have a term of five (5) years. The PIPE Investor Warrants include customary cash and cashless exercise provisions. Each PIPE Investor Warrant is initially exercisable at $12.00 per share of Domesticated Purchaser Common Stock, subject to the same anti-dilution and other adjustments as the Domesticated Purchaser Series A Preferred Stock.
The foregoing description of the PIPE Investment does not purport to be complete and is qualified in its entirety by reference to (i) the full text of the form of PIPE Subscription Agreement, a copy of which is attached as Exhibit 10.7 hereto, (ii) the full text of the form of Series A Certificate of Designation, a copy of which is attached as Exhibit 3.1 hereto, and (iii) the full text of the form of PIPE Investor Warrant, a copy of which is attached as Exhibit 4.1 hereto, and the terms of each of which are incorporated herein by reference.
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Item 3.02. Unregistered Sales of Equity Securities.
The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K with respect to the issuance of shares of Domesticated Purchaser Common Stock pursuant to the Business Combination Agreement, including any Backstop Shares, Incentive Shares and VWAP true-up shares, the issuance of Domesticated Purchaser Warrants in connection with the Domestication and the issuance of shares of Domesticated Purchaser Series A Preferred Stock and PIPE Investor Warrants pursuant to the PIPE Subscription Agreements is incorporated by reference herein. The securities to be offered and sold in connection with the Business Combination Agreement and the PIPE Subscription Agreements, including such additional shares and the Underlying Shares, have not been and will not be registered under the Securities Act, in reliance upon the exemption from registration provided in Section 4(a)(2) of the Securities Act and Regulation D promulgated thereunder.
Item 7.01. Regulation FD Disclosure.
On September 16, 2026, ACP and May Mobility issued a joint press release announcing their entry into the Business Combination Agreement. The press release is furnished hereto as Exhibit 99.1 and incorporated by reference into this Item 7.01.
On September 16, 2026, representatives of ACP and May Mobility will present to investors an investor presentation (the “Investor Presentation”) in connection with the announcement of the Business Combination Agreement. A copy of the Investor Presentation is being furnished hereto as Exhibit 99.2 and is incorporated by reference into this Item 7.01.
The foregoing (including Exhibit 99.1) is being furnished pursuant to Item 7.01 and will not be deemed to be filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise be subject to the liabilities of that section, nor will it be deemed to be incorporated by reference in any filing under the Securities Act or the Exchange Act, except as expressly set forth by specific reference in such filing.
Additional Information
The Business Combination will be submitted to shareholders of ACP for their consideration. In connection with the Business Combination, ACP and May Mobility intend to file a Registration Statement with the SEC, which will include a proxy statement/prospectus and certain other related documents, which will serve as both the proxy statement to be distributed to shareholders of ACP in connection with its solicitation for proxies for the vote by its shareholders in connection with the Business Combination and other matters to be described in the Registration Statement, as well as the prospectus relating to the offer and sale of the securities to be issued to securityholders of ACP and equityholders of May Mobility in connection with the completion of the Business Combination. After the Registration Statement is declared effective, ACP will mail a definitive proxy statement and other relevant documents to its shareholders as of the record date established for voting on the Business Combination. This communication is not a substitute for the Registration Statement, the definitive proxy statement/prospectus or any other document that ACP will send to its shareholders in connection with the Business Combination.
INVESTORS AND SECURITY HOLDERS ARE ADVISED TO READ, WHEN AVAILABLE, THE REGISTRATION STATEMENT, PROXY STATEMENT/PROSPECTUS AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY IF AND WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE BUSINESS COMBINATION AND THE PARTIES TO THE BUSINESS COMBINATION. Investors and security holders will be able to obtain copies of these documents (if and when available) and other documents filed with the SEC free of charge at www.sec.gov. The definitive proxy statement/final prospectus (if and when available) will be mailed to shareholders of ACP as of a record date to be established for voting on the Business Combination. Shareholders of ACP will also be able to obtain copies of the proxy statement/prospectus without charge, once available, by directing a request to: ACP Holdings Acquisition Corp., 3131 Eastside Street, Houston, Texas 77098. The information contained on, or that may be accessed through, the websites referenced in this Current Report on Form 8-K is not incorporated by reference into, and is not a part of, this Current Report on Form 8-K.
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Participants in the Solicitation
ACP, May Mobility and their respective directors, executive officers and other members of their management and employees, under SEC rules, may be deemed to be participants in the solicitation of proxies of ACP’s shareholders in connection with the Business Combination. Investors and security holders may obtain more detailed information regarding the names, affiliations and interests of ACP’s directors and officers in ACP’s SEC filings, including ACP’s final prospectus relating to its initial public offering, dated April 6, 2026 and filed with the SEC pursuant to Rule 424(b) under the Securities Act, available free of charge at the SEC’s website at www.sec.gov. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of proxies to ACP’s shareholders in connection with the Business Combination will be set forth in the proxy statement/prospectus for the Business Combination when available. Information concerning the interests of ACP’s and May Mobility’s participants in the solicitation, which may, in some cases, be different than those of their respective equity holders generally, will be set forth in the proxy statement/prospectus relating to the Business Combination when it becomes available.
Forward Looking Statements
This Current Report on Form 8-K and certain of the exhibits hereto contain certain statements that are not historical facts but may be considered “forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. Forward-looking statements generally are accompanied by words such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,” “would,” “plan,” “predict,” “potential,” “seem,” “seek,” “future,” “outlook” or the negatives of these terms or variations of them or similar terminology or expressions that predict or indicate future events or trends or that are not statements of historical matters. These forward-looking statements include, but are not limited to, statements regarding future events, the Business Combination, the PIPE Investment, including the potential dilution and other effects of the securities to be issued in connection with the Business Combination, the anticipated benefits and expected timing of the Business Combination, the estimated or anticipated future results of ACP following the Business Combination, including the likelihood and ability of the Parties to successfully consummate the Business Combination, future opportunities for ACP and May Mobility and other statements that are not historical facts.
These statements are based on the current expectations of the management of ACP and/or May Mobility and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on, by any investor as a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of ACP and May Mobility. These statements are subject to a number of risks and uncertainties regarding May Mobility’s business and the Business Combination, and actual results may differ materially. These risks and uncertainties include, but are not limited to: changes in general economic, political, business and market conditions; the inability of the Parties to consummate the Business Combination or the occurrence of any event, change or other circumstance that could give rise to the termination of the Business Combination Agreement; the number of redemption requests made by shareholders of ACP in connection with the Business Combination; the outcome of any legal proceedings that may be instituted against the Parties following the announcement of the Business Combination; the risk that the approval of the shareholders of May Mobility or ACP for the Business Combination is not obtained; failure to realize the anticipated benefits of the Business Combination, including as a result of a delay in consummating the potential transaction; the risk that the Business Combination disrupts current plans and operations as a result of the announcement and consummation of the Business Combination; the risks related to the rollout of the business of May Mobility and the timing of expected business milestones; the effects of competition on May Mobility’s business; the ability of ACP following the Business Combination to execute its growth strategy, manage growth profitably and retain its key employees; the ability of ACP to obtain or maintain the listing of its securities on a U.S. national securities exchange following the Business Combination; costs related to the Business Combination; and other risks that will be detailed from time to time in filings with the SEC and described in the Registration Statement when available. The foregoing list of risk factors is not exhaustive. There may be additional risks that ACP and May Mobility presently do not know or that ACP and May Mobility currently believe are immaterial that could also cause actual results to differ from those contained in forward-looking statements. In addition, forward-looking statements provide ACP’s and May Mobility’s expectations, plans or forecasts of future events and views as of the date of this communication. ACP and May Mobility anticipate that subsequent events and developments will cause their assessments to change. However, while ACP and May Mobility may elect to update these forward-looking statements in the future, ACP and May Mobility specifically disclaim any obligation to do so. These forward-looking statements should not be relied upon as representing ACP’s or May Mobility’s assessments as of any date subsequent to the date of this communication. Accordingly, undue reliance should not be placed upon the forward-looking statements. Nothing herein should be regarded as a representation by any person that the forward-looking statements set forth herein will be achieved or results of such forward-looking statements will be achieved.
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The foregoing list of factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors” section of the Registration Statement referenced above when available and other documents filed by ACP and May Mobility from time to time with the SEC. These filings will identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements. You should not place undue reliance upon any forward-looking statements, which speak only as of the date made. There may be additional risks that neither ACP nor May Mobility presently knows, or that ACP and/or May Mobility currently believe are immaterial, that could cause actual results to differ from those contained in the forward-looking statements. For these reasons, among others, investors and other interested persons are cautioned not to place undue reliance upon any forward-looking statements in this Current Report on Form 8-K. Past performance by ACP’s or May Mobility’s management teams and their respective affiliates is not a guarantee of future performance. Therefore, you should not place undue reliance on the historical record of the performance of ACP’s or May Mobility’s management teams or businesses associated with them as indicative of future performance of an investment or the returns that ACP or May Mobility will, or may, generate going forward. Neither ACP nor May Mobility undertakes any obligation to publicly revise these forward-looking statements to reflect events or circumstances that arise after the date of this Current Report on Form 8-K, except as required by applicable law.
No Offer or Solicitation
This communication is for informational purposes only and is not (i) an offer to purchase, nor a solicitation of an offer to sell, subscribe for or buy any securities, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law nor (ii) the solicitation of any vote in any jurisdiction pursuant to the Business Combination or otherwise. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act. No securities commission or securities regulatory authority in the United States or any other jurisdiction has in any way passed upon the merits of the Business Combination or the accuracy or adequacy of this communication.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| † | Certain of the exhibits and schedules to this exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to furnish supplementally a copy of all omitted exhibits and schedules to the SEC upon its request. |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| ACP HOLDINGS ACQUISITION CORP. | |||
| Date: September 16, 2026 | By: | /s/ Andrew Mallozzi | |
| Name: | Andrew Mallozzi | ||
| Title: | Chief Executive Officer | ||
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Exhibit 2.1
EXECUTION VERSION
Business
Combination Agreement
by and among
ACP
Holdings Acquisition Corp.
as the Purchaser
Maestro
Merger Sub, Inc.
as Merger Sub
and
May
Mobility, Inc.
as the Company
Dated September 15, 2026
Table of Contents
| Page | ||
| Article I THE TRANSACTIONS | 3 | |
| Section 1.01 | The Domestication | 3 |
| Section 1.02 | The Merger | 3 |
| Article II CONSIDERATION | 4 | |
| Section 2.01 | Pre-Effective Time Conversions | 4 |
| Section 2.02 | Conversion of Securities | 4 |
| Section 2.03 | Surrender and Payment | 5 |
| Section 2.04 | Dissenting Shares | 5 |
| Section 2.05 | No Fractional Shares | 6 |
| Section 2.06 | Adjustment | 6 |
| Section 2.07 | Lost or Destroyed Certificates | 6 |
| Section 2.08 | Withholding | 6 |
| Article III Closing | 6 | |
| Section 3.01 | Closing | 6 |
| Section 3.02 | Closing Documents | 6 |
| Section 3.03 | Payment of Expenses and Treatment of Closing Indebtedness | 7 |
| Article IV Representations and Warranties of the Company | 7 | |
| Section 4.01 | Organization and Standing | 7 |
| Section 4.02 | Authorization; Binding Agreement | 7 |
| Section 4.03 | Capitalization | 7 |
| Section 4.04 | Subsidiaries | 8 |
| Section 4.05 | No Conflict; Governmental Consents and Filings | 8 |
| Section 4.06 | Financial Statements | 9 |
| Section 4.07 | Undisclosed Liabilities | 9 |
| Section 4.08 | Absence of Certain Changes | 9 |
| Section 4.09 | Compliance with Laws | 9 |
| Section 4.10 | Government Contracts | 10 |
| Section 4.11 | Company Permits | 10 |
| Section 4.12 | Litigation | 10 |
| Section 4.13 | Material Contracts | 11 |
| Section 4.14 | Intellectual Property | 12 |
| Section 4.15 | Taxes and Returns | 15 |
| Section 4.16 | Real Property | 16 |
| Section 4.17 | Personal Property | 16 |
| i |
| Section 4.18 | Employee Matters | 17 |
| Section 4.19 | Company Benefit Plans | 17 |
| Section 4.20 | Environmental Matters | 18 |
| Section 4.21 | Transactions with Related Persons | 19 |
| Section 4.22 | Insurance | 19 |
| Section 4.23 | Top Customers and Suppliers | 19 |
| Section 4.24 | Certain Business Practices | 20 |
| Section 4.25 | Product Liability | 20 |
| Section 4.26 | Investment Company Act | 20 |
| Section 4.27 | Finders and Brokers | 20 |
| Section 4.28 | Independent Investigation | 20 |
| Section 4.29 | Information Supplied | 21 |
| Section 4.30 | No Additional Representations or Warranties | 21 |
| Article V Representations and Warranties of the Purchaser and Merger Sub | 21 | |
| Section 5.01 | Organization and Standing | 21 |
| Section 5.02 | Authorization; Binding Agreement | 21 |
| Section 5.03 | Governmental Approvals | 22 |
| Section 5.04 | Non-Contravention | 22 |
| Section 5.05 | Capitalization | 22 |
| Section 5.06 | SEC Filings and Purchaser Financials; Internal Controls | 23 |
| Section 5.07 | Absence of Certain Changes | 24 |
| Section 5.08 | Undisclosed Liabilities | 24 |
| Section 5.09 | Compliance with Laws | 24 |
| Section 5.10 | Legal Proceedings; Orders; Permits | 25 |
| Section 5.11 | Taxes and Returns | 25 |
| Section 5.12 | Properties | 26 |
| Section 5.13 | Investment Company Act | 26 |
| Section 5.14 | Trust Account | 26 |
| Section 5.15 | Finders and Brokers | 27 |
| Section 5.16 | Certain Business Practices | 27 |
| Section 5.17 | Insurance | 27 |
| Section 5.18 | Information Supplied | 27 |
| Section 5.19 | Transaction with Affiliates | 27 |
| Section 5.20 | Employees; Benefit Plans | 28 |
| Section 5.21 | Independent Investigation | 28 |
| Section 5.22 | No Additional Representation or Warranties | 28 |
| ii |
| Article VI Covenants | 28 | |
| Section 6.01 | Access and Information; Cooperation | 28 |
| Section 6.02 | Conduct of Business of the Company | 29 |
| Section 6.03 | Conduct of Business of the Purchaser | 32 |
| Section 6.04 | Updated Financial Statements; Seller Voting and Support Agreements | 34 |
| Section 6.05 | Purchaser Public Filings | 35 |
| Section 6.06 | No Solicitation | 35 |
| Section 6.07 | No Trading | 36 |
| Section 6.08 | Notification of Certain Matters | 36 |
| Section 6.09 | Efforts | 36 |
| Section 6.10 | Trust Account | 37 |
| Section 6.11 | Tax Matters | 37 |
| Section 6.12 | Company Warrants | 38 |
| Section 6.13 | Further Assurances | 38 |
| Section 6.14 | The Preparation of Proxy Statement/Registration Statement; Shareholders’ Meeting and Approvals | 38 |
| Section 6.15 | Employee Matters | 41 |
| Section 6.16 | Public Announcements | 41 |
| Section 6.17 | Confidential Information | 42 |
| Section 6.18 | Documents and Information | 43 |
| Section 6.19 | Post-Closing Board of Directors and Executive Officers | 43 |
| Section 6.20 | Indemnification of Directors and Officers; Tail Insurance | 44 |
| Section 6.21 | Redemption | 44 |
| Section 6.22 | Domestication | 44 |
| Section 6.23 | PIPE Investment | 45 |
| Section 6.24 | Affiliate Agreements | 45 |
| Section 6.25 | Intellectual Property Matters | 45 |
| Section 6.26 | Sponsor Indemnification | 45 |
| Section 6.27 | Name Change | 46 |
| Article VII Closing Conditions | 46 | |
| Section 7.01 | Conditions to Each Party’s Obligations | 46 |
| Section 7.02 | Conditions to Obligations of the Company | 47 |
| Section 7.03 | Conditions to Obligations of the Purchaser and Merger Sub | 48 |
| Section 7.04 | Frustration of Conditions | 49 |
| Article VIII Termination and Expenses | 49 | |
| Section 8.01 | Termination | 49 |
| Section 8.02 | Expenses | 50 |
| Section 8.03 | Effect of Termination | 50 |
| iii |
| Article IX Miscellaneous | 51 | |
| Section 9.01 | No Survival | 51 |
| Section 9.02 | Notices | 51 |
| Section 9.03 | Binding Effect; Assignment | 51 |
| Section 9.04 | Third Parties | 51 |
| Section 9.05 | Governing Law | 52 |
| Section 9.06 | Jurisdiction | 52 |
| Section 9.07 | WAIVER OF JURY TRIAL | 52 |
| Section 9.08 | Specific Performance | 52 |
| Section 9.09 | Severability | 52 |
| Section 9.10 | Amendment; Waiver | 52 |
| Section 9.11 | Entire Agreement | 53 |
| Section 9.12 | Interpretation | 53 |
| Section 9.13 | Counterparts | 53 |
| Section 9.14 | Legal Representation | 54 |
| Section 9.15 | Waiver of Claims Against Trust | 55 |
| Section 9.16 | Company and Purchaser Disclosure Letters | 55 |
| Article X Definitions | 56 | |
| Section 10.01 | Certain Definitions | 56 |
EXHIBITS
| Exhibit A | Purchaser Charter upon Domestication |
| Exhibit B | Purchaser Bylaws upon Domestication |
| Exhibit C | Certificate of Merger |
| Exhibit D | Series A Preferred Stock Certificate of Designation |
| Exhibit E | Domesticated Purchaser PIPE Investor Warrants |
| Exhibit F | A&R Registration Rights Agreement |
| Exhibit G | Sponsor Lock-Up Agreement |
| Exhibit H | Cyrus Lock-Up Agreement |
| Exhibit I | Keyframe Lock-Up Agreement |
| Exhibit J | Certificate of Incorporation of Surviving Corporation |
| Exhibit K | Bylaws of Surviving Corporation |
| Exhibit L | Form SVSA |
| iv |
BUSINESS COMBINATION AGREEMENT
This Business Combination Agreement (this “Agreement”) is made and entered into as of September 15, 2026 by and among ACP Holdings Acquisition Corp., a Cayman Islands exempted company (which shall transfer by way of continuation and domesticate as a Delaware corporation prior to the Closing) (the “Purchaser”), Maestro Merger Sub, Inc., a Delaware corporation and a direct wholly owned subsidiary of the Purchaser (“Merger Sub”), and May Mobility, Inc., a Delaware corporation (the “Company”). The Purchaser, Merger Sub and the Company are sometimes referred to herein individually as a “Party” and, collectively, as the “Parties.”
RECITALS:
WHEREAS, the Purchaser is a special purpose acquisition company incorporated as a Cayman Islands exempted company for the purpose of effecting a merger, amalgamation, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses;
WHEREAS, Merger Sub is a newly incorporated Delaware corporation, wholly owned by the Purchaser, and was formed for the purpose of effectuating the Merger (as defined below);
WHEREAS, prior to the Effective Time and subject to the satisfaction or waiver of the conditions of this Agreement (other than those conditions that by their nature are to be satisfied at the Closing), the Purchaser shall de-register from the Register of Companies in the Cayman Islands and transfer by way of continuation to the State of Delaware and domesticate as a Delaware corporation in accordance with Section 388 of the Delaware General Corporation Law, as amended (the “DGCL”), and section 206 of the Companies Act (As Revised) of the Cayman Islands (the “Cayman Companies Act,” and such de-registration, continuation and domestication, the “Domestication”), with the continuing entity following the Domestication to be named “May Mobility, Inc.”;
WHEREAS, in order to effectuate the Domestication, and subject to the satisfaction or waiver of the conditions of this Agreement (other than those conditions that by their nature are to be satisfied at the Closing), the Purchaser shall (a) file all applicable notices, declarations, affidavits, statements of assets and liabilities, shareholder approvals, undertakings and other documents required to be filed, pay all applicable fees required to be paid, and cause the satisfaction of all other conditions to deregistration required to be satisfied, in each case, under section 206 of the Cayman Companies Act and in accordance therewith, (b) file a certificate of domestication and a certificate of incorporation in substantially the form attached hereto as Exhibit A (the “Purchaser Charter upon Domestication”) with the Secretary of State of Delaware and (c) adopt bylaws in substantially the form attached hereto as Exhibit B (the “Purchaser Bylaws upon Domestication”), and in each case with such changes to the forms attached hereto as Exhibit A and Exhibit B as may be agreed in writing by the Purchaser and the Company;
WHEREAS, prior to or concurrent with the Domestication, the Company shall file a certificate of amendment to the certificate of incorporation of the Company with the Secretary of State of Delaware changing the Company’s corporate name to “May Mobility Technology, Inc.” or another name mutually agreed by the Purchaser and the Company prior to the Domestication;
WHEREAS, upon the terms and subject to the conditions of this Agreement, and in accordance with the DGCL, and the Cayman Companies Act, as applicable, the Parties intend to enter into a business combination transaction by which the Company and Merger Sub will file with the Delaware Secretary of State a certificate of merger substantially in the form attached hereto as Exhibit C (the “Certificate of Merger”) in accordance with the applicable provisions of the DGCL and pursuant thereto Merger Sub will merge with and into the Company (the “Merger,” and together with the Domestication and the other transactions contemplated by this Agreement and the Ancillary Documents, the “Transactions”), with the Company being the surviving corporation of the Merger (the Company, in its capacity as the surviving corporation of the Merger, is sometimes referred to as the “Surviving Corporation”) resulting in the Company becoming a direct wholly-owned Subsidiary of the Purchaser;
WHEREAS, (a) immediately prior to the Domestication, pursuant to the Sponsor Support Agreement, the holders of the Purchaser Class B Ordinary Shares shall elect to convert each Purchaser Class B Ordinary Share held by them, on a one-for-one basis, into a Purchaser Class A Ordinary Share (the “Sponsor Share Conversion”); and (b) in connection with the Domestication, (i) each then issued and outstanding Purchaser Class A Ordinary Share (other than any Purchaser Class A Ordinary Share included in the Cayman Purchaser Units) shall convert automatically, on a one-for-one basis, into one (1) share of Domesticated Purchaser Common Stock; (ii) each then issued and outstanding warrant of the Purchaser (each a “Cayman Purchaser Warrant”) (other than any Cayman Purchaser Public Warrants included in the Cayman Purchaser Units) shall convert automatically into a warrant to acquire one (1) share of Domesticated Purchaser Common Stock (each a “Domesticated Purchaser Warrant”), pursuant to the Warrant Agreement, and (iii) each then issued and outstanding unit of the Purchaser (the “Cayman Purchaser Units”) shall be cancelled and will thereafter entitle the holder thereof to one (1) share of Domesticated Purchaser Common Stock and one-half of one (½) Domesticated Purchaser Warrant, in each case without any further action on the part of the Purchaser, Merger Sub, the Company or any holder of securities of any of the foregoing;
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WHEREAS, as a condition and inducement to the Company’s willingness to enter into this Agreement, simultaneously with the execution and delivery of this Agreement, the Sponsor has executed and delivered to the Company the Sponsor Support Agreement, pursuant to which the Sponsor has agreed to, among other things, take customary and reasonable actions in support of and, upon the effectiveness of the Registration Statement, vote or consent to adopt and approve this Agreement and the other documents contemplated hereby (including the applicable Ancillary Documents) and the Transactions;
WHEREAS, as a condition and inducement to the Purchaser’s willingness to enter into this Agreement, on or prior to October 5, 2026, certain Sellers will execute, and the Company will deliver to the Purchaser, such executed Seller Voting and Support Agreements, pursuant to which such Sellers will agree to, among other things, take customary and reasonable actions in support of and, upon the effectiveness of the Registration Statement, vote or consent to adopt and approve this Agreement and the other documents contemplated hereby to which they are or will be a party (including the applicable Ancillary Documents) and the Transactions;
WHEREAS, simultaneously with the execution and delivery of this Agreement or from time to time following the date hereof and prior to or concurrently with the Closing, the Purchaser may enter into subscription agreements on forms mutually acceptable to the Company and the Purchaser (collectively, the “PIPE Subscription Agreements”) with investors (the “PIPE Investors”), pursuant to which, and on the terms and subject to the conditions of which, the PIPE Investors will agree to make a private investment in the Purchaser, and purchase from the Purchaser, shares of the Purchaser’s 12% Series A Cumulative Convertible Preferred Stock, par value $0.0001 per share, having the rights, preferences and privileges set forth in the Purchaser’s Certificate of Designation of Preferences, Rights and Limitations of 12.0% Series A Cumulative Convertible Preferred Stock, in substantially the form attached hereto as Exhibit D (the “Series A Preferred Stock Certificate of Designation,” and such stock the “Domesticated Purchaser Series A Preferred Stock”) and warrants to purchase Domesticated Purchaser Common Stock in substantially the form attached hereto as Exhibit E (the “Domesticated Purchaser PIPE Investor Warrants”), substantially concurrently with the Closing (such investments, the “PIPE Investment”);
WHEREAS, in connection with the consummation of the Transactions, simultaneously with the Closing, the Sponsor, the Purchaser, the Sellers party thereto and the other parties thereto will enter into an Amended and Restated Registration Rights Agreement (the “A&R Registration Rights Agreement”) in substantially the form attached hereto as Exhibit F, with such changes thereto as may be agreed in writing by the Purchaser and the Company;
WHEREAS, in connection with the consummation of the Transactions, simultaneously with the Closing, the Company, the Sponsor and the Purchaser will enter into a lock-up agreement (the “Sponsor Lock-Up Agreement”) in substantially the form attached hereto as Exhibit G, with such changes thereto as may be agreed in writing by the Purchaser and the Company;
WHEREAS, in connection with the consummation of the Transactions, simultaneously with the Closing, the Purchaser, funds managed by Cyrus Capital Partners, L.P. and the other parties thereto will enter into a lock-up agreement (the “Cyrus Lock-Up Agreement”), in substantially the form attached hereto as Exhibit H;
WHEREAS, in connection with the consummation of the Transactions, simultaneously with the Closing, the Purchaser, Keyframe Capital Partners, LP and the other parties thereto will enter into a lock-up agreement (the “Keyframe Lock-Up Agreement”), in substantially the form attached hereto as Exhibit I;
WHEREAS, the Parties intend that, for U.S. federal, and applicable state and local, income tax purposes, (a) the Domestication qualifies as a “reorganization” described in Section 368(a)(1)(F) of the Code and the Treasury Regulations promulgated thereunder, (b) the Sponsor Share Conversion is treated as a “reorganization” described in Section 368(a)(1)(E) of the Code and the Treasury Regulations promulgated thereunder, and (c) the Merger qualifies as a “reorganization” within the meaning of Section 368(a) of the Code and the Treasury Regulations promulgated thereunder (each an “Intended Tax Treatment,” and collectively, the “Intended Tax Treatments”), and that this Agreement be, and hereby is, adopted as a “plan of reorganization” for the purposes of Section 368 of the Code and Treasury Regulations Section 1.368-2(g);
WHEREAS, the board of directors of the Company has unanimously: (a) determined that it is in the best interests of the Company and the stockholders of the Company, and declared it advisable, for the Company to enter into this Agreement and the Ancillary Documents to which it is a party and consummate the Merger and the other Transactions; (b) approved this Agreement, the Ancillary Documents to which it is a party and the Transactions on the terms and subject to the conditions of this Agreement; and (c) adopted a resolution recommending the Merger and the other Transactions be adopted by the Sellers;
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WHEREAS, the board of directors of the Purchaser has unanimously: (a) determined that the Domestication is in the best interests of the Purchaser and the Purchaser Shareholders, as a whole, and declared it advisable for the Purchaser to enter into the Ancillary Documents providing for the Domestication; (b) determined that the Merger is in the best interests of the Purchaser and the Purchaser Shareholders, as a whole, and declared it advisable for the Purchaser to enter into this Agreement and the Ancillary Documents providing for the Merger and the other Transactions; (c) approved this Agreement, the Ancillary Documents and the Transactions on the terms and subject to the conditions of this Agreement; and (d) adopted a resolution directing that this Agreement, the Domestication, the Merger and the other Transactions (as applicable) be submitted to the Purchaser Shareholders for adoption and recommended the approval and adoption of this Agreement, the Domestication, the Merger and the other Transactions (as applicable) by the Purchaser Shareholders;
WHEREAS, the board of directors of Merger Sub has unanimously: (a) determined that it is in the best interests of Merger Sub and the sole shareholder of Merger Sub, and declared it advisable, for Merger Sub to enter into this Agreement and the Ancillary Documents and consummate the Merger and the other Transactions; and (b) approved this Agreement, the Ancillary Documents and the Transactions on the terms and subject to the conditions of this Agreement;
WHEREAS, the Purchaser, in its capacity as the sole shareholder of Merger Sub has: (a) determined that the Merger is in the best interests of Merger Sub, and deemed it advisable for Merger Sub to enter into this Agreement and the Ancillary Documents providing for the Merger and the other Transactions; and (b) approved this Agreement, the Ancillary Documents and the Transactions (including the Merger) on the terms and subject to the conditions of this Agreement; and
WHEREAS, in furtherance of the Merger and in accordance with the terms hereof, the Purchaser shall provide an opportunity to the holders of its public shares to have their public shares redeemed on the terms and conditions set forth in this Agreement and the Purchaser’s Organizational Documents, which redemption shall occur as set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises set forth above, and the representations, warranties, covenants and agreements contained in this Agreement, and for other consideration, the receipt and sufficiency of which is acknowledged and agreed to by the Parties, and intending to be legally bound hereby, the Parties hereto agree as follows:
Article
I
THE TRANSACTIONS
Section 1.01 The Domestication.
(a) Domestication. Upon the terms and subject to the satisfaction or waiver of the conditions of this Agreement (other than those conditions that by their nature are to be satisfied at Closing), and in accordance with the DGCL and the Cayman Companies Act, prior to the Closing, the Purchaser shall, in accordance with applicable Law, any applicable rules and regulations of the SEC, Nasdaq and the Purchaser’s Organizational Documents, as applicable, cause the Domestication to become effective, including by (i) filing with the Secretary of State of the State of Delaware a certificate of domestication with respect to the Domestication, in form and substance reasonably acceptable to the Purchaser and the Company, together with the Purchaser Charter upon Domestication, in each case, in accordance with the provisions thereof and applicable Law, (ii) adopting the Purchaser Bylaws upon Domestication, (iii) completing and making and procuring all those filings required to be made with the Cayman Registrar in connection with the Domestication, and (iv) filing with the Cayman Registrar all applicable notices, declarations, affidavits, statements of assets and liabilities, shareholder approvals, undertakings and other documents required to be filed, pay all applicable fees required to be paid, and cause the satisfaction of all other conditions to deregistration required to be satisfied, in each case, under section 206 of the Cayman Companies Act and the Purchaser shall obtain a certificate of de-registration from the Cayman Registrar.
(b) Effect on Purchaser Securities. Immediately prior to the Domestication, pursuant to the Sponsor Support Agreement, the holders of the Purchaser Class B Ordinary Shares have elected to convert each Purchaser Class B Ordinary Share held by them, on a one-for-one basis, into one Purchaser Class A Ordinary Share and in connection with the Domestication, (i) each then issued and outstanding Purchaser Class A Ordinary Share shall convert automatically, on a one-for-one basis, into one share of Domesticated Purchaser Common Stock, (ii) each then issued and outstanding Cayman Purchaser Warrant shall convert automatically into one Domesticated Purchaser Warrant, pursuant to the Warrant Agreement, and (iii) each then issued and outstanding Cayman Purchaser Unit shall be cancelled and will thereafter entitle the holder thereof to one share of Domesticated Purchaser Common Stock and one-half of one (½) Domesticated Purchaser Warrant; in each case without any further action on the part of the Purchaser, Merger Sub, the Company or any holder of securities of any of the foregoing.
Section 1.02 The Merger.
(a) Effective Time. Upon the terms and subject to the satisfaction or waiver of the conditions of this Agreement (other than those conditions that by their nature are to be satisfied at Closing), on the Closing Date the Company and Merger Sub shall cause the Merger to be consummated by filing the Certificate of Merger with the Secretary of State of the State of Delaware, in accordance with the applicable provisions of the DGCL (the time of such filing, or such later time as may be agreed in writing by the Company, Merger Sub and Purchaser and specified in the Certificate of Merger, being the “Effective Time”).
(b) Merger. At the Effective Time, upon the terms and subject to the satisfaction or waiver of the conditions of this Agreement (other than those conditions that by their nature are to be satisfied at Closing), Merger Sub and the Company shall consummate the Merger, pursuant to which Merger Sub shall be merged with and into the Company, following which the separate corporate existence of Merger Sub shall cease and the Company shall continue as the Surviving Corporation after the Merger and as a direct, wholly-owned Subsidiary of the Purchaser. References to the Company for periods after the Effective Time shall mean the Surviving Corporation.
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(c) Effect of the Merger. At the Effective Time, the effect of the Merger shall be as provided in this Agreement, the Certificate of Merger and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the property, rights, privileges, agreements, powers and franchises, debts, liabilities, duties and obligations of Merger Sub and the Company shall become the property, rights, privileges, agreements, powers and franchises, debts, liabilities, duties and obligations of the Surviving Corporation, which shall include the assumption by the Surviving Corporation of any and all agreements, covenants, duties and obligations of Merger Sub and the Company set forth in this Agreement to be performed after the Effective Time.
(d) Governing Documents. At the Effective Time, the certificate of incorporation and bylaws of the Surviving Corporation shall be amended and restated to be in the forms attached hereto as Exhibit J and Exhibit K respectively.
(e) Directors and Officers of the Surviving Corporation. Immediately after the Effective Time, the board of directors and the executive officers of the Surviving Corporation shall be the same as set forth in Section 6.19 and otherwise in accordance with the terms of this Agreement (or as otherwise may be determined by the Purchaser and the Company).
Article
II
CONSIDERATION
Section 2.01 Pre-Effective Time Conversions. Immediately prior to the Effective Time:
(a) each Company Convertible Security that is outstanding immediately prior to the Effective Time (if any), including all principal and interest thereunder, to the extent applicable, shall automatically convert in full into shares of Company Preferred Stock or Company Common Stock, as applicable, in accordance with the terms thereof, such that immediately thereafter, all of the Company Convertible Securities shall no longer be outstanding and shall cease to exist, and each holder of a Company Convertible Security shall thereafter cease to have any rights with respect thereto;
(b) each Company Warrant exercisable for Company Preferred Stock that is outstanding and unexercised immediately prior to the Effective Time shall automatically be exercised on a cashless basis in full in accordance with its terms or otherwise exercised in full, such that upon such exercise, all of the Company Warrants converted into Company Preferred Stock shall no longer be outstanding and shall cease to exist, and each holder of Company Warrants shall thereafter cease to have any rights with respect to such securities;
(c) immediately after giving effect to the conversions and exercises set forth in Section 2.01(a) and Section 2.01(b), each issued and outstanding share of Company Preferred Stock (including each share of Company Preferred Stock issued upon the conversions and exercises described in Section 2.01(a) and Section 2.01(b), as applicable) shall automatically convert into such number of shares of Company Common Stock into which such shares of Company Preferred Stock, as applicable, are convertible in connection with the Merger pursuant to the Company’s Organizational Documents, such that upon such conversion, all of the Company Preferred Stock shall no longer be outstanding and shall cease to exist, and each holder of Company Preferred Stock shall thereafter cease to have any rights with respect to such securities; and
(d) each Company Warrant exercisable for Company Common Stock that is outstanding and unexercised immediately prior to the Effective Time shall automatically be exercised on a cashless basis in full in accordance with its terms or otherwise exercised in full, such that upon such exercise, all of the Company Warrants shall no longer be outstanding and shall cease to exist, and each holder of Company Warrants shall thereafter cease to have any rights with respect to such securities.
Section 2.02 Conversion of Securities.
(a) Effect on Company Securities. At the Effective Time, by virtue of the Merger and without any action on the part of the Purchaser, Merger Sub, the Company or any holder of securities of any of the foregoing:
(i) Each share of Company Common Stock that is owned by the Purchaser, Merger Sub or the Company (in treasury or otherwise) immediately prior to the Effective Time (each, an “Excluded Share”) shall be cancelled and shall cease to exist and no consideration shall be delivered in exchange therefor;
(ii) each share of Company Common Stock that is issued and outstanding immediately prior to the Effective Time (other than Excluded Shares) shall be cancelled and converted into the right to receive a number of shares of Domesticated Purchaser Common Stock equal to the Exchange Ratio; and
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(iii) each Company Option, whether or not such Company Option is a Vested Company Option, shall automatically (without any further action required of the holder of such Company Option): (x) cease to represent an option to purchase or acquire shares of Company Common Stock as of the Effective Time; and (y) be assumed and converted, on the same terms and conditions as were applicable under the Company Equity Incentive Plan or its terms (as applicable) and any applicable award agreement thereunder as of the Effective Time, into an option to acquire that number of Domesticated Purchaser Common Stock (rounded down to the nearest whole share) equal to the product of (A) the number of shares of Company Common Stock subject to such Company Option and (B) the Exchange Ratio, at an exercise price per share of Domesticated Purchaser Common Stock(rounded up to the nearest whole cent), equal to the quotient obtained by dividing (1) the exercise price per share of Company Common Stock of such Company Option by (2) the Exchange Ratio (a “Purchaser Option”). Notwithstanding anything in this Section 2.02(a)(iii) to the contrary, the exercise price and terms applicable to the Purchaser Options and the number of shares of Domesticated Purchaser Common Stock subject to the Purchaser Options shall, in each case, be determined in a manner consistent with the requirements of Section 409A of the Code, and, in the case of any Company Options that are intended to qualify as incentive stock options, within the meaning of Section 422 of the Code, consistent with the requirements of Section 424 of the Code.
Section 2.03 Surrender and Payment.
(a) Exchange Fund. Immediately prior to the Effective Time, the Purchaser shall deposit, or cause to be deposited, with Odyssey for the benefit of the stockholders of the Company (other than with respect to any Excluded Shares and Company Options) evidence in book-entry form of shares of Domesticated Purchaser Common Stock collectively representing the number of shares of Domesticated Purchaser Common Stock sufficient to deliver the Aggregate Consideration (the “Exchange Fund”). The Purchaser shall cause Odyssey, pursuant to irrevocable instructions, to pay the Aggregate Consideration out of the Exchange Fund and in accordance with the terms of this Agreement.
(b) Stock Exchange Procedures. Within two (2) Business Days following the effectiveness of the Proxy Statement/Registration Statement, the Purchaser shall cause Odyssey to deliver to each holder of shares of Company Common Stock, other than any holders holding solely Excluded Shares, instructions for exchanging each such holder’s shares of Company Common Stock (other than any Excluded Shares and Company Options) for such holder’s applicable portion of the Aggregate Consideration from the Exchange Fund, and which shall be in a form reasonably acceptable to the Company and Purchaser (a “Letter of Transmittal”). Promptly following receipt of a properly completed and executed Letter of Transmittal, and in any event within two (2) Business Days following the Closing, Odyssey shall deliver the applicable portion of the Aggregate Consideration to each such holder with respect to such shares of Company Common Stock. Effective as of the close of business on the Business Day prior to the Closing Date, the Company will not record or recognize any transfers of Company Securities on the record books of the Company, other than transfers as to which the Company and the Purchaser have been notified of, in writing, prior to the Closing Date. For the avoidance of doubt, entitlement to vote at any stockholder meeting of the Company shall be determined as of the applicable record date established in accordance with the Company’s Organizational Documents and applicable Law.
(c) Termination of Exchange Fund. Promptly following the earlier of (i) the date on which the entire Exchange Fund has been disbursed and (ii) the date which is one (1) year after the Effective Time, the Purchaser shall instruct Odyssey to deliver to the Purchaser any remaining portion of the Exchange Fund and other documents in its possession related to the Transaction, and Odyssey’s duties shall terminate. Thereafter, each stockholder of the Company may look only to the Purchaser (subject to applicable abandoned property, escheat or other similar Laws), as general creditors thereof, for satisfaction of such stockholder’s claim for the portion of the Aggregate Consideration that such stockholder may have the right to receive pursuant to Section 2.02 without any interest thereon. None of the Company, the Purchaser, the Surviving Corporation or Odyssey shall be liable to any Person for any portion of the Aggregate Consideration delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Notwithstanding any other provision of this Agreement, any portion of the Aggregate Consideration that remains undistributed to stockholders of the Company as of immediately prior to the date on which such portion of the Aggregate Consideration would otherwise escheat to or become the property of any Governmental Authority shall, to the extent permitted by applicable Law, become the property of the Purchaser, free and clear of all claims or interest of any Person previously entitled thereto.
Section 2.04 Dissenting Shares. Notwithstanding any provision of this Agreement to the contrary and to the extent available under the DGCL, shares of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than shares of Company Common Stock, if any, cancelled in accordance with Section 2.02(a)(i) that are held by stockholders who have neither voted in favor of the Merger nor consented thereto in writing and who have demanded properly in writing appraisal or dissenters’ rights for such shares of Company Common Stock in accordance with Section 262 of the DGCL (collectively, the “Dissenting Shares”) and otherwise complied with all of the provisions of the DGCL relevant to the exercise and perfection of appraisal rights), shall not be converted into, and the holders of such Dissenting Shares shall have no right to receive, the applicable portion of the Aggregate Consideration unless and until such holder fails to perfect or withdraws or otherwise loses his, her or its right to appraisal and payment under the DGCL. Notwithstanding the foregoing, if any such holder fails to perfect or otherwise waives, withdraws or loses the right to dissent under Section 262 of the DGCL, or if a court of competent jurisdiction determines that such holder is not entitled to the relief provided by Section 262 of the DGCL, such Dissenting Shares shall be treated as if they had been converted as of the Effective Time into the right to receive the portion of the Aggregate Consideration to which such holder is entitled pursuant to Section 2.02, without interest thereon, upon surrender of the share certificate or certificates representing such Dissenting Shares in accordance with Section 2.03.
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Section 2.05 No Fractional Shares. No fractional shares of Domesticated Purchaser Common Stock, or certificates or scrip representing fractional shares of Domesticated Purchaser Common Stock, will be issued upon the conversion of the Company Common Stock pursuant to the Merger, and any such fractional shares or interests therein will not entitle the owner thereof to vote or to any rights of a stockholder of Purchaser. Any fractional shares of Domesticated Purchaser Common Stock will be rounded down to the nearest whole number.
Section 2.06 Adjustment. The Aggregate Consideration and the Exchange Ratio shall be adjusted to reflect appropriately the effect of any stock split, reverse stock split, stock dividend, recapitalization, reclassification, subdivision, combination, exchange of shares or other like change with respect to Domesticated Purchaser Common Stock occurring prior to the date the shares comprising the Aggregate Consideration are issued.
Section 2.07 Lost or Destroyed Certificates. Notwithstanding any other provision to this Agreement, if any share certificate shall have been lost, stolen or destroyed, then upon the making of a customary affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed in a form reasonably acceptable to the Company, Odyssey shall issue, in exchange for such lost, stolen or destroyed share certificate, the portion of the Aggregate Consideration to be paid in respect of the shares of Company Common Stock formerly represented by such share certificate(s) as contemplated under this Agreement.
Section 2.08 Withholding. Notwithstanding any other provision to this Agreement, the Purchaser, Merger Sub, the Company, and the Surviving Corporation (and their respective Representatives) shall be entitled to deduct and withhold from any amount payable to any Person pursuant to this Agreement such Taxes that are required to be deducted or withheld with respect to such amounts under the Code, or under any provision of U.S. state or local or non-U.S. tax law. To the extent that amounts are deducted and withheld in accordance with this Section 2.08 and timely paid over to the appropriate Governmental Authorities, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. Notwithstanding the foregoing, except for any payments made pursuant to the last sentence of this Section 2.08, the Purchaser shall use commercially reasonable efforts to provide (x) the Company with advance written notice of any intention to deduct and withhold from any consideration payable to any Seller and (y) such recipient of consideration with a reasonable opportunity to provide documentation establishing exemptions from or reductions of such withholdings. In the case of any such payment payable to employees of the Target Companies in connection with the Merger treated as compensation, the Parties shall reasonably cooperate to pay such amounts through the Company’s or the applicable Company Subsidiary’s payroll to facilitate applicable withholding.
Article
III
Closing
Section 3.01 Closing. Subject to the satisfaction or waiver of the conditions set forth in Article VII, the consummation of the Transactions (other than the Transactions that by their nature are to be satisfied prior to the Closing) (the “Closing”) shall take place by electronic exchange of documents and signatures at a time and date to be specified in writing by the Parties, which date shall be no later than the third (3rd) Business Day after all the Closing conditions in Article VII have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions), or at such other date, time or place (including remotely) as the Purchaser and the Company may agree (the date and time at which the Closing is actually held being the “Closing Date”).
Section 3.02 Closing Documents.
(a) Purchaser Closing Certificate. At least two (2) Business Days prior to the Closing, the Purchaser shall deliver to the Company a written notice setting forth the Purchaser’s good faith calculation of the following: (i) the aggregate amount of cash proceeds that will be required to satisfy any exercise of the Redemption; (ii) the aggregate amount of the Purchaser Transaction Costs as of the Closing (including a reasonable breakdown by Person of amounts owed by the Purchaser, and all invoices, wire instructions and applicable Tax forms for each Person owed (and any other supporting details reasonably requested by the Company)); and (iii) the number of shares of Domesticated Purchaser Common Stock, the number of Domesticated Purchaser Warrants, the number of shares of Domesticated Purchaser Common Stock that may be issued upon the exercise of all Domesticated Purchaser Warrants (excluding the Domesticated Purchaser PIPE Investor Warrants), the number of shares of Domesticated Purchaser Series A Preferred Stock, and the number of shares of Domesticated Purchaser Common Stock that may be issued upon the exercise of all Domesticated Purchaser PIPE Investor Warrants, in each case, to be outstanding as of the Closing and after giving effect to the Domestication, the Redemption and the issuance of securities in connection with the consummation of the PIPE Investment (but excluding any shares of Domesticated Purchaser Common Stock to be issued in the Merger).
(b) Company Closing Certificate. At least two (2) Business Days prior to the Closing, the Company shall deliver to the Purchaser a written notice setting forth the Company’s good faith calculation of the aggregate amount of the Company Transaction Costs as of the Closing (including a reasonable breakdown by Person of amounts owed by the Company, including all invoices, wire instructions and applicable Tax forms for each Person owed (and any other supporting details reasonably requested by the Purchaser)).
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Section 3.03 Payment of Expenses and Treatment of Closing Indebtedness.
(a) Company Transaction Costs. On the Closing Date, the Purchaser shall pay or cause to be paid by wire transfer of immediately available funds all Company Transaction Costs.
(b) Purchaser Transaction Costs. On the Closing Date, the Purchaser shall pay or cause to be paid by wire transfer of immediately available funds all Purchaser Transaction Costs.
(c) Closing Indebtedness. On the Closing Date, the Purchaser shall pay the outstanding amount of the Closing Indebtedness to the holders of the Closing Indebtedness only to the extent that repayment of such Closing Indebtedness is contractually required upon the consummation of the Transactions pursuant to the terms of the applicable Indebtedness. Notwithstanding anything to the contrary in this Agreement, the Company or any Company Subsidiary shall be permitted to repay, refinance, convert into equity of the Purchaser or the Company, or otherwise satisfy any Closing Indebtedness (or any portion thereof) by any combination of the foregoing, prior to or at the Closing; provided, that no such action by the Company shall cause the condition set forth in Section 7.02(e) to not be satisfied.
Article
IV
Representations and Warranties of the Company
Except as set forth in the disclosure letter dated as of the date of this Agreement delivered by the Company to the Purchaser (the “Company Disclosure Letter”) prior to or in connection with the execution and delivery of this Agreement, the Company hereby represents and warrants to the Purchaser and Merger Sub, as of the date of this Agreement and as of the Closing (unless any such representation or warranty addresses matters only as of a particular date or with respect to a specific period in which event such representation or warranty shall be made then only as of such particular date or with respect to such specific period), as follows:
Section 4.01 Organization and Standing. The Company is a Delaware corporation duly incorporated, validly existing and in good standing under the DGCL and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted, except as would not be material to the Target Companies, taken as a whole. May Mobility Japan G.K. (“MM Japan”) is an entity duly formed, validly existing and in good standing under the Laws of Japan and has all requisite corporate, limited liability company or other (as applicable) power and authority to own, lease and operate its properties and to carry on its business as now being conducted, except as would not be material to the Target Companies, taken as a whole. May Mobility IP Holdings, LLC (“MM IP Holdings”) is a limited liability company duly formed, validly existing and in good standing under the Laws of the State of Delaware and has all requisite limited liability company power and authority to own, lease and operate its properties and to carry on its business as now being conducted, except as would not be material to the Target Companies, taken as a whole. Each Target Company is duly qualified or licensed and in good standing in the jurisdiction in which it is formed or registered to the extent such or similar concepts are recognized and applicable in such jurisdiction and in each other jurisdiction where it does business or operates to the extent that the character of the property owned, or leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so qualified or licensed or in good standing would not reasonably be expected to have a Company Material Adverse Effect. The Company has provided to the Purchaser accurate and complete copies of the Target Companies’ Organizational Documents, each as amended to date and as currently in effect. No Target Company is in material violation of any provision of its Organizational Documents.
Section 4.02 Authorization; Binding Agreement. Subject to the receipt of the Requisite Stockholder Approval, the Company has all requisite corporate power and authority to execute and deliver this Agreement and each Ancillary Document to which it is or will be a party, to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution and delivery of this Agreement and each Ancillary Document to which the Company is or will be a party and the consummation of the Transactions, (a) have been duly and validly authorized by the Company’s board of directors in accordance with its Organizational Documents and (b) other than the Requisite Stockholder Approval, no other proceedings on the part of the Company are necessary to authorize the execution and delivery of this Agreement and each Ancillary Document to which it is or will be a party or to consummate the Transactions. This Agreement has been, and each Ancillary Document to which the Company is or will be a party shall be when delivered, duly and validly executed and delivered by the Company and assuming the due authorization, execution and delivery of this Agreement and any such Ancillary Document by the other parties hereto and thereto, constitutes, or when delivered shall constitute, the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions. At or prior to the date of this Agreement, the Company’s board of directors, by resolutions duly adopted, has (i) determined that this Agreement and the Transactions are advisable, fair to, and in the best interests of, the Company and its stockholders, (ii) approved this Agreement and Transactions, (iii) directed that this Agreement be submitted to its stockholders for adoption and (iv) recommended that its stockholders adopt this Agreement.
Section 4.03 Capitalization.
(a) Set forth on Section 4.03(a) of the Company Disclosure Letter is a true, correct and complete list of each record holder of any Company Securities, and the number of such Company Securities held by each such holder as of the date of this Agreement. Other than the Company Securities set forth on Section 4.03(a) of the Company Disclosure Letter, the Company does not have any other issued or outstanding equity interests.
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(b) Prior to giving effect to the Transactions, all of the Company Securities (other than the Company Options) will be owned by the Sellers free and clear of any Liens other than those imposed under the Company’s Organizational Documents, applicable securities Laws, Permitted Liens or as set forth on Section 4.03(b)(i) of the Company Disclosure Letter. All of the issued and outstanding Company Securities have been duly authorized and validly issued in accordance with applicable Laws, including applicable securities Law, and the Company’s Organizational Documents, and are not subject to, nor were they issued in violation of, any preemptive rights, rights of first refusal or similar rights, except where such violation or failure would not reasonably be expected to be, individually or in the aggregate, material to the Target Companies, taken as a whole. Except as set forth on Section 4.03(b)(ii) of the Company Disclosure Letter, there are no preemptive rights or rights of first refusal or first offer, nor are there any Contracts, commitments, arrangements or restrictions to which the Company, any Company Subsidiary or, to the Knowledge of the Company, any of its stockholders, is a party or bound relating to any Company Securities or equity interests in any Company Subsidiary, whether or not outstanding. Except with respect to the Company Options, there are no outstanding or authorized equity appreciation, phantom equity or similar rights with respect to any Target Company. Except as set forth on Section 4.03(b)(iii) of the Company Disclosure Letter, there are no voting trusts, proxies, stockholder agreements or any other agreements or understandings with respect to the voting of the Company Securities or any equity interests of any Company Subsidiary. Except as set forth in the Organizational Documents of the Target Companies, there are no outstanding contractual obligations of the Target Companies to repurchase, redeem or otherwise acquire any equity interests or securities of such Target Company, nor has any Target Company granted any registration rights to any Person with respect to such Target Company’s equity securities. All of the Company Securities have been granted, offered, sold and issued in compliance with applicable securities Laws. Each Company Option has been validly granted or issued and properly approved by the Company’s board of directors (or appropriate committee thereof) in accordance with the terms of the Company Equity Incentive Plan. Each Company Option has been granted with an exercise price that is intended to be no less than the fair market value of the underlying equity securities of the Company on the date of grant, as determined in accordance with Section 409A of the Code or Section 422 of the Code.
(c) Except as provided for in this Agreement, as a result of the consummation of the Transactions, no shares of capital stock, warrants, options or other securities of the Target Companies are issuable and no rights in connection with any shares, warrants, options or other securities of the Target Companies accelerate or otherwise become triggered (whether as to vesting, exercisability, convertibility or otherwise).
(d) All Indebtedness of the Target Companies as of the date of this Agreement is set forth on Section 4.03(d)(i) of the Company Disclosure Letter. Except as set forth on Section 4.03(d)(ii) of the Company Disclosure Letter, no Indebtedness of the Company contains any restriction upon (i) the prepayment of any of such Indebtedness, (ii) the incurrence of Indebtedness by the Company or (iii) the ability of the Company to grant any Lien on its properties or assets.
Section 4.04 Subsidiaries. Section 4.04 of the Company Disclosure Letter sets forth the name of each of the Company’s Subsidiaries (each, individually, a “Company Subsidiary” and collectively, the “Company Subsidiaries”), and with respect to each Company Subsidiary (a) its jurisdiction of incorporation or organization, (b) all names other than its legal name under which such Company Subsidiary does business, as applicable, (c) its authorized shares or other equity interests (if applicable) and (d) the number of its issued and outstanding shares or other equity interests and the record holder thereof (as applicable). All of the outstanding equity securities of MM IP Holdings are duly authorized and validly issued, fully paid and non-assessable, and were offered, sold and delivered in compliance with all applicable securities Laws, and owned by the Company free and clear of all Liens other than those imposed under MM IP Holdings’ Organizational Documents, applicable Laws or Permitted Liens. All of the capital contributions made by the Company in MM Japan were duly authorized and validly made. Except for the Company, no Target Company holds any equity interests, or an ownership interest by means of capital contributions, in any other Person.
Section 4.05 No Conflict; Governmental Consents and Filings.
(a) Subject to the receipt of the Requisite Stockholder Approval and the Consents and other requirements set forth in Section 4.05(a) of the Company Disclosure Letter, the execution, delivery and performance by the Company of this Agreement and the other Ancillary Documents to which the Company is a party and the consummation by the Target Companies of the Transactions does not and will not: (i) violate any provision of, or result in the breach of, any applicable Law to which any of the Target Companies is subject or by which any property or asset of any Target Company is bound; (ii) conflict with or violate the Organizational Documents of any Target Company; (iii) violate any provision of or result in a breach, default or acceleration of, require a consent under, or create any right to payment under any Company Material Contract, or terminate or result in the termination of any Company Material Contract, or result in the creation of any Lien (other than a Permitted Lien) under any Company Material Contract upon any of the properties or assets of any Target Company, or constitute an event which, after notice or lapse of time or both, would result in any such violation, breach, default, acceleration, termination or creation of a Lien (other than a Permitted Lien); or (iv) result in a violation or revocation of any required Consents, except to the extent that the occurrence of any of the foregoing items set forth in clauses (i), (iii) or (iv) would not, individually or in the aggregate, reasonably be expected to prevent, materially delay or materially impair the ability of the Company to consummate the Transactions or reasonably be expected to have a Company Material Adverse Effect.
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(b) Assuming the truth and completeness of the representations and warranties of the Purchaser and Merger Sub contained in this Agreement, no consent, clearance, approval, waiver, authorization, waiting period expiration or termination, or notice to or declaration or filing with any Governmental Authority is required on the part of the Target Companies with respect to the Target Companies’ execution, delivery or performance of this Agreement, any of the Ancillary Documents to which it is or will be a party or the consummation by the Target Companies of the Transactions, except for: (i) pursuant to the applicable requirements of the HSR Act, (ii) any consent, clearance, approval, waiver, authorization, waiting period expiration or termination, or notice to or declaration or filing with any Governmental Authority, the absence of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; (iii) compliance with any applicable requirements of the Laws; and (iv) as otherwise disclosed on Section 4.05(b) of the Company Disclosure Letter.
Section 4.06 Financial Statements.
(a) The Company has provided to the Purchaser: (i) unaudited consolidated financial statements of the Target Companies (including, in each case, any related notes thereto), consisting of the draft unaudited consolidated balance sheet of the Target Companies and the related unaudited consolidated statements of operations, statements of comprehensive loss, statements of convertible preferred stock and stockholders’ deficit and consolidated statements of cash flows for the three month period ending March 31, 2026 (the “Interim Company Financials”) and (ii) the audited consolidated financial statements of the Target Companies (including, in each case, any related notes thereto), consisting of the consolidated balance sheets of the Target Companies as of December 31, 2025 and December 31, 2024, and the related consolidated audited statements of operations, statements of comprehensive loss, statements of convertible preferred stock and stockholders’ deficit and consolidated statements of cash flows for the fiscal years then ended (the “Audited Financial Statements” and, together with the Interim Company Financials, the “Company Financials”). The Company Financials have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated and were derived from and accurately reflect in all material respects the books and records of the Target Companies, which books and records are, in all material respects, true, correct and complete and have been maintained in all material respects in accordance with applicable Law and commercially reasonable business practices. Except as set forth on Section 4.06(a) of Company Disclosure Letter, the Company Financials present fairly, in all material respects, the consolidated financial position, results of operations, income (loss), changes in stockholder equity (in the case of the Audited Financial Statements) and cash flows of the Target Companies as of the dates and for the periods indicated in such Company Financials (except in the case of the Interim Company Financials for the absence of footnote disclosures and other presentation items required for GAAP and for year-end audit adjustments (to the Knowledge of the Company, none of which is expected to be material)), and in the case of the Audited Financial Statements, in conformity in all material respects with GAAP (except as may be specifically indicated in the notes thereto). No Target Company has ever been subject to the reporting requirements of Sections 13(a) and 15(d) of the Exchange Act.
(b) The Target Companies have established and maintain a commercially reasonable system of internal controls designed to provide reasonable assurance that (i) transactions are executed in all material respects in accordance with management’s authorization and, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for each Target Company’s assets.
(c) None of the Target Companies has identified in writing nor has any Target Company received written notice from an independent auditor of (i) any significant deficiency or material weakness in the system of internal controls utilized by the Company, (ii) any fraud that involves the Company’s financial statements, the Company’s management or other employees who have a material role in the preparation of the Company Financials or the internal controls over financial reporting utilized by the Company or (iii) any complaint, assertion, claim or allegation regarding any of the foregoing.
(d) There are no outstanding loans or other extensions of credit made by any Target Company to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of the Company.
Section 4.07 Undisclosed Liabilities. There is no liability, debt or obligation (absolute, accrued, contingent or otherwise) of any Target Company of a type required to be reflected or reserved for on a balance sheet prepared in accordance with GAAP, except for liabilities, debts and obligations: (a) provided for in, or otherwise reflected on or reasonably reserved for in the Company Financials or disclosed in the notes thereto; (b) that have arisen since the date of the most recent balance sheet of the Target Companies in the ordinary course of business consistent with past practice; (c) arising under this Agreement, any Ancillary Document, or incurred in connection with the Transactions; (d) executory obligations existing as of the date of this Agreement pursuant to any Contract, which, in each case, are not related to any known breach or default by the Target Companies; or (e) which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
Section 4.08 Absence of Certain Changes. Except as set forth on Section 4.08 of the Company Disclosure Letter, and for activities conducted in connection with this Agreement and the Transactions, since December 31, 2025 through the date of this Agreement, (a) there has not been any Company Material Adverse Effect and (b) each Target Company (i) has conducted its business in the ordinary course of business consistent with past practice, (ii) has not taken any action or committed or agreed to take any action that, if taken after the date hereof, would be prohibited by Section 6.02(b).
Section 4.09 Compliance with Laws. Each Target Company has, during the past three (3) years, materially complied with, and is not currently in violation of, any applicable Law with respect to the conduct of its business, or the ownership or operation of its business, except for failures to comply or violations which, individually or in the aggregate, have not been and would not reasonably be expected to be, material to the Target Companies, taken as whole. Except as set forth on Section 4.09 of the Company Disclosure Letter, during the past three (3) years, no written notice of non-compliance with any applicable Law has been received by any Target Company, except for any such written notice as would not reasonably be expected to be material to the Target Companies, taken as whole.
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Section 4.10 Government Contracts.
(a) Section 4.10(a) of the Company Disclosure Letter is a true and complete list, as of the date of this Agreement, of each Government Contract to which a Target Company is a party (each, a “Company Government Contract”). Each Company Government Contract was legally awarded to the applicable Target Company, is in full force and effect and constitutes a legal, valid, and binding agreement, enforceable in accordance with its terms, in each case, subject to the Enforceability Exceptions. The Company has delivered or made available to Purchaser, to the extent legally permissible, true and complete copies of each Company Government Contract.
(b) Section 4.10(b) of the Company Disclosure Letter sets forth a current, accurate, and complete list of each Government Bid that, (i) if awarded, is reasonably expected to involve the aggregate payments by or to the Target Companies in excess of $1,000,000 during any twelve (12)-month period and (ii) any Target Company has entered into or submitted to a Governmental Authority within the twelve-month period ending on the date of this Agreement or for which no notice of award decision has been received by any Target Company.
(c) With respect to each Company Government Contract or Government Bid to which a Target Company is a party or is otherwise bound, and except as set forth on Section 4.10(c) of the Company Disclosure Letter:
(i) each Target Company has complied in all material respects with the terms and conditions of such Government Contract or Government Bid and applicable Law, including regulatory and code requirements and maintaining of proper Permits and certificates, applicable to such Government Contract or Government Bid;
(ii) all representations and certifications duly executed with respect to such Government Contract or Government Bid were accurate and truthful in all material respects as of their effective date;
(iii) no Government Contract awarded to any Target Company has been terminated for default within six years prior to the date of this Agreement. Neither the Company nor any Company Subsidiary has received any notice in writing terminating or indicating an intent to terminate any Government Contract for convenience; and
(iv) neither the Company nor any Company Subsidiary has received written notice of, nor does the Company have Knowledge of any facts that could reasonably cause, any (A) cure notice, show cause notice or stop work order, (B) termination for default or determination of non-responsibility, or (C) suspension, debarment or proposed debarment.
(d) Except as set forth on Section 4.10(d) of the Company Disclosure Letter, neither the Company nor any Principal (as that term is defined in 48 C.F.R. § 2.101) of the Company, nor any Company Subsidiary, nor to the Knowledge of the Company, any Principal (as that term is defined in 48 C.F.R. § 2.101) of a Company Subsidiary:
(i) is presently debarred, suspended, proposed for debarment, or declared ineligible for the award of a government contract or subcontract; or
(ii) has, during the last six (6) years, been indicted, criminally or civilly charged, convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state, or local) contract or subcontract, or violation of federal or state antitrust statutes relating to the submission of offers, or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, or receiving stolen property.
(e) Each Target Company has, to the extent appropriate in accordance with the terms of the applicable Government Contracts and applicable Laws, (i) taken all reasonable steps to protect rights in and to all technical data, computer software, and other intellectual property developed in connection with the Government Contracts and (ii) complied in all material respects with all notice requirements, applicable Laws and contractual requirements relating to the placement of legends or restrictive markings on all technical data, computer software, computer software documentation, and other Intellectual Property developed in connection with a Government Contract, used in performance of a Government Contract, or delivered or otherwise provided to a Governmental Authority.
Section 4.11 Company Permits. Each Target Company holds all material Permits required to own, lease and operate its assets and properties and to carry on its business as it is now being conducted (collectively, the “Company Permits”). Except as would not reasonably be expected to be material to the Target Companies, taken as a whole, (i) each Company Permit is in full force and effect, and (ii) there are no Legal Proceedings pending or, to the Knowledge of the Company, threatened, that seek the revocation, cancellation, limitation, suspension, restriction, adverse modification or termination of any Company Permit. Except as would not reasonably be expected to be material to the Target Companies, taken as a whole, during the past three (3) years, no Target Company (A) has been in material default or violation of any Company Permit applicable to such Target Company or (B) has received written notice of revocation, cancellation, material noncompliance, limitation, suspension, restriction, or involuntary termination of any Company Permit.
Section 4.12 Litigation. Except as set forth on Section 4.12 of the Company Disclosure Letter and as would not reasonably be expected to be material to the Target Companies, taken as a whole, there are no (a) Legal Proceedings of any nature currently pending, noticed in writing or, to the Company’s Knowledge, threatened against any Target Company or any of its properties or assets, or any of the directors or officers of any Target Company with regard to their actions as such; (b) pending, noticed in writing or, to the Knowledge of the Company, pending or threatened, audits, written requests for information or inquiries outside of the ordinary course of business, examinations or investigations by any Governmental Authority against any Target Company; (c) pending, threatened or noticed in writing Legal Proceedings by any Target Company against any third party; (d) settlements or similar agreements that impose any material ongoing obligations or restrictions on any Target Company; or (e) Orders imposed, noticed in writing or, to the Knowledge of the Company, threatened to be imposed upon any Target Company or any of their respective properties or assets, or to the Knowledge of the Company, any of the directors or officers of any Target Company with regard to their actions as such.
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Section 4.13 Material Contracts.
(a) Section 4.13 of the Company Disclosure Letter sets forth a true, correct and complete list as of the date this Agreement of all Contracts described in clauses (i) through (xix) below, other than the Company Benefit Plans (except that the Contracts listed in respect of clauses (ix) and (xi) shall include any applicable Company Benefit Plans), to which, as of the date of this Agreement, any Target Company is a party or by which any Target Company, or any of its properties or assets, are bound (each Contract required to be set forth on Section 4.13(a) of the Company Disclosure Letter, a “Company Material Contract”):
(i) Each Contract that contains covenants that limit the ability of any Target Company (or purports to bind any Affiliate thereof) (A) to compete in any line of business or with any Person or in any geographic area, or to sell, or provide any service or product or solicit any Person in any material respect, including any non-competition covenants, customer non-solicit covenants, exclusivity restrictions, rights of first refusal or most-favored pricing clauses, or (B) to purchase or acquire an interest in any other Person;
(ii) Each joint venture Contract, teaming agreement, profit-sharing agreement, partnership, limited liability company agreement with a third party or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture;
(iii) All Contracts that involve any exchange traded, over the counter or other swap, cap, floor, collar, futures contract, forward contract, option or other derivative financial instrument or Contract, based on any commodity, security, instrument, asset, rate or index of any kind or nature whatsoever, whether tangible or intangible, including currencies, interest rates, foreign currency and indices;
(iv) All Contracts that involve the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets with an aggregate value in excess of $1,500,000 (other than in the ordinary course of business consistent with past practice) or shares or other equity interests of any Target Company or another Person, occurring in the last five (5) years;
(v) Each Contract for the acquisition of any Person or any business division thereof or the disposition of any material assets of any Target Company, in each case, whether by merger, purchase or sale of stock or assets or otherwise (other than Contracts for the purchase or sale of inventory or supplies entered into in the ordinary course of business consistent with past practice), (A) occurring in the last three (3) years or (B) relating to the pending or future acquisitions or dispositions, in each case of clauses (A) and (B), involving aggregate payments in excess of $1,000,000;
(vi) Each lease, rental agreement, installment and conditional sale agreement that, in each case, (A) provides for the ownership of, leasing of, title to, use of, or any leasehold or other similar interest in any real property or Personal Property; and (B) involves aggregate annual payments in excess of $250,000 for agreements related to real property and $250,000 individually for agreements related to Personal Property;
(vii) Each Contract that by its terms, individually or with all related Contracts, calls for aggregate payments or receipts by the Target Companies under such Contract or Contracts of at least $2,000,000 during any twelve (12)-month period;
(viii) All Contracts with any Top Customer or Top Supplier (other than customary purchase orders, invoices, statements of work and non-disclosure or similar agreements entered into in the ordinary course of business);
(ix) Each collective bargaining (or similar) agreement or Contract between any Target Company on one hand, and any labor union or other body similarly representing employees of any Target Company on the other hand;
(x) All Contracts that obligate the Target Companies to provide continuing indemnification or a guarantee of obligations of a third party after the date hereof in excess of $1,500,000;
(xi) Any Contract that is between any Target Company and any directors, officers or employees of a Target Company that provide for change in control, retention or similar payments or benefits that, in each case, are contingent upon, accelerated by or triggered by the consummation of the Transactions;
(xii) Any Contract that obligates the Target Companies to make any capital commitment or expenditure in excess of $3,000,000 (including pursuant to any joint venture) in any twelve (12)-month period;
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(xiii) All Contracts that relate to a material settlement entered into within three (3) years prior to the date of this Agreement or under which any Target Company has outstanding obligations (other than customary release of claims, confidentiality, non-disparagement or similar obligations) in excess of $1,000,000;
(xiv) Any Contract (A) pursuant to which any of the Target Companies grants to a third Person a license or other right to use, or agrees not to enforce or assert, any Owned Intellectual Property material to the business of any Target Company (other than non-exclusive licenses of Owned Intellectual Property granted to customers or end users in the ordinary course of business); or (B) pursuant to which any of the Target Companies is granted a license or other right to use any Intellectual Property of a third Person that is material to the business of any Target Company (other than (1) licenses of open source Software and (2) Off-the-Shelf Software) and in each case of (A) and (B), other than (x) Contracts containing confidentiality provisions that would not otherwise be required to be set forth pursuant to this clause (xiv) but for an express or implied right therein to use confidential or proprietary information that is incidental to the primary purpose of the Contract (other than non-disclosure or similar agreements entered into in the ordinary course of business), and (y) non-exclusive licenses granted in the ordinary course of business that are incidental to the primary purpose of the Contracts in which such licenses are granted (the “Material IP Contracts”);
(xv) All Contracts involving transactions with an Affiliate of any Target Company (other than employment agreements, employee confidentiality and invention assignment agreements, equity or incentive equity documents and Organizational Documents);
(xvi) Any Contract that is a settlement, conciliation, or similar agreement with any Governmental Authority entered into within the last five (5) years;
(xvii) each Contract with an automotive vehicle manufacturer; and
(xviii) all Company Government Contracts; and
(xix) that will be required to be filed with the Registration Statement under applicable SEC requirements or would otherwise be required to be filed by the Company as an exhibit for a Form S-1 pursuant to Items 601(b)(1), (2), (4), (9) or (10) of Regulation S-K under the Securities Act as if the Company was the registrant.
(b) Except for any Company Material Contract that is terminated or expires following the date hereof in accordance with its terms, each Company Material Contract is valid, binding and enforceable in all respects against the Target Company party thereto and, to the Knowledge of the Company, each other party thereto, and is in full force and effect (except, in each case, as such enforcement may be limited by the Enforceability Exceptions). Except as would not reasonably be expected to be material to the Target Companies, taken as a whole, and except for any Company Material Contract that is terminated or expires following the date hereof in accordance with its terms and except as otherwise disclosed in Section 4.13(b) of the Company Disclosure Letter, with respect to each Company Material Contract: (i) no Target Company is in material breach of or default under, and to the Knowledge of the Company, no event has occurred, that with the passage of time or giving of notice or both would constitute a material breach of or default under, by any Target Company, or permit termination or acceleration by the other party thereto, such Company Material Contract; (ii) no party to any Company Material Contract has given any written notice of any such breach, default or event described in clause (i); and (iii) no Target Company has received written or, to the Knowledge of the Company, oral notice, of an intention by any party to any such Company Material Contract that provides for a continuing obligation by any party thereto to terminate such Company Material Contract or amend the terms thereof, other than modifications in the ordinary course of business that do not adversely affect the Target Companies, taken as a whole, in any material respect.
(c) True, correct and complete copies of the Company Material Contracts, including amendments thereto, have been delivered or made available to the Purchaser, to the extent legally permissible.
Section 4.14 Intellectual Property.
(a) Section 4.14(a) of the Company Disclosure Letter sets forth a true, accurate, and complete list, as of the date of this Agreement, of: (i) all U.S. and foreign issued Patents and Patent applications, Trademark registrations and applications and Copyright registrations, internet domain name registrations, and social media user names and handles in each case, owned by or exclusively licensed to a Target Company (“Company Registered IP”), specifying as to each item, as applicable: (A) the title of the item, (B) the owner of the item, (C) the jurisdictions in which the item is issued or registered or in which an application for issuance or registration has been filed and (D) the issuance, registration or application numbers and dates; and (ii) all material Software and material unregistered trademarks and service marks, in each case owned by a Target Company. Each item of Company Registered IP is subsisting, and has not been adjudicated as invalid or unenforceable. Each Target Company owns, free and clear of all Liens (other than Permitted Liens or any Liens set out on Section 4.14(a) of the Company Disclosure Letter), or has a valid right to use all Intellectual Property currently used, licensed or held for use by such Target Company and necessary for the current conduct of the business of such Target Company. No item of Company Registered IP that is Owned Intellectual Property and consists of a pending Patent application fails to identify all pertinent inventors, and for each Patent and Patent application in the Company Registered IP that is Owned Intellectual Property, the Target Companies have obtained valid assignments of inventions from each inventor, and have recorded such assignments. Except as set forth on Section 4.14(a) of the Company Disclosure Letter, all Company Registered IP and other Intellectual Property, in each case owned by the Target Companies is owned exclusively by the applicable Target Company without obligation to pay royalties, licensing fees or other fees, or otherwise account to any third party with respect to such Company Registered IP and such other owned Intellectual Property.
(b) No Target Company is party to any Contract that requires a Target Company to assign to any Person any or all of its rights in any Intellectual Property developed by a Target Company under such Contract.
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(c) No Legal Proceeding is pending or, to the Company’s Knowledge, threatened against a Target Company that challenges the validity, enforceability or ownership of, or any Target Company’s right to use, sell, license or sublicense, any Owned Intellectual Property, nor, to the Knowledge of the Company, is there any reasonable basis for any such Legal Proceeding. No Target Company has received in the past four (4) years any written or, to the Knowledge of the Company, oral notice or claim asserting that any infringement, misappropriation, violation, dilution or unauthorized use of the Intellectual Property of any other Person is or may be occurring or has or may have occurred, as a consequence of the business activities of any Target Company, nor to the Knowledge of the Company is there a reasonable basis therefor. There are no Orders to which any Target Company is a party or is otherwise bound that (i) restricts the rights of a Target Company to use, transfer, license or enforce any material Owned Intellectual Property or material Intellectual Property exclusively licensed to a Target Company, (ii) restricts the conduct of the business of a Target Company in any material respect in order to accommodate a third Person’s Intellectual Property, or (iii) other than any Contracts required to be set forth on Section 4.13(a) of the Company Disclosure Letter pursuant to Section 4.13(a)(xiv)(A), grant any third Person any right to use any material Intellectual Property owned by a Target Company. No Target Company is currently infringing, or has, in the past six years, infringed, misappropriated or violated any Intellectual Property of any other Person in any material respect in connection with the ownership, use or licensing of any Owned Intellectual Property or otherwise in connection with the conduct of the respective businesses of the Target Companies. To the Company’s Knowledge, no third party is currently, or in the past six years has been, infringing, misappropriating or otherwise violating any Owned Intellectual Property.
(d) No current or former officers, employees or independent contractors of a Target Company has any ownership interest in any Owned Intellectual Property and no Person has claimed in writing or asserted in writing any ownership interest or other rights in or to any Owned Intellectual Property. To the Company’s Knowledge, there has been no material violation by a Target Company’s employees or contractors of such Target Company’s policies or practices related to protection of its Intellectual Property or any confidentiality or nondisclosure Contract relating to the Intellectual Property owned by a Target Company. To the Company’s Knowledge, none of the employees of any Target Company is obligated under any Contract, or subject to any Order, that would reasonably be expected to materially interfere with the use of such employee’s reasonable efforts to promote the interests of the Target Companies, or materially conflict with the business of any Target Company as presently conducted. Each Target Company has taken commercially reasonable efforts and security measures designed to maintain the security of all Owned Intellectual Property, including measures designed to protect the secrecy and confidentiality of confidential Trade Secrets constituting Owned Intellectual Property or any other Trade Secrets in the possession or control of a Target Company that were provided to a Target Company subject to written confidentiality or nondisclosure obligations. All Persons who have participated in or contributed to the creation or development of any Intellectual Property for or on behalf of the Target Companies (which Intellectual Property is or was at the time intended to be owned by the Target Companies) have executed written agreements pursuant to which all of such Person’s right, title and interest in and to any such Intellectual Property has been irrevocably assigned (by a present tense assignment) to the Target Companies (or all such right, title, and interest vested in the Target Companies by operation of Law).
(e) Each Target Company is in compliance in all material respects with all licenses governing (i) any open source Software that is incorporated into or used, linked, or bundled with any material Owned Intellectual Property and (ii) to the Knowledge of the Company , open source Software indirectly incorporated into any Owned Intellectual Property by way of third-party Software therein that itself incorporates open source Software. No open source Software is or has been included, incorporated or embedded in, linked to, combined, made available or distributed with, or used in the development, operation, delivery or provision of any Company Software in a manner that requires any Target Company to: (i) disclose, distribute, license or otherwise make available to any Person (including the open source community) any source code for such Company Software; (ii) license any such Company Software or other material Owned Intellectual Property for the purpose of making modifications or derivative works; (iii) disclose, distribute, license or otherwise make available to any Person any such Company Software or other material Owned Intellectual Property for no or nominal charge; or (iv) grant a license to, or refrain from asserting or enforcing any Patents constituting Owned Intellectual Property (each of (i) – (iv), a “Copyleft Action”). No Person other than a Target Company (or any employees or contractors of the Target Companies requiring any source code for any Company Software to perform services for the Target Companies and subject to reasonable confidentiality and non-disclosure obligations) possesses, or has an actual or contingent right to access or possess, a copy in any form of any source code for any Company Software and all such source code is in the applicable Target Company’s possession and has been maintained as strictly confidential.
(f) Except as set forth on Section 4.14(f) of the Company Disclosure Letter, no government funding, nor any facilities of a university, college, other educational institution or research center, was used by any Target Company in the development of any Owned Intellectual Property. No Governmental Authority has any (i) ownership interest or exclusive license in or to any material Owned Intellectual Property, (ii) “unlimited rights” (as defined in 48 C.F.R. § 52.227-14 and in 48 C.F.R. § 252.227-7013(a)) in or to any of the Software, or (iii) “march in rights” (pursuant to 35 U.S.C. § 203) in or to any Patents constituting material Owned Intellectual Property.
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(g) Within the past three (3) years, there has been no material unauthorized access to information and data that is considered “personally identifiable information,” “personal information,” “personal data,” “biometric information,” or any similar term by any applicable Privacy Laws (“Personal Information”) in the possession or control of a Target Company, or otherwise held or processed on a Target Company’s behalf, nor has there been any material loss, damage, disclosure, use, breach of security, or other material compromise of the security, confidentiality or integrity of such Personal Information. Within the past three (3) years, no Target Company has experienced any material security incident that has compromised the integrity or availability of the IT Assets owned or, operated by the Target Companies, or the Personal Information or Company confidential information thereon. Within the past three (3) years, no material written complaint relating to an improper use or disclosure of, or a breach in the security of, any such Personal Information or relating to any information security-related incident has been received by a Target Company nor has a Target Company been required by applicable Privacy Laws to notify in writing any person or entity of any Personal Information security-related incident. Each Target Company has complied in all material respects with all applicable Privacy Laws, Contract requirements and the Target Companies’ externally published policies relating to privacy, Personal Information, protection, cybersecurity and the collection, processing and use of Personal Information (collectively, the “Privacy Requirements”). Except in each case as set forth on Section 4.14(g) of the Company Disclosure Letter, each Target Company has implemented appropriate policies and commercially reasonable safeguards (i) regarding the collection, use, disclosure, retention, processing, transfer, confidentiality, integrity, and availability of Personal Information, in its possession or control, or held or processed on its behalf, and (ii) regarding the integrity, security and availability of the IT Assets owned or operated by the Target Companies. Except as would not reasonably be expected to have a Company Material Adverse Effect, the IT Assets owned or controlled by the Target Companies do not contain any malware, viruses, malicious code, “worms,” “Trojan horses,” “back doors,” or other vulnerabilities, unauthorized tools or scripts that would reasonably be expected to adversely impact the confidentiality, integrity and availability of such IT Assets. The IT Assets used by the Target Companies operate and perform as required by the Target Companies for the operation of its business as currently conducted, except in each case as would not, individually or in the aggregate, reasonably be expected to have a material impact on the Target Companies.
(h) Except as would not reasonably be expected to have a Company Material Adverse Effect, the Target Companies (i) maintain technical documentation describing the Target Companies’ proprietary neural networks used by the Target Companies in the development or use of the proprietary AI/ML owned by the Target Companies (the “Proprietary AI/ML”) that is reasonably sufficient to enable programmers with appropriate skills and experience to modify, debug, and improve such proprietary neural networks in the ordinary course of business consistent with past practice; (ii) retain information, in human-readable form, regarding the Proprietary AI/ML that is reasonably sufficient to explain (or assist in explaining) the operation and outputs of the Proprietary AI/ML, which can be provided to regulators upon request; (iii) have complied in all material respects with all Laws applicable to the Proprietary AI/ML that are in force and effect as of the date of this Agreement; (iv) (A) are not a party to a pending or threatened Legal Proceeding alleging that training data used by the Target Companies in the development, training, improvement or testing of the Proprietary AI/ML was falsified, biased, untrustworthy or manipulated in an unethical or unscientific way; (B) have not received any written report, finding or impact assessment from any internal or external auditor, technology review committee, independent technology consultant, whistle-blower, transparency or privacy advocate, labor union, journalist or academic that makes any such allegation in (A); or (C) have not received any written request for information from regulators or legislators concerning the Proprietary AI/ML; (v) have not used any AI/ML (including generative AI/ML) in a manner that would reasonably be expected to adversely affect the validity or the Target Companies’ ownership of any Owned Intellectual Property; and (vi) have not taken any actions which would reasonably be expected to bring the Target Companies in scope of the European Union’s Artificial Intelligence Act (as set out in Article 2 of the European Union’s Artificial Intelligence Act) for any (x) prohibited AI system (as set out in Article 2 of the European Union’s Artificial Intelligence Act); (y) any “high-risk” AI system (as categorized by Article 6 of the European Union’s Artificial Intelligence Act); or (z) any general-purpose AI model or general-purpose AI system (as defined in Article 3 of the European Union’s Artificial Intelligence Act). None of the Target Companies has used any “scrapers,” “spiders,” “bots” or other automated Software programs or processes to extract or collect information, data, or content from any social media network or any other third-party online source.
(i) The consummation of any of the Transactions will not result in the breach, modification, cancellation, termination, suspension of, or acceleration of any payments with respect to, or release of source code, in connection with any Material IP Contract. After giving effect to the consummation of the Transactions, the Company shall be permitted to exercise, directly or indirectly through the Company Subsidiaries, all of the Target Companies’ rights under any Material IP Contract to the same extent that the Target Companies would have been able to exercise had the Transactions not occurred, without the payment of any additional amounts or consideration other than ongoing fees, royalties or payments which the Target Companies would otherwise be required to pay in the absence of such Transactions.
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Section 4.15 Taxes and Returns.
(a) Except in each case as set forth on Section 4.15 of the Company Disclosure Letter:
(i) Each Target Company (A) has or will have timely filed, or caused to be timely filed, all Income Tax and other material Tax Returns required to be filed by it (taking into account all valid extensions of time to file), and all such Tax Returns are true, accurate and complete in all material respects, and (B) has timely paid, collected, withheld or remitted, or caused to be timely paid, collected, withheld or remitted, all Income Taxes and other material Taxes required to be paid, collected, withheld or remitted by it, whether or not such Taxes are shown as due and payable on any Tax Return. The unpaid Taxes or Tax liabilities of the Target Companies (a) did not, as of the most recent fiscal month end, materially exceed the reserve for Tax liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the Company Financials in accordance with U.S. GAAP and (b) will not materially exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Target Companies in filing their Tax Returns.
(ii) There is no Legal Proceeding currently pending or, to the Knowledge of the Company, threatened against a Target Company by a Governmental Authority in a jurisdiction where the Target Company does not file any Tax Returns or a particular type of Tax Return or pays any Tax or a particular type of Tax that it is or may be subject to such Tax or required to file such Tax Return in that jurisdiction.
(iii) There are no audits, examinations, investigations or other proceedings pending, or to the Knowledge of the Company, threatened against any Target Company in respect of any Tax, and no Target Company has been notified in writing of any proposed claims, deficiencies or assessments against any of them. No Target Company is currently contesting any material Tax liability before any Governmental Authority.
(iv) There are no Liens with respect to any material Taxes upon any Target Company’s assets, other than Permitted Liens.
(v) Each Target Company has timely and properly collected or withheld all material amounts of Taxes required to be collected or withheld by it, timely remitted such Taxes to the appropriate Governmental Authorities, and otherwise complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(vi) No Target Company has requested or consented to any waivers or extensions of any applicable statute of limitations for the collection or assessment of any Taxes, which waiver or extension (or request thereof) is outstanding or pending.
(vii) No Target Company will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date, as a result of: (A) an installment sale or open transaction disposition that occurred on or prior to the Closing Date; (B) any change in method of accounting on or prior to the Closing Date, including by reason of the application of Section 481 of the Code (or any analogous provision of state, local or foreign Law), or the use of an improper method of accounting on or prior to the Closing Date; (C) any prepaid amounts received or deferred revenue realized or received on or prior to the Closing Date; (D) any intercompany transaction described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign Law); or (E) any “closing agreement” pursuant to Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Law) or any other agreement or arrangement with a Governmental Authority relating to Taxes.
(viii) No Target Company has participated in or been a party to, or sold, distributed or otherwise promoted, any “reportable transaction,” as defined in Treasury Regulations Section 1.6011-4 (or any similar or corresponding provision of state, local or foreign Law).
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(ix) No Target Company has been a member of an affiliated, combined, consolidated, unitary or other group for Tax purposes (other than a group the common parent of which is the Company). No Target Company has any Liability or potential Liability for the Taxes of another Person (other than another Target Company) (A) pursuant to Treasury Regulations Section 1.1502-6 (or any similar or corresponding provision of U.S. state or local Tax Law) or under any other applicable Tax Law, (B) as a transferee or successor, or (C) by Contract, indemnity or otherwise (excluding customary commercial Contracts entered into in the ordinary course of business the primary purpose of which is not the sharing of Taxes). No Target Company is a party to or bound by any Tax indemnity agreement, Tax sharing agreement or Tax allocation agreement or similar agreement, arrangement or practice (excluding agreements solely among the Target Companies and customary commercial Contracts entered into in the ordinary course of business the primary purpose of which is not the sharing of Taxes) with respect to Taxes (including advance pricing agreement, closing agreement or other agreement relating to Taxes with any Governmental Authority) that will be binding on any Target Company with respect to any period (or portion thereof) following the Closing Date.
(x) No Target Company has requested, or is it the subject of or bound by any private letter ruling, technical advice memorandum, closing agreement or similar ruling, memorandum or agreement with any Governmental Authority with respect to any Taxes, nor is any such request pending or outstanding.
(xi) No Target Company has ever had a permanent establishment, office, branch, fixed place of business or other taxable presence in any country other than its jurisdiction of formation, and has not otherwise engaged in a trade or business in any country other than its jurisdiction of formation that subjected it to Tax in such country.
(xii) No Target Company has ever been a party to any transaction that was purported or intended to be treated as a distribution of stock qualifying, in whole or in part, for tax-free treatment under Section 355 of the Code (or any corresponding or similar provision of U.S. state or local Tax Law).
(b) The Company is, and has at all times since its formation been, classified as a C corporation for U.S. federal, state and local income tax purposes. The U.S. federal income tax classification of each Company Subsidiary is as set forth on Section 4.15 of the Company Disclosure Letter.
(c) No Target Company has knowingly taken or failed to take (or agreed to take or not take) any action, nor is aware of any fact or circumstance, where such action, failure to act, fact or circumstance would reasonably be expected to prevent or impede the Domestication, the Sponsor Share Conversion or the Merger from qualifying for their respective Intended Tax Treatments.
Section 4.16 Real Property.
(a) The Target Companies do not own any real property.
(b) Section 4.16(b) of the Company Disclosure Letter contains a true, correct and complete list as of the date of this Agreement of all premises currently leased or subleased or otherwise used or occupied by a Target Company for the operation of the business of the Target Companies, and of all current leases, lease guarantees, agreements and documents related thereto, including all amendments, terminations and modifications thereof or waivers thereto (collectively, the “Company Real Property Leases”). The Company Real Property Leases are valid, binding and enforceable against the Target Company party thereto, and to the Knowledge of the Company, each other party thereto, and is in full force and effect, subject, in each case, to the Enforceability Exceptions. No Target Company is in breach of or default, in any material respect, under any Company Real Property Lease, and, to the Knowledge of the Company, no event has occurred and no circumstance exists which, if not remedied, and whether with or without notice or the passage of time or both, would result in such a breach or default, except for such breaches or defaults as would not individually or in the aggregate, reasonably be expected to be material to the business of the Target Companies, taken as a whole. No Target Company has exercised, nor has any Target Company received written notice of any other party’s exercise of, any termination rights with respect to any Company Real Property Lease.
Section 4.17 Personal Property. Except as set forth on Section 4.17 of the Company Disclosure Letter, the Target Companies own and have good title to, or a valid leasehold interest in or right to use, their respective material tangible and intangible assets and Personal Property, free and clear of all Liens other than: (a) Permitted Liens; and (b) the rights of lessors under any leases. The material tangible and intangible assets and Personal Property of the Target Companies: (i) constitute all of the assets and Personal Property that are necessary for the operation of the business of the Target Companies as currently conducted; (ii) taken together, are adequate and sufficient for the operation of the business of the Target Companies as currently conducted; and (iii) have been maintained in accordance with generally accepted industry practice, are in good working order and condition, except for ordinary wear and tear and except, in each case, and as would not, individually or in the aggregate, reasonably be expected to be material to the business of the Target Companies, taken as a whole.
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Section 4.18 Employee Matters.
(a) The Target Companies are not and have never been a party to any collective bargaining agreement or other Contract covering any group of employees, labor organization or other representative of any group of employees of such Target Company, and the Company has no Knowledge of any activities or proceedings of any labor union or other party to organize or represent such employees. In the past three (3) years, there has not occurred or, to the Knowledge of the Company, been threatened in writing, any strike, slow-down, picketing, work-stoppage, or other similar labor activity with respect to any such employees. Section 4.18(a) of the Company Disclosure Letter sets forth all unresolved labor controversies (including unresolved grievances and age or other discrimination claims) as of the date hereof, if any, that are pending or, to the Knowledge of the Company, threatened between the Target Companies and Persons employed by or providing services as independent contractors to the Target Companies.
(b) Except as set forth on Section 4.18(b) of the Company Disclosure Letter, the Target Companies are and have been in compliance in all material respects with all applicable Laws respecting employment and employment practices, terms and conditions of employment, health and safety and wages and hours, and other Laws relating to discrimination, disability, labor relations, hours of work, payment of wages and overtime wages, pay equity, immigration, workers compensation, working conditions, employee scheduling, occupational safety and health, family and medical leave, and employee terminations, and have not received written or, to the Knowledge of the Company, oral notice that there is any pending Legal Proceeding involving unfair labor practices against the Target Company. There are no material Legal Proceedings pending or, to the Knowledge of the Company, threatened against the Target Companies brought by or on behalf of any applicant for employment, any current or former employee, any Person alleging to be a current or former employee, or any Governmental Authority, relating to any such Law or regulation, or alleging breach of any express or implied contract of employment, wrongful termination of employment, or alleging any other discriminatory, wrongful or tortious conduct in connection with the employment relationship.
(c) In the past three (3) years, the Target Companies have not engaged in layoffs, furloughs or employment terminations sufficient to trigger application of the Workers’ Adjustment and Retraining Notification Act or any similar state or local Law relating to group terminations. The Target Companies have not engaged in layoffs or furloughs or effected any broad-based salary or other compensation or benefits reductions, in each case, whether temporary or permanent, in the three (3) years prior to the date of this Agreement.
(d) In the past three (3) years, (i) no allegations of sexual harassment or sexual misconduct have been made in writing, or, to the Knowledge of the Company, threatened to be made against or involving any current or former officer, director or other employee with “Director” in his or her title (or any other higher title) by any current or former officer, employee or individual service provider of any Target Company, and (ii) no Target Company has entered into any settlement agreements resolving, in whole or in part, allegations of sexual harassment or sexual misconduct by any current or former officer, director or other employee with “Director” in his or her title (or any other higher title).
Section 4.19 Company Benefit Plans.
(a) Set forth on Section 4.19(a) of the Company Disclosure Letter is a true and complete list of each Company Benefit Plan. With respect to each Company Benefit Plan, all contributions that are due have been made or, to the extent not yet due, are properly accrued in accordance with GAAP on the Company Financials.
(b) Each Company Benefit Plan is and has been operated, administered, maintained, and funded at all times in compliance with its terms and all applicable Laws in all material respects, including ERISA and the Code. Each Company Benefit Plan which is intended to be “qualified” within the meaning of Section 401(a) of the Code (i) has received a favorable determination letter from the IRS to be so qualified (or is based on a prototype plan which has received a favorable opinion letter upon which the Target Company is entitled to rely) or (ii) the Target Company has requested an initial favorable IRS determination of qualification or exemption within the period permitted by applicable Law. To the Company’s Knowledge, no event has occurred or circumstance exists which could reasonably be expected to adversely affect the qualified status of such Company Benefit Plans or the exempt status of such trusts.
(c) With respect to each Company Benefit Plan required to be listed on Section 4.19(a) of the Company Disclosure Letter, the Company has provided to Purchaser accurate and complete copies, if applicable, of: (i) all Company Benefit Plans (including any amendments, modifications or supplements thereto); (ii) the most recent summary plan descriptions and material modifications thereto; (iii) the most recent Form 5500, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the most recent determination letter (or opinion letter) received from the IRS, if any; (vi) the most recent actuarial valuation; and (vii) all material communications with any Governmental Authority within the last three (3) years.
(d) With respect to each Company Benefit Plan: (i) no Legal Proceeding is pending, or to the Company’s Knowledge, threatened (other than routine claims for benefits arising in the ordinary course of business of administration and administrative appeals of denied claims); (ii) no prohibited transaction, as defined in Section 406 of ERISA or Section 4975 of the Code, has occurred, excluding transactions effected pursuant to a statutory or administration exemption; and (iii) all contributions and premiums that are due prior to the date hereof have been made in all material respects as required under ERISA or have been fully accrued in all material respects on the Company Financials in accordance with GAAP.
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(e) Neither any Target Company nor any ERISA Affiliate currently maintains, or within the preceding six (6) years has maintained or contributed to, a Company Benefit Plan which is a “defined benefit plan” (as defined in Section 414(j) of the Code), a “multiemployer plan” (as defined in Section 3(37) of ERISA) or a “multiple employer plan” (as described in Section 413(c) of the Code) or is otherwise subject to Title IV of ERISA or Section 412 of the Code, and the Target Companies have not incurred any Liability or otherwise could have any Liability, contingent or otherwise, under Title IV of ERISA and no condition presently exists that is expected to cause such Liability to be incurred.
(f) Except as set forth on Section 4.19(f) of the Company Disclosure Letter, the consummation of the Transactions will not, either alone or in combination with another event, (i) entitle any current or former employee, officer or other service provider of the Target Companies to any severance pay or increase in severance pay or any other compensation payable by the Target Companies, (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation due to any such employee, officer or other individual service provider by the Target Companies, (iii) directly or indirectly cause the Target Companies to transfer or set aside any assets to fund any material benefits under any Company Benefit Plan, or (iv) otherwise give rise to any material Liability under any Company Benefit Plan.
(g) The consummation of the Transactions will not, either alone or in combination with another event, result in any “excess parachute payment” under Section 280G of the Code. No Company Benefit Plan provides for a Tax gross-up, make whole or similar payment with respect to the Taxes imposed under Sections 409A or 4999 of the Code.
(h) Except to the extent required by Section 4980B of the Code or similar state Law, the Target Companies do not provide health or welfare benefits to any former or retired employee and are not obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(i) Each Company Benefit Plan that is subject to Section 409A of the Code has been administered in compliance, and is in documentary compliance, in all material respects with the applicable provisions of Section 409A of the Code, the regulations thereunder and other official guidance issued thereunder.
Section 4.20 Environmental Matters. Except as set forth in Section 4.20 of the Company Disclosure Letter:
(a) Each Target Company is in compliance in all material respects with all applicable Environmental Laws.
(b) No material Legal Proceeding or Remedial Legal Proceeding is pending, noticed in writing or, to the Company’s Knowledge, threatened with respect to the Target Companies’ compliance with or liability under Environmental Laws.
(c) No Target Company is the subject of any outstanding Order of any Governmental Authority relating to (i) any material non-compliance by such Target Company with Environmental Laws, (ii) any material Remedial Legal Proceeding, or (iii) any material Release of a Hazardous Material.
(d) There has been no Release of any Hazardous Material by the Target Companies (i) at, in, on or under any property underlying Company Real Property Leases or in connection with the Company’s or any Company Subsidiary’s respective operations of the property underlying Company Real Property Leases or (ii) at, in, on or under any property formerly owned or leased during the time that the Company or any Company Subsidiary owned or leased such property or, to the Knowledge of the Company, at any other location where Hazardous Materials generated by the Target Companies have been transported, sent, placed or disposed of in violation in any material respect of Environmental Laws.
(e) To the Knowledge of the Company, there is no investigation of the business, operations, or currently or formerly owned, operated, or leased property of a Target Company pending or threatened in writing that could reasonably be expected to lead to the imposition of any material Liens (other than Permitted Liens) under any Environmental Law, any material Remedial Legal Proceeding or any material Environmental Liabilities.
(f) To the extent legally permissible, the Company has provided to the Purchaser all material, final and non-privileged written environmental reports, audits, assessments, liability analyses, memoranda and studies in the possession or reasonable control of the Target Companies that identify non-compliance by the Target Companies with or liabilities of the Target Companies arising under Environmental Law.
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Section 4.21 Transactions with Related Persons. Except as set forth on Section 4.21 of the Company Disclosure Letter, and except for in the case of any employee, officer or director, of any employment Contract or Company Benefit Plans made in the ordinary course of business consistent with past practice, no Target Company is a party to any transaction or Contract with any (a) present or former executive officer or director of any of the Target Companies, (b) beneficial owner (within the meaning of Section 13(d) of the Exchange Act) of 5% or more of the capital stock or equity interests of any of the Target Companies or (c) any Related Person; provided that in each case of the foregoing, excluding any transaction or Contract between the Company and any Company Subsidiary. To the Knowledge of the Company, no Related Person or any Affiliate of a Related Person has, directly or indirectly, a material economic interest in any Contract with any of the Target Companies (other than such Contracts that relate to any such Person’s ownership of the equity interests of any Target Company as set forth on Section 4.03(a) of the Company Disclosure Letter or such Person’s employment or consulting arrangements with the Target Companies or Company Benefit Plans disclosed to the Purchaser).
Section 4.22 Insurance.
(a) Section 4.22(a) of the Company Disclosure Letter contains a list of, as of the date of this Agreement, all policies or binders of property, fire and casualty, product liability, workers’ compensation, and other forms of insurance held by, or for the benefit of, the business of any Target Company (by policy number, insurer, coverage period, coverage amount, annual premium and type of policy). As of the date of this Agreement, all premiums due and payable under all such insurance policies have been paid and the Target Companies are otherwise in material compliance with the terms of such insurance policies. Each such insurance policy is legal, valid and binding, and is enforceable and in full force and effect, subject, in each case, to the Enforceability Exceptions. No Target Company has any self-insurance or co-insurance programs. In the past three (3) years, no Target Company has received any written notice from, or on behalf of, any insurance carrier relating to or involving any notice of cancellation or termination, or any adverse material change other than in the ordinary course of business consistent with past practice in the conditions of insurance, any refusal to issue an insurance policy or non-renewal of a policy.
(b) Section 4.22(b) of the Company Disclosure Letter identifies, as of the date hereof, each individual insurance claim in excess of $500,000 made by a Target Company in the past three (3) years. Each Target Company has reported to its insurers all claims and pending circumstances that would reasonably be expected to result in a claim, except where such failure to report such a claim would not be reasonably likely to be material to the Target Companies, taken as a whole. No Target Company has made any claim against an insurance policy as to which the insurer has denied coverage in the last three (3) years.
Section 4.23 Top Customers and Suppliers.
(a) Section 4.23(a) of the Company Disclosure Letter sets forth, by aggregate dollar value of the Target Companies business’ transaction volume with such counterparty, as applicable, for each of (i) the twelve (12) months ended on December 31, 2025 and (ii) the twelve (12) months ended on December 31, 2024, the ten (10) largest customers of the Target Companies, taken as a whole (the “Top Customers”). As of the date hereof, no Top Customer has provided written notice to the Target Companies (i) of its intention to cancel or otherwise terminate, or materially reduce, its relationship with the Target Companies, taken as a whole, or (ii) that any Target Company is in material breach of the terms of any Company Material Contract to which it is a party with such Top Customer. During the past three (3) years, no Top Customer has asserted or threatened in writing a force majeure event or provided written notice of an anticipated inability to perform, in whole or in part, its obligations with respect to a Company Material Contract.
(b) Section 4.23(b) of the Company Disclosure Letter sets forth, by aggregate dollar value of the Target Companies’ business’ transaction volume with such counterparty, as applicable, for each of (i) the twelve (12) months ended on December 31, 2025 and (ii) the twelve (12) months ended on December 31, 2024, the ten (10) largest suppliers or manufacturers of goods or services to the Target Companies, taken as a whole (the “Top Suppliers”). As of the date hereof, no such Top Supplier has provided written notice to the Target Companies (i) of its intention to cancel or otherwise terminate, or materially reduce, its relationship with the Target Companies, taken as a whole, or (ii) that any Target Company is in material breach of the terms of any Contract to which it is a party with such Top Supplier. During the past three (3) years, no Top Supplier has asserted or threatened in writing a force majeure event or provided written notice of an anticipated inability to perform, in whole or in part, its obligations with respect to a Company Material Contract.
(c) Except as set forth on Section 4.23(a) of the Company Disclosure Letter and Section 4.23(b) of the Company Disclosure Letter, none of the Top Customers or Top Suppliers has, as of the date of this Agreement, notified any Target Companies in writing that it is in a material dispute with any of the Target Companies.
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Section 4.24 Certain Business Practices.
(a) No Target Company, nor, to the Knowledge of the Company, any of their respective Representatives acting on their behalf has, in the past five years, offered, given, paid, promised to pay, or authorized the payment of anything of value to (i) an official or employee of a foreign or domestic Governmental Authority; (ii) a foreign or domestic political party or an official of a foreign or domestic political party; or (iii) a candidate for foreign or domestic political office, in any such case under circumstances where such Target Company or Representative thereof knew that all or a portion of such thing of value would be offered, given, or promised to an official or employee of a foreign or domestic Governmental Authority, a foreign or domestic political party, an official of a foreign or domestic political party, or a candidate for a foreign or domestic political office for the purpose of obtaining or retaining business, in each case in violation of any Anti-Bribery Law. No Target Company nor, to the Knowledge of the Company, any Representative of any Target Company has, in the past five (5) years, conducted or initiated any internal investigation or made a voluntary, directed, or involuntary disclosure to any Governmental Authority with respect to any alleged noncompliance with any Anti-Bribery Law or Anti-Money Laundering Law. No Target Company nor, to the Knowledge of the Company, any Representative of any Target Company has, in the past five (5) years, received any written notice, request, or citation from any Governmental Authority for any actual or potential noncompliance with any Anti-Bribery Law or Anti-Money Laundering Law. There are no actions, conditions, or circumstances that would reasonably be expected to give rise to any future Legal Proceedings against the Company related to any actual or alleged violation of any Anti-Bribery Law or Anti-Money Laundering Law. Each of the Target Companies has, in the past five (5) years, conducted operations in compliance in all material respects with all applicable financial recordkeeping and reporting requirements of the Anti-Bribery Laws and Anti-Money Laundering Laws.
(b) The operations of each Target Company are and since April 24, 2019, have been conducted at all times in material compliance with Sanctions, International Trade Laws, and Anti-Money Laundering Laws and no Legal Proceeding involving a Target Company with respect to any of the foregoing is pending or, to the Knowledge of the Company, threatened.
(c) No Target Company nor any of their respective directors, officers or, to the Knowledge of the Company, any other Representative acting on behalf of a Target Company, is or since April 24, 2019, has been a Sanctioned Person or located, organized, or resident in a Sanctioned Jurisdiction.
(d) The Target Companies have since April 24, 2019, maintained in place and implemented controls and systems reasonably designed to comply with Sanctions and export controls administered and maintained by the U.S. government.
(e) No Target Company has since April 24, 2019, directly or indirectly, knowingly used any funds, or loaned, contributed or otherwise made available such funds to any Company Subsidiary, joint venture partner or other Person, in connection with any sales or operations in a Sanctioned Jurisdiction or for the purpose of financing the activities (x) of any Person currently the subject or target of U.S. Sanctions administered by the U.S. government, or (y) in any other manner that would constitute a violation of, any U.S. Sanctions administered by U.S. government.
Section 4.25 Product Liability. Except as set forth on Section 4.25(a) of the Company Disclosure Letter, the products and services sold by the Target Companies have complied with and are in compliance with, in all material respects, all applicable (a) Laws and (b) express or implied warranties. Except as set forth on Section 4.25(b) of the Company Disclosure Letter, no Target Company has initiated or otherwise participated in any product or service recall or withdrawal with respect to any product or service produced, manufactured, marketed, distributed or sold in connection with the Target Companies’ business, whether voluntary or required by any Governmental Authority or applicable Law. There are no, and there have not been, any defects or deficiencies in any Target Company’s products or services that would reasonably be expected to give rise to or serve as a basis for any recall or withdrawal by any Target Company that would be material to the business of the Target Companies, taken as a whole.
Section 4.26 Investment Company Act. No Target Company is an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of an “investment company,” or required to register as an “investment company,” in each case within the meaning of the Investment Company Act of 1940, as amended.
Section 4.27 Finders and Brokers. Except as set forth on Section 4.27 of the Company Disclosure Letter, no broker, finder, investment banker or other Person is entitled to, nor will be entitled to, either directly or indirectly, any brokerage fee, finders’ fee or other similar commission, for which any Target Company would be liable in connection with the Transactions based upon arrangements made by any Target Company or any of their Affiliates.
Section 4.28 Independent Investigation. The Target Companies have conducted their own independent investigation, review and analysis of the business, results of operations, prospects, condition (financial or otherwise) or assets of the Purchaser and Merger Sub, and acknowledge that they have been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of the Purchaser and Merger Sub for such purpose. The Company acknowledges and agrees that: (a) in making its decision to enter into this Agreement and to consummate the Transactions, it has relied solely upon its own investigation and the express representations and warranties of the Purchaser and Merger Sub set forth in this Agreement (including the related portions of the Purchaser Disclosure Letter) and in any certificate delivered to the Company pursuant hereto; and (b) none of the Purchaser, Merger Sub or any of their respective Representatives have made any representation or warranty as to the Purchaser or Merger Sub or this Agreement, except as expressly set forth in Article V (including the related portions of the Purchaser Disclosure Letter) or in any certificate delivered to the Company pursuant hereto.
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Section 4.29 Information Supplied. None of the information supplied or to be supplied by the Target Companies expressly for inclusion or incorporation by reference in (i) any current report on Form 8-K, and any exhibits thereto or any other report, form, registration or other filing made with any Governmental Authority or stock exchange with respect to the Transactions or in the Proxy Statement/Registration Statement or (ii) any of the Signing Press Release, the Signing Filing, the Closing Press Release, the Closing Filing and any other press releases of prospectus filed under Rule 425 of the Securities Act in connection to the Transactions shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading at (a) the time such information is filed with or furnished to the SEC (provided, that if such information is revised by any subsequently filed amendment or supplement, this clause (a) shall solely refer to the time of such subsequent revision); (b) the time the Proxy Statement/Registration Statement is declared effective by the SEC; (c) the time the Proxy Statement/Registration Statement (or any amendment thereof or supplement thereto) is first mailed to the Purchaser Shareholders; or (d) the time of the Purchaser Shareholders’ Meeting. Notwithstanding the foregoing, the Target Companies make no representation, warranty or covenant with respect to any information supplied by or on behalf of the Purchaser, Merger Sub or their respective Affiliates.
Section 4.30 No Additional Representations or Warranties. Except as provided in this Article IV, none of the Target Companies nor any of their respective Affiliates, nor any of their respective directors, managers, officers, employees, equityholders, partners, members or representatives has made, or is making, any representation or warranty whatsoever to Purchaser, Merger Sub or their respective Affiliates or any other Person and no such party shall be liable in respect of the accuracy or completeness of any information provided to the Purchaser, Merger Sub or their respective Affiliates or any other Person.
Article V
Representations and Warranties of the Purchaser and Merger Sub
Except as set forth in (i) any Purchaser SEC Reports filed or submitted on or prior to the date hereof, or (ii) in the disclosure letter delivered by the Purchaser to the Company (the “Purchaser Disclosure Letter”) on the date of this Agreement, the Purchaser and Merger Sub represent and warrant to the Company, jointly and not severally, as of the date of this Agreement and as of the Closing (unless any such representation or warranty addresses matters only as of a particular date or with respect to a specific period in which event such representation or warranty shall be made then only as of such particular date or with respect to such specific period), as follows:
Section 5.01 Organization and Standing.
(a) The Purchaser is an exempted company duly incorporated, validly existing and in good standing under the Laws of the Cayman Islands. The Purchaser has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. The Purchaser is duly qualified or licensed and in good standing to do business in each jurisdiction in which the character of the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary. The Purchaser has heretofore made available to the Company accurate and complete copies of its Organizational Documents as currently in effect. The Purchaser is not in violation of any provision of its Organizational Documents.
(b) Merger Sub is a corporation duly formed, validly existing and in good standing under the Laws of Delaware. Merger Sub has heretofore made available to the Company accurate and complete copies of its Organizational Documents as currently in effect. Merger Sub is not in violation of any provision of its Organizational Documents.
Section 5.02 Authorization; Binding Agreement. Each of the Purchaser and Merger Sub has all requisite corporate power and authority to execute and deliver this Agreement and each Ancillary Document to which it is or will be a party, to perform its respective obligations hereunder and thereunder and to consummate the Transactions, subject to obtaining the Purchaser Shareholder Approval. The execution and delivery of this Agreement and each Ancillary Document to which it is a party and the consummation of the Transactions (a) have been duly and validly authorized by the boards of directors (or equivalent governing body) of the Purchaser and Merger Sub, and (b) other than the Purchaser Shareholder Approval, no other corporate proceedings on the part of the Purchaser or Merger Sub are necessary to authorize the execution and delivery of this Agreement and each Ancillary Document to which it is a party or to consummate the Transactions. This Agreement has been, and each Ancillary Document to which the Purchaser or Merger Sub are a party shall be when delivered, duly and validly executed and delivered by the Purchaser or Merger Sub, as applicable, and, assuming the due authorization, execution and delivery of this Agreement and such Ancillary Documents by the other parties hereto and thereto, constitutes, or when delivered shall constitute, the valid and binding obligation of the Purchaser or Merger Sub, as applicable, enforceable against the Purchaser or Merger Sub, as applicable, in accordance with its terms, except to the extent that enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization and moratorium Laws and other Laws of general application affecting the enforcement of creditors’ rights generally or by any applicable statute of limitation or by any valid defense of set-off or counterclaim, and the fact that equitable remedies or relief (including the remedy of specific performance) are subject to the discretion of the court from which such relief may be sought (collectively, the “Enforceability Exceptions”).
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Section 5.03 Governmental Approvals. Assuming the truth and completeness of the representations and warranties of the Company contained in this Agreement, no Consent of any Governmental Authority is required on the part of the Purchaser or Merger Sub with respect to the Purchaser’s or Merger Sub’s execution, delivery or performance of this Agreement, any of the Ancillary Documents to which it is or will be a party or the consummation by the Purchaser or Merger Sub of the Transactions, except for (a) any Consents disclosed on Section 5.03 of the Purchaser Disclosure Letter, (b) pursuant to the applicable requirements of the HSR Act, (c) any filings required with Nasdaq or the SEC with respect to the Transactions, (d) applicable requirements, if any, of the Securities Act, the Exchange Act, or any state “blue sky” securities Laws, and the rules and regulations thereunder, and (e) where the failure to obtain or make such Consents or to make such filings or notifications, would not reasonably be material to the Purchaser or Merger Sub.
Section 5.04 Non-Contravention. Assuming the truth and completeness of the representations and warranties of the Company contained in this Agreement, the execution, delivery and performance by each of the Purchaser and Merger Sub of this Agreement and each Ancillary Document to which it is a party, the consummation by the Purchaser and Merger Sub of the Transactions, and compliance by the Purchaser and Merger Sub with any of the provisions hereof and thereof, do not and will not (a) conflict with or violate any provision of their respective Organizational Documents, (b) subject to obtaining the Consents from Governmental Authorities referred to in Section 5.03 hereof, and the waiting periods referred to therein having expired, and any condition precedent to such Consent or waiver having been satisfied, conflict with or violate any provision of, or result in the breach of, any Law, Order or Consent applicable to the Purchaser or Merger Sub or any of its properties or assets, (c) violate any provision of or result in a breach, default or acceleration of, or require a consent under, create any right to payment under any material Contract to which the Purchaser or Merger Sub is a party or otherwise bound, or terminate or result in the termination of any material Contract to which the Purchaser or Merger Sub is a party or otherwise bound, or result in the creation of any Lien (other than a Permitted Lien) under any Contract upon any of the properties or assets of the Purchaser or Merger Sub, or constitute an event which, after notice or lapse of time or both, would result in any such violation, breach, default, acceleration, termination or creation of a Lien (other than a Permitted Lien) or (d) result in a violation or revocation of any required Consents, except to the extent that the occurrence of any of the foregoing items set forth in clauses (b), (c) or (d) would not, individually or in the aggregate, reasonably be expected to prevent, materially delay or materially impair the ability of the Purchaser or Merger Sub to consummate the Transactions or reasonably be expected to be material to the Purchaser or Merger Sub.
Section 5.05 Capitalization.
(a) As of the date of this Agreement, the authorized share capital of Purchaser is $55,500 divided into (i) 500,000,000 Purchaser Class A Ordinary Shares, 21,946,600 of which are issued and outstanding, (ii) 50,000,000 Purchaser Class B Ordinary Shares, of which 7,153,867 shares are issued and outstanding, and (iii) 5,000,000 Purchaser Preference Shares, of which no shares are issued and outstanding. All outstanding Purchaser Ordinary Shares are duly authorized, validly issued, fully paid and non-assessable and are not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the Cayman Companies Act, Purchaser’s Organizational Documents or any Contract to which the Purchaser is a party. None of the outstanding Purchaser Ordinary Shares have been offered, sold or issued in violation of any applicable Laws.
(b) Subject to the terms and conditions of the Warrant Agreement, (i) in connection with the Domestication, the Cayman Purchaser Warrants will be converted into Domesticated Purchaser Warrants, which will be exercisable after giving effect to the Transactions for one share of Domesticated Purchaser Common Stock at an exercise price of $11.50 per share. As of the date of this Agreement, 10,973,300 Cayman Purchaser Warrants, consisting of 10,730,800 Cayman Purchaser Public Warrants and 242,500 Cayman Purchaser Private Placement Warrants are issued and outstanding. All outstanding Cayman Purchaser Warrants are duly authorized, validly issued, fully paid and non-assessable and are not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the Cayman Companies Act, Purchaser’s Organizational Documents or any Contract to which the Purchaser is a party. None of the outstanding Cayman Purchaser Warrants have been offered, sold or issued in violation of any applicable Laws.
(c) Other than the Redemption or as expressly set forth in this Agreement, there are no outstanding obligations of Purchaser to repurchase, redeem or otherwise acquire any shares of Purchaser or to provide funds to make any investment (in the form of a loan, capital contribution or otherwise) in any Person. Except as set forth on Section 5.05(c) of the Purchaser Disclosure Letter, there are no shareholders agreements, voting trusts or other agreements or understandings to which the Purchaser is a party with respect to the voting of any shares of Purchaser.
(d) All Indebtedness of Purchaser as of the date of this Agreement is set forth on Section 5.05(d) of the Purchaser Disclosure Letter. No Indebtedness of the Purchaser contains any restriction upon (i) the prepayment of any of such Indebtedness, (ii) the incurrence of Indebtedness by the Purchaser or (iii) the ability of the Purchaser to grant any Lien on its properties or assets.
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(e) Since the date of incorporation of the Purchaser, and except as contemplated by this Agreement, the Purchaser has not declared or paid any distribution or dividend in respect of its shares and has not repurchased, redeemed or otherwise acquired any of its shares, and the Purchaser’s board of directors has not authorized any of the foregoing.
(f) Purchaser owns all of the issued and outstanding shares of common stock of Merger Sub. No other equity interests or other voting securities of Merger Sub are issued, reserved for issuance or outstanding. All issued and outstanding equity interests of Merger Sub are duly authorized, validly issued, fully paid and nonassessable and are not subject to, and were not issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, Merger Sub’s Organizational Documents or any contract to which Merger Sub is a party or by which Merger Sub is bound. There are no outstanding contractual obligations of Merger Sub to repurchase, redeem or otherwise acquire any of its equity interests or any equity capital of Merger Sub. There are no outstanding contractual obligations of Merger Sub to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person.
(g) Other than the Cayman Purchaser Warrants and in connection with the PIPE Investment and the Redemption pursuant to and in accordance with this Agreement, Purchaser has not granted any (i) subscription, calls, options, warrants, rights (including preemptive rights), puts or other securities convertible into or exchangeable or exercisable for Purchaser Ordinary Shares or any other capital stock or equity interests of Purchaser, or any other Contracts to which the Purchaser is a party or by which the Purchaser is bound, obligating the Purchaser to issue or sell any shares of capital stock of, or other equity interests in or debt securities of, the Purchaser, or (ii) equity equivalents, stock appreciation rights, phantom stock ownership interests or similar rights in the Purchaser.
Section 5.06 SEC Filings and Purchaser Financials; Internal Controls.
(a) The Purchaser has, since the IPO, timely filed all forms, reports, schedules, statements and other documents required to be filed or furnished by the Purchaser with the SEC under the Securities Act or the Exchange Act, together with any amendments, restatements or supplements thereto (all of the foregoing filed prior to the date of this Agreement, the “Purchaser SEC Reports”), and will have filed all such forms, reports, schedules, statements and other documents (except for the Proxy Statement/Registration Statement and any other forms, reports, schedules, statements and other documents filed or furnished with respect to the Transactions) required to be filed subsequent to the date of this Agreement through the Closing Date (the “Additional Purchaser SEC Reports”). All of the Purchaser SEC Reports, Additional Purchaser SEC Reports, any correspondence from or to the SEC or the Nasdaq Stock Market (“Nasdaq”) (other than such correspondence in connection with the IPO of the Purchaser) and all certifications and statements required by: (i) Rule 13a-14 or 15d-14 under the Exchange Act; or (ii) 18 U.S.C. § 1350 (Section 906) of the Sarbanes-Oxley Act with respect to any of the foregoing (collectively, the “Public Certifications”) are available on the SEC’s Electronic Data-Gathering, Analysis and Retrieval system (EDGAR) in full without redaction.
(b) The Purchaser SEC Reports were, and the Additional Purchaser SEC Reports will be, prepared in accordance with the requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act, as the case may be, and the rules and regulations thereunder. The Purchaser SEC Reports did not, and the Additional Purchaser SEC Reports will not, at the time they were or are filed (or if amended or superseded by a filing prior to the date of this Agreement or the Closing Date, then on the date of such filing), as the case may be, with the SEC contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. Each director and executive officer of Purchaser has filed with the SEC on a timely basis all statements required with respect to Purchaser by Section 16(a) of the Exchange Act and the rules and regulations thereunder. The Public Certifications are, or will be, each true and correct as of their respective dates of filing. As used in this Section 5.06, the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC or Nasdaq. As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the Purchaser SEC Reports and, to the Knowledge of the Purchaser, none of the Purchaser SEC Reports filed on or prior to the date hereof is subject to ongoing SEC review or investigation as of the date of this Agreement.
(c) The financial statements and notes contained or incorporated by reference in the Purchaser SEC Reports fairly present, and the financial statements and notes to be contained in or to be incorporated by reference in the Additional Purchaser SEC Reports will fairly present, in all material respects, the financial condition and the results of operations, changes in shareholders’ equity and cash flows of the Purchaser as at the respective dates of, and for the periods referred to, in such financial statements, all in accordance with: (i) GAAP applied on a consistent basis throughout the periods indicated; and (ii) in all material respects, applicable accounting requirements and the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable), subject, in the case of interim financial statements, to normal recurring year-end audit adjustments (to the Knowledge of the Purchaser, none of which is expected to be material) and the omission of notes to the extent permitted by Regulation S-X or Regulation S-K, as applicable.
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(d) The Purchaser has no off-balance sheet arrangements that are not disclosed in the Purchaser SEC Reports. No financial statements other than those of the Purchaser are required by GAAP to be included in the consolidated financial statements of the Purchaser.
(e) The issued and outstanding Cayman Purchaser Units are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq under the symbol “ACGCU.” The issued and outstanding Purchaser Class A Ordinary Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq under the symbol “ACGC.” The issued and outstanding Cayman Purchaser Public Warrants are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq under the symbol “ACGCW.” The Purchaser is a listed company in good standing with Nasdaq. There is no Legal Proceeding pending or, to the Knowledge of the Purchaser, threatened in writing against the Purchaser by Nasdaq or the SEC with respect to any intention by such entity to deregister the Cayman Purchaser Units, the Purchaser Class A Ordinary Shares or the Cayman Purchaser Public Warrants or terminate the listing of the Purchaser on Nasdaq. Except in connection with the Transactions, none of the Purchaser or any of its Affiliates has taken any action in an attempt to terminate the registration of the Cayman Purchaser Units, the Purchaser Class A Ordinary Shares or Cayman Purchaser Public Warrants under the Exchange Act.
(f) Except as not required in reliance on exemptions from various reporting requirements by virtue of Purchaser’s status as an “emerging growth company” within the meaning of the Securities Act, as modified by the Jumpstart Our Business Startups Act of 2012 (“JOBS Act”), Purchaser has established and maintains disclosure controls and procedures (as defined in Rule 13a-15 under the Exchange Act). Such disclosure controls and procedures are designed to ensure that material information relating to Purchaser is made known to Purchaser’s principal executive officer and its principal financial officer by others within those entities, particularly during the periods in which the periodic reports required under the Exchange Act are being prepared. Such disclosure controls and procedures are effective in timely alerting Purchaser’s principal executive officer and principal financial officer to material information required to be included in Purchaser’s periodic reports required under the Exchange Act. The Purchaser has established and maintains a system of internal controls over financial reporting (as defined in Rule 13a-15 under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of Purchaser’s financial reporting and the preparation of the financial statements included in the Purchaser SEC Reports for external purposes in accordance with GAAP.
(g) The Purchaser has not identified nor has it received written notice from an independent auditor of (i) any significant deficiency or material weakness in the system of internal controls utilized by the Purchaser, (ii) any fraud that involves the Purchaser’s financial statements, the Purchaser’s management or other employees who have a material role in the preparation of the Purchaser’s financial statements or the internal controls over financial reporting utilized by the Purchaser or (iii) any complaint, assertion, claim or allegation regarding any of the foregoing.
Section 5.07 Absence of Certain Changes. As of the date of this Agreement, the Purchaser has, since the date of its incorporation, (a) conducted no business other than its incorporation, the public offering of its securities (and the related private offerings), public reporting and its search for an initial Business Combination as described in the IPO Prospectus (including the investigation of the Target Companies and the negotiation and execution of this Agreement) and related administrative activities and (b) not been subject to a Purchaser Material Adverse Effect. Since December 31, 2025, the Purchaser has not taken any action that would require the consent of the Company if taken after the date of this Agreement and prior to the Closing pursuant to Section 6.03. Merger Sub was formed solely for the purpose of effecting the Transactions and has not engaged in any business activities or conducted any operations other than in connection with the Transactions. There is no Contract or Order binding upon Purchaser or Merger Sub which has or would be reasonably expected to have the effect of prohibiting or materially impairing any business practice, any acquisition of property or the conduct of business.
Section 5.08 Undisclosed Liabilities. There is no Liability, debt or obligation (absolute, accrued, contingent or otherwise) of the Purchaser of a type required to be reflected or reserved for on a balance sheet prepared in accordance with GAAP, except for Liabilities, debts and obligations: (a) reflected on and adequately reserved for on the Purchaser’s financial statements or disclosed in the notes thereto included in the Purchaser SEC Reports; (b) that have arisen since the date of the most recent balance sheet included in the Purchaser SEC Reports in the ordinary course of business consistent with past practice; (c) arising under this Agreement or incurred in connection with the Transactions; or (d) executory obligations existing as of the date of this Agreement pursuant to any Contract, which, in each case, are not related to any breach or default by the Purchaser. Merger Sub has no, and at all times prior to the Effective Time except as contemplated by this Agreement or the Ancillary Documents, will have no, assets, liabilities or obligations of any kind or nature whatsoever other than those incident to its formation.
Section 5.09 Compliance with Laws. Each of the Purchaser and Merger Sub is, and has since its incorporation been, in compliance in all material respects with all Laws applicable to it and with respect to the conduct of its business, and neither the Purchaser nor Merger Sub has received written notice alleging any violation of applicable Law in any material respect by the Purchaser or Merger Sub.
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Section 5.10 Legal Proceedings; Orders; Permits. There is no pending or, to the Knowledge of the Purchaser, threatened, Legal Proceeding of any nature against the Purchaser (or any of its properties or assets) or Merger Sub that would reasonably be expected to be material to the Purchaser or the Merger Sub or that would have a material effect on the ability of the Purchaser or the Merger Sub to enter into or perform their respective obligations under this Agreement, any Ancillary Document to which either is a party, or consummate the Transactions. There is no material Legal Proceeding that the Purchaser or Merger Sub has pending against any other Person. Neither the Purchaser, nor Merger Sub, is subject to any Legal Proceeding or material Orders of any Governmental Authority, nor are any such Legal Proceeding or Orders pending. Each of the Purchaser and Merger Sub holds all material Permits necessary to lawfully conduct its business as presently conducted, and to own, lease and operate its assets and properties, all of which are in full force and effect.
Section 5.11 Taxes and Returns.
(a) The Purchaser (i) has timely filed, or caused to be timely filed, all Income Tax and other material Tax Returns required to be filed by it (taking into account all valid extensions of time to file), and all such Tax Returns are true, accurate and complete in all material respects, and (ii) has timely paid, collected, withheld or remitted, or caused to be timely paid, collected, withheld or remitted, all Income Taxes and other material Taxes required to be paid, collected, withheld or remitted, whether or not such Taxes are shown as due and payable on any Tax Return.
(b) There is no Legal Proceeding currently pending or, to the Knowledge of the Purchaser, threatened against the Purchaser by a Governmental Authority in a jurisdiction where Purchaser does not file any Tax Returns or a particular type of Tax Return or pays any Tax or a particular type of Tax that it is or may be subject to such Tax or required to file such Tax Return in that jurisdiction.
(c) There are no audits, examinations, investigations or other proceedings pending, or to the Knowledge of the Purchaser, threatened against the Purchaser in respect of any Tax, and the Purchaser has not been notified in writing of any proposed Tax claims, deficiencies or assessments against the Purchaser. Purchaser is not currently contesting any material Tax liability before any Governmental Authority.
(d) There are no Liens with respect to any material Taxes upon any of the Purchaser’s assets, other than Permitted Liens.
(e) The Purchaser has timely and properly collected or withheld all material amounts of Taxes required to be collected or withheld by it, timely remitted such Taxes to the appropriate Governmental Authorities, and otherwise complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(f) The Purchaser has not requested or consented to any waivers or extensions of any applicable statute of limitations for the collection or assessment of any Taxes, which waiver or extension (or request thereof) is outstanding or pending.
(g) The Purchaser will not be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date, as a result of: (i) an installment sale or open transaction disposition that occurred on or prior to the Closing Date; (ii) any change in method of accounting on or prior to the Closing Date, including by reason of the application of Section 481 of the Code (or any analogous provision of state, local or foreign Law) or the use of an improper method of accounting on or prior to the Closing Date; (iii) any prepaid amounts received or deferred revenue realized or received on or prior to the Closing Date; (iv) any intercompany transaction described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of state, local or foreign Law); or (v) any “closing agreement” pursuant to Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Law) or any other agreement or arrangement with a Governmental Authority relating to Taxes.
(h) The Purchaser has not participated in or been a party to, or sold, distributed or otherwise promoted, any “reportable transaction,” as defined in Treasury Regulations Section 1.6011-4 (or any similar or corresponding provision of state, local or foreign Law).
(i) The Purchaser has not been a member of an affiliated, combined, consolidated, unitary or other group for Tax purposes. The Purchaser does not have any Liability or potential Liability for the Taxes of another Person (i) pursuant to Treasury Regulations Section 1.1502-6 (or any similar or corresponding provision of U.S. state or local Tax Law) or under any other applicable Tax Law, (ii) as a transferee or successor, or (iii) by Contract, indemnity or otherwise (excluding customary commercial Contracts entered into in the ordinary course of business the primary purpose of which is not the sharing of Taxes). The Purchaser is not a party to or bound by any Tax indemnity agreement, Tax sharing agreement or Tax allocation agreement or similar agreement, arrangement or practice (excluding customary commercial Contracts entered into in the ordinary course of business the primary purpose of which is not the sharing of Taxes) with respect to Taxes (including advance pricing agreement, closing agreement or other agreement relating to Taxes with any Governmental Authority) that will be binding on the Purchaser with respect to any period (or portion thereof) following the Closing Date.
(j) The Purchaser has not requested, and is not the subject of or bound by any private letter ruling, technical advice memorandum, closing agreement or similar ruling, memorandum or agreement with any Governmental Authority with respect to any Taxes, nor is any such request pending or outstanding.
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(k) The Purchaser is, and has at all times since its formation been, classified as a C corporation for U.S. federal, state and local income tax purposes.
(l) The Purchaser has not knowingly taken or failed to take (or agreed to take or not take) any action, nor is it aware of any fact or circumstance, where such action, failure to act, fact or circumstance would reasonably be expected to prevent or impede the Domestication, the Sponsor Share Conversion or the Merger from qualifying for their respective Intended Tax Treatments.
Section 5.12 Properties.
(a) Neither the Purchaser, nor Merger Sub, owns, licenses or otherwise has any right, title or interest in or to any material Intellectual Property. Neither the Purchaser, nor Merger Sub own or lease any material real property or material Personal Property (except for the Purchaser’s ownership of the Merger Sub membership interests).
(b) Except as contemplated in that certain Services Agreement, dated April 6, 2026, by and between the Sponsor and the Purchaser (as amended, supplemented or otherwise modified, the “Services Agreement”), the Purchaser does not lease, sublease or otherwise use or occupy any real property or premises. The Services Agreement is valid, binding and enforceable against the Purchaser and to each other party thereto, and is in full force and effect, subject, in each case, to the Enforceability Exceptions. Purchaser is not in breach of or default, in any material respect, under the Services Agreement, and no event has occurred and no circumstance exists which, if not remedied, and whether with or without notice or the passage of time or both, would result in such a material breach or default, except for such breaches or defaults as would not individually or in the aggregate, reasonably be expected to be material to the business of the Purchaser, taken as a whole. Purchaser has not exercised, nor has Purchaser received written notice of any other party’s exercise of, any termination rights with respect to the Services Agreement. The Purchaser SEC Reports contain a true and complete copy of the Services Agreement.
(c) Neither the Purchaser nor Merger Sub own or lease any material Personal Property (except for (i) the Purchaser’s ownership of the Merger Sub membership interests and (ii) as contemplated in the Services Agreement).
Section 5.13 Investment Company Act. The Purchaser is not an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of an “investment company,” or required to register as an “investment company,” in each case within the meaning of the Investment Company Act of 1940, as amended.
Section 5.14 Trust Account. As of the date of this Agreement, Purchaser has at least $216,000,000 in the Trust Account, such monies held in cash or invested in United States government securities or money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act pursuant to the Investment Management Trust Agreement, dated as of April 6, 2026, between Purchaser and Odyssey, as trustee (the “Trustee”) (the “Trust Agreement”). There are no separate Contracts, side letters or other arrangements or understandings (whether written or unwritten, express or implied) that would cause the description of the Trust Agreement in the Purchaser SEC Reports to be inaccurate or that would entitle any Person (other than Purchaser Shareholders who shall have properly elected to redeem their Purchaser Class A Ordinary Shares pursuant to Purchaser’s Organizational Documents and the underwriters of the IPO with respect to deferred underwriting commissions) to any portion of the proceeds in the Trust Account. Prior to the Closing, none of the funds held in the Trust Account may be released other than to pay Taxes and payments (a) to the Purchaser’s public shareholders with respect to the redemption of Purchaser Class A Ordinary Shares properly submitted in connection with a shareholder vote on a proposed Business Combination but only in the event that the applicable Business Combination is approved and consummated (or as otherwise approved by the Purchaser’s shareholders by amendment to the Purchaser’s Organizational Documents) and subject to the limitations contained in the Purchaser’s Organizational Documents; (b) to the Purchaser’s public shareholders who elect to have their Purchaser Class A Ordinary Shares repurchased by means of a tender offer subject to the provisions contained in the Purchaser’s Organizational Documents; (c) to the Purchaser’s public shareholders if any amendment is made to the Purchaser’s Organizational Documents to (i) modify the substance or timing of Purchaser’s obligation to allow redemption in connection with its initial business combination or to redeem 100% of its Purchaser Class A Ordinary Shares if it has not consummated an initial business combination by the deadline set forth in the Purchaser’s Organizational Documents or (ii) with respect to any other material provisions related to shareholders’ rights or pre-initial business combination activity, upon effectiveness of any such amendment, or (d) to the Purchaser’s public shareholders if Purchaser fails to consummate a Business Combination by the deadline set forth in the Purchaser’s Organizational Documents, and subject to extension by amendment to Purchaser’s Organizational Documents, including interest earned on the amounts held in the Trust Account (which interest shall be net of any taxes payable and up to $100,000 of interest to pay dissolution expenses), and (e) to Purchaser after or concurrently with the consummation of a Business Combination. The Trust Agreement has not been amended or modified and is a valid and binding obligation of Purchaser and is in full force and effect and is enforceable in accordance with its terms, subject to the Enforceability Exceptions. There are no claims or proceedings pending or, to the Knowledge of Purchaser, threatened with respect to the Trust Account. Purchaser has performed all material obligations required to be performed by it to date under, and is not in default, breach or delinquent in performance or any other respect (claimed or actual) in connection with, the Trust Agreement, and no event has occurred which, with due notice or lapse of time or both, would constitute such a default or breach thereunder. As of the Closing, the obligations of Purchaser to dissolve or liquidate pursuant to Purchaser’s Organizational Documents shall terminate, and as of the Closing, Purchaser shall have no obligation whatsoever pursuant to Purchaser’s Organizational Documents to dissolve and liquidate the assets of Purchaser by reason of the consummation of the Transactions. To Purchaser’s Knowledge, as of the date of this Agreement, following the Closing, no Purchaser Shareholder shall be entitled to receive any amount from the Trust Account except to the extent such Purchaser Shareholder is exercising their option to redeem Domesticated Purchaser Common Stock in connection with the Redemption. As of the date of this Agreement, assuming the accuracy of the representations and warranties of the Company contained herein and the compliance by the Company with its obligations hereunder, Purchaser does not have any reason to believe that any of the conditions to the use of funds in the Trust Account will not be satisfied or funds available in the Trust Account will not be available to Purchaser on the Closing Date.
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Section 5.15 Finders and Brokers. Except as reflected on Section 5.15 of the Purchaser Disclosure Letter, no broker, finder, investment banker or other Person is entitled to, nor will be entitled to, either directly or indirectly, any brokerage fee, finders’ fee or other similar commission, for which the Purchaser or Merger Sub would be liable in connection with the Transactions based upon arrangements made by the Purchaser or any of their Affiliates.
Section 5.16 Certain Business Practices.
(a) None of the Purchaser, Merger Sub or, to the Knowledge of the Purchaser, any of their Representatives acting on behalf of the Purchaser or Merger Sub has, within the past five (5) years, offered, given, paid, promised to give or pay, or authorized the giving or payment of anything of value to (i) an official or employee of a foreign or domestic Governmental Authority; (ii) a foreign or domestic political party or an official of a foreign or domestic political party; (iii) a candidate for foreign or domestic political office; or (iv) any Person, in any such case under circumstances the Purchaser, Merger Sub or the Representative thereof knew that all or a portion of such thing of value would be offered, given, paid, or promised to an official of employee of a foreign or domestic Governmental Authority, a foreign or domestic political party, an official of a foreign or domestic political party, or a candidate for foreign or domestic political office, for the purpose of obtaining or retaining business, in each case in violation of any Anti-Bribery Laws. None of the Purchaser, Merger Sub or, to the Knowledge of the Purchaser, any Representative thereof has conducted any internal investigation or made a voluntary, directed, or involuntary disclosure to any Governmental Authority with respect to any alleged noncompliance with any Anti-Bribery Laws. None of the Purchaser, Merger Sub or, to the Knowledge of the Purchaser, any Representative thereof has received any written notice, request, or citation from any Governmental Authority for any actual or potential noncompliance with any Anti-Bribery Laws. The Purchaser has instituted and maintains policies and procedures designed to comply with the Anti-Bribery Laws.
(b) The operations of the Purchaser and Merger Sub are and since April 24, 2019, have been conducted at all times in material compliance with Sanctions, International Trade Laws, and Anti-Money Laundering Laws in all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority, and no Legal Proceeding involving the Purchaser or Merger Sub with respect to any of the foregoing is pending or, to the Knowledge of the Purchaser, threatened.
(c) None of the Purchaser, Merger Sub or any of their respective directors or officers nor, to the Knowledge of the Purchaser, any other Representative acting on behalf of the Purchaser or Merger Sub is or since April 24, 2019, has been a Sanctioned Person or located, organized or resident in any Sanctioned Jurisdiction.
Section 5.17 Insurance. Section 5.17 of the Purchaser Disclosure Letter lists all insurance policies (by policy number, insurer, coverage period, coverage amount, annual premium and type of policy) held by the Purchaser or Merger Sub or relating to the Purchaser or Merger Sub or their business, properties, assets, directors, officers and employees, copies of which have been provided to the Company. All premiums due and payable under all such insurance policies have been timely paid and the Purchaser and Merger Sub are otherwise in material compliance with the terms of such insurance policies. All such insurance policies are in full force and effect, and to the Knowledge of the Purchaser, there is no threatened termination of, or material premium increase with respect to, any of such insurance policies. There have been no insurance claims made by the Purchaser or Merger Sub. Each of the Purchaser and Merger Sub has reported to its insurers all claims and pending circumstances that would reasonably be expected to result in a claim.
Section 5.18 Information Supplied. None of the information supplied or to be supplied by, or on behalf of, Purchaser or Merger Sub expressly for inclusion or incorporation by reference in (i) any current report on Form 8-K, and any exhibits thereto or any other report, form, registration or other filing made with any Governmental Authority or stock exchange with respect to the Transactions or in the Proxy Statement/Registration Statement or (ii) any of the Signing Press Release, the Signing Filing, the Closing Press Release, the Closing Filing and any other press releases or prospectuses filed under Rule 425 of the Securities Act in connection to the Transactions shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading at (a) the time such information is filed with or furnished to the SEC (provided, that if such information is revised by any subsequently filed amendment or supplement, this clause (a) shall solely refer to the time of such subsequent revision); (b) the time the Proxy Statement/Registration Statement is declared effective by the SEC; (c) the time the Proxy Statement/Registration Statement (or any amendment thereof or supplement thereto) is first mailed to the Purchaser Shareholders; or (d) the time of the Purchaser Shareholders’ Meeting. Notwithstanding the foregoing, the Purchaser and Merger Sub make no representations, warranties or covenants with respect to any information supplied by or on behalf of the Target Companies or their respective Affiliates.
Section 5.19 Transaction with Affiliates. There are no Contracts between (a) Purchaser or Merger Sub, on the one hand, and (b) any Purchaser Related Person other than Contracts with respect to a Purchaser Related Person’s employment with Purchaser or Merger Sub entered into in the ordinary course of business (including benefit plans, indemnification arrangements and other ordinary course compensation). No Purchaser Related Person (i) owns any interest in any material asset or property used in the business of Purchaser or Merger Sub, (ii) possesses, directly or indirectly, any material financial interest in, or is a director or executive officer of, any Person which is a material client, supplier, vendor, partner, customer, lessor or other material business relation of Purchaser or Merger Sub, or (iii) except for any promissory note issued to Sponsor or its Affiliates and publicly disclosed prior to the date hereof, owes any material amount to, or is owed any material amount by, Purchaser or Merger Sub.
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Section 5.20 Employees; Benefit Plans. The Purchaser and Merger Sub do not have and have never had any employees, and the Purchaser has no unsatisfied liability with respect to any employee. The Purchaser and Merger Sub do not currently maintain or have any direct liability under any employee retirement or health and welfare benefit plan, and neither the execution and delivery of this Agreement nor the consummation of the Transactions will: (a) result in any payment (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due to any director, officer, individual independent contractor or employee of the Purchaser or Merger Sub; or (b) result in the acceleration of the time of payment or vesting of any compensation or benefits.
Section 5.21 Independent Investigation. The Purchaser and Merger Sub have conducted their own independent investigation, review and analysis of the business, results of operations, prospects, condition (financial or otherwise) or assets of the Target Companies, and acknowledges that they have been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of the Target Companies for such purpose. The Purchaser and Merger Sub acknowledge and agree that: (a) in making their decision to enter into this Agreement and to consummate the Transactions, they have relied solely upon their own investigation and the express representations and warranties of the Company set forth in this Agreement (including the related portions of the Company Disclosure Letter) and in any certificate delivered to Purchaser or Merger Sub pursuant hereto, and the information provided by or on behalf of the Target Companies for the Registration Statement; and (b) neither the Company, nor its Representatives have made any representation or warranty as to the Target Companies, or this Agreement, except as expressly set forth in Article IV (including the related portions of the Company Disclosure Letter) or in any certificate delivered to Purchaser or Merger Sub pursuant hereto, or with respect to the information provided by or on behalf of the Company for the Registration Statement.
Section 5.22 No Additional Representation or Warranties. Except as provided in this Article V, none of the Purchaser, Merger Sub, any their respective Affiliates, or any of their respective directors, managers, officers, employees, stockholders, partners, members or representatives has made, or is making, any representation or warranty whatsoever to the Target Companies or their Affiliates and no such party shall be liable in respect of the accuracy or completeness of any information provided to the Target Companies or their Affiliates. Without limiting the foregoing, the Company acknowledges that the Target Companies, or their advisors acting on behalf of or at the direction of the Target Companies, have made their own investigation of the Purchaser and Merger Sub and, except as provided in this Article V, are not relying on any representation or warranty whatsoever as to the condition, merchantability, suitability or fitness for a particular purpose or trade as to any of the assets of the Purchaser and Merger Sub, the prospects (financial or otherwise) or the viability or likelihood of success of the business of the Purchaser as conducted after the Closing, or as contained in any materials provided by the Purchaser or Merger Sub or any of their respective Affiliates or any of their Representatives.
Article VI
Covenants
Section 6.01 Access and Information; Cooperation.
(a) During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 8.01 or the Closing (the “Interim Period”), subject to Section 6.17, the Company shall reasonably cooperate with the Purchaser and its Representatives in their investigation of the Target Companies and shall give, and shall cause the Target Companies and its and their respective Representatives to give, the Purchaser and its Representatives, at reasonable times during normal business hours, upon reasonable intervals and upon advance written notice, reasonable access to all offices and other facilities and to all officers, managers, properties, Contracts, agreements, commitments and books and records of the Target Companies, and shall use its and their commercially reasonable efforts to furnish the Purchaser and its Representatives with all financial and operating data and other information of or pertaining to the Target Companies, including information regarding the assets, Liabilities, management and employees of the Target Companies, that are in the possession of the Target Companies, in each case, as the Purchaser or its Representatives may reasonably request; provided, however, that the Purchaser and its Representatives shall conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of the Target Companies. Notwithstanding the foregoing, the Company shall not be required to provide, or cause to be provided, to Purchaser or any of its Representatives any information (i) if and to the extent doing so would (A) violate any Law to which the Company is subject, (B) result in the disclosure of any trade secrets of third parties in breach of any Contract with such third party, (C) violate any legally-binding obligation of the Company with respect to confidentiality, non-disclosure or privacy or (D) jeopardize protections afforded to the Company under the attorney-client privilege or the attorney work product doctrine (provided that, in the case of each of clauses (A) through (D), the Company shall use commercially reasonable efforts to (x) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such privilege, doctrine, Contract, obligation or Law and (y) provide such information in a manner without violating such privilege, doctrine, Contract, obligation or Law), (ii) if the Company, on the one hand, and Purchaser or any of its Representatives, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto or (iii) if such information relates to interactions with prospective buyers of the Company or the negotiation of this Agreement or the Transactions, including with respect to the consideration or valuation of the Merger. For the avoidance of doubt, the Company shall not be obligated under this Section 6.01 to permit Purchaser or any of its Representatives to conduct any invasive, intrusive or subsurface sampling or testing of any media at the properties of any of the Target Companies.
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(b) During the Interim Period, subject to Section 6.17, the Purchaser shall reasonably cooperate with the Company and its Representatives in their investigation of the Purchaser and give, and shall cause its Representatives to give, the Company and its Representatives, at reasonable times during normal business hours, upon reasonable intervals and upon advance written notice, reasonable access to all offices and other facilities and to all officers, directors, properties, Contracts, agreements, commitments and books and records of the Purchaser and its Subsidiaries, and shall use its commercially reasonable efforts to furnish the Company and its Representatives with all financial and operating data and other information, of or pertaining to the Purchaser or its Subsidiaries, including information regarding the assets, Liabilities, management and employees of the Purchaser and its Subsidiaries, that are in the possession of the Purchaser or its Subsidiaries, in each case, as the Company or its Representatives may reasonably request; provided, however, that the Company and its Representatives shall conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of the Purchaser or any of its Subsidiaries. Notwithstanding the foregoing, the Purchaser shall not be required to provide, or cause to be provided, to the Company or any of its Representatives any information (i) if and to the extent doing so would (A) violate any Law to which the Purchaser is subject, (B) violate any legally-binding obligation of the Purchaser with respect to confidentiality, non-disclosure or privacy or (C) jeopardize protections afforded to the Purchaser under the attorney-client privilege or the attorney work product doctrine (provided that, in the case of each of clauses (A) through (C), the Purchaser shall use commercially reasonable efforts to (x) provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without violating such privilege, doctrine, Contract, obligation or Law and (y) provide such information in a manner without violating such privilege, doctrine, Contract, obligation or Law), (ii) if the Purchaser, on the one hand, and the Company or any of its Representatives, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto or (iii) if such information relates to the negotiation of this Agreement or the Transactions, including with respect to the consideration or valuation of the Merger.
(c) During the Interim Period, each of the Company and the Purchaser shall, and shall cause their respective Representatives to, reasonably cooperate in a timely manner in connection with any financing arrangement the Parties mutually agree to seek in connection with the Transactions (including, in connection with the PIPE Investment), including, (i) by providing such information and assistance as the other Party may reasonably request, (ii) granting such access to the other Party and its Representatives as may be reasonably necessary for their due diligence, and (iii) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due diligence sessions with respect to such financing efforts (including direct contact between senior management and other Representatives of the Company at reasonable times and locations). All such cooperation, assistance and access shall be granted during normal business hours and shall be granted under conditions that shall not unreasonably interfere with the business and operations of the Company, the Purchaser, or their respective Representatives.
Section 6.02 Conduct of Business of the Company.
(a) During the Interim Period, except as expressly contemplated by this Agreement or the Ancillary Documents, as required by applicable Law or any Governmental Authority, as set forth on Section 6.02(a) of the Company Disclosure Letter or as consented to in writing by the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall use commercially reasonable efforts to, and shall use commercially reasonable efforts to cause the Company Subsidiaries to, (i) conduct its and their respective businesses, in all material respects, in the ordinary course of business, (ii) comply in all material respects with all Laws applicable to the Target Companies and their respective businesses, assets and employees, and (iii) take commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, their respective existing business organizations.
(b) Without limiting the generality of Section 6.02(a) and except as contemplated by the terms of this Agreement or the Ancillary Documents, as required by applicable Law or any Governmental Authority, or as set forth on Section 6.02(b) of the Company Disclosure Letter, during the Interim Period, without the prior written consent of the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause each Company Subsidiary to not:
(i) amend, waive or otherwise change, in any respect, its Organizational Documents;
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its shares or other equity securities or securities of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities, except as required by existing Company Benefit Plans or required by any Contract (including any warrant or option award) outstanding as of the date of this Agreement and a copy of which has been made available to the Purchaser;
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(iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities;
(iv) allow the aggregate Indebtedness of the Target Companies to exceed an amount equal to the sum of $2,500,000 plus the aggregate amount of Indebtedness of the Target Companies as reflected on the most recent Interim Company Financials; provided, that any Indebtedness under the ACP Credit Facility or an amendment or refinancing thereof prior to or in connection with the Closing shall be disregarded for purposes of this clause (iv);
(v) except as otherwise required by Company Benefit Plans in effect as of the date of this Agreement and true and correct copies of which have been made available to the Purchaser, (A) grant any severance, retention, change in control or termination or similar pay to an employee of the Target Companies other than in the ordinary course of business consistent with past practice in order to secure a release of claims in connection with an involuntary termination, provided, that any such payment does not exceed three months of base salary and continued health care coverage in plus $25,000, (B) terminate, adopt, enter into or materially amend or grant any new awards (including, for the avoidance of doubt, any equity or equity based award) under any Company Benefit Plan or any plan, policy, practice, program, agreement or other arrangement that would be deemed a Company Benefit Plan if in effect as of the date of this Agreement, (C) increase the cash compensation or bonus opportunity of any employee, officer, director or other individual service provider, except for such increases to any such individuals who are not directors or officers of the Target Companies made in the ordinary course of business consistent with past practice, (D) take any action to amend or waive any performance or vesting criteria or to accelerate the time of payment or vesting of any compensation or benefit payable by the Company or any Company Subsidiary, (E) hire or engage any new employee or independent contractor if such new employee or independent contractor will receive annual base compensation in excess of $325,000, (F) terminate the employment or engagement, other than for cause, death or disability, of any employee or independent contractor with an annual base compensation in excess of $325,000, (G) waive any restrictive covenants applying to any current or former employee or independent contractor, or (H) plan, announce, implement, or effect the reduction in force, lay-off, furloughs, early-retirement program, severance program or other program or effort concerning the termination of a group of employees of the Target Companies (other than individual employee terminations not prohibited by prong (F) of this Section 6.02(b)(v));
(vi) enter into or extend any collective bargaining agreement or similar labor agreement or recognize or certify any labor union, labor organization, or group of employees of the Target Company as the bargaining representative for any employees of the Target Company;
(vii) (A) make, change or rescind any material election relating to Taxes, (B) settle any claim, suit, litigation, proceeding, arbitration, investigation, audit, controversy or other Legal Proceeding relating to material Taxes, (C) file any amended Income Tax or other material Tax Return, (D) surrender or allow to expire any right to claim a refund of material amounts of Taxes, (E) change (or request to change) any method of accounting for Tax purposes, (F) waive or extend any statute of limitations in respect of a period within which an assessment or reassessment of Income Taxes or other material Taxes may be issued or in respect of any Income Tax or other material Tax attribute that would give rise to any claim or assessment of Taxes of or with respect to the Target Companies, (G) enter into any “closing agreement” as described in Section 7121 of the Code or any other agreement or arrangement with any Governmental Authority or (H) enter into any Tax indemnity agreement, Tax sharing agreement or Tax allocation agreement or similar agreement or arrangement (excluding agreements solely among any Target Companies and customary commercial Contracts the primary purpose of which is not the sharing of Taxes) with respect to Taxes;
(viii) knowingly take or agree to take any action, or knowingly fail to take or agree to fail to take any action, where such action or failure to act would reasonably be expected to prevent or impede the relevant portions of the Transactions from qualifying for their respective Intended Tax Treatments;
(ix) (A) transfer, sell, assign, license, sublicense, covenant not to assert, subject to a Lien (other than a Permitted Lien), abandon, allow to lapse, transfer or otherwise dispose of, any right, title or interest of any Target Company in or to any material Owned Intellectual Property (other than (x) non-exclusive licenses of Owned Intellectual Property granted in the ordinary course of business consistent with past practice or (y) abandoning, allowing to lapse or otherwise disposing of Owned Intellectual Property registrations or applications that the Target Company, in the exercise of its good faith business judgment, has determined to abandon, allow to lapse or otherwise dispose of), or (B) disclose, divulge, furnish to or make accessible any confidential Trade Secrets constituting Owned Intellectual Property to any Person who has not entered into an agreement that adequately protects the confidentiality of such confidential Trade Secrets or is not otherwise bound by professional, ethical or legal obligations of confidentiality applicable to such confidential Trade Secrets, or (C) include, incorporate or embed in, link to, combine, make available or distribute with, or use in the development, operation, delivery or provision, of any Company Software any open source Software in a manner that requires any Target Company to take a Copyleft Action;
(x) fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
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(xi) terminate, amend or assign any Company Material Contract or enter into any Contract that would be a Company Material Contract, in any case outside of the ordinary course of business consistent with past practice or novations of Company Government Contracts that are required in connection with the Transactions, other than any amendment, waiver, consent, refinancing, replacement, repayment, discharge or termination of, or any other action with respect to, the ACP Credit Facility prior to or in connection with the Closing;
(xii) establish any new Subsidiary or enter into any new line of business;
(xiii) fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect, or terminate without replacement or amend in a manner materially detrimental to the Target Companies, taken as a whole, any material insurance policy insuring the Target Companies;
(xiv) make any material change in accounting methods, principles or practices of the Target Companies, except to the extent required to comply with GAAP or changes that are made in accordance with PCAOB standards;
(xv) waive, release, assign, settle or compromise any Legal Proceeding (including any Legal Proceeding relating to this Agreement or the Transactions), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, a Target Company or its Affiliates) not in excess of $1,000,000 (individually or in the aggregate);
(xvi) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or assets, in each case, having an aggregate value in excess of $1,000,000, outside the ordinary course of business consistent with past practice, except pursuant to any Contract in existence as of the date of this Agreement which has been disclosed in writing or in the virtual data room to the Purchaser;
(xvii) except as required pursuant to a Contract in effect as of the date of this Agreement that has been disclosed in writing or in the virtual data room or otherwise made available to the Purchaser, make capital expenditures outside of the ordinary course of business consistent with past practice in excess of $1,000,000 (individually for any project) or $2,000,000 in the aggregate;
(xviii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring or other reorganization;
(xix) voluntarily incur Liabilities in excess of $1,000,000 individually or $2,000,000 in the aggregate (excluding the incurrence of any Company Transaction Costs) other than pursuant to the terms of a Company Material Contract or Company Benefit Plan or any amendment, waiver, consent, refinancing, replacement, repayment, discharge or termination of, or any other action with respect to, the ACP Credit Facility prior to or in connection with the Closing, in any case, outside of the ordinary course of business ;
(xx) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its tangible properties, assets or rights, in each case, outside of the ordinary course of business consistent with past practice and other than any sale, transfer or other disposal of obsolete equipment;
(xxi) enter into any written agreement, understanding or arrangement with respect to the voting of equity securities of the Company, other than the Seller Voting and Support Agreements;
(xxii) enter into, amend, waive or terminate (other than terminations in accordance with their terms) any transaction with any Related Person (other than compensation and benefits and advancement of expenses, in each case, provided in the ordinary course of business consistent with past practice);
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(xxiii) (A) limit the right of any Target Company to engage in any line of business or in any geographic area, to develop, market or sell products or services, or to compete with any Person or (B) grant any exclusive or similar rights to any Person, in each case, except where such limitation or grant does not, and would not be reasonably likely to, individually or in the aggregate, affect or disrupt the ordinary course operation of the business of the Target Companies; or
(xxiv) authorize or agree to do any of the foregoing actions.
Notwithstanding anything in this Section 6.02 or this Agreement to the contrary, nothing set forth in this Agreement shall give the Purchaser, directly or indirectly, the right to control or direct the operations of the Target Companies prior to the Closing. Prior to the Closing, the Company shall exercise, consistent with the terms and conditions of this Agreement and subject to the Purchaser’s rights set forth herein, complete control and supervision over its business, assets and operations.
Section 6.03 Conduct of Business of the Purchaser.
(a) During the Interim Period, except as expressly contemplated by this Agreement or the Ancillary Documents, as required by applicable Law or any Governmental Authority, as set forth on Section 6.03(a) of the Purchaser Disclosure Letter or as consented to in writing by the Company (such consent not to be unreasonably withheld, conditioned or delayed), the Purchaser shall, and shall cause Merger Sub to, (i) conduct its business, in all material respects, in the ordinary course of business consistent with past practice, (ii) comply in all material respects with all Laws applicable to it and its businesses, assets and employees, and (iii) take commercially reasonable measures necessary or appropriate to preserve intact, in all material respects, its business organizations. Notwithstanding anything to the contrary in this Section 6.03, nothing in this Agreement shall prohibit or restrict the Purchaser from extending, in accordance with the Purchaser’s Organizational Documents and the IPO Prospectus, the deadline by which it must complete its Business Combination (an “Extension”), by way of an amendment to the Purchaser’s Organizational Documents, or making any payments to the Trust Account in connection therewith, and no consent of any other Party shall be required in connection therewith.
(b) Without limiting the generality of Section 6.03(a) and except as contemplated by the terms of this Agreement or the Ancillary Documents (including the Domestication or as contemplated by the PIPE Investment), as required by applicable Law or any Governmental Authority or as set forth on Section 6.03(b) of the Purchaser Disclosure Letter, during the Interim Period, without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed), the Purchaser shall not, and shall cause Merger Sub not to:
(i) amend, waive or otherwise change, in any respect, its Organizational Documents (other than in relation to an Extension, as described in Section 6.03(a));
(ii) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any of its equity securities, or other securities, including any securities convertible into or exchangeable for any of its equity securities or other security interests of any class and any other equity-based awards, or engage in any hedging transaction with a third Person with respect to such securities, except for (A) securities issued in a PIPE Upsize (as defined in the PIPE Subscription Agreement) or to an Affiliate of any PIPE Investor, (B) securities issued in a Strategic Transaction (as defined in the PIPE Subscription Agreement) and (C) securities issued to an existing equityholder of the Company as of the date hereof (together with any Affiliates of such equityholder), provided that the aggregate gross proceeds of such issuance to such existing equityholder and its Affiliates (excluding aggregate gross proceeds from any other party) equals or exceeds $5,000,000;
(iii) split, combine, recapitalize or reclassify any of its shares or other equity interests or issue any other securities in respect thereof or pay or set aside any dividend or other distribution (whether in cash, equity or property or any combination thereof) in respect of its shares or other equity interests, or directly or indirectly redeem, purchase or otherwise acquire or offer to acquire any of its securities other than the Redemption or a conversion of the Purchaser Class B Ordinary Shares in accordance with the Purchaser’s Organizational Documents;
(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $200,000 individually or $500,000 in the aggregate, make a loan or advance to or investment in any third party, or guarantee or endorse any Indebtedness, Liability or obligation of any Person; provided, that this Section 6.03(b)(iv) shall not prevent the Purchaser from borrowing funds necessary to finance its ordinary course of business consistent with past practice administrative costs and expenses and expenses incurred in connection with this Agreement, the Ancillary Documents, or the consummation of the Transactions (including the PIPE Investment);
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(v) (A) make, change or rescind any material election relating to Taxes, (B) settle any claim, suit, litigation, proceeding, arbitration, investigation, audit, controversy or other Legal Proceeding relating to material Taxes, (C) file any amended Income Tax or other material Tax Return, (D) surrender or allow to expire any right to claim a refund of material amounts of Taxes, (E) change (or request to change) any method of accounting for Tax purposes, (F) waive or extend any statute of limitations in respect of a period within which an assessment or reassessment of Income Taxes or other material Taxes may be issued or in respect of any Income Tax or other material Tax attribute that would give rise to any claim or assessment of Taxes of or with respect to Purchaser, (G) enter into any “closing agreement” as described in Section 7121 of the Code or any other agreement or arrangement with any Governmental Authority or (H) enter into any Tax indemnity agreement, Tax sharing agreement or Tax allocation agreement or similar agreement or arrangement (excluding customary commercial Contracts the primary purpose of which is not the sharing of Taxes) with respect to Taxes;
(vi) knowingly take or agree to take any action, or knowingly fail to take or agree to fail to take any action, where such action or failure to act could reasonably be expected to prevent or impede the relevant portions of the Transactions from qualifying for their respective Intended Tax Treatments;
(vii) amend, waive or otherwise change the Trust Agreement in any manner adverse to the Purchaser;
(viii) terminate, amend, waive or assign any material right under any material Contract of Purchaser or any Contract with any broker, finder, financial advisor or investment banker, or make any discretionary payments under any such Contract;
(ix) fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) except as required or contemplated by the Transactions, establish any new Subsidiary;
(xi) engage in any activities or business, other than activities or business (A) currently conducted by the Purchaser or Merger Sub as of the date of this Agreement, (B) in connection with or incident to the Purchaser’s or Merger Sub’s organization, incorporation, or continuing corporate existence, (C) that are administrative and immaterial in nature or (D) required by, or to enforce its rights under, the Ancillary Documents;
(xii) fail to use commercially reasonable efforts to keep in force insurance policies or replacement or revised policies providing insurance coverage with respect to its assets, operations and activities in such amount and scope of coverage substantially similar to that which is currently in effect;
(xiii) make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP or PCAOB standards;
(xiv) waive, release, assign, settle or compromise any Legal Proceeding (including any Legal Proceeding relating to this Agreement or the Transactions), other than waivers, releases, assignments, settlements or compromises that involve only the payment of monetary damages (and not the imposition of equitable relief on, or the admission of wrongdoing by, the Purchaser or its Subsidiary) not in excess of $500,000 (individually or in the aggregate);
(xv) acquire, including by merger, consolidation, acquisition of equity interests or assets, or any other form of business combination, any corporation, partnership, limited liability company, other business organization or any division thereof, or any material amount of assets outside the ordinary course of business consistent with past practice;
(xvi) except as required pursuant to a Contract in effect on the date hereof, a true and complete copy of which (including any amendments, supplements, side letters or other modifications thereto) has been provided to the Company, make capital expenditures in excess of $200,000 individually for any project (or set of related projects) or $500,000 in the aggregate (excluding for the avoidance of doubt, incurring any expenses);
(xvii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
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(xviii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $500,000 individually or $1,000,000 in the aggregate (excluding the incurrence of any expenses) other than pursuant to the terms of a Contract in existence as of the date of this Agreement or entered into in the ordinary course of business consistent with past practice or in accordance with the terms of this Section 6.03 during the Interim Period;
(xix) sell, lease, license, transfer, exchange or swap, mortgage or otherwise pledge or encumber (including securitizations), or otherwise dispose of any material portion of its tangible properties, assets or rights;
(xx) grant or establish any form of compensation or benefits to any current or former employee, officer, director, individual independent contractor or other individual service provider of Purchaser; or
(xxi) authorize or agree to do any of the foregoing actions.
Notwithstanding anything in this Section 6.03 or this Agreement to the contrary, nothing set forth in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of the Purchaser or Merger Sub prior to the Closing. Prior to the Closing, the Purchaser and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement and subject to the Company’s rights set forth herein, complete control and supervision over their businesses, assets and operations.
Section 6.04 Updated Financial Statements; Seller Voting and Support Agreements.
(a) As soon as reasonably practicable following the date of this Agreement (and in any event by September 21, 2026), the Company shall deliver to the Purchaser an unaudited consolidated balance sheet of the Target Companies and the related unaudited consolidated statements of operations, statements of comprehensive loss, statements of convertible preferred stock and stockholders’ deficit and consolidated statements of cash flows of the Target Companies as of and for the six-month periods ending June 30, 2026 and 2025, which comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act applicable to a registrant (the “Updated Financial Statements”) and as soon as reasonably practicable, the Company shall deliver to the Purchaser any other audited or unaudited financial statements of the Target Companies that are required by applicable law to be included in the Proxy Statement/Registration Statement; provided, that upon delivery of such Updated Financial Statements and any other audited or unaudited financial statements of the Target Companies, the representation and warranties set forth in Section 4.06 shall be deemed to apply to the Updated Financial Statements and any other audited or unaudited financial statements of the Target Companies, mutatis mutandis, with the same force and effect as if made as of the date of this Agreement.
(b) Within three (3) Business Days of the date of this Agreement, the Company shall, to the extent not previously delivered or caused to be delivered, deliver or cause to be delivered to each SVSA Signatory the form Seller Voting and Support Agreement attached hereto as Exhibit L (the “Form SVSA”) for review and execution by such Seller, and thereafter, shall use reasonable best efforts to obtain an executed Seller Voting and Support Agreement in substantially the same form as the Form SVSA from each SVSA Signatory and any other Seller necessary to obtain the Requisite Stockholder Approval, including furnishing such SVSA Signatory or other Seller with all reasonably necessary information pertaining to this Agreement and the Transactions as such SVSA Signatory or other Seller may reasonably request. Unless otherwise consented to in writing by the Purchaser (such consent not to be unreasonably withheld, conditioned or delayed) (each, a “Purchaser SVSA Consent”), to the extent a Seller requests substantive revisions to or material deviations from the Form SVSA as a condition to such SVSA Signatory executing a Seller Voting and Support Agreement, the SVSA Requirements must be included in such Seller’s revised Seller Voting and Support Agreement to constitute a valid Seller Voting and Support Agreement for all purposes under this Agreement. In the event the Company requests a Purchaser SVSA Consent from Purchaser in connection with a Seller Voting and Support Agreement which substantively revises or materially deviates from the Form SVSA, if following receipt of such Seller Voting and Support Agreement from the Company Purchaser does not promptly (and in any event, within three (3) Business Days of receipt of such Seller Voting and Support Agreement) provide reasonably detailed comments to such Seller Voting and Support Agreement in response to such Seller Voting and Support Agreement to the Company, Purchaser shall have been deemed to have given Purchaser SVSA Consent and Purchaser acknowledges and agrees that such Seller Voting and Support Agreement as revised, shall constitute a valid Seller Voting and Support Agreement for all purposes under this Agreement. Each Purchaser SVSA Consent, whether provided in writing or deemed pursuant to this Section 6.04(b), shall be irrevocable.
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(c) As soon as reasonably practicable following the date of this Agreement (and in any event by October 5, 2026 (unless otherwise mutually agreed by the Purchaser and the Company)), the Company shall deliver to the Purchaser executed copies of valid Seller Voting and Support Agreements with (i) Sellers holding, in the aggregate, Company Securities representing at least the percentage of outstanding voting power required to obtain the Requisite Stockholder Approval, including any SVSA Signatories who are current directors or officers of the Company, and (ii) each current director and officer of the Company, in each case to the extent such Seller Voting and Support Agreements were not previously delivered on or prior to the date of this Agreement. Delivery of valid Seller Voting and Support Agreements sufficient to satisfy the immediately preceding sentence shall satisfy the Company’s obligations under this Section 6.04(c).
(d) If the Company fails to deliver all valid Seller Voting and Support Agreements as obligated under Section 6.04(c) and the Company fails to cure such breach by November 4, 2026 (unless otherwise mutually agreed by the Purchaser and the Company), the Company shall promptly (and in any event within five (5) Business Days after written notice thereof from the Purchaser to the Company) reimburse the Purchaser for all documented, out-of-pocket fees and expenses (including reasonable attorneys fees) incurred by the Purchaser specifically in connection with the preparation and filing of the Proxy Statement/Registration Statement during the period commencing on the date of this Agreement through and including the date on which the Registration Statement was filed with the SEC.
Section 6.05 Purchaser Public Filings. During the Interim Period, the Purchaser will keep current all of its public filings with the SEC (after giving effect to all applicable extension periods) and otherwise comply in all material respects with applicable securities Laws and shall use its commercially reasonable efforts prior to the Closing to maintain the listing of the Purchaser Class A Ordinary Shares and the Cayman Purchaser Public Warrants on Nasdaq; provided, that the Parties acknowledge and agree that from and after the Closing, the Parties intend to list on Nasdaq only the Domesticated Purchaser Class A Common Stock.
Section 6.06 No Solicitation.
(a) For purposes of this Agreement, (i) an “Acquisition Proposal” means any inquiry, proposal or offer, or any indication of interest in making an offer or proposal (whether written or oral), from any Person or group at any time relating to an Alternative Transaction (other than the Purchaser and the Sponsor or their respective Representatives), and (ii) an “Alternative Transaction” means (A) with respect to the Target Companies, a transaction or a series of transactions (other than the Transactions) concerning the sale (whether directly or indirectly) of (1) all or a material portion of the business or assets of the Target Companies on a consolidated basis, (2) any of the shares or other equity interests of the Target Companies, in any case, whether such transaction takes the form of a sale of shares or other equity interests, assets, merger, consolidation, issuance of debt securities, management Contract, joint venture or partnership, or otherwise, or (3) a merger, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the Target Companies and (B) with respect to the Purchaser and its controlled Affiliates, a transaction or a series of transactions (other than the Transactions) concerning (whether directly or indirectly) (1) the acquisition or other purchase of any other Person(s) by or involving the Purchaser, (2) engaging in a business combination involving the Purchaser or any of its controlled Affiliates and any other Person(s) or (3) the acquisition or other purchase by or involving the Purchaser of (I) all or a material portion of the business or assets of any other Person(s) on a consolidated basis or (II) any equity securities of any other Person(s) (in the case of each of clause (1), (2) and (3), whether by merger, consolidation, recapitalization, purchase or issuance of equity securities, purchase of assets, tender offer or otherwise), or (4) any equity or similar investment in the Purchaser other than in connection with the PIPE Investments. Notwithstanding the foregoing or anything to the contrary herein, none of this Agreement, the Ancillary Documents or the Transactions shall constitute an Acquisition Proposal.
(b) During the Interim Period, in order to induce the other Parties to continue to commit to expend management time and financial resources in furtherance of the Transactions, each Party shall not, and shall cause its Representatives to not, without the prior written consent of the Company and the Purchaser, directly or indirectly, (i) solicit, assist, initiate, engage or facilitate the making, submission or announcement of, or encourage, any Acquisition Proposal, (ii) furnish any non-public information regarding such Party or its Affiliates or their respective businesses, operations, assets, Liabilities, financial condition, prospects or employees to any Person or group (other than a Party to this Agreement or their respective Representatives) in connection with or in response to an Acquisition Proposal, (iii) engage or participate in discussions or negotiations with any Person or group with respect to, or that would reasonably be expected to lead to, an Acquisition Proposal, (iv) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, any Acquisition Proposal, (v) negotiate or enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal, (vi) release any third Person from, or waive any provision of, any confidentiality agreement to which such Party is a party, (vii) otherwise knowingly encourage or facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make an Acquisition Proposal or (viii) agree or otherwise commit to enter into or engage in any of the foregoing.
(c) Each Party shall notify the other Parties as promptly as practicable (and in any event within two (2) Business Days) in writing of the receipt by such Party or any of its Representatives of (i) any inquiries, proposals or offers, requests for information or requests for discussions or negotiations regarding or constituting any Acquisition Proposal or any inquiries, proposals or offers, requests for information or requests for discussions or negotiations that would reasonably be expected to result in an Acquisition Proposal, and (ii) any request for non-public information relating to such Party or its Affiliates in connection with any Acquisition Proposal, specifying in each case, the material terms and conditions thereof (including a copy thereof if in writing or a written summary thereof if oral) and the identity of the party making such inquiry, proposal, offer or request for information. Each Party shall keep the others promptly informed of the status of any such inquiries, proposals, offers or requests for information. During the Interim Period, each Party shall, and shall cause its Representatives to, immediately cease and cause to be terminated any solicitations, discussions or negotiations with any Person with respect to any Acquisition Proposal and shall, and shall direct its Representatives to, cease and terminate any such solicitations, discussions or negotiations.
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Section 6.07 No Trading. The Company acknowledges and agrees that it is aware, and that the Company’s Affiliates are aware (and each of their respective Representatives is aware or, upon receipt of any material nonpublic information of the Purchaser, will be advised) of the restrictions imposed by U.S. federal securities Laws and the rules and regulations of the SEC and Nasdaq promulgated thereunder or otherwise (collectively, the “Federal Securities Laws”) and other applicable foreign and domestic Laws on a Person possessing material nonpublic information about a publicly traded company. The Company hereby agrees that, while it is in possession of such material nonpublic information, it shall not, it shall cause the Company Subsidiaries not to, and it shall instruct its other Affiliates and Representatives not to, purchase or sell any securities of the Purchaser (unless otherwise explicitly contemplated in this Agreement), communicate such information to any third party (other than (x) to Persons for the purpose of seeking consents related to the Transactions or (y) Persons subject to confidentiality restrictions in favor of the Company so long as such Persons are aware or informed of the restrictions described in this Section 6.07), take any other action with respect to the Purchaser in violation of such Laws, or cause or encourage any third party to do any of the foregoing.
Section 6.08 Notification of Certain Matters. During the Interim Period, each Party shall give prompt notice in writing to the other Parties if such Party or its Affiliates: (a) receives any notice or other communication in writing from any third party (including any Governmental Authority) alleging (i) that the Consent of such third party is or may be required in connection with the Transactions or (ii) any non-compliance with any Law by such Party or its Affiliates; (b) receives any notice or other communication from any Governmental Authority in connection with the Transactions; or (c) becomes aware of the commencement or threat, in writing, of any Legal Proceeding against such Party or any of its Affiliates, or any of their respective properties or assets, or, to the Knowledge of such Party, any officer, director, partner, member or manager, in his, her or its capacity as such, of such Party or of its Affiliates with respect to the consummation of the Transactions. No such notice shall constitute an acknowledgement or admission by the Party providing the notice regarding whether or not any of the conditions to the Closing have been satisfied or in determining whether or not any of the representations, warranties or covenants contained in this Agreement have been breached. In the event that any Legal Proceeding related to this Agreement, any Ancillary Documents or the Transactions is brought, or, to the Knowledge of the Parties, respectively, threatened, against such Party, or the board of directors (or similar governing body) of such Party or its Subsidiaries, respectively, by a third party prior to the Closing, such Party shall promptly notify the other Party of any such Legal Proceeding and keep the other Party reasonably informed with respect to the status thereof. Each Party shall provide the other Party the opportunity to participate in (subject to a customary joint defense agreement), but not control, the defense of any such Legal Proceeding, shall give due consideration in good faith to the other Party’s advice with respect to such Legal Proceeding and shall not settle or agree to settle any such Legal Proceeding without the prior written consent of the other Party, such consent not to be unreasonably withheld, conditioned or delayed.
Section 6.09 Efforts.
(a) Subject to the terms and conditions of this Agreement, each Party shall and shall cause its Affiliates to, use its reasonable best efforts, and shall cooperate fully with the other Parties, to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws and regulations to consummate the Transactions (including the receipt of all required Consents of Governmental Authorities) and to comply as promptly as practicable with all requirements of applicable Laws applicable to the Transactions.
(b) In furtherance and not in limitation of Section 6.09(a), to the extent required under any Laws that are designed to prohibit, restrict or regulate antitrust, competition or merger control matters and actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition, including the HSR Act (“Antitrust Laws”), each Party hereto agrees to, and to cause its Affiliates to, make any required filing or application under Antitrust Laws, as applicable, at such Party’s sole cost and expense (except that any filing fees relating to such filings or applications will be split equally between the Purchaser, on the one hand, and the Target Companies, on the other hand) with respect to the Transactions as promptly as practicable (and in any event no later than ten (10) Business Days after the date hereof), to make an appropriate response as promptly as reasonably practicable to any reasonable request for additional information and documentary material pursuant to Antitrust Laws and to take all other actions reasonably necessary, proper or advisable to obtain all required Consents under Antitrust Laws as soon as practicable. Each Party shall, in connection with its efforts to obtain all requisite Consents for the Transactions under any Antitrust Law, use its commercially reasonable efforts to: (i) cooperate in all respects with each other Party or its Affiliates in connection with any filing or submission and in connection with any investigation or other inquiry, including any Legal Proceeding initiated by a private Person, in each case regarding any of the Transactions; (ii) keep the other Parties reasonably informed of any communication received by such Party or its Representatives from, or given by such Party or its Representatives to, any Governmental Authority and of any communication received or given in connection with any Legal Proceeding by a private Person, in each case regarding any of the Transactions; (iii) permit a Representative of the other Parties and their respective outside counsel to review any communication given by it to, and consult with each other in advance of any meeting or conference with, any Governmental Authority or, in connection with any Legal Proceeding by a private Person, with any other Person, and to the extent permitted by such Governmental Authority or other Person, give a Representative or Representatives of the other Parties the opportunity to attend and participate in such meetings and conferences, in each case regarding any of the Transactions; (iv) in the event a Party’s Representative is prohibited from participating in or attending any meetings or conferences regarding any of the Transactions, keep such Party promptly and reasonably apprised with respect thereto; and (v) cooperate in the filing of any memoranda, white papers, filings, correspondence or other written communications explaining or defending the Transactions, articulating any regulatory or competitive argument, or responding to requests or objections made by any Governmental Authority.
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(c) As soon as reasonably practicable following the date of this Agreement, the Parties shall reasonably cooperate with each other and use (and shall cause their respective Affiliates to use) their respective reasonable best efforts to prepare and file with Governmental Authorities any requests for approval, to the extent applicable or required, of the Transactions and shall use their reasonable best efforts to have such Governmental Authorities approve the Transactions. Each Party shall give prompt written notice to the other Parties if such Party or any of its Representatives receives any notice from such Governmental Authorities in connection with the Transactions and shall promptly furnish the other Parties with a copy of such Governmental Authority notice. If any Governmental Authority requires that a hearing or meeting be held in connection with its approval of the Transactions, whether prior to the Closing or after the Closing, each Party shall arrange for Representatives of such Party to be present for such hearing or meeting. If any objections are asserted with respect to the Transactions under any applicable Law or if any Legal Proceeding is instituted (or threatened to be instituted) by any applicable Governmental Authority or any private Person challenging any of the Transactions as violative of any applicable Law or which would otherwise prevent, materially impede or materially delay the consummation of the Transactions, the Parties shall use their reasonable best efforts to resolve any such objections or Legal Proceedings so as to timely permit consummation of the Transactions, including in order to resolve such objections or Legal Proceedings which, in any case if not resolved, could reasonably be expected to prevent, materially impede or materially delay the consummation of the Transactions. In the event any Legal Proceeding is instituted (or threatened to be instituted) by a Governmental Authority or private Person challenging the Transactions, the Parties shall, and shall cause their respective Representatives to, reasonably cooperate with each other and use their respective commercially reasonable efforts to contest and resist any such Legal Proceeding and to have vacated, lifted, reversed or overturned any Order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Transactions.
(d) Prior to the Closing, each Party shall use its reasonable best efforts to obtain any Consents of Governmental Authorities or other third Persons as may be necessary for the consummation by such Party or its Affiliates of the Transactions or required as a result of the execution or performance of, or consummation of the Transactions by such Party or its Affiliates, and the other Parties shall provide reasonable cooperation in connection with such efforts.
Section 6.10 Trust Account. Upon satisfaction or waiver of the conditions set forth in Article VII and provision of notice thereof to the Trustee (which notice Purchaser shall provide to the Trustee in accordance with the terms of the Trust Agreement), (a) in accordance with and pursuant to the Trust Agreement, at the Closing, Purchaser (i) shall cause any documents, opinions and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered and (ii) shall use its reasonable best efforts to cause the Trustee to, and the Trustee shall thereupon be obligated to (A) pay as and when due all amounts payable to the Purchaser Shareholders pursuant to the Redemption, and (B) pay all remaining amounts then available in the Trust Account to Purchaser for immediate use, subject to this Agreement and the Trust Agreement, and (b) thereafter, the Trust Account shall terminate, except as otherwise provided in the Trust Agreement.
Section 6.11 Tax Matters.
(a) The Parties hereby agree and acknowledge that, for U.S. federal, and applicable state and local, income Tax purposes, it is intended that the Domestication, the Sponsor Share Conversion and the Merger qualify for their respective Intended Tax Treatments, and that this Agreement constitutes, and hereby is adopted as, a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a) for purposes of Sections 354, 361 and 368 of the Code and the Treasury Regulations promulgated thereunder. No Party shall knowingly take or knowingly cause to be taken, or knowingly fail to take or knowingly cause to be failed to be taken, any action, if such action or failure to act, as the case may be, could reasonably be expected to prevent or impede the Domestication, the Sponsor Share Conversion or the Merger from qualifying for their respective Intended Tax Treatments. If the Company reasonably determines that there is a significant risk that the Merger will not qualify for its respective Intended Tax Treatment, but would reasonably be expected to so qualify if a second-step merger of the Surviving Corporation into a limited liability company disregarded as an entity separate from the Purchaser for U.S. federal income tax purposes were consummated, in accordance with Delaware Law, as promptly as practicable following the Merger (such second-step merger, the “Second Merger”), the Company shall notify and consult with the Purchaser promptly after such determination, and the Company and the Purchaser shall work together in good faith and use reasonable best efforts to restructure the Transactions to incorporate the Second Merger so that (and to the extent) the Merger and the Second Merger, taken together, qualify for such Intended Tax Treatment. The Parties hereby agree to file all Tax Returns on a basis consistent with the Intended Tax Treatments unless otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code. Each Party agrees to use commercially reasonable efforts to promptly notify all other Parties of any challenge to the qualification of the Domestication, the Sponsor Share Conversion or the Merger for their respective Intended Tax Treatments by any Governmental Authority.
(b) Notwithstanding anything to the contrary herein, if the SEC requires that a Tax opinion be prepared and submitted in connection with the Proxy Statement/Registration Statement and any other filings to be made with the SEC in connection with the Transactions, whether as an exhibit to the Proxy Statement/Registration Statement or otherwise, and if such a Tax opinion is being provided by a Tax counsel, the Parties hereto shall, and shall cause their Affiliates to, (i) reasonably cooperate in order to facilitate the issuance of any such Tax opinion and (ii) deliver to such counsel, to the extent requested by such counsel, a duly executed certificate reasonably satisfactory to such Party and such counsel dated as of the date requested by such counsel, containing such customary representations, warranties and covenants as shall be reasonably necessary or appropriate to enable such counsel to render any such opinion; provided, that, notwithstanding anything herein to the contrary, nothing in this Agreement shall require (x) any counsel to the Company or its advisors to provide an opinion with respect to any Tax matters relating to or affecting Merger Sub, the Purchaser or Purchaser Shareholders, including that the Domestication or the Sponsor Share Conversion qualify for their respective Intended Tax Treatments and (y) any counsel to the Purchaser or its advisors to provide an opinion with respect to any Tax matters relating to or affecting the Target Companies or the holders or beneficial owners of equity or other securities of the Target Companies, including that the Merger qualifies for its respective Intended Tax Treatment; provided, further, that neither this provision nor any other provision in this Agreement shall require the provision of a Tax opinion by any Party’s counsel or advisors to be an express condition precedent to the Closing.
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(c) All transfer, documentary, sales, use, stamp, registration, excise, recording, registration, value added and other such similar Taxes and fees (including any penalties and interest) that become payable in connection with or by reason of the execution of this Agreement and the Transactions (“Transfer Taxes”) shall be borne and paid by the relevant Target Companies. The Target Companies shall, at their own expense, timely file all necessary Tax Returns or other documentation with respect to such Transfer Taxes and, if required by applicable Law, the other Parties shall join in the execution of any such Tax Returns or other documentation.
(d) Following the Closing Date, the Purchaser shall reasonably cooperate with the shareholders holding stock of the Purchaser during any period ending prior to the Closing Date to make available to any such shareholder who so requests information reasonably necessary for such shareholder (or its direct or indirect owners) to compute any income or gain arising (i) if applicable, as a result of the Purchaser’s status as a “passive foreign investment company” within the meaning of Section 1297(a) of the Code or a “controlled foreign corporation” within the meaning of Section 957(a) of the Code for any taxable period ending on or prior to the Closing, including timely (A) publicly posting a PFIC Annual Information Statement to enable such holders to make a “Qualifying Electing Fund” election under Section 1295 of the Code for such taxable period, and (B) providing information to enable applicable shareholders to report their allocable share of “subpart F” income under Section 951 of the Code for such taxable period and (ii) under Section 367(b) of the Code and the Treasury Regulations promulgated thereunder as a result of the Transactions.
Section 6.12 Company Warrants. Prior to the Closing, the Company shall cause the Company Warrants to be amended so that they are capable of allowing for exercise on a cashless basis in connection with the Transactions by their terms.
Section 6.13 Further Assurances. The Parties hereto shall further cooperate with each other and use their respective commercially reasonable efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on their part under this Agreement and applicable Laws to consummate the Transactions as soon as reasonably practicable, including preparing and filing as soon as practicable all documentation to effect all necessary notices, reports and other filings. From time to time after the Closing Date, upon the reasonable written request of any Party, each Party shall execute, acknowledge and deliver such further instruments and documents, and take such additional reasonable action, to effect, consummate, confirm or evidence the Transactions and carry out the purpose of this Agreement.
Section 6.14 The Preparation of Proxy Statement/Registration Statement; Shareholders’ Meeting and Approvals.
(a) Registration Statement and Prospectus.
(i) As promptly as practicable after the execution of this Agreement and receipt by the Purchaser of the Updated Financial Statements and any other audited or unaudited financial statements of the Target Companies that are required by applicable Law to be included in the Proxy Statement/Registration Statement, (x) the Purchaser and the Company shall jointly prepare and the Purchaser shall file with the SEC, mutually acceptable materials that shall include the proxy statement to be filed with the SEC as part of the Registration Statement and sent to the Purchaser Shareholders relating to the Purchaser Shareholders’ Meeting (such proxy statement, together with any amendments or supplements thereto, the “Proxy Statement”), and (y) the Purchaser shall prepare (with the Target Companies’ and their respective Representatives reasonable cooperation) and file with the SEC the Registration Statement, in which the Proxy Statement will be included as a prospectus (including all amendments and supplements thereto, the “Proxy Statement/Registration Statement”), in connection with the registration under the Securities Act of (A) the shares of Domesticated Purchaser Common Stock and Domesticated Purchaser Warrants to be issued in exchange for the issued and outstanding Purchaser Ordinary Shares and the Cayman Purchaser Warrants, respectively, (in each case, including those included in the Cayman Purchaser Units) in the Domestication, (B) the shares of Domesticated Purchaser Common Stock that constitute the Aggregate Consideration, (C) the shares of Domesticated Purchaser Common Stock subject to the Purchaser Options, and (D) the shares of Domesticated Purchaser Common Stock subject to the Domesticated Purchaser Warrants (collectively, the “Registration Statement Securities”). The filing fees payable to the SEC in connection with the Proxy Statement/Registration Statement will be split 50/50 by the Purchaser and the Company. Each of the Purchaser and the Company shall use its reasonable best efforts to cause the Proxy Statement/Registration Statement to comply with the rules and regulations promulgated by the SEC, to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing and to keep the Registration Statement effective as long as is necessary to consummate the Transactions. The Purchaser also agrees to use its reasonable best efforts to obtain all necessary state securities law or “Blue Sky” permits and approvals required to carry out the Transactions, and the Company shall furnish all information concerning the Target Companies and any of their respective members or stockholders as may be reasonably requested in connection with any such action. Each of the Purchaser and the Company agrees to furnish to the other party all information concerning itself, its Subsidiaries, officers, directors, managers, stockholders, and other equityholders and information regarding such other matters as may be reasonably necessary or advisable or as may be reasonably requested in connection with the Proxy Statement/Registration Statement, a Current Report on Form 8-K pursuant to the Exchange Act in connection with the Transactions, or any other statement, filing, notice or application made by or on behalf of the Purchaser or the Target Companies to any regulatory authority (including the Nasdaq) in connection with the Transactions (the “Offer Documents”).
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(ii) To the extent not prohibited by Law, the Purchaser will advise the Company, reasonably promptly after the Purchaser receives notice thereof, of the time when the Proxy Statement/Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any stop order or the suspension of the qualification of the Domesticated Purchaser Common Stock for offering or sale in any jurisdiction, of the initiation or written threat of any proceeding for any such purpose, or of any request by the SEC for the amendment or supplement of the Proxy Statement/Registration Statement or for additional information. To the extent not prohibited by Law, the Company and their counsel shall be given a reasonable opportunity to review and comment on the Proxy Statement/Registration Statement and any Offer Document each time before any such document is filed with the SEC, and the Purchaser shall give reasonable and good faith consideration to any comments made by the Company and its counsel. To the extent not prohibited by Law, the Purchaser shall provide the Company and their counsel with (A) any comments or other communications, whether written or oral, that the Purchaser or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement/Registration Statement or Offer Documents promptly after receipt of those comments or other communications and (B) a reasonable opportunity to participate in the response of the Purchaser to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with the Company or its counsel in any discussions or meetings with the SEC.
(iii) Each of the Purchaser and the Company shall use reasonable best efforts to ensure that none of the information supplied by or on its behalf for inclusion or incorporation by reference in (A) the Proxy Statement/Registration Statement will, at the time the Proxy Statement/Registration Statement is filed with the SEC, at each time at which it is amended and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading or (B) the Proxy Statement will, at the date it is first mailed to the Purchaser Shareholders and at the time of the Purchaser Shareholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
(iv) If at any time prior to the Closing any information relating to the Company, the Purchaser or any of their respective Subsidiaries, Affiliates, directors or officers is discovered by the Company or the Purchaser, which is required to be set forth in an amendment or supplement to the Proxy Statement or the Registration Statement, so that neither of such documents would include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, with respect to the Proxy Statement, in light of the circumstances under which they were made, not misleading, the Party which discovers such information shall promptly notify the other Parties and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated to the Purchaser Shareholders.
(b) Purchaser Shareholder Approval.
(i) The Purchaser shall (A) as promptly as reasonably practicable after the Registration Statement is declared effective under the Securities Act, (1) cause the Proxy Statement to be disseminated to Purchaser Shareholders in compliance with applicable Law, (2) duly give notice of and convene and hold an extraordinary general meeting of Purchaser Shareholders (the “Purchaser Shareholders’ Meeting”) in accordance with the Purchaser’s Organizational Documents and applicable Law, for a date no later than thirty (30) Business Days following the date the Registration Statement is declared effective, and (3) solicit proxies from the holders of Purchaser Ordinary Shares to vote in favor of each of the Transaction Proposals, and (B) provide its shareholders with the opportunity to elect to effect a Redemption in conjunction with the shareholder vote on the Transaction Proposals.
(ii) The Purchaser shall, through its board of directors, recommend to the Purchaser Shareholders (A) to approve, as an ordinary resolution, this Agreement and the Transactions, including the Domestication and the Merger, in accordance with applicable Law and exchange rules and regulations, (B) to approve, as a special resolution of the holders of the Purchaser Class B Ordinary Shares entitled to vote thereon, the Domestication, (C) to approve, as a special resolution, by the holders of the Purchaser Class B Ordinary Shares entitled to vote hereon, the adoption of the Purchaser Charter upon Domestication and the Purchaser Bylaws upon Domestication, (D) to approve, as an ordinary resolution, any separate or unbundled advisory proposals as are required to implement the adoption of the Purchaser Charter upon Domestication and the Purchaser Bylaws upon Domestication, (E) to approve, as an ordinary resolution, the issuance of shares of Domesticated Purchaser Common Stock, Domesticated Purchaser Series A Preferred Stock and Domesticated Purchaser PIPE Investor Warrants as required by Nasdaq Listing Rule 5635, (F) to approve, as an ordinary resolution, the adoption by the Purchaser of the Purchaser Incentive Award Plan and the Purchaser ESPP, (G) to approve, as an ordinary resolution passed by the holders of the Purchaser Class B Ordinary Shares entitled to vote thereon, the appointment of the director nominees in accordance with Section 6.19 of this Agreement, (H) to approve, as an ordinary resolution (or, if required by applicable Law or the Purchaser’s Organizational Documents, as a special resolution), any other proposals as the SEC (or staff member thereof) may indicate are necessary in its comments to the Registration Statement or correspondence related thereto, (I) to approve, as an ordinary resolution (or, if required by applicable Law or the Purchaser’s Organizational Documents, as a special resolution), any other proposals as reasonably agreed by the Purchaser and the Company to be necessary or appropriate in connection with the Transactions, including but not limited to any amendments to the Purchaser’s Organizational Documents prior to Domestication, for the purposes of approving, or in conjunction with the consummation of, the Business Combination, and (J) to approve, as an ordinary resolution, the adjournment of the Purchaser Shareholders’ Meeting to a later date or dates, if necessary or convenient, in the reasonable determination of the chairman of the Purchaser (1) to permit further solicitation and vote of proxies in the event that there are insufficient votes for any of the foregoing, (2) if the Purchaser determines that one or more of the conditions to Closing is not or will not be satisfied or waived or (3) to facilitate the Domestication, the Merger or any of the other Transactions or if the Purchaser determines that one or more of the conditions to Closing is not satisfied or waived (such proposals in (A) through (J), together, the “Transaction Proposals”), and include such recommendation in the Proxy Statement. The board of directors of Purchaser shall not, except as required by applicable Law, withdraw, amend, qualify or modify its recommendation to the shareholders of the Purchaser that they vote in favor of the Transaction Proposals (together with any withdrawal, amendment, qualification or modification of its recommendation to the shareholders of Purchaser described in the Recitals hereto, a “Purchaser Modification in Recommendation”).
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(iii) To the fullest extent permitted by applicable Law, (A) the Purchaser’s obligations to establish a record date for, duly call, give notice of, convene and hold the Purchaser Shareholders’ Meeting shall not be affected by any Purchaser Modification in Recommendation, (B) the Purchaser agrees to establish a record date for, duly call, give notice of, convene and hold the Purchaser Shareholders’ Meeting and submit for approval the Transaction Proposals and (C) the Purchaser agrees that if the Purchaser Shareholder Approval shall not have been obtained at any such Purchaser Shareholders’ Meeting, then the Purchaser shall promptly continue to take all such necessary actions, including the actions required by this Section 6.14(b), and hold additional Purchaser Shareholders’ Meetings in order to obtain the Purchaser Shareholder Approval; provided, that, the Purchaser Shareholders’ Meeting may not be postponed or adjourned (I) for the first time, for more than fifteen (15) days, and (II) in the case of any proposed subsequent postponement or adjournment, without the written consent of the Company and for which written consent of the Company may not be unreasonably withheld, conditioned or delayed.
(iv) The Purchaser agrees that it shall provide the holders of Purchaser Class A Ordinary Shares the opportunity to elect redemption of such Purchaser Class A Ordinary Shares in connection with the vote on the Transaction Proposals at the Purchaser Shareholders’ Meeting, as required by the Purchaser’s Organizational Documents (the “Redemption”).
(c) Company Stockholder Approvals.
(i) Upon the terms set forth in this Agreement, the Company shall use its reasonable best efforts to solicit and obtain the Requisite Stockholder Approval in the form of an irrevocable written consent (the “Written Consent”) of each of the Sellers pursuant to the terms of the Seller Voting and Support Agreement promptly following the time at which the Registration Statement shall have been declared effective under the Securities Act and delivered or otherwise made available to the Sellers. The Company shall provide the Purchaser with copies of each Written Consent it receives within two (2) Business Days following receipt of such Written Consent.
(ii) To the extent the Requisite Stockholder Approval is not delivered pursuant to Section 6.14(c)(i) within three (3) Business Days following the effectiveness of the Registration Statement (as declared effective under the Securities Act), then the Company shall take all action necessary to duly call, given notice, convene and hold a meeting of the shareholders of the Company as soon as practicable, and, in connection therewith, the Company shall (a) mail an information statement and proxy solicitation which shall include, without limitation, the Registration Statement in advance of such meeting for the purpose of soliciting from the stockholders of the Company proxies to vote in favor of the adoption of this Agreement and approval of the Transactions; and (b) use its reasonable best efforts to secure the vote or consent of the stockholders of the Company required by applicable Law to obtain such approval. The Company shall keep the Purchaser updated with respect to proxy solicitation results as requested by the Purchaser. Once the shareholder meeting of the Company has been duly called and noticed, the Company shall not postpone or adjourn such shareholder meeting without the consent of the Purchaser (other than: (i) in order to obtain a quorum of stockholders of the Company; or (ii) as reasonably determined by the Company to comply with applicable Law). The Company shall use its reasonable best efforts to cooperate with the Purchaser to hold the shareholder meeting of the Company prior to, or, on the same day and at the same time as the Purchaser Shareholders’ Meeting as soon as reasonably practicable after the date of this Agreement, and to set the same record date for each such meeting.
(iii) The board of directors of the Company shall not, except as required by applicable Law, withdraw, amend, qualify or modify its recommendation to the Sellers that they vote in favor of and adopt the Merger and the other Transactions (together with any withdrawal, amendment, qualification or modification of its recommendation to the Sellers described in the Recitals hereto, a “Company Modification in Recommendation”).
(iv) If the Purchaser terminates this Agreement pursuant to Section 8.01(j), the Company shall promptly (and in any event within five (5) Business Days after written notice thereof from the Purchaser to the Company) reimburse the Purchaser for all documented, out-of-pocket fees and expenses (including reasonable attorneys fees) incurred by the Purchaser in connection with this Agreement, the Ancillary Documents and the Transactions up to an aggregate amount equal to $1,000,000 (collectively, the “Purchaser Expense Reimbursement”). The payment obligation set forth in this Section 6.14(c)(iv) is a condition to and consequence of such termination, is not a penalty, and is a reasonable estimate and reimbursement of the actual out-of-pocket costs and expenses incurred by the Purchaser in connection with this Agreement, the Ancillary Documents and the Transactions. The Company waives any defense, objection or claim based on the characterization of the Purchaser Expense Reimbursement as liquidated damages or a penalty. The Purchaser Expense Reimbursement shall be the sole and exclusive remedy of Purchaser in the event Purchaser terminates this Agreement pursuant to Section 8.01(j), other than any other rights or remedies available to the Purchaser at law or in equity, for any willful breach or any Fraud Claim in accordance with and pursuant to this Agreement, and receipt of the Purchaser Expense Reimbursement shall not waive any such rights.
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Section 6.15 Employee Matters.
(a) The Purchaser and the Company shall use their commercially reasonable efforts to agree, prior to the Closing, to a form of equity incentive plan that provides for the grant of equity and equity-based incentive awards to eligible service providers of the Company and Company Subsidiaries following the Closing (the “Purchaser Incentive Award Plan”) and a form of employee stock purchase plan in which eligible employees of the Company and the Company Subsidiaries may be eligible to participate following the Closing (the “Purchaser ESPP”), and such agreement by either Party shall not be unreasonably withheld, conditioned or delayed. If such Purchaser Incentive Award Plan and Purchaser ESPP are in agreed form prior to the effective date of the Registration Statement, the Purchaser shall, prior to the Closing Date, adopt such Purchaser Incentive Award Plan and Purchaser ESPP and submit them for approval of the Purchaser Shareholders at the Purchaser Shareholders’ Meeting. As soon as practicable following the date that is sixty (60) days after the Closing Date and subject to applicable securities Laws, Purchaser shall file an effective registration statement on Form S-8 (or other applicable form) with respect to the Domesticated Purchaser Common Stock issuable under the Purchaser Incentive Award Plan and the Purchaser ESPP, and Purchaser shall use commercially reasonable efforts to maintain the effectiveness of such registration statement(s) (and maintain the current status of the prospectus or prospectuses contained therein) for so long as awards granted pursuant to the Purchaser Incentive Award Plan and the Purchaser ESPP remain outstanding. The Purchaser and the Company shall determine the initial awards that shall be granted under the Purchaser Incentive Award Plan to eligible service providers identified by the Company and agreed to by the Purchaser as soon as reasonably practicable following the Effective Time and in a form of award agreement, in each case, as mutually agreed between the Purchaser and the Company based upon benchmarking against peer public companies (taking into account employee hiring needs and the development stage nature of the Company) and in consultation with an independent outside compensation advisor (the “Initial Grants”), such agreement by either Party not to be unreasonably withheld, conditioned or delayed. For clarity, the Purchaser’s rights under this Section 6.15(a) with respect to the Initial Grants shall not apply to any awards that are granted under the Purchaser Incentive Award Plan following the Effective Time, other than the Initial Grants. For further clarity, any other awards that are granted under the Purchaser Incentive Award Plan after the Effective Time shall be determined and approved by the Post-Closing Purchaser Board or the compensation committee of the Post-Closing Purchaser Board if designated for such purpose by the Post-Closing Purchaser Board.
(b) No Third-Party Beneficiaries. Notwithstanding anything herein to the contrary, each Party acknowledges and agrees that all provisions contained in this Section 6.15 are included for the sole benefit of Purchaser and the Company, and that nothing in this Agreement, whether express or implied, (i) shall be construed to establish, amend, or modify any employee benefit plan, program, agreement or arrangement, (ii) shall limit the right of Purchaser, the Company or their respective Affiliates to amend, terminate or otherwise modify any Company Benefit Plan or other employee benefit plan, agreement or other arrangement following the Closing Date, or (iii) shall confer upon any Person who is not a party to this Agreement (including any equityholder, any current or former director, manager, officer, employee or independent contractor of the Company, or any participant in any Company Benefit Plan or other employee benefit plan, agreement or other arrangement (or any dependent or beneficiary thereof)), any right to continued or resumed employment or recall, any right to compensation or benefits, or any third-party beneficiary or other right of any kind or nature whatsoever.
Section 6.16 Public Announcements.
(a) The Parties agree that during the Interim Period no public release, filing or announcement concerning this Agreement, the Ancillary Documents or the Transactions shall be issued by any Party or any of their Affiliates without the prior written consent of the Purchaser and the Company (which consent shall not be unreasonably withheld, conditioned or delayed), except as such release or announcement may be required by applicable Law or the rules or regulations of any securities exchange, in which case the applicable Party shall use commercially reasonable efforts to allow the other Parties reasonable time to comment on, and arrange for any required filing with respect to, such release or announcement in advance of such issuance.
(b) The Parties shall mutually agree upon and, as promptly as practicable after the execution of this Agreement, issue a joint press release announcing the execution of this Agreement in the form mutually agreed by the Company and the Purchaser prior to the execution of this Agreement (the “Signing Press Release”). Promptly after the issuance of the Signing Press Release (but in any event within four (4) Business Days following the date of this Agreement), the Purchaser shall file a current report on Form 8-K (the “Signing Filing”) with the Signing Press Release and a description of this Agreement as required by Federal Securities Laws, which the Company shall review, comment upon and approve (which approval shall not be unreasonably withheld, conditioned or delayed) prior to filing. The Parties shall mutually agree upon and, as promptly as practicable after the Closing, issue a press release announcing the consummation of the Transactions (the “Closing Press Release”). Promptly after the issuance of the Closing Press Release (but in any event within four (4) Business Days following the Closing Date), the Purchaser shall file a current report on Form 8-K (the “Closing Filing”) with the Closing Press Release and a description of the Closing as required by Federal Securities Laws in a form mutually agreed to by the Company and the Purchaser prior to the Closing. In connection with the preparation of the Signing Press Release, the Signing Filing, the Closing Filing, the Closing Press Release, or any other report, statement, filing notice or application made by or on behalf of a Party to any Governmental Authority or other third party in connection with the Transactions, each Party shall, upon request by any other Party, furnish the Parties with all information concerning themselves, their respective directors, officers and equity holders, and such other matters as may be reasonably necessary or advisable in connection with the Transactions, or any other report, statement, filing, notice or application made by or on behalf of a Party to any third party and/ or any Governmental Authority in connection with the Transactions.
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Section 6.17 Confidential Information.
(a) The Company hereby agrees that during the Interim Period and, in the event that this Agreement is terminated in accordance with Article VIII, for a period of two (2) years after such termination, it shall, and shall cause its Affiliates and its and their respective Representatives to, except to the extent otherwise consented to by Purchaser: (i) treat and hold in strict confidence any Purchaser Confidential Information, and will not use for any purpose (except in connection with the consummation of the Transactions, performing their obligations hereunder or thereunder, enforcing their rights hereunder or thereunder, or in furtherance of their authorized duties on behalf of the Purchaser), nor directly or indirectly disclose, distribute, publish, disseminate or otherwise make available to any third party any of the Purchaser Confidential Information without the Purchaser’s prior written consent; and (ii) in the event that the Company or any of its Affiliates or its or their respective Representatives, during the Interim Period or, in the event that this Agreement is terminated in accordance with Article VIII, for a period of two (2) years after such termination, becomes legally obligated to disclose any Purchaser Confidential Information, (A) provide the Purchaser, to the extent legally permitted, with prompt written notice of such requirement so that the Purchaser or an Affiliate thereof may seek, at the Purchaser’s sole cost and expense, a protective Order or other remedy or waive compliance with this Section 6.17(a), and (B) in the event that such protective Order or other remedy is not obtained, or the Purchaser waives compliance with this Section 6.17(a), furnish only that portion of such Purchaser Confidential Information which is legally required to be provided and use commercially reasonable efforts to obtain reasonable assurance of confidential treatment; provided, that with respect to Purchaser Confidential Information constituting trade secrets under applicable Law and has been identified as such to the Company in writing prior to or promptly after its disclosure to the Company or its Representatives, such covenants shall apply for as long as such Purchaser Confidential Information constitutes a trade secret under applicable Law and continues to constitute Purchaser Confidential Information under this Agreement. In the event that this Agreement is terminated and the Transactions are not consummated, the Company shall, and shall cause its Representatives to, promptly deliver to the Purchaser or destroy (at the Purchaser’s election) any and all copies (in whatever form or medium) of Purchaser Confidential Information and destroy all notes, memoranda, summaries, analyses, compilations and other writings related thereto or based thereon; provided, however, that the Company, its Affiliates and its and their respective Representatives shall be entitled to keep any records required by (i) applicable Law (ii) legal, fiduciary or professional obligation, (iii) in accordance with bona fide written document retention policies and procedures or (iv) contained in any electronic file created pursuant to bona fide backup storage or archival processes in the ordinary course of business consistent with past practice; and provided, further, that any Purchaser Confidential Information that is not returned or destroyed shall remain subject to the confidentiality obligations set forth in this Agreement. Notwithstanding the foregoing, (x) the Company, each Company Subsidiary, or their respective Affiliates and Representatives shall be permitted to disclose any and all Purchaser Confidential Information to the extent required by the Federal Securities Laws (subject to the procedures described above, to the extent legally permissible), and (y) no notice or further action shall be required in respect of disclosure of the Purchaser Confidential Information (or provision of access thereto) to regulatory authorities or self-regulatory organizations having authority over the Company, any Company Subsidiary, or their respective Affiliates and Representatives in connection with routine regulatory examinations or pursuant to statutory requirements that are not expressly targeted at the Purchaser, the Transactions or the Purchaser Confidential Information.
(b) The Purchaser and Merger Sub hereby agree that during the Interim Period and, in the event that this Agreement is terminated in accordance with Article VIII, for a period of two (2) years after such termination, they shall, and shall cause their respective Affiliates and their Representatives to, except to the extent otherwise consented to by the Company: (i) treat and hold in strict confidence any Company Confidential Information, and will not use for any purpose (except in connection with the consummation of the Transactions, performing its obligations hereunder or thereunder or enforcing its rights hereunder or thereunder), nor directly or indirectly disclose, distribute, publish, disseminate or otherwise make available to any third party any of the Company Confidential Information without the Company’s prior written consent; and (ii) in the event that the Purchaser, Merger Sub or any of its Representatives, during the Interim Period or, in the event that this Agreement is terminated in accordance with Article VIII, for a period of two (2) years after such termination, becomes legally obligated to disclose any Company Confidential Information, (A) provide the Company to the extent legally permitted with prompt written notice of such requirement so that the Company may seek, at the Company’s sole cost and expense, a protective Order or other remedy or waive compliance with this Section 6.17(b) and (B) in the event that such protective Order or other remedy is not obtained, or the Company waives compliance with this Section 6.17(b), furnish only that portion of such Company Confidential Information which is legally required to be provided and use commercially reasonable efforts to obtain reasonable assurance of confidential treatment; provided, that with respect to Company Confidential Information constituting trade secrets under applicable Law and that has been identified as such to the Purchaser in writing prior to or promptly after its disclosure to the Purchaser or its Representatives, such covenants shall apply for as long as such Company Confidential Information constitutes a trade secret under applicable Law and continues to constitute Company Confidential Information under this Agreement. In the event that this Agreement is terminated and the Transactions are not consummated, the Purchaser shall, and shall cause its Representatives to, promptly deliver to the Company or destroy (at the Company’s election) any and all copies (in whatever form or medium) of Company Confidential Information and destroy all notes, memoranda, summaries, analyses, compilations and other writings related thereto or based thereon; provided, however, that the Purchaser, Merger Sub and their respective Affiliates and Representatives shall be entitled to keep any records required by applicable Law or legal, fiduciary or professional obligation, in accordance with bona fide written document retention policies and procedures or contained in any electronic file created pursuant to bona fide backup storage or archival processes in the ordinary course of business consistent with past practice; and provided, further, that any Company Confidential Information that is not returned or destroyed shall remain subject to the confidentiality obligations set forth in this Agreement. Notwithstanding the foregoing, (i) the Purchaser, Merger Sub and their respective Representatives shall be permitted to disclose any and all Company Confidential Information to the extent required by the Federal Securities Laws (subject to the procedures described above, to the extent legally permissible), (ii) no notice or further action shall be required in respect of disclosure of the Company Confidential Information (or provision of access thereto) to regulatory authorities or self-regulatory organizations having authority over the Purchaser, Merger Sub or their respective Representatives in connection with routine regulatory examinations or pursuant to statutory requirements that are not targeted at the Target Companies, the Transactions or the Company Confidential Information.
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Section 6.18 Documents and Information. After the Closing Date, the Purchaser and the Company shall, and shall cause their respective Subsidiaries to, until the seventh (7th) anniversary of the Closing Date, retain all books, records and other documents pertaining to the business of the Target Companies in existence on the Closing Date and make the same available for inspection and copying by the Purchaser during normal business hours of the Company and the Company Subsidiaries, as applicable, upon reasonable request and upon reasonable notice. No such books, records or documents shall be destroyed after the seventh (7th) anniversary of the Closing Date by the Purchaser or its Subsidiaries (including any Target Company) without first advising a representative of the Sponsor (or its successors or assigns) in writing and giving such representative a reasonable opportunity to obtain possession thereof.
Section 6.19 Post-Closing Board of Directors and Executive Officers.
(a) The Parties shall take all such action within their power as may be necessary or appropriate so that effective as of the Closing, the Purchaser’s board of directors (the “Post-Closing Purchaser Board”) will be classified as to term and will initially consist of no fewer than five (5) directors, (i) with the Company’s appointees being the individuals listed on Section 6.19(a)(i) of the Company Disclosure Letter (as may be amended or supplemented as provided in Section 6.19(a)(i) of the Company Disclosure Letter by the Company, in its sole discretion, prior to Closing, the “Company Appointee Directors”), one of whom will be appointed as initial chairperson of the Post-Closing Purchaser Board, one of whom will be appointed as initial chairperson of the audit committee and one of whom will be appointed as initial chairperson on the compensation committee as set forth on Section 6.19(a)(i) of the Company Disclosure Letter, (ii) with the Purchaser’s appointee being the one (1) individual listed on Section 6.19(a)(ii) of the Purchaser Disclosure Letter (as may be amended or supplemented as provided in Section 6.19(a)(ii) of the Purchaser Disclosure Letter by the Purchaser and reasonably acceptable to the Company, prior to Closing) (the “Purchaser Appointee Director”), and (iii) with Maestro SPV LLC’s appointee being one (1) individual identified by Maestro SPV LLC prior to Closing and reasonably acceptable to the Company) (the “PIPE Preferred Appointee Director”, and collectively with the Company Appointee Directors, the “Designated Directors”). To the extent any Designated Director declines to serve, is unable to serve, or is anticipated to fail to meet the applicable independence and other requirements of Nasdaq and SEC rules (as mutually determined by the Company and the Purchaser with the advice of counsel), and such Designated Director is a Company Appointee Director, the Company shall determine (in its sole discretion) a replacement individual to serve as a director on the Post-Closing Purchaser Board, and to the extent such Designated Director is a Purchaser Appointee Director, the Company and the Purchaser shall mutually agree upon a replacement individual to serve as a director on the Post-Closing Purchaser Board. The Purchaser shall use its reasonable best efforts to obtain resignations effective immediately after Closing from the directors of the Purchaser that are not to remain directors on the Post-Closing Purchaser Board.
(b) The Parties agree that (i) their mutual intent is that the initial offices and committees of the Post-Closing Purchaser Board, and certain initial actions of the Post-Closing Purchaser Board, will be as set forth on Section 6.19(b) of the Company Disclosure Letter subject to the limitations therein (as may be amended or supplemented as mutually agreed by the Company and the Purchaser), and (ii) they will use commercially reasonable efforts to prepare mutually agreeable written resolutions implementing such designations and appointments for the Post-Closing Purchaser Board to consider and, if thought fit, to adopt immediately following the Closing (or as soon thereafter as the Post-Closing Purchaser Board determines), provided, that each of the Parties acknowledges and agrees that such designations, appointments and actions (including with respect to clause (i) and (ii) above) shall be made by the Post-Closing Purchaser Board in its sole and absolute discretion.
(c) At or prior to the Closing, the Company, if requested, and the Purchaser shall provide each initial director with a customary director indemnification agreement, in form and substance reasonably acceptable to such director, the Company and the Purchaser.
(d) The Parties shall take all action necessary, including the Purchaser causing the executive officers of Purchaser to resign, so that the individuals serving as the executive officers of the Purchaser immediately after the Closing will be (i) the individuals listed on Section 6.19(d) of the Company Disclosure Letter (as may be amended or supplemented as mutually agreed by the Company and the Purchaser) and (ii) such other individuals as mutually agreed by the Company and the Purchaser.
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Section 6.20 Indemnification of Directors and Officers; Tail Insurance.
(a) The Parties agree that for a period of six (6) years from the Closing Date, the Parties shall, and shall cause the Purchaser, Merger Sub and the Target Companies to, maintain in effect the exculpation, indemnification and advancement of expenses provisions in favor of any individual who, at or prior to the Closing, was a director, officer, employee or agent of the Purchaser, Merger Sub and the Target Companies, as the case may be, or who, at the request of the Parties, as the case may be, served as a director, officer, member, manager, trustee, employee, agent or fiduciary of another corporation, partnership, joint venture, limited liability company, trust, pension or other employee benefit plan or other enterprise (collectively, with such individual’s heirs, executors or administrators, (each, together with such Person’s heirs, executors or administrators, a “D&O Indemnified Party”)), of the Purchaser’s, Merger Sub’s and the Target Companies’ respective Organizational Documents as in effect immediately prior to the Closing Date or in any indemnification agreements of the Purchaser, Merger Sub or any of the Target Companies, on the one hand, with any D&O Indemnified Party, on the other hand, as in effect immediately prior to the Closing Date, and the Parties shall, and shall cause the Purchaser, Merger Sub and the Target Companies to, not amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any D&O Indemnified Party; provided, however, that all rights to indemnification or advancement of expenses in respect of any Legal Proceedings pending or asserted or any claim made within such period shall continue until the disposition of such Legal Proceeding or resolution of such claim. From and after the Closing Date, the Purchaser shall cause the Target Companies to honor, in accordance with their respective terms, each of the covenants contained in this Section 6.20 without limit as to time.
(b) At or prior to the Closing, the Purchaser shall have obtained and funded non-rescindable “tail” directors’ and officers’ liability insurance coverage covering claims asserted against directors and officers of the Purchaser during the six (6) year period following the Closing in respect of acts or omissions occurring prior to the Closing. At or prior to the Closing, the Target Companies shall purchase non-rescindable “tail” directors’ and officers’ liability insurance coverage covering claims asserted against directors and officers of the Target Companies during the six (6) year period following the Closing in respect of acts or omissions occurring prior to the Closing covering, unless such coverage will be afforded under the D&O policies of the post-business combination company.
(c) The rights of each D&O Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Person may have under the Organizational Documents of the Purchaser or any Target Company, any other indemnification arrangement, any Law or otherwise. The obligations of the Purchaser and the Target Companies under this Section 6.20(c) shall not be terminated or modified after the Closing in such a manner as to materially and adversely affect any D&O Indemnified Party without the consent of such D&O Indemnified Party. The provisions of this Section 6.20 shall survive the Closing and expressly are intended to benefit, and are enforceable by, each of the D&O Indemnified Parties, each of whom is an intended third-party beneficiary of this Section 6.20.
(d) If the Purchaser or, after the Closing, any Target Company, or any of their respective successors or assigns: (i) consolidates with or merges into any other Person and shall not be the continuing or surviving entity of such consolidation or merger; or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, in each such case, proper provision shall be made so that the successors and assigns of the Purchaser or such Target Company, as applicable, assume the obligations set forth in this Section 6.20.
Section 6.21 Redemption. In connection with the Purchaser Shareholders’ Meeting, the Purchaser agrees that it shall provide the holders of Purchaser Class A Ordinary Shares the opportunity to elect redemption of such Purchaser Class A Ordinary Shares, as required by the Purchaser’s Organizational Documents in the Redemption. Subject to receipt of the Purchaser Shareholder Approval, and prior to the Domestication, the Purchaser shall complete the Redemption and use the proceeds held in the Trust Account to redeem the Purchaser Class A Ordinary Shares of holders who properly exercise their right to redemption in accordance with the Purchaser’s Organizational Documents.
Section 6.22 Domestication. Subject to receipt of the Purchaser Shareholder Approval, prior to the Closing, the Purchaser shall, in accordance with applicable Law, any applicable rules and regulations of the SEC, the Nasdaq and the Purchaser’s Organizational Documents, as applicable, cause the Domestication to become effective, including by (a) filing with the Delaware Secretary of State a certificate of domestication with respect to the Domestication, in form and substance reasonably acceptable to the Purchaser and the Company, together with the Purchaser Charter upon Domestication, in each case, in accordance with the provisions thereof and applicable Law, (b) adopting the Purchaser Bylaws upon Domestication, (c) completing and making and procuring all those filings required to be made with the Cayman Registrar in connection with the Domestication, and (d) filing with the Cayman Registrar all applicable notices, declarations, affidavits, statements of assets and liabilities, shareholder approvals, undertakings and other documents required to be filed, pay all applicable fees required to be paid, and cause the satisfaction of all other conditions to deregistration required to be satisfied, in each case, under section 206 of the Cayman Companies Act and the Purchaser shall obtain a certificate of de-registration from the Cayman Registrar.
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Section 6.23 PIPE Investment. The Purchaser and the Company shall use their reasonable best efforts to satisfy the conditions to the closing obligations contained in the PIPE Subscription Agreements.
Section 6.24 Affiliate Agreements. Except as set forth on Section 6.24 of the Company Disclosure Letter, all agreements with Related Persons shall be terminated or settled at or prior to the Closing without further liability to the Purchaser, the Surviving Corporation or the Target Companies, in each case.
Section 6.25 Intellectual Property Matters. To the extent that any Company Registered IP that is Owned Intellectual Property is subject to any form of Liens, other than Permitted Liens, recorded at the United States Patent and Trademark Office, the United States Copyright Office or any similar intellectual property registries in other jurisdictions (each, an “IP Office”), on the Closing Date, the applicable Target Company shall deliver to Purchaser documentation evidencing the release of such Liens and, promptly after the Closing Date, file or have filed such releases with each applicable IP Office and provide evidence of such filing(s) to Purchaser.
Section 6.26 Sponsor Indemnification.
(a) To the fullest extent permitted by applicable Law and the Purchaser’s Organizational Documents, and subject to the limitations of this Section 6.26, the Purchaser hereby agrees to defend, indemnify, hold harmless and exonerate (including the advancement of expenses to the fullest extent permitted by applicable law and subject to receipt of an undertaking by the applicable Sponsor Indemnitee to repay advanced amounts if it is determined that such Sponsor Indemnitee is not entitled to indemnification) the Sponsor and its present and former: controlled Affiliates, managers, officers, and directors (and solely to the extent acting at the request or on behalf of the Sponsor, the present and former managers, officers and directors of the Sponsor’s controlled Affiliates) (each, a “Sponsor Indemnitee”) from all reasonable and documented costs, fees, and expenses, and any judgments, liabilities, fines, penalties, reasonable attorneys’ fees and amounts paid in settlement (including all fees paid or payable in connection with or in respect of such judgments, liabilities, fines, penalties and amounts paid in settlement) actually, and reasonably, incurred by a Sponsor Indemnitee or on a Sponsor Indemnitee’s behalf in connection with any threatened, pending or completed Legal Proceeding, whether civil, criminal, administrative or investigative in nature, to the extent arising out of acts or omissions of such Sponsor Indemnitee taken in such Sponsor Indemnitee’s capacity as a sponsor, director, officer, manager, member or controlled Affiliate of the Purchaser prior to the Closing in connection with the affairs of the Purchaser (in each case to the extent that such indemnification, hold harmless and exoneration obligations with respect to such matters are not expressly covered by a separate written agreement between the Purchaser and the applicable Sponsor Indemnitee); provided, that in no event shall the foregoing apply to (A) any claim or Legal Proceeding by a party to the Sponsor Lock-Up Agreement or the A&R Registration Rights Agreement arising out of or related to the breach by the Sponsor of its post-Closing obligations under such agreements, (B) subject to Section 6.26(b), any amounts to the extent actually recovered by such Sponsor Indemnitee under any insurance policy or other indemnity, contribution or advancement arrangement (the intent of this clause (B) being to avoid duplicate payments to a Sponsor Indemnitee) or (C) any costs, fees, expenses, judgments, liabilities, fines, penalties and amounts paid in settlement by reason of such Sponsor Indemnitee’s fraud, willful breach, gross negligence, intentional misconduct or knowing violation of Law; provided, further, that no Sponsor Indemnitee may settle any Legal Proceeding for which indemnification is sought hereunder without the prior written consent of the Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed), except that no such Purchaser consent shall be required if such settlement includes a full and unconditional release of the Purchaser, the Company, the Sellers and their respective Affiliates from all liability with respect to such Legal Proceeding and does not include any admission of wrongdoing by any such Person; provided, further, that, no Sponsor Indemnitee shall be entitled to indemnification hereunder unless such Sponsor Indemnitee delivers written notice of a claim for indemnification to the Purchaser within 24 months following the Closing Date; provided, further, that, for the avoidance of doubt, under no circumstance shall a Sponsor Indemnitee have a claim to any monies or assets held in the Trust Account, and the Purchaser shall not be permitted to procure monies or assets held in the Trust Account for the satisfaction of its obligations to any Sponsor Indemnitee in respect of the indemnification provided hereunder. The Sponsor Indemnitees shall be third party beneficiaries of this Section 6.26.
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(b) The Purchaser hereby acknowledges that the Sponsor Indemnitees may have certain rights to indemnification, advancement of expenses, or liability insurance provided by one or more other Persons (each an “Indemnitor”). The Purchaser hereby agrees that (i) the Purchaser is the indemnitor of first resort (i.e., its obligations to any such Sponsor Indemnitee provided in Section 6.26(a) (collectively, “Indemnity Arrangements”) are primary), and any obligation of an Indemnitor to advance expenses or to provide indemnification for the same expenses or liabilities incurred by such Sponsor Indemnitee is secondary and excess, (ii) each Sponsor Indemnitee shall use reasonable efforts to seek recovery under any insurance policy which may provide coverage for such expenses or liabilities; provided, that such efforts shall not alter the Purchaser’s status as indemnitor of first resort or require exhaustion of such insurance policy or the commencement of any Legal Proceedings before the Purchaser advances expenses or provides indemnification as required by this Section 6.26, (iii) the Purchaser shall advance the full amount of expenses incurred by such Sponsor Indemnitee and shall be liable for the full amount of all costs, fees, expenses, judgments, liabilities, fines, penalties and amounts paid in settlement by or on behalf of any such Sponsor Indemnitee, to the extent legally permitted and as required by any Indemnity Arrangement, without regard to any rights such Sponsor Indemnitee may have against an Indemnitor, and (iv) the Purchaser irrevocably waives, relinquishes and releases the Indemnitors from any claims the Purchaser may have against the Indemnitors for contribution, subrogation or any other recovery of any kind arising out of or relating to any Indemnity Arrangement. The Purchaser agrees that no advancement or indemnification payment by any Indemnitor on behalf of any such Sponsor Indemnitee shall affect the foregoing, and each Indemnitor shall be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Sponsor Indemnitee against the Purchaser.
Section 6.27 Name Change. Prior to or concurrent with the Domestication, the Company shall file a certificate of amendment to the certificate of incorporation of the Company with the Secretary of State of Delaware changing the Company’s corporate name to “May Mobility Technology, Inc.” or another name mutually agreed on by the Purchaser and the Company prior to the Domestication.
Article
VII
Closing Conditions
Section 7.01 Conditions to Each Party’s Obligations. The obligations of each Party to consummate the Transactions shall be subject to the satisfaction or written waiver (where permissible) by the Company and the Purchaser of the following conditions:
(a) Required Purchaser Shareholder Approval. The Purchaser Shareholder Approval shall have been obtained.
(b) Requisite Stockholder Approval. The Requisite Stockholder Approval shall have been obtained.
(c) No Adverse Law or Order. No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) or Order that is then in effect and which has the effect of making the consummation of the Transactions illegal or which otherwise prevents or prohibits consummation of the Transactions.
(d) Registration Statement. The Registration Statement shall have been declared effective under the Securities Act by the SEC and shall remain effective as of the Closing, and no stop order or similar order suspending the effectiveness of the Registration Statement shall have been issued and be in effect with respect to the Registration Statement and no Legal Proceedings for that purpose shall have been initiated or threatened by the SEC and not withdrawn.
(e) Approvals. All applicable waiting periods (and any extensions thereof) under the HSR Act with respect to the Transactions, and any commitment to, or agreement (including any timing agreement) with, any Governmental Authority to delay the consummation of, or not to consummate before a certain date, the Transactions, shall have expired or been terminated, and all other Consents from Governmental Authorities, if any, that are required to consummate the Transactions, shall have been obtained.
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Section 7.02 Conditions to Obligations of the Company. In addition to the conditions specified in Section 7.01, the obligations of the Company to consummate the Transactions shall be subject to the satisfaction or written waiver (where permissible) by the Company of the following conditions:
(a) Representations and Warranties. As of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties are made only as of a specific earlier date, in which case as though made as of such earlier date): (i) the representations and warranties set forth in Section 5.05 (Capitalization) shall be true and correct in all but de minimis respects (subject to customary adjustments for redemptions and similar matters), (ii) each of the representations and warranties set forth in Section 5.01 (Organization and Standing), Section 5.02 (Authorization; Binding Agreement), and Section 5.15 (Finders and Brokers) shall be true and correct in all material respects, (iii) the representations and warranties set forth in Section 5.07(b) (Absence of Certain Changes) shall be true and correct in all respects, and (iv) each of the Purchaser’s and Merger Sub’s other representations and warranties shall be true and correct (without regard to any materiality or Purchaser Material Adverse Effect qualifications contained therein) except where any such failures, individually or in the aggregate, to be so true and correct have not had, and would not reasonably be expected to have, a Purchaser Material Adverse Effect.
(b) Agreements and Covenants. The Purchaser and Merger Sub shall have performed in all material respects all of their respective obligations and complied in all material respects with all of their respective agreements and covenants under this Agreement to be performed or complied with by them on or prior to the Closing Date.
(c) No Purchaser Material Adverse Effect. No Purchaser Material Adverse Effect shall have occurred with respect to the Purchaser since the date of this Agreement that is continuing and uncured.
(d) Domestication. The Domestication shall have been completed as provided in Section 6.22 and a time-stamped copy of the certificate issued by the Secretary of State of the State of Delaware in relation thereto shall have been delivered to the Company.
(e) Minimum Cash Amount; Trust Account. (i) The net proceeds remaining in the Trust Account (after giving effect to the Redemption and any payment of any Closing Indebtedness actually paid in cash by the Company at the Closing, but prior to the payment of Company Transaction Costs or Purchaser Transaction Costs) plus the proceeds of the PIPE Investment to be funded at or prior to the Closing shall equal no less than the Minimum Cash Amount and (ii) the Purchaser shall have made appropriate arrangements to have the net proceeds remaining in the Trust Account available to Purchaser at the Closing. For the avoidance of doubt, no repayment, discharge, amendment, refinancing, replacement, waiver, consent or similar accommodation with respect to the ACP Credit Facility, and no election by the Company to leave the ACP Credit Facility outstanding, shall be required for purposes of satisfying this Section 7.02(e).
(f) Nasdaq Listing. The shares of Domesticated Purchaser Common Stock to be issued in connection with the Transactions shall be conditionally approved for listing upon the Closing on Nasdaq subject to any requirement to have a sufficient number of round lot holders of the Domesticated Purchaser Common Stock.
(g) Closing Deliveries.
(i) Officer Certificate. The Purchaser shall have delivered to the Company a certificate, dated the Closing Date, signed by an executive officer of the Purchaser in such capacity, certifying as to the satisfaction of the conditions specified in Section 7.02(a), Section 7.02(b) and Section 7.02(c).
(ii) Secretary Certificate. The Purchaser shall have delivered to the Company a certificate from its secretary or other executive officer certifying as to, and attaching, (A) copies of the Purchaser Charter upon Domestication and the Purchaser Bylaws upon Domestication as in effect as of the Closing Date (after giving effect to the Domestication) and (B) the resolutions of the Purchaser’s board of directors authorizing and approving the execution, delivery and performance of this Agreement and each of the Ancillary Documents to which it is a party or by which it is bound, and the consummation of the Transactions.
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(iii) Resignation Letters. Each of the directors and officers set forth on Section 7.02(g)(iii) of the Purchaser Disclosure Letter shall have executed and delivered to the Company a resignation letter in form and substance reasonably satisfactory to the Company, which, for the avoidance of doubt, shall not require the director or officer to release any claims.
(iv) Ancillary Documents. The Purchaser shall have delivered to the Company a copy of the A&R Registration Rights Agreement, duly executed by the Purchaser and the Sponsor.
Section 7.03 Conditions to Obligations of the Purchaser and Merger Sub. In addition to the conditions specified in Section 7.01, the obligations of the Purchaser and Merger Sub to consummate the Transactions are subject to the satisfaction or written waiver (where available) of the following conditions:
(a) Representations and Warranties. As of the date of this Agreement and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations and warranties are made only as of a specific earlier date, in which case as though made as of such earlier date): (i) the representations and warranties set forth in Section 4.03(a) (Capitalization) shall be true and correct in all but de minimis respects, (ii) each of the representations and warranties set forth in Section 4.01 (Organization and Standing), Section 4.02 (Authorization; Binding Agreement), and Section 4.27 (Finders and Brokers) shall be true and correct in all material respects, (iii) the representations and warranties set forth in Section 4.08(a) (Absence of Certain Changes) shall be true and correct in all respects, and (iv) each of the Company’s other representations and warranties shall be true and correct (without regard to any materiality or Company Material Adverse Effect qualifications contained therein) except where any such failures, individually or in the aggregate, to be so true and correct have not had, and would not reasonably be expected to have, a Company Material Adverse Effect.
(b) Agreements and Covenants. The Company shall have performed in all material respects all of its obligations and complied in all material respects with all of the agreements and covenants under this Agreement to be performed or complied with by it on or prior to the Closing Date.
(c) No Company Material Adverse Effect. No Company Material Adverse Effect shall have occurred with respect to the Target Companies, taken as a whole, since the date of this Agreement that is continuing and uncured.
(d) Closing Deliveries.
(i) Officer Certificate. The Purchaser shall have received a certificate from the Company, dated as the Closing Date, signed by an executive officer of the Company in such capacity, certifying as to the satisfaction of the conditions specified in Section 7.03(a), Section 7.03(b) and Section 7.03(c).
(ii) Secretary Certificate. The Company shall have delivered to the Purchaser a certificate executed by the Company’s secretary certifying as to the validity and effectiveness of, and attaching, (A) copies of the Company’s Organizational Documents as in effect as of the Closing Date (immediately prior to the Closing), (B) the requisite resolutions of the Company’s board of directors authorizing and approving the execution, delivery and performance of this Agreement and each Ancillary Document to which the Company is or is required to be a party or bound, and the consummation of the Transactions, and (C) evidence reasonably satisfactory to the Purchaser that the Requisite Stockholder Approval has been obtained and remains in full force and effect since being obtained.
(iii) [Reserved.]
(iv) Closing Indebtedness. Solely with respect to Closing Indebtedness, the Company shall have delivered, or caused to be delivered, to the Purchaser:
(A) a duly executed pay-off letter from each of the holders of such Closing Indebtedness being repaid at the Closing, in a form reasonably satisfactory to Purchaser, certifying that all such Closing Indebtedness owing to such holder shall have been fully paid upon the receipt by such holder of funds pursuant to Section 3.03(c) hereof; and
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(B) documentation evidencing to the reasonable satisfaction of Purchaser the release of all Liens securing any Closing Indebtedness that is repaid in full at or prior to the Closing; provided, that no repayment or discharge of any amounts outstanding under the ACP Credit Facility or any amendment or refinancing thereof entered into prior to the Closing, and no pay-off letter, lien release, waiver, consent or other documentation with respect thereto, shall be required as a condition to the Closing.
(v) Ancillary Documents. The Company shall have delivered to the Purchaser:
(A) a properly completed and duly executed IRS Form W-9 (or, as relevant, an applicable IRS Form W-8) from the Sellers representing the Requisite Stockholder Approval; and
(B) a copy of the A&R Registration Rights Agreement, duly executed by the directors, officers and Sellers listed on Section 7.03(d)(iv)(B) of the Company Disclosure Letter.
(C) a certificate on behalf of the Company, in form and substance reasonably satisfactory to Purchaser, dated no more than thirty (30) days prior to the Closing Date, prepared in a manner consistent and in accordance with the requirements of Treasury Regulations Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the Internal Revenue Service prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2).
Section 7.04 Frustration of Conditions. Notwithstanding anything contained herein to the contrary, no Party may rely on the failure of any condition set forth in this Article VII to be satisfied if such failure was primarily caused by such Party’s breach of this Agreement.
Article
VIII
Termination and Expenses
Section 8.01 Termination. This Agreement may be terminated and the Transactions may be abandoned at any time prior to the Closing as follows:
(a) by mutual written consent of the Purchaser and the Company;
(b) by the Company by written notice to the Purchaser if there has been a Purchaser Modification in Recommendation at any time prior to the receipt of the Purchaser Shareholder Approval;
(c) by written notice by the Purchaser or the Company if the Purchaser Shareholder Approval shall not have been obtained by reason of the failure to obtain the required vote at the Purchaser Shareholders’ Meeting duly convened therefor or at any adjournment or postponement thereof;
(d) by written notice by the Purchaser or the Company if the Closing has not occurred by May 26, 2027 (the “Outside Date”); provided, however, (i) the Outside Date shall be automatically extended by thirty (30) days if, as of the Outside Date, any of the conditions set forth in Section 7.01(c), Section 7.01(d) or Section 7.01(e) has not been satisfied, (ii) the right to terminate this Agreement under this Section 8.01(d) shall not be available to a Party if the breach by such Party of this Agreement was the primary cause of, or resulted in, the failure of the Closing to occur by the Outside Date, and (iii) that, solely with respect to the Company’s right to terminate this Agreement pursuant to this Section 8.01(d), the “Outside Date” shall automatically be extended by one (1) calendar day for every calendar day after September 21, 2026, that the Updated Financial Statements are not delivered pursuant to Section 6.04(a);
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(e) by written notice by either the Purchaser or the Company if a Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law or Order or taken any other action permanently restraining, enjoining or otherwise prohibiting or making illegal the Transactions, and such Law, Order or other action has become final and non-appealable; provided, however, that the right to terminate this Agreement pursuant to this Section 8.01(e) shall not be available to a Party if the breach by such Party of this Agreement was the primary cause of, or resulted in, such Law, Order or action;
(f) by written notice by the Company to Purchaser, if (i) there has been a breach by the Purchaser of any of its representations, warranties, covenants or agreements contained in this Agreement, or if any representation or warranty of the Purchaser shall have become untrue or inaccurate, in any case, which would result in a failure of a condition set forth in Section 7.02 to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and (ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) thirty (30) days after written notice of such breach or inaccuracy is provided to the Purchaser or (B) the Outside Date; provided, that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.01(f) if at such time the Company is in material uncured breach of this Agreement;
(g) by written notice by the Purchaser to the Company, if (i) there has been a breach by the Company of any of its representations, warranties, covenants or agreements contained in this Agreement, or if any representation or warranty of such Parties shall have become untrue or inaccurate, in any case, which would result in a failure of a condition set forth in Section 7.03 to be satisfied (treating the Closing Date for such purposes as the date of this Agreement or, if later, the date of such breach), and (ii) the breach or inaccuracy is incapable of being cured or is not cured within the earlier of (A) thirty (30) days after written notice of such breach or inaccuracy is provided to the Company or (B) the Outside Date; provided, that the Purchaser shall not have the right to terminate this Agreement pursuant to this Section 8.01(g) if at such time the Purchaser is in material uncured breach of this Agreement;
(h) by written notice by the Company to Purchaser, if (i) all the conditions set forth in Section 7.01 and Section 7.03 have been, and continue to be, satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, each of which shall be capable of being satisfied if the Closing Date were the date of such termination) and (ii) the condition set forth in Section 7.02(e) is not capable of being satisfied as of three (3) Business Days prior to the day when the Closing is required to occur pursuant to Section 3.01 (taking into account the aggregate proceeds remaining in the Trust Account after giving effect to the Redemption and the aggregate proceeds of the PIPE Investment that have been funded or are required to be funded by PIPE Investors in connection with the Closing pursuant to the terms of the applicable PIPE Subscription Agreements); provided, that the Company shall not have the right to terminate this Agreement pursuant to this Section 8.01(h) if the failure of such condition to be satisfied was caused by the Company’s breach of its obligations under this Agreement;
(i) by written notice by the Purchaser to the Company, if the Company has failed to deliver valid Seller Voting and Support Agreements satisfying the requirements of Section 6.04(c) on or prior to November 4, 2026; or
(j) by the Purchaser by written notice to the Company if there has been a Company Modification in Recommendation at any time prior to the receipt of the Requisite Stockholder Approval.
Section 8.02 Expenses. Except as provided herein, all expenses incurred in connection with this Agreement and the Transactions shall be paid by the Party incurring such expenses.
Section 8.03 Effect of Termination. This Agreement may only be terminated in the circumstances described in Section 8.01 and pursuant to a written notice delivered by the applicable Party to the other applicable Parties, which sets forth the basis for such termination, including the provision of Section 8.01 under which such termination is made. In the event of the valid termination of this Agreement pursuant to Section 8.01, this Agreement shall forthwith become void, and there shall be no Liability on the part of any Party or any of their respective Representatives, and all rights and obligations of each Party shall cease, except: (i) Section 6.04(d), Section 6.14(c)(iv), Section 6.16, Section 6.17, Section 8.02, Article IX, and this Section 8.03 shall survive the termination of this Agreement, and (ii) nothing herein shall relieve any Party from Liability for any willful breach of any representation, warranty, covenant or obligation under this Agreement or any Fraud Claim against such Party, in either case, prior to termination of this Agreement (in each case of clauses (i) and (ii) above, subject to Section 9.15).
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Article
IX
Miscellaneous
Section 9.01 No Survival. Except (a) as otherwise contemplated in Section 8.03 or (b) in the case of a Fraud Claim against a Person, none of the representations, warranties, covenants, obligations or other agreements in this Agreement or in any certificate, statement or instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such representations, warranties, covenants, obligations, agreements and other provisions, shall survive the Closing (and there shall be no liability after the Closing in respect thereof), except for those covenants and agreements contained herein that by their terms expressly apply in whole or in part at or after the Closing, and then only with respect to any breaches occurring at or after the Closing.
Section 9.02 Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (i) in person, (ii) by facsimile or other electronic means (including email), with evidence of transmission, (iii) one (1) Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable Party at the following addresses (or at such other address for a Party as shall be specified by like notice):
|
If to the Purchaser:
ACP Holdings Acquisition Corp. 3131 Eastside Street Houston, Texas Attn: Andrew Mallozzi Email: [email protected] |
with a copy (which will not constitute notice) to:
DLA Piper LLP (US) 1251 Avenue of the Americas New York, New York 10020 Attn: Stephen P. Alicanti, Esq.; Sidney Burke, Esq. Email: [email protected]; [email protected] |
|
If to the Company, to:
May Mobility, Inc. 650 Avis Drive Ann Arbor, Michigan 48108 Attn: Sid Venkatesan Email: [email protected] |
with a copy (which will not constitute notice) to:
Latham & Watkins LLP 811 Main Street, Suite 3700 Houston, Texas 77002 Attn: Haim Zaltman; Tad Freese; Ryan Lynch Email: [email protected]; [email protected]; [email protected] |
Section 9.03 Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. This Agreement shall not be assigned by operation of Law or otherwise without the prior written consent of the Parties, and any assignment without such consent shall be null and void; provided that no such assignment shall relieve the assigning Party of its obligations hereunder.
Section 9.04 Third Parties. Except for the rights set forth in Section 6.20 and the rights set forth in Section 9.14, which the Parties acknowledge and agree are express third party beneficiaries of this Agreement, nothing contained in this Agreement or in any instrument or document executed by any party in connection with the Transactions shall create any rights in, or be deemed to have been executed for the benefit of, any Person that is not a Party hereto or thereto or a successor or permitted assign of such a Party.
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Section 9.05 Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the Transactions, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to principles or rules of conflict of Laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction, provided, that, for the avoidance of doubt, the laws of the Cayman Islands shall also apply to and, as applicable, govern the Domestication.
Section 9.06 Jurisdiction. Any Legal Proceeding based upon, arising out of or related to this Agreement or the Transactions must be brought in the Court of Chancery of the State of Delaware (or, to the extent such court does not have jurisdiction, in the United States District Court for the District of Delaware and to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), and each of the parties irrevocably (a) submits to the exclusive jurisdiction of each such court in any such Legal Proceeding, (b) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, (c) agrees that all claims in respect of the Legal Proceeding shall be heard and determined only in any such court, and (d) agrees not to bring any Legal Proceeding arising out of or relating to this Agreement or the Transactions in any other court. Nothing herein contained shall be deemed to affect the right of any Party to serve process in any manner permitted by Law or to commence Legal Proceedings or otherwise proceed against any other Party in any other jurisdiction, in each case, to enforce judgments obtained in any Legal Proceeding, suit or proceeding brought pursuant to this Section 9.06.
Section 9.07 WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT AND THE TRANSACTIONS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS.
Section 9.08 Specific Performance. Each Party acknowledges that the rights of each Party to consummate the Transactions are unique, recognizes and affirms that in the event of a breach of this Agreement by any Party, money damages may be inadequate and the non-breaching Parties may not have adequate remedy at law, and agrees that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by an applicable Party in accordance with their specific terms or were otherwise breached. Accordingly, each Party shall be entitled to seek an injunction or restraining order to prevent breaches of this Agreement and to seek to enforce specifically the terms and provisions hereof, without the requirement to post any bond or other security or to prove that money damages would be inadequate, this being in addition to any other right or remedy to which such Party may be entitled under this Agreement, at law or in equity.
Section 9.09 Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
Section 9.10 Amendment; Waiver. This Agreement may be amended, supplemented or modified only by execution of a written instrument signed by the Purchaser and the Company. Any Party may, at any time prior to the Closing, by action taken by its board of directors or other officers or Persons thereunto duly authorized, (a) extend the time for the performance of the obligations or acts of the other Parties, (b) waive any inaccuracies in the representations and warranties (of another Party) that are contained in this Agreement or (c) waive compliance by the other Parties with any of the agreements or conditions contained in this Agreement, but such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Party granting such extension or waiver. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement. The failure of any Party to assert any of its rights hereunder shall not constitute a waiver of such rights.
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Section 9.11 Entire Agreement. This Agreement, including any exhibits and schedules attached hereto, together with the Ancillary Documents, embody the entire agreement and understanding of the Parties in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants, undertakings, understandings or agreements, oral or otherwise, other than those expressly set forth or referred to herein or in the Ancillary Documents, which collectively supersede all prior agreements and the understandings, whether written or oral, among the Parties with respect to the subject matter contained herein.
Section 9.12 Interpretation. The table of contents and the Article and Section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement. In this Agreement, unless the context otherwise requires: (a) any pronoun used shall include the corresponding masculine, feminine or neuter forms, and words in the singular, including any defined terms, include the plural and vice versa; (b) reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity; (c) any accounting term used and not otherwise defined in this Agreement or any Ancillary Document has the meaning assigned to such term in accordance with GAAP; (d) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; (e) the words “herein,” “hereto,” and “hereby” and other words of similar import shall be deemed in each case to refer to this Agreement as a whole and not to any particular Section or other subdivision of this Agreement; (f) the word “if” and other words of similar import when used herein shall be deemed in each case to be followed by the phrase “and only if”; (g) the term “or” means “and/or”; (h) any agreement, instrument, insurance policy, Law or Order defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument, insurance policy, Law or Order as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes, regulations, rules or orders) by succession of comparable successor statutes, regulations, rules or orders and references to all attachments thereto and instruments incorporated therein; (i) except as otherwise indicated, all references in this Agreement to the words “Section,” “Article,” “Schedule” and “Exhibit” are intended to refer to Sections, Articles, Schedules and Exhibits to this Agreement; and (j) the term “Dollars” or “$” means United States dollars. Any reference in this Agreement to a Person’s directors shall include any member of such Person’s governing body and any reference in this Agreement to a Person’s officers shall include any Person filling a substantially similar position for such Person. Any reference in this Agreement or any Ancillary Document to a Person’s shareholders or stockholders shall include any applicable owners of the equity interests of such Person, in whatever form, including with respect to the Purchaser its shareholders under the Cayman Companies Act or DGCL, as then applicable, or its Organizational Documents. The Parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement. To the extent that any Contract, document, certificate or instrument is represented and warranted to by the Company to be given, delivered, provided or made available by the Company, in order for such Contract, document, certificate or instrument to have been deemed to have been given, delivered, provided and made available to the Purchaser or its Representatives, such Contract, document, certificate or instrument shall have (A) been posted to the electronic data site maintained on behalf of the Company for the benefit of the Purchaser and its Representatives and the Purchaser and its requested Representatives have been given access to the electronic folders containing such information or (B) provided or made available by the Company or any of its Representatives to Purchaser or its Representatives by email.
Section 9.13 Counterparts. This Agreement and each Ancillary Document may be executed and delivered (including by DocuSign, facsimile or other electronic transmission) in one or more counterparts, and by the different Parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
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Section 9.14 Legal Representation.
(a) The Purchaser and the Company, on behalf of their respective successors and assigns (including, after the Closing, the Surviving Corporation), hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among (i) the Sponsor, the stockholders, shareholders or holders of other equity interests of the Purchaser or the Sponsor or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Group”), on the one hand, and (ii) the Purchaser following the Closing, the Company or any member of the MM Group, on the other hand, any legal counsel, including DLA, that represented the Purchaser or the Sponsor prior to the Closing may represent the Sponsor or any other member of the SPAC Group in such dispute even though the interests of such Persons may be directly adverse to the Purchaser and its Affiliates (following the Closing), and even though such counsel may have represented the Purchaser in a matter substantially related to such dispute, or may be handling ongoing matters for the Purchaser or the Sponsor. The Purchaser and the Company, on behalf of their respective successors and assigns (including, after the Closing, the Surviving Corporation), further agree that, as to all confidential or privileged communications prior to the Closing (including written and electronic communications in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Legal Proceeding arising out of or relating to, this Agreement, any Ancillary Document or the Transactions) between or among the Purchaser, the Sponsor or any other member of the SPAC Group, on the one hand, and DLA, on the other hand (collectively, the “SPAC Privileged Materials”), the attorney/client privilege, the expectation of client confidence and any other privilege or similar rights shall survive the Transactions and shall be owned and controlled solely by the SPAC Group after the Closing and shall not pass or be claimed by the MM Group or their Affiliates (including the Purchaser following the Closing); provided, that, the SPAC Group and its Representatives shall reasonably cooperate with the MM Group and the Company (following the Closing) seeking to assert such privilege in a post-Closing dispute with a Person that is not a member of the SPAC Group or any of its Affiliates. In furtherance of the foregoing, each of the Parties agree to take all steps reasonably necessary to ensure that any and all privileges attaching to the SPAC Privileged Materials shall survive the Closing, remain in effect and be owned and controlled solely by the SPAC Group. The MM Group (on their own behalf and on behalf of their Representatives and Affiliates, including the Company and its Affiliates, following the Closing) also agree that they will not, directly or indirectly, obtain or seek to obtain from DLA any such SPAC Privileged Materials (or assist any other Person in seeking or obtaining SPAC Privileged Materials) and agree not to access, review, use or rely on any SPAC Privileged Materials in any dispute involving any of the Parties after the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Company prior to the Closing with the Purchaser or the Sponsor under a common interest agreement shall remain the privileged communications or information of the Purchaser or the Surviving Corporation.
(b) The Purchaser and the Company, on behalf of their respective successors and assigns (including, after the Closing, the Surviving Corporation), hereby agree that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among (i) the stockholders, shareholders or holders of other equity interests of the Company or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “MM Group”), on the one hand, and (ii) the Company (following the Closing) or any member of the SPAC Group, on the other hand, any legal counsel, including Latham & Watkins LLP (“Latham”) that represented the Company prior to the Closing may represent any member of the MM Group in such dispute even though the interests of such Persons may be directly adverse to the Company (following the Closing), and even though such counsel may have represented the Purchaser or the Company in a matter substantially related to such dispute, or may be handling ongoing matters for the Company (following the Closing). The Purchaser and the Company, on behalf of their respective successors and assigns (including, after the Closing, the Surviving Corporation), further agree that, as to all confidential or privileged communications prior to the Closing (including written and electronic communications in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Legal Proceeding arising out of or relating to, this Agreement, any Ancillary Document or the Transactions) between or among the Company or any member of the MM Group, on the one hand, and Latham, on the other hand (collectively, the “MM Privileged Materials”), the attorney/client privilege, the expectation of client confidence and any other privilege or similar rights shall survive the Transactions and shall be owned and controlled solely by the MM Group and shall not pass to or be claimed by the SPAC Group or their Affiliates (including the Company following the Closing); provided, that, the MM Group and its Representatives shall reasonably cooperate with the SPAC Group and the Company (following the Closing) seeking to assert such privilege in a post-Closing dispute with a Person that is not a member of the MM Group or any of its Affiliates. In furtherance of the foregoing, each of the Parties agree to take all steps reasonably necessary to ensure that any and all privileges attaching to the MM Privileged Materials shall survive the Closing, remain in effect and be owned and controlled solely by the MM Group. The SPAC Group (on their own behalf and on behalf of their Representatives and Affiliates, including the Company and its Affiliates, following the Closing) also agree that they will not, directly or indirectly, obtain or seek to obtain from Latham any such MM Privileged Materials (or assist any other Person in seeking or obtaining MM Privileged Materials) and agree not to access, review, use or rely on any MM Privileged Materials in any dispute involving any of the Parties after the Closing. Notwithstanding the foregoing, any privileged communications or information shared by the Purchaser prior to the Closing with the Company under a common interest agreement shall remain the privileged communications or information of the Company (following the Closing).
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(c) Latham has represented the MM Group and the Target Companies with respect to the Transactions. All Parties recognize the commonality of interest that exists and will continue to exist until the Closing, and the Parties agree that such commonality of interest should continue to be recognized after the Closing. Specifically, the SPAC Group and, following the Closing, the Company, agree that they shall not, and shall cause their Affiliates not to, seek to have Latham be disqualified from representing (a) any member of the MM Group in connection with any dispute that may arise between such parties and the SPAC Group or the Target Companies or (b) the Purchaser or any of the Target Companies in connection with any dispute that may arise between such parties and the members of the MM Group.
Section 9.15 Waiver of Claims Against Trust. The Company acknowledges that the Purchaser is a special purpose company with the powers and privileges to effect a Business Combination. The Company further acknowledges that, as described in the IPO Prospectus available at www.sec.gov, substantially all of the Purchaser’s assets consist of the cash proceeds of the Purchaser’s initial public offering and private placements of its securities and substantially all of those proceeds have been deposited in the Trust Account for the benefit of the Purchaser, its public shareholders and the underwriters of the Purchaser’s initial public offering. The Company acknowledges that it has been advised by the Purchaser that, except with respect to interest earned on the funds held in the Trust Account that may be released to the Purchaser to pay its franchise Tax, income Tax and similar obligations, the Trust Agreement provides that cash in the Trust Account may be disbursed only (a) if the Purchaser completes the transactions which constitute a Business Combination, then to those Persons and in such amounts as described in the IPO Prospectus; (b) if the Purchaser fails to complete a Business Combination within the allotted time period and liquidates, subject to the terms of the Trust Agreement, to the Purchaser in limited amounts to permit the Purchaser to pay the costs and expenses of its liquidation and dissolution, and then to the Purchaser Shareholders; and (c) if the Purchaser holds a shareholder vote to amend the Purchaser’s Organizational Documents to modify the substance or timing of the obligation to redeem 100% of the Purchaser Class A Ordinary Shares if the Purchaser fails to complete a Business Combination within the allotted time period or to otherwise modify any other material provision of the Purchaser’s Organizational Documents relating to its shareholders’ rights or its initial Business Combination activity, then for the redemption of any Purchaser Ordinary Shares properly tendered in connection with such vote. For and in consideration of the Purchaser entering into this Agreement, the receipt and sufficiency of which are hereby acknowledged, the Company, on behalf of itself, its Affiliates and its and their respective Representatives, hereby irrevocably waives any right, title, interest or claim of any kind they have or may have in the future in or to any monies in the Trust Account and agrees not to seek recourse against the Trust Account or any funds distributed therefrom to the Purchaser’s public shareholders for any reason whatsoever; provided, that (i) nothing herein shall serve to limit or prohibit the Company’s right to pursue a claim against the Purchaser for legal relief against monies or other assets held outside the Trust Account, for specific performance or other equitable relief in connection with the consummation of the Transactions (including a claim for the Purchaser to specifically perform its obligations under this Agreement and cause the disbursement of the balance of the cash remaining in the Trust Account (after giving effect to the Redemption) to the Company in accordance with the terms of this Agreement and the Trust Agreement) so long as such claim would not affect the Purchaser’s ability to fulfill its obligation to effectuate the Redemption and (ii) nothing herein shall serve to limit or prohibit any claims that the Company may have in the future against the Purchaser’s assets or funds that are not held in the Trust Account (including any funds that have been released from the Trust Account other than to the Purchaser’s public shareholders and any assets that have been purchased or acquired with any such funds).
Section 9.16 Company and Purchaser Disclosure Letters. The Company Disclosure Letter and the Purchaser Disclosure Letter (including, in each case, any section thereof) referenced herein are a part of this Agreement as if fully set forth herein. All references herein to the Company Disclosure Letter or the Purchaser Disclosure Letter (including, in each case, any section thereof) shall be deemed references to such parts of this Agreement, unless the context shall otherwise require. Any disclosure made by a Party in the applicable disclosure letter, or any section thereof, with reference to any section of this Agreement or section of the applicable disclosure letter shall be deemed to be a disclosure with respect to such other applicable sections of this Agreement or sections of applicable disclosure letter if it is reasonably apparent on the face of such disclosure that such disclosure is responsive to such other section of this Agreement or section of the applicable disclosure letter. Certain information set forth in the Company Disclosure Letter or the Purchaser Disclosure Letter is included solely for informational purposes and may not be required to be disclosed pursuant to this Agreement. The disclosure of any information shall not be deemed to constitute an acknowledgment that such information is required to be disclosed in connection with the representations and warranties made in this Agreement, nor shall such information be deemed to establish a standard of materiality.
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Article
X
Definitions
Section 10.01 Certain Definitions. For purpose of this Agreement, the following capitalized terms have the following meanings:
“A&R Registration Rights Agreement” has the meaning specified in the Recitals.
“ACP” means ACP Redstone Credit, LLC.
“ACP Credit Facility” means that certain Credit and Guarantee Agreement between ACP as administrative agent for the lenders party thereto from time to time, and the Company as borrower, and the other Company Subsidiaries party thereto from time to time, dated May 15, 2026.
“Acquisition Proposal” has the meaning specified in Section 6.06(a).
“Additional Purchaser SEC Reports” has the meaning specified in Section 5.06(a).
“Affiliate” means, with respect to any specified Person, any Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person, whether through one or more intermediaries or otherwise. The term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by Contract or otherwise.
“Aggregate Consideration” means the number of shares of Domesticated Purchaser Common Stock equal to: (a) the quotient of (i) the Purchase Price, divided by (ii) $10.00; less (b) the lesser of (i) 50% of the aggregate number of (A) Non-Redemption Shares (as defined in the PIPE Subscription Agreements) subject to payment by the Purchaser, plus (B) the Backstop Shares (as defined in the PIPE Subscription Agreements) issuable, and (ii) 1,375,000.
“Agreement” has the meaning specified in the Preamble.
“AI/ML” has the meaning set forth in the definition of “Software.”
“Alternative Transaction” has the meaning specified in Section 6.06(a).
“Ancillary Documents” means each of the agreements and instruments contemplated by this Agreement or otherwise related to the Transactions, in each case to be executed and delivered on the date hereof or on or prior to the Closing Date, including this Agreement (together with the Company Disclosure Letter and the Purchaser Disclosure Letter), the A&R Registration Rights Agreement, the Sponsor Lock-Up Agreement, the Seller Voting and Support Agreement, the Sponsor Support Agreement, the PIPE Subscription Agreement, Cyrus Lock-Up Agreement and Keyframe Lock-Up Agreement.
“Anti-Bribery Law” means the anti-bribery provisions of the Foreign Corrupt Practices Act of 1977, as amended, and all other applicable anti-corruption and bribery Laws of any jurisdiction (including, to the extent applicable, the U.K. Bribery Act 2010, and any rules or regulations promulgated thereunder or other Laws of other countries implementing the OECD Convention on Combating Bribery of Foreign Officials) that prohibit the corrupt payment, offer, promise or authorization of the payment or transfer of anything of value (including gifts or entertainment), directly or indirectly, to any official or representative of a Governmental Authority or regulatory authority or commercial entity to obtain a business advantage.
“Anti-Money Laundering Laws” means, with respect to any Person, the applicable anti-money laundering Laws of jurisdictions where such Person conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority in such jurisdiction, including, without limitation, (a) the Bank Secrecy Act, (b) the U.S. Currency and Foreign Transaction Reporting Act of 1970, (c) the Money Laundering Control Act of 1986, and (d) the USA PATRIOT Act, in each case, including the rules, regulations and applicable financial recordkeeping and reporting requirements promulgated thereunder and as amended from time to time.
“Antitrust Laws” has the meaning specified in Section 6.09(b).
“Audited Financial Statements” has the meaning specified in Section 4.06(a).
“Business Combination” has the meaning specified in Article 1.1 of the Purchaser’s Organizational Documents as in effect on the date hereof.
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York or, for so long as the Purchaser remains domiciled in Cayman Islands, Governmental Authorities in the Cayman Islands that are authorized or required by Law to close.
“Cayman Companies Act” has the meaning specified in the Recitals.
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“Cayman Purchaser Private Placement Warrants” means the warrants to purchase Purchaser Class A Ordinary Shares, at an initial exercise price of $11.50 per share, included in the Cayman Purchaser Units sold simultaneously with the closing of the Purchaser’s IPO in a private placement to the Sponsor and the representative of the Purchaser’s underwriters.
“Cayman Purchaser Public Warrants” means the warrants to purchase Purchaser Class A Ordinary Shares, at an initial exercise price of $11.50 per share, included in the Cayman Purchaser Units sold in the Purchaser’s IPO.
“Cayman Purchaser Units” has the meaning specified in the Recitals.
“Cayman Purchaser Warrant” has the meaning specified in the Recitals.
“Cayman Registrar” means the Registrar of Companies of the Cayman Islands.
“Certificate of Merger” has the meaning specified in the Recitals.
“Closing” has the meaning specified in Section 3.01.
“Closing Date” has the meaning specified in Section 3.01.
“Closing Filing” has the meaning specified in Section 6.16(b).
“Closing Indebtedness” means the aggregate Indebtedness of the Target Companies as of immediately prior to the Effective Time; provided, that Closing Indebtedness shall exclude (a) Financial Indebtedness and (b) any Indebtedness under the ACP Credit Facility for which there is no contractual obligation to repay at Closing (whether obtained by amendment, waiver, consent, refinancing or replacement thereof entered into prior to or in connection with the Closing).
“Closing Press Release” has the meaning specified in Section 6.16(b).
“Code” means the U.S. Internal Revenue Code of 1986, as amended, and any successor statute thereto, as amended.
“Company” has the meaning specified in the Preamble.
“Company Appointee Directors” has the meaning specified in Section 6.19(a).
“Company Benefit Plans” means any and all deferred compensation, executive compensation, incentive compensation, equity purchase or other equity-based compensation plan, employment or consulting, severance or termination pay, holiday, vacation or other bonus plan or practice, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit sharing, pension, or retirement plan, program, agreement, commitment or arrangement, and each other employee benefit plan, program, agreement or arrangement, including each “employee benefit plan” as such term is defined under Section 3(3) of ERISA, maintained or contributed to or required to be contributed to by the Company or any Company Subsidiary for the benefit of any current or former employee or other individual service provider of the Company or the Company Subsidiaries, or with respect to which the Company or any Company Subsidiary has any Liability, whether direct or indirect, whether actual or contingent, whether formal or informal, and whether legally binding or not (other than a multiemployer plan within the meaning of Section 3(37) of ERISA or any plan or program that is sponsored solely by a Governmental Authority and to which the Company or any Company Subsidiary is required to contribute pursuant to applicable Law).
“Company Common Stock” means common stock of the Company, par value $0.0001 per share.
“Company Confidential Information” means all confidential or proprietary documents and information concerning the Target Companies or any of their respective Representatives, furnished in connection with this Agreement or the Transactions; provided, however, that Company Confidential Information shall not include any information which, (a) at the time of disclosure by the Purchaser or its Representatives, is generally available publicly and was not disclosed in breach of this Agreement or (b) at the time of the disclosure by the Company or its Representatives to the Purchaser or its Representatives was previously known by such receiving party without violation of Law or any confidentiality obligation by the Person receiving such Company Confidential Information.
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“Company Convertible Security” means each convertible promissory note, simple agreement for future equity or similar instrument or Contract issued by the Company or entered into by the Company pursuant to which any Person has the right to convert or exchange such instrument or Contract into equity securities of the Company (for the avoidance of doubt, excluding Company Warrants and Company Options).
“Company Disclosure Letter” has the meaning specified in the Preamble to Article IV.
“Company Equity Incentive Plan” means the Company’s 2017 Stock Plan, as amended.
“Company Financials” has the meaning specified in Section 4.06(a).
“Company Fully Diluted Capital” means the sum (without duplication) of the aggregate number of shares of (a) Company Common Stock that are issued and outstanding immediately prior to the Effective Time (including all Company Common Stock issued upon conversion or exercise of all issued and outstanding Company Convertible Securities, Company Warrants exercisable for Company Preferred Stock, and Company Preferred Stock pursuant to Section 2.01), (b) all shares of Company Common Stock issuable upon full exercise of all issued and outstanding Company Warrants exercisable for Company Common Stock (calculated using the treasury method of accounting on a cashless exercise basis), and (c) all Company Common Stock issuable upon full exercise of all Vested Company Options (calculated on a net exercise basis), but excluding the number of shares of Company Common Stock issuable upon full exercise of Company Options that are not Vested Company Options.
“Company Government Contract” has the meaning specified in Section 4.10(a).
“Company Material Adverse Effect” means any event, state of facts, condition, change, development, circumstance, occurrence or effect (collectively, “Events”) that, individually or when aggregated with other Events, (a) has had, or would reasonably be expected to have, a material adverse effect on the business, assets, results of operations or financial condition of the Target Companies, taken as a whole, or (b) does or would reasonably be expected to, prevent, materially delay or materially impede the ability of the Target Companies to consummate the Transactions; provided, however, that in no event would any of the following, alone or in combination, be deemed to constitute, or be taken into account in determining whether there has been or will be, a “Company Material Adverse Effect”: (i) any change in applicable Laws or GAAP or any interpretation thereof following the date of this Agreement (including any changes in Laws relating to autonomous vehicles), (ii) any change in interest or exchange rates or economic, political, business or financial market conditions generally, or any suspension of trading in securities or any securities exchange, (iii) the taking of any action required by this Agreement, (iv) any natural disaster (including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions or similar occurrences), pandemic (including COVID-19) or material and adverse change in climate, (v) any acts of terrorism or war, military action, sabotage, the outbreak or escalation of hostilities, geopolitical conditions, local, national or international political conditions, including any escalation or worsening thereof; (vi) any failure of the Target Companies to meet any projections, including forecasts of revenues, earnings, cash flows, or other financial metrics for any future period (provided that clause (vi) shall not prevent a determination that any Event not otherwise excluded from this definition of Company Material Adverse Effect underlying such failure to meet the aforementioned has resulted in a Company Material Adverse Effect), (vii) any Events generally applicable to the industries or markets in which the Target Companies operate (including (A) increases in the cost of products, supplies, materials, components, sensors, semiconductors, computing hardware or other goods purchased from third party suppliers, (B) autonomous vehicle incidents involving any Person other than the Target Companies, and (C) material and adverse changes in industry technical standards, interoperability requirements, or safety standards applicable to autonomous vehicles), (viii) the announcement of this Agreement and consummation of the Transactions, including any termination of, reduction in or similar adverse impact (but in each case only to the extent attributable to such announcement or consummation) on relationships, contractual or otherwise, with any landlords, customers, suppliers, distributors, partners or employees of the Target Companies, (ix) any matter set forth on the Company Disclosure Letter, (x) any action taken by, or at the request of, the Purchaser, or (xi) any cyberattack, data breach, ransomware event or other cybersecurity incident that is of general applicability and not specifically targeted at the Target Companies; provided, further, that any Event referred to in clauses (i), (ii), (iv), (v), (vii) or (xi) above may be taken into account in determining if a Company Material Adverse Effect has occurred to the extent it has a disproportionate and adverse effect on the business, assets, results of operations or condition (financial or otherwise) of the Target Companies, taken as a whole, relative to similarly situated companies in the autonomous vehicle industries in which the Target Companies conduct their respective operations, but only to the extent of the incremental disproportionate effect on the Target Companies, taken as a whole, relative to such similarly situated companies.
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“Company Material Contract” has the meaning specified in Section 4.13(a).
“Company Modification in Recommendation” has the meaning specified in Section 6.14(c)(iii).
“Company Options” means each option to purchase equity securities of the Company, in each case, granted pursuant to the Company Equity Incentive Plan.
“Company Permits” has the meaning specified in Section 4.11.
“Company Preferred Stock” means preferred stock of the Company, par value $0.0001 per share.
“Company Real Property Leases” has the meaning specified in Section 4.16(b).
“Company Registered IP” has the meaning specified in Section 4.14(a).
“Company Securities” means all equity interests of the Company, including, without limitation, Company Common Stock, Company Convertible Securities, Company Preferred Stock, Company Options and Company Warrants.
“Company Software” means any and all Software which any of the Target Companies owns or purports to own, in whole or in part.
“Company Subsidiary” or “Company Subsidiaries” has the meaning specified in Section 4.04.
“Company Transaction Costs” means all fees, costs and expenses of the Target Companies, in each case, incurred prior to and through the Closing Date in connection with the negotiation, preparation and execution of this Agreement, the other Ancillary Documents and the consummation of the Transactions, including: (a) all change of control bonus payments, retention or similar payments payable solely as a result of the consummation of the Transactions pursuant to arrangements (whether written or oral) entered into prior to the Closing Date whether payable before (to the extent unpaid), on or following the Closing Date (excluding any “double-trigger” payments), and the employer portion of payroll Taxes payable as a result of the foregoing amounts; (b) all severance payments, retirement payments or similar payments or success fees payable pursuant to arrangements (whether written or oral) entered into prior to the Closing Date and which are payable in connection with the consummation of the Transactions, whether payable before (to the extent unpaid), on or following the Closing Date (excluding any “double-trigger payments”), and the employer portion of payroll Taxes payable as a result of the foregoing amounts; (c) all professional or transaction, deal, brokerage, legal, accounting, financial advisory or any similar fees payable in connection with the consummation of the Transactions; (d) all costs, fees and expenses related to the D&O Tail; (e) 50% of the fees related to the filing of the Registration Statement; (f) 50% of all fees or other amounts charged by any Governmental Authorities relating to filings or applications made in accordance with Section 6.09(b); and (g) all Transfer Taxes, but excluding any amounts payable by the Purchaser hereunder.
“Company Warrants” means all warrants to purchase any stock or other equity interests of the Company.
“Consent” means any consent, clearance, approval, waiver, authorization, waiting period expiration or termination of, or notice to or declaration or filing with, any Governmental Authority or any other Person.
“Contracts” means all legally binding contracts, agreements, binding arrangements, bonds, notes, indentures, mortgages, debt instruments, purchase order, licenses, franchises, leases and other instruments or obligations of any kind, written or oral (including any amendments and other modifications thereto).
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“Copyleft Action” has the meaning specified in Section 4.14(e).
“Copyrights” has the meaning set forth in the definition of “Intellectual Property”.
“COVID-19” means SARS-CoV-2 or COVID-19, and any evolutions or mutations thereof or related or associated epidemics, pandemic or disease outbreaks.
“Cyrus Lock-Up Agreement” has the meaning specified in the Recitals.
“D&O Indemnified Party” has the meaning specified in Section 6.20(a).
“D&O Tail” has the meaning specified in Section 6.20(b).
“Designated Directors” has the meaning specified in Section 6.19(a).
“DGCL” has the meaning specified in the Recitals.
“Dissenting Shares” has the meaning specified in Section 2.04.
“DLA” means DLA Piper LLP (US).
“Domesticated Purchaser Common Stock” means, following the Domestication, common stock of the Purchaser, par value $0.0001 per share.
“Domesticated Purchaser PIPE Investor Warrants” has the meaning specified in the Recitals.
“Domesticated Purchaser Series A Preferred Stock” has the meaning specified in the Recitals.
“Domesticated Purchaser Warrant” has the meaning specified in the Recitals.
“Domestication” has the meaning specified in the Recitals.
“Effective Time” has the meaning specified in Section 1.02(a).
“Enforceability Exceptions” has the meaning as specified in Section 5.02.
“Environmental Law” means any Law in any way relating to (a) the protection of worker health and safety (to the extent related to exposure to Hazardous Materials), (b) the protection, preservation or restoration of the environment and natural resources (including air, water vapor, surface water, groundwater, drinking water supply, surface land, subsurface land, plant and animal life or any other natural resource), or (c) the exposure to, or the use, storage, recycling, treatment, generation, transportation, processing, handling, labeling, production, release or disposal of Hazardous Materials, including the Comprehensive Environmental Response, Compensation and Liability Act, 42 USC. Section 9601 et. seq., the Resource Conservation and Recovery Act, 42 USC. Section 6901 et. seq., the Toxic Substances Control Act, 15 USC. Section 2601 et. seq., the Federal Water Pollution Control Act, 33 USC. Section 1151 et seq., the Clean Air Act, 42 USC. Section 7401 et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 USC. Section 111 et. seq., Occupational Safety and Health Act, 29 USC. Section 651 et. seq. (to the extent it relates to exposure to Hazardous Materials), the Asbestos Hazard Emergency Response Act, 15 USC. Section 2601 et. seq., the Safe Drinking Water Act, 42 USC. Section 300f et. seq., the Oil Pollution Act of 1990 and analogous state acts.
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“Environmental Liabilities” means, in respect of any Person, all Liabilities, obligations, responsibilities, losses, damages, costs, and expenses (including all reasonable fees, disbursements, and expenses of counsel, experts, and consultants and costs of investigation and feasibility studies), fines, penalties, and sanctions incurred as a result of any claim or demand by any other Person under, or in response to any violation of, Environmental Law, whether known or unknown, accrued or contingent, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute, to the extent based upon, related to, or arising under or pursuant to any Environmental Law, Permit required by Environmental Laws, Order, or Contract with any Governmental Authority or other Person, that relates to any violation of Environmental Law or any Release or threatened Release of Hazardous Materials.
“ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means each “person” (as defined in Section 3(9) of ERISA) which together with a Target Company would be deemed to be a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Exchange Fund” has the meaning specified in Section 2.03(a).
“Exchange Ratio” means the Aggregate Consideration divided by the Company Fully Diluted Capital.
“Excluded Share” has the meaning specified in Section 2.02(a)(i).
“Extension” has the meaning specified in Section 6.03(a).
“Federal Securities Law” has the meaning specified in Section 6.07.
“Financial Indebtedness” means the obligations of the Target Companies under the Contracts set forth on Section 10.01(d) of the Company Disclosure Letter.
“Form SVSA” has the meaning specified in Section 6.04(b).
“Fraud Claim” means any claim based upon intentional fraud as defined under the common law of the State of Delaware.
“GAAP” means generally accepted accounting principles as in effect in the United States of America.
“Government Bid” means any quotation, bid or proposal by a Target Company that is outstanding and in effect as of the date of this Agreement, which if accepted or awarded, would lead to a prime contract with a Governmental Authority, or to a subcontract with a prime contractor or higher-tier subcontractor under a prime contract with a Governmental Authority.
“Government Contract” means any Contract, grant, basic ordering agreement, letter contract, or order between a Target Company, on the one hand, and (i) any Governmental Authority, (ii) another Person under such other Person’s prime contract with a Governmental Authority, or (iii) any higher tier subcontractor of a Governmental Authority in its capacity as a subcontractor, on the other hand, for which the period of performance has not expired or terminated, or final payment has not been received, or which remain open to audit as of the date of this Agreement. Unless otherwise indicated, a task, purchase or delivery order under a Government Contract will not constitute a separate Government Contract, for purposes of this definition, but will be part of the Government Contract under which it was issued.
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“Governmental Authority” means any federal, state, local, or foreign government or other governmental, quasi-governmental, regulatory or administrative authority, body, instrumentality, department, board, bureau or agency or any official, executive, legislature, court, tribunal, administrative hearing body, arbitration panel, commission, or other similar dispute-resolving panel or body (private or public).
“Hazardous Material” means any waste, gas, liquid or other substance or material that is defined, listed or designated as a “hazardous substance,” “pollutant,” “contaminant,” “hazardous waste,” “hazardous chemical,” or “toxic chemical” (or by any similar term) under any Environmental Law, or any other material regulated, or that could result in the imposition of Liability or responsibility, under any Environmental Law, due to its harmful, hazardous or deleterious properties including petroleum and its by-products, asbestos, polychlorinated biphenyls, radon, toxic mold, and urea formaldehyde insulation.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations issued thereunder.
“Income Taxes” means income, capital gains, franchise, and similar Taxes.
“Indebtedness” of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money (including the outstanding principal and accrued but unpaid interest), (b) all obligations for the deferred purchase price of property or services (other than trade payables incurred in the ordinary course of business consistent with past practice), (c) any other indebtedness of such Person that is evidenced by a note, bond, debenture, credit agreement or similar instrument, (d) all obligations of such Person under leases that should be classified as capital leases in accordance with GAAP (other than real estate leases and any other leases that would be required to be capitalized only upon adoption of ASC 842), (e) all obligations of such Person for the reimbursement of any obligor on any line or letter of credit, banker’s acceptance, guarantee or similar credit transaction, in each case, that has been drawn or claimed against, (f) all obligations of such Person in respect of acceptances issued or created, (g) all interest rate and currency swaps, caps, collars and similar agreements or hedging devices under which payments are obligated to be made by such Person, whether periodically or upon the happening of a contingency, (h) all obligations secured by a Lien on any property of such Person, (i) any premiums, prepayment fees or other penalties, fees, costs or expenses associated with payment of any Indebtedness of such Person and (j) all obligations described in clauses (a) through (i) above of any other Person which is directly or indirectly guaranteed by such Person or which such Person has agreed (contingently or otherwise) to purchase or otherwise acquire or in respect of which it has otherwise assured a creditor against loss.
“Indemnitor” has the meaning specified in Section 6.26(b).
“Indemnity Arrangements” has the meaning specified in Section 6.26(b).
“Initial Grants” has the meaning specified in Section 6.15(a).
“Intellectual Property” means any and all intellectual property and proprietary rights arising anywhere in the world, including: (a) all United States and foreign patents and patent applications (and all inventions disclosed or claimed therein), patent disclosures and inventions (whether patentable or unpatentable and whether or not reduced to practice), including any continuations, divisions, continuations in part, renewals, divisionals, extensions, reissues or foreign counterparts of any of the foregoing (“Patents”); (b) all United States, international and foreign trade names, trade dress, trademarks, service marks, logos or internet domain name registrations, social media user names and handles, and similar source identifiers, including all goodwill associated therewith, together with all registrations and applications relating thereto (“Trademarks”); (c) all United States, international, and foreign copyrights (whether registered or unregistered), rights in copyrightable works and in other original works of authorship (including Software), together with all registrations and applications relating thereto (“Copyrights”); (d); (e) industrial designs and any registrations and applications therefor throughout the world; (f) Trade Secrets; (g) proprietary rights in Software, data, databases, data compilations, and any other electronic data files, including any and all collections of data, whether machine readable or otherwise; (h) any and all other intellectual or industrial property rights arising under or otherwise protectable by applicable law in any jurisdiction; and (i) all issuances, renewals, registrations and applications of or for any of the foregoing.
“Intended Tax Treatment(s)” has the meaning specified in the Recitals hereto.
“Interim Company Financials” has the meaning specified in Section 4.06(a).
“Interim Period” has the meaning specified in Section 6.01(a).
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“International Trade Laws” means: (a) all applicable trade, export control, import, and antiboycott Laws imposed, administered, or enforced by the U.S. government, including the Arms Export Control Act (22 U.S.C. § 1778), the International Emergency Economic Powers Act (50 U.S.C. §§ 1701–1706), Section 999 of the Internal Revenue Code, the U.S. customs laws at Title 19 of the U.S. Code, the Export Control Reform Act of 2018 (50 U.S.C. §§ 4801-4861), the International Traffic in Arms Regulations (22 C.F.R. Parts 120–130), the Export Administration Regulations (15 C.F.R. Parts 730-774), the U.S. customs regulations at 19 C.F.R. Chapter 1, and the Foreign Trade Regulations (15 C.F.R. Part 30); and (b) all applicable trade, export control, import, and antiboycott Laws and regulations imposed, administered or enforced by any Governmental Authority, except to the extent inconsistent with U.S. Law.
“IPO” means the initial public offering of Cayman Purchaser Units pursuant to the IPO Prospectus.
“IPO Prospectus” means the final prospectus of the Purchaser, dated as of April 7, 2026 (File No. 333-294120).
“IRS” means the U.S. Internal Revenue Service (or any successor Governmental Authority).
“IT Assets” means devices, computers, hardware, Software (including firmware and middleware), systems, sites, servers, networks, workstations, routers, hubs, circuits, switches, interfaces, websites, platforms, data communications lines, and all other information or operational technology, telecommunications, or data processing assets, facilities, systems services, or equipment.
“Keyframe Lock-Up Agreement” has the meaning specified in the Recitals.
“JOBS Act” has the meaning specified in Section 5.06(f).
“Knowledge” means, with respect to (a) the Company, the actual knowledge of the individuals set forth on Section 10.01(b) of the Company Disclosure Letter and (b) the Purchaser, the actual knowledge of the individuals set forth on Section 10.01(c) of the Purchaser Disclosure Letter.
“Latham” has the meaning specified in Section 9.14(b).
“Law” means any federal, state, local, municipal, foreign or other law, statute, legislation, principle of common law, ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation, legally-binding directive, writ, injunction, settlement, or Order that is or has been issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the authority of any Governmental Authority.
“Legal Proceeding” means any written claim, demand, charge, action, suit, litigation, audit, settlement, complaint, stipulation, assessment or arbitration, investigation, hearing, or proceeding, by or before any Governmental Authority.
“Letter of Transmittal” has the meaning specified in Section 2.03(b).
“Liabilities” means any and all liabilities, Indebtedness, or obligations of any nature (whether absolute, accrued, contingent or otherwise, whether known or unknown, whether direct or indirect, whether matured or unmatured, whether due or to become due and whether or not required to be recorded or reflected on a balance sheet under GAAP or other applicable accounting standards).
“Lien” means any mortgage, deed, pledge, security interest, attachment, right of first refusal, right of first offer, option, proxy, voting trust, license, encumbrance, easement, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof), restriction (whether on voting, sale, transfer disposition or otherwise), any subordination arrangement in favor of another Person, or any filing or agreement to file a financing statement as debtor under the Uniform Commercial Code or any similar Law.
“Material IP Contracts” has the meaning specified in Section 4.13(a)(xiv).
“Merger” has the meaning specified in the Recitals hereto.
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“Merger Sub” has the meaning specified in the Preamble.
“Minimum Cash Amount” means an amount equal to $120,000,000.
“MM Group” has the meaning specified in Section 9.14(b).
“MM Japan” has the meaning specified in Section 4.01.
“MM IP Holdings” has the meaning specified in Section 4.01.
“MM Privileged Materials” has the meaning specified in Section 9.14(b).
“Nasdaq” has the meaning specified in Section 5.06(a).
“Odyssey” means Odyssey Transfer and Trust Company.
“OFAC” means the Office of Foreign Assets Control of the U.S. Department of Treasury.
“Off-the-Shelf Software” means “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for Software, Software-enabled services or data services commercially available to the public on standard terms and conditions, generally with license, maintenance, support and other fees of less than $50,000 per year.
“Offer Documents” has the meaning specified in Section 6.14(a)(i).
“Order” means any order, decree, ruling, judgment, injunction, writ, determination, binding decision, verdict, or judicial award that is or has been made, entered, rendered, or otherwise put into effect by or under the authority of any Governmental Authority.
“Organizational Documents” means, with respect to any Person that is an entity, its certificate of incorporation or formation, bylaws, operating agreement, memorandum and articles of association or similar organizational documents, in each case, as amended.
“Outside Date” has the meaning specified in Section 8.01(d).
“Owned Intellectual Property” means any and all Intellectual Property which any of the Target Companies owns (or purports to own), in whole or in part, and includes the Company Software, all Company Registered IP that is owned or purported to be owned by a Target Company and all other Intellectual Property required to be set forth in Section 4.14(a)(ii) of the Company Disclosure Letter.
“Party(ies)” has the meaning specified in the Preamble.
“Patents” has the meaning set forth in the definition of “Intellectual Property”.
“PCAOB” means the U.S. Public Company Accounting Oversight Board (or any successor thereto).
“Permits” means all federal, state, local or foreign or other third-party permits, grants, consents, approvals, clearances, authorizations, exemptions, licenses, franchises, concessions, ratifications, waivers, certifications, designations, ratings, registrations, qualifications or orders of any Governmental Authority.
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“Permitted Liens” means (a) Liens for Taxes or assessments and similar governmental charges or levies, which either are (i) not yet due and payable or (ii) being contested in good faith and by appropriate proceedings, and adequate reserves have been established with respect thereto in accordance with GAAP; (b) mechanics’, materialmen’s, carriers’, workers’, repairers’ and other similar liens arising or incurred in the ordinary course of business relating to obligations as to which there is no default on the part of the applicable Target Company or the validity of which are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP; (c) zoning, entitlement, environmental or conservation restrictions and other land use and environmental regulations imposed by Governmental Authorities which are not violated in any material respect; (d) non-monetary Liens of record, so long as such matters do not materially interfere with or detract from the Target Companies’ ability to conduct its business at such property or the Target Companies’ use of the property subject thereto; (e) all matters that would be disclosed on an accurate survey of the Target Companies’ real property; (f) Liens incurred or deposits made in the ordinary course of business in connection with social security; (g) Liens on goods in transit incurred pursuant to documentary letters of credit, in each case arising in the ordinary course of business consistent with past practice of the Target Companies; (h) Liens arising under this Agreement or any Ancillary Document; and (i) non-exclusive licenses of Owned Intellectual Property granted in the ordinary course of the Target Companies’ business.
“Person” means an individual, corporation, company, partnership (including a general partnership, limited partnership or limited liability partnership), limited liability company, association, trust or other entity or organization, including a Governmental Authority.
“Personal Property” means any machinery, equipment, tools, vehicles, furniture, leasehold improvements, office equipment, plant, parts and other tangible personal property.
“PIPE Investment” has the meaning specified in the Recitals.
“PIPE Investors” has the meaning specified in the Recitals.
“PIPE Preferred Appointee Director” has the meaning specified in Section 6.19(a).
“PIPE Subscription Agreements” has the meaning specified in the Recitals.
“Post-Closing Purchaser Board” has the meaning specified in Section 6.19.
“Privacy Laws” means any Laws relating to privacy, data security, data breach notification, electronic and telephonic communications, the processing of Personal Information, and the Payment Card Industry Data Security Standard.
“Privacy Requirements” has the meaning specified in Section 4.14(g).
“Proprietary AI/ML” has the meaning specified in Section 4.14(h).
“Purchase Price” means $1,350,000,000.
“Purchaser” has the meaning specified in the Preamble.
“Purchaser Appointee Directors” has the meaning specified in Section 6.19(a).
“Purchaser Bylaws upon Domestication” has the meaning specified in the Recitals.
“Purchaser Charter upon Domestication” has the meaning specified in the Recitals.
“Purchaser Class A Ordinary Shares” means prior to the Domestication, Class A ordinary shares of the Purchaser of a nominal or par value of $0.0001 per share.
“Purchaser Class B Ordinary Shares” means prior to the Domestication, Class B ordinary shares of the Purchaser of a nominal or par value of $0.0001 per share.
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“Purchaser Confidential Information” means all confidential or proprietary documents and information concerning the Purchaser or any of its Representatives; provided, however, that Purchaser Confidential Information shall not include any information which, (a) at the time of disclosure by the Company or any of its Representatives, is generally available publicly and was not disclosed in breach of this Agreement or (b) at the time of the disclosure by the Purchaser or its Representatives to the Company or any of its Representatives, was previously known by such receiving party without violation of Law or any confidentiality obligation by the Person receiving such Purchaser Confidential Information. For the avoidance of doubt, from and after the Closing, Purchaser Confidential Information will include the Company Confidential Information.
“Purchaser Disclosure Letter” has the meaning specified in the Preamble to Article V.
“Purchaser ESPP” has the meaning specified in Section 6.15(a).
“Purchaser Expense Reimbursement” has the meaning set forth in Section 6.14(c)(iv).
“Purchaser Incentive Award Plan” has the meaning specified in Section 6.15(a).
“Purchaser Material Adverse Effect” means any Event that, individually or when aggregated with other Events, (a) has had a materially adverse effect on the business, assets, financial condition or results of operations of the Purchaser or (b) does or would reasonably be expected to prevent, materially delay or materially impede the ability of the Purchaser or Merger Sub to consummate the Transactions; provided, however, that no change or effect related to any of the following, alone or in combination, shall be taken into account in determining whether there has been or will be a “Purchaser Material Adverse Effect”: (i) the announcement of this Agreement and consummation of the Transactions; (ii) the taking of any action required by this Agreement or any Ancillary Document; (iii) any natural disaster (including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions or similar occurrences), pandemic (including COVID-19) or material and adverse change in climate, (iv) any acts of terrorism or war, military action, sabotage, the outbreak or escalation of hostilities, geopolitical conditions, local, national or international political conditions, including any escalation or worsening thereof; (v) the Redemption; (vi) any breach of any covenants, agreements or obligations of any investor in any PIPE Investment, in each case who is not Purchaser or an Affiliate of Purchaser, under any PIPE Subscription Agreement or similar agreement related to financing the Company or Purchaser (including any breach of such Person’s obligations to fund any amounts thereunder when required); (vii) changes or proposed changes in applicable Law, regulations or interpretations thereof or decisions by courts or any Governmental Authority after the date of this Agreement; (viii) changes or proposed changes in GAAP (or any interpretation thereof) after the date of this Agreement; or (ix) any downturn in general economic conditions, including changes in the credit, debt, securities, financial, capital or reinsurance markets (including changes in interest or exchange rates, prices of any security, a blanket suspension of trading in securities or any securities exchange by a Governmental Authority, or market index or commodity or any disruption of such markets), in each case, in the United States or anywhere else in the world.
“Purchaser Modification in Recommendation” has the meaning specified in Section 6.14(b)(ii).
“Purchaser Option” has the meaning specified in Section 2.02(a)(iii).
“Purchaser Ordinary Shares” means the Purchaser Class A Ordinary Shares and the Purchaser Class B Ordinary Shares.
“Purchaser Preference Shares” means prior to the Domestication, preference shares of the Purchaser of a nominal or par value of $0.0001 per share.
“Purchaser Related Person” means any officer, director, manager, employee or trustee of the Purchaser or its Affiliates.
“Purchaser SEC Reports” has the meaning specified in Section 5.06(a).
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“Purchaser Shareholder Approval” means the approval of (a) the Transaction Proposal identified in clause (B) Section 6.14(b)(ii) by special resolution under Cayman Islands Law, being a resolution passed by a majority of not less than two-thirds of the outstanding Purchaser Class B Ordinary Shares entitled to vote in person or, where proxies are allowed, by proxy, who attend and vote thereupon (as determined in accordance with the Purchaser’s Organizational Documents) at the Purchaser Shareholders’ Meeting, (b) the Transaction Proposal identified in clause (C) of Section 6.14(b)(ii) by special resolution under Cayman Islands Law, being a resolution passed by a majority of not less than two-thirds of the outstanding Purchaser Ordinary Shares entitled to vote in person or, where proxies are allowed, by proxy, who attend and vote thereupon (as determined in accordance with the Purchaser’s Organizational Documents) at the Purchaser Shareholders’ Meeting, (c) those Transaction Proposals identified in clauses (A), (D), (E), (F), (H), and (I) of Section 6.14(b)(ii), in each case, by an ordinary resolution under Cayman Islands Law, being a resolution passed by a simple majority of the outstanding Purchaser Ordinary Shares entitled to vote in person or, where proxies are allowed, by proxy, who attend and vote thereupon (as determined in accordance with the Purchaser’s Organizational Documents), (or if required by applicable Law, or the Purchaser’s Organizational Documents as a special resolution, being a resolution passed by a majority of not less than two-thirds of the outstanding Purchaser Ordinary Shares entitled to vote in person or, where proxies are allowed, by proxy, who attend and vote thereupon (as determined in accordance with the Purchaser’s Organizational Documents) at the Purchaser Shareholders’ Meeting), (d) the Transaction Proposal identified in clause (G) of Section 6.14(b)(ii) by an ordinary resolution under Cayman Islands Law, being a resolution passed by a simple majority of the outstanding Purchaser Class B Ordinary Shares entitled to vote in person or, where proxies are allowed, by proxy, who attend and vote thereupon (as determined in accordance with the Purchaser’s Organizational Documents) at the Purchaser Shareholders’ Meeting and (e) with respect to any other proposal proposed to the Purchaser Shareholders, the requisite approval required under the Purchaser’s Organizational Documents, the Cayman Companies Act or any other applicable Law, in each case, at a Purchaser Shareholders’ Meeting.
“Purchaser Shareholders” means the holders of Purchaser Ordinary Shares.
“Purchaser Shareholders’ Meeting” has the meaning specified in Section 6.14(b)(i).
“Purchaser Transaction Costs” means: (a) all fees, costs and expenses of the Purchaser incurred prior to and through the Closing Date in connection with the negotiation, preparation and execution of this Agreement, the other Ancillary Documents and the consummation of the Transactions, whether paid or unpaid prior to the Closing, including any and all professional or transaction related costs, fees and expenses of legal, accounting and financial advisors, consultants, auditors, accountants and brokers, including any deferred underwriting commissions being held in the Trust Account; (b) any Indebtedness of the Purchaser owed to its Affiliates or shareholders; (c) 50% of the fees related to the filing of the Registration Statement; and (d) 50% of all fees or other amounts charged by any Governmental Authorities relating to filings or applications made in accordance with Section 6.09(b).
“Redemption” has the meaning specified in Section 6.14(b)(iv).
“Registration Statement” means the Registration Statement on Form S-4, or other appropriate form, including any pre-effective or post-effective amendments or supplements thereto, to be filed with the SEC by Purchaser under the Securities Act with respect to the Registration Statement Securities.
“Registration Statement Securities” has the meaning specified in Section 6.14(a)(i).
“Related Person” means any officer, director, manager, employee, trustee or beneficiary of a Target Company or any of its Affiliates and any immediate family member of any of the foregoing.
“Release” means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, or leaching into the indoor or outdoor environment, or into or out of any property.
“Remedial Legal Proceeding” means all actions required by a Governmental Authority to (a) clean up, remove, treat, monitor, study, investigate or in any other way address any Release of Hazardous Material, (b) prevent the Release of any Hazardous Material so it does not violate any Environmental Law, or (c) correct a condition of noncompliance with Environmental Laws.
“Representatives” means, as to any Person, such Person’s Affiliates and the respective managers, directors, officers, employees, independent contractors, consultants, advisors (including financial advisors, counsel and accountants), agents and other legal representatives of such Person or its Affiliates.
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“Requisite Stockholder Approval” means the approval of this Agreement and the Transactions, including the Merger, by the affirmative vote or written consent of the stockholders of the Company, pursuant to the terms and in accordance with and satisfaction of the conditions of the Company’s Organizational Documents and applicable Law.
“Sanctioned Jurisdiction” means, at any time, a country or territory that is the target of Sanctions (as of the date of this Agreement, Cuba, Iran, North Korea, and the Crimea, the so-called Donetsk People’s Republic, and the so-called Luhansk People’s Republic regions of Ukraine, and prior to July 1, 2025, Syria).
“Sanctioned Person” means any Person that is the target of Sanctions, including (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC or the U.S. Department of State, the United Nations Security Council, the European Union, any Member State of the European Union, or the United Kingdom; (b) any Person operating, organized, or resident in a Sanctioned Jurisdiction; (c) the government of a Sanctioned Jurisdiction or the Government of Venezuela; (d) any Person fifty percent (50%) or more owned or controlled by any such Person or Persons or acting for or on behalf of such Person or Persons; or (e) any Person otherwise the subject or target of any Sanctions.
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the United States (including OFAC and the U.S. Department of State), the United Nations Security Council, the European Union, any European Union Member State, the United Kingdom, Japan and any other jurisdiction in which the Target Companies operate.
“SEC” means the U.S. Securities and Exchange Commission (or any successor Governmental Authority).
“Second Merger” has the meaning specified in Section 6.11(a).
“Securities Act” means the Securities Act of 1933, as amended.
“Seller Voting and Support Agreement” means a Seller Voting and Support Agreement, by and among the Purchaser, the Company and a Seller, pursuant to which, among other things, such Seller has agreed to take customary and reasonable actions in support of and, upon the effectiveness of the Registration Statement, vote or consent to adopt and approve this Agreement and the other documents contemplated hereby to which such Seller is or will be a party (including the applicable Ancillary Documents) and the Transactions.
“Sellers” shall mean those holders of equity securities of the Company, collectively.
“Series A Preferred Stock Certificate of Designation” has the meaning specified in the Recitals.
“Services Agreement” has the meaning specified in Section 5.12(b).
“Signing Filing” has the meaning specified in Section 6.16(b).
“Signing Press Release” has the meaning specified in Section 6.16(b).
“Software” means any and all (i) computer software, firmware and computer programs and applications, including all middleware, utilities, computer programs, application programming interfaces, algorithms, plugins, libraries, subroutines, tools, drivers, microcode, scripts, batch files, instruction sets and macros, models, and methodologies, in each case of the foregoing whether in source code, executable or object code form, and all software modules, tools and databases; and (ii) deep learning, machine learning, and other artificial intelligence technologies (collectively, “AI/ML”).
“SPAC Group” has the meaning specified in Section 9.14(a).
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“SPAC Privileged Materials” has the meaning specified in Section 9.14(a).
“Sponsor” means Union Street Sponsor, LLC, a Delaware limited liability company.
“Sponsor Indemnitee” has the meaning set forth in Section 6.26.
“Sponsor Share Conversion” has the meaning specified in the Recitals hereto.
“Sponsor Support Agreement” means that certain Sponsor Support Agreement, dated as of September 15, 2026 (as it may be amended or supplemented from time to time), by and between the Sponsor, the Company, the Purchaser and the other parties thereto.
“Subsidiary” means, with respect to any Person, any corporation, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, association or other business entity, a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons will be deemed to have a majority ownership interest in a partnership, association or other business entity if such Person or Persons will be allocated a majority of partnership, association or other business entity gains or losses or will be or control the managing director, managing member, general partner or other managing Person of such partnership, association or other business entity. A Subsidiary of a Person will also include any variable interest entity which is consolidated with such Person under applicable accounting rules.
“Surviving Corporation” has the meaning specified in the Recitals hereto.
“SVSA Requirements” means provisions contemplating the following: (i) an acknowledgement that such Seller has received and reviewed a copy of this Agreement; (ii) an agreement by such Seller to vote (or cause to be voted), or execute and promptly deliver a written consent (or cause a written consent to be executed and promptly delivered) covering, all of such Seller’s Company Securities which are entitled to vote: (A) to approve and adopt this Agreement and the consummation of the Transactions, (B) against any Alternative Transaction or any proposal relating to an Alternative Transaction, (C) to convert all outstanding shares of Company Preferred Stock held by such Seller into Company Common Stock as of immediately prior to the Effective Time, (D) against any proposal, action or agreement that would (1) impede, interfere, frustrate, prevent or nullify any provision of this Agreement or the Transactions, (2) result in any of the conditions set forth in Article VII of this Agreement not being fulfilled or (3) result in a breach of any covenant, representation or warranty or other obligation or agreement of such Seller contained in such Seller Voting and Support Agreement or any Ancillary Document such Seller is or will be party to; (iii) an agreement by such Seller, solely in its capacity as a stockholder of the Company, not to commence, join in, facilitate, assist or encourage, and an agreement to take all actions reasonably necessary to opt out of any class in any class action with respect to, any Legal Proceeding, against the Purchaser, the Company or any of their respective successors or directors (A) challenging the validity of, or seeking to enjoin the operation of, any provision of such Seller Voting and Support Agreement or this Agreement or (B) alleging a breach of any fiduciary duty of any person in connection with the evaluation, negotiation or entry into such Seller Voting and Support Agreement, this Agreement or the Transactions; (iv) a waiver by such Seller of any rights of appraisal or rights to dissent from the Transactions that such Seller may have with respect to such Seller’s Company Securities under applicable Law; (v) an agreement by such Seller not to (A) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any Company Securities owned by such Seller or (B) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Company Securities owned by such Seller; and (vi) to the extent applicable to such Seller, an agreement by such Seller to terminate, subject to the occurrence of the Effective Time, any rights under any letter agreement providing for redemption rights, put rights, purchase rights, information rights, rights to consult with and advise management, inspection rights, preemptive rights, Company board of directors observer rights or rights to receive information delivered to the Company board of directors or other similar rights not generally available to stockholders of the Company between such Seller and the Company, but excluding, for the avoidance of doubt, any rights such Seller may have that relate to any commercial, business, technology or employment agreements or arrangements between such Seller (or any of its Affiliates) and the Company or any other Target Company, which shall survive in accordance with their terms; provided, that in each case of (i)-(vi), as any such acknowledgement, agreement or waiver, as applicable, may be reasonably conditioned as determined by the Company and the Purchaser in good faith to be acceptable (such acceptance not to be unreasonably withheld, conditioned or delayed).
“SVSA Signatory” means each (i) current officer, director and Affiliate of the Company, and (ii) Seller holding Company Securities representing, together with such Seller’s Affiliates, 5% or more of the outstanding voting power.
“Target Companies” means, collectively, the Company and the Company Subsidiaries.
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“Tax Return” means any return, form, declaration, election, disclosure, report, claim for refund, information return or other documents (including any related or supporting schedules, statements or information) filed or required to be filed in connection with the determination, assessment or collection of any Taxes or the administration of any Laws or administrative requirements relating to any Taxes.
“Taxes” means all direct or indirect federal, state, local, foreign and other net income, gross income, gross receipts, sales, use, value-added, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, social security and related contributions due in relation to the payment of compensation to employees, excise, severance, stamp, occupation, premium, property, windfall profits, alternative minimum, estimated, customs, duties or other taxes, fees, assessments or charges in the nature of a tax, together with any interest and any penalties, additions to tax or additional amounts with respect thereto imposed by a Governmental Authority.
“Third-Party Datasets” has the meaning specified in Section 4.14(h).
“Top Customers” has the meaning set forth in Section 4.23(a).
“Top Suppliers” has the meaning set forth in Section 4.23(b).
“Trade Secrets” means any trade secrets, confidential business information, designs, research or development information, processes, techniques, technical information, specifications, engineering drawings, methods, know-how, mask works, discoveries and inventions (whether or not patentable or subject to Copyright, Trademark, or trade secret protection).
“Trademarks” has the meaning set forth in the definition of “Intellectual Property”.
“Transaction Proposals” has the meaning specified in Section 6.14(b)(ii).
“Transactions” has the meaning specified in the Recitals.
“Transfer Taxes” has the meaning specified in Section 6.11(c).
“Treasury Regulations” means the regulations (including temporary regulations) promulgated by the United States Department of the Treasury pursuant to and in respect of provisions of the Code. All references herein to sections of the Treasury Regulations shall include any corresponding provisions or provisions of succeeding, similar or substitute, temporary or final Treasury Regulations.
“Trust Account” means that certain trust account established and maintained by Trustee pursuant to the terms of the Trust Agreement.
“Trust Agreement” has the meaning specified in Section 5.14.
“Trustee” has the meaning specified in Section 5.14.
“Updated Financial Statements” has the meaning specified in Section 6.04.
“Vested Company Option” means a Company Option to the extent that it is vested and outstanding immediately prior to the Effective Time.
“Warrant Agreement” means that certain Warrant Agreement, dated as of April 6, 2026, by and between the Purchaser and Odyssey, as warrant agent.
“Written Consent” has the meaning specified in Section 6.14(c)(i).
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IN WITNESS WHEREOF, each Party hereto has caused this Business Combination Agreement to be signed and delivered as of the date first written above.
| The Purchaser: | ||
| ACP HOLDINGS ACQUISITION CORP. | ||
| By: | /s/ Andrew Mallozzi |
|
| Name: | Andrew Mallozzi | |
| Title: | Chief Executive Officer | |
| Merger Sub: | ||
| Maestro Merger Sub, inc. | ||
| By: | /s/ Andrew Mallozzi | |
| Name: | Andrew Mallozzi | |
| Title: | President | |
| The Company: | ||
| May MOBILITY, INC. | ||
| By: | /s/ Edwin Olson | |
| Name: | Edwin Olson, Ph.D. | |
| Title: | Chief Executive Officer | |
{Signature Page to Business Combination Agreement}
EXHIBIT A
Purchaser Charter upon Domestication
EXHIBIT B
Purchaser Bylaws upon Domestication
EXHIBIT C
Certificate of Merger
EXHIBIT D
Series A Preferred Stock Certificate of Designation
EXHIBIT E
Domesticated Purchaser PIPE Investor Warrants
EXHIBIT F
A&R Registration Rights Agreement
EXHIBIT G
Sponsor Lock-Up Agreement
EXHIBIT H
Cyrus Lock-Up Agreement
EXHIBIT I
Keyframe Lock-Up Agreement
EXHIBIT J
Certificate of Incorporation of Surviving Corporation
EXHIBIT K
Bylaws of Surviving Corporation
EXHIBIT L
Form SVSA
Exhibit 3.1
MAY MOBILITY, INC.
CERTIFICATE OF DESIGNATION OF PREFERENCES,
RIGHTS AND LIMITATIONS
OF
12.0% SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK
PURSUANT TO SECTION 151(g) OF THE
DELAWARE GENERAL CORPORATION LAW
The undersigned, [ ], does hereby certify that:
| 1. | He is the Chief Executive Officer of May Mobility, Inc., a Delaware corporation (the “Corporation”). |
| 2. | The Corporation is authorized to issue [●] shares of preferred stock, none of which have been issued. |
| 3. | The following resolutions were duly adopted by the board of directors of the Corporation (the “Board of Directors”): |
WHEREAS, the certificate of incorporation of the Corporation provides for a class of its authorized stock known as preferred stock, consisting of [●] shares, [$0.0001] par value per share, issuable from time to time in one or more series;
WHEREAS, the Board of Directors is authorized to fix the dividend rights, dividend rate, voting rights, conversion rights, rights and terms of redemption and liquidation preferences of any wholly unissued series of preferred stock and the number of shares constituting any series and the designation thereof, of any of them; and
WHEREAS, it is the desire of the Board of Directors, pursuant to its authority as aforesaid, to fix the rights, preferences, restrictions and other matters relating to a series of the preferred stock, which shall consist of up to [●] shares of the preferred stock which the Corporation has the authority to issue, as follows:
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby provide for the issuance of a series of preferred stock for cash or exchange of other securities, rights or property and does hereby fix and determine the rights, preferences, restrictions and other matters relating to such series of preferred stock as follows:
TERMS OF 12.0% SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK
Section 1. Definitions. For the purposes hereof, the following terms shall have the following meanings:
“Accrued Dividend” shall have the meaning set forth in Section 3(a).
“Accrued Value” means, as of any date, with respect to each share of Preferred Stock as of the determination date, the sum, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Preferred Stock, of (i) the Stated Value per share of Preferred Stock, plus (ii) the aggregate amount of any accrued PIK Dividends on such share of Preferred Stock as of such date, plus (iii) on each Semi-Annual Dividend Date and on a cumulative basis, an additional amount equal to the dollar value of all Accrued Dividends that have accrued on such share pursuant to Section 3(a), but only to the extent such Accrued Dividends have not been paid, whether or not declared, but that have not, as of such date, been added to the Accrued Value.
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 of the Securities Act.
“Alternate Consideration” shall have the meaning set forth in Section 7(f)(i).
“Alyeska” means Alyeska Master Fund I, LP and/or one or more of its Affiliates.
“Atlas Credit Partners” means Atlas Credit Partners, LLC and/or one or more of its Affiliates.
“Annual Rate” means with respect to a PIK Dividend, 12.0% of the Accrued Value and with respect to a Cash Dividend, 10.0% of the Accrued Value.
“Attribution Parties” shall have the meaning set forth in Section 6(d).
“Available Proceeds” shall have the meaning set forth in Section 5(c)(i).
“Beneficial Ownership Limitation” shall have the meaning set forth in Section 6(d).
“Business Combination” means the transactions contemplated by the Business Combination Agreement.
“Business Combination Agreement” means that certain Business Combination Agreement, dated as of [●], 2026, by and among the Corporation (or its predecessor), Maestro Merger Sub, Inc. and May Mobility, Inc., as it may be further amended, modified or supplemented from time to time.
“Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed.
“Buy-In” shall have the meaning set forth in Section 6(c)(iv).
“Call Date” shall have the meaning set forth in Section 8(a).
“Cash Dividend” shall have the meaning set forth in Section 3(a).
“Closing” means the closing of the Business Combination.
“Closing Date” means the Trading Day on which the Business Combination is consummated.
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“Commission” means the United States Securities and Exchange Commission.
“Common Stock” means the common stock, par value $0.0001 per share, of the Corporation and stock of any other class of securities into which such securities may hereafter be reclassified or changed.
“Common Stock Equivalents” means any securities of the Corporation that would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock, and any securities of the Corporation that when paired with one or more other securities of the Corporation or another entity entitles the holder thereof to receive, Common Stock.
“Conversion Date” shall have the meaning set forth in Section 6(a).
“Conversion Price” shall have the meaning set forth in Section 6(b).
“Conversion Shares” means, collectively, the shares of Common Stock issued and issuable upon conversion of the shares of Preferred Stock in accordance with the terms hereof.
“Convertible Securities” means any stock or securities (other than Options) directly or indirectly convertible into or exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock and any securities of the Corporation that when paired with one or more other securities of the Corporation or another entity entitles the holder thereof to receive, Common Stock.
“Corporation Notice” shall have the meaning set forth in Section 8(a)(iii).
“Cyrus” means, collectively, [Cyrus 1740 Master Fund, L.P., Cyrus Opportunities Master Fund II, LTD, Cyrus Select Opportunities Master Fund, LTD, Encinal Holdings Fund L.P., and Encinal Holdings E Fund L.P.] and/or one or more of their Affiliates.
“Deemed Liquidation Event” means: (i) a merger or consolidation in which (a) the Corporation is a constituent party or (b) a subsidiary of the Corporation is a constituent party and the Corporation issues shares of its capital stock pursuant to such merger or consolidation; provided, that, a Deemed Liquidation Event shall not include any such merger or consolidation involving the Corporation or a subsidiary in which the shares of capital stock of the Corporation outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or exchanged for shares of capital stock that represent, immediately following such merger or consolidation, at least a majority, by voting power, of the capital stock of (1) the surviving or resulting corporation; or (2) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such merger or consolidation, the parent corporation of such surviving or resulting corporation; or (ii) (a) the sale, in a single transaction or series of related transactions, by the Corporation or any subsidiary of the Corporation of all or substantially all the assets of the Corporation and its subsidiaries taken as a whole, or (b) the sale or disposition (whether by merger, consolidation or otherwise, and whether in a single transaction or a series of related transactions) of one (1) or more subsidiaries of the Corporation if substantially all of the assets of the Corporation and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale is to a wholly owned subsidiary of the Corporation.
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“Delaware Courts” shall have the meaning set forth in Section 9(d).
“Dilutive Issuance” shall have the meaning set forth in Section 7(c).
“Distribution” shall have the meaning set forth in Section 7(e).
“Effective Date” means the date that the Registration Statement filed by the Corporation pursuant to the Registration Rights Agreement is first declared effective by the Commission.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt Issuance” means the issuance of (a) any securities of the Corporation to employees, officers or directors of the Corporation pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Corporation, (b) securities upon the exercise or exchange of or conversion of any securities issued pursuant to the Purchase Agreements or the Business Combination Agreement and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the Closing Date, provided that such securities have not been amended since the Closing Date to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations and automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such securities which are not more favorable to the holder thereof than the anti-dilution and similar provisions set forth herein) or to extend the term of such securities, (c) the Conversion Shares and (d) securities issued pursuant to any merger, acquisition or strategic transaction or partnership approved by a majority of the directors of the Corporation, provided that (i) such securities are issued as “restricted securities” (as defined in Rule 144) or are issued pursuant to an effective registration statement pursuant to the Securities Act and (ii) any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Corporation and shall provide to the Corporation additional benefits in addition to the investment of funds, but any such Exempt Issuance shall not include a transaction in which the Corporation is issuing securities (i) primarily for the purpose of raising capital, including an at-the-market offering, or (ii) to an entity whose primary business is investing in securities.
“Floor Price” means the lesser of (i) $5.00 (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction occurring after the date of the Purchase Agreements) and (ii) the Conversion Price then in effect.
“Fundamental Transaction” shall have the meaning set forth in Section 7(f)(i).
“Holder” shall have the meaning set forth in Section 2(a).
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“Junior Securities” shall have the meaning set forth in Section 5(a).
“Minimum Number of Preferred Stock” means, with respect to any Principal Investor, 50% of the number of shares of Preferred Stock originally issued to such Principal Investor on the Closing Date, as adjusted for any stock split, stock dividend, combination, recapitalization or similar event.
“New Issuance Price” shall have the meaning set forth in Section 7(c).
“Notice of Conversion” shall have the meaning set forth in Section 6(a).
“Oaktree” means Value Opportunities Fund Holdings, L.P. and/or one or more of its Affiliates.
“Options” means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities.
“Option Value” means the value of an Option based on the Black-Scholes Option Pricing model obtained from the “OV” function on Bloomberg determined as of (A) the Trading Day prior to the public announcement of the issuance of the applicable Option, if the issuance of such Option is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Option if the issuance of such Option is not publicly announced, for pricing purposes and reflecting (i) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of the applicable Option as of the applicable date of determination, (ii) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg as of (A) the Trading Day immediately following the public announcement of the applicable Option if the issuance of such Option is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Option if the issuance of such Option is not publicly announced, (iii) the underlying price per share used in such calculation shall be the highest weighted average price of the Common Stock during the period beginning on the Trading Day prior to the execution of definitive documentation relating to the issuance of the applicable Option and ending on (A) the Trading Day immediately following the public announcement of such issuance, if the issuance of such Option is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Option if the issuance of such Option is not publicly announced, (iv) a zero cost of borrow and (v) a 360 day annualization factor, provided, however, in case any Option is issued in connection with the issue or sale of other securities of the Corporation, together comprising one integrated transaction, in no event shall the Option Value exceed a fraction of the aggregate consideration received (excluding the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Corporation upon the exercise of such Options, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities) equal to (1) the number of shares of Common Stock underlying such Option divided by (2) the total number of shares of Common Stock issued or issuable in the integrated transaction (including the number of shares underlying such Option).
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“Original Issue Date” means the date of the first issuance of any shares of the Preferred Stock regardless of the number of transfers of any particular shares of Preferred Stock and regardless of the number of certificates which may be issued to evidence such Preferred Stock.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“PIK Dividend” shall have the meaning set forth in Section 3(a).
“Preferred Stock” shall have the meaning set forth in Section 2(a).
“Preferred Stock Liquidation Amount” shall have the meaning set forth in Section 5(b)(ii).
“Preferred Stock Register” shall have the meaning set forth in Section 2(b).
“Principal Investor” means each of Alyeska, Atlas Credit Partners, Cyrus and Oaktree.
“Purchase Agreements” means the several Securities Purchase Agreements, between the Corporation and certain original Holders, as amended, modified or supplemented from time to time in accordance with their respective terms.
“Purchase Rights” shall have the meaning set forth in Section 7(d).
“Redemption Date” shall have the meaning set forth in Section 8(b)(i).
“Redemption Notice” shall have the meaning set forth in Section 8(b)(ii).
“Redemption Price” shall have the meaning set forth in Section 8(b)(i).
“Redemption Request” shall have the meaning set forth in Section 8(b)(i).
“Registration Rights Agreement” means the Registration Rights Agreement, dated as of the Closing Date, among the Corporation, the original Holders and certain other securityholders of the Corporation.
“Registration Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering the resale of the Conversion Shares by each Holder as provided for in the Registration Rights Agreement, including the Initial Registration Statement (as defined in the Registration Rights Agreement) and any additional Registration Statements which may be required thereunder.
“Required Holders” means the holders of at least a majority of the issued and outstanding shares of the Preferred Stock, which majority must include each Principal Investor, for so long as each such Principal Investor then holds at least the Minimum Number of Preferred Stock applicable to such Principal Investor.
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“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Semi-Annual Dividend Date” shall mean June 1 and December 1 of each year.
“Share Delivery Date” shall have the meaning set forth in Section 6(c)(i).
“Standard Settlement Period” shall have the meaning set forth in Section 6(c)(i).
“Stated Value” shall have the meaning set forth in Section 2(a).
“Successor Entity” shall have the meaning set forth in Section 7(f)(iii).
“Trading Day” means a day on which the principal Trading Market is open for trading.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange (or any successors to any of the foregoing), which, as of the Closing Date, shall be the Nasdaq [___] Market.
“Transfer Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Corporation, and any successor transfer agent of the Corporation.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the arithmetic mean of the daily volume weighted average prices of the Common Stock for each of the 20 Trading Days preceding such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), with each such Trading Day weighted equally regardless of the aggregate trading volume for such Trading Day, (b) if OTCQB or OTCQX is not a Trading Market, the arithmetic mean of the daily volume weighted average prices of the Common Stock for each of the 20 Trading Days preceding such date (or the nearest preceding date) on OTCQB, OTCQX or OTCID as applicable, calculated in the same manner as clause (a), (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported in The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the average of the highest closing bid price and the lowest closing ask price of the Common Stock for the 20 Trading Days preceding such date, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Required Holders and reasonably acceptable to the Corporation, the fees and expenses of which shall be paid by the Corporation. For the avoidance of doubt, the daily volume weighted average price for each individual Trading Day shall be determined by Bloomberg L.P. in accordance with its standard methodology, and the VWAP for the applicable period shall be calculated by summing such daily values and dividing by the number of Trading Days in the measurement period (i.e., 20 Trading Days), such that each Trading Day’s price is given equal weight irrespective of trading volume.
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Section 2. Designation, Amount and Par Value.
(a) The series of preferred stock shall be designated as its “12.0% Series A Cumulative Convertible Preferred Stock” (the “Preferred Stock”) and the number of shares so designated shall be up to [●] (which shall not be subject to increase without the written consent of a majority of the then outstanding Preferred Stock (each, a “Holder” and collectively, the “Holders”)). Each share of Preferred Stock shall have a par value of [$0.0001] per share and a stated value equal to $12.00 (the “Stated Value”).
(b) The Corporation shall register, or cause its Transfer Agent to register, shares of the Preferred Stock upon records to be maintained by the Corporation or its Transfer Agent for that purpose (the “Preferred Stock Register”), in the name of the Holders thereof from time to time. The Corporation may deem and treat the registered Holder of shares of Preferred Stock as the absolute owner thereof for the purpose of any conversion thereof and for all other purposes. The Corporation shall register, or cause its Transfer Agent to register, the transfer of any shares of Preferred Stock in the Preferred Stock Register, upon surrender of the certificates evidencing such shares to be transferred, duly endorsed by the Holder thereof, to the Corporation at its address specified in the Corporation’s most recently filed Current Report on Form 8-K and after such Holder shall have provided to the Corporation such documentation and legal opinions, if any, as may be reasonably requested by the Corporation (including any documentation required by the Transfer Agent with respect to such transfer). Upon the registration of such transfer, a new certificate (to the extent such shares are certificated) evidencing the shares of Preferred Stock so transferred shall be issued to the transferee and a new certificate evidencing the remaining portion of the shares not so transferred, if any, shall be issued to the transferring Holder, in each case, within three Business Days. The Board of Directors may provide by resolution or resolutions that some or all of the Preferred Stock shall be uncertificated shares. The Corporation shall not be required to register, or cause its Transfer Agent to register, or record any transfer of any shares of the Preferred Stock that would violate, conflict with, or fail to be in compliance with federal or state securities laws.
Section 3. Dividends.
(a) From and after the Closing, subject to the terms of this Section 3, cumulative dividends shall accrue on the Accrued Value of each share of Preferred Stock at the Annual Rate. Dividends on each share of Preferred Stock shall be cumulative and shall accrue daily from and after the Closing, but shall compound on a semi-annual basis on each Semi-Annual Dividend Date (each, an “Accrued Dividend”) whether or not earned or declared, and whether or not there are earnings or profits, surplus, or other funds or assets of the Corporation legally available for the payment of dividends. Each Accrued Dividend shall be paid, at the election of the Corporation, (i) in cash (a “Cash Dividend”), or (ii) in kind by increasing the Accrued Value of such share (a “PIK Dividend”).
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(b) The Corporation shall not declare, pay or set aside any dividends on shares of any other class or series of capital stock of the Corporation ranking junior to the Preferred Stock (other than dividends on Junior Securities payable in Junior Securities) unless (in addition to the obtaining of any consents required in this Certificate of Designation or the Corporation’s certificate of incorporation) the Holders of the Preferred Stock then outstanding shall first receive, or simultaneously receive, a dividend on each outstanding share of Preferred Stock in an amount at least equal to the sum of (i) the amount of the aggregate Accrued Dividends then accrued on such share of Preferred Stock and not previously paid and (ii) (A) in the case of a dividend on Common Stock or any class or series that is convertible into Common Stock, that dividend per share of Preferred Stock as would equal the product of (1) the dividend payable on each share of such class or series determined, if applicable, as if all shares of such class or series had been converted into Common Stock and (2) the number of shares of Common Stock issuable upon conversion of a share of Series A Cumulative Convertible Preferred Stock without giving effect to any limitation on conversion, including, without limitation, the Beneficial Ownership Limitation, in each case calculated on the record date for determination of holders entitled to receive such dividend or (B) in the case of a dividend on any class or series of capital stock of the Corporation ranking junior to the Preferred Stock that is not convertible into Common Stock, at a rate per share of Preferred Stock determined by (1) dividing the amount of the dividend payable on each share of such class or series of capital stock by the original issuance price of such class or series of capital stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series) and (2) multiplying such fraction by an amount equal to the Accrued Value; provided that if the Corporation declares, pays or sets aside, on the same date, a dividend on shares of more than one class or series of capital stock of the Corporation that is junior to the Preferred Stock, the dividend payable to the Holders of Preferred Stock pursuant to this Section 3 shall be calculated based upon the dividend on the class or series of capital stock that would result in the highest Preferred Stock dividend.
(c) Subject to Section 5 and Section 7, the Holders shall be entitled to receive, and the Corporation shall pay, dividends on shares of Preferred Stock (other than Accrued Dividends), on an as-converted basis, equal to and in the same form as dividends actually paid on shares of the Common Stock when, as and if such dividends are paid on shares of the Common Stock.
(d) Notwithstanding anything to the contrary herein, to the extent that the Holder’s right to participate in any dividend would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such dividend to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such dividend shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation.
Section 4. Voting Rights.
(a) The Holders shall be entitled to notice of any meeting of stockholders of the Corporation and, except as otherwise required by law or as may be provided herein, shall vote together with the holders of Common Stock as a single class upon any matter submitted to the stockholders for a vote.
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(b) On any matter presented to the stockholders of the Corporation for their action or consideration at any meeting of the stockholders of the Corporation (or by written consent in lieu of a meeting), a Holder, together with its Attribution Parties, shall be entitled to the number of votes equal to the number of whole shares of Common Stock into which the shares of Preferred Stock held by such Holder, together with its Attribution Parties, are convertible on the record date for determining stockholders entitled to vote on such matter (as adjusted from time to time pursuant to Section 7 hereof and subject to the Beneficial Ownership Limitation), or as to whether sufficient shares of Common Stock are available out of the Corporation’s authorized but unissued stock, for the purpose of effecting the conversion of the Preferred Stock.
(c) As long as at least [___]1 shares of Preferred Stock remain outstanding (subject to appropriate adjustment in the event of any stock dividend, stock split, combination, or other similar recapitalization with respect to the Preferred Stock), the Corporation shall not, without the affirmative vote or action by written consent of the Required Holders, either directly or indirectly by amendment, merger, consolidation, domestication, transfer of the Corporation, continuance, reorganization, recapitalization, reclassification, waiver, statutory conversion, or otherwise, and any such act or transaction that has not been approved by such consent or vote prior to such act or transaction being effected shall be null and void ab initio, and of no force or effect:
(i) liquidate, dissolve or wind-up the affairs of the Corporation;
(ii) enter into any transaction with an Affiliate, other than (A) any transaction with a wholly owned subsidiary of the Corporation or (B) the issuance of equity or awards to eligible participants under the Corporation’s incentive plan, equity plan or equity-based compensation plan or with respect to employment, consulting or award agreements with respect to executive officers of the Corporation, in each case regardless of whether such person (or such person’s Affiliates) would be considered an Affiliate of the Corporation; or
(iii) incur or guarantee any new indebtedness other than equipment leases or trade payables incurred in the ordinary course of business; provided, however, that the Preferred Stock shall not be considered indebtedness for purposes of this calculation.
(d) As long as at least [___]2 shares of Preferred Stock remain outstanding (subject to appropriate adjustment in the event of any stock dividend, stock split, combination, or other similar recapitalization with respect to the Preferred Stock), the Corporation shall not, without the affirmative vote or action by written consent of the Required Holders, either directly or indirectly by amendment, merger, consolidation, domestication, transfer of the Corporation, continuance, reorganization, recapitalization, reclassification, waiver, statutory conversion, or otherwise, and any such act or transaction that has not been approved by such consent or vote prior to such act or transaction being effected shall be null and void ab initio, and of no force or effect:
(i) amend, alter or repeal the Corporation’s certificate of incorporation or bylaws, this Certificate of Designation or any similar document of the Corporation (A) in a manner that materially and adversely affects the powers, preferences or rights given to the Preferred Stock, or (B) to increase or decrease the aggregate number of authorized shares of Preferred Stock;
(ii) create any equity security, authorize the creation of any equity security, classify any equity security, reclassify any equity security, or issue any other security convertible into or exercisable for any equity security, unless such security ranks junior to the Preferred Stock with respect to its rights, preferences and privileges or increase the number of authorized shares of Preferred Stock;
| 1 | NTD: To equal [20]% of the shares of Preferred Stock issued as of the Closing. |
| 2 | NTD: To equal [5]% of the shares of Preferred Stock issued as of the Closing. |
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(iii) except as set forth in Section 3, purchase or redeem or pay any cash dividend on any capital stock of the Corporation ranking junior to the Preferred Stock prior to payment of such cash dividend on the Preferred Stock or purchase or redeem any capital stock of the Corporation ranking junior to the Preferred Stock, other than capital stock repurchased at cost from former employees and consultants in connection with the cessation of their service or pursuant to the terms of any equity incentive plan of the Corporation.
(e) Notwithstanding anything to the contrary herein, Sections 6(c) and 6(d) may not be amended, modified or waived in any manner that materially and adversely affects a Holder of Preferred Stock without such Holder’s consent.
Section 5. Ranking; Liquidation.
(a) The Preferred Stock shall rank senior to all of the Common Stock and any other class or series of capital stock of the Corporation currently existing or hereafter authorized, classified or reclassified by the Corporation (collectively, “Junior Securities”), in each case, as to rights to receive dividends or to participate in distributions of assets or payments upon liquidation, dissolution or winding up of the Corporation, whether voluntarily or involuntarily.
(b) Preferential Payments to Holders of Preferred Stock; Distribution of Remaining Assets.
(i) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the Holders of shares of Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders, and in the event of a Deemed Liquidation Event, the Holders of shares of Preferred Stock then outstanding shall be entitled to be paid out of the consideration payable to stockholders in such Deemed Liquidation Event or out of the Available Proceeds (as defined below), as applicable, before any payment shall be made to the holders of Common Stock or other Junior Securities by reason of their ownership thereof, an amount per share equal to the greater of (i) 100% of the Accrued Value on each share of Preferred Stock or (ii) such amount per share as would have been payable had all shares of Preferred Stock been converted into Common Stock pursuant to Section 6 immediately prior to such liquidation, dissolution, winding up or Deemed Liquidation Event based on the then effective rate of conversion and without giving effect to the Beneficial Ownership Limitation or any other limitations on conversion set forth herein. If upon any such liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the Holders of shares of Preferred Stock the full amount to which they shall be entitled under this Section 5(b), the Holders of shares of Preferred Stock shall share ratably in any distribution of the assets available for distribution in proportion to the respective amounts that would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.
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(ii) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, after the payment in full of all amounts required to be paid to the holders of shares of Preferred Stock pursuant to Section 5(b)(i), the remaining assets of the Corporation available for distribution to its stockholders or, in the case of a Deemed Liquidation Event, the consideration not payable to the holders of shares of Preferred Stock pursuant to Section 5(b)(i) or the remaining Available Proceeds, as the case may be, shall be distributed among the holders of the shares of Preferred Stock, treating for this purpose all such securities as if they had been converted to Common Stock pursuant to the terms of this Certificate of Designation immediately prior to such liquidation, dissolution or winding up of the Corporation and without giving effect to the Beneficial Ownership Limitation or any other limitations on conversion set forth herein, and Common Stock, pro rata based on the number of shares held by each such holder. The aggregate amount which a holder of a share of Preferred Stock is entitled to receive under Sections 5(b)(i) and 5(b)(ii) is hereinafter referred to as the “Preferred Stock Liquidation Amount.”
(c) Deemed Liquidation Events.
(i) In the event of a Deemed Liquidation Event, if the Corporation does not effect a dissolution of the Corporation under the Delaware General Corporation Law within ninety (90) days after such Deemed Liquidation Event, then (i) the Corporation shall send a written notice to each Holder of Preferred Stock no later than the ninetieth (90th) day after the Deemed Liquidation Event advising such Holders of their right (and the requirements to be met to secure such right) pursuant to the terms of the following clause to require the redemption of such shares of Preferred Stock, and (ii) if the Required Holders so request in a written instrument delivered to the Corporation not later than one hundred twenty (120) days after such Deemed Liquidation Event, the Corporation shall use the consideration received by the Corporation for such Deemed Liquidation Event (net of any retained liabilities associated with the assets sold or technology licensed, or any other expenses associated with the Deemed Liquidation Event or the dissolution of the Corporation, in each case as determined in good faith by the Board of Directors of the Corporation), together with any other assets of the Corporation available for distribution to its stockholders, all to the extent permitted by Delaware law governing distributions to stockholders (the “Available Proceeds”), on the one hundred fiftieth (150th) day after such Deemed Liquidation Event, to redeem all outstanding shares of Preferred Stock at a price per share equal to the Preferred Stock Liquidation Amount. Notwithstanding the foregoing, in the event of a redemption pursuant to the preceding sentence, if the Available Proceeds are not sufficient to redeem all outstanding shares of Preferred Stock, the Corporation shall redeem a pro rata portion of each Holder’s shares of Preferred Stock to the fullest extent of such Available Proceeds, based on the respective amounts that would otherwise be payable in respect of the shares to be redeemed if the Available Proceeds were sufficient to redeem all such shares, and shall redeem the remaining shares as soon as it may lawfully do so under Delaware law governing distributions to stockholders. The provisions of Section 5(b)(i) shall apply, with such necessary changes in the details thereof as are necessitated by the context, to the redemption of the Preferred Stock pursuant to this Section 5(c)(i). Prior to the distribution or redemption provided for in this Section 5(c)(i), the Corporation shall not expend or dissipate the consideration received for such Deemed Liquidation Event, except to discharge expenses incurred in connection with such Deemed Liquidation Event.
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(ii) In any Deemed Liquidation Event, if Available Proceeds are in a form of property other than in cash, the value of such distribution shall be deemed to be the fair market value of such property. The determination of fair market value of such property shall be made in good faith by the Board of Directors of the Corporation, provided that to the extent such property consists of securities, the fair market value of such securities shall be determined as follows:
| a. | For securities not subject to investment letters or other similar restrictions on free marketability covered by Section 5(c)(ii)b below, the fair market value of such securities shall be the VWAP of such securities on the date of receipt (substituting the references to “Common Stock” in the definition of “VWAP” with such publicly traded security); and |
| b. | The method of valuation of securities subject to investment letters or other similar restrictions on free marketability (other than restrictions arising solely by virtue of a stockholder’s status as an affiliate or former affiliate) shall take into account an appropriate discount (as determined in good faith by the Board of Directors of the Corporation) from the market value as determined pursuant to Section 5(c)(ii)(a) above so as to reflect the approximate fair market value thereof. |
(iii) If any portion of the consideration payable to the stockholders of the Corporation is payable only upon satisfaction of contingencies (the “Additional Consideration”), (a) the portion of such consideration that is not Additional Consideration (such portion, the “Initial Consideration”) shall be allocated in accordance with the foregoing Section 5(b) and this Section 5(c) as if the Initial Consideration were the only consideration payable in connection with such Deemed Liquidation Event; and (b) any Additional Consideration which becomes payable to the stockholders of the Corporation upon satisfaction of such contingencies shall be allocated among the holders of capital stock of the Corporation in accordance with Sections 5(b) and 5(c) after taking into account the previous payment of the Initial Consideration as part of the same transaction. For the purposes of this Section 5(c)(iii), consideration placed into escrow or retained as a holdback to be available for satisfaction of indemnification or similar obligations in connection with such Deemed Liquidation Event shall be deemed to be Additional Consideration.
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Section 6. Conversion.
(a) Conversions at Option of Holder. Each share of Preferred Stock shall be convertible, at any time and from time to time from and after the Original Issue Date at the option of the Holder thereof, into that number of whole shares of Common Stock (subject to the limitations set forth in Section 6(d)) determined by dividing the Accrued Value of such share of Preferred Stock by the Conversion Price. Holders shall effect conversions by providing the Corporation with the form of conversion notice attached hereto as Annex A (a “Notice of Conversion”), unless the Corporation directs Holders that the Notice of Conversion shall be delivered to the Corporation’s transfer agent. Each Notice of Conversion shall specify the number of shares of Preferred Stock to be converted, the number of shares of Preferred Stock owned prior to the conversion at issue, the number of shares of Preferred Stock owned subsequent to the conversion at issue and the date on which such conversion is to be effected, which date may not be prior to the date the applicable Holder delivers by e-mail attachment or by a nationally recognized overnight courier service such Notice of Conversion to the Corporation (such date, the “Conversion Date”). If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion to the Corporation is deemed delivered hereunder. [No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required.] The calculations and entries set forth in the Notice of Conversion shall control in the absence of manifest or mathematical error. To effect conversions of shares of Preferred Stock, a Holder shall not be required to surrender the certificate(s) representing the shares of Preferred Stock to the Corporation unless all of the shares of Preferred Stock represented thereby are so converted, in which case such Holder shall deliver the certificate representing such shares of Preferred Stock promptly following the Conversion Date at issue. Shares of Preferred Stock converted into Common Stock or redeemed in accordance with the terms hereof shall be canceled and shall not be reissued, and all rights (other than the right to receive the Conversion Shares) with respect to such shares will terminate. The Corporation’s stock ledger and transfer book shall serve as the exclusive record of outstanding shares of Preferred Stock absent manifest error.
(b) Conversion Price. The initial conversion price is $12.00, subject to adjustment herein (the “Conversion Price”).
(c) Mechanics of Conversion
(i) Delivery of Conversion Shares Upon Conversion. Not later than the number of Trading Days comprising the Standard Settlement Period (as defined below) after each Conversion Date (the “Share Delivery Date”), the Corporation shall deliver, or cause to be delivered, to the converting Holder (A) the number of Conversion Shares being acquired upon the conversion of the Preferred Stock, which on or after the earlier of (i) the one year anniversary of the Original Issue Date or (ii) the Effective Date, shall be free of restrictive legends and trading restrictions (other than those which may then be required by any Purchase Agreement) and (B) cash in an amount equal to any accrued and unpaid dividends, if any. On or after the earlier of (i) the one year anniversary of the Original Issue Date or (ii) the Effective Date, the Corporation shall deliver the Conversion Shares required to be delivered by the Corporation under this Section 6 electronically through the Depository Trust Company or another established clearing corporation performing similar functions. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Corporation’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Conversion. Notwithstanding the foregoing, with respect to any Notice(s) of Conversion delivered at or prior to 12:00 p.m. (New York City time) on the Original Issue Date, the Corporation agrees to deliver the Conversion Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Original Issue Date.
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(ii) Failure to Deliver Conversion Shares. If, in the case of any Notice of Conversion, such Conversion Shares are not delivered to or as reasonably directed by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Corporation at any time on or before its receipt of such Conversion Shares, to rescind such conversion, in which event the Corporation shall promptly return to the Holder any original Preferred Stock certificate delivered to the Corporation and the Holder shall promptly return to the Corporation the Conversion Shares issued to such Holder pursuant to the rescinded Notice of Conversion.
(iii) Obligation Absolute; Partial Liquidated Damages. The Corporation’s obligation to issue and deliver the Conversion Shares upon conversion of Preferred Stock in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by a Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by such Holder or any other Person of any obligation to the Corporation or any violation or alleged violation of law by such Holder or any other person, and irrespective of any other circumstance which might otherwise limit such obligation of the Corporation to such Holder in connection with the issuance of such Conversion Shares; provided, however, that such delivery shall not operate as a waiver by the Corporation of any such action that the Corporation may have against such Holder. In the event a Holder shall elect to convert any or all of the Accrued Value of its Preferred Stock, the Corporation may not refuse conversion based on any claim that such Holder or anyone associated or affiliated with such Holder has been engaged in any violation of law, agreement or for any other reason, unless an injunction from a court, on notice to Holder, restraining and/or enjoining conversion of all or part of the Preferred Stock of such Holder shall have been sought and obtained, and the Corporation posts a surety bond for the benefit of such Holder in the amount of 150% of the Accrued Value of Preferred Stock which is subject to the injunction, which bond shall remain in effect until the completion of arbitration/litigation of the underlying dispute and the proceeds of which shall be payable to such Holder to the extent it obtains judgment. In the absence of such injunction, the Corporation shall issue Conversion Shares and, if applicable, cash, upon a properly noticed conversion. If the Corporation fails to deliver to a Holder, for any reason unrelated to the actions of the Holder or its Affiliates, such Conversion Shares pursuant to Section 6(c)(i) by the 10th Trading Day after the Share Delivery Date applicable to such conversion, the Corporation shall pay to such Holder, in cash, as liquidated damages and not as a penalty, for each $5,000 of Accrued Value of Preferred Stock being converted, $25 per Trading Day (increasing to $50 per Trading Day on the third Trading Day and increasing to $100 per Trading Day on the sixth Trading Day after such damages begin to accrue) for each Trading Day after the 10th Trading Day after the Share Delivery Date until such Conversion Shares are delivered or Holder rescinds such conversion. Nothing herein shall limit a Holder’s right to pursue actual damages for the Corporation’s failure to deliver Conversion Shares within the period specified herein and such Holder shall have the right to pursue all remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit a Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable law.
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(iv) Compensation for Buy-In on Failure to Timely Deliver Conversion Shares Upon Conversion. In addition to any other rights available to the Holder, if the Corporation fails for any reason unrelated to the actions of the Holder or its Affiliates to deliver to a Holder the applicable Conversion Shares by the Share Delivery Date pursuant to Section 6(c)(i), and if after such Share Delivery Date such Holder is required by its brokerage firm to purchase (in an open market transaction or otherwise), or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by such Holder of the Conversion Shares which such Holder was entitled to receive upon the conversion relating to such Share Delivery Date (a “Buy-In”), then the Corporation shall (A) pay in cash to such Holder (in addition to any other remedies available to or elected by such Holder) the amount, if any, by which (x) such Holder’s total purchase price (including any brokerage commissions) for the Common Stock so purchased exceeds (y) the product of (1) the aggregate number of shares of Common Stock that such Holder was entitled to receive from the conversion at issue multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (excluding any brokerage commissions) and (B) at the option of such Holder, either reissue (if surrendered) the shares of Preferred Stock equal to the number of shares of Preferred Stock submitted for conversion for which the conversion was not honored (in which case, such conversion shall be deemed rescinded) or deliver to such Holder the number of shares of Common Stock that would have been issued if the Corporation had timely complied with its delivery requirements under Section 6(c)(i). For example, if a Holder purchases shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted conversion of shares of Preferred Stock with respect to which the actual sale price of the Conversion Shares (including any applicable brokerage commissions) giving rise to such purchase obligation was a total of $10,000, under clause (A) of the immediately preceding sentence, the Corporation shall be required to pay such Holder $1,000. The Holder shall provide the Corporation written notice indicating the amounts payable to such Holder in respect of the Buy-In and, upon the request of the Corporation, evidence of the amount of such loss. If a Holder purchases shares of Common Stock having a total purchase price of $9,000 to cover a Buy-In with respect to an attempted conversion of shares of Preferred Stock with respect to which the actual sale price of the Conversion Shares (including any applicable brokerage commissions) giving rise to such purchase obligation was a total of $10,000, under clause (A) of the preceding sentence, the Corporation shall not be required to pay Holder any amount. For the avoidance of doubt, in the event of a Buy-In, the Holder shall use commercially reasonable efforts to purchase shares at the lowest available price, paying the lowest reasonably available brokerage commission. The Holder shall provide the Corporation written notice indicating the amounts payable to such Holder in respect of the Buy-In and evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Corporation’s failure to timely deliver Conversion Shares upon conversion of the shares of Preferred Stock as required pursuant to the terms hereof.
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(v) Reservation of Shares Issuable Upon Conversion. The Corporation covenants that it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock for the sole purpose of issuance upon conversion of the Preferred Stock as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holder (and the other Holders of the Preferred Stock), not less than such aggregate number of shares of the Common Stock as shall (subject to the terms and conditions set forth in the Purchase Agreements) be issuable (taking into account the adjustments and restrictions of Section 7) upon the conversion of the then outstanding shares of Preferred Stock (assuming for such purpose a Conversion Price initially equal to the Floor Price and, thereafter, if lower, the then-in-effect Conversion Price and any such conversions are made without regard to any limitations on conversion set forth herein) (the “Required Reserve Amount”). If at any time while any of the shares of Preferred Stock remain outstanding the Corporation does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy its obligation to reserve for issuance upon conversion of shares of Preferred Stock at least a number of shares of Common Stock equal to the Required Reserve Amount, then, the Corporation shall use its reasonable best efforts to promptly take all action necessary to increase the Corporation’s authorized shares of Common Stock to an amount sufficient to allow the Corporation to reserve the Required Reserve Amount for the shares of Preferred Stock then outstanding. The Corporation covenants that all shares of Common Stock that shall be so issuable shall, upon issue, in accordance with this Certificate of Designation, be duly authorized, validly issued, fully paid and nonassessable and, if a Registration Statement is then effective under the Securities Act, shall be registered for public resale in accordance with such Registration Statement (subject to such Holder’s compliance with its obligations under the Registration Rights Agreement).
(vi) Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of the Preferred Stock. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Corporation shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion Price or round up to the next whole share. Notwithstanding anything to the contrary contained herein, but consistent with the provisions of this subsection with respect to fractional Conversion Shares, nothing shall prevent any Holder from converting fractional shares of Preferred Stock.
(vii) Transfer Taxes and Expenses. The issuance of Conversion Shares on conversion of this Preferred Stock shall be made without charge to any Holder for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such Conversion Shares, provided that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such Conversion Shares upon conversion in a name other than that of the Holders of such shares of Preferred Stock and the Corporation shall not be required to issue or deliver such Conversion Shares unless or until the Person or Persons requesting the issuance thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation that such tax has been paid.
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(d) Beneficial Ownership Limitation. A Holder may notify the Corporation in writing in the event it elects to be subject to the provisions contained in this Section 6(d); however, no Holder shall be subject to this Section 6(d) unless he, she or it makes such election. If the election is made, (i) the Corporation shall not effect any conversion of the Preferred Stock, and such Holder shall not have the right to convert all or any portion of the Preferred Stock, to the extent that, after giving effect to the conversion set forth on the applicable Notice of Conversion, such Holder (together with such Holder’s Affiliates, and any Persons acting as a group together with such Holder or any of such Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of 4.9%, 9.9%, or 19.9% of the Corporation’s Common Stock (or such other amount as a Holder may specify) (the “Beneficial Ownership Limitation”) and (ii) the Corporation shall not permit the Holder to vote, and such Holder shall not have the right vote pursuant to Section 4(b) of this Certificate of Designation, all or any portion of the Preferred Stock that such Holder is not permitted to convert pursuant to the preceding clause (i) (provided, however, that such Holder shall retain the right to vote pursuant to Section 4(c) of this Certificate of Designation to the extent that retaining such right does not cause such Holder to be deemed to beneficially own Conversion Shares within the meaning of Rule 13d-3 promulgated under the Exchange Act). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by such Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of the Preferred Stock with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the remaining, unconverted Accrued Value of Preferred Stock beneficially owned by such Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Corporation subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Holder or any of its Affiliates or Attribution Parties. Except as set forth in the immediately preceding sentence, beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 6(d) applies, the determination of whether the Preferred Stock is convertible (in relation to other securities owned by such Holder together with any Affiliates and Attribution Parties) and of how many shares of Preferred Stock are convertible shall be in the sole discretion of such Holder, and the submission of a Notice of Conversion shall be deemed to be such Holder’s determination of whether the shares of Preferred Stock may be converted (in relation to other securities owned by such Holder together with any Affiliates and Attribution Parties) and how many shares of the Preferred Stock are convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, each Holder will be deemed to represent to the Corporation each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Corporation shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. The Holder shall provide the Corporation with any information reasonably requested by the Corporation in connection with this Beneficial Ownership Limitation and the provisions related thereto, in each case with respect to the Corporation’s reporting obligations pursuant to the Securities Act, the Exchange Act, or other federal or state securities regulations. For purposes of this Section 6(d), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Corporation’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Corporation or (iii) a more recent written notice by the Corporation or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request (which may be via email) of a Holder, the Corporation shall within two Trading Days confirm in writing to such Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Corporation, including the Preferred Stock, by such Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Corporation, a Holder may from time to time increase or decrease the Beneficial Ownership Limitation applicable to such Holder, provided, however, that any such increase in the Beneficial Ownership Limitation will not be effective until the sixty-first (61st) day after such notice is delivered to the Corporation. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 6(d) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor Holder of Preferred Stock.
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Section 7. Certain Adjustments.
(a) Stock Dividends and Stock Splits. If the Corporation, at any time while this Preferred Stock is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock or any other Common Stock Equivalents (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation upon conversion of, or payment of a dividend on, this Preferred Stock or any cash distributions), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock of the Corporation, then each of the Conversion Price and the price set forth in clause (i) of the defined term Floor Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Corporation) outstanding immediately before such event, and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section 7(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
(b) VWAP Reset. If on the twenty-first Trading Day following the date that is six months after the Closing Date, the VWAP (the “Measurement Price”) is less than the Conversion Price then in effect, then the Conversion Price then in effect shall be reduced to an amount equal to the greater of (i) the Measurement Price and (ii) $5.00 (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction occurring after the date of the Purchase Agreements). No adjustment pursuant to this Section 7(b) shall be made if such adjustment would result in an increase of the Conversion Price then in effect.
(c) Adjustment of Conversion Price upon Issuance of Common Stock. If and whenever on or after the Closing Date until the first date on which no shares of Preferred Stock are outstanding the Corporation issues or sells, or in accordance with this Section 7(c) is deemed to have issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Corporation, but excluding shares of Common Stock issued or sold, or deemed to have been issued or sold, by the Corporation in connection with any Exempt Issuance) for a consideration per share (the “New Issuance Price”) less than the Conversion Price then in effect (each such issue, sale or deemed issuance or sale, a “Dilutive Issuance”), where the aggregate amount of consideration received by the Corporation, together with all prior issuances and sales conducted for the purpose of raising capital by the Corporation on or after the Closing Date that were excluded from this Section 7(c) by this clause, exceeds $500,000, then, immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Issuance Price as further adjusted pursuant to Section 7(a) and Section 7(e) for any stock dividend, stock split, combination, rights offering or other customary dilutive event. For all purposes of the foregoing (including, without limitation, determining the adjusted Conversion Price and the New Issuance Price under this Section 7(c)), the following shall be applicable:
(i) Options and Convertible Securities. The consideration per share received by the Corporation for Common Stock issued or deemed to have been issued pursuant to Section 7(c)(ii), relating to Options and Convertible Securities, shall be determined by dividing:
| a. | the total amount, if any, received or receivable by the Corporation as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Corporation upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities, by |
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| b. | the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number) deemed to be issued pursuant to Section 7(c)(ii) upon the issuance of such Options or Convertible Securities. |
(ii) Deemed Issuance of Options and Convertible Securities.
| a. | If the Corporation at any time or from time to time shall issue any Options or Convertible Securities or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares of Common Stock (as set forth in the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be outstanding and to have been issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date. |
| b. | If the purchase or exercise price provided for in any Options, the additional consideration, if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible Securities are convertible into or exercisable or exchangeable for Common Stock increases or decreases at any time (other than (i) proportional changes in conversion or exercise prices, as applicable, in connection with an event referred to in Section 7(a) above and (ii) automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security which are not more favorable to the holder thereof than the anti-dilution and similar provisions set forth herein), the Conversion Price in effect at the time of such increase or decrease shall be adjusted to the Conversion Price which would have been in effect at such time had such Options or Convertible Securities provided for such decreased purchase price or additional consideration or increased conversion rate (as the case may be) at the time initially granted, issued or sold. For purposes of this Section 7(c), if the terms of any Option or Convertible Security that was outstanding as of the date of first issuance of a share of Preferred Stock are increased or decreased in the manner described in the immediately preceding sentence, then such Option or Convertible Security and the shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 7(c)(ii) shall be made if such adjustment would result in an increase of the Conversion Price then in effect. |
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(iii) Calculation of Consideration Received.
| a. | In case one or more Option is issued in connection with the issue or sale of other securities of the Corporation, together comprising one integrated transaction, (x) each such Option will be deemed to have been issued for the Option Value of such Option and (y) the other securities issued or sold in such integrated transaction shall be deemed to have been issued or sold for the difference of (I) the aggregate consideration received by the Corporation less any consideration paid or payable by the Corporation pursuant to the terms of such other securities of the Corporation, less (II) the Option Value of each such Option. |
| b. | If any shares of Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration other than cash received therefor will be deemed to be the net amount received by the Corporation therefor. If any shares of Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Corporation will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Corporation will be the VWAP of such publicly traded securities on the date of receipt (substituting the references to “Common Stock” in the definition of VWAP with such publicly traded security). If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Corporation is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities, as the case may be. The fair value of any consideration other than cash or publicly traded securities will be determined jointly by the Corporation and the Required Holders. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of such consideration will be determined within five (5) Business Days after the tenth (10th) day following the Valuation Event by an independent, reputable appraiser jointly selected by the Corporation and the Required Holders. The determination of such appraiser shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Corporation. |
(iv) Record Date. If the Corporation takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to subscribe for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase (as the case may be).
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(v) Expiration or Termination of Options or Convertible Securities. Upon the expiration or termination of any unexercised Option or unconverted or unexchanged Convertible Securities (or portion thereof) which resulted (either upon its original issuance or upon a revision of its terms) in an adjustment to the Conversion Price pursuant to the terms of Section 7(c), the Conversion Price shall be readjusted to such Conversion Price as would have obtained had such Option or Convertible Securities (or portion thereof) never been issued. For the avoidance of doubt, any such readjustment of the Conversion Price shall only apply to conversions of the shares of Preferred Stock from and after such readjustment.
(d) Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 7(a) and Section 7(c) above, if at any time the Corporation grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to all or substantially all of the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holders will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of such Holder’s Preferred Stock (without regard to any limitations on conversion hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation). To the extent that the issue price of such Purchase Rights would result in an adjustment of the Conversion Price pursuant to Section 7(c), such adjustment shall not occur to the extent the Holders were granted the right to acquire such Purchase Rights on the applicable terms and elected to acquire such Purchase Rights.
(e) Pro Rata Distributions. In addition to the requirements of Section 3, during such time as this Preferred Stock is outstanding, if the Corporation declares or makes any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), in each such case, the Holders shall be entitled to participate in such Distribution to the same extent that the Holders would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of this Preferred Stock (without regard to any limitations on conversion hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
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(f) Fundamental Transaction.
(i) If, at any time while this Preferred Stock is outstanding, (i) the Corporation, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Corporation with or into another Person, (ii) the Corporation (and all of its subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Corporation or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock or 50% or more of the voting power of the common equity of the Corporation, (iv) the Corporation, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a stock split, combination or reclassification of shares of Common Stock covered by Section 7(a)), or (v) the Corporation, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) or 50% or more of the voting power of the common equity of the Corporation, and such event(s) do not constitute a Deemed Liquidation Event (each a “Fundamental Transaction”), then, upon any subsequent conversion of this Preferred Stock, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction (without regard to any limitation in Section 6(d) on the conversion of this Preferred Stock), the number of shares of capital stock of the successor or acquiring corporation or of the Corporation, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Preferred Stock is convertible immediately prior to such Fundamental Transaction (without regard to any limitation in Section 6(d) on the conversion of this Preferred Stock).
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(ii) For purposes of any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Corporation shall apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of this Preferred Stock following such Fundamental Transaction. To the extent necessary to effectuate the foregoing provisions, any successor to the Corporation or surviving entity in such Fundamental Transaction shall file a new Certificate of Designation with the same terms and conditions and issue to the Holders new preferred stock consistent with the foregoing provisions and evidencing the Holders’ right to convert such preferred stock into Alternate Consideration.
(iii) The Corporation shall cause any successor entity in a Fundamental Transaction in which the Corporation is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Corporation under this Certificate of Designation and the Registration Rights Agreement in accordance with the provisions of this Section 7(f) pursuant to written agreements in form and substance reasonably satisfactory to the Required Holders and approved by the Required Holders (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder of this Preferred Stock, deliver to the Holder in exchange for this Preferred Stock a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Preferred Stock which is convertible for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon conversion of this Preferred Stock (without regard to any limitations on the conversion of this Preferred Stock) prior to such Fundamental Transaction, and with a conversion price which applies the Conversion Price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such conversion price being for the purpose of protecting the economic value of this Preferred Stock immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Required Holders.
(g) Calculations. All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 7, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Corporation) issued and outstanding.
(h) Notice to the Holders.
(i) Adjustment to Conversion Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 7, the Corporation shall promptly deliver to each Holder by email a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.
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(ii) Notice to Allow Conversion by Holder. If (A) the Corporation shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Corporation shall declare a redemption of the Common Stock, (C) the Corporation shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Corporation shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Corporation is a party, any sale or transfer of all or substantially all of the assets of the Corporation (and all of its subsidiaries, taken as a whole), or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property or (E) the Corporation shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation, then, in each case, the Corporation shall cause to be filed at each office or agency maintained for the purpose of conversion of this Preferred Stock, and shall cause to be delivered by email to each Holder at its email address as it shall appear upon the stock books of the Corporation, at least twenty (20) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange, provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided under this Certificate of Designation constitutes, or contains, material, non-public information regarding the Corporation or any of the subsidiaries, the Corporation shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K, unless determined by the Corporation that such filing would be harmful to the Corporation at such time, in which case the Corporation shall file such 8-K as soon as is reasonably practicable in its discretion. Notwithstanding anything herein to the contrary, if the Corporation determines pursuant to the immediately preceding sentence not to simultaneously file a notice with the Commission pursuant to a Current Report on Form 8-K when such notice contains material, non-public information regarding the Corporation or any of the subsidiaries, then, the Corporation shall first obtain the prior written consent of such Holder to receive such notice prior to delivering such notice to such Holder. For the avoidance of doubt, and without limiting the conversion rights of any Holder, each Holder shall remain entitled to convert the Accrued Value of this Preferred Stock (or any part hereof) during the twenty (20)-day period commencing on the date of such notice through the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
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Section 8. Redemption.
(a) Redemption by the Corporation. Subject to the provisions of this Section 8 and unless prohibited by applicable law governing distributions to stockholders, the Corporation may, in its sole discretion, redeem all or a portion of the outstanding shares of Preferred Stock; provided, however, that the Corporation may not exercise its redemption right under this Section 8(a) unless, from the date the Corporation Notice is delivered through and including the applicable redemption date (the “Call Date”), the Conversion Shares are then (i) listed and freely tradable, meaning either (A) the conditions of Rule 144 under the Securities Act (including, without limitation, the holding period, current public information, volume limitations and manner of sale requirements, as applicable) are satisfied with respect to the Conversion Shares and the applicable Holder or (B) a resale registration statement covering the resale of the Conversion Shares by all Holders is effective and available for use under the Securities Act, (ii) listed or quoted on a Trading Market, (iii) the Holders shall not be in possession of material, non-public information regarding the Corporation or any of the Subsidiaries received from the Corporation, any of its Subsidiaries, or any of their respective directors, officers, affiliates, employees or agents and (iv) the Corporation shall have timely delivered all Conversion Shares in respect of any Notice of Conversion delivered prior to the applicable Call Date:
(i) on or after the third anniversary of the Closing but prior to the fourth anniversary of the Closing, at a redemption price per share equal to the greater (calculated as of the Call Date and based on the closing price of the shares of Common Stock on the Trading Market on the Call Date) of (i) 120% of the Accrued Value (which shall be payable in cash) and (ii) such amount per share as would have been payable had all shares of Preferred Stock been converted into Common Stock pursuant to Section 6 immediately prior to such redemption based on the then effective rate of conversion (which shall be payable in cash, provided that the Corporation may, at its option, pay the amount payable per share that is in excess of 120% of the Accrued Value in shares of Common Stock, with the value of any such shares of Common Stock being the closing price of such shares of Common Stock on the Trading Market on the Call Date);
(ii) on or after the fourth anniversary of the Closing but prior to the fifth anniversary of the Closing, at a redemption price per share equal to the greater (calculated as of the Call Date and based on the closing price of the shares of Common Stock on the Trading Market on the Call Date) of (i) 110% of the Accrued Value (which shall be payable in cash) and (ii) such amount per share as would have been payable had all shares of Preferred Stock been converted into Common Stock pursuant to Section 6 immediately prior to such redemption based on the then effective rate of conversion (which shall be payable in cash, provided that the Corporation may, at its option, pay the amount payable per share that is in excess of 110% of the Accrued Value in shares of Common Stock, with the value of any such shares of Common Stock being the closing price of such shares of Common Stock on the Trading Market on the Call Date); and
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(iii) on or after the fifth anniversary of the Closing, at a redemption price per share equal to the greater (calculated as of the Call Date and based on the closing price of the shares of Common Stock on the Trading Market on the Call Date) of (i) 100% of the Accrued Value (which shall be payable in cash) and (ii) such amount per share as would have been payable had all shares of Preferred Stock been converted into Common Stock pursuant to Section 6 immediately prior to such redemption based on the then effective rate of conversion (which shall be payable in cash, provided that the Corporation may, at its option, pay the amount payable per share that is in excess of 100% of the Accrued Value in shares of Common Stock, with the value of any such shares of Common Stock being the closing price of such shares of Common Stock on the Trading Market on the Call Date).
If, on the Call Date, applicable law governing distributions to stockholders prevents the Corporation from redeeming all shares of Preferred Stock scheduled to be redeemed, the Corporation shall be entitled to ratably redeem the maximum number of shares that it may redeem consistent with such law and any Preferred Stock not so redeemed shall remain outstanding. The Corporation shall provide written notice (the “Corporation Notice”) by e-mail and first class mail postage prepaid, to each Holder of record (determined at the close of business on the Business Day next preceding the day on which the Corporation Notice is given) of the Preferred Stock to be redeemed, at the address last shown on the records of the Corporation for such Holder, notifying such Holder of the redemption to be effected, specifying the number of shares to be redeemed from such Holder, specifying the Call Date, the redemption price, the place at which payment may be obtained and calling upon such Holder to surrender to the Corporation, in the manner and at the place designated, his, her or its certificate or certificates representing the shares to be redeemed; provided that the Call Date shall be not less than 15 days from the date of the Corporation Notice. Except as otherwise provided herein, on or after the Call Date, each Holder to be redeemed shall surrender to the Corporation the certificate or certificates representing such shares, in the manner and at the place designated in the Corporation Notice, and thereupon the price of redemption of such shares shall be payable to the order of the person whose name appears on such certificate or certificates as the owner thereof and each surrendered certificate shall be cancelled. In the event less than all the shares represented by any such certificate are redeemed, a new certificate shall be issued representing the unredeemed shares. Notwithstanding anything herein to the contrary, each Holder shall remain entitled to convert all or a portion of the Accrued Value of its Preferred Stock (or any part thereof) at any time and from time to time during the period of not less than 15 days commencing on the date of the Corporation Notice through the Call Date. Any payment of the redemption price in shares of Common Stock shall be subject to the Beneficial Ownership Limitation. To the extent that any Holder’s receipt of any such shares of Common Stock would result in the Holder exceeding the Beneficial Ownership Limitation, then such Holder shall not be entitled to receive such shares of Common Stock to such extent (or in the beneficial ownership of any shares of Common Stock as a result of thereof to such extent) and the portion of such redemption shall be held in abeyance for the benefit of such Holder until such time, if ever, as its right thereto would not result in such Holder exceeding the Beneficial Ownership Limitation.
(b) Redemption by the Holders.
(i) Unless prohibited by applicable law governing distribution to stockholders, shares of Preferred Stock owned by a requesting Holder shall be redeemed by the Corporation at a purchase price equal to the Accrued Value (the “Redemption Price”), if at any time and from time to time after the fifth (5th) anniversary of the Closing Date, a Holder delivers to the Corporation a written notice demanding redemption of all of such Holder’s shares of Preferred Stock (the “Redemption Request”). The 15th day after the date of the Redemption Request shall be referred to as the “Redemption Date.” Upon receipt of a Redemption Request, the Corporation shall apply all of its assets to any such redemption, and to no other corporate purpose, until the Redemption Price has been paid in full, except to the extent prohibited by Delaware law governing distributions to stockholders.
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(ii) Following receipt of a Redemption Request, the Corporation shall send written notice of the mandatory redemption (the “Redemption Notice”) to the redeeming Holder of record of Preferred Stock not less than fifteen (15) days prior to the Redemption Date. The Redemption Notice shall state:
| a. | the number of shares of Preferred Stock held by the Holder that the Corporation shall redeem on the Redemption Date; |
| b. | the Redemption Date and the Redemption Price; |
| c. | the date upon which the Holder’s right to convert such shares terminates; and |
| d. | for Holders of shares in certificated form, that the Holder is to surrender to the Corporation, in the manner and at the place designated, his, her or its certificate or certificates representing the shares of Preferred Stock to be redeemed. |
(iii) On the Redemption Date, the Corporation shall redeem the Preferred Stock owned by such Holder. If on the Redemption Date Delaware law governing distributions to stockholders prevents the Corporation from redeeming all shares of Preferred Stock to be redeemed, the Corporation shall ratably redeem the maximum number of shares that it may redeem consistent with such law, and shall redeem the remaining shares as soon as it may lawfully do so under such law. In the event that any portion of the Redemption Price has not been paid within five (5) Business Days following the Redemption Date, interest on such unpaid portion of the Redemption Price shall accrue thereon until such amount is paid in full at a rate equal to the lesser of (i) 24.0% per annum and (ii) the maximum rate permitted under applicable law.
(c) Rights Subsequent to Redemption. Upon the redemption of shares of Preferred Stock pursuant to Section 8(a) or Section 8(b), all rights with respect to such shares of Preferred Stock shall immediately terminate, except with respect to the right of the Holders to receive the applicable redemption price with respect to such shares of Preferred Stock in accordance with Section 8(a) or Section 8(b), as applicable.
(d) Delaware Surplus Covenant: The Corporation covenants and agrees that, to the extent any redemption payment required under Section 8(a) or Section 8(b) is not permitted under applicable Delaware law governing distributions to stockholders due to an insufficiency of surplus or net profits, the Board of Directors shall take all actions that are permitted under the DGCL to create or increase the surplus necessary to enable such payment, including, without limitation, (i) revaluing the assets of the Corporation in accordance with Section 154 of the DGCL to their then-current fair market value, (ii) effecting a recapitalization of the Corporation to increase its surplus, and (iii) taking any other action permitted under Delaware law to create lawfully available funds for such purpose. The Corporation shall provide written notice to each affected Holder within ten (10) Business Days of determining that any redemption payment will be delayed due to an insufficiency of surplus, which notice shall describe in reasonable detail the steps being taken pursuant to this Section 8(d) and the estimated timeline for completion thereof.
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Section 9. Miscellaneous.
(a) Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any Notice of Conversion, shall be in writing and delivered personally, by e-mail, or sent by nationally recognized overnight courier service, addressed to the Corporation, at the address set forth in the Corporation’s most recently filed Current Report on Form 8-K or email address most recently provided to Holders by the Corporation for purposes of notice hereunder Attention: [●], e-mail address [●], or such other e-mail address or address as the Corporation may specify for such purposes by notice to the Holders delivered in accordance with this Section 9. Any and all notices or other communications or deliveries to be provided by the Corporation hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder appearing on the books of the Corporation, or if no such facsimile number, e-mail address or address appears on the books of the Corporation, at the principal place of business of such Holder, as set forth in the Purchase Agreements. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via facsimile at the facsimile number or e-mail at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.
(b) Absolute Obligation. Except as expressly provided herein, no provision of this Certificate of Designation shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay liquidated damages and accrued dividends, as applicable, on the shares of Preferred Stock at the time, place, and rate, and in the coin or currency, herein prescribed.
(c) Lost or Mutilated Preferred Stock Certificate. If a Holder’s Preferred Stock certificate shall be mutilated, lost, stolen or destroyed, the Corporation shall issue or cause to be issued, in exchange and substitution for and upon cancellation of a mutilated certificate, or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares of Preferred Stock so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such certificate, and of the ownership hereof reasonably satisfactory to the Corporation (which shall not include the posting of any bond). The applicant for a new certificate under such circumstances shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement certificate.
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(d) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflict of laws thereof. All legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by this Certificate of Designation (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of Wilmington, Delaware, County of New Castle (the “Delaware Courts”). The Corporation and each Holder hereby irrevocably submits to the exclusive jurisdiction of the Delaware Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of such Delaware Courts, or such Delaware Courts are improper or inconvenient venue for such proceeding. The Corporation and each Holder hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Certificate of Designation and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable law. The Corporation and each Holder hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Certificate of Designation or the transactions contemplated hereby. If the Corporation or any Holder shall commence an action or proceeding to enforce any provisions of this Certificate of Designation, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys’ fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.
(e) Amendment. Subject to Section 4(c), this Certificate of Designation (or any provision hereof) may be amended by obtaining the affirmative vote at a meeting duly called for such purpose, or written consent without a meeting in accordance with the Delaware General Corporation Law, of the Required Holders, voting separately as a single class, and with such other stockholder approval, if any, as may then be required pursuant to the DGCL and the Corporation’s certificate of incorporation; provided, however, and notwithstanding anything in this Certificate of Designation to the contrary, no provision of this Certificate of Designation shall be amended to the extent any such amendment would (i) disproportionately, materially and adversely modify any rights of any Holder (as compared to the rights of the other Holders), (ii) impose any additional financial obligations or liabilities on a Holder or (iii) amend the provisions of Section 3, Section 6, Section 7, Section 8(b) or this Section 9(e), unless such amendment applies to all Holders in the same fashion, in each case, unless any such Holder shall have previously consented in writing to such amendment or voted to approve such amendment at a meeting. No consideration shall be offered or paid to any Holder to amend or consent to a waiver or modification of any provision of this Certificate of Designation unless the same consideration is also offered to all of the Holders. For clarification purposes, this provision constitutes a separate right granted to each Holder by the Corporation and negotiated separately by each Holder, and is intended for the Corporation to treat the Holders as a group and shall not in any way be construed as the Holders acting in concert or as a group with respect to the purchase, disposition or voting of securities or otherwise.
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(f) Waiver. Any waiver by the Corporation or a Holder of a breach of any provision of this Certificate of Designation shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of Designation or a waiver by any other Holders. The failure of the Corporation or a Holder to insist upon strict adherence to any term of this Certificate of Designation on one or more occasions shall not be considered a waiver or deprive that party (or any other Holder) of the right thereafter to insist upon strict adherence to that term or any other term of this Certificate of Designation on any other occasion. Any waiver by the Corporation or a Holder must be in writing.
(g) Severability. If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate of Designation shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law.
(h) Next Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day.
(i) Headings. The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designation and shall not be deemed to limit or affect any of the provisions hereof.
(j) Status of Converted or Redeemed Preferred Stock. Shares of Preferred Stock may only be issued pursuant to the Purchase Agreements. If any shares of Preferred Stock shall be converted, redeemed or reacquired by the Corporation, such shares shall resume the status of authorized but unissued shares of preferred stock and shall no longer be designated as 12.0% Series A Cumulative Convertible Preferred Stock.
(k) Tax Withholding. The Corporation agrees that, provided that each Holder delivers to the Corporation a properly executed IRS Form W-9 or other certification satisfactory to the Corporation certifying as to such Holder’s status (or the status of such Holder’s beneficial owner(s)) as a United States person (within the meaning of Section 7701(a)(30) of the Code) and such Holder’s (or such beneficial owners’) eligibility for complete exemption from backup withholding (“U.S. Person Certification”), under current law the Corporation (including any paying agent of the Corporation) shall not be required to, and shall not, withhold on any payments or deemed payments to any such Holder. In the event that any Holder fails to deliver to the Corporation such properly executed U.S. Person Certification, the Corporation reasonably believes that a previously delivered U.S. Person Certification is no longer accurate and/or valid, or there is a change in law that affects the withholding obligations of the Corporation, the Corporation and its paying agent shall be entitled to withhold taxes on all payments made to the relevant Holder in the form of cash or otherwise treated, in the Corporation’s reasonable discretion, as a dividend for U.S. federal tax purposes or to request that the relevant Holder promptly pay the Corporation in cash any amounts required to satisfy any withholding tax obligations, in each case, to the extent the Corporation or its paying agent determines in good faith it is required to deduct and withhold tax on payments to the relevant Holder under applicable law; provided, that the Corporation shall use commercially reasonable efforts to notify the relevant Holder of any required withholding tax reasonably in advance of the date of the relevant payment. In the event that the Corporation does not have sufficient cash with respect to any Holder from withholding on cash payments otherwise payable to such Holder and cash paid to the Corporation by such Holder to the Corporation pursuant to the immediately preceding sentence, the Corporation and its paying agent shall be entitled to withhold taxes on deemed payments, including distributions of additional Preferred Stock in lieu of cash and constructive distributions on the Preferred Stock to the extent required by law, and the Corporation and its paying agent shall be entitled to satisfy any required withholding tax on non-cash payments (including deemed payments) through a sale of a portion of the Preferred Stock received as a dividend or from cash dividends or sales proceeds subsequently paid or credited on the Preferred Stock.
(l) Tax Treatment. Absent a change in law, Internal Revenue Service practice or a contrary determination (as defined in Section 1313(a) of the Internal Revenue Code, as amended (the “Code”)), each holder of Preferred Stock and the Corporation shall not treat the Preferred Stock (based on their terms as set forth in this Certificate of Designation) as “preferred stock” within the meaning of Section 305 of the Code and Treasury Regulation Section 1.305-5 for United States federal income tax and withholding tax purposes and shall not take any position inconsistent with such treatment.
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IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf of the Corporation by its Chief Executive Officer this [●]th day of [●], 2026.
| MAY MOBILITY, INC. | ||
| By: | ||
| Name: | ||
| Title: | Chief Executive Officer | |
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ANNEX A
NOTICE OF CONVERSION
(TO BE EXECUTED BY THE REGISTERED HOLDER IN ORDER TO CONVERT SHARES OF 12.0% SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK)
The undersigned hereby elects to convert the number of shares of 12.0% Series A Cumulative Convertible Preferred Stock, par value $[0.0001] per share (the “Preferred Stock”), indicated below into shares of common stock, par value $0.0001 per share (the “Common Stock”), of May Mobility, Inc., a Delaware corporation (the “Corporation”), in accordance with the certificate of designation of such Preferred Stock, as of the date written below. If shares of Common Stock are to be issued in the name of a Person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as may be required by the Corporation in accordance with the Purchase Agreements. No fee will be charged to the Holders for any conversion, except for any such transfer taxes.
Conversion calculations:
Date to Effect Conversion: ___________________________________________________________
Number of shares of Preferred Stock owned prior to Conversion: _______________________________
Number of shares of Preferred Stock to be Converted: _______________________________________
Accrued Value of shares of Preferred Stock to be Converted: __________________________________
Number of shares of Common Stock to be Issued: ___________________________________________
Applicable Conversion Price: ___________________________________________________________
Number of shares of Preferred Stock subsequent to Conversion: _________________________________
Address for Delivery: __________________________________________________________________
or
DWAC Instructions:
Broker no:____________________
Account no:__________________
| [HOLDER] | ||
| By: | ||
| Name: | ||
| Title: | ||
Annex A
Exhibit 4.1
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
MAY MOBILITY, INC.
COMMON STOCK PURCHASE WARRANT
| Warrant Shares: [________] | Initial Exercise Date: [●], [●] |
THIS COMMON STOCK PURCHASE WARRANT (this “Warrant”) certifies that, for value received, [____________] or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the date hereof (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on [●], [2031] (the “Termination Date”) but not thereafter, to subscribe for and purchase from May Mobility, Inc., a Delaware corporation (the “Company”), up to [______] shares (as subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
This Warrant is one of a series of common stock purchase warrants with substantially the same terms as this Warrant (notwithstanding that certain of such warrants are [not] subject to restriction on free marketability), with an initial exercise price of $12.00 per share, issued on the Initial Exercise Date (such series of warrants, the “Related Warrants”).
Section 1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in Schedule A hereto.
Section 2. Exercise.
| (a) | Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company (or such other office or agency that the Company may designate by notice in writing to the registered Holder at the address of the Holder appearing on the books of the Company), as applicable, of a duly executed PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Not later than the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver to the Company the aggregate Exercise Price for the shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified in Section 2(c) below is available and specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof. |
| (b) | Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $12.00, subject to adjustment hereunder (the “Exercise Price”). |
| (c) | Cashless Exercise. If at any time after the “Effectiveness Deadline” (as defined in the Registration Rights Agreement), (x) the Warrant Shares issuable upon exercise of this Warrant would be (i) “restricted securities” as defined in Rule 144 or (ii) the Holder is an Affiliate of the Company and (y) there is no effective registration statement registering, or the prospectus contained therein is not available for the resale of the Warrant Shares by the Holder, then this Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing ((A-B) multiplied by (X)) by (A), where: |
| (A) = | as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day, (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day or (3) executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day), or (ii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
| (B) = | the Exercise Price of this Warrant, as adjusted hereunder; and |
| (X) = | the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
If Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take on the characteristics of the Warrants being exercised, and the holding period of the Warrant Shares being issued may be tacked on to the holding period of this Warrant. The Company agrees not to take any position contrary to this Section 2(c).
Notwithstanding anything herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant to this Section 2(c).
| (d) | Mechanics of Exercise. |
| (i) | Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) such Warrant Shares may be sold under Rule 144 (including Rule 144(i)) without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Securities and Exchange Commission (the “Commission”)), and otherwise by physical delivery of a certificate, (or reasonable evidence of issuance by book entry of ownership of the Warrant Shares) registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the later of (i) the Standard Settlement Period after the delivery to the Company of the Notice of Exercise, and (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company (such date, the “Warrant Share Delivery Date”); provided, however, in any event, the Company shall not be obligated to deliver Warrant Shares until it has received the aggregate Exercise Price therefor. Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received no later than the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder, for any reason unrelated to the actions of the Holder or its Affiliates, the Warrant Shares subject to a Notice of Exercise by the 10th Trading Day after the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the shares of Common Stock on the date of the applicable Notice of Exercise), $5 per Trading Day for each Trading Day after the 10th Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise (including pursuant to Section 2(d)(iv) hereunder); provided that such liquidated damages will cease to accrue with respect to Warrant Shares to the extent Holder exercises its rights pursuant to Section 2(d)(iv) hereunder. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise. |
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| (ii) | Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant. |
| (iii) | Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date (subject to receipt of the aggregate Exercise Price for the applicable exercise (other than in the case of a cashless exercise)), then the Holder will have the right to rescind such exercise prior to the delivery of the Warrant Shares. |
| (iv) | Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder but subject to the proviso in the third-to-last sentence of Section 2(d)(i) relating to liquidated damages ceasing to accrue, if the Company fails for any reason unrelated to the actions of the Holder or its Affiliates to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date (subject to receipt of the aggregate exercise price for the applicable exercise (other than in the case of a cashless exercise)), and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder (in addition to any other remedies available to or elected by such Holder) the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of Warrants with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. If a Holder purchases shares of Common Stock having a total purchase price of $9,000 to cover a Buy-In with respect to an attempted exercise of Warrants with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the preceding sentence, the Company shall not be required to pay Holder any amount. For the avoidance of doubt, in the event of a Buy-In, the Holder shall use commercially reasonable efforts to purchase shares at the lowest available price, paying the lowest reasonably available brokerage commission. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof. |
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| (v) | No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round up to the next whole share. |
| (vi) | Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense, including transfer agent fees, in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares pursuant to the terms of this Warrant. |
| (vii) | Closing of Books. The Company will not close its stockholder books or records in any manner intended to prevent the timely exercise of this Warrant, pursuant to the terms hereof. |
| (e) | Holder’s Exercise Limitations. The Holder may notify the Company in writing in the event it elects to be subject to the provisions contained in this Section 2(e); however, the Holder shall not be subject to this Section 2(e) unless he, she or it makes such election. If the election is made, the Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of 4.9%, 9.9%, or 19.9% of the Common Stock (or such other amount as the Holder may specify) (the “Beneficial Ownership Limitation”). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder, its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and, of which portion of this Warrant is exercisable up to the Beneficial Ownership Limitation shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s good faith determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case, subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises of this Warrant that are not in compliance with the Beneficial Ownership Limitation. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises of the Warrant that are not in compliance with the Beneficial Ownership Limitation. For purposes of this Section 2(e), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within two (2) Trading Days confirm in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. By written notice to the Company, the Holder may from time to time increase or decrease the Beneficial Ownership Limitation applicable to the Holder, provided, however, that any such increase in the Beneficial Ownership Limitation will not be effective until the sixty-first (61st) day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant. |
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Section 3. Certain Adjustments.
| (a) | Stock Dividends and Splits. If the Company at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this Warrant or any cash distributions), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification. |
| (b) | VWAP Reset. If on the twenty-first Trading Day following the date that is six months after the Closing Date, the VWAP (the “Measurement Price”) is less than the Exercise Price then in effect, then the Exercise Price then in effect shall be reduced to an amount equal to the greater of (i) the Measurement Price and (ii) $5.00 (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction occurring after the date of the Purchase Agreement). No adjustment pursuant to this Section 3(b) shall be made if such adjustment would result in an increase of the Exercise Price then in effect. |
| (c) | Adjustment Upon Issuance of Common Stock. If and whenever on or after the Closing Date, the Company issues or sells, or in accordance with this Section 3(c) is deemed to have issued or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding shares of Common Stock issued or sold, or deemed to have been issued or sold, by the Company in connection with any Exempt Issuance) for a consideration per share (the “New Issuance Price”) less than the Exercise Price then in effect (each such issue, sale or deemed issuance or sale, a “Dilutive Issuance”), where the aggregate amount of consideration received by the Company, together with all prior issuances and sales conducted for the purpose of raising capital by the Company on or after the Closing Date that were excluded from this Section 3(c) by this clause, exceeds $500,000, then immediately after such Dilutive Issuance, the Exercise Price then in effect shall be reduced to an amount equal to the New Issuance Price, as further adjusted pursuant to Section 3(a) and 3(e) for any stock dividend, stock split, combination, rights offering or other customary dilutive event. |
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For purposes of determining the adjusted Exercise Price under this Section 3(c), the following shall be applicable:
| (i) | Options and Convertible Securities. The consideration per share received by the Company for Common Stock issued or deemed to have been issued pursuant to Section 3(c)(ii), relating to Options and Convertible Securities, shall be determined by dividing: |
| (1) | the total amount, if any, received or receivable by the Company as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Company upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities, by |
| (2) | the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number) deemed to be issued pursuant to Section 3(c)(ii) upon the issuance of such Options or Convertible Securities. |
| (ii) | Deemed Issuance of Options and Convertible Securities. |
| (1) | If the Company at any time or from time to time shall issue any Options or Convertible Securities or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares of Common Stock (as set forth in the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be outstanding and to have been issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date. |
| (2) | If the purchase or exercise price provided for in any Options, the additional consideration, if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible Securities are convertible into or exercisable or exchangeable for Common Stock increases or decreases at any time, (other than (x) proportional changes in conversion or exercise prices, as applicable, in connection with an event referred to in Section 3(a) above and (y) automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security which are not more favorable to the holder thereof than the anti-dilution and similar provisions set forth herein), the Exercise Price in effect at the time of such increase or decrease shall be adjusted to the Exercise Price, which would have been in effect at such time had such Options or Convertible Securities provided for such decreased purchase price or additional consideration or increased conversion rate, as the case may be, at the time initially granted, issued or sold. For purposes of this Section 3(c)(ii)(2), if the terms of any Option or Convertible Security that was outstanding as of the Initial Exercise Date are increased or decreased in the manner described in the immediately preceding sentence, then such Option or Convertible Security and the shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 3(c)(ii)(2) shall be made if such adjustment would result in an increase of the Exercise Price then in effect. |
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| (iii) | Calculation of Consideration Received. |
| (1) | In case one or more Option is issued in connection with the issue or sale of other securities of the Company, together comprising one integrated transaction, (x) each such Option will be deemed to have been issued for the Option Value of such Option and (y) the other securities issued or sold in such integrated transaction shall be deemed to have been issued or sold for the difference of (I) the aggregate consideration received by the Company less any consideration paid or payable by the Company pursuant to the terms of such other securities of the Company, less (II) the Option Value of each such Option; provided, that, no share of Common Stock shall be deemed to have been issued for less than a fraction of the aggregate consideration received (excluding the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Company upon the exercise of any such Options, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities) equal to (A) one divided by (B) the total number of shares of Common Stock issued or issuable in the integrated transaction (including the number of shares underlying any Options and Convertible Securities). |
| (2) | If any shares of Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company will be the VWAP of such publicly traded securities on the date of receipt (substituting the references to “Common Stock” in the definition of VWAP with such publicly traded security). If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities, as the case may be. The fair value of any consideration other than cash or publicly traded securities will be determined jointly by the Company and the Required Holders. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of such consideration will be determined within five (5) Business Days after the tenth (10th) day following the Valuation Event by an independent, reputable appraiser jointly selected by the Company and the Required Holders. The determination of such appraiser shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company. |
| (iv) | Record Date. If the Company takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to subscribe for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be. |
| (d) | Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) and Section 3(c) above, if at any time after the Initial Exercise Date the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to all or substantially all of the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, any applicable Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding any applicable Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding any applicable Beneficial Ownership Limitation). To the extent that the issue price of such Purchase Rights would result in an adjustment of the Exercise Price pursuant to Section 3(c), such adjustment shall not occur to the extent the Holders were granted the right to acquire such Purchase Rights on the applicable terms and elected to acquire such Purchase Rights. |
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| (e) | During such time as this Warrant is outstanding, if the Company declares or makes any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction but excluding any dividend that results in adjustment to the Exercise Price pursuant to Section 3(a) above) (a “Distribution”), in each such case, the Holders shall be entitled to participate in such Distribution to the same extent that the Holders would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of this Warrant (without regard to any limitations on conversion hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation). |
| (f) | Fundamental Transaction. |
| (i) | If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company (and all of its subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a stock split, combination or reclassification of shares of Common Stock covered by Section 3(a)), or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) or 50% or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). |
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| (ii) | For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, that if holders of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders of Common Stock will be deemed to have received common stock or ordinary shares of the Successor Entity (which Successor Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds (or such other consideration) within the later of (i) five Business Days of the Holder’s election and (ii) the date of consummation of the Fundamental Transaction. |
| (iii) | The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(f) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the Exercise Price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. |
| (g) | Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding. |
| (h) | Number of Warrant Shares. Simultaneously with any adjustment to the Exercise Price pursuant to this Section 3, the number of Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately so that after such adjustment the aggregate Exercise Price payable hereunder for the adjusted number of Warrant Shares shall be the same as the aggregate Exercise Price in effect immediately prior to such adjustment (without regard to any limitations on exercise contained herein). |
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| (i) | Notice to Holder. |
| (i) | Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment. |
| (ii) | Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Company shall declare a redemption of the Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its subsidiaries) is a party, any sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by facsimile or email to the Holder at its last facsimile number or email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided, that, notwithstanding the foregoing, any notice delivery requirement hereunder shall also be deemed satisfied by filing or furnishing such communication with the Commission via the EDGAR system; provided, further, that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided to the Holder in accordance with the terms of this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K, unless determined by the Company that such filing would be harmful to the Company at such time, in which case the Company shall file such 8-K as soon as is reasonably practicable in its discretion. Notwithstanding anything herein to the contrary, if the Company determines pursuant to the immediately preceding sentence not to simultaneously file a notice with the Commission pursuant to a Current Report on Form 8-K when such notice contains material, non-public information regarding the Company or any of its subsidiaries, then, the Company shall first obtain the prior written consent of such Holder to receive such notice prior to delivering such notice to such Holder. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein. |
| (j) | Voluntary Adjustment By Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during the term of this Warrant, subject to the prior written consent of the Holder, reduce the then current Exercise Price to any amount and for any period of time deemed appropriate by the board of directors of the Company. |
Section 4. Transfer of Warrant.
| (a) | Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof, this Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued. |
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| (b) | New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Initial Exercise Date and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto, and if applicable, shall reflect any adjustment to the Exercise Price prior to the date of such transfer or exchange. |
| (c) | Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary. |
| (d) | Transfer Restrictions. This Warrant and the Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of this Warrant or the Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of the Holder or in connection with a pledge in connection with a bona fide margin account with a registered broker-dealer or other loan with a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act or other loan secured by this Warrant or the Warrant Shares, the Company may require the transferor to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of this Warrant or the Warrant Shares under the Securities Act. |
| (e) | Representation by the Holder. Except if such exercise were by means of a cashless exercise, the Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant to sales registered or exempted under the Securities Act. |
Section 5. Miscellaneous.
| (a) | No Rights as Stockholder Until Exercise. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in this Warrant. |
| (b) | Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate. |
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| (c) | Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next succeeding Business Day. |
| (d) | Authorized Shares. |
| (i) | The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant (without regard to any limitation on exercise set forth herein and assuming an Exercise Price equal to the lower of (i) $5.00 (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction occurring after the date of the Purchase Agreement) and (ii) the Exercise Price then in effect) (the “Required Reserve Amount”). If at any time while this Warrant remains outstanding the Company does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy its obligation to reserve for issuance upon exercise of this Warrant at least a number of shares of Common Stock equal to the Required Reserve Amount (an “Authorized Share Failure”), then, the Company shall use its reasonable best efforts to promptly take all action necessary to increase the Company’s authorized shares of Common Stock to an amount sufficient to allow the Company to reserve the Required Reserve Amount for the Warrant then outstanding. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue). |
| (ii) | Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its Certificate of Incorporation (or any Certificate of Designation thereto) or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be necessary to enable the Company to perform its obligations under this Warrant. |
| (iii) | Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof. |
| (e) | Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Warrant (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the State of Delaware. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the State of Delaware for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of this Warrant), and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an Action or Proceeding to enforce any provisions of this Warrant, then, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action or Proceeding. |
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| (f) | Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws. |
| (g) | Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder. |
| (h) | Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via email at the e-mail address as set forth on the signature pages attached hereto, or to such other address as the Company or the Holder may indicate by a notice delivered to the other from time to time, at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered via email attachment at the e-mail address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto, or to such other address as the Company or the Holder may indicate by a notice delivered to the other from time to time. |
| (i) | Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company. |
| (j) | Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate. |
| (k) | Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares. |
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| (l) | Amendment. The Related Warrants, including this Warrant, may be amended with the written consent of the Required Holders, provided, however, and notwithstanding anything in this Warrant or the Related Warrants to the contrary, no provision of the Related Warrants, including this Warrant, shall be amended to the extent any such amendment would (i) disproportionately, materially and adversely modify any rights of any holder of Related Warrants (as compared to the rights of the other holders of Related Warrants), (ii) impose any additional financial obligations or liabilities on a holder of Related Warrants or (iii) amend the provisions of Section 2, Section 3, Section 4, or this Section 5(l), unless such amendment applies to all holders of Related Warrants in the same fashion, in each case, unless any such holder of a Related Warrant shall have previously consented in writing to such amendment or voted to approve such amendment at a meeting. No consideration shall be offered or paid to any holder of Related Warrants to amend or consent to a waiver or modification of any provision of the Related Warrants unless the same consideration is also offered to all of the holders of Related Warrants. For clarification purposes, this provision constitutes a separate right granted to each holder of Related Warrants by the Company and negotiated separately by each holder of Related Warrants, and is intended for the Company to treat the holders of Related Warrants as a group and shall not in any way be construed as the holders of Related Warrants acting in concert or as a group with respect to the purchase, disposition or voting of securities or otherwise. |
| (m) | Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant. |
| (n) | Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant. |
********************
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Common Stock Purchase Warrant to be duly executed by their respective authorized signatories as of the date first indicated above.
| MAY MOBILITY, INC. | Address for Notice: | ||
| By: | |||
| Name: | |||
| Title: | Email: | ||
| With a copy to (which shall not constitute notice): | |||
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IN WITNESS WHEREOF, the undersigned have caused this Common Stock Purchase Warrant to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser:
Signature of Authorized Signatory of Purchaser:
Name of Authorized Signatory:
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Warrant Shares:
EIN Number:
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Schedule A
“Action” means any action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the applicable party, threatened against or affecting the applicable party or any of its properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign).
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Alyeska” means Alyeska Master Fund I, LP and/or one or more of its Affiliates.
“Atlas Credit Partners” means Project Maestro SPV LLC (the “ACP SPV”), any equityholder of the ACP SPV that (together with its Affiliates) receives a majority of the aggregate Warrant Shares represented by the Related Warrants originally issued to the ACP SPV, and/or one or more of their respective Affiliates.
“Black Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period beginning on the Trading Day immediately preceding the announcement of the applicable Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section 3(f), (D) a remaining option time equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date and (E) a zero cost of borrow.
“Bloomberg” means Bloomberg L.P.
“Business Combination” means the transactions contemplated by the Business Combination Agreement.
“Business Combination Agreement” means that certain Business Combination Agreement, dated as of August [●], 2026, by and among the Company (or its predecessor), Maestro Merger Sub, Inc. and May Mobility, Inc., as it may be further amended, modified or supplemented from time to time.
“Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed.
“Closing Date” means the Trading Day on which the Business Combination is consummated.
“Common Stock” means the common stock, par value $0.0001 per share, of the Company and stock of any other class of securities into which such securities may hereafter be reclassified or changed.
“Common Stock Equivalents” means any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock, and any securities of the Company that when paired with one or more other securities of the Company or another entity entitles the holder thereof to receive, Common Stock.
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“Convertible Securities” means any stock or securities (other than Options) directly or indirectly convertible into or exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock and any securities of the Company that when paired with one or more other securities of the Company or another entity entitles the holder thereof to receive, Common Stock.
“Cyrus” means, collectively, Cyrus 1740 Master Fund, L.P., Cyrus Opportunities Master Fund II, LTD, Cyrus Select Opportunities Master Fund, LTD, Encinal Holdings Fund L.P., and Encinal Holdings E Fund L.P. and/or one or more of their Affiliates.
“Exempt Issuance” means the issuance of (a) any securities of the Company to employees, officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any securities issued pursuant to the Purchase Agreements or the Business Combination Agreement and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the Closing Date, provided that such securities have not been amended since the Closing Date to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations and automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such securities which are not more favorable to the holder thereof than the anti-dilution and similar provisions set forth herein) or to extend the term of such securities, (c) the Underlying Shares and (d) securities issued pursuant to any merger, acquisition or strategic transaction or partnership approved by a majority of the directors of the Company, provided that (i) such securities are issued as “restricted securities” (as defined in Rule 144) or are issued pursuant to an effective registration statement pursuant to the Securities Act and (ii) any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but any such Exempt Issuance shall not include a transaction in which the Company is issuing securities (i) primarily for the purpose of raising capital, including an at-the-market offering, or (ii) to an entity whose primary business is investing in securities.
“Minimum Number of Warrant Shares” means, with respect to any Principal Investor, 50% of the aggregate Warrant Shares represented by the Related Warrants originally issued to such Principal Investor on the Closing Date, as adjusted for any stock split, stock dividend, combination, recapitalization or similar event.
“Oaktree” means Value Opportunities Fund Holdings, L.P. and/or one or more of its Affiliates.
“Options” means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities.
“Option Value” means the value of an Option based on the Black-Scholes Option Pricing model obtained from the “OV” function on Bloomberg determined as of (A) the Trading Day prior to the public announcement of the issuance of the applicable Option, if the issuance of such Option is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Option if the issuance of such Option is not publicly announced, for pricing purposes and reflecting (i) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of the applicable Option as of the applicable date of determination, (ii) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg as of (A) the Trading Day immediately following the public announcement of the applicable Option if the issuance of such Option is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Option if the issuance of such Option is not publicly announced, (iii) the underlying price per share used in such calculation shall be the highest weighted average price of the Common Stock during the period beginning on the Trading Day prior to the execution of definitive documentation relating to the issuance of the applicable Option and ending on (A) the Trading Day immediately following the public announcement of such issuance, if the issuance of such Option is publicly announced or (B) the Trading Day immediately following the issuance of the applicable Option if the issuance of such Option is not publicly announced, (iv) a zero cost of borrow and (v) a 360 day annualization factor, provided, however, in case any Option is issued in connection with the issue or sale of other securities of the Company, together comprising one integrated transaction, in no event shall the Option Value exceed a fraction of the aggregate consideration received (excluding the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Company upon the exercise of such Options, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities) equal to (1) the number of shares of Common Stock underlying such Option divided by (2) the total number of shares of Common Stock issued or issuable in the integrated transaction (including the number of shares underlying such Option).
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“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Principal Investor” means each of Alyeska, Atlas Credit Partners, Cyrus and Oaktree.
“Proceeding” means an action, claim, suit, investigation or proceeding, whether commenced or threatened.
“Purchase Agreements” means the several Securities Purchase Agreements, between the Company and certain original holders of common stock purchase warrants, with an initial exercise price of $12.00 per share, issued on the Initial Exercise Date, as amended, modified or supplemented from time to time in accordance with its terms.
“Registration Rights Agreement” means the Amended and Restated Registration Rights Agreement among the Company, the initial Holder of this Warrant and the other parties thereto.
“Required Holders” means the holders of a majority in interest (based on remaining aggregate Warrant Shares) of the Related Warrants then outstanding; which majority shall include each Principal Investor, for so long as each such Principal Investor then holds the Related Warrants exercisable for at least the Minimum Number of Warrant Shares applicable to such Principal Investor.
“Trading Day” means a day on which the principal Trading Market is open for trading.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or any successors to any of the foregoing).
“Transaction Documents” means this Warrant, the other common stock purchase warrants, with substantially the same terms as this Warrant, with an initial exercise price of $12.00 per share, issued on the Initial Exercise Date and the Registration Rights Agreement, and all exhibits and schedules thereto.
“Transfer Agent” means Odyssey Stock Transfer & Trust Company , the current transfer agent of the Company, and any successor transfer agent of the Company.
“Underlying Shares” means the shares of Common Stock issuable upon conversion of the Series A Cumulative Convertible Preferred Stock or exercise of this Warrant and the other common stock purchase warrants, with substantially the same terms as this Warrant, with an initial exercise price of $12.00 per share, issued on the Initial Exercise Date.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the arithmetic mean of the daily volume weighted average prices of the Common Stock for each of the 20 Trading Days preceding such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), with each such Trading Day weighted equally regardless of the aggregate trading volume for such Trading Day, (b) if OTCQB or OTCQX is not a Trading Market, the arithmetic mean of the daily volume weighted average prices of the Common Stock for each of the 20 Trading Days preceding such date (or the nearest preceding date) on OTCQB, OTCQX or OTCID as applicable, calculated in the same manner as clause (a), (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported in The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the average of the highest closing bid price and the lowest closing ask price of the Common Stock for the 20 Trading Days preceding such date, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Required Holders and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company. For the avoidance of doubt, the daily volume weighted average price for each individual Trading Day shall be determined by Bloomberg in accordance with its standard methodology, and the VWAP for the applicable period shall be calculated by summing such daily values and dividing by the number of Trading Days in the measurement period (i.e., 20 Trading Days), such that each Trading Day’s price is given equal weight irrespective of trading volume.
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Exhibit A
NOTICE OF EXERCISE
To:
Attn:
Email:
(1) The undersigned hereby elects to purchase Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
☐ in lawful money of the United States; or
☐ if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
________________________________
The Warrant Shares shall be delivered to the following DWAC Account Number:
________________________________
________________________________
________________________________
(4) Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE OF HOLDER]
Name of Investing Entity: _________________________________________________
Signature of Authorized Signatory of Investing Entity:___________________________
Name of Authorized Signatory: _____________________________________________
Title of Authorized Signatory: ______________________________________________
Date: _________________________________________________________________
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Exhibit B
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
| Name: | |
| (Please Print) | |
| Address | |
| (Please Print) | |
| Phone Number: | |
| Email Address: | |
| Dated: _____________ ________,_________ | |
| Holder’s Signature: | |
| Holder’s Address: |
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Exhibit 10.1
SPONSOR SUPPORT AGREEMENT
This Sponsor Support Agreement (this “Agreement”) is dated as of September 15, 2026, by and among Union Street Sponsor, LLC, a Delaware limited liability company (the “Sponsor”), ACP Holdings Acquisition Corp., a Cayman Islands exempted company limited by shares (the “Purchaser”), and May Mobility, Inc., a Delaware corporation (the “Company”). Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined below).
WHEREAS, as of the date hereof, the Sponsor is the holder of record and the “beneficial owner” (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of (i) 7,153,867 Purchaser Class B Ordinary Shares (the “Founder Shares”) and (ii) 435,000 Cayman Purchaser Units (the “Units” and together with the Founder Shares, the “Subject Securities”);
WHEREAS, contemporaneously with the execution and delivery of this Agreement, the Purchaser, the Company and Maestro Merger Sub, Inc., a Delaware corporation, have entered into the Business Combination Agreement (as it may be amended, supplemented, restated or otherwise modified from time to time in accordance with its terms, the “Business Combination Agreement”), dated as of the date hereof, pursuant to which, among other transactions, the Purchaser and the Company intend to consummate the Transactions; and
WHEREAS, as an inducement to the Purchaser and the Company to enter into the Business Combination Agreement and to consummate the Transactions, the parties hereto desire to agree to certain matters as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, each intending to be legally bound hereby, hereby agree as follows:
ARTICLE I.
SPONSOR SUPPORT AGREEMENT; COVENANTS
Section 1.1 Binding Effect of Business Combination Agreement. The Sponsor hereby acknowledges that it has read the Business Combination Agreement and this Agreement and has had the opportunity to consult with its tax and legal advisors. The Sponsor shall be bound by, be subject to and comply with Sections 6.06 (No Solicitation), 6.16 (Public Announcements) and 6.17 (Confidential Information) of the Business Combination Agreement (and any relevant definitions contained in any such Sections) as if it were an original signatory to the Business Combination Agreement with respect to such provisions.
Section 1.2 No Transfer.
(a) Unless otherwise deemed a Permitted Transfer (as defined below), during the period commencing on the date hereof and ending on the earliest of (a) the Closing, (b) such date and time as the Business Combination Agreement shall be terminated in accordance with Section 8.01 (Termination) thereof (the earlier of (a) and (b), the “Expiration Time”) and (c) the liquidation of the Purchaser, the Sponsor shall not, without the prior written consent of the Company, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, file (or participate in the filing of) a registration statement with the SEC (other than the Proxy Statement/Registration Statement) or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, with respect to any Subject Securities owned by the Sponsor, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Subject Securities owned by the Sponsor or (iii) take any action in furtherance of any of the matters described in the foregoing clause (i) or (ii) (each, a “Transfer”).
(b) “Permitted Transfer” means any Transfer of Subject Securities: (i) to any officer or director of the Sponsor or any Affiliate or, in the case of an individual, to any family members of such individual; (ii) to any investment funds or vehicles controlled or managed by such Persons or their respective Affiliates; (iii) by gift to a trust, the beneficiary of which is a Person to who a Transfer would be permitted under clause (i), or to a charitable organization; (iv) in the case of an individual, by virtue of laws of descent and distribution upon death of such individual; (v) in the case of an individual, pursuant to a qualified domestic relations order; (vi) to a nominee or custodian of a Person to whom a Transfer would be permitted under clause (i); (vii) in the case of an entity that is a trust, Transfers to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust; (viii) in connection with any legal, regulatory or other order; (ix) to a third party in connection with any non-redemption, backstop arrangement or other similar arrangement; (x) to any PIPE Investor pursuant to the PIPE Subscription Agreement with such PIPE Investor; (xi) as otherwise mutually agreed upon between the Sponsor, the Purchaser and the Company; or (xii) to the Purchaser or the Company; provided, however, that in the case of clauses (i) through (vii) and clause (xi), as a precondition to such Transfer, such transferee must enter into a written agreement with the Company and the Purchaser, reasonably satisfactory to the Company, agreeing to assume all of the obligations under this Agreement with respect to such Subject Securities and to be bound by the transfer restrictions set forth in this Agreement (to the extent applicable); provided, further, that no Transfer permitted under this Section 1.2 shall relieve the Sponsor of its obligations under this Agreement.
Section 1.3 New Shares. In the event that (a) any Purchaser Ordinary Shares, Cayman Purchaser Units, Cayman Purchaser Warrants or other equity securities of the Purchaser are issued to the Sponsor after the date of this Agreement pursuant to any stock dividend, stock split, recapitalization, reclassification, combination or exchange of, on or affecting the Purchaser Ordinary Shares, Cayman Purchaser Units, the Cayman Purchaser Warrants or other equity securities of the Purchaser owned by the Sponsor or otherwise, (b) the Sponsor purchases or otherwise acquires beneficial ownership of any Purchaser Ordinary Shares, Cayman Purchaser Units, Cayman Purchaser Warrants or other equity securities of the Purchaser after the date of this Agreement, or (c) the Sponsor acquires the right to vote or share in the voting of any Purchaser Ordinary Shares, Cayman Purchaser Units, Cayman Purchaser Warrants or other equity securities of the Purchaser after the date of this Agreement (such Purchaser Ordinary Shares, Cayman Purchaser Units, Cayman Purchaser Warrants or other equity securities of the Purchaser, collectively, the “New Securities”), then such New Securities acquired or purchased by the Sponsor shall be subject to the terms of this Agreement to the same extent as if they constituted the Subject Securities owned by the Sponsor as of the date hereof.
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Section 1.4 Closing Date Deliverables. On the Closing Date, the Sponsor shall deliver to the Purchaser and the Company a duly executed copy of the A&R Registration Rights Agreement and the Sponsor Lock-Up Agreement.
Section 1.5 Agreements.
(a) At any meeting of the shareholders of the Purchaser, however called, or at any adjournment thereof, or in any other circumstance in which the vote, consent or other approval of the shareholders of the Purchaser is sought, the Sponsor agrees that it shall (i) appear at each such meeting or otherwise cause all of its Subject Securities, which are entitled to vote, to be counted as present thereat for purposes of calculating a quorum and (ii) vote (or cause to be voted), or execute and deliver a written consent (or cause a written consent to be executed and delivered) (which written consent shall be delivered promptly, and in any event within twenty-four hours after the Purchaser requests such delivery) covering, all of its Subject Securities, which are entitled to vote:
(i) in favor of each Transaction Proposal;
(ii) against any Alternative Transaction or any proposal relating to an Alternative Transaction (in each case, other than the Transaction Proposals);
(iii) against any merger agreement or merger (other than the Business Combination Agreement and the Transactions), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Purchaser;
(iv) against any change in the business, management or board of directors of the Purchaser (other than in connection with the Transaction Proposals or pursuant to the Business Combination Agreement or the Ancillary Documents); and
(v) against any proposal, action or agreement that would (A) impede, interfere, frustrate, prevent or nullify any provision of this Agreement, the Business Combination Agreement or the Transactions, (B) result in a breach in any respect of any covenant, representation, warranty or any other obligation or agreement of the Purchaser under the Business Combination Agreement, (C) result in any of the conditions set forth in Article VII (Closing Conditions) of the Business Combination Agreement not being fulfilled, (D) result in a breach of any covenant, representation or warranty or other obligation or agreement of the Sponsor contained in this Agreement or any Ancillary Document to which the Sponsor is or will be a party to, or (E) change in any manner the dividend policy or capitalization of, including the voting rights of any class of capital stock of, the Purchaser.
(b) The Sponsor hereby agrees that it shall not commit or agree to take any action inconsistent with the foregoing. The obligations of the Sponsor specified in this Section 1.5 shall apply whether or not the Transactions or any other action described above is recommended by the board of directors of the Purchaser or the board of directors of the Purchaser has effected a Modification in Recommendation.
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(c) The Sponsor shall comply with, and fully perform all of its obligations, covenants and agreements set forth in, the Insider Letter (as defined below), including the obligations pursuant to Section 1 therein to not redeem any Purchaser Ordinary Shares in connection with the Transactions.
Section 1.6 No Challenges. The Sponsor agrees not to commence, join in, facilitate, assist or encourage, and agrees to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against the Purchaser, the Company or any of their respective successors or directors (a) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or the Business Combination Agreement or (b) alleging a breach of any fiduciary duty of any person in connection with the evaluation, negotiation or entry into this Agreement, the Business Combination Agreement or the Transactions. Notwithstanding anything herein to the contrary, nothing in this Agreement shall limit or restrict the Sponsor from enforcing its rights under this Agreement or any other Ancillary Document to which the Sponsor is or will be a party or seek any other remedies with respect to any breach of this Agreement or such other Ancillary Document by any other party hereto or thereto, including by commencing any action in connection therewith.
Section 1.7 Further Assurances. The Sponsor shall take, or cause to be taken, all actions and do, or cause to be done, all things reasonably necessary under applicable Laws, or as reasonably requested by Purchaser or the Company, to effect the actions set forth herein and to consummate the transactions contemplated hereby on the terms and subject to the conditions set forth herein and the Transactions on the terms and subject to the conditions set forth in the Business Combination Agreement.
Section 1.8 No Inconsistent Agreement. The Sponsor hereby represents and covenants that it has not entered into, and shall not enter into, any agreement that would restrict, limit or interfere with the performance of its obligations hereunder. The Sponsor agrees to reasonably promptly notify the Purchaser and the Company in writing of any updates to the Subject Securities after the date hereof and prior to Closing.
Section 1.9 Insider Letter. Neither the Sponsor nor the Purchaser shall amend, terminate or otherwise modify that certain letter agreement, dated as of April 6, 2026, by and among the Purchaser, the Sponsor and certain of the Purchaser’s current and former officers and directors (the “Insider Letter”) without the Company’s prior written consent.
Section 1.10 Waiver of Anti-Dilution Provision. The Sponsor hereby (but subject to the consummation of the Transactions) waives (for itself, for its successors, heirs and assigns), to the fullest extent permitted by law and the amended and restated memorandum and articles of association of the Purchaser (as may be amended from time to time, the “Articles”), any and all anti-dilution rights with respect to the rate that the Purchaser Class B Ordinary Shares held by the Sponsor convert into Purchaser Class A Ordinary Shares in connection with the transactions contemplated by the Business Combination Agreement. The waiver specified in this Section 1.10 shall be applicable only in connection with the Transactions and the transactions contemplated by this Agreement (and any Purchaser Class A Ordinary Shares, shares of Domesticated Purchaser Common Stock or equity-linked securities issued in connection with the Transactions and the transactions contemplated by this Agreement) and shall be void and of no force and effect if the Business Combination Agreement shall be terminated for any reason.
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Section 1.11 Waiver of Redemption Rights. The Sponsor hereby agrees that it shall not (a) demand that the Purchaser redeem any Subject Securities in connection with the Transactions or (b) otherwise participate in any such redemption by tendering or submitting any of the Subject Securities for redemption, in each case, in addition to and without limiting the Sponsor’s obligations under Section 1 of the Insider Letter.
Section 1.12 Sponsor Share Conversion. Prior to the Domestication, the Sponsor shall elect to convert, and shall cause each of its Affiliates and members holding Purchaser Class B Ordinary Shares to elect to convert, each Purchaser Class B Ordinary Share held by it or them, as applicable, on a one-for-one basis, into one Purchaser Class A Ordinary Share, in accordance with the Purchaser’s Organizational Documents and as contemplated by the Business Combination Agreement (the “Sponsor Share Conversion”), and shall take all actions reasonably necessary or advisable to effect the Sponsor Share Conversion.
Section 1.13 Sponsor Accommodation Share Transfer; Earnout Securities.
(a) The Sponsor hereby unconditionally agrees and covenants that, within ten (10) Business Days of the date hereof, it shall transfer and assign an aggregate of 1,375,000 Founder Shares (the “Sponsor Accommodation Shares”) to the PIPE Investors, in accordance with and subject to the terms and conditions of Section 4.17(a) of the applicable PIPE Subscription Agreement with such PIPE Investor.
(b) In consideration for the Sponsor’s transfer and assignment of the Sponsor Accommodation Shares, the Purchaser shall issue to the Sponsor, only upon and subject to the occurrence of the applicable Triggering Event (as defined below), an aggregate number of shares of Domesticated Purchaser Common Stock equal to the number of Sponsor Accommodation Shares (such shares, the “Earnout Securities”), which shall be issuable in accordance with Article III. The Earnout Securities shall be issued free and clear of all Liens (other than, to the extent applicable, (i) restrictions on transfer arising under applicable securities Laws and (ii) the transfer restrictions set forth in the Sponsor Lock-Up Agreement). The Earnout Securities shall, at the time of issuance, be duly authorized, validly issued, fully paid and non-assessable, be issued in book-entry form and be evidenced in the records of the Purchaser’s transfer agent.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of the Sponsor. The Sponsor represents and warrants as of the date hereof to the Purchaser and the Company:
(a) Ownership. The Sponsor represents and warrants as of the date hereof to the Purchaser and the Company that the Sponsor is the record and beneficial owner (as defined in Rule 13d-3 of the Exchange Act) of, and has good title to, all of the Subject Securities, and there exist no Liens or any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such Subject Securities (other than transfer restrictions under the Securities Act)) affecting any such Subject Securities, other than Liens pursuant to (i) this Agreement, (ii) the Purchaser’s Organizational Documents, (iii) the Business Combination Agreement, (iv) the Insider Letter, (v) the Sponsor’s Organizational Documents or (vi) any applicable securities Laws. The Subject Securities are the only equity securities in the Purchaser owned of record or beneficially by the Sponsor on the date of this Agreement, and none of the Subject Securities will be subject to any proxy, voting trust or other agreement or arrangement with respect to the voting of such Subject Securities, except as provided hereunder and under the Insider Letter. Other than the Subject Securities held by the Sponsor and the Sponsor’s right to receive Earnout Securities under this Agreement, the Sponsor does not hold or own any rights to acquire (directly or indirectly) any equity securities of the Purchaser or any equity securities convertible into, or which can be exchanged for, equity securities of the Purchaser.
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(b) Organization; Due Authorization. The Sponsor is duly organized, validly existing and in good standing as a limited liability company under the Laws of the jurisdiction in which it is incorporated, formed, organized or constituted, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the Sponsor’s limited liability company powers and have been duly authorized by all necessary limited liability company actions on the part of the Sponsor. This Agreement has been duly executed and delivered by the Sponsor and, assuming due authorization, execution and delivery by the other parties to this Agreement, this Agreement constitutes a legally valid and binding obligation of the Sponsor, enforceable against the Sponsor in accordance with the terms hereof (subject to the Enforceability Exceptions).
(c) No Conflicts. The execution and delivery of this Agreement by the Sponsor does not, and the performance by the Sponsor of its obligations hereunder will not, (i) conflict with or result in a violation of the organizational documents of the Sponsor or (ii) require any consent or approval that has not been given or other action that has not been taken by any Person (including under any Contract binding upon the Sponsor or the Subject Securities held or to be held by the Sponsor), in each case, to the extent such consent, approval or other action would prevent, enjoin or materially delay the performance by the Sponsor of its obligations under this Agreement.
(d) Litigation. There are no Legal Proceedings pending against the Sponsor, or to the knowledge of the Sponsor threatened in writing against the Sponsor, before (or, in the case of threatened Legal Proceedings, that would be before) any arbitrator or any Governmental Authority, which in any manner challenges or seeks to prevent, enjoin or materially delay the performance by the Sponsor of its obligations under this Agreement.
(e) Brokerage Fees. Except as described in Section 5.15 (Finders and Brokers) of the Purchaser Disclosure Letter to the Business Combination Agreement, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the Transactions based upon arrangements made by the Sponsor, for which the Purchaser or any of its Affiliates may become liable.
(f) Acknowledgment. The Sponsor understands and acknowledges that each of the Purchaser and the Company is entering into the Business Combination Agreement in reliance upon the Sponsor’s execution and delivery of this Agreement.
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ARTICLE III.
EARNOUT
Section 3.1 Earnout Securities. The Sponsor hereby agrees that the Earnout Securities, or a portion thereof, are issuable by the Purchaser to the Sponsor only upon and subject to the achievement of one or more Triggering Events in accordance with this Article III. Any Earnout Securities that are not earned by the Earnout Deadline shall not be issued, and the Sponsor’s right to receive such Earnout Securities shall automatically terminate for no consideration.
Section 3.2 Procedures Applicable to the Earnout Securities.
(a) Promptly upon the occurrence of any Triggering Event, the Sponsor shall prepare and deliver written notice to the Purchaser (each, an “Earnout Notice”), which Earnout Notice shall set forth in reasonable detail the Triggering Event giving rise to the issuance of Earnout Securities and the number of Earnout Securities issuable as a result of such Triggering Event. The Purchaser, on the one hand, and the Sponsor, on the other hand, shall use commercially reasonable efforts to resolve any disputes in good faith that may arise between them with respect to the determination of the occurrence of a Triggering Event and the number of Earnout Securities issuable as a result of such Triggering Event. In the event the Purchaser and the Sponsor are unable to reach mutual agreement with each other with respect to the determination of the occurrence of a Triggering Event or the number of Earnout Securities issuable as a result of such Triggering Event, all unresolved disputed items shall be promptly referred to an impartial nationally recognized firm of independent certified public accountants appointed by mutual agreement of the Purchaser and the Sponsor (the “Independent Accountant”). The Independent Accountant shall be directed to render a written report on the unresolved disputed items with respect to the applicable Triggering Event and related Earnout Notice as promptly as practicable and to resolve only those unresolved disputed items. The Purchaser and the Sponsor shall each furnish to the Independent Accountant such work papers, schedules and other documents and information relating to the unresolved disputed items as the Independent Accountant may reasonably request. The Independent Accountant shall resolve the disputed items based solely on the terms and conditions in this Agreement and the presentations made on behalf of the Purchaser and the Sponsor and not by independent review. The resolution of any such dispute by the Independent Accountant shall be final and binding on the parties absent manifest error in its determination, in which case the matter will be brought back to the Independent Accountant for correction no more than one time by the Purchaser or the Sponsor, after which the determination of the Independent Accountant shall be final and binding. The fees and expenses of the Independent Accountant shall be borne equally by the Purchaser and the Sponsor.
(b) Promptly, and in any event within 5 Business Days, following the Purchaser’s receipt of an Earnout Notice (or the final resolution of any disputes with respect to such Earnout Notice in accordance with Section 3.2(a)), the Purchaser shall issue, or shall cause its transfer agent to issue, in book-entry form, the applicable Earnout Securities to the Sponsor, duly authorized, validly issued, fully paid and non-assessable and free and clear of all Liens (other than restrictions on transfer arising under applicable securities Laws and the transfer restrictions, if any, set forth in the Sponsor Lock-Up Agreement).
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(c) Prior to the issuance of any Earnout Securities, the Sponsor shall have no rights as a stockholder of the Purchaser with respect to such unissued Earnout Securities, including no voting, dividend or other rights. The right to receive any Earnout Securities may not be transferred, directly or indirectly, except pursuant to a Permitted Transfer, and, as a condition to such Permitted Transfer, the transferee must agree in writing to be bound by this Article III. Notwithstanding anything to the contrary contained herein, in the event that the Sponsor ceases to hold any right to receive Earnout Securities and members or former members of the Sponsor hold any right to receive Earnout Securities directly, such members or former members of the Sponsor shall be treated as the Sponsor under this Article III; provided that such members or former members of the Sponsor, taken as a whole, shall (i) exercise their rights based on the majority-in-interest of such members or former members holding rights to receive Earnout Securities; and (ii) not be entitled to rights in excess of those conferred on the Sponsor, as if the Sponsor remained a single entity party to this Agreement.
(d) Notwithstanding the foregoing, any Earnout Securities that are not earned in accordance with the terms of this Article III as of the end of the day on the six-year anniversary of the Triggering Date (the “Earnout Deadline”) (or such later date as may be applicable in the case of the Triggering Event set forth in Section 3.3(e)) shall not be issued, and the Sponsor’s right to receive such Earnout Securities shall automatically terminate for no consideration.
Section 3.3 Triggering Events. The Earnout Securities shall be earned and become issuable to the Sponsor in accordance with Section 3.2(b), as follows (each such event, a “Triggering Event”):
(a) the first time, prior to the Earnout Deadline, that the VWAP equals or exceeds $11.00 per share (such share price as adjusted pursuant to this Article III, the “Price Target 1”) for 20 Trading Days within any 30 consecutive Trading Day period following the date that is the twelve-month anniversary of the date that the first registration statement to be filed by the Company pursuant to the A&R Registration Rights Agreement first becomes effective under the Securities Act of 1933, as amended (the “Triggering Date”), 25% of the Earnout Securities shall be earned and become issuable to the Sponsor in accordance with Section 3.2(b);
(b) the first time, prior to the Earnout Deadline, that the VWAP equals or exceeds $12.00 per share (such share price as adjusted pursuant to this Article III, the “Price Target 2”) for 20 Trading Days within any 30 consecutive Trading Day period following the Triggering Date, 25% of the Earnout Securities shall be earned and become issuable to the Sponsor in accordance with Section 3.2(b);
(c) the first time, prior to the Earnout Deadline, that the VWAP equals or exceeds $13.00 per share (such share price as adjusted pursuant to this Article III, the “Price Target 3”) for 20 Trading Days within any 30 consecutive Trading Day period following the Triggering Date, 25% of the Earnout Securities shall be earned and become issuable to the Sponsor in accordance with Section 3.2(b);
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(d) the first time, prior to the Earnout Deadline, that the VWAP equals or exceeds $14.00 per share (such share price as adjusted pursuant to this Article III, the “Price Target 4”) for 20 Trading Days within any 30 consecutive Trading Day period following the Triggering Date, 25% of the Earnout Securities shall be earned and become issuable to the Sponsor in accordance with Section 3.2(b); and
(e) if a definitive agreement with respect to a Change of Control is entered into on or prior to the Earnout Deadline, then, effective as of immediately prior to, and subject to the occurrence of, the closing of such Change of Control, all then-unissued Earnout Securities shall be earned and become issuable to the Sponsor in accordance with Section 3.2(b).
Section 3.4 Achievement of Multiple Triggering Events; Equitable Adjustments.
(a) For the avoidance of doubt, if the condition for more than one Triggering Event is met pursuant to Section 3.3, the Earnout Securities that are earned in connection with each such Triggering Event shall become issuable to the Sponsor in accordance with Section 3.2(b), and shall be cumulative with the Earnout Securities earned prior to such time in connection with the satisfaction of any other Triggering Event (if any). For the avoidance of doubt, the terms of this Article III shall be subject to Section 3.4(c) with respect to equitable adjustments.
(b) If the Purchaser, at any time prior to a Triggering Event, shall pay a dividend or make a distribution in cash, securities or other assets to the holders of Domesticated Purchaser Common Stock, other than as described in Section 3.4(c) (any such non-excluded event being referred to herein as an “Extraordinary Dividend”), then Price Target 1, Price Target 2, Price Target 3 and Price Target 4 shall each be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and/or the fair market value (as determined by the Purchaser’s board of directors, in good faith; provided that if the Sponsor disagrees with such determination the Sponsor may dispute such determination and such dispute shall be resolved in accordance with the procedures described in Section 3.2(b), mutatis mutandis) of any securities or other assets paid on the shares of Domesticated Purchaser Common Stock in respect of such Extraordinary Dividend.
(c) If the outstanding shares of Domesticated Purchaser Common Stock shall have been changed into a different number of shares or a different class, by reason of any stock dividend, share capitalization, subdivision, reclassification, recapitalization, split, combination, consolidation or exchange of shares, or any similar event shall have occurred, then any number or amount contained in this Agreement that is based upon the number of shares of Domesticated Purchaser Common Stock or the price of Domesticated Purchaser Common Stock shall be appropriately adjusted to provide the same economic effect as contemplated by this Agreement prior to such event.
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Section 3.5 Definitions. Capitalized terms used but not defined in this Article III shall have the following meanings:
(a) “Change of Control” means, solely for purposes of this Article III, (i) a direct or indirect sale, lease, transfer, or other disposition of all or substantially all of the assets of the Purchaser and the Target Companies (taken as a whole) in any transaction or series of related transactions to a Person or a “group” (as such term is defined under Regulation 13D under the Exchange Act), or (ii) any transaction with a Person or “group” (as such term is defined under Regulation 13D under the Exchange Act), pursuant to which such Person or group acquires, directly or indirectly, in any single transaction or series of related transactions, more than 50% of the total voting power or economic rights of the equity securities of the Purchaser (excluding, for the avoidance of doubt, any Earnout Securities to be issued in connection with such transaction(s) pursuant to this Article III), whether by merger, consolidation, sale, exchange, issuance, transfer or redemption of equity securities or otherwise; provided, that “Change of Control” shall not include (A) any bona fide financing transaction (including the PIPE Investment or any subsequent equity or debt financing of the Purchaser), (B) any transaction solely between or among the Purchaser and one or more of its wholly owned Subsidiaries, or (C) any reincorporation, reorganization, reclassification or other change in the Purchaser’s corporate structure that does not result in a change in the ultimate beneficial ownership of more than 50% of the total voting power or economic rights of the equity securities of the Purchaser.
(b) “Stock Exchange” means The Nasdaq Stock Market LLC.
(c) “Trading Day” means any day on which the Domesticated Purchaser Common Stock is traded on the Stock Exchange, or, if the Stock Exchange is not the principal trading market for the Domesticated Purchaser Common Stock on such day, then on the principal national securities exchange or securities market on which the Domesticated Purchaser Common Stock is then traded.
(d) “VWAP” means the volume-weighted average share price of Domesticated Purchaser Common Stock as displayed on the Purchaser’s page on Bloomberg (or any successor service) in respect of the period from 9:30 a.m. to 4:00 p.m., New York City time, on such Trading Day.
ARTICLE IV.
MISCELLANEOUS
Section 4.1 Termination. This Agreement and all of its provisions (other than Article III (Earnout) and this Article IV, which shall survive in accordance with their terms) shall terminate and be of no further force or effect upon the earliest of (a) the Expiration Time, (b) the liquidation of the Purchaser and (c) the written agreement of the Sponsor, the Purchaser and the Company. Upon such termination of this Agreement, all obligations of the parties under this Agreement (other than those set forth in Article III (Earnout) and this Article IV) will terminate, without any liability or other obligation on the part of any party hereto to any Person in respect hereof or the transactions contemplated hereby, and no party hereto shall have any claim against another (and no Person shall have any rights against such party), whether under contract, tort or otherwise, with respect to the subject matter hereof; provided, however, that the termination of this Agreement shall not relieve any party hereto from liability arising in respect of any breach of this Agreement prior to such termination. For the avoidance of doubt, (i) if this Agreement terminates as a result of the occurrence of the Closing, Article III (Earnout) shall survive such termination and continue in full force and effect in accordance with its terms, and (ii) if this Agreement terminates for any reason other than the occurrence of the Closing (including because the Business Combination Agreement is terminated, the Purchaser is liquidated, or the parties mutually agree in writing to terminate this Agreement, in each case prior to the Closing), (A) Article III (Earnout) shall automatically terminate and be of no further force or effect, (B) no Earnout Securities shall be issued, and (C) the PIPE Investors, in accordance with and subject to the terms and conditions of Section 4.17(a) of the applicable PIPE Subscription Agreement with such PIPE Investor, shall return such Sponsor Accommodation Shares to Sponsor.
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Section 4.2 Assignment. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder will be assigned (including by operation of law) without the prior written consent of the parties hereto.
Section 4.3 Specific Performance. The parties hereto agree that irreparable damage may occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties hereto shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the chancery court or any other state or federal court within the State of Delaware, this being in addition to any other remedy to which such party is entitled at law or in equity. In the event that any proceeding shall be brought in equity to enforce the provisions of this Agreement, no party shall allege, and each party hereby waives the defense, that there is an adequate remedy at law, and each party agrees to waive any requirement for the securing or posting of any bond in connection therewith.
Section 4.4 Amendment. This Agreement may not be amended, changed, supplemented, waived or otherwise modified or terminated, except upon the execution and delivery of a written agreement executed by the Purchaser, the Company and the Sponsor.
Section 4.5 Miscellaneous. Sections 9.02 (Notices), 9.05 (Governing Law), 9.06 (Jurisdiction), 9.07 (Waiver of Jury Trial), 9.09 (Severability), 9.11 (Entire Agreement), 9.12 (Interpretation), 9.13 (Counterparts) and 9.15 (Waiver of Claims Against Trust) of the Business Combination Agreement are each hereby incorporated into this Agreement (including any relevant definitions contained in any such Sections), mutatis mutandis; provided, that, for purposes of Section 9.02 (Notices) as incorporated herein, notices to the Sponsor shall be delivered to: Union Street Sponsor, LLC, 3131 Eastside Street, Attn: Andrew Mallozzi, Email: [email protected] (or at such other address as the Sponsor shall specify by like notice).
Section 4.6 Effectiveness. This Agreement shall not be effective or binding upon any party hereto until such time as the Business Combination Agreement is executed and delivered by the Purchaser, the Company and Merger Sub.
Section 4.7 No Third-Party Beneficiaries. Nothing contained in this Agreement shall create any rights in or be deemed to have been executed for the benefit of, any Person that is not a party hereto or a successor or permitted assign of such a party.
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IN WITNESS WHEREOF, the Sponsor, the Purchaser and the Company have each caused this Agreement to be duly executed as of the date first written above.
| SPONSOR: | |||
| UNION STREET SPONSOR, LLC | |||
| By: | /s/ Andrew Mallozzi | ||
| Name: | Andrew Mallozzi | ||
| Title: | Chief Executive Officer | ||
Signature Page to Sponsor Support Agreement
IN WITNESS WHEREOF, the Sponsor, the Purchaser and the Company have each caused this Agreement to be duly executed as of the date first written above.
| PURCHASER: | |||
| ACP HOLDINGS ACQUISITION CORP. | |||
| By: | /s/ Andrew Mallozzi | ||
| Name: | Andrew Mallozzi | ||
| Title: | Chief Executive Officer | ||
Signature Page to Sponsor Support Agreement
IN WITNESS WHEREOF, the Sponsor, the Purchaser and the Company have each caused this Agreement to be duly executed as of the date first written above.
| COMPANY: | |||
| MAY MOBILITY, INC. | |||
| By: | /s/ Edwin Olson | ||
| Name: | Edwin Olson | ||
| Title: | Chief Executive Officer | ||
Signature Page to Sponsor Support Agreement
Exhibit 10.2
SELLER VOTING AND SUPPORT AGREEMENT
This SELLER VOTING AND SUPPORT AGREEMENT (this “Agreement”), is dated as of [●], 2026, by and among ACP Holdings Acquisition Corp., a Cayman Islands exempted company (which shall transfer by way of continuation and domesticate as a Delaware corporation prior to the Closing) (the “Purchaser”), May Mobility, Inc., a Delaware corporation (the “Company”) and certain stockholders of the Company, whose names appear on the signature pages of this Agreement (each, a “Seller” and, collectively, the “Sellers”). Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined below).
WHEREAS, as of the date hereof, the Sellers are the holders of such number and type of Company Securities as are indicated opposite each of their names on Schedule I attached hereto (collectively, the “Subject Securities”);
WHEREAS, the Purchaser and the Company and the other parties thereto have entered into the Business Combination Agreement (as it may be amended, supplemented, restated or otherwise modified from time to time in accordance with its terms, the “Business Combination Agreement”), dated as of [●], 2026, pursuant to which, among other transactions, the Purchaser and the Company intend to consummate the Transactions; and
WHEREAS, as an inducement to the Purchaser and the Company to consummate the Transactions contemplated by the Business Combination Agreement, the parties hereto desire to agree to certain matters as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, each intending to be legally bound hereby, hereby agree as follows:
ARTICLE I
Voting and SUPPORT AGREEMENT; COVENANTS
Section 1.1 Binding Effect of Business Combination Agreement. Each of the Sellers hereby acknowledges that he, she or it has read the Business Combination Agreement and this Agreement and has had the opportunity to consult with his, her or its tax and legal advisors. Each of the Sellers shall be bound by and comply with Section 6.06 (No Solicitation), Section 6.07 (No Trading), Section 6.16 (Public Announcements) and Section 6.17 (Confidential Information) of the Business Combination Agreement (and any relevant definitions contained in any such Sections) as if such Seller was an original signatory to the Business Combination Agreement with respect to such provisions.
Section 1.2 No Transfer.
(a) Unless otherwise deemed a Permitted Transfer (as defined below), during the period commencing on the date hereof and ending on the earliest of (a) the Closing, (b) such date and time as the Business Combination Agreement shall be terminated in accordance with Section 8.01 (Termination) thereof (the earlier of (a) and (b), the “Expiration Time”) and (c) the liquidation of the Company, the Sellers shall not, without the prior written consent of the Purchaser and the Company, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, file (or participate in the filing of) a registration statement with the SEC (other than the Proxy Statement/Registration Statement) or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, with respect to any Subject Securities owned by the Sellers, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Subject Securities owned by the Sellers or (iii) take any action in furtherance of any of the matters described in the foregoing clause (i) or (ii) (each, a “Transfer”).
(b) “Permitted Transfer” means any Transfer of Subject Securities (i) to any Affiliates or, in the case of an individual, to any family members of such Seller, (ii) to any investment funds or vehicles controlled or managed by such Seller or its Affiliates, (iii) by gift to a trust, the beneficiary of which is a Person to whom a Transfer would be permitted under clause (i), or to a charitable organization, (iv) in the case of an individual, by virtue of laws of descent and distribution upon death of such individual, (v) in the case of an individual, pursuant to a qualified domestic relations order, (vi) to a nominee or custodian of a Person to whom a Transfer would be permitted under clause (i), (vii) in the case of an entity that is a trust, Transfers to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust, (viii) to a third party in connection with any non-redemption, backstop arrangement or other similar arrangement, (ix) in connection with any legal, regulatory or other order; or (x) as otherwise mutually agreed upon between such Seller, the Purchaser and the Company; provided, however, that in the case of clauses (i) through (vii) and clause (x), as a precondition to such Transfer, such transferee must enter into a written agreement with the Company and the Purchaser agreeing to assume all of the obligations under this Agreement with respect to such Subject Securities and to be bound by the transfer restrictions set forth in this Agreement (to the extent applicable); provided, further, that, no Transfer permitted under this Section 1.2 shall relieve such Seller of its obligations under this Agreement.
Section 1.3 New Shares. In the event that (a) any shares of Company Securities are issued to a Seller after the date of this Agreement pursuant to any stock dividend, stock split, recapitalization, reclassification, combination or exchange of, on or affecting the Company Securities owned by such Seller or otherwise, (b) a Seller purchases or otherwise acquires beneficial ownership of any Company Securities after the date of this Agreement, or (c) a Seller acquires the right to vote or share in the voting of any Company Securities after the date of this Agreement (such Company Securities, collectively, the “New Securities”), then such New Securities acquired or purchased by such Seller shall be subject to the terms of this Agreement to the same extent as if they constituted the Subject Securities owned by such Seller as of the date hereof.
Section 1.4 Closing Date Deliverables. On the Closing Date, each of the Sellers shall deliver:
(a) a properly completed and duly executed IRS Form W-9 (or, as applicable, a Form W-8BEN or similar IRS form) from such Seller; and
(b) a duly executed copy of that certain A&R Registration Rights Agreement.
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Section 1.5 Seller Agreements. At any meeting of the stockholders of the Company, however called, or at any adjournment thereof, or in any other circumstance in which the vote, consent or other approval of the stockholders of the Company is sought, each of the Sellers shall (i) appear at each such meeting or otherwise cause all of its Subject Securities, which are entitled to vote, to be counted as present thereat for purposes of calculating a quorum and (ii) vote (or cause to be voted), or execute and deliver a written consent (or cause a written consent to be executed and delivered) (which written consent shall be delivered promptly, and in any event within twenty-four (24) hours after the Company requests such delivery) covering, all of his, her or its Subject Securities, which are entitled to vote:
(a) to approve and adopt the Business Combination Agreement and the consummation of the Transactions;
(b) against any Alternative Transaction or any proposal relating to an Alternative Transaction;
(c) against any merger agreement or merger (other than the Business Combination Agreement and the Transactions), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by the Company;
(d) against any change in the business or board of directors of the Company (other than pursuant to the Business Combination Agreement or the Ancillary Documents);
(e) against any proposal, action or agreement that would (A) impede, interfere, frustrate, prevent or nullify any provision of this Agreement, the Business Combination Agreement or the Transactions, (B) result in a breach in any respect of any covenant, representation, warranty or any other obligation or agreement of the Company under the Business Combination Agreement, (C) result in any of the conditions set forth in Article VII (Closing Conditions) of the Business Combination Agreement not being fulfilled, (D) result in a breach of any covenant, representation or warranty or other obligation or agreement of such Seller contained in this Agreement or any Ancillary Document such Seller is or will be party to, or (E) change in any manner the dividend policy or capitalization of, including the voting rights of any class of capital stock of the Company;
(f) to convert all outstanding shares of Company Preferred Stock into Company Common Stock as of immediately prior to the Effective Time (and after giving effect to the conversions and exercises described in Sections 2.01(a)-(c) of the Business Combination Agreement) in accordance with the Company’s Organizational Documents;
(g) Each Seller hereby agrees that he, she or it shall not commit or agree to take any action inconsistent with the foregoing. Each Seller further agrees that, with respect to any written consent to be delivered pursuant to the obligations of such Seller under this Section 1.5, such written consent shall be delivered promptly following the time at which the Registration Statement has been declared effective under the Securities Act and delivered or otherwise made available to the Sellers (and, in any event, within three (3) Business Days thereof);
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(h) Without limiting any other rights or remedies of Purchaser or the Company, each Seller, severally and not jointly, hereby irrevocably appoints the Company or any individual designated by the Company as such Seller’s agent, attorney-in-fact and proxy (with full power of substitution and resubstitution), for and in the name, place and stead of such Seller, to attend on behalf of such Seller any meeting of the stockholders of the Company with respect to the matters described in this Section 1.5, to include such Seller’s Subject Securities in any computation for purposes of establishing a quorum at any such meeting of the stockholders of the Company, to vote (or cause to be voted) such Seller’s Subject Securities or consent (or withhold consent) with respect to any of the matters described in this Section 1.5 in connection with any meeting of the stockholders of the Company or any action by written consent by the stockholders of the Company, in each case, in the event that (i) such Seller fails to perform or otherwise comply with the covenants, agreements or obligations set forth in this Section 1.5 and continues to fail to perform or otherwise comply with such covenants, agreements or obligations for two (2) Business Days following written notice from the Company of such failure to perform or comply, or (ii) such Seller challenges, directly or indirectly, the validity or enforceability of its covenants, agreements or obligations under this Section 1.5, or the voting proxy it executes. For the avoidance of doubt, this does not prevent such Seller from withdrawing or otherwise challenging the voting proxy if this Agreement has terminated in accordance with its terms;
(i) The proxy granted by the Sellers pursuant to Section 1.5(h) is coupled with an interest sufficient in law to support an irrevocable proxy and is granted in consideration for Purchaser and the Company having entered into the Business Combination Agreement and agreeing to consummate the Transactions. The proxy granted by each Seller pursuant to Section 1.5(h) is also a durable proxy and shall survive the bankruptcy, dissolution, death, incapacity or other inability to act by such Seller and, upon such Seller’s execution of this Agreement, shall revoke any and all prior proxies granted by such Seller with respect to the Subject Securities. The vote or consent of the proxyholder with respect to the matters described in this Section 1.5 shall control in the event of any conflict between such vote or consent by the proxyholder of such Seller’s Subject Securities and a vote or consent by such Seller of its Subject Securities (or any other Person with the power to vote or provide consent with respect to such Subject Securities) with respect to the matters described in this Section 1.5. The proxyholder may not exercise the proxy granted pursuant to Section 1.5(h) on any matter except for those matters described in this Section 1.5; and
(j) Effective as of the Closing, each Seller generally and irrevocably releases and discharges the Company, Purchaser and their respective affiliates, and the respective successors, direct and indirect equity holders, directors and officers of each of the foregoing from any and all claims, liabilities and obligations, known or unknown, arising prior to the Closing; provided, however, that nothing in this Section 1.5 shall release any rights of such Seller (i) under this Agreement, the Business Combination Agreement or any Ancillary Document, (ii) to indemnification or advancement of expenses under the Company’s Organizational Documents or (iii) under any commercial or employment agreements or arrangements between such Seller and the Company or any of its Subsidiaries.
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Section 1.6 No Challenges. Each Seller agrees not to commence, join in, facilitate, assist or encourage, and agrees to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Purchaser, the Company or any of their respective successors or directors (a) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or the Business Combination Agreement or (b) alleging a breach of any fiduciary duty of any person in connection with the evaluation, negotiation or entry into this Agreement, the Business Combination Agreement or the Transactions.
Section 1.7 Further Assurances. Each Seller shall take, or cause to be taken, all actions and do, or cause to be done, all things reasonably necessary under applicable Laws, or as reasonably requested by Purchaser or the Company, to effect the actions set forth herein and to consummate the transactions contemplated hereby on the terms and subject to the conditions set forth herein and the Transactions on the terms and subject to the conditions set forth in the Business Combination Agreement.
Section 1.8 No Inconsistent Agreement. Each Seller hereby represents and covenants that such Seller has not entered into, and shall not enter into, any agreement that would restrict, limit, or interfere with the performance of such Seller’s obligations hereunder. Each Seller agrees to reasonably promptly notify the Purchaser in writing of any updates to Schedule I hereto after the date hereof and prior to Closing.
Section 1.9 Appraisal Rights. Each Seller hereby waives and agrees not to exercise any rights of appraisal or rights to dissent from the Transactions that he, she or it may have with respect to the Subject Securities under applicable Law.
Section 1.10 Consent to Disclosure. Each Seller hereby consents to the publication and disclosure in the Proxy Statement/Registration Statement (and, as and to the extent otherwise required by applicable securities laws or the SEC or any other securities authorities, any documents or communications provided by the Purchaser or the Company to any Governmental Authority and to Purchaser’s stockholders) of such Seller’s identity and beneficial ownership of the Subject Securities and the nature of such Seller’s commitments, arrangements and understandings under and relating to this Agreement and, if deemed appropriate by the Purchaser and the Company, a copy of this Agreement. Each Seller will promptly provide any information reasonably requested by Purchaser or the Company that is reasonably necessary for any regulatory application or filing made or approval sought in connection with the Transactions (including filings with the SEC).
Section 1.11 Termination of Agreements. Each Seller, by this Agreement, with respect to its Subject Securities, severally and not jointly, hereby terminates, subject to the occurrence of, and effective immediately prior to, the Effective Time, and provided that all Terminating Rights (as defined below) between the Company or any of its Subsidiaries and any other holder of Company Securities shall also terminate at such time the Stockholder Agreements (as defined below) and, if applicable to such Seller, any board designation rights, rights under any letter agreement providing for redemption rights, put rights, purchase rights, information rights, rights to consult with and advise management, inspection rights, preemptive rights, Company board of directors observer rights or rights to receive information delivered to the Company board of directors or other similar rights not generally available to stockholders of the Company (the “Terminating Rights”) between such Seller and the Company, but excluding, for the avoidance of doubt, any rights such Seller may have that relate to any commercial or employment agreements or arrangements between such Seller and the Company or any Subsidiary, which shall survive in accordance with their terms.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of the Seller. Each Seller, severally and not jointly, represents and warrants as of the date hereof to the Purchaser and the Company, in each case, only with respect to his, her or itself, as follows:
(a) Organization; Due Authorization. (i) If the Seller is a natural person, he or she has all the requisite power and authority and has taken all action necessary in order to execute and deliver this Agreement, to perform his or her obligations hereunder and to consummate the transactions contemplated hereby, and (ii) if the Seller is not a natural person, it is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated, formed, organized or constituted, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within such Seller’s corporate, limited liability company or similar organizational powers and have been duly authorized by all necessary corporate, limited liability company, or similar organizational actions on the part of such Seller. This Agreement has been duly executed and delivered by such Seller and, assuming due authorization, execution and delivery by the other parties hereto, this Agreement constitutes a legally valid and binding obligation of such Seller, enforceable against such Seller in accordance with the terms hereof (subject to the Enforceability Exceptions). If this Agreement is being executed in a representative or fiduciary capacity, the Person signing this Agreement has full power and authority to enter into this Agreement on behalf of such Seller.
(b) Ownership. Such Seller is the record and beneficial owner (as defined in Rule 13d-3 of the Exchange Act) of, and has good title to, all of its Subject Securities, and there exists no Liens or any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such Subject Securities (other than transfer restrictions under the Securities Act)) affecting any such Subject Securities, other than Liens, limitations or restrictions pursuant to (i) this Agreement, (ii) the Company’s Organizational Documents, (iii) the Business Combination Agreement, (iv) that certain Amended and Restated Investors’ Rights Agreement, dated as of April 17, 2025, by and among the Company and the other parties therein (as it may be amended, supplemented, restated or otherwise modified from time to time in accordance with its terms, the “Investor Rights Agreement”), (v) that certain Amended and Restated Voting Agreement, dated as of April 17, 2025, by and among the Company and the other parties therein (as it may be amended, supplemented, restated or otherwise modified from time to time in accordance with its terms, the “Company Voting Agreement”), (vi) that certain Amended and Restated First Refusal and Co-Sale Agreement, dated as of April 17, 2025, by and among the Company and the other parties therein (as it may be amended, supplemented, restated or otherwise modified from time to time in accordance with its terms, the “Co-Sale Agreement” and, together with the Investor Rights Agreement and Company Voting Agreement the “Stockholder Agreements”) (vii) if the Seller is not a natural person, the Seller’s Organizational Documents, or (viii) any applicable securities laws. Such Seller’s Subject Securities are the only equity securities of the Company owned of record or beneficially by such Seller on the date of this Agreement, and none of such Subject Securities are subject to any proxy, voting trust or other agreement or arrangement with respect to the voting of such Subject Securities, except as provided hereunder and under the Company’s Organizational Documents and the Company Voting Agreement. Other than the Subject Securities, such Seller does not hold or own any rights to acquire (directly or indirectly) any equity securities of the Company or any equity securities convertible into, or which can be exchanged for, equity securities of the Company, other than stock options, restricted stock units or other equity awards granted pursuant to any equity incentive plan of the Company.
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(c) No Conflicts. The execution and delivery of this Agreement by such Seller does not, and the performance by such Seller of its obligations hereunder will not, (i) conflict with or result in a violation of such Seller’s Organizational Documents (if such Seller is not an individual), or (ii) require any consent or approval that has not been given or other action that has not been taken by any third party (including under any Contract binding upon such Seller or such Seller’s Subject Securities), in each case, to the extent such consent, approval or other action would prevent, enjoin or materially delay the performance by such Seller of its obligations under this Agreement.
(d) Adequate Information. Such Seller has been furnished or given access to adequate information concerning the business and financial condition of Purchaser and the Company to make an informed decision regarding this Agreement and the Transactions and has independently and without reliance upon Purchaser or the Company and based on such information as such Seller has reasonably deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Seller acknowledges that Purchaser and the Company have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such Seller acknowledges that the agreements contained herein with respect to the Subject Securities held by such Seller are irrevocable and result in the waiver of any right of the undersigned to demand appraisal in connection with the Business Combination under Section 262 of the General Corporation Law of the State of Delaware and any other Law.
(e) Litigation. There are no Legal Proceedings pending against such Seller or, to the knowledge of such Seller, threatened in writing against such Seller, before (or, in the case of threatened Legal Proceedings, that would be before) any arbitrator or any Governmental Authority, which in any manner challenges or seeks to prevent, enjoin or materially delay the performance by such Seller of its obligations under this Agreement.
(f) Brokerage Fees. No broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the Transactions based upon arrangements made by such Seller in his, her or its capacity as a stockholder of the Company, for which the Company or any of its Affiliates may become liable.
(g) Acknowledgement. Such Seller understands and acknowledges that each of the Purchaser and the Company has entered into the Business Combination Agreement and agreed to consummate the Transactions in reliance upon the Seller’s execution and delivery of this Agreement.
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ARTICLE III
MISCELLANEOUS
Section 3.1 Termination. This Agreement and all of its provisions shall terminate and be of no further force or effect upon the earliest of (a) the Expiration Time, (b) the liquidation of the Company and (c) the written agreement of the Sellers, the Purchaser and the Company. Upon such termination of this Agreement, all obligations of the parties under this Agreement will terminate, without any liability or other obligation on the part of any party hereto to any Person in respect hereof or the transactions contemplated hereby, and no party hereto shall have any claim against another (and no person shall have any rights against such party), whether under contract, tort or otherwise, with respect to the subject matter hereof; provided, however, that the termination of this Agreement shall not relieve any party hereto from liability arising in respect of any breach of this Agreement prior to such termination. This Article III shall survive the termination of this Agreement.
Section 3.2 Assignment. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder will be assigned (including by operation of law) without the prior written consent of the parties hereto.
Section 3.3 Specific Performance. The parties hereto agree that irreparable damage may occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties hereto shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the chancery court or any other state or federal court within the State of Delaware, this being in addition to any other remedy to which such party is entitled at law or in equity. In the event that any proceeding shall be brought in equity to enforce the provisions of this Agreement, no party shall allege, and each party hereby waives the defense, that there is an adequate remedy at law, and each party agrees to waive any requirement for the securing or posting of any bond in connection therewith.
Section 3.4 Amendment. This Agreement may not be amended, changed, supplemented, waived or otherwise modified or terminated, except upon the execution and delivery of a written agreement executed by the Purchaser, the Company and the Sellers.
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Section 3.5 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (i) in person, (ii) by e-mail, with evidence of transmission, (iii) one (1) Business Day after being sent, if sent by reputable, nationally recognized overnight courier or (iv) three (3) Business Days after being mailed, if sent by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses or e-mail addresses (or at such other address or e-mail address for a party as shall be specified in a notice given in accordance with this Section 3.5):
If to Purchaser, to:
ACP Holdings Acquisition Corp.
3131 Eastside Street
Houston, Texas 77098
Attention: Andrew Mallozzi
Email: [email protected]
with a copy (which shall not constitute notice) to:
DLA Piper LLP (US)
1251 Avenue of the Americas
New York, New York 10020
Attention: Stephen Alicanti
E-mail: [email protected]
if to the Company:
May Mobility, Inc.
650 Avis Drive
Ann Arbor, Michigan 48108
Attention: Sid Venkatesan
Email: [email protected]
with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
811 Main Street, Suite 3700
Houston, TX 77002
Attention: Haim Zaltman; Tad Freese; Ryan J. Lynch
E-mail: [email protected]; [email protected]; [email protected]
If to a Seller, to the address or e-mail address set forth for such Seller on the signature page hereof.
Section 3.6 Miscellaneous. Sections 9.05 (Governing Law), 9.06 (Jurisdiction), 9.07 (Waiver of Jury Trial), 9.09 (Severability), 9.11 (Entire Agreement), 9.12 (Interpretation), 9.13 (Counterparts) and 9.15 (Waiver of Claims Against Trust) of the Business Combination Agreement are each hereby incorporated into this Agreement (including any relevant definitions contained in any such Sections), mutatis mutandis.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be duly executed on its behalf as of the day and year first above written.
| PURCHASER: | |||
| ACP Holdings Acquisition Corp. | |||
| By: | |||
| Name: | |||
| Title: | |||
COMPANY:
May Mobility, INC. | |||
| By: | |||
| Name: | Edwin Olson | ||
| Title: | Chief Executive Officer | ||
Signature Page to Seller Voting and Support Agreement
| SELLER: | ||
| By: | ||
| Name: | ||
| Title: | ||
| ADDRESS AND E-MAIL FOR PURPOSES OF SECTION 3.5: | ||
| Name: | ||
| Address: | ||
| E-mail: | ||
Signature Page to Seller Voting and Support Agreement
SCHEDULE I
Sellers
Name |
||
| Number of Company Common Shares | ||
| Number of Series Seed Preferred Stock | ||
| Number of Series Seed-2A Preferred Stock | ||
| Number of Series Seed-2B Preferred Stock | ||
| Number of Series Seed-2C Preferred Stock | ||
| Number of Series A Preferred Stock | ||
| Number of Series B Preferred Stock | ||
| Number of Series B-1 Preferred Stock | ||
| Number of Series C Preferred Stock | ||
| Number of Series C-1 Preferred Stock | ||
| Number of Series D Preferred Stock | ||
| Number of Series D-1 Preferred Stock | ||
| Number of Series D-2 Preferred Stock | ||
| Number of Series E Preferred Stock | ||
| Number of Series E Non-Voting Preferred Stock | ||
| Number of Series E-1 Preferred Stock |
Exhibit 10.3
SPONSOR LOCK-UP AGREEMENT
THIS SPONSOR LOCK-UP AGREEMENT (this “Agreement”), dated as of [●], 2026, is made and entered into by and among [May Mobility], Inc., a Delaware corporation (the “Company”) (formerly known as ACP Holdings Acquisition Corp., a Cayman Islands exempted company, prior to its domestication as a Delaware corporation) Union Street Sponsor, LLC, a Delaware limited liability company (the “Sponsor”) and, any Person who hereafter becomes a party to this Agreement pursuant to Section 2 or Section 8 of this Agreement (“New Securityholder”, together with the Sponsor, the “Securityholders” and each, a “Securityholder”), and solely for purposes of Section 7, the other undersigned individuals hereto. Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined herein).
WHEREAS, the Company is party to that certain Business Combination Agreement, dated as of September [●], 2026 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Business Combination Agreement”), by and among the Company, Maestro Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of the Company (“Merger Sub”), and May Mobility, Inc., a Delaware corporation (“Legacy May Mobility”), pursuant to which the Company and Legacy May Mobility consummated a business combination (the “Business Combination”);
WHEREAS, immediately prior to the Business Combination, the Company transferred by way of continuation to and domesticated as a Delaware corporation in accordance with Section 388 of the Delaware General Corporation Law, as amended, and the Companies Act (As Revised) of the Cayman Islands (the “Domestication”);
WHEREAS, prior to the Domestication, the Sponsor owned, in aggregate, (i) [5,778,867] Purchaser Class B Ordinary Shares and (ii) [435,000] Cayman Purchaser Units;1
WHEREAS, (i) immediately prior to the Domestication, each then issued and outstanding Purchaser Class B Ordinary Share was converted on a one-for-one basis into a Purchaser Class A Ordinary Share and (ii) in connection with the Domestication, (x) each then issued and outstanding Purchaser Class A Ordinary Share was converted on a one-for-one basis, into one (1) share of Domesticated Purchaser Common Stock, par value $0.0001 per share (the “Common Stock”); (y) each then issued and outstanding Cayman Purchaser Warrant was converted into a Domesticated Purchaser Warrant to acquire one (1) share of Common Stock; and (z) each then issued and outstanding Cayman Purchaser Unit was cancelled and thereafter entitled the holder thereof to one (1) share of Common Stock and one-half of one (½) Domesticated Purchaser Warrant, following which the Sponsor owns (A) [6,213,867] shares of Common Stock (the “Locked Up Shares”), including [5,778,867] shares issued upon conversion of the Purchaser Class B Ordinary Shares (the “Founder Shares”) and 435,000 shares issued upon the cancellation of the Cayman Purchaser Units (the “Unit Shares”), and (B) Domesticated Purchaser Warrants to purchase an additional [217,500] shares of Common Stock (the “Unit Warrants” and together with the Locked Up Shares, the “Locked Up Securities”); and
WHEREAS, in connection with the Business Combination, the parties hereto wish to set forth herein certain understandings between such parties with respect to restrictions on transfer of equity interests in the Company.
| 1 | Note to Draft: To be confirmed closer to date of execution. |
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, each intending to be legally bound hereby, hereby agree as follows:
1. Transfer Restrictions. Subject to the exceptions set forth herein, each Securityholder agrees not to, without the prior written consent of the board of directors of the Company, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any Locked Up Securities, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Locked Up Securities or (iii) take any action in furtherance of any of the matters described in the foregoing clause (i) or (ii) (the actions specified in clauses (i)-(iii), collectively, “Transfer”) prior to the date that is twelve (12) months after the Effective Date, the “Lock-Up Period”). The foregoing restriction is expressly agreed to preclude each Securityholder, and any affiliate of such Securityholder and any person in privity with such Securityholder or any affiliate of such Securityholder, from engaging in any hedging or other transaction that is designed to, or that reasonably could be expected to lead to or result in, a sale or disposition of the Locked Up Securities even if the Locked Up Securities would be disposed of by a Person other than such Securityholder. Such prohibited hedging or other transactions would include, without limitation, any short sale or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to any of the Locked Up Securities or with respect to any security that includes, relates to, or derives any significant part of its value from the Locked Up Securities. “Effective Date” means the date that the registration statement filed by the Company pursuant to the Registration Rights Agreement, dated as of the date hereof, by and among the Company and the securityholders of the Company party thereto, first becomes effective under the Securities Act of 1933, as amended.
2. Permitted Transfers. The restrictions set forth in Section 1 shall not apply to:
| (a) | Transfers of any securities other than (i) the Locked Up Securities and (ii) any other equity security of the Company issued or issuable with respect to the Locked Up Securities by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, spin-off, reorganization or similar transaction; | |
| (b) | Transfers to the Company’s officers or directors, any Affiliate or family member of any of the Company’s officers or directors, any members or partners of the Sponsor or their Affiliates, any affiliates of the Sponsor, or any employees of such Affiliates; | |
| (c) | In the case of an individual, Transfers to any Affiliates or family members of the Securityholder; | |
| (d) | Transfers to any investment funds or vehicles controlled or managed by the Securityholder or any of its Affiliates; | |
| (e) | Transfers by gift to a trust, the beneficiary of which is a Person to whom a Transfer would be permitted under Section 2, or to a charitable organization; | |
| (f) | in the case of an individual, Transfers by virtue of laws of descent and distribution upon death of such individual; | |
| (g) | in the case of an individual, Transfers by operation of law or pursuant to a court order, such as a qualified domestic relations order, divorce decree or separation agreement; |
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| (h) | in the case of an individual, Transfers to a partnership, limited liability company or other entity of which the Securityholder and/or the Affiliates or family members of the Securityholder are the legal and beneficial owner of all of the outstanding equity securities or similar interests; | |
| (i) | Transfers to a nominee or custodian of a Person to whom a Transfer would be permitted under Section 2; | |
| (j) | Transfers in connection with any legal, regulatory or other order; | |
| (k) | in the case of an entity that is a trust, Transfers to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust; | |
| (l) | in the case of an entity, Transfers as part of a distribution to members, partners, shareholders or equityholders of the Securityholder; | |
| (m) | in the case of an entity, Transfers by virtue of the laws of the state of the entity’s organization and the entity’s organizational documents upon dissolution of the entity; | |
| (n) | the exercise of stock options or warrants to purchase shares of Common Stock or the vesting of stock awards relating to shares of Common Stock and any related Transfer of shares of Common Stock in connection therewith (i) deemed to occur upon the “cashless” or “net” exercise of such options or warrants or (ii) for the purpose of paying the exercise price of such options or warrants or for paying taxes due as a result of the exercise of such options or warrants, the vesting of such options or stock awards, or as a result of the vesting of such shares of Common Stock, it being understood that all shares of Common Stock received upon such exercise, vesting or transfer will remain subject to the restrictions of this Agreement during the Lock-Up Period; | |
| (o) | Transfers to the Company pursuant to any contractual arrangement in effect upon the consummation of the Business Combination that provides for the repurchase by the Company or forfeiture of Common Stock or other securities convertible into, or exercisable, redeemable or exchangeable for, Common Stock in connection with the termination of the Securityholder’s service to the Company; | |
| (p) | the entry, by the Securityholder, at any time after the consummation of the Business Combination, of any trading plan providing for the sale of shares of Common Stock by the Securityholder, which trading plan meets the requirements of Rule 10b5-1(c) under the Exchange Act; provided, however, that such plan does not provide for, or permit, the sale of any shares of Common Stock during the Lock-Up Period and no public announcement or filing is voluntarily made or required regarding such plan during the Lock-Up Period; | |
| (q) | Transfers pursuant to a liquidation, merger, stock exchange, reorganization, tender offer approved by the board of directors of the Company or a duly authorized committee thereof or other similar transaction that results in all of the Company’s securityholders having the right to exchange their shares of Common Stock for cash, securities or other property (a “Company Liquidity Event”); and | |
| (r) | Transfers to satisfy any U.S. federal, state, or local income tax obligations of a Securityholder (or its direct or indirect owners) arising from a change in the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or the U.S. Treasury Regulations promulgated thereunder (the “Regulations”) after the date on which the Business Combination Agreement was executed by the parties, and such change prevents the Business Combination from qualifying as a “reorganization” pursuant to Section 368 of the Code (and the Business Combination does not qualify for similar tax-free treatment pursuant to any successor or other provision of the Code or Regulations taking into account such changes), in each case solely and to the extent necessary to cover any tax liability as a direct result of the transaction; |
provided, however, that (A) in the case of clauses (a) through (m), as a prerequisite to such Transfer, such permitted transferee(s) must enter into joinder to this Agreement, substantially in the form of Exhibit A hereto, in order to become a “Securityholder” for purposes of this Agreement, (B) in the case of clauses (a) through (m), any such transfer shall not involve a disposition for value, (C) any transfer pursuant to clauses (a) through (m) is not required to be reported with the SEC in accordance with the Exchange Act and (D) neither the Securityholder nor any transferee shall otherwise voluntarily effect any public filing or report regarding such transfers. For purposes of this Section 2, “family member” shall mean a spouse, domestic partner, child (including by adoption), father, mother, brother or sister of the Securityholder, and lineal descendant (including by adoption) of the Securityholder or of any of the foregoing persons.
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3. Triggering Releases. Notwithstanding anything contained herein to the contrary, with respect to each Securityholder, if, prior to the expiration of the Lock-Up Period, the Company consents to release any Common Stock or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock (such convertible, exchangeable, or other securities, collectively, “Derivative Instruments”), held by any director, officer or holder (on an as-converted basis) of 5.0% or more of the shares of common stock of Legacy May Mobility immediately prior to the consummation of the Business Combination that has delivered a lock-up agreement to the Company in connection with the Transactions or is subject to the lock-up restrictions set forth in the Company’s bylaws, other than such Securityholder, from such lock-up agreement or restrictions, including by an amendment to such bylaws or otherwise but excluding those exceptions to and releases from such lock-up restrictions contemplated by the bylaws of the Company in effect as of the Closing Date (any such release being a “Triggering Release” and such party receiving such release being a “Triggering Release Party”), then a number of such Securityholder’s shares of Common Stock subject to this Agreement shall also be released from the restrictions set forth herein on the same terms on a pro rata basis, calculated as follows: the total number of shares of Common Stock held by such Securityholder on the date of the Triggering Release that are subject to this Agreement multiplied by a fraction, the numerator of which shall be the number of shares of Common Stock plus the aggregate number of shares of Common Stock which would result following the release of Common Stock in connection with the conversion and/or exchange of, and/or the right to receive shares of Common Stuck represented by all of the Derivative Instruments released pursuant to the Triggering Release and the denominator of which shall be the total number of shares of Common Stock plus the aggregate number of shares of Common Stock which would result following the release of Common Stock in connection with the conversion and/or exchange of, and/or the right to receive shares of Common Stuck represented by all of the Derivative Instruments held by the Triggering Release Party on such date that were subject to a lock-up restriction (e.g., restrictions similar to Section 1) immediately prior to such release.
4. Termination. This Agreement shall terminate upon the earlier of (a) the expiration of the Lock-Up Period applicable to all Locked Up Securities and (b) the closing of a Company Liquidity Event.
5. Prohibited Transfers. In furtherance of the foregoing, the Company, and any duly appointed transfer agent or warrant agent, as applicable, for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Agreement.
6. Amendment; Waiver. This Agreement may be amended, supplemented or modified only by execution of a written instrument signed by the Company and the Securityholders holding a majority of the aggregate number of shares of Common Stock then held by those Securityholders to which this Agreement has not been terminated, which is executed in the same manner as this Agreement and which makes reference to this Agreement; provided, that neither the execution of a joinder pursuant to this Agreement, substantially in the form of Exhibit A hereto, with permitted transferees nor any updates to Schedule I pursuant to this Agreement shall constitute an amendment of this Agreement. Notwithstanding the other provisions set forth herein, the board of directors of the Company may, in its sole discretion, waive, whether in whole or in part, the restrictions on the Securityholders in connection with the lock-up contemplated in this Agreement.
7. Entire Agreement. This Agreement and the documents or instruments referred to herein embody the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein or the documents or instruments referred to herein, which collectively supersede all prior agreements and the understandings among the parties hereto with respect to the subject matter contained herein. Section 8 of that certain letter agreement, dated as of April 6, 2026, by and among the Company, the Sponsor and the Company’s former officers and directors is hereby amended and superseded by this Agreement and is no longer in force or effect.
8. Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement shall not be assigned by operation of Law or otherwise without the prior written consent of the parties hereto, and any assignment without such consent shall be null and void; provided that no such assignment shall relieve the assigning party of its obligations hereunder.
9. Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to principles or rules of conflict of Laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction.
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10. Jurisdiction. Any Legal Proceeding based upon, arising out of or related to this Agreement or the transactions contemplated hereby must be brought in the Court of Chancery of the State of Delaware (or, to the extent such court does not have jurisdiction, in the United States District Court for the District of Delaware and to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), and each of the parties irrevocably (i) submits to the exclusive jurisdiction of each such court in any such Legal Proceeding, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, (iii) agrees that all claims in respect of the Legal Proceeding shall be heard and determined only in any such court, and (iv) agrees not to bring any Legal Proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in any other court. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by Law or to commence Legal Proceedings or otherwise proceed against any other party in any other jurisdiction, in each case, to enforce judgments obtained in any Legal Proceeding, suit or proceeding brought pursuant to this Section 10.
11. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
12. Counterparts. This Agreement (and any joinder to this Agreement) may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
13. Electronic Signatures. The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including without limitation the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code and any other applicable law.
14. Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
15. Liability. The liability of any Securityholder hereunder is several (and not joint). Notwithstanding any other provision of this Agreement, in no event will any Securityholder be liable (solely as a result of being a Securityholder hereunder) for any other Securityholder’s breach of such other Securityholder’s obligations under this Agreement.
16. Specific Performance. The parties hereto agree that irreparable damage may occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties hereto shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Court of Chancery of the State of Delaware (or, to the extent such court does not have subject matter jurisdiction, in the United States District Court for the District of Delaware and to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), this being in addition to any other remedy to which such party is entitled at law or in equity. In the event that any proceeding shall be brought in equity to enforce the provisions of this Agreement, no party shall allege, and each party hereby waives the defense, that there is an adequate remedy at law, and each party agrees to waive any requirement for the securing or posting of any bond in connection therewith.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
| MAY MOBILITY, INC. | ||
| By: | ||
| Name: | Edwin Olson Ph.D. | |
| Title: | Chief Executive Officer | |
[Signature Page to Sponsor Lock-Up Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
| UNION STREET SPONSOR, LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
ACKNOWLEDGED AND AGREED SOLELY WITH RESPECT TO SECTION 7:
| Name: Andrew Mallozzi | |
| Name: Sean Wallace | |
| Name: August Roth | |
| Name: Jonathan Urfrig | |
| Name: Andrew Sung |
[Signature Page to Sponsor Lock-Up Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
| SECURITYHOLDERS: | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Sponsor Lock-Up Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
| [●]: | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Sponsor Lock-Up Agreement]
EXHIBIT A
JOINDER TO LOCK-UP AGREEMENT
[●], 20[●]
Reference is made to the Lock-Up Agreement, dated as of [●], 20__, by and among [●], Inc. (the “Company”) and the Securityholders (as defined therein) from time to time party thereto (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Lock-Up Agreement”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Lock-Up Agreement.
Each of the Company and the undersigned holder of equity interests in the Company (the “New Securityholder”) agrees that this Joinder to the Lock-Up Agreement (this “Joinder”) is being executed and delivered for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
The New Securityholder hereby agrees to and does become party to the Lock-Up Agreement as a Securityholder. This Joinder shall serve as a counterpart signature page to the Lock-Up Agreement and by executing below, the New Securityholder is deemed to have executed the Lock-Up Agreement with the same force and effect as if originally named a party thereto.
Upon execution and delivery of this Joinder by the Company and the New Securityholder, the New Securityholder’s name shall be deemed to be added to Schedule I of the Lock-up Agreement as a Securityholder thereunder.
This Joinder may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank.]
IN WITNESS WHEREOF, the undersigned have duly executed this Joinder as of the date first set forth above.
| [May Mobility, Inc.] | |||
| By: | |||
| Name: | |||
| Title: | |||
| new securityholder: | |||
| [●] | |||
| By: | |||
| Name: | |||
| Title: | |||
Exhibit 10.4
CYRUS LOCK-UP AGREEMENT
THIS CYRUS LOCK-UP AGREEMENT (this “Agreement”), dated as of [●], 2026, is made and entered into by and among [●], Inc., a Delaware corporation (the “Company”) (formerly known as ACP Holdings Acquisition Corp., a Cayman Islands exempted company, prior to its domestication as a Delaware corporation), and [Cyrus Capital Partners, L.P.], a [Delaware limited partnership] (together with its undersigned affiliates, the “Cyrus Managed Funds”) and, any Person who hereafter becomes a party to this Agreement pursuant to Section 2 or Section 7 of this Agreement, “New Securityholder”, together with Cyrus, the “Securityholders” and each, a “Securityholder”). Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined herein).
WHEREAS, the Company is party to that certain Business Combination Agreement, dated as of [●], 2026 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Business Combination Agreement”), by and among the Company, [Maestro Merger Sub, Inc.], a Delaware corporation and wholly-owned subsidiary of the Company (“Merger Sub”), and May Mobility, Inc., a Delaware corporation (“Legacy May Mobility”), pursuant to which the Company and Legacy May Mobility consummated a business combination (the “Business Combination”);
WHEREAS, prior to the consummation of the Business Combination, the Securityholders owned, in aggregate, [4,945,339] shares of preferred stock of Legacy May Mobility, par value $0.0001 per share (“Legacy Preferred Stock”);
WHEREAS, in connection with the Business Combination (i) (y) each issued and outstanding share of preferred stock of Legacy Preferred Stock will be converted into such number of shares of common stock of Legacy May Mobility, par value $0.0001 per share (“Legacy Common Stock”), into which such shares of Legacy Preferred Stock, as applicable, were convertible in connection with the Merger pursuant to Legacy May Mobility’s Organizational Documents, and (z) after giving effect to the conversion of the Legacy Preferred Stock, each issued and outstanding share of Legacy Common Stock will be cancelled and converted into a number of shares of Domesticated Purchaser Common Stock equal to the Exchange Ratio, following which the Securityholders will own, in aggregate, [●] shares of Domesticated Purchaser Common Stock (the “Consideration Shares”), (ii) the Securityholders acquired, either by purchasing shares in open market transactions with third parties or receiving shares from the Company prior to the Closing of the Business Combination, in aggregate, [ ● ]1 shares of Domesticated Purchaser Common Stock (the “Acquired Shares”), and (iii) the Cyrus Managed Funds purchased from the Company [●] shares of Domesticated Purchaser Series A Preferred Stock (the “PIPE Shares”) and [●] warrants to purchase Domesticated Class A Common Stock (the “Domesticated Purchaser PIPE Warrants” and together with Consideration Shares, the Acquired Shares and the PIPE Shares, the “Locked Up Securities”); and
WHEREAS, in connection with the Business Combination, the parties hereto wish to set forth herein certain understandings between such parties with respect to restrictions on transfer of equity interests in the Company.
1 Note to Draft: Share count to be Cyrus’ pro rata portion of 1,000,000 shares to be shared with Keyframe.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, each intending to be legally bound hereby, hereby agree as follows:
1. Transfer Restrictions. Subject to the exceptions set forth herein, each Securityholder agrees not to, without the prior written consent of the board of directors of the Company, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any Locked Up Securities, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Locked Up Securities or (iii) take any action in furtherance of any of the matters described in the foregoing clause (i) or (ii) (the actions specified in clauses (i)-(iii), collectively, “Transfer”) prior to the date that is (x) with respect to the Consideration Shares, the Effective Date, and (y) with respect to the Acquired Shares, PIPE Shares and Domesticated Purchaser PIPE Warrants, six months after the Effective Date (as applicable, the “Lock-Up Period”). The foregoing restriction is expressly agreed to preclude each Securityholder, and any affiliate of such Securityholder and any person in privity with such Securityholder or any affiliate of such Securityholder, from engaging in any hedging or other transaction that is designed to, or that reasonably could be expected to lead to or result in, a sale or disposition of the Locked Up Securities even if the Locked Up Securities would be disposed of by a Person other than such Securityholder. Such prohibited hedging or other transactions would include, without limitation, any short sale or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to any of the Locked Up Securities or with respect to any security that includes, relates to, or derives any significant part of its value from the Locked Up Securities. “Effective Date” means the date that the registration statement filed by the Company pursuant to the Registration Rights Agreement, dated as of the date hereof, by and among the Company and the securityholders of the Company party thereto, first becomes effective under the Securities Act of 1933, as amended.
2. Permitted Transfers. The restrictions set forth in Section 1 shall not apply to:
| (a) | Transfers of any securities other than (i) the Locked Up Securities and (ii) any other equity security of the Company issued or issuable with respect to the Locked Up Securities by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, spin-off, reorganization or similar transaction; |
| (b) | In the case of an individual, Transfers to any Affiliates or family members of the Securityholder; |
| (c) | Transfers to any investment funds or vehicles controlled or managed by the Securityholder or any of its Affiliates; |
| (d) | Transfers by gift to a trust, the beneficiary of which is a Person to whom a Transfer would be permitted under Section 2, or to a charitable organization; |
| 2 |
| (e) | in the case of an individual, Transfers by virtue of laws of descent and distribution upon death of such individual; |
| (f) | in the case of an individual, Transfers by operation of law or pursuant to a court order, such as a qualified domestic relations order, divorce decree or separation agreement; |
| (g) | in the case of an individual, Transfers to a partnership, limited liability company or other entity of which the Securityholder and/or the Affiliates or family members of the Securityholder are the legal and beneficial owner of all of the outstanding equity securities or similar interests; |
| (h) | Transfers to a nominee or custodian of a Person to whom a Transfer would be permitted under Section 2; |
| (i) | Transfers in connection with any legal, regulatory or other order; |
| (j) | in the case of an entity that is a trust, Transfers to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust; |
| (k) | in the case of an entity, Transfers as part of a distribution to members, partners, shareholders or equityholders of the Securityholder; |
| (l) | in the case of an entity, Transfers by virtue of the laws of the state of the entity’s organization and the entity’s organizational documents upon dissolution of the entity; |
| (m) | the exercise of stock options or warrants to purchase shares of Common Stock or the vesting of stock awards relating to shares of Common Stock and any related Transfer of shares of Common Stock in connection therewith (i) deemed to occur upon the “cashless” or “net” exercise of such options or warrants or (ii) for the purpose of paying the exercise price of such options or warrants or for paying taxes due as a result of the exercise of such options or warrants, the vesting of such options or stock awards, or as a result of the vesting of such shares of Common Stock, it being understood that all shares of Common Stock received upon such exercise, vesting or transfer will remain subject to the restrictions of this Agreement during the Lock-Up Period; |
| (n) | Transfers to the Company pursuant to any contractual arrangement in effect upon the consummation of the Business Combination that provides for the repurchase by the Company or forfeiture of Common Stock or other securities convertible into, or exercisable, redeemable or exchangeable for, Common Stock in connection with the termination of the Securityholder’s service to the Company; |
| (o) | the entry, by the Securityholder, at any time after the consummation of the Business Combination, of any trading plan providing for the sale of shares of Common Stock by the Securityholder, which trading plan meets the requirements of Rule 10b5-1(c) under the Exchange Act; provided, however, that such plan does not provide for, or permit, the sale of any shares of Common Stock during the Lock-Up Period and no public announcement or filing is voluntarily made or required regarding such plan during the Lock-Up Period; |
| 3 |
| (p) | Transfers pursuant to a liquidation, merger, stock exchange, reorganization, tender offer approved by the board of directors of the Company or a duly authorized committee thereof or other similar transaction that results in all of the Company’s securityholders having the right to exchange their shares of Common Stock for cash, securities or other property (a “Company Liquidity Event”); and |
| (q) | Transfers to satisfy any U.S. federal, state, or local income tax obligations of a Securityholder (or its direct or indirect owners) arising from a change in the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or the U.S. Treasury Regulations promulgated thereunder (the “Regulations”) after the date on which the Business Combination Agreement was executed by the parties, and such change prevents the Business Combination from qualifying as a “reorganization” pursuant to Section 368 of the Code (and the Business Combination does not qualify for similar tax-free treatment pursuant to any successor or other provision of the Code or Regulations taking into account such changes), in each case solely and to the extent necessary to cover any tax liability as a direct result of the transaction; |
provided, however, that (A) in the case of clauses (a) through (l), as a prerequisite to such Transfer, such permitted transferee(s) must enter into joinder to this Agreement, substantially in the form of Exhibit A hereto, in order to become a “Securityholder” for purposes of this Agreement, (B) in the case of clauses (a) through (l) , any such transfer shall not involve a disposition for value, (C) any transfer pursuant to clauses (a) through (l) is not required to be reported with the SEC in accordance with the Exchange Act and no report of such transfer shall be made voluntarily and (D) neither the Securityholder nor any transferee shall otherwise voluntarily effect any public filing or report regarding such transfers. For purposes of this Section 2, “family member” shall mean a spouse, domestic partner, child (including by adoption), father, mother, brother or sister of the Securityholder, and lineal descendant (including by adoption) of the Securityholder or of any of the foregoing persons.
3. Termination. This Agreement shall terminate upon the earlier of (a) the expiration of the Lock-Up Period applicable to all Locked Up Securities and (b) the closing of a Company Liquidity Event.
4. Prohibited Transfers. In furtherance of the foregoing, the Company, and any duly appointed transfer agent or warrant agent, as applicable, for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Agreement.
5. Amendment; Waiver. This Agreement may be amended, supplemented or modified only by execution of a written instrument signed by the Company and the Securityholders holding a majority of the aggregate number of shares of Common Stock then held by those Securityholders to which this Agreement has not been terminated, which is executed in the same manner as this Agreement and which makes reference to this Agreement; provided, that neither the execution of a joinder pursuant to this Agreement, substantially in the form of Exhibit A hereto, with permitted transferees nor any updates to Schedule I pursuant to this Agreement shall constitute an amendment of this Agreement. Notwithstanding the other provisions set forth herein, the board of directors of the Company may, in its sole discretion, waive, whether in whole or in part, the restrictions on the Securityholders in connection with the lock-up contemplated in this Agreement.
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6. Entire Agreement. This Agreement and the documents or instruments referred to herein embody the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein or the documents or instruments referred to herein, which collectively supersede all prior agreements and the understandings among the parties hereto with respect to the subject matter contained herein.
7. Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement shall not be assigned by operation of Law or otherwise without the prior written consent of the parties hereto, and any assignment without such consent shall be null and void; provided that no such assignment shall relieve the assigning party of its obligations hereunder.
8. Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to principles or rules of conflict of Laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction.
9. Jurisdiction. Any Legal Proceeding based upon, arising out of or related to this Agreement or the transactions contemplated hereby must be brought in the Court of Chancery of the State of Delaware (or, to the extent such court does not have jurisdiction, in the United States District Court for the District of Delaware and to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), and each of the parties irrevocably (i) submits to the exclusive jurisdiction of each such court in any such Legal Proceeding, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, (iii) agrees that all claims in respect of the Legal Proceeding shall be heard and determined only in any such court, and (iv) agrees not to bring any Legal Proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in any other court. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by Law or to commence Legal Proceedings or otherwise proceed against any other party in any other jurisdiction, in each case, to enforce judgments obtained in any Legal Proceeding, suit or proceeding brought pursuant to this Section 9.
10. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
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11. Counterparts. This Agreement (and any joinder to this Agreement) may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
12. Electronic Signatures. The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including without limitation the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code and any other applicable law.
13. Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
14. Liability. The liability of any Securityholder hereunder is several (and not joint). Notwithstanding any other provision of this Agreement, in no event will any Securityholder be liable (solely as a result of being a Securityholder hereunder) for any other Securityholder’s breach of such other Securityholder’s obligations under this Agreement.
15. Specific Performance. The parties hereto agree that irreparable damage may occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties hereto shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Court of Chancery of the State of Delaware (or, to the extent such court does not have subject matter jurisdiction, in the United States District Court for the District of Delaware and to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), this being in addition to any other remedy to which such party is entitled at law or in equity. In the event that any proceeding shall be brought in equity to enforce the provisions of this Agreement, no party shall allege, and each party hereby waives the defense, that there is an adequate remedy at law, and each party agrees to waive any requirement for the securing or posting of any bond in connection therewith.
[Remainder of page intentionally left blank]
| 6 |
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
| [COMPANY]: | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Cyrus Lock-Up Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
| [Cyrus 1740 Master Fund, L.P.] | ||
| By: | ||
| Name: | ||
| Title: | ||
| [Cyrus Opportunities Master Fund II, LTD] | ||
| By: | ||
| Name: | ||
| Title: | ||
| [Cyrus Select Opportunities Master Fund, LTD] | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Cyrus Lock-Up Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
| [CANARY S.C. MASTER FUND, L.P.] | ||
| By: | ||
| Name: | ||
| Title: | ||
| [CRESCENT 1, L.P.] | ||
| By: | ||
| Name: | ||
| Title: | ||
| [CRS MASTER FUND, L.P.] | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Cyrus Lock-Up Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
| SECURITYHOLDERS: | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Cyrus Lock-Up Agreement]
EXHIBIT A
JOINDER TO LOCK-UP AGREEMENT
[●], 20[●]
Reference is made to the Lock-Up Agreement, dated as of [●], 20__, by and among [●], Inc. (the “Company”) and the Securityholders (as defined therein) from time to time party thereto (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Lock-Up Agreement”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Lock-Up Agreement.
Each of the Company and the undersigned holder of equity interests in the Company (the “New Securityholder”) agrees that this Joinder to the Lock-Up Agreement (this “Joinder”) is being executed and delivered for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
The New Securityholder hereby agrees to and does become party to the Lock-Up Agreement as a Securityholder. This Joinder shall serve as a counterpart signature page to the Lock-Up Agreement and by executing below, the New Securityholder is deemed to have executed the Lock-Up Agreement with the same force and effect as if originally named a party thereto.
Upon execution and delivery of this Joinder by the Company and the New Securityholder, the New Securityholder’s name shall be deemed to be added to Schedule I of the Lock-up Agreement as a Securityholder thereunder.
This Joinder may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank.]
IN WITNESS WHEREOF, the undersigned have duly executed this Joinder as of the date first set forth above.
| [ ● ] | ||
| By: | ||
| Name: | ||
| Title: | ||
| new securityholder: | ||
| [ ● ] | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit 10.5
KEYFRAME LOCK-UP AGREEMENT
THIS KEYFRAME LOCK-UP AGREEMENT (this “Agreement”), dated as of [●], 2026, is made and entered into by and among [●], Inc., a Delaware corporation (the “Company”) (formerly known as ACP Holdings Acquisition Corp., a Cayman Islands exempted company, prior to its domestication as a Delaware corporation), and [KEYFRAME ENTITY], a [●] (together with its undersigned affiliates, the “Keyframe Managed Funds”) and, any Person who hereafter becomes a party to this Agreement pursuant to Section 2 or Section 7 of this Agreement, “New Securityholder”, together with Keyframe Managed Funds, the “Securityholders” and each, a “Securityholder”). Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined herein).
WHEREAS, the Company is party to that certain Business Combination Agreement, dated as of [●], 2026 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Business Combination Agreement”), by and among the Company, [Maestro Merger Sub, Inc.], a Delaware corporation and wholly-owned subsidiary of the Company (“Merger Sub”), and May Mobility, Inc., a Delaware corporation (“Legacy May Mobility”), pursuant to which the Company and Legacy May Mobility consummated a business combination (the “Business Combination”);
WHEREAS, prior to the consummation of the Business Combination, the Securityholders owned, in aggregate, [●] shares of preferred stock of Legacy May Mobility, par value $0.0001 per share (“Legacy Preferred Stock”);
WHEREAS, in connection with the Business Combination (i) (y) each issued and outstanding share of preferred stock of Legacy Preferred Stock will be converted into such number of shares of common stock of Legacy May Mobility, par value $0.0001 per share (“Legacy Common Stock”), into which such shares of Legacy Preferred Stock, as applicable, were convertible in connection with the Merger pursuant to Legacy May Mobility’s Organizational Documents, and (z) after giving effect to the conversion of the Legacy Preferred Stock, each issued and outstanding share of Legacy Common Stock will be cancelled and converted into a number of shares of Domesticated Purchaser Common Stock equal to the Exchange Ratio, following which the Securityholders will own, in aggregate, [●] shares of Domesticated Purchaser Common Stock (the “Consideration Shares”), (ii) the Securityholders acquired, either by purchasing shares in open market transactions with third parties or receiving shares from the Company prior to the Closing of the Business Combination, in aggregate, [●]1 shares of Domesticated Purchaser Common Stock (the “Acquired Shares”), and (iii) the Keyframe Managed Funds purchased from the Company [●] shares of Domesticated Purchaser Series A Preferred Stock (the “PIPE Shares”) and [●] warrants to purchase Domesticated Class A Common Stock (the “Domesticated Purchaser PIPE Warrants” and together with Consideration Shares, the Acquired Shares and the PIPE Shares, the “Locked Up Securities”); and
WHEREAS, in connection with the Business Combination, the parties hereto wish to set forth herein certain understandings between such parties with respect to restrictions on transfer of equity interests in the Company.
1 Note to Draft: Share count to be Keyframe’s pro rata portion of 1,000,000 shares to be shared with Cyrus.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, each intending to be legally bound hereby, hereby agree as follows:
1. Transfer Restrictions. Subject to the exceptions set forth herein, each Securityholder agrees not to, without the prior written consent of the board of directors of the Company, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, any Locked Up Securities, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Locked Up Securities or (iii) take any action in furtherance of any of the matters described in the foregoing clause (i) or (ii) (the actions specified in clauses (i)-(iii), collectively, “Transfer”) prior to the date that is (x) with respect to the Consideration Shares, the Effective Date, and (y) with respect to the Acquired Shares, PIPE Shares and Domesticated Purchaser PIPE Warrants, six months after the Effective Date (as applicable, the “Lock-Up Period”). The foregoing restriction is expressly agreed to preclude each Securityholder, and any affiliate of such Securityholder and any person in privity with such Securityholder or any affiliate of such Securityholder, from engaging in any hedging or other transaction that is designed to, or that reasonably could be expected to lead to or result in, a sale or disposition of the Locked Up Securities even if the Locked Up Securities would be disposed of by a Person other than such Securityholder. Such prohibited hedging or other transactions would include, without limitation, any short sale or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to any of the Locked Up Securities or with respect to any security that includes, relates to, or derives any significant part of its value from the Locked Up Securities. “Effective Date” means the date that the registration statement filed by the Company pursuant to the Registration Rights Agreement, dated as of the date hereof, by and among the Company and the securityholders of the Company party thereto, first becomes effective under the Securities Act of 1933, as amended.
2. Permitted Transfers. The restrictions set forth in Section 1 shall not apply to:
| (a) | Transfers of any securities other than (i) the Locked Up Securities and (ii) any other equity security of the Company issued or issuable with respect to the Locked Up Securities by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, spin-off, reorganization or similar transaction; |
| (b) | In the case of an individual, Transfers to any Affiliates or family members of the Securityholder; |
| (c) | Transfers to any investment funds or vehicles controlled or managed by the Securityholder or any of its Affiliates; |
| (d) | Transfers by gift to a trust, the beneficiary of which is a Person to whom a Transfer would be permitted under Section 2, or to a charitable organization; |
| 2 |
| (e) | in the case of an individual, Transfers by virtue of laws of descent and distribution upon death of such individual; |
| (f) | in the case of an individual, Transfers by operation of law or pursuant to a court order, such as a qualified domestic relations order, divorce decree or separation agreement; |
| (g) | in the case of an individual, Transfers to a partnership, limited liability company or other entity of which the Securityholder and/or the Affiliates or family members of the Securityholder are the legal and beneficial owner of all of the outstanding equity securities or similar interests; |
| (h) | Transfers to a nominee or custodian of a Person to whom a Transfer would be permitted under Section 2; |
| (i) | Transfers in connection with any legal, regulatory or other order; |
| (j) | in the case of an entity that is a trust, Transfers to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust; |
| (k) | in the case of an entity, Transfers as part of a distribution to members, partners, shareholders or equityholders of the Securityholder; |
| (l) | in the case of an entity, Transfers by virtue of the laws of the state of the entity’s organization and the entity’s organizational documents upon dissolution of the entity; |
| (m) | the exercise of stock options or warrants to purchase shares of Common Stock or the vesting of stock awards relating to shares of Common Stock and any related Transfer of shares of Common Stock in connection therewith (i) deemed to occur upon the “cashless” or “net” exercise of such options or warrants or (ii) for the purpose of paying the exercise price of such options or warrants or for paying taxes due as a result of the exercise of such options or warrants, the vesting of such options or stock awards, or as a result of the vesting of such shares of Common Stock, it being understood that all shares of Common Stock received upon such exercise, vesting or transfer will remain subject to the restrictions of this Agreement during the Lock-Up Period; |
| (n) | Transfers to the Company pursuant to any contractual arrangement in effect upon the consummation of the Business Combination that provides for the repurchase by the Company or forfeiture of Common Stock or other securities convertible into, or exercisable, redeemable or exchangeable for, Common Stock in connection with the termination of the Securityholder’s service to the Company; |
| (o) | the entry, by the Securityholder, at any time after the consummation of the Business Combination, of any trading plan providing for the sale of shares of Common Stock by the Securityholder, which trading plan meets the requirements of Rule 10b5-1(c) under the Exchange Act; provided, however, that such plan does not provide for, or permit, the sale of any shares of Common Stock during the Lock-Up Period and no public announcement or filing is voluntarily made or required regarding such plan during the Lock-Up Period; |
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| (p) | Transfers pursuant to a liquidation, merger, stock exchange, reorganization, tender offer approved by the board of directors of the Company or a duly authorized committee thereof or other similar transaction that results in all of the Company’s securityholders having the right to exchange their shares of Common Stock for cash, securities or other property (a “Company Liquidity Event”); and |
| (q) | Transfers to satisfy any U.S. federal, state, or local income tax obligations of a Securityholder (or its direct or indirect owners) arising from a change in the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or the U.S. Treasury Regulations promulgated thereunder (the “Regulations”) after the date on which the Business Combination Agreement was executed by the parties, and such change prevents the Business Combination from qualifying as a “reorganization” pursuant to Section 368 of the Code (and the Business Combination does not qualify for similar tax-free treatment pursuant to any successor or other provision of the Code or Regulations taking into account such changes), in each case solely and to the extent necessary to cover any tax liability as a direct result of the transaction; |
provided, however, that (A) in the case of clauses (a) through (l), as a prerequisite to such Transfer, such permitted transferee(s) must enter into joinder to this Agreement, substantially in the form of Exhibit A hereto, in order to become a “Securityholder” for purposes of this Agreement, (B) in the case of clauses (a) through (l) , any such transfer shall not involve a disposition for value, (C) any transfer pursuant to clauses (a) through (l) is not required to be reported with the SEC in accordance with the Exchange Act and no report of such transfer shall be made voluntarily and (D) neither the Securityholder nor any transferee shall otherwise voluntarily effect any public filing or report regarding such transfers. For purposes of this Section 2, “family member” shall mean a spouse, domestic partner, child (including by adoption), father, mother, brother or sister of the Securityholder, and lineal descendant (including by adoption) of the Securityholder or of any of the foregoing persons.
3. Termination. This Agreement shall terminate upon the earlier of (a) the expiration of the Lock-Up Period applicable to all Locked Up Securities and (b) the closing of a Company Liquidity Event.
4. Prohibited Transfers. In furtherance of the foregoing, the Company, and any duly appointed transfer agent or warrant agent, as applicable, for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Agreement.
5. Amendment; Waiver. This Agreement may be amended, supplemented or modified only by execution of a written instrument signed by the Company and the Securityholders holding a majority of the aggregate number of shares of Common Stock then held by those Securityholders to which this Agreement has not been terminated, which is executed in the same manner as this Agreement and which makes reference to this Agreement; provided, that neither the execution of a joinder pursuant to this Agreement, substantially in the form of Exhibit A hereto, with permitted transferees nor any updates to Schedule I pursuant to this Agreement shall constitute an amendment of this Agreement. Notwithstanding the other provisions set forth herein, the board of directors of the Company may, in its sole discretion, waive, whether in whole or in part, the restrictions on the Securityholders in connection with the lock-up contemplated in this Agreement.
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6. Entire Agreement. This Agreement and the documents or instruments referred to herein embody the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein or the documents or instruments referred to herein, which collectively supersede all prior agreements and the understandings among the parties hereto with respect to the subject matter contained herein.
7. Binding Effect; Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement shall not be assigned by operation of Law or otherwise without the prior written consent of the parties hereto, and any assignment without such consent shall be null and void; provided that no such assignment shall relieve the assigning party of its obligations hereunder.
8. Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to principles or rules of conflict of Laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction.
9. Jurisdiction. Any Legal Proceeding based upon, arising out of or related to this Agreement or the transactions contemplated hereby must be brought in the Court of Chancery of the State of Delaware (or, to the extent such court does not have jurisdiction, in the United States District Court for the District of Delaware and to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), and each of the parties irrevocably (i) submits to the exclusive jurisdiction of each such court in any such Legal Proceeding, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, (iii) agrees that all claims in respect of the Legal Proceeding shall be heard and determined only in any such court, and (iv) agrees not to bring any Legal Proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in any other court. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by Law or to commence Legal Proceedings or otherwise proceed against any other party in any other jurisdiction, in each case, to enforce judgments obtained in any Legal Proceeding, suit or proceeding brought pursuant to this Section 9.
10. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
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11. Counterparts. This Agreement (and any joinder to this Agreement) may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
12. Electronic Signatures. The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including without limitation the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code and any other applicable law.
13. Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
14. Liability. The liability of any Securityholder hereunder is several (and not joint). Notwithstanding any other provision of this Agreement, in no event will any Securityholder be liable (solely as a result of being a Securityholder hereunder) for any other Securityholder’s breach of such other Securityholder’s obligations under this Agreement.
15. Specific Performance. The parties hereto agree that irreparable damage may occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties hereto shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Court of Chancery of the State of Delaware (or, to the extent such court does not have subject matter jurisdiction, in the United States District Court for the District of Delaware and to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), this being in addition to any other remedy to which such party is entitled at law or in equity. In the event that any proceeding shall be brought in equity to enforce the provisions of this Agreement, no party shall allege, and each party hereby waives the defense, that there is an adequate remedy at law, and each party agrees to waive any requirement for the securing or posting of any bond in connection therewith.
[Remainder of page intentionally left blank]
| 6 |
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
| [COMPANY]: | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Keyframe Lock-Up Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
| [KEYFRAME ENTITY] | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Keyframe Lock-Up Agreement]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
| SECURITYHOLDERS: | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Keyframe Lock-Up Agreement]
EXHIBIT A
JOINDER TO LOCK-UP AGREEMENT
[●], 20[●]
Reference is made to the Lock-Up Agreement, dated as of [●], 20__, by and among [●], Inc. (the “Company”) and the Securityholders (as defined therein) from time to time party thereto (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Lock-Up Agreement”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Lock-Up Agreement.
Each of the Company and the undersigned holder of equity interests in the Company (the “New Securityholder”) agrees that this Joinder to the Lock-Up Agreement (this “Joinder”) is being executed and delivered for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
The New Securityholder hereby agrees to and does become party to the Lock-Up Agreement as a Securityholder. This Joinder shall serve as a counterpart signature page to the Lock-Up Agreement and by executing below, the New Securityholder is deemed to have executed the Lock-Up Agreement with the same force and effect as if originally named a party thereto.
Upon execution and delivery of this Joinder by the Company and the New Securityholder, the New Securityholder’s name shall be deemed to be added to Schedule I of the Lock-up Agreement as a Securityholder thereunder.
This Joinder may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank.]
IN WITNESS WHEREOF, the undersigned have duly executed this Joinder as of the date first set forth above.
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
| new securityholder: | ||
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit 10.6
FORM OF
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of [●], 2026, is made and entered into by and among May Mobility, Inc., a Delaware corporation (formerly known as ACP Holdings Acquisition Corp., a Cayman Islands exempted company, prior to its domestication) (the “Company”), Union Street Sponsor, LLC, a Delaware limited liability company (the “Sponsor”), each of the undersigned parties listed on the signature page hereto under “Other Sponsor Holders” (the “Other Sponsor Holders” and together with the Sponsor, the “Sponsor Holders”), each of the undersigned parties listed on the signature page hereto under “PIPE Holders” (the “PIPE Holders”), each of the undersigned parties listed on the signature page hereto under “MM Holders” (the “MM Holders”) and each of the undersigned parties listed on the signature page hereto under “Other Holders” (the “Other Holders” and each such party, together with the Sponsor Holders, the PIPE Holders, the MM Holders and any Person who hereafter becomes a party to this Agreement pursuant to Section 5.2, a “Holder” and collectively the “Holders”).
RECITALS
WHEREAS, the Company and certain Sponsor Holders are party to that certain Registration Rights Agreement, dated as of April 6, 2026 (the “Original RRA”);
WHEREAS, pursuant to the Business Combination Agreement (as defined below), Legacy May (as defined below) merged with and into Merger Sub (as defined below) with Legacy May continuing as the surviving corporation and as a direct, wholly owned subsidiary of the Company (the “Business Combination”); and
WHEREAS, in connection with the consummation of the transactions described above, the Company and the Holders party to the Original RRA desire to amend and restate the Original RRA in its entirety as set forth herein, and the Company and the Holders desire to enter into this Agreement, pursuant to which the Company shall grant the Holders certain registration rights with respect to the Registrable Securities (as defined below) on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The terms defined in this Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:
“5% Holder” shall have the meaning given in Section 2.3.
“Additional Holder” shall have the meaning given in Section 5.11.
“Additional Holder Common Stock” shall have the meaning given in Section 5.11.
“Adverse Disclosure” shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Chief Executive Officer or Chief Financial Officer of the Company or the Board, in each case, after consultation with counsel to the Company, (i) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements contained therein (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading, (ii) would not be required to be made at such time if the Registration Statement were not being filed, declared effective or used, as the case may be, and (iii) the Company has a bona fide business purpose for not making such information public.
“Affiliate” shall mean, with respect to any Person, any other Person that, directly or indirectly through one or more intermediates, controls, is controlled by or is under common control with such Person.
“Agreement” shall have the meaning given in the Preamble hereto.
“Alyeska” shall mean Alyeska Master Fund, L.P. and its Affiliates.
“Blackout Period” shall have the meaning given in Section 2.1.1.
“Block Trade” shall have the meaning given in Section 2.4.1.
“Board” shall mean the board of directors of the Company.
“Business Combination” shall have the meaning given in the Recitals hereto.
“Business Combination Agreement” shall mean that certain Business Combination Agreement, dated as of [●], 2026 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time), by and among the Company, Maestro Merger Sub, Inc., a Delaware corporation (“Merger Sub”) and May Mobility, Inc., a Delaware corporation (“Legacy May”).
“Business Day” shall mean a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by Law to close.
“Certificate of Designation” shall mean the Certificate of Designation of Preferences, Rights and Limitations of the Series A Preferred Stock.
“Class A Common Stock” shall mean the Class A common stock of the Company, par value $0.0001 per share.
“Class B Common Stock” shall mean the Class B common stock of the Company, par value $0.0001 per share.
“Closing” shall have the meaning given in the Business Combination Agreement.
“Closing Date” shall have the meaning given in the Business Combination Agreement.
“Commission” shall mean the U.S. Securities and Exchange Commission.
“Common Stock” shall mean, collectively, the Class A Common Stock and the Class B Common Stock.
“Company” shall have the meaning given in the Preamble hereto and includes the Company’s successors by recapitalization, merger, consolidation, spin-off, reorganization or similar transaction.
“Competing Registration Rights” shall have the meaning given in Section 5.8.
“Demanding Holder” shall have the meaning given in Section 2.1.4.
“Effectiveness Date” shall have the meaning given in Section 2.1.1.
“Effectiveness Failure” shall have the meaning given in Section 2.1.1.
“Exchange Act” shall mean the U.S. Securities Exchange Act of 1934, as it may be amended from time to time.
“Filing Deadline” shall have the meaning given in Section 2.1.1.
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“FINRA” shall mean the Financial Industry Regulatory Authority, Inc.
“Floor Price” shall mean $5.00 (as adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction occurring after the date of the Securities Purchase Agreement).
“Form S-1 Shelf” shall have the meaning given in Section 2.1.1.
“Form S-3 Shelf” shall have the meaning given in Section 2.1.1.
“Governmental Authority” shall mean any federal, state, local, foreign or other governmental, quasi-governmental or administrative body, instrumentality, department or agency or any court, tribunal, administrative hearing body, arbitration panel, commission, or other similar dispute-resolving panel or body.
“Holder Information” shall have the meaning given in Section 4.1.2.
“Holders” shall have the meaning given in the Preamble hereto, for so long as such Person holds any Registrable Securities.
“Initial Required Registration Amount” shall have the meaning given in Section 2.1.1.
“Joinder” shall have the meaning given in Section 5.11.
“Law” shall mean any federal, state, local, municipal, foreign or other law, statute, legislation, principle of common law, ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation, directive, requirement, writ, injunction, settlement, order or consent that is or has been issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the authority of any Governmental Authority.
“Legacy May” shall have the meaning given in the definition of Business Combination Agreement.
“Legal Proceeding” shall mean any notice of noncompliance or violation, or any claim, demand, charge, action, suit, litigation, audit, settlement, complaint, stipulation, assessment or arbitration, or any request (including any request for information), inquiry, hearing, proceeding or investigation, by or before any Governmental Authority.
“Maximum Number of Securities” shall have the meaning given in Section 2.1.5.
“Merger Sub” shall have the meaning given in the definition of Business Combination Agreement.
“Minimum Takedown Threshold” shall have the meaning given in Section 2.1.4.
“Misstatement” shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus (in the case of a Prospectus, in the light of the circumstances under which they were made) not misleading.
“MM Holders” shall have the meaning given in the Preamble hereto.
“MM Majority Holders” shall mean the MM Holders holding in the aggregate a majority of the Registrable Securities then held by the MM Holders.
“Opt-Out Notice” shall have the meaning given in Section 3.4.
“Original RRA” shall have the meaning given in the Recitals hereto.
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“Other Coordinated Offering” shall have the meaning given in Section 2.4.1.
“Other Holders” shall have the meaning given in the Preamble hereto.
“Other Sponsor Holders” shall have the meaning given in the Preamble hereto.
“Payment Date” shall have the meaning given in Section 2.1.1.
“Permitted Transferees” shall mean persons who receive Registrable Securities from a Holder in: (i) Transfers to the Company’s officers or directors, any Affiliate or family member of any of the Company’s officers or directors, any members or partners of the Holder or their Affiliates, any Affiliates of the Holder, or any employees of such Affiliates; (ii) in the case of an individual, Transfers to any Affiliates or family members of the Holder; (iii) transfers to any investment funds or vehicles controlled or managed by the Holder or any of its Affiliates; (iv) transfers by gift to a trust, the beneficiary of which is a Person to whom a Transfer would be permitted under this definition, or to a charitable organization; (v) in the case of an individual, Transfers by virtue of laws of descent and distribution upon death of such individual; (vi) in the case of an individual, Transfers by operation of law or pursuant to a court order, including pursuant to a qualified domestic relations order, divorce decree or separation agreement; (vii) in the case of an individual, Transfers to a partnership, limited liability company or other entity of which the Holder and/or the Affiliates or family members of the Holder are the legal and beneficial owner of all of the outstanding equity securities or similar interests; (viii) Transfers to a nominee or custodian of a Person to whom a Transfer would be permitted under this definition; (ix) Transfers in connection with any legal, regulatory or other order; (x) in the case of an entity that is a trust, Transfers to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust; (xi) in the case of an entity, Transfers as part of a distribution to members, partners, shareholders or equityholders of the Holder; (xii) in the case of an entity, Transfers by virtue of the laws of the state of the entity’s organization and the entity’s organizational documents upon dissolution of the entity; (xiii) the exercise of stock options or warrants to purchase shares of Common Stock or the vesting of stock awards relating to shares of Common Stock and any related Transfer of shares of Common Stock in connection therewith (x) deemed to occur upon the “cashless” or “net” exercise of such options or warrants or (y) for the purpose of paying the exercise price of such options or warrants or for paying taxes due as a result of the exercise of such options or warrants, the vesting of such options, warrants or stock awards, or as a result of the vesting of such shares of Common Stock; (xiv) Transfers to the Company pursuant to any contractual arrangement in effect upon the consummation of the Business Combination that provides for the repurchase by the Company or forfeiture of Common Stock or other securities convertible into, or exercisable, redeemable or exchangeable for, Common Stock in connection with the termination of the Holder’s service to the Company; or (xv) Transfers in connection with a liquidation, merger, stock exchange, reorganization or tender offer approved by the board of directors of the Company or a duly authorized committee thereof or other similar transaction that results in all of the Company’s securityholders having the right to exchange their shares of Common Stock for cash, securities or other property; provided that no such transaction is required to be, or is, publicly announced (whether on Form 4, Form 5 or otherwise, other than a required filing on Schedule 13F, 13G or 13G/A) during the twelve (12) month period after the date on which the Registration Statement registering for resale all of the Registrable Securities is declared effective by the SEC.
“Person” shall mean an individual, corporation, partnership (including a general partnership, limited partnership or limited liability partnership), limited liability company, association, trust or other entity or organization, including a government, domestic or foreign, or political subdivision thereof, or an agency or instrumentality thereof.
“Piggyback Registration” shall have the meaning given in Section 2.2.1.
“PIPE Holders” shall have the meaning given in the Preamble hereto.
“PIPE Majority Holders” shall have the meaning given in Section 5.8.
“PIPE Transferees” shall mean persons to whom a PIPE Holder of Registrable Securities (or its transferee) transfers its Registrable Securities.
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“Principal Trading Market” shall mean the national securities exchange or other trading market on which the Common Stock is primarily listed on and quoted for trading, which, as of the Closing Date, shall be the Nasdaq Stock Market.
“Prospectus” shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all post-effective amendments and including all material incorporated by reference in such prospectus.
“Registrable Security” shall mean (i) any outstanding shares of Common Stock held by a Holder immediately following the Closing, (ii) any shares of Common Stock that may be acquired by Holders upon the exercise, conversion or redemption of any other security of the Company or other right to acquire Common Stock held by a Holder immediately following the Closing, including, for the avoidance of doubt, any additional shares of Common Stock that become issuable pursuant to the terms of any such security or right as a result of any adjustment to the conversion price, exercise price or exchange price thereof (including any anti-dilution adjustment), in each case as such price may be adjusted from time to time in accordance with the terms of the applicable security or right, (iii) any outstanding shares of Common Stock or any other equity security of the Company held by or issuable to a Holder following the date hereof to the extent that such securities are “restricted securities” (as defined in Rule 144) or are otherwise held by an “affiliate” (as defined in Rule 144) of the Company, (iv) any other equity security of the Company issued or issuable with respect to any securities referenced in clause (i), (ii) or (iii) above by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, spin-off, reorganization or similar transaction and (v) any shares of Common Stock issued or issuable to the Sponsor as Earnout Securities pursuant to Article III of the Sponsor Support Agreement; provided, however, that, as to any particular Registrable Security, such securities shall cease to be Registrable Securities upon the earliest to occur of the following events: (i) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement by the applicable Holder to a Person that is not an “affiliate” (as defined in Rule 144) of the Company and new certificates for such securities not bearing (or book-entry positions not subject to) a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of such securities shall not require registration under the Securities Act; (ii) such securities shall have been otherwise transferred, new certificates for such securities not bearing (or book-entry positions not subject to) a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of such securities shall not require registration under the Securities Act; (iii) such securities shall have ceased to be outstanding; (iv) such securities may be sold by a Holder without registration pursuant to Rule 144 (but with no volume or other restrictions or limitations including as to manner or timing of sale or current public information requirements applicable to such Holder); and (v) such securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.
“Registration” shall mean a registration, including any related Shelf Takedown, effected by preparing and filing a Registration Statement, Prospectus or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.
“Registration Expenses” shall mean the documented, out-of-pocket expenses of a Registration, including, without limitation, the following:
(A) all registration, listing and filing fees (including fees with respect to filings required to be made with FINRA) and any national securities exchange on which the Common Stock is then listed;
(B) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel for the Underwriters in connection with blue sky qualifications of Registrable Securities);
(C) printing, messenger, telephone and delivery expenses;
(D) reasonable fees and disbursements of counsel for the Company;
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(E) reasonable fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such Registration; and
(F) reasonable fees and expenses of one (1) legal counsel selected by the majority in interest of the Demanding Holders in an Underwritten Offering or Other Coordinated Offering; provided that such fees and expenses shall not exceed fifty thousand dollars ($50,000) in aggregate.
“Registration Statement” shall mean any registration statement that covers Registrable Securities pursuant to the provisions of this Agreement, including any Shelf, and, in each case, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement and all exhibits to, and all material incorporated by reference in, such registration statement.
“Requesting Holders” shall have the meaning given in Section 2.1.5.
“Rule 144” shall mean Rule 144 promulgated under the Securities Act, as amended from time to time, or any similar successor rule thereto that may be promulgated by the Commission.
“SEC” shall mean the United States Securities and Exchange Commission.
“Securities Act” shall mean the U.S. Securities Act of 1933, as amended from time to time.
“Securities Purchase Agreements” shall mean those certain Securities Purchase Agreements, by and among the Company and such investors or other securities purchase agreements regarding the issuance of Series A Preferred Stock and Series A Investor Warrants on or about [●].
“Series A Investor Warrants” shall mean warrants to purchase shares of Common Stock issued by the Company to certain investors pursuant to the Securities Purchase Agreements.
“Series A Preferred Stock” shall mean 12% Series A Cumulative Convertible Preferred Stock, par value $0.0001 per share, of the Company.
“Shelf” shall mean the Form S-1 Shelf, the Form S-3 Shelf, or any Subsequent Shelf Registration, as the case may be.
“Shelf Registration” shall mean a registration of securities pursuant to a registration statement filed with the Commission in accordance with and pursuant to Rule 415 promulgated under the Securities Act, as amended from time to time, or any similar successor rule thereto that may be promulgated by the Commission.
“Shelf Takedown” shall mean an Underwritten Shelf Takedown or any proposed transfer or sale using a Registration Statement, including a Piggyback Registration.
“Sponsor” shall have the meaning given in the Preamble hereto.
“Sponsor Holders” shall have the meaning given in the Preamble hereto.
“Sponsor Majority Holders” shall mean the Sponsor Holders holding in the aggregate a majority of the Registrable Securities then held by the Sponsor Holders.
“Sponsor Support Agreement” shall mean that certain Sponsor Support Agreement, dated as of [●], 2026, by and among the Sponsor, the Company and Legacy May.
“Subsequent Shelf Registration” shall have the meaning given in Section 2.1.2.
“Transfer” shall mean the (i) sale or assignment of, offer to sell, contract or agreement to sell, hypothecation, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any security, (ii) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (iii) public announcement of any intention to effect any transaction specified in clause (i) or (ii).
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“Transfer Agent” shall have the meaning given in Section 2.5.
“Underwriter” shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such dealer’s market-making activities.
“Underwritten Lock-Up Period” shall have the meaning given in Section 2.3.
“Underwritten Registration” or “Underwritten Offering” shall mean a Registration in which securities of the Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.
“Underwritten Shelf Takedown” shall have the meaning given in Section 2.1.4.
“Withdrawal Notice” shall have the meaning given in Section 2.1.6.
“Yearly Limit” shall have the meaning given in Section 2.1.4.
ARTICLE II
REGISTRATIONS AND OFFERINGS
2.1 Shelf Registration.
2.1.1 Filing. The Company shall, subject to Section 3.4, submit or file (at the Company’s sole cost and expense) within 30 days of the Closing Date (the “Filing Deadline”) a Registration Statement for a Shelf Registration on Form S-1 (the “Form S-1 Shelf”) or, if the Company is eligible to use a Registration Statement on Form S-3, a Shelf Registration on Form S-3 (the “Form S-3 Shelf”), in each case, covering the resale of all Registrable Securities (determined as of two (2) business days prior to such submission or filing and assuming that (i) all shares of Series A Preferred Stock are converted into shares of Common Stock at a conversion price equal to the Floor Price and taking into account payment-in-kind dividends for at least three years from the date of such submission or filing without giving effect to any limitation on conversion set forth in the Certificate of Designation for the Series A Preferred Stock and (ii) all Series A Investor Warrants are exercised in full at an exercise price equal to the Floor Price) on a delayed or continuous basis (the “Initial Required Registration Amount”) and shall use its commercially reasonable efforts to have such Shelf declared effective as soon as reasonably practicable after the filing thereof, but no later than the earlier of (a) the 75th calendar day following the filing date thereof if the Commission notifies the Company that it will “review” the Registration Statement and (b) the tenth (10th) business day after the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be “reviewed” or will not be subject to further review (such earlier date, the “Effectiveness Date”); provided, further, that in the event of a U.S. federal government shutdown during which the Commission is closed for operations, the Effectiveness Date shall be extended by the lesser of (i) the same number of days that the Commission remains closed for operations as a result of such shutdown and (ii) twenty calendar days. Such Shelf shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. Subject to Sections 2.1.3 and 3.4, the Company shall maintain a Shelf in accordance with the terms hereof, and shall prepare and file with the Commission such amendments, including post-effective amendments, and supplements as may be necessary to keep a Shelf continuously effective with respect to all Registrable Securities (even if such amount of Registrable Securities exceeds the Initial Required Registration Amount of Registrable Securities) as of such time, available for use to permit the Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. If (i) the Registration Statement covering the Registrable Securities is not filed with the SEC on or prior to the Filing Deadline, (ii) the Registration Statement registering for resale all of the Registrable Securities is not declared effective by the SEC by the Effectiveness Date or (iii) after the Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement (each, an “Effectiveness Failure”), the Company will make pro rata payments to each PIPE Holder, as liquidated damages and not as a penalty, in an amount equal to 3.0% of the aggregate amount paid pursuant to the Securities Purchase Agreement by such PIPE Holder for such Registrable Securities then held by such PIPE Holder for each thirty (30) Business Day period or pro rata for any portion thereof during which such Effectiveness Failure continues following (A) in the case of clause (i), five (5) days after the Filing Deadline for which no Registration Statement is filed with respect to the Registrable Securities, (B) in the case of clause (ii), five (5) days after the Effectiveness Date for which the Registration Statement has not been declared effective by the SEC or (C) in the case of clause (iii), five (5) days after the date on which sales cannot be made pursuant to such Registration Statement (the “Blackout Period”). Such payments shall constitute such PIPE Holder’s exclusive monetary remedy for such events, but shall not affect the right of such PIPE Holder to seek injunctive relief. Such payments shall be made to such PIPE Holder in cash no later than ten (10) Business Days after the end of each such thirty (30) Business Day period following the commencement of the Blackout Period until the termination of the Blackout Period (the “Payment Date”). Interest shall accrue at the rate of 1.0% per month on any such liquidated damages payments that shall not be paid by the Payment Date until such amount is paid in full. In the event the Company files a Form S-1 Shelf, the Company shall use its commercially reasonable efforts to convert the Form S-1 Shelf (and any Subsequent Shelf Registration) to a Form S-3 Shelf as soon as reasonably practicable after the Company is eligible to use Form S-3; provided that the Company shall maintain the effectiveness of the Form S-1 Shelf then in effect until such time as a Form S-3 Shelf covering the Registrable Securities has been declared effective by the Commission. Notwithstanding anything in this Section 2.1.1 to the contrary, during any periods that the Company is unable to meet its obligations hereunder with respect to the registration of the Registrable Securities because any PIPE Holder fails to furnish information required to be provided pursuant to this Agreement, including under Section 3.1.12, Section 3.3, Section 4.1.2 or Section 5.10, within three (3) Business Days of the Company’s request, any liquidated damages that would otherwise accrue as to such PIPE Holder only shall be tolled until such information is delivered to the Company. Notwithstanding the foregoing, after the date that is 180 days following the initial effectiveness date of the first Registration Statement, it shall not be an Effectiveness Failure if sales cannot be made pursuant to such Registration Statement during any period of unavailability permitted by Section 3.4.
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2.1.2 Subsequent Shelf Registration. If any Shelf ceases to be effective under the Securities Act for any reason at any time while Registrable Securities are still outstanding, the Company shall, subject to Section 3.4, use its commercially reasonable efforts to, as promptly as is reasonably practicable, cause such Shelf to again become effective under the Securities Act (including using its commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness of such Shelf), and shall use its commercially reasonable efforts to, as promptly as is reasonably practicable, amend such Shelf in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf or file an additional registration statement as a Shelf Registration (a “Subsequent Shelf Registration”) registering the resale of all Registrable Securities under such Shelf (determined as of two (2) business days prior to such filing and assuming that (i) all shares of Series A Preferred Stock are converted into shares of Common Stock at a conversion price equal to the Floor Price and taking into account payment-in-kind dividends for at least three years from the date of such submission or filing and (ii) all Series A Investor Warrants are exercised in full at an exercise price equal to the Floor Price), and pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. If a Subsequent Shelf Registration is filed, the Company shall use its commercially reasonable efforts to (i) cause such Subsequent Shelf Registration to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof (it being agreed that the Subsequent Shelf Registration shall be an automatic shelf registration statement (as defined in Rule 405 promulgated under the Securities Act) if the Company is a well-known seasoned issuer (as defined in Rule 405 promulgated under the Securities Act) at the most recent applicable eligibility determination date) and (ii) keep such Subsequent Shelf Registration continuously effective, available for use to permit the Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. Any such Subsequent Shelf Registration shall be on Form S-3 to the extent that the Company is eligible to use such form. Otherwise, such Subsequent Shelf Registration shall be on another appropriate form.
2.1.3 New Registrable Securities. Subject to Section 3.4, in the event that any Holder holds Registrable Securities that are not registered for resale on a delayed or continuous basis, the Company shall, upon the written request of such Holder, promptly use its commercially reasonable efforts to cause the resale of such Registrable Securities to be covered by either, at the Company’s option, any then-available Shelf (including by means of a post-effective amendment) or a Subsequent Shelf Registration and cause the same to become effective as soon as practicable after such filing and such Shelf or Subsequent Shelf Registration shall be subject to the terms hereof; provided, however, that the Company shall (i) only be required to cause such Registrable Securities to be so covered twice per calendar year for each of (A) the Sponsor Holders, collectively, (B) the MM Holders, collectively, (C) the PIPE Holders, collectively, and (D) the Other Holders, collectively, and (ii) promptly following the issuance of any Earnout Securities (as defined in the Sponsor Support Agreement), and in any event within thirty (30) days thereafter, cause such shares to be covered by a then-available Shelf or a Subsequent Shelf Registration, and any such filing shall not count against the twice-per-calendar-year limitation set forth in this Section 2.1.3.
2.1.4 Requests for Underwritten Shelf Takedowns. Subject to Section 3.4, at any time and from time to time when an effective Shelf is on file with the Commission, any Holder (a “Demanding Holder”) may request to sell all or any portion of its Registrable Securities in an Underwritten Offering or other coordinated offering that is registered pursuant to the Shelf (each, an “Underwritten Shelf Takedown”); provided that the Company shall only be obligated to effect an Underwritten Shelf Takedown if such offering shall include Registrable Securities proposed to be sold by the Demanding Holder, either individually or together with other Demanding Holders, with a total offering price reasonably expected to exceed, in the aggregate, $50 million (the “Minimum Takedown Threshold”). All requests for Underwritten Shelf Takedowns shall be made by giving written notice to the Company at least 48 hours prior to the public announcement of such Underwritten Shelf Takedown, which shall specify the approximate number of Registrable Securities proposed to be sold in the Underwritten Shelf Takedown. Subject to Section 2.4.4, the Company shall have the right to select the Underwriters for such offering (which shall consist of one or more reputable nationally recognized investment banks), subject to the initial Demanding Holder’s prior approval (which approval shall not be unreasonably withheld, conditioned or delayed). Subject to Section 2.4.6, each of (i) the Sponsor Holders, collectively, (ii) the MM Holders, collectively, (iii) the PIPE Holders, and (iv) the Other Holders, collectively, may demand Underwritten Shelf Takedowns pursuant to this Section 2.1.4 not more than two (2) times in any 12-month period (the “Yearly Limit”). Notwithstanding anything to the contrary in this Agreement, the Company may effect any Underwritten Offering pursuant to any then-effective Registration Statement, including a Form S-3, that is then available for such offering. Notwithstanding the foregoing, the Other Sponsor Holders may not exercise their rights to request an Underwritten Shelf Takedown pursuant to this Section 2.1.4 after five (5) years from the commencement of sales in the Company’s initial public offering and may not exercise such demand rights on more than one occasion. Notwithstanding anything to the contrary in this Agreement, the Company is not obligated to effect an Underwritten Shelf Takedown pursuant to this Section 2.1.4 within ninety (90) days after the closing of an Underwritten Shelf Takedown.
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2.1.5 Reduction of Underwritten Offering. If the managing Underwriter or Underwriters in an Underwritten Shelf Takedown, in good faith, advises the Company, the Demanding Holders and the Holders requesting piggyback rights pursuant to this Agreement with respect to such Underwritten Shelf Takedown (the “Requesting Holders”) (if any) in writing that the dollar amount or number of Registrable Securities that the Demanding Holders and the Requesting Holders (if any) desire to sell, taken together with all other shares of Common Stock or other equity securities that the Company desires to sell and all other shares of Common Stock or other equity securities, if any, that have been requested to be sold in such Underwritten Offering pursuant to separate written contractual piggyback registration rights held by any other stockholders who desire to sell, exceeds the maximum dollar amount or maximum number of equity securities that can be sold in the Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then the Company shall include in such Underwritten Offering, before including any shares of Common Stock or other equity securities proposed to be sold by Company or by other holders of Common Stock or other equity securities, the Registrable Securities of the Demanding Holders and the Requesting Holders (if any) (pro rata, as nearly as practicable, based on the respective number of Registrable Securities that each Demanding Holder and Requesting Holder (if any) has requested be included in such Underwritten Shelf Takedown and the aggregate number of Registrable Securities that the Demanding Holders and Requesting Holders (if any) have requested be included in such Underwritten Shelf Takedown) that can be sold without exceeding the Maximum Number of Securities. To facilitate the allocation of Registrable Securities in accordance with the above provisions, the Company or the Underwriters may round the number of shares allocated to any Holder to the nearest 10 Registrable Securities.
2.1.6 Underwritten Shelf Takedown Withdrawal. Prior to the filing of the applicable “red herring” prospectus or prospectus supplement used for marketing such Underwritten Shelf Takedown, a majority in interest of the Demanding Holders initiating an Underwritten Shelf Takedown shall have the right to withdraw from such Underwritten Shelf Takedown for any or no reason whatsoever upon written notification (a “Withdrawal Notice”) to the Company and the Underwriter or Underwriters (if any) of their intention to withdraw from such Underwritten Shelf Takedown; provided that any other Demanding Holder(s) may elect to have the Company continue an Underwritten Shelf Takedown if the Minimum Takedown Threshold would still be satisfied by the Registrable Securities proposed to be sold in the Underwritten Shelf Takedown by the Demanding Holder(s). If withdrawn, a demand for an Underwritten Shelf Takedown shall constitute a demand for an Underwritten Shelf Takedown by the withdrawing Demanding Holder for purposes of Section 2.1.4 and shall count toward the Yearly Limit, unless the Demanding Holder(s) making the withdrawal reimburses the Company for all Registration Expenses with respect to such Underwritten Shelf Takedown (or, if there is more than one Demanding Holder, a pro rata portion of such Registration Expenses based on the respective number of Registrable Securities that each Demanding Holder has requested be included in such Underwritten Shelf Takedown); provided that, if any other Demanding Holder(s) elects to continue an Underwritten Shelf Takedown pursuant to the proviso in the immediately preceding sentence, such Underwritten Shelf Takedown shall instead count as an Underwritten Shelf Takedown demanded by such Demanding Holder(s) for purposes of Section 2.1.4 and shall count toward the Yearly Limit. Following the receipt of any Withdrawal Notice, the Company shall promptly forward such Withdrawal Notice to any other Requesting Holders. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Shelf Takedown prior to its withdrawal under this Section 2.1.6, other than if a Demanding Holder elects to pay such Registration Expenses pursuant to the second sentence of this Section 2.1.6.
2.2 Piggyback Registration.
2.2.1 Piggyback Rights. If the Company or any Holder proposes to conduct a registered offering of, or if the Company proposes to file a Registration Statement under the Securities Act with respect to the Registration of, equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into equity securities, for its own account or for the account of securityholders of the Company (or by the Company and by the securityholders of the Company including, without limitation, an Underwritten Shelf Takedown pursuant to Section 2.1), other than a Registration Statement (or any registered offering with respect thereto) (i) filed in connection with any employee stock option or other benefit plan, (ii) for an exchange offer or offering of securities solely to the Company’s existing stockholders, (iii) pursuant to a Registration Statement on Form S-4 (or similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto), (iv) for an offering of debt that is convertible into equity securities of the Company, (v) for a dividend reinvestment plan, (vi) filed in connection with an “at-the-market” offering on Form S-3 or (vii) a Block Trade or an Other Coordinated Offering (which shall be subject to Section 2.4), then the Company shall give written notice of such proposed offering to all of the Holders of Registrable Securities as soon as practicable but not less than five (5) days before the anticipated filing date of such Registration Statement or, in the case of an Underwritten Offering pursuant to a Shelf Registration, the applicable “red herring” prospectus or prospectus supplement used for marketing such offering, which notice shall (A) describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, in such offering, and (B) offer to all of the Holders of Registrable Securities the opportunity to include in such registered offering such number of Registrable Securities as such Holders may request in writing within (x) five (5) business days in the case of filing a Registration Statement and (y) two (2) days in the case of an Underwritten Offering (unless such offering is an overnight or bought Underwritten Offering, then one (1) day), in each case after receipt of such written notice (such Registration, a “Piggyback Registration”). Subject to Section 2.2.2, the Company shall, in good faith, cause such Registrable Securities to be included in such Piggyback Registration and, if applicable, shall use its commercially reasonable efforts to cause the managing Underwriter or Underwriters of such Piggyback Registration to permit the Registrable Securities requested by the Holders pursuant to this Section 2.2.1 to be included therein on the same terms and conditions as any similar securities of the Company included in such registered offering and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. The inclusion of any Holder’s Registrable Securities in a Piggyback Registration shall be subject to such Holder’s agreement to enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the Company. Notwithstanding the foregoing, the Other Sponsor Holders may not exercise their “piggyback” registration rights pursuant to this Section 2.2.1 after seven (7) years from the effective date of the Purchaser’s initial public offering.
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2.2.2 Reduction of Piggyback Registration. If the managing Underwriter or Underwriters in an Underwritten Offering that is to be a Piggyback Registration, in good faith, advises the Company and the Holders of Registrable Securities participating in the Piggyback Registration in writing that the dollar amount or number of shares of Common Stock or other equity securities that the Company or the Demanding Holders desire to sell, taken together with (i) the shares of Common Stock or other equity securities, if any, as to which Registration or a registered offering has been demanded pursuant to separate written contractual arrangements with Persons other than the Holders of Registrable Securities hereunder, (ii) the Registrable Securities as to which Registration has been requested pursuant to this Section 2.2 and (iii) the shares of Common Stock or other equity securities, if any, as to which Registration or a registered offering has been requested pursuant to separate written contractual piggy-back registration rights of Persons other than the Holders of Registrable Securities hereunder, exceeds the Maximum Number of Securities, then:
(a) if the Registration or registered offering is undertaken for the Company’s account, the Company shall include in any such Registration or registered offering (A) first, the shares of Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to Section 2.2.1, pro rata, as nearly as practicable, based on the respective number of Registrable Securities that each Holder has requested be included in such Underwritten Offering and the aggregate number of Registrable Securities that the Holders have requested to be included in such Underwritten Offering, which can be sold without exceeding the Maximum Number of Securities; and (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the shares of Common Stock or other equity securities, if any, as to which Registration or a registered offering has been requested pursuant to separate written contractual piggyback registration rights of Persons other than the Holders of Registrable Securities hereunder, which can be sold without exceeding the Maximum Number of Securities;
(b) if the Registration or registered offering is pursuant to a request by Persons other than the Holders of Registrable Securities, then the Company shall include in any such Registration or registered offering (A) first, the shares of Common Stock or other equity securities, if any, of such requesting Persons, other than the Holders of Registrable Securities, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to Section 2.2.1, pro rata, as nearly as practicable, based on the respective number of Registrable Securities that each Holder has requested be included in such Underwritten Offering and the aggregate number of Registrable Securities that the Holders have requested to be included in such Underwritten Offering, which can be sold without exceeding the Maximum Number of Securities; (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the shares of Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A), (B) and (C), the shares of Common Stock or other equity securities, if any, as to which Registration or a registered offering has been requested pursuant to separate written contractual piggy-back registration rights of such Persons other than the Holders of Registrable Securities hereunder, which can be sold without exceeding the Maximum Number of Securities; and
(c) if the Registration or registered offering is pursuant to a request by Holder(s) of Registrable Securities pursuant to Section 2.1, then the Company shall include in any such Registration or registered offering securities in the priority set forth in Section 2.1.5.
2.2.3 Piggyback Registration Withdrawal. Any Holder of Registrable Securities (other than a Demanding Holder, whose right to withdraw from an Underwritten Shelf Takedown, and related obligations, shall be governed by Section 2.1.6) shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of his, her or its intention to withdraw from such Piggyback Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Piggyback Registration or, in the case of a Piggyback Registration pursuant to a Shelf Registration, the filing of the applicable “red herring” prospectus or prospectus supplement with respect to such Piggyback Registration used for marketing such transaction. The Company (whether on its own good faith determination or as the result of a request for withdrawal by Persons pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection with a Piggyback Registration at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement (other than Section 2.1.6), the Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal under this Section 2.2.3.
2.2.4 Unlimited Piggyback Registration Rights. For purposes of clarity, subject to Section 2.1.6, any Piggyback Registration effected pursuant to Section 2.2 shall not be counted as a demand for an Underwritten Shelf Takedown under Section 2.1.4 and shall not count toward the Yearly Limit.
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2.3 Market Stand-off. In connection with any Underwritten Offering of equity securities of the Company (other than a Block Trade or Other Coordinated Offering), if requested by the managing Underwriter, each Holder that is an executive officer or director of the Company or a Holder in excess of 5.0% of the then-outstanding Common Stock (for this purpose, taking into account in both the numerator and the denominator any shares of Common Stock that may be acquired by any Person upon the exercise, conversion or redemption of any other security of the Company or other right to acquire Common Stock held by any Person at such time) (“5% Holders”) that intends to sell shares in the Underwritten Offering, agrees that it shall not Transfer any shares of Common Stock or other equity securities of the Company (other than those included in such offering pursuant to this Agreement), without the prior written consent of the Company, during the 90-day period (or such shorter time agreed to by the managing Underwriters) beginning on the date of pricing of such offering (the “Underwritten Lock-Up Period”), except (i) to Permitted Transferees, (ii) as expressly permitted by such lock-up agreement or (iii) in the event the Underwriters managing the offering otherwise consent in writing. Each 5% Holder agrees to execute a customary lock-up agreement in favor of the Underwriters to such effect (in each case on substantially the same terms and conditions as all other Holders). The Company will not be obligated to undertake an Underwritten Shelf Takedown during any Underwritten Lock-Up Period binding on the Holders, nor will the Company be obligated to include in any Piggyback Registration any Registrable Securities that are then subject to a “lock-up” agreement.
2.4 Block Trades; Other Coordinated Offerings.
2.4.1 Notwithstanding any other provision of this Article II, but subject to Section 3.4, at any time and from time to time when an effective Shelf is on file with the Commission, if a Demanding Holder wishes to engage in (a) an underwritten registered offering not involving a “roadshow,” an offer commonly known as a “block trade” (a “Block Trade”) or (b) an “at the market” or similar registered offering through a broker, sales agent or distribution agent, whether as agent or principal, (an “Other Coordinated Offering”), in each case, either (x) with an anticipated aggregate offering price reasonably expected to be at least $50 million or (y) with respect to all remaining Registrable Securities held by the Demanding Holder, then such Demanding Holder only needs to notify the Company of the Block Trade or Other Coordinated Offering at least ten (10) Business Days prior to the day such offering is to commence and the Company shall as expeditiously as possible use its commercially reasonable efforts to facilitate such Block Trade or Other Coordinated Offering; provided that the Demanding Holders representing a majority of the Registrable Securities wishing to engage in the Block Trade or Other Coordinated Offering shall use commercially reasonable efforts to work with the Company and any Underwriters, brokers, sales agents or placement agents prior to making such request in order to facilitate preparation of the registration statement, prospectus and other offering documentation related to the Block Trade or Other Coordinated Offering.
2.4.2 Prior to the filing of the applicable “red herring” prospectus or prospectus supplement used in connection with a Block Trade or Other Coordinated Offering, a majority-in-interest of the Demanding Holders initiating such Block Trade or Other Coordinated Offering shall have the right to submit a Withdrawal Notice to the Company, the Underwriter or Underwriters (if any) and any brokers, sale agents or placement agents (if any) of their intention to withdraw from such Block Trade or Other Coordinated Offering. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Block Trade or Other Coordinated Offering prior to its withdrawal under this Section 2.4.2.
2.4.3 Notwithstanding anything to the contrary in this Agreement, Section 2.2 shall not apply to a Block Trade or Other Coordinated Offering initiated by a Demanding Holder pursuant to this Agreement.
2.4.4 The Demanding Holder in a Block Trade or Other Coordinated Offering shall have the right to select the Underwriters and any brokers, sale agents or placement agents (if any) for such Block Trade or Other Coordinated Offering (in each case, which shall consist of one or more reputable nationally recognized investment banks).
2.4.5 Subject to Section 2.4.6, each of (i) the Sponsor Holders, collectively, (ii) the MM Holders, collectively, (iii) the PIPE Holders, collectively, and (iv) the Other Holders, collectively, may demand no more than two (2) Block Trades or Other Coordinated Offerings pursuant to this Section 2.4 in any twelve (12) month period. For the avoidance of doubt, any Block Trade or Other Coordinated Offering effected pursuant to this Section 2.4 shall not be counted as a demand for an Underwritten Shelf Takedown pursuant to Section 2.1.4.
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2.4.6 Notwithstanding anything to the contrary in this Agreement, with respect to (i) the Sponsor Holders, collectively, (ii) the MM Holders, collectively, or (iii) the Other Holders, collectively, in no event may the number of Block Trades or Other Coordinated Offerings demanded pursuant to this Section 2.4 plus the number of Underwritten Shelf Takedowns demanded pursuant to Section 2.1.4 exceed a total of three (3) demands for such set of Holders in any twelve (12) month period.
2.5 Legends. In connection with any sale or other disposition of the Registrable Securities by a Holder pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission) and upon compliance by the Holder with the requirements of this Section 2.5, if requested by the Holder, the Company shall cause the transfer agent for the Registrable Securities (the “Transfer Agent”) to remove any restrictive legends related to the book entry account holding such Registrable Securities and make a new, unlegended entry for such book entry shares sold or disposed of without restrictive legends within two (2) trading days of any such written request therefor from the Holder; provided that the Company and the Transfer Agent have timely received from the Holder customary representations and other documentation reasonably acceptable to the Company and the Transfer Agent in connection therewith. Subject to receipt from the Holder by the Company and the Transfer Agent of customary representations and such other documentation reasonably acceptable to the Company and the Transfer Agent in connection therewith, the Holder may request that the Company remove any legend from the book entry position evidencing its Registrable Securities and the Company will, if required by the Transfer Agent, use its commercially reasonable efforts to cause an opinion of the Company’s counsel be provided promptly, in a form reasonably acceptable to the Transfer Agent, to the effect that the removal of such restrictive legends in such circumstances may be effected under the Securities Act, following the earliest of such time as such Registrable Securities (i) are subject to or have been or are about to be sold pursuant to an effective registration statement or (ii) have been or are about to be sold pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission). If restrictive legends are no longer required for such Registrable Securities pursuant to the foregoing, the Company shall, in accordance with the provisions of this section and within two (2) trading days of any written request therefor from the Holder accompanied by such customary and reasonably acceptable representations and other documentation referred to above establishing that restrictive legends are no longer required, deliver to the Transfer Agent irrevocable instructions that the Transfer Agent shall make a new, unlegended entry for such book entry shares. The Company shall be responsible for the fees of its Transfer Agent, its legal counsel and all DTC fees associated with such issuance.
ARTICLE III
COMPANY PROCEDURES
3.1 General Procedures. In connection with any Shelf and/or Shelf Takedown, the Company shall use its commercially reasonable efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof (and including all manners of distribution in such Registration Statement as Holders may reasonably request in connection with the filing of such Registration Statement and as permitted by law, including distribution of Registrable Securities to a Holder’s members, securityholders or partners), and pursuant thereto the Company shall, as expeditiously as possible:
3.1.1 prepare and file with the Commission, as soon as reasonably practicable, a Registration Statement with respect to such Registrable Securities and use its commercially reasonable efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities have ceased to be Registrable Securities;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by any Holder that holds at least five percent (5%) of the Registrable Securities registered on such Registration Statement or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
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3.1.4 prior to any public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such registration or qualification) and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each national securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose, and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus (or such shorter period of time as (a) may be necessary in order to comply with the Securities Act, the Exchange Act and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable or (b) advisable in order to reduce the number of days that sales are suspended pursuant to Section 3.4), furnish a copy thereof to each seller of such Registrable Securities and its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein);
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4;
3.1.10 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering, or sale by a broker, placement agent or sales agent that is registered pursuant to a Registration Statement, permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters or other financial institutions facilitating such Underwritten Offering, Block Trade, Other Coordinated Offering or other sale pursuant to such Registration, if any, and any attorney, consultant or accountant retained by such Holders collectively, Underwriters or other financial institutions to participate, at each such Person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection with the Registration; provided, however, that such representative, Underwriters or financial institutions agree to confidentiality arrangements, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter (including a bring-down letter dated as of the date the Registrable Securities are delivered for sale pursuant to such Registration) from the Company’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or a sale by a broker, placement agent or sales agent pursuant to a Registration Statement (subject to such Underwriter or other financial institution facilitating such offering providing such certification or representation as reasonably requested by the Company’s independent registered public accountants and the Company’s counsel), in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter or other similar type of sales agent or placement agent may reasonably request,;
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3.1.12 in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to a Registration Statement, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion and negative assurance letter, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating Holders, the broker, placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders, broker, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, provided, in each case, that such participating Holders provide such information to such counsel as is customarily required for, or is reasonably requested by such counsel for purposes of, such opinion or negative assurance letter;
3.1.13 in the event of any Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to a Registration Statement, enter into and perform its obligations under an underwriting agreement, purchase agreement, sales agreement or placement agreement, in usual and customary form, with the managing Underwriter or broker, sales agent or placement agent of such offering or sale;
3.1.14 make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the period of at least 12 months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 with respect to an Underwritten Offering pursuant to Section 2.1.4, use its commercially reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in such Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders participating in such Registration, consistent with the terms of this Agreement, in connection with such Registration.
Notwithstanding the foregoing, the Company shall not be required to provide any documents or information to an Underwriter or other sales agent or placement agent if such Underwriter or other sales agent or placement agent has not then been named with respect to the applicable Underwritten Offering or other offering involving a registration as an Underwriter or broker, sales agent or placement agent, as applicable.
3.2 Registration Expenses. The Registration Expenses of all Registrations shall be borne by the Company, but excluding discounts, commissions, fees of underwriters, selling brokers, dealer managers or similar securities industry professionals with respect to the Registrable Securities being sold, such as Underwriters’ or agents’ commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as set forth in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing the Holders.
3.3 Requirements for Participation in Underwritten Offerings. The Holders of Registrable Securities shall provide such information as may reasonably be requested by the Company, or the managing Underwriter or placement agent or sales agent, if any, in connection with the preparation of any Registration Statement or Prospectus, including amendments and supplements thereto, in order to effect the registration of any Registrable Securities under the Securities Act pursuant to Article II and in connection with the Company’s obligation to comply with federal and applicable state securities Laws. Notwithstanding anything in this Agreement to the contrary, if any Holder does not timely provide the Company with its requested Holder Information, the Company may exclude such Holder’s Registrable Securities from the applicable Registration Statement or Prospectus if the Company determines, based on the advice of counsel, that such information is necessary to effect the registration and such Holder continues thereafter to withhold such information. No Person may participate in any Underwritten Offering or other coordinated offering for equity securities of the Company pursuant to a Registration initiated by the Company hereunder unless such Person (i) agrees to sell such Person’s securities on the basis provided in any arrangements approved by the Company and (ii) timely completes and executes all customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting or other agreements and other customary documents as may be reasonably required under the terms of such arrangements. The exclusion of a Holder’s Registrable Securities as a result of this Section 3.3 shall not affect the registration of the other Registrable Securities to be included in such Registration.
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3.4 Suspension of Sales; Adverse Disclosure; Restrictions on Registration Rights.
3.4.1 Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement, each of the Holders shall forthwith discontinue disposition of Registrable Securities until he, she or it has received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants to prepare and file such supplement or amendment as soon as practicable after the time of such notice), or until he, she or it is advised in writing by the Company that the use of the Prospectus may be resumed.
3.4.2 If the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would (i) require the Company to make an Adverse Disclosure, (ii) require the inclusion in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control or (iii) in the good faith judgment of the majority of the Board, be seriously detrimental to the Company, and the majority of the Board concludes as a result that it is essential to defer such filing, initial effectiveness or continued use at such time, the Company may, upon giving prompt written notice of such action to the Holders (which notice shall not specify the nature of the event giving rise to such delay or suspension), delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time determined in good faith by the Company to be necessary for such purpose. In the event the Company exercises its rights under this Section 3.4.2, the Holders agree to suspend, promptly upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities until such Holder receives written notice from the Company that such sales or offers of Registrable Securities may be resumed, and in each case maintain the confidentiality of such notice and its contents.
3.4.3 Subject to Section 3.4.4, if (i) during the period starting with the date 60 days prior to the Company’s good faith estimate of the date of the filing of, and ending on a date 120 days after the effective date of, a Company-initiated Registration, and provided that the Company continues to actively employ, in good faith, all commercially reasonable efforts to maintain the effectiveness of the applicable Shelf Registration, or (ii) if, pursuant to Section 2.1.4, Holders have requested an Underwritten Shelf Takedown and the Company and such Holders are unable to obtain the commitment of underwriters to firmly underwrite such offering, then, in each case, the Company may, upon giving prompt written notice of such action to the Holders, delay any other registered offering pursuant to Section 2.1.4.
3.4.4 Notwithstanding anything to the contrary herein, the Company shall not be obligated to effect any Underwritten Shelf Takedown, Block Trade or Other Coordinated Offering during the period commencing fifteen (15) days prior to the end of any fiscal quarter of the Company through the second (2nd) Business Day following the public release by the Company of its earnings for such fiscal quarter.
3.4.5 The right to delay or suspend (i) the disposition of Registrable Securities pursuant to Section 3.4.1; (ii) any filing, initial effectiveness or continued use of a Registration Statement pursuant to Section 3.4.2; or (iii) a registered offering pursuant to Section 3.4.3 (collectively, the “Suspension Rights”) shall be exercised by the Company, in the aggregate, on no more than two occasions and for not more than 90 consecutive calendar days or more than 120 total calendar days in each case, during any 12-month period.
3.4.6 To the extent any notice delivered to a Holder contains material, nonpublic information about the Company, the Company shall contemporaneously with any such delivery (or on or prior to 9:00 a.m., New York City time on the Business Day following a notice to the Holder that is delivered after normal trading hours) publicly disclose such material, nonpublic information on a Current Report on Form 8-K or otherwise.
3.4.7 Each Holder may deliver written notice (an “Opt-Out Notice”) to the Company requesting that such Holder not receive notices from the Company otherwise required by this Section 3.4; provided, however, that such Holder may later revoke any such Opt-Out Notice in writing. Following receipt of an Opt-Out Notice from a Holder (unless subsequently revoked), (i) the Company shall not deliver any notices pursuant to this Section 3.4 to such Holder and such Holder shall no longer be entitled to the rights associated with any such notice and (ii) each time prior to such Holder’s intended use of an effective Registration Statement, such Holder will notify the Company in writing at least two (2) Business Days in advance of such intended use, and if a notice of a delay or suspension was previously delivered (or would have been delivered but for the provisions of this Section 3.4.7) and the related suspension period remains in effect, the Company will so notify such Holder, within one (1) Business Day of such Holder’s notification to the Company, by delivering to such Holder a copy of such previous notice of a delay or suspension, and thereafter will provide such Holder with the related notice of the conclusion of such delay or suspension immediately upon the conclusion thereof (which notices shall not contain any material nonpublic information or subject such Holder to any duty of confidentiality).
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3.5 Reporting Obligations. As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting company under the Exchange Act, covenants to use commercially reasonable efforts to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to Section 13(a) or 15(d) of the Exchange Act, in the manner required by the Commission and in a form that is accurate and complete in all material respects. The Company further covenants that it shall take such further action as any Holder may reasonably request, to the extent required from time to time to enable such Holder to sell Registrable Securities held by such Holder without registration under the Securities Act within the limitation of the exemptions provided by Rule 144, including making available at all time information necessary to enable such Holder to comply with Rule 144. Upon the request of any Holder, the Company shall deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such requirements.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
4.1 Indemnification.
4.1.1 The Company agrees to indemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers, directors, agents and each Person who controls any of the foregoing (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and reasonable and documented out-of-pocket expenses (including, without limitation, reasonable outside attorneys’ fees) resulting from any untrue or alleged untrue statement of material fact contained in or incorporated by reference in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto filed pursuant to this Agreement or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information or affidavit so furnished in writing to the Company by such Holder expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each Person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Holder.
4.1.2 In connection with any Registration Statement filed pursuant to this Agreement in which a Holder of Registrable Securities is participating, such Holder shall furnish (or cause to be furnished) to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus (the “Holder Information”) and, to the extent permitted by law, shall indemnify the Company, its directors, officers and agents and each Person who controls the Company (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and reasonable and documented out-of-pocket expenses (including, without limitation, reasonable outside attorneys’ fees) resulting from any untrue or alleged untrue statement of material fact contained in or incorporated by reference in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement is contained in (or not contained in, in the case of an omission) any information or affidavit so furnished in writing by such Holder expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each person or entity who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of the Company.
4.1.3 Any Person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel (plus one local counsel if necessary in the reasonable judgment of the indemnified party) for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement includes a statement or admission of fault and culpability on the part of such indemnified party or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
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4.1.4 The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and shall survive the transfer of securities. The Company and each Holder of Registrable Securities participating in an offering also agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or such Holder’s indemnification is unavailable for any reason.
4.1.5 If the indemnification provided under Section 4.1 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and out-of-pocket expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and out-of-pocket expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by (or not made by, in the case of an omission), or relates to information supplied by (or not supplied by in the case of an omission), such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder under this Section 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in Sections 4.1.1, 4.1.2 and 4.1.3, any legal or other fees, charges or out-of-pocket expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.1.5 were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this Section 4.1.5. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 4.1.5 from any Person who was not guilty of such fraudulent misrepresentation.
4.2 Waiver of Medallion Guaranty. The Company agrees to use commercially reasonable efforts to enter into that certain indemnification agreement, substantially in the form attached as Exhibit B to this Agreement, in favor of Odyssey Transfer & Trust Company (or any successor transfer agent or warrant agent of the Company) in connection with the waiver of any requirement to provide a medallion guarantee in connection with any Transfer of any shares of Common Stock or other equity securities of the Company by any Sponsor Holder, MM Holder, PIPE Holder, or any of their Permitted Transferees or PIPE Transferees; provided that, in each case, as a prerequisite to the Company’s entry into such indemnification agreement, such Sponsor Holder, MM Holder, Permitted Transferee or PIPE Transferee enters into an indemnification agreement in favor of the Company.
ARTICLE V
MISCELLANEOUS
5.1 Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered (i) in person, (ii) by facsimile or other electronic means (including email), with affirmative confirmation of receipt, (iii) one (1) Business Day after being sent, if sent by reputable, nationally recognized overnight courier service or (iv) three (3) Business Days after being mailed, if sent by registered or certified mail, pre-paid and return receipt requested, in each case to the applicable party at the following addresses (or at such other address for a party as shall be specified by like notice). Any notice or communication under this Agreement must be addressed, if to the Company, to: [May Mobility, Inc.], [●], Attention: [●], Email: [●], with a copy (which shall not constitute notice) to [●], [●], Attention: [●], Email: [●]; and, if to any Holder, at such Holder’s address or contact information as set forth in the Company’s books and records. Any party may change its address for notice at any time and from time to time by written notice to the other parties hereto, and such change of address shall become effective thirty (30) days after delivery of such notice as provided in this Section 5.1.
5.2 Assignment; No Third-Party Beneficiaries.
5.2.1 This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part.
5.2.2 This Agreement and the rights, duties and obligations of the Holders hereunder may not be assigned or delegated by the Holders in whole or in part; provided, however, that, subject to Section 5.2.5, a Holder may assign the rights and obligations of such Holder hereunder relating to particular Registrable Securities in connection with the transfer of such Registrable Securities to an Affiliate or a Permitted Transferee or PIPE Transferee of such Holder (it being understood that no such Transfer shall reduce any rights of the Holder with respect to Registrable Securities still held by such Holder). A Permitted Transferee or a PIPE Transferee receiving Registrable Securities from a Sponsor Holder shall become a Sponsor Holder, a Permitted Transferee or a PIPE Transferee receiving Registrable Securities from a MM Holder shall become a MM Holder, a Permitted Transferee or a PIPE Transferee receiving Registrable Securities from a PIPE Holder shall become a PIPE Holder, and a Permitted Transferee or a PIPE Transferee receiving Registrable Securities from an Other Holder shall become an Other Holder, in each case, with respect to the Registrable Securities so received.
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5.2.3 This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and the permitted assigns of the Holders, which shall include Permitted Transferees and PIPE Transferees.
5.2.4 This Agreement shall not confer any rights or benefits on any Persons that are not parties hereto, other than as expressly set forth in this Agreement and Section 5.2.
5.2.5 No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless such assignment is permitted under Section 5.2.2 and unless and until the Company shall have received (i) written notice of such assignment as provided in Section 5.1 and (ii) the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement). Any transfer or assignment made other than as provided in this Section 5.2 shall be null and void.
5.3 Counterparts. This Agreement may be executed and delivered (including by facsimile or other electronic transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
5.4 Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to principles or rules of conflict of Laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction.
5.5 Jurisdiction. Any Legal Proceeding based upon, arising out of or related to this Agreement or the transactions contemplated hereby must be brought in the Court of Chancery of the State of Delaware (or, to the extent such court does not have jurisdiction, in the United States District Court for the District of Delaware and to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), and each of the parties irrevocably (i) submits to the exclusive jurisdiction of each such court in any such Legal Proceeding, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, (iii) agrees that all claims in respect of the Legal Proceeding shall be heard and determined only in any such court, and (iv) agrees not to bring any Legal Proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in any other court. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by Law or to commence Legal Proceedings or otherwise proceed against any other party in any other jurisdiction, in each case, to enforce judgments obtained in any Legal Proceeding, suit or proceeding brought pursuant to this Section 5.5.
5.6 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
5.7 Amendments and Modifications. Upon the written consent of the Company and the Holders of at least a majority in interest of the aggregate Registrable Securities at the time in question, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however, that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects the Sponsor Holders shall also require the written consent of the Holders so long as the Sponsor Holders and their respective affiliates hold, in the aggregate, at least three percent (3%) of the outstanding shares of Common Stock of the Company; provided, further, that any amendment hereto or waiver hereof that adversely affects the PIPE Holders shall also require the written consent of the PIPE Majority Holders so long as the PIPE Holders and their respective affiliates hold, in the aggregate, at least three percent (3%) of the outstanding shares of Common Stock of the Company (assuming all shares of Series A Preferred Stock were converted into shares of Common Stock at the then-current conversion price and all Series A Investor Warrants are exercised in full at the then-current exercise price); and provided, further, that any amendment hereto or waiver hereof that adversely affects one Holder, solely in its capacity as a holder of the shares of capital stock of the Company, in a manner that is materially different from the other Holders (in such capacity) shall require the consent of the Holder so affected. No course of dealing between any Holder or the Company and any other party hereto or any failure or delay on the part of a Holder or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or the Company. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party.
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5.8 Other Registration Rights. Other than as provided in the Warrant Agreement, dated as of April 6, 2026, between the Company and Odyssey Transfer & Trust Company, the Company represents and warrants that no Person, other than a Holder of Registrable Securities, has any right to require the Company to register any securities of the Company for sale or to include such securities of the Company in any Registration Statement filed by the Company for the sale of securities for its own account or for the account of any other Person. For so long as the Sponsor Holders and their respective affiliates hold, in the aggregate, at least three percent (3%) of the outstanding shares of Common Stock of the Company, the Company hereby agrees and covenants that it will not grant rights to register any Common Stock (or securities convertible into or exchangeable for Common Stock) pursuant to the Securities Act that are more favorable or senior to those granted to the Holders hereunder (such rights “Competing Registration Rights”) without the prior written consent of the Sponsor Majority Holders, not to be unreasonably withheld, delayed or conditioned; provided, further, that for so long as the PIPE Holders and their respective affiliates hold, in the aggregate, at least three percent (3%) of the outstanding shares of Common Stock of the Company (assuming all shares of Series A Preferred Stock were converted into shares of Common Stock at the then-current conversion price and all Series A Investor Warrants are exercised in full at the then-current exercise price), the Company hereby agrees and covenants that it will not grant Competing Registration Rights without the prior written consent of the holders of a majority in interest of the Registrable Securities then held by all PIPE Holders, which majority must include Alyeska to the extent it then holds fifty percent (50%) of the Registrable Securities it owned immediately following the Closing (the “PIPE Majority Holders”), regardless of the aggregate number of Registrable Securities held by the PIPE Holders relative to all Holders. Further, the Company represents and warrants that this Agreement supersedes any other registration rights agreement or agreement with similar terms and conditions, and in the event of a conflict between any such agreement or agreements and this Agreement, the terms of this Agreement shall prevail.
5.9 Term. This Agreement shall terminate upon the earlier of (i) the seventh anniversary of the date of this Agreement and (ii) with respect to any Holder, the date that such Holder no longer holds any Registrable Securities. The provisions of Article IV shall survive any termination.
5.10 Holder Information. Each Holder agrees, if requested in writing, to represent to the Company the total number of Registrable Securities held by such Holder in order for the Company to make determinations hereunder.
5.11 Additional Holders; Joinder. In addition to Persons who may become Holders pursuant to Section 5.2, subject to the prior written consent of the Company and at least a majority in interest of the aggregate Registrable Securities at the time in question, the Company may make any Person who acquires Common Stock or rights to acquire Common Stock after the date hereof a party to this Agreement (each such Person, an “Additional Holder”) by obtaining an executed joinder to this Agreement from such Additional Holder in the form of Exhibit A attached hereto (a “Joinder”). Such Joinder shall specify the rights and obligations of the applicable Additional Holder under this Agreement. Upon the execution and delivery and subject to the terms of a Joinder by such Additional Holder, the Common Stock of the Company then owned, or underlying any rights then owned, by such Additional Holder (the “Additional Holder Common Stock”) shall be Registrable Securities to the extent provided herein and therein, and such Additional Holder shall be a Holder under this Agreement with respect to such Additional Holder Common Stock.
5.12 Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.
5.13 Entire Agreement; Restatement. This Agreement and the documents or instruments referred to herein, including any exhibits and schedules attached hereto, which exhibits and schedules are incorporated herein by reference, embody the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein or the documents or instruments referred to herein, which collectively supersede all prior agreements and the understandings among the parties with respect to the subject matter contained herein. Upon the Closing, the Original RRA shall no longer be of any force or effect.
[Signature Pages Follow]
19
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| COMPANY: | |||
| [●] | |||
| a Delaware corporation | |||
| By: | |||
| Name: | |||
| Title: | |||
| MM HOLDERS: | |
| [●] | |
| [●] |
| SPONSOR: | |||
| UNION STREET SPONSOR, LLC | |||
| a Delaware limited liability company | |||
| By: | |||
| Name: | |||
| Title: | |||
| OTHER SPONSOR HOLDERS: | |||
ROTH CAPITAL PARTNERS, LLC a California limited liability company | |||
| By: | |||
| Name: | |||
| Title: | |||
| [●] | |||
| By: | |||
| Name: | |||
| Title: | |||
| PIPE HOLDERS: | |
| [●] | |
| [●] | |
| [●] | |
| OTHER HOLDERS: | |
| [●] | |
| [●] | |
| [●] |
Exhibit A
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT JOINDER
The undersigned is executing and delivering this joinder (this “Joinder”) pursuant to the Amended and Restated Registration Rights Agreement, dated as of [ ], 2026 (as the same may hereafter be amended, the “Registration Rights Agreement”), among [●], a Delaware corporation (the “Company”), and the other Persons named as parties therein. Capitalized terms used but not otherwise defined herein shall have the meanings provided in the Registration Rights Agreement.
By executing and delivering this Joinder to the Company, and upon acceptance hereof by the Company upon the execution of a counterpart hereof, the undersigned hereby agrees to become a party to, to be bound by and to comply with the Registration Rights Agreement as a Holder of Registrable Securities in the same manner as if the undersigned were an original signatory to the Registration Rights Agreement as [a Sponsor Holder / a MM Holder / a PIPE Holder / an Other Holder], and the undersigned’s [shares of Common Stock] shall be included as Registrable Securities under the Registration Rights Agreement to the extent provided therein; provided, however, that the undersigned and its permitted assigns (if any) shall not have any rights as Holders, and the undersigned’s (and its transferees’) [shares of Common Stock] shall not be included as Registrable Securities, for purposes of the Excluded Sections.
For purposes of this Joinder, “Excluded Sections” shall mean [_______].
Accordingly, the undersigned has executed and delivered this Joinder as of the ___________ day of __________, 20__.
| Signature of Stockholder | ||
| Print Name of Stockholder | ||
| Its: | ||
| Address: | ||
| Agreed and Accepted as of | ||
| ___________,20__ | ||
| [●] | ||
| By: | ||
| Name: | ||
| Its: | ||
Exhibit B
[●]
[●]
[●]
[ ], 2026
Odyssey Transfer & Trust Company
860 Blue Gentian Road
Suite 320
Eagan, MN 55121
| Re: | Indemnification in-lieu-of Medallion Signature Guarantee |
To whom it may concern:
This letter is in regards to the transfer by [Union Street Sponsor, LLC / Name of Sponsor Holder] to [ ], of [ ] shares of Common Stock of [●] (the “Company”). Please be advised that the Company authorizes Odyssey Transfer & Trust Company to process the subject transfer, which includes securities that have been duly endorsed by the registered holder but do not bear a customary medallion signature guarantee. The Company agrees to indemnify Odyssey Transfer & Trust Company against all losses, damages, costs, charges and expenses that it may in any way sustain, incur, or become liable for by reason related to the above referenced transaction.
I, [●], a duly authorized officer of the Company, have the authority to execute this indemnification on behalf of the Company.
| Very truly yours, | ||
| [●] | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit 10.7
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”) is dated as of September 15, 2026, by and among ACP Holdings Acquisition Corp., a Cayman Islands exempted company (the “Company”), May Mobility, Inc., a Delaware corporation (the “Target”), and the purchaser identified on the signature pages hereto (including its successors and assigns, the “Purchaser”).
WHEREAS, the Company, the Target and Maestro Merger Sub, Inc., Inc., a Delaware corporation and a direct wholly owned subsidiary of the Company (the “Merger Sub”), entered into a Business Combination Agreement, dated as of September 14, 2026 (as it may be amended, modified, supplemented or otherwise modified from time to time in accordance with its terms, the “Business Combination Agreement”), pursuant to which, among other things, Merger Sub will merge with and into the Target, with the Target surviving as a wholly owned subsidiary of the Company (the “Merger”); and
WHEREAS, in connection with the Merger, the Company will domesticate as a corporation incorporated under the laws of the State of Delaware (the “Domestication”), and the Class A ordinary shares of the Company will convert into shares of common stock, par value $0.0001 per share, of the Company (the “Common Stock”) (the consummation of the Merger, the Domestication and the other transactions contemplated by the Business Combination Agreement, collectively, the “Business Combination”); and
WHEREAS, in connection with the Business Combination, subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act (as defined below), the Company desires to issue and sell to the Purchaser, and the Purchaser desires to purchase from the Company, securities of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company, the Target and the Purchaser agree as follows:
Article
I.
DEFINITIONS
Section 1.01 Definitions. In addition to the terms defined elsewhere in this Agreement: (a) capitalized terms that are not otherwise defined herein have the meanings given to such terms in the Certificate of Designation (as defined herein), and (b) the following terms have the meanings set forth in this Section 1.01:
“Action” means any action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the applicable party, threatened against or affecting the applicable party or any of its properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign).
“Additional Information” means the Target’s financial statements and the Target Disclosure Letter to the Business Combination Agreement (as referred to in the Business Combination Agreement, the “Company Disclosure Letter” but herein referred to as the “Target Disclosure Letter”).
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Alyeska” means Alyeska Master Fund I, LP and/or one or more of its Affiliates.
“Backstop Shares” shall have the meaning ascribed to such term in Section 4.17(d).
“Board of Directors” means the board of directors of the Company.
“Business Combination” shall have the meaning ascribed to such term in the recitals.
“Business Combination Agreement” shall have the meaning ascribed to such term in the recitals.
“Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed.
“Certificate of Designation” means the Certificate of Designation to be filed prior to the Closing by the Company with the Secretary of State of Delaware, in the form of Exhibit A attached hereto.
“Closing” means the closing of the purchase and sale of the Subscribed Securities pursuant to Section 2.01.
“Closing Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent to (i) the Purchaser’s obligations to pay the Subscription Amount and (ii) the Company’s obligations to deliver the Subscribed Securities, in each case, have been satisfied or waived.
“Common Stock” means, following the Domestication, the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed.
“Common Stock Equivalents” means any securities of the Company that would entitle the holder thereof to acquire Common Stock at any time, including, without limitation, any debt, preferred stock, rights, options, warrants or other instruments that are at any time convertible into or exchangeable for, or otherwise entitle the holder thereof to receive, Common Stock.
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“Company Material Adverse Effect” means any change, event, or occurrence, that, individually or when aggregated with other changes, events, or occurrences has had or is reasonably likely to have a materially adverse effect on the business, assets, financial condition or results of operations of the Company; provided, however, that no change or effect related to any of the following, alone or in combination, shall be taken into account in determining whether a Company Material Adverse Effect has occurred: (i) the announcement of this Agreement and consummation of the transactions contemplated hereby; (ii) the taking of any action required by this Agreement or any Transaction Document; (iii) any natural disaster (including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions or similar occurrences), pandemic or change in climate, (iv) any acts of terrorism or war, the outbreak or escalation of hostilities, geopolitical conditions, local, national or international political conditions; (v) the Redemption; (vi) any breach of any covenants, agreements or obligations of any investor pursuant to a Series A SPA, or any investor in any PIPE Investment, in each case who is not the Sponsor or an Affiliate of the Sponsor, under this Agreement or other similar agreements related to financing the Company or Target (including any breach of such Person’s obligations to fund any amounts thereunder when required); (vii) changes or proposed changes in applicable Law, regulations or interpretations thereof or decisions by courts or any Governmental Authority after the date of this Agreement; (viii) changes or proposed changes in GAAP (or any interpretation thereof) after the date of this Agreement; or (ix) any downturn in general economic conditions, including changes in the credit, debt, securities, financial, capital or reinsurance markets (including changes in interest or exchange rates, prices of any security or market index or commodity or any disruption of such markets), in each case, in the United States or anywhere else in the world.
“Company Party” means the Company and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons.
“Consent” means any consent, approval, waiver, authorization or Permit of, or notice to or declaration or filing with any Governmental Authority or any other Person.
“Contingent Obligations” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any Indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto.
“Conversion Shares” means the shares of Common Stock issued and issuable upon conversion of the shares of Preferred Stock purchased pursuant to this Agreement in accordance with the terms of the Certificate of Designation.
“Disqualification Event” shall have the meaning ascribed to such term in Section 3.01(i).
“Domestication” shall have the meaning ascribed to such term in the recitals.
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“Effective Date” means the first date on which (a) the initial Registration Statement has been declared effective by the SEC registering the resale of all of the Underlying Shares and, if applicable, the Backstop Shares or (b) all of the Underlying Shares and, if applicable, the Backstop Shares, have been sold pursuant to Rule 144 or may be sold pursuant to Rule 144 (but with no volume or other restrictions or limitations including as to manner or timing of sale or current public information requirements).
“Effectiveness Price” means the VWAP of the Common Stock on the Effective Date.
“Equity Interests” shall have the meaning ascribed to such term in Section 3.01(j).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Forward Purchase Agreement” shall have the meaning ascribed to such term in Section 4.19.
“GAAP” shall mean generally accepted accounting principles in the United States of America.
“Governmental Authority” means any federal, state, local, foreign government or other governmental, quasi-governmental, regulatory or administrative authority, body, instrumentality, department, board, bureau or agency or any court, tribunal, administrative hearing body, arbitration panel, commission, or other similar dispute-resolving panel or body (private or public).
“Incentive Shares” means the number of shares of Common Stock issued by the Company on the Closing Date in connection with a PIPE Upsize or a Prefunding, which Incentive Shares (1) will be “restricted securities” within the meaning of Rule 144 and shall be subject to the restrictions on transfer set forth in Section 4.01 of this Agreement and (2) entitled to the same registration rights afforded to Registrable Securities under the Registration Rights Agreement.
“Indebtedness” of any Person means, without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with GAAP) (other than trade payables entered into in the ordinary course of business consistent with past practice), (C) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (E) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property), (F) all monetary obligations under any leasing or similar arrangement which, in connection with GAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (G) all indebtedness referred to in clauses (A) through (F) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (H) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (A) through (G) above.
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“Issuer Covered Person” shall have the meaning ascribed to such term in Section 3.01(i).
“Law” means any federal, state, local, municipal, foreign or other law, statute, legislation, principle of common law, ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation, directive, requirement, writ, injunction, settlement, Order or Consent that is or has been issued, enacted, adopted, passed, approved, promulgated, made, implemented or otherwise put into effect by or under the authority of any Governmental Authority.
“Lien” means any mortgage, pledge, security interest, attachment, right of first refusal, preemptive right, option, proxy, voting trust, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof), restriction (whether on voting, sale, transfer, disposition or otherwise), any subordination arrangement in favor of another Person, or any filing or agreement to file a financing statement as debtor under the Uniform Commercial Code or any similar Law.
“Lock-Up Arrangements” shall have the meaning ascribed to such term in Section 4.20.
“Losses” means losses, liabilities, obligations, claims, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation.
“Merger” shall have the meaning ascribed to such term in the recitals.
“Non-Redemption Incentive” shall have the meaning ascribed to such term in Section 4.19.
“Non-Redemption Payment” shall have the meaning ascribed to such term in Section 4.17(b).
“Non-Redemption Shares” shall have the meaning ascribed to such term in Section 4.17(c).
“Order” means any order, decree, ruling, judgment, injunction, writ, determination, binding decision, verdict, judicial award or other action that is or has been made, entered, rendered, or otherwise put into effect by or under the authority of any Governmental Authority.
“Organizational Documents” means, with respect to any Person that is an entity, its certificate of incorporation or formation, bylaws, operating agreement, memorandum and articles of association or similar organizational documents, in each case, as amended.
5
“Permits” means all federal, state, local or foreign or other third-party permits, grants, easements, consents, approvals, authorizations, exemptions, licenses, franchises, concessions, ratifications, permissions, clearances, confirmations, endorsements, waivers, certifications, designations, ratings, registrations, qualifications or orders of any Governmental Authority or any other Person.
“Per Share Redemption Price” shall have the meaning ascribed to such term in Section 4.17(c).
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“PIPE Investment” shall have the meaning ascribed to such term in the Business Combination Agreement.
“PIPE Upsize” means an increase in gross cash proceeds from the PIPE Investment of (i) up to an aggregate of $50,000,000 from the Purchaser, any Other Series A Investor or any other investors approved by Alyeska in writing; or (ii) any amount from a Strategic Investor.
“Placement Agent” means Cantor Fitzgerald & Co.
“Preferred Stock” means the Series A Cumulative Convertible Preferred Stock having the rights, preferences and privileges set forth in the Certificate of Designation, in the form of Exhibit A hereto.
“Prefund” or “Prefunding” means an investment in cash into the Target on or before the Prefunding Deadline that will automatically convert into a PIPE Investment upon the Closing, by (i) the Purchaser, any Other Series A Investor or any other investors approved by Alyeska in writing; or (ii) a Strategic Investor, subject to the terms and conditions set forth herein.
“Prefunding Deadline” means September 30, 2026.
“Proceeding” means an action, claim, suit, investigation or proceeding, whether commenced or threatened.
“Purchaser Party” means the Purchaser and the Purchaser’s directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls the Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons.
6
“Redemption” shall have the meaning ascribed to such term in the Business Combination Agreement.
“Registration Rights Agreement” means the Registration Rights Agreement among the Company, the Purchaser and the other parties thereto, in the form of Exhibit B attached hereto.
“Registration Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering the resale of the Underlying Shares by the Purchaser as provided for in the Registration Rights Agreement.
“Required Minimum” means, as of any date, the maximum aggregate number of shares of Common Stock then issued or potentially issuable in the future pursuant to the Transaction Documents, including any Underlying Shares issuable upon exercise in full of all Warrants (assuming for this purpose, an exercise price equal to the Floor Price as defined in the Warrants) and conversion in full of all shares of Preferred Stock (assuming for this purpose, a conversion price equal to the Floor Price (as defined in the Certificate of Designation) and taking into account any PIK dividends for a period of at least three years following the Closing Date), ignoring any conversion or exercise limits set forth therein.
“Rule 144” means Rule 144 promulgated by the SEC pursuant to the Securities Act, as such rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same purpose and effect as such rule.
“Rule 424” means Rule 424 promulgated by the SEC pursuant to the Securities Act, as such rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same purpose and effect as such rule.
“SEC” means the United States Securities and Exchange Commission.
“SEC Reports” means all reports, schedules, forms, statements, prospectuses and other documents filed or furnished by the Company with, or to, the SEC pursuant to the Exchange Act or the Securities Act, together with all exhibits and other information incorporated by reference therein.
“Securities” means the shares of Preferred Stock, the Warrants and the Underlying Shares.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Series A SPAs” means this Agreement together with the other securities purchase agreements, dated as of the date hereof for the Purchaser and the investors named in such other agreements to purchase Preferred Stock and Warrants.
“Short Sales” shall include, without limitation, all “short sales” (as defined in Rule 200 of Regulation SHO under the Exchange Act) and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers in each case, solely to the extent it has the same economic effect as a “short sale” (as defined in Rule 200 of Regulation SHO under the Exchange Act).
“Sponsor” means Union Street Sponsor, LLC, a Delaware limited liability company.
“Sponsor Accommodation Shares” shall have the meaning ascribed to such term in Section 4.17(a).
“Stated Value” means $12.00 per share of Preferred Stock.
7
“Strategic Investor” means a Person (or equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset that is complementary or synergistic with the current or reasonably foreseeable business of the Company as determined in good faith by the Board of Directors of the Target.
“Strategic Transaction” shall have the meaning ascribed to such term in Section 4.16.
“Subscribed Securities” shall mean the securities described in Section 2.02(a)(i) and Section 2.02(a)(ii) below, and if applicable, the Backstop Shares.
“Subscription Amount” shall mean the aggregate amount to be paid for the shares of Preferred Stock and the Warrants purchased hereunder pursuant to the terms of this Agreement as set forth across from the Purchaser’s name on Schedule A hereto in U.S. dollars and in immediately available funds.
“Subsidiary” means, with respect to any Person, any corporation, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, association or other business entity, a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons will be deemed to have a majority ownership interest in a partnership, association or other business entity if such Person or Persons will be allocated a majority of partnership, association or other business entity gains or losses or will be or control the managing director, managing member, general partner or other managing Person of such partnership, association or other business entity. A Subsidiary of a Person will also include any variable interest entity which is consolidated with such Person under applicable accounting rules.
“Target Companies” means the Target and its subsidiaries.
“Target Material Adverse Effect” means any event, state of facts, condition, change, development, circumstance, occurrence or effect (collectively, “Events”), that (i) has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets, results of operations or financial condition of the Target Companies, taken as a whole, or (ii) does or would reasonably be expected to, individually or in the aggregate, prevent, materially delay or materially impede the ability of the Target Companies to consummate the Transactions; provided, however, that in no event would any of the following, alone or in combination, be deemed to constitute, or be taken into account in determining whether there has been or will be, a “Target Material Adverse Effect”: (a) any change in applicable Laws or GAAP or any interpretation thereof following the date of this Agreement, (b) any change in interest rates or economic, political, business or financial market conditions generally, (c) the taking of any action required by this Agreement, (d) any natural disaster (including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions or similar occurrences), pandemics or change in climate, (e) any acts of terrorism or war, the outbreak or escalation of hostilities, geopolitical conditions, local, national or international political conditions, (f) any failure of the Target Companies to meet any projections or forecasts (provided that clause (f) shall not prevent a determination that any Event not otherwise excluded from this definition of Target Material Adverse Effect underlying such failure to meet projections or forecasts has resulted in a Target Material Adverse Effect), (g) any Events generally applicable to the industries or markets in which the Target and its Subsidiaries operate (including increases in the cost of products, supplies, materials or other goods purchased from third party suppliers), (h) the announcement of the Business Combination Agreement, this Agreement or any other Transaction Document and consummation of the transactions contemplated hereby and thereby, including any termination of, reduction in or similar adverse impact (but in each case only to the extent attributable to such announcement or consummation) on relationships, contractual or otherwise, with any landlords, customers, suppliers, distributors, partners or employees of the Target Companies, (i) any matter set forth on the Target Disclosure Letter, or (j) any action taken by, or at the request of, the Company; provided, further, that any Event referred to in clauses (a), (b), (d), (e) or (g) above may be taken into account in determining if a Target Material Adverse Effect has occurred to the extent it has a disproportionate and adverse effect on the business, assets, results of operations or condition (financial or otherwise) of the Target Companies, taken as a whole, relative to similarly situated companies in the industry in which the Target Companies conduct their respective operations, but only to the extent of the incremental disproportionate effect on the Target Companies, taken as a whole, relative to similarly situated companies in the industry in which the Target Companies conduct their respective operations.
8
“Target Party” means each Target Company and each of their respective directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls any Target Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons.
“Termination Event” shall have the meaning ascribed to such term in Section 4.17(a).
“Trading Day” means a day on which the principal Trading Market is open for trading.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or any successors to any of the foregoing), which, as of the Closing Date, shall be the Nasdaq Capital Market.
“Transaction Documents” means this Agreement, the Certificate of Designation, the Warrants, the Registration Rights Agreement and, in each case, all exhibits and schedules thereto.
“Transactions” means each of the transactions contemplated by the Business Combination Agreement, this Agreement and the other Transaction Documents.
“Transfer Agent” means Odyssey Transfer & Trust Company, the current transfer agent of the Company, and any successor transfer agent of the Company.
“Trust Account” shall have the meaning ascribed to such term in Section 5.22.
“Underlying Shares” means the Conversion Shares and the Warrant Shares.
“VWAP” means, for any period of determination, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the volume weighted average price of the Common Stock on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock on OTCQB, OTCQX or OTCID as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported in The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the average of the most closing bid and ask prices per share of Common Stock, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the a majority of the Purchaser and Other Purchasers and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company. For the avoidance of doubt, the period of determination shall consist of more than one (1) Trading Day, and VWAP shall be calculated on the basis of aggregate trading activity across all Trading Days within the applicable period rather than as an average of the daily VWAPs for each such Trading Day.
“Warrant Shares” means the shares of Common Stock issuable upon exercise of the Warrants.
“Warrants” means, collectively, the Common Stock purchase warrants delivered to the Purchaser at the Closing in accordance with Section 2.02(a) hereof, which Warrants shall be exercisable immediately and have a term of exercise equal to 5 years, in the form of Exhibit C attached hereto.
9
Article
II.
PURCHASE AND SALE
Section 2.01 Closing. On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchaser agrees to purchase, a number of shares of Preferred Stock with an aggregate Stated Value as set forth opposite the Purchaser’s name on Schedule A hereto, and Warrants as determined pursuant to Section 2.02(a). The Company shall provide written notice (which may be via email) to the Purchaser (the “Closing Notice”) that the Company reasonably expects the Closing to occur (and the conditions thereto to be satisfied) on a date specified in the notice (the “Scheduled Closing Date”) not less than three (3) Business Days after the date of the Closing Notice, which Closing Notice shall contain the Company’s wire instructions for the Company’s operating account. The failure of the Closing to occur on the Scheduled Closing Date shall not terminate this Agreement or otherwise relieve any party of any of its obligations hereunder. Notwithstanding anything to the contrary herein, if the Closing has not occurred on or prior to the date that is 225 days following the date of this Agreement, the Purchaser may, at any time thereafter, terminate this Agreement upon written notice to the Company, whereupon the Purchaser shall have no further obligation to purchase the Preferred Stock or Warrants hereunder; provided, that in the event of a U.S. federal government shutdown during which the SEC is closed for operations, such date shall be automatically extended by the number of days during which the SEC is closed for operations. Provided that the Closing Notice is timely delivered in accordance with the foregoing, no later than one (1) Business Day prior to Closing, the Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to the Subscription Amount (less any amount offset pursuant to Section 4.17), to be held by the Company in escrow subject to Closing. If this Agreement is terminated prior to the Closing and any funds have already been sent by the Purchaser to the Company, or the Closing Date does not occur within two (2) Business Days after the Scheduled Closing Date specified in the Closing Notice, the Company shall promptly (but not later than five (5) Business Days after the Scheduled Closing Date specified in the Closing Notice), return the funds delivered by the Purchaser for payment of the Subscription Amount by wire transfer in immediately available funds to the account specified in writing by the Purchaser (provided, that the failure of the Closing Date to occur within such five (5) Business Day period and the return of the relevant funds shall not relieve the Purchaser from its obligations under this Agreement for a subsequently rescheduled Closing Date determined by the Company in good faith and indicated to the Purchaser in a timely delivered subsequent Closing Notice).
Section 2.02 Deliveries.
(a) On or prior to the Closing Date, the Company shall deliver or cause to be delivered to the Purchaser the following:
(i) a certificate evidencing (or reasonable evidence of issuance by book entry, as applicable, of) a number of shares of Preferred Stock with an aggregate Stated Value as set forth opposite the Purchaser’s name on Schedule A hereto, registered in the name of the Purchaser and evidence of the filing and acceptance of the Certificate of Designation from the Secretary of State of Delaware;
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(ii) a Warrant registered in the name of the Purchaser to purchase up to a number of shares of Common Stock equal to 100% of the total number of shares of Common Stock into which the Purchaser’s shares of Preferred Stock are convertible on the date of Closing, with an exercise price equal to $12.00, subject to adjustment as set forth therein;
(iii) if applicable, a certificate evidencing (or reasonable evidence of issuance by book entry, as applicable, of) the Backstop Shares registered in the name of the Purchaser;
(iv) the Registration Rights Agreement duly executed by the Company;
(v) a substantially complete draft of the Registration Statement, in form and substance reasonably satisfactory to the Purchaser, containing all disclosures and financial statements required to be included therein assuming such Registration Statement is filed within five Business Days of the Closing Date; and
(vi) reasonable evidence that the Lock-Up Arrangements have been delivered, obtained or implemented.
(b) On or prior to the Closing Date, the Purchaser shall deliver or cause to be delivered to the Company, the following:
(i) the Registration Rights Agreement duly executed by the Purchaser;
(ii) the Purchaser’s counter-signature to the Warrant described in Section 2.02(a)(ii);
(iii) the Purchaser’s Subscription Amount (less any amount offset pursuant to Section 4.17); and
(iv) a duly executed IRS Form W-9 or applicable IRS Form W-8.
Section 2.03 Closing Conditions.
(a) The Closing shall be subject to the satisfaction, or valid waiver in writing by each of the parties hereto, of the conditions that, on the Closing Date:
(i) all conditions precedent to the closing of the Business Combination set forth in Article VII of the Business Combination Agreement shall have been satisfied (as determined by the parties to the Business Combination Agreement) or waived in writing by the Person(s) with the authority to make such waiver (other than those conditions which, by their nature, are to be satisfied at the closing of the Business Combination pursuant to the Business Combination Agreement including to the extent that any such condition precedent is, or is dependent upon, the consummation of the transactions contemplated hereby), and the closing of the Business Combination shall be scheduled to occur concurrently with the Closing; and
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(ii) no Governmental Authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation which is then in effect and has the effect of making the consummation of the transactions contemplated hereby (including, without limitation, the Domestication) illegal or otherwise restraining or prohibiting consummation of the transactions contemplated hereby.
(b) The obligation of the Company to consummate the Closing shall be subject to the satisfaction or valid waiver in writing by the Company of the additional conditions that, on the Closing Date:
(i) except as otherwise provided under Section 2.03(b)(ii), all representations and warranties of the Purchaser contained in this Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or material adverse effect, which representations and warranties shall be true and correct in all respects) at and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or material adverse effect, which representations and warranties shall be true and correct in all respects) as of such earlier date), and consummation of the Closing shall constitute a reaffirmation by the Purchaser of each of the representations, warranties and agreements of the Purchaser contained in this Agreement as of the Closing Date, but without giving effect to consummation of the Business Combination, or as of such earlier date, as applicable;
(ii) the representations and warranties of the Purchaser contained in Section 3.02(p) of this Agreement shall be true and correct at all times on and prior to the Closing Date, and consummation of the Closing shall constitute a reaffirmation by the Purchaser of such representations and warranties;
(iii) the Purchaser shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by it at or prior to the Closing;
(iv) the Purchaser shall have delivered the items set forth in Section 2.02(b) of this Agreement; and
(v) the Domestication shall have been duly effected and the Company shall be validly existing as a corporation under the laws of the State of Delaware.
(c) The obligation of the Purchaser to consummate the Closing shall be subject to the satisfaction or valid waiver in writing by the Purchaser of the additional conditions that, on the Closing Date:
(i) all representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Company Material Adverse Effect, which representations and warranties shall be true and correct in all respects) at and as of the Closing Date (except to the extent that any such representation or warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Company Material Adverse Effect, which representations and warranties shall be true and correct in all respects) as of such earlier date), and consummation of the Closing shall constitute a reaffirmation by the Company of each of the representations, warranties and agreements of the Company contained in this Agreement as of the Closing Date, but without giving effect to the consummation of the Business Combination, or as of such earlier date, as applicable;
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(ii) the Company and the Target shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by them at or prior to the Closing;
(iii) the Company shall have delivered the items set forth in Section 2.02(a) of this Agreement;
(iv) (x) the Sponsor shall have transferred the Sponsor Accommodation Shares to the Purchaser in accordance with Section 4.17 of this Agreement and (y) the Purchaser shall receive, concurrently with the Closing, shares of Common Stock in exchange for the Sponsor Accommodation Shares in accordance with Section 4.17 of this Agreement;
(v) the shares of Common Stock to be issued in the Business Combination, the Underlying Shares, and, if applicable, the Backstop Shares, shall be approved for listing upon the Closing on the Trading Market;
(vi) there shall not have occurred a Company Material Adverse Effect;
(vii) there shall not have occurred a Target Material Adverse Effect;
(viii) all Lock-Up Arrangements shall have been delivered, obtained or implemented on or prior to the Closing, and shall remain in full force and effect as of the Closing; and
(ix) the net proceeds remaining in the Trust Account (after giving effect to the Redemption and any payment of any Closing Indebtedness actually paid in cash by the Company at the Closing, but prior to the payment of any Company Transaction Costs or Purchaser Transaction Costs (each as defined in the Business Combination Agreement)) plus the cash proceeds of the PIPE Investment to be funded at or prior to the Closing shall equal no less than the $120,000,000.
Article
III.
REPRESENTATIONS AND WARRANTIES
Section 3.01 Representations and Warranties of the Company. Except as set forth in any SEC Reports filed or furnished by the Company or other documents submitted or furnished to the SEC by the Company on or prior to the date hereof, or on or prior to the Closing Date, the Company represents and warrants to the Purchaser, as of the date of this Agreement and as of the Closing Date (or, if such representations and warranties are made with respect to a specified date, as of such date):
(a) The Company (i)(A) is, as of the date hereof, a Cayman Islands exempted company and, (B) subject to the Domestication, will be, as of the Closing Date, a corporation validly existing and in good standing under the laws of the State of Delaware, (ii) has the requisite power and authority to own, lease and operate its properties, to carry on its business as it is now being conducted and to enter into and perform its obligations under this Agreement and the other Transaction Documents, and (iii) is duly licensed or qualified to conduct its business and, if applicable, is in good standing under the laws of each jurisdiction in which the conduct of its business or the ownership of its properties or assets requires such license or qualification, except, with respect to the foregoing clause (iii), where the failure to be in good standing would not reasonably be expected to have a Company Material Adverse Effect.
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(b) As of the Closing Date, the Subscribed Securities will be duly authorized and, when issued, paid for and delivered in accordance with the applicable Transaction Documents, and with respect to the Subscribed Securities, when issued to the Purchaser (or its nominee in accordance with Purchaser’s delivery instructions), and with respect to any Underlying Shares, when issued in accordance with the terms of the Certificate of Designation and/or the Warrants, respectively, will be validly issued, fully paid and non-assessable, free and clear of all liens or other restrictions (other than those arising under the Transaction Documents, the Organizational Documents of the Company or applicable securities laws), and will not have been issued in violation of any preemptive or similar rights created under the Company’s Organizational Documents (as adopted on the Closing Date) or the laws of its jurisdiction of incorporation.
(c) This Agreement and the other Transaction Documents have been duly authorized, validly executed and delivered by the Company, and assuming the due authorization, execution and delivery of the same by the Target and the Purchaser of this Agreement and the other Transaction Documents to which they are a party and the due authorization, execution and delivery of the same by all other parties to any Transaction Document, this Agreement and the other Transaction Documents shall constitute the valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization and moratorium laws and other laws of general application affecting the enforcement of creditors’ rights generally or by any applicable statute of limitation or by any valid defense of set-off or counterclaim, and the fact that equitable remedies or relief (including the remedy of specific performance) are subject to the discretion of the court from which such relief may be sought (collectively, the “Enforceability Exceptions”).
(d) Assuming the accuracy of the representations and warranties of the Purchaser set forth in Section 3.02 of this Agreement, the execution and delivery of this Agreement and the other Transaction Documents, the issuance and sale of the Subscribed Securities hereunder, any issuance of the Underlying Shares in the manner contemplated by the Certificate of Designation or upon exercise of the Warrants pursuant to the terms of the Warrants, as applicable, the compliance by the Company with all of the provisions hereof and thereof and the consummation of the transactions contemplated herein and therein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, (ii) the Organizational Documents of the Company, or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its properties that, in the case of clauses (i) and (iii), would reasonably be expected to have a Company Material Adverse Effect.
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(e) Assuming the accuracy of the representations and warranties of the Purchaser set forth in Section 3.02 of this Agreement, the Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any Governmental Authority, self-regulatory organization or other person in connection with the execution, delivery and performance of this Agreement or the other Transaction Documents (including, without limitation, the issuance of the Subscribed Securities), other than consents, waivers, authorizations, orders, notices, filings and registration required in connection with (i) applicable state securities laws, (ii) the filing of the Registration Statement pursuant to the Registration Rights Agreement, (iii) the requirements of the SEC, (iv) the Trading Market, including with respect to obtaining shareholder approval, (v) filings and approvals required to consummate the Business Combination as provided under the Business Combination Agreement, including those required in connection with the Domestication, (vi) notification under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, if applicable, and (vii) other filings, the failure of which to obtain would not have a Company Material Adverse Effect. All notices, consents, waivers, authorizations, orders, filings and registrations which the Company is required to deliver or obtain prior to the Closing pursuant to the preceding sentence have been obtained or made or will be delivered or obtained or effected on or prior to the Closing, and shall remain in full force and effect as of the Closing.
(f) Except for such matters as have not had and would not reasonably be expected to have a Company Material Adverse Effect, there is no (i) Action, Proceeding or arbitration before a Governmental Authority or arbitrator pending, or, to the knowledge of the Company, threatened in writing against the Company or (ii) judgment, decree, injunction, ruling or order of any Governmental Authority or arbitrator outstanding against the Company.
(g) Assuming the accuracy of the Purchaser’s representations and warranties set forth in Section 3.02 of this Agreement, no registration under the Securities Act or any state securities (or Blue Sky) laws is required for the offer and sale of the Securities or, if applicable, the Backstop Shares, by the Company to the Purchaser.
(h) Neither the Company nor any person acting on its behalf has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Securities or, if applicable, the Backstop Shares. Neither the Securities nor, if applicable, the Backstop Shares, are being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws. Neither the Company nor any person acting on the Company’s behalf has, directly or indirectly, at any time within the past six (6) months, made any offer or sale of any security or solicitation of any offer to buy any security under circumstances that would cause the offering of the Securities or, if applicable, the Backstop Shares, pursuant to this Agreement to be integrated with prior offerings by the Company for purposes of the Securities Act or any applicable shareholder approval provisions. Neither the Company nor any person acting on the Company’s behalf has offered or sold any securities, or has taken any other action, which would reasonably be expected to subject the offer, issuance or sale of the Securities or, if applicable, the Backstop Shares, as contemplated hereby, to the registration provisions of the Securities Act.
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(i) No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a “Disqualification Event”) is applicable to the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating in the offering hereunder, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person” and, together, “Issuer Covered Persons”), except for a Disqualification Event as to which Rule 506(d)(2)(ii–iv) or (d)(3) is applicable. The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Purchaser a copy of any disclosures provided thereunder. The Company will notify the Purchaser and the Placement Agent in writing, prior to the Closing Date of (i) any Disqualification Event relating to any Issuer Covered Person and (ii) any event that would, with the passage of time, become a Disqualification Event relating to any Issuer Covered Person.
(j) As of the date hereof, the authorized share capital of the Company consists of 500,000,000 Class A ordinary shares, par value $0.0001 per share, 50,000,000 Class B ordinary shares, par value $0.0001 per share, and 5,000,000 preference shares, par value $0.0001 per share, of which 21,946,600 Class A ordinary shares and 7,153,867 Class B ordinary shares are issued and outstanding, and no preference shares are issued and outstanding. In addition, as of the date hereof, warrants to purchase up to 10,973,300 Class A ordinary shares are issued and outstanding, with an exercise price of $11.50 per share, pursuant to the warrant agreement, dated as of April 6, 2026, by and between the Company and Odyssey Transfer & Trust Company, as warrant agent (the “Warrant Agreement”), and such warrants have been duly authorized and validly issued. All issued and outstanding shares and warrants have been duly authorized and validly issued, are fully paid and non-assessable (in the case of shares) and were not issued in violation of preemptive or similar rights. As of the date hereof and as of the Closing Date, except as set forth above, and pursuant to the Business Combination Agreement and the other Series A SPAs (the “Other Series A SPAs”), there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company any ordinary shares or other equity interests in the Company (collectively, “Equity Interests”) or securities convertible into or exchangeable or exercisable for Equity Interests. Except as set forth in the Business Combination Agreement, as of the date hereof, the Company has no subsidiaries and does not own, directly or indirectly, interests or investments (whether equity or debt) in any person, whether incorporated or unincorporated. Except as set forth herein, (x) there are no securities or instruments issued by or to which the Company is a party containing anti-dilution or similar provisions that will be triggered by the issuance of the Subscribed Securities pursuant to this Agreement, and (y) there are no voting trusts, proxies or other agreements or understandings to which the Company or, to the knowledge of the Company, any of its shareholders is a party with respect to the voting of any shares of capital stock or other equity or voting securities of the Company.
(k) To the knowledge of the Company, the Company is not, and immediately after receipt of payment for the Subscribed Securities and consummation of the Business Combination, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
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(l) Neither the Company nor, to the knowledge of the Company, any agent or other person acting on behalf of the Company has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company (or made by any person acting on its behalf of which the Company is aware) which is in violation of law or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended.
(m) There are no disagreements of any kind presently existing, or reasonably anticipated by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company and the Company is current with respect to any fees owed to its accountants and lawyers which could affect the Company’s ability to perform any of its obligations under any of the Transaction Documents.
(n) The Company acknowledges and agrees that the Purchaser is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby. The Company further acknowledges that the Purchaser is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by the Purchaser or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely incidental to the Purchaser’s purchase of the Subscribed Securities. The Company further represents to the Purchaser that the Company’s decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions contemplated hereby by the Company and its representatives.
(o) The Company has not, and to its knowledge no one acting on its behalf has, taken, directly or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Subscribed Securities.
(p) The Company hereby acknowledges and agrees that (i) the Placement Agent is acting solely as placement agent in connection with the execution, delivery and performance of the Transaction Documents and is not acting as an underwriter or in any other capacity and is not and shall not be construed as a fiduciary for the Purchaser, the Company, the Target or any other person or entity in connection with the execution, delivery and performance of the Transaction Documents, (ii) the Placement Agent has not made nor will make any representation or warranty, whether express or implied, of any kind or character and the Placement Agent has not provided any advice or recommendation in connection with the execution, delivery and performance of the Transaction Documents and (iii) the Placement Agent will not have any responsibility with respect to (A) any representations, warranties or agreements made by any person or entity under or in connection with the execution, delivery and performance of the Transaction Documents, or the execution, legality, validity or enforceability (with respect to any person) thereof, or (B) the business, affairs, financial condition, operations or properties of, or any other matter concerning the Company.
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(q) Except as would not reasonably be expected to be material to the Company, the Company is in all material respects in compliance with applicable provisions of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations thereunder.
(r) As of their respective filing dates, or, if amended, as of the date of such amendment, which shall be deemed to supersede such original filing, all SEC Reports complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act, and the rules and regulations of the SEC promulgated thereunder, and none of the SEC Reports, when filed, or, if amended, as of the date of such amendment, which shall be deemed to supersede such original filing, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of the date hereof, there are no material outstanding or unresolved comments in comment letters received by the Company from the staff of the Division of Corporation Finance of the SEC with respect to any of the SEC Reports. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing, or, if amended, as of the date of such amendment, which shall be deemed to supersede such original filing, and fairly present in all material respects the financial position of the Company as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments.
(s) Except for such matters as have not had and would not have a Company Material Adverse Effect, there is no (i) Action, Proceeding or arbitration before a governmental authority or arbitrator pending, or, to the knowledge of the Company, threatened in writing against the Company or (ii) judgment, decree, injunction, ruling or order of any governmental authority or arbitrator outstanding against the Company.
(t) As of the Closing Date, the Common Stock will be eligible for clearing through The Depository Trust Company (“DTC”), through its Deposit/Withdrawal At Custodian (DWAC) system, and the Company is eligible and participating in the Direct Registration System (DRS) of DTC with respect to the Common Stock. The Company’s Transfer Agent is a participant in DTC’s Fast Automated Securities Transfer Program.
(u) As of the date of this Agreement, the issued and outstanding Class A ordinary shares of the Company are registered pursuant to Section 12(b) of the Exchange Act, and are listed for trading on the Nasdaq Stock Market (“Nasdaq”) under the symbol “ACGC.” Except as set forth in the SEC Reports or as contemplated by the Business Combination Agreement (including the Additional Information): (i) there is no suit, Action, Proceeding or investigation pending or, to the knowledge of the Company, threatened against the Company by Nasdaq or the SEC with respect to any intention by such entity to deregister the Class A ordinary shares of the Company or prohibit or terminate the listing of the Class A ordinary shares of the Company on Nasdaq and (ii) the Company has taken no action that is designed to terminate the registration of its Class A ordinary shares under the Exchange Act. Following the Domestication and upon consummation of the Business Combination, the shares of Common Stock are expected to be registered under the Exchange Act and listed for trading on the Trading Market.
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Section 3.02 Representations and Warranties of the Purchaser. The Purchaser hereby represents and warrants as of the date of this Agreement and as of the Closing Date (or, if such representations and warranties are made with respect to a specified date, as of such date):
(a) The Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing under the laws of its jurisdiction of formation or incorporation with the requisite power and authority to enter into and perform its obligations under the Transaction Documents.
(b) Each Transaction Document to which it is a party has been duly authorized, executed and delivered by the Purchaser, and assuming the due authorization, execution and delivery of the same by the Company, each Transaction Document to which the Purchaser is a party shall constitute the valid and legally binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, subject to the Enforceability Exceptions.
(c) The execution, delivery and performance of the Transaction Documents, including the purchase of the Subscribed Securities hereunder, the compliance by the Purchaser with all of the provisions of the Transaction Documents and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Purchaser pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Purchaser is a party or by which the Purchaser is bound or to which any of the property or assets of the Purchaser is subject; (ii) the Organizational Documents of the Purchaser; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Purchaser or any of its properties that in the case of clauses (i) and (iii), would reasonably be expected to have a material adverse effect on the Purchaser’s ability to consummate the transactions contemplated by the Transaction Documents, including the purchase of the Subscribed Securities.
(d) At the time the Purchaser was offered the Subscribed Securities, it was, and as of the date hereof it is, and on each date on which it exercises any Warrants or converts any shares of Preferred Stock, it will be, (i) an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), satisfying the applicable requirements set forth on Annex A hereto, (ii) acquiring the Subscribed Securities only for its own account and not for the account of others, or if the Purchaser is subscribing for the Subscribed Securities as a fiduciary or agent for one or more investor accounts, each owner of such account is an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) and the Purchaser has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) not acquiring the Subscribed Securities with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and has provided the Company with the requested information on Annex A following the signature page hereto).
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(e) The Purchaser acknowledges and agrees that the Subscribed Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act or the securities laws of any state in the United States or other jurisdiction and that the Company is not required to register the Securities except as set forth in the Registration Rights Agreement. The Purchaser acknowledges and agrees that the Securities may not be offered, resold, transferred, pledged or otherwise disposed of by the Purchaser absent an effective registration statement under the Securities Act, except (i) to the Company or a subsidiary thereof, (ii) pursuant to an applicable exemption from the registration requirements of the Securities Act (including without limitation a private resale pursuant to so called “Section 4(a)1½”), or (iii) an ordinary course pledge such as a broker lien over account property generally, and, in each of clauses (i)-(iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that any certificates or account entries representing the Securities shall contain a restrictive legend to such effect. The Purchaser acknowledges and agrees that the Securities will be subject to these securities law transfer restrictions, and as a result of these transfer restrictions, the Purchaser may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Securities and may be required to bear the financial risk of an investment in the Securities for an indefinite period of time. The Purchaser acknowledges and agrees that the Securities will not be immediately eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act until at least one year following the filing of certain required information with the SEC after the Closing Date. The Purchaser acknowledges and agrees that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Securities.
(f) The Purchaser understands and agrees that it is purchasing the Subscribed Securities directly from the Company. The Purchaser further acknowledges that there have not been, and the Purchaser hereby agrees that it is not relying on, and has not relied on, any statement, representations, warranties, covenants or agreements made to the Purchaser by the Company, the Target, the Sponsor, the Placement Agent, any of their respective Affiliates or any control persons, officers, directors, employees, partners, agents or representatives, any other party to the Business Combination or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements set forth in the Transaction Documents. The Purchaser agrees that none of (i) any Other Purchaser (including the controlling persons, members, officers, directors, partners, agents, or employees of any such Other Purchaser), (ii) the Sponsor, its Affiliates (other than the Company), or any of its or its’ Affiliates respective control persons, officers, directors or employees, (iii) any other party to the Business Combination Agreement, including any such party’s representatives, Affiliates or any of its or their control persons, officers, directors or employees, that is not a party hereto, or (iv) the Placement Agent, its respective Affiliates or any of their respective Affiliates’ control persons, officers, directors or employees, shall be liable (including, without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by such person or entity), whether in contract, tort or otherwise, or have any liability or obligation to the Purchaser pursuant to this Agreement or the other Transaction Documents, the negotiation hereof or thereof or the subject matter hereof or thereof, or the transactions contemplated hereby or thereby for any action heretofore or hereafter taken or omitted to be taken by it in connection with the purchase of the Subscribed Securities.
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(g) In making its decision to purchase the Subscribed Securities, the Purchaser has relied solely upon independent investigation made by the Purchaser and the Company’s and the Target’s representations in the Transaction Documents. The Purchaser acknowledges and agrees that the Purchaser has received such information as the Purchaser deems necessary in order to make an investment decision with respect to the Subscribed Securities, including with respect to the Company, the Target Companies and the Business Combination, and made its own assessment and is satisfied concerning the relevant financial, tax and other economic considerations relevant to the Purchaser’s investment in the Subscribed Securities. Without limiting the generality of the foregoing, the Purchaser acknowledges that it has reviewed the Company’s filings with the SEC. The Purchaser represents and agrees that the Purchaser and the Purchaser’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Purchaser and the Purchaser’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Subscribed Securities. The Purchaser acknowledges that certain information provided by the Company and the Target was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections. The Purchaser further acknowledges that such information provided to the Purchaser was preliminary and subject to change, including in the registration statement and the proxy statement and/or prospectus that the Company intends to file with the SEC in connection with the Business Combination (which will include substantial additional information about the Company, the Target Companies and the Business Combination and will update and supersede the information previously provided to the Purchaser). The Purchaser acknowledges and agrees that none of the Sponsor, the Placement Agent or any of their respective Affiliates or any of such Person’s or its Affiliate’s control persons, officers, directors, employees or other representatives, legal counsel, financial advisors, accountants or agents (collectively, “Representatives”) has provided the Purchaser with any information, recommendation or advice with respect to the Subscribed Securities nor is such information, recommendation or advice necessary or desired. None of the Sponsor, the Placement Agent or any of their respective Affiliates or Representatives has made or makes any representation as to the Company or the Target Companies (including, without limitation, the representations made by the Company and the Target to the Purchaser in this Agreement) or the quality or value of the Securities. In addition, the Company, the Target, the Sponsor, the Placement Agent and their respective Affiliates or Representatives may have acquired non-public information with respect to the Company or the Target Companies which the Purchaser agrees need not be provided to it. The Placement Agent and its members, directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company, the Target or any Securities or the accuracy, completeness or adequacy of any information supplied to the Purchaser by the Company or the Target. In connection with the issuance of the Subscribed Securities to the Purchaser, the Purchaser acknowledges and agrees that (i) none of the Company, the Target, the Sponsor or any of their respective Affiliates or Representatives has acted as a financial advisor or fiduciary to the Purchaser and (ii) the Placement Agent is acting as the Company’s placement agent in connection with the transactions contemplated by this Agreement, and neither the Placement Agent nor any of its respective Affiliates or Representatives have acted as a financial advisor or fiduciary to the Purchaser.
(h) The Purchaser became aware of this offering of the Subscribed Securities solely by means of direct contact between the Purchaser and the Company or its Affiliates, by means of direct contact between the Purchaser and the Target or its Affiliates, or by means of contact from the Placement Agent or its Affiliates, and Securities were offered to the Purchaser solely by direct contact between the Purchaser and the Company or its Affiliates. The Purchaser did not become aware of this offering of the Securities, nor were the Securities offered to the Purchaser, by any other means. The Purchaser acknowledges that the Company represents and warrants that the Securities (i) were not offered by any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.
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(i) The Purchaser acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Securities, including those set forth in the SEC Reports. The Purchaser has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Securities, and the Purchaser has had an opportunity to seek, and has sought, such accounting, legal, business and tax advice as the Purchaser has considered necessary to make an informed investment decision. The Purchaser (i) is an institutional account as defined in FINRA Rule 4512(c), (ii) is a sophisticated investor, experienced in investing in private equity transactions and capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities, and (iii) has exercised independent judgment in evaluating its participation in the purchase of the Securities. The Purchaser understands and acknowledges that the purchase and sale of the Securities hereunder meets (i) the exemptions from filing under FINRA Rule 5123(b)(1)(A) and (ii) the institutional customer exemption under FINRA Rule 2111(b).
(j) The Purchaser has adequately analyzed and fully considered the risks of an investment in the Securities and determined that the Securities are a suitable investment for the Purchaser and that the Purchaser is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Purchaser’s investment in the Company. The Purchaser acknowledges specifically that a possibility of total loss exists.
(k) The Purchaser understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Securities or made any findings or determination as to the fairness of this investment.
(l) The Purchaser is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Purchaser agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Purchaser is permitted to do so under applicable law. If the Purchaser is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001, and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Purchaser maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required, the Purchaser maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required, the Purchaser maintains policies and procedures reasonably designed to ensure that the funds held by the Purchaser and used to purchase the Securities were legally derived.
(m) No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in the Company as a result of the purchase and sale of Securities hereunder by the Purchaser such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over the Company from and after the Closing as a result of the purchase and sale of Securities hereunder by the Purchaser.
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(n) The Purchaser (i) will have sufficient funds to pay the Subscription Amount pursuant to Section 2.02(b)(iii) of this Agreement and any expenses incurred by the Purchaser in connection with the transactions contemplated by or in connection with the Transaction Documents; (ii) has the resources and capabilities (financial or otherwise) to perform its obligations under the Transaction Documents; and (iii) has not incurred any obligation, commitment, restriction or liability of any kind, absolute or contingent, present or future, which would impair or adversely affect its ability to perform its obligations under the Transaction Documents.
(o) No broker or finder is entitled to any brokerage or finder’s fee or commission to be paid by the Purchaser solely in connection with the sale of the Securities to the Purchaser.
(p) At all times on or prior to the Closing Date, the Purchaser has no binding commitment to dispose of, or otherwise transfer (directly or indirectly), any of the Securities.
(q) The Purchaser hereby agrees that neither it, nor any person or entity acting on its behalf or pursuant to any understanding with the Purchaser, shall, directly or indirectly, engage in any hedging activities or execute any Short Sales with respect to the securities of the Company from the date hereof until the Closing or the earlier termination of this Agreement in accordance with its terms.
(r) Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by the Purchaser with the SEC with respect to the beneficial ownership of the Company’s outstanding securities prior to the date hereof, the Purchaser is not currently (and at all times through Closing will refrain from being or becoming) a member of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision) other than with its affiliates, including any group acting for the purpose of acquiring, holding or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act).
(s) The Purchaser acknowledges that (i) the Company, the Target Companies, the Sponsor and the Placement Agent and any of their respective Affiliates, control persons, officers, directors, employees, agents or representatives currently may have, and later may come into possession of, information regarding the Company and the Target Companies that constitutes material non-public information not known to the Purchaser and that may be material to a decision to purchase the Securities, (ii) the Purchaser has determined to purchase the Securities notwithstanding its lack of knowledge of such information, and (iii) none of the Company, the Target Companies, the Sponsor or the Placement Agent or any of their respective Affiliates, control persons, officers, directors, employees, agents or representatives shall have liability to the Purchaser, and the Purchaser hereby, to the extent permitted by law, waives and releases any claims it may have against the Company, the Target Companies, the Sponsor, the Placement Agent and their respective Affiliates, control persons, officers, directors, employees, agents or representatives, with respect to the nondisclosure any material non-public information.
(t) The Purchaser acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.
(u) The Purchaser acknowledges and is aware that Cantor Fitzgerald & Co. is acting as financial advisor to the Company and as Placement Agent in connection with the transactions contemplated hereby.
(v) Neither the Purchaser nor any person or entity acting on behalf of the Purchaser, or pursuant to any agreement or understanding with the Purchaser, has entered into (or, prior to the Closing Date, will enter into) any agreement or other arrangement that is or could reasonably be expected to be treated as (or pursuant to the terms of any such agreement or other arrangement could reasonably be expected to result in), for U.S. federal income tax purposes, a sale or exchange or other disposition of any of the shares of Preferred Stock after the Closing Date.
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Section 3.03 Representations and Warranties of the Target. The Target represents and warrants to the Purchaser, as of the date of this Agreement and as of the Closing Date (or, if such representations and warranties are made with respect to a specified date, as of such date):
(a) Each of the Target Companies is duly organized and validly existing and in good standing under the laws of the jurisdiction in which it is formed, and has the requisite power and authority to own its properties and to carry on its business as now being conducted and as presently proposed to be conducted. Each of the Target Companies is duly qualified as a foreign entity to do business and is in good standing in every jurisdiction in which its or their ownership of property or the nature of the business conducted by it or them makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Target Material Adverse Effect.
(b) The Target has the requisite power and authority to enter into and perform its obligations under the Business Combination Agreement, this Agreement and the other Transaction Documents. The execution and delivery of the Business Combination Agreement, this Agreement and the other Transaction Documents by the Target, and the consummation by the Target of the transactions contemplated hereby and thereby, have been duly authorized by the Target’s board of directors, and no further filing, consent or authorization is required by the Target or its stockholders. The Business Combination Agreement and this Agreement have been, and the other Transaction Documents to which it is a party will be prior to the Closing, duly executed and delivered by the Target, and each constitutes the legal, valid and binding obligations of the Target, enforceable against the Target in accordance with its respective terms, except as limited by Enforceability Exceptions.
(c) Assuming the accuracy of the representations and warranties of the Purchaser set forth in Section 3.02 of this Agreement, the execution and delivery of this Agreement and the other Transaction Documents, the compliance by the Target with all of the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Target pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or instrument to which the Target is a party or by which the Target is bound or to which any of the property or assets of the Target is subject, (ii) the Organizational Documents of the Target, or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Target or any of its properties that, in the case of clauses (i) and (iii), would reasonably be expected to have a Target Material Adverse Effect.
(d) Assuming the accuracy of the representations and warranties of the parties to this Agreement, the Target Companies are not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any Governmental Authority, self-regulatory organization or other person in connection with the execution, delivery and performance of this Agreement or the other Transaction Documents (including, without limitation, the issuance of the Subscribed Securities), other than (i) filings required by (x) applicable state securities laws and (y) federal antitrust laws and (ii) those filings, the failure of which to obtain would not have a Target Material Adverse Effect.
(e) The information and materials previously provided by or on behalf of the Target to the Purchaser (if any) in connection with the offer and sale of the Subscribed Securities, have been prepared in a good faith effort by the Target to describe the Target Companies’ present and proposed business. The Target acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.02. Notwithstanding the foregoing, the Target Companies make no representation, warranty or covenant with respect to any information supplied by or on behalf of the Company, the Purchaser or its or their respective Affiliates.
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(f) Except for indebtedness incurred in connection with any Prefund, as of the date hereof and as of the Closing Date, no indebtedness of any of the Target Companies is convertible into or exchangeable for equity securities of any Target Company or for securities convertible into or exchangeable or exercisable for equity securities of any Target Company.
Section 3.04 Additional Representations and Warranties of the Target. Subject to the qualifications, exceptions and disclosures related thereto in the Business Combination Agreement, the Target hereby makes each of the representations and warranties of the Company (as defined in the Business Combination Agreement) set forth in the fully-executed Business Combination Agreement as if such representations and warranties were initially made to the Purchaser and set forth in this Agreement in their entirety, mutatis mutandis.
Article
IV.
OTHER AGREEMENTS OF THE PARTIES
Section 4.01 Transfer Restrictions.
(a) The Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of the Purchaser or in connection with a pledge as contemplated in Section 4.01(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Securities under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and, if permitted pursuant to the terms thereof, the Registration Rights Agreement and shall have the rights and obligations of the Purchaser under this Agreement and the Registration Rights Agreement, if a party thereto.
(b) The Purchaser agrees to the imprinting, so long as is required by this Section 4.01, of a legend on any of the Securities in the following form:
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.
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The Company acknowledges and agrees that the Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Securities to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and, if required under the terms of such arrangement, the Purchaser may transfer pledged or secured Securities to the pledgees or secured parties; provided, however, that, as a prerequisite to such pledge, the Purchaser shall (x) provide notice to the Company of such pledge or transfer at least five (5) Business Days prior thereto and (y) cause to be delivered to the Company customary legal opinions of legal counsel of the pledgee, secured party and pledgor as shall be reasonably requested by the Company in connection therewith. Thereafter, at the Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Securities may reasonably request in connection with a pledge or transfer of the Securities, including, if the Securities are subject to registration pursuant to the Registration Rights Agreement, the preparation and filing of any required prospectus supplement under Rule 424(b) under the Securities Act or other applicable provision of the Securities Act to appropriately amend the list of selling securityholders thereunder.
(c) Certificates (or reasonable evidence of issuance by book entry, as applicable) evidencing the Underlying Shares shall not contain any legend (including the legend set forth in Section 4.01(b) hereof): (i) while a registration statement (including the Registration Statement) covering the resale of such security is effective under the Securities Act, (ii) following any sale of such Underlying Shares pursuant to Rule 144 or (iii) as otherwise provided in the Certificate of Designation. The Company shall, in each case, request the Transfer Agent to remove any restrictive legends related to the book entry account holding such shares and make a new, unlegended entry for such book entry shares (i) while a registration statement (including the Registration Statement) covering the resale of such security is effective under the Securities Act, (ii) following any sale of such Underlying Shares pursuant to Rule 144 or (iii) as otherwise provided in the Certificate of Designation, within the earlier of (I) one (1) Business Day and (II) the Standard Settlement Period (as defined below), in each case, of any such request therefor from the Purchaser, provided that the Company has timely received from the Purchaser customary representations and other documentation reasonably acceptable to the Company in connection therewith. The Company shall use commercially reasonable efforts to cause its counsel to deliver to the Transfer Agent, as applicable, one or more opinions to the effect that the removal of such legends in such circumstances may be effected under the Securities Act if required by the Transfer Agent to effect the removal of the legend in accordance with the provisions of this Agreement. The Company shall be responsible for the fees of the Transfer Agent and its legal counsel associated with such legend removal. If all or any shares of Preferred Stock are converted or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Underlying Shares, or if such Underlying Shares may be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable), or if the Underlying Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) as to such Underlying Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the SEC) or as provided in the Certificate of Designation or Warrants, then such Underlying Shares shall be issued free of all legends. The Company agrees that following the Effective Date or at such time as such legend is no longer required under this Section 4.01(c), it will, no later than the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate (or reasonable evidence of issuance by book entry, as applicable) representing Underlying Shares, as applicable, issued with a restrictive legend, deliver or cause to be delivered to the Purchaser a certificate (or reasonable evidence of issuance by book entry, as applicable) representing such shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 4.01. Certificates for Underlying Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by the Purchaser. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of a certificate (or reasonable evidence of issuance by book entry, as applicable) representing Underlying Shares, as applicable, issued with a restrictive legend.
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(d) The Purchaser agrees with the Company that the Purchaser will sell any Securities pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if Securities are sold pursuant to a Registration Statement, they will be sold in compliance with the plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend from certificates (or reasonable evidence of issuance by book entry, as applicable) representing Securities as set forth in this Section 4.01 is predicated upon the Company’s reliance upon this understanding.
Section 4.02 Acknowledgment of Dilution. The Company acknowledges that the issuance of the Subscribed Securities may result in dilution of the then-outstanding shares of Common Stock, which dilution may be substantial under certain market conditions. The Company further acknowledges that its obligations under the Transaction Documents, including, without limitation, its obligation to issue the Underlying Shares pursuant to the Transaction Documents, are unconditional and absolute and not subject to any right of set off, counterclaim, delay or reduction, regardless of the effect of any such dilution or any claim the Company may have against the Purchaser and regardless of the dilutive effect that such issuance may have on the ownership of the other equity holders of the Company.
Section 4.03 Furnishing of Information; Public Information. From the Closing Date until the time that the Purchaser does not own any Securities, the Company shall use commercially reasonable efforts to maintain the registration of the Common Stock under Section 12(b) or 12(g) of the Exchange Act and the listing of the shares of Common Stock on a Trading Market and to timely file all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act even if the Company is not then subject to the reporting requirements of the Exchange Act.
Section 4.04 Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Subscribed Securities in a manner that would require the registration under the Securities Act of the sale of the Subscribed Securities or that would be integrated with the offer or sale of the Subscribed Securities for purposes of the rules and regulations of any Trading Market such that it would require stockholder approval prior to the closing of such other transaction unless stockholder approval is obtained before the closing of such subsequent transaction.
Section 4.05 Conversion and Exercise Procedures. Each of the form of Notice of Exercise included in the Warrants and the form of Notice of Conversion included in the Certificate of Designation set forth the totality of the procedures required of the Purchaser in order to exercise the Warrants or convert its Preferred Stock. Without limiting the preceding sentences, no ink-original Notice of Exercise or Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise or Notice of Conversion form be required in order to exercise the Warrants or convert the Preferred Stock. No additional legal opinion, other information or instructions shall be required of the Purchaser to exercise its Warrants or convert its Preferred Stock. The Company shall honor exercises of the Purchaser’s Warrants and conversions of the Purchaser’s Preferred Stock and shall deliver Underlying Shares in accordance with the terms, conditions and time periods set forth in the Transaction Documents.
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Section 4.06 Securities Laws Disclosure; Publicity. Neither the Company nor the Target shall publicly disclose the name of the Purchaser, or include the name of the Purchaser in any filing with the SEC or any regulatory agency or Trading Market, without the prior written consent of the Purchaser (not to be unreasonably withheld, delayed or conditioned), except (a) as required by federal securities law or requested by the staff of the SEC in connection with (i) any filings in connection with the Business Combination, (ii) any registration statement contemplated by the Registration Rights Agreement and (iii) the filing of final Transaction Documents with the SEC and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchaser with prior notice of such disclosure permitted under this clause (b).
Section 4.07 Stockholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that exclusively as a result of the transactions contemplated by this Agreement the Purchaser is an “acquiring person” under any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that the Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Subscribed Securities under the Transaction Documents.
Section 4.08 Non-Public Information. The Company and the Target covenant and agree that neither they, nor any other Person acting on their behalf will provide the Purchaser or its agents or counsel with any information that constitutes, or the Company and the Target reasonably believe constitutes, material non-public information, unless prior thereto the Purchaser shall have consented to the receipt of such information and agreed with the Company and the Target to keep such information confidential. To the extent that the Company, the Target or any of their respective officers, director, agents, employees or Affiliates delivers any material, non-public information to the Purchaser without the Purchaser’s consent, the Company and the Target hereby covenant and agree that the Purchaser shall not have any duty of trust or confidentiality to the Company, the Target or any of their respective officers, directors, agents, employees or Affiliates, or a duty to the Company, the Target or any of their respective officers, directors, agents, employees or Affiliates not to trade while aware of, such material, non-public information, provided that the Purchaser shall remain subject to applicable law. To the extent that (x) the Company, the Target or any of their respective officers, director, agents, employees or Affiliates delivers any material, non-public information to the Purchaser without the Purchaser’s consent or (y) any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or the Target, the Company shall, if reasonably practicable, simultaneously file such material, non-public information or such notice with the SEC pursuant to a Current Report on Form 8-K. The Company and the Target understand and confirm that the Purchaser shall be relying on the foregoing covenants in effecting transactions in securities of the Company.
Section 4.09 Use of Proceeds. The Company shall use the net proceeds from the sale of the Subscribed Securities hereunder for general corporate and working capital purposes, in the Company’s exclusive discretion.
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Section 4.10 Indemnification.
(a) Subject to the provisions of this Section 4.10, the Company will indemnify and hold each Purchaser Party harmless from any and all Losses that any such Purchaser Party may suffer or incur as a result of or relating to any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents (unless such Loss is primarily based upon a material breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any conduct by such Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct).
(b) Subject to the provisions of this Section 4.10, the Target will indemnify and hold each Purchaser Party harmless from any and all Losses that any such Purchaser Party may suffer or incur as a result of or relating to any breach of any of the representations and warranties of the Target Companies found exclusively in Section 3.03, covenants or agreements made by the Target in this Agreement or in the other Transaction Documents (unless such Loss is primarily based upon a material breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any conduct by such Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct).
(c) Subject to the provisions of this Section 4.10, the Purchaser will indemnify and hold (i) each Company Party and (ii) each Target Party, harmless from any and all Losses that any such Company Party or Target Party (as applicable) may suffer or incur as a result of or relating to any breach of any of the representations, warranties, covenants or agreements made by such Purchaser in this Agreement or in the other Transaction Documents (unless such Loss is primarily based upon a material breach of such Company Party’s or Target Party’s (as applicable) representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Company Party or Target Party may have with any such stockholder or any violations by such Company Party or Target Party (as applicable) of state or federal securities laws or any conduct by such Company Party or Target Party (as applicable) which is finally judicially determined to constitute fraud, gross negligence or willful misconduct).
(d) If any Action or Proceeding shall be brought against any Person in respect of which indemnity may be sought pursuant to this Agreement, such Person (the “Indemnified Party”) shall promptly notify the Person against whom such indemnity may be sought (the “Indemnifying Party”) in writing, but the omission to notify such Indemnifying Party will not relieve the Indemnifying Party from any liability that it may have to any Indemnified Party under this Section 4.10 unless, and only to the extent that, such omission results in the forfeiture of substantive rights or defenses by the Indemnifying Party. The Indemnifying Party shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Indemnified Party. Any Indemnified Party shall have the right to employ separate counsel in any such Action or Proceeding and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party except to the extent that (i) the employment thereof has been specifically authorized by the Indemnifying Party in writing, (ii) the Indemnifying Party has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such Action or Proceeding there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Indemnifying Party and the position of such Indemnified Party, in which case the Indemnifying Party shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Indemnifying Party shall not be liable for any settlement of any Proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding.
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(e) If the indemnification provided under Section 4.10 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any Losses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the Losses referred to above shall be deemed to include, subject to the limitations set forth in this Section 4.10(e), any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 4.10(e) from any person who was not guilty of such fraudulent misrepresentation. Each indemnifying party’s obligation to make a contribution pursuant to this Section 4.10(e) shall be individual, not joint and several, and in no event shall the liability of the Purchaser be greater in dollar amount than the amount of the net proceeds received upon the sale of the shares of Preferred Stock and the Warrants hereunder giving rise to such indemnification obligation.
Section 4.11 Reservation and Listing of Securities.
(a) Commencing on the Closing Date, the Company shall maintain a reserve of the Required Minimum from its duly authorized shares of Common Stock for issuance pursuant to the Transaction Documents in such amount as may then be required to fulfill its obligations in full under the Transaction Documents.
(b) If, on any date following the Closing Date, the number of authorized but unissued (and otherwise unreserved) shares of Common Stock is less than 100% of (i) the Required Minimum on such date, minus (ii) the number of shares of Common Stock previously issued pursuant to the Transaction Documents, then the Board of Directors shall use commercially reasonable efforts to amend the Company’s certificate or articles of incorporation to increase the number of authorized but unissued shares of Common Stock to at least the Required Minimum at such time (minus the number of shares of Common Stock previously issued pursuant to the Transaction Documents), as soon as possible and in any event not later than the 75th day after such date, provided that the Company will not be required at any time to authorize a number of shares of Common Stock greater than the maximum remaining number of shares of Common Stock that could possibly be issued after such time pursuant to the Transaction Documents.
(c) The Company shall, as applicable: (i) promptly after the Closing Date and in connection with the registration with the SEC of the Underlying Shares, in the manner required by the principal Trading Market, prepare and file with such Trading Market an additional shares listing application covering a number of shares of Common Stock at least equal to the Required Minimum on the date of such application, (ii) take all steps reasonably necessary to cause such shares of Common Stock to be approved for listing or quotation on such Trading Market as soon as practicable thereafter and to provide to the Purchaser evidence of such listing or quotation and (iii) use commercially reasonable efforts to maintain the listing or quotation of such Common Stock on any date at least equal to the Required Minimum on such date on such Trading Market or another Trading Market. The Company agrees to maintain the eligibility of the Common Stock for electronic transfer through the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer.
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Section 4.12 Certain Transactions and Confidentiality. The Company shall (a) by 9:00 a.m. (New York City time) on the first Business Day following the date of this Agreement, issue a press release and/or file a Current Report on Form 8-K (the “Disclosure Document”) disclosing the material terms of the transactions contemplated hereby and by the other Transaction Documents (including, without limitation, the material terms of the transactions contemplated by the Business Combination Agreement and the PIPE Investment) and all material non-public information (other than the Additional Information) concerning the Company disclosed to the Purchaser by the Company, the Target or any of their respective representatives, officers, directors, agents, including the Placement Agent, employees or Affiliates, and (b) in respect of any information that is issued in a press release, file a Current Report on Form 8-K including the form of this Agreement as an exhibit thereto, within the time required by the Exchange Act. Effective upon the issuance or filing, as applicable, of such Disclosure Document, the Company acknowledges and agrees that (i) if the Purchaser has not received the Additional Information, the Purchaser shall not be in possession of material non-public information concerning the Company disclosed to the Purchaser by the Company, the Target or any of their respective representatives, officers, directors, agents, including the Placement Agent, employees or Affiliates, (ii) if the Purchaser has received the Additional Information, the Purchaser shall not be in possession of material non-public information (other than the Additional Information) disclosed to the Purchaser by the Company, the Target or any of their respective representative, officers, directors, agents, including the Placement Agent, employees or Affiliates agents, and (iii) if the Purchaser has not received the Additional Information, any and all confidentiality or similar obligations under this Agreement, or an agreement entered into in connection with the transactions contemplated by the Transaction Documents, whether written or oral, between the Company, the Target or any of their respective representatives, officers, directors, agents, including the Placement Agent, employees or Affiliates on the one hand, and the Purchaser or any of its respective officers, directors, agents, employees or investment advisers, on the other hand, shall terminate and be of no further force or effect. To the extent any disclosure is required by law or regulations, the Company shall provide the Purchaser with prompt prior written notice of such requirement so that the Purchaser may (a) seek appropriate relief to prevent or limit such disclosure should it wish to do so, (b) furnish only that portion of the information which is legally required to be furnished or disclosed, and to the extent reasonably feasible, (c) consult with the Company on content and timing prior to any such disclosure. Notwithstanding anything to the contrary contained herein, without the prior written consent of the Purchaser, the Company shall not (and shall cause each of its affiliates and representatives not to) disclose the name of the Purchaser or its investment adviser in any filing, announcement, release or otherwise, except as required by law in which case the Company shall comply with the provisions of this Section 4.12.
Section 4.13 Blue Sky Filings. The Company shall take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the Subscribed Securities for, sale to the Purchaser at the Closing under applicable securities or “Blue Sky” laws of the states of the United States.
Section 4.14 Reliance. The Purchaser acknowledges that the Company, the Target and the Placement Agent will rely on the acknowledgments, understandings, agreements, representations and warranties of the Purchaser contained in this Agreement; provided, however, that the foregoing clause of this Section 4.14 shall not give the Company or the Target any rights other than those expressly set forth herein. Prior to the Closing, the Purchaser agrees to promptly notify the Company, the Target and the Placement Agent if it becomes aware that any of the acknowledgments, understandings, agreements, representations and warranties of the Purchaser set forth herein are no longer accurate in all material respects. The Company and the Target acknowledge that the Purchaser and the Placement Agent will rely on the acknowledgments, understandings, agreements, representations and warranties of the Company and the Target contained in this Agreement.
Section 4.15 BCA Amendments. Without the prior written consent of the Purchaser, the Company shall not agree to or permit any amendment, modification, supplement or waiver of the Business Combination Agreement that (i) would reasonably be expected to be materially adverse to the Purchaser or (ii) extends the Outside Date (as defined in the Business Combination Agreement). In the event the Company enters into any such amendment, modification, supplement or waiver without the Purchaser’s prior written consent, the Purchaser shall have the right to terminate this Agreement upon written notice to the Company delivered within ten (10) Business Days of the Purchaser’s receipt of written notice of such amendment.
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Section 4.16 MFN. Other than the Other Series A SPAs, the Business Combination Agreement (or any other agreement expressly contemplated by the Business Combination Agreement) and the Sponsor Support Agreement (as defined in the Business Combination Agreement), the Company and the Target have not entered into any side letter or similar agreement with any investor party to the Other Series A SPAs (each, an “Other Series A Investors”) in connection with such Other Series A Investors’ direct or indirect investment in the securities of the Company. Other than the Business Combination Agreement, the Sponsor Support Agreement and any other agreements between the Company and the Sponsor disclosed in the SEC Reports, in each case, in the forms made available to the Purchaser prior to the date hereof, the Company and the Target represent that they have not entered into, and covenant that prior to the Closing they will not enter into, any Other Series A SPAs, side letter agreements or other agreements or understandings with any Other Series A Investor or any other investor party (together with the Other Series A Investors, the “Other Purchasers”) in connection with such Other Purchasers’ direct or indirect investment in the securities of the Company, the Target or any of their respective subsidiaries (collectively, “PIPE Agreements”) which include terms and conditions (including any terms and conditions related to registration rights) that are materially more advantageous to any such Other Purchaser (as compared to the Purchaser), other than PIPE Agreements containing any of the following: (i) any rights or benefits granted to an Other Purchaser in connection with such Other Purchaser’s compliance with any law, regulation or policy specifically applicable to such Other Purchaser or in connection with the taxable status of an Other Purchaser, (ii) any rights or benefits which are personal to an Other Purchaser based solely on its place of organization or headquarters, organizational form of, or other particular restrictions applicable to, such Other Purchaser, (iii) any rights with respect to the confidentiality or disclosure of an Other Purchaser’s identity, (iv) any right to designate or nominate one or more board observers or members of the board of directors of the Company or (v) the right to receive a number of additional Incentive Shares (rounded down to the nearest whole share (with no cash paid in lieu of any fractional share)) equal to 3,000,000 multiplied by a fraction, the numerator of which is the amount of PIPE Investment that is Prefunded (not to exceed $130,000,000) and the denominator of which is $130,000,000. In the event that the Company or the Target enters into any PIPE Agreement with any Other Purchaser that includes terms and conditions that are materially more advantageous to such Other Purchaser (as compared to the Purchaser) in any respect (other than as permitted by clauses (i) through (v) above), the terms and conditions of this Agreement shall be automatically amended, without any further action by the parties hereto, to reflect such more advantageous terms. Notwithstanding the foregoing, this Section 4.16 shall not apply to (i) a PIPE Upsize on the same terms as those set forth in such Other Series A Investor’s Other Series A SPA as of the date hereof; provided that such PIPE Upsize may also include a number of Incentive Shares equal to 25% of the amount of the PIPE Upsize divided by $10.00, subject to a maximum of 1,250,000 Incentive Shares or (ii) securities issued pursuant to any merger, acquisition or strategic transaction or partnership approved by a majority of the directors of the Company or Target, as applicable, provided that any such issuance shall only be to a Strategic Investor (such transaction, a “Strategic Transaction”).
Section 4.17 Sponsor Accommodation Shares; Non-Redemption Shares; Non-Redemption Payment; Backstop Shares.1
(a) Within ten (10) Business Days of the date hereof, the Sponsor shall transfer [733,333/641,667] Class A Ordinary Shares (the “Sponsor Accommodation Shares”) to the Purchaser; provided that the Purchaser hereby agrees that: (i) it shall not, prior to the Closing, transfer such Sponsor Accommodation Shares to any other Person (other than as set forth in clause (iv) below), (ii) it shall not submit such Sponsor Accommodation Shares for redemption in connection with any extraordinary general meeting of the Company’s shareholders to approve the transactions contemplated by the Business Combination Agreement or any extension of the deadline to consummate an initial business combination, (iii) it shall vote all Sponsor Accommodation Shares in favor of any proposals put forth by the Company in connection with any extraordinary general meeting of the Company’s shareholders to approve the transactions contemplated by the Business Combination Agreement or any extension of the deadline to consummate an initial business combination and (iv) in the event the Business Combination Agreement expires or is terminated or the transactions contemplated thereby are otherwise not consummated (each, a “Termination Event”), it shall return such Sponsor Accommodation Shares to Sponsor within ten Business Days of such Termination Event. By virtue of the Proxy Statement/Registration Statement (as defined in the Business Combination Agreement), the issuance at the Closing of shares of Common Stock in exchange for the Sponsor Accommodation Shares will result in such shares of Common Stock being registered under the Securities Act, issued without a restrictive legend under the Securities Act and freely tradable by a holder thereof that is not an Affiliate of the Company. The Company represents, warrants and agrees that, as of the Closing Date, the Sponsor Accommodation shares shall not be subject to any contractual restrictions on transfer.
| 1 | NTD: Given the lock up applicable to the existing MM stockholder participating in this transaction, the provisions regarding the Sponsor Accommodation Shares and Non-Redemption Shares should be removed from such stockholder’s subscription agreement and carved out from the MFN applicable to such stockholder (such stockholder will get Backstop Shares). |
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(b) With respect to up to [1,000,000/875,000 less Sponsor Accommodation Shares] Class A ordinary shares of the Company (the “Maximum Non-Redemption Share Amount”) that are held and not submitted for redemption by the Purchaser or its designee in connection with the Redemption (such shares, the “Non-Redemption Shares”) in accordance with this Section 4.17, in consideration for entering into this Agreement, the Company shall, at the election of the Purchaser or its designee, pay to the Purchaser or its designee, in cash, within two (2) Business Days of the Closing, an amount per Non-Redemption Share equal to the Per Share Redemption Price plus any commissions paid or payable by the Purchaser or its designee for such Non-Redemption Share (the “Non-Redemption Payment”). Notwithstanding anything herein to the contrary, in lieu of payment of the Non-Redemption Payment in cash, the Purchaser may elect to offset and deduct the amount of the Non-Redemption Payment from the Subscription Amount to be paid to the Company at Closing, and pay to the Company in cash, pursuant to Section 2.01, such portion of the Subscription Amount as has not been offset by the Non-Redemption Payment.
(c) The Purchaser and the Company acknowledge the guidance published by the staff of the SEC’s Division of Corporation Finance in Corporation Finance Interpretation Question 166.01 (Tender Offer Rules and Schedules). Accordingly, with respect to any Non-Redemption Shares for which the Purchaser or its designee elects to receive the Non-Redemption Payment: (i) neither the Purchaser nor its designee, nor any of their respective controlled Affiliates, shall purchase such Non-Redemption Shares at a price higher than the price offered to the Company’s public shareholders through the Redemption (the “Per Share Redemption Price”); (ii) neither the Purchaser nor its designee, nor any of their respective controlled Affiliates, shall vote such Non-Redemption Shares in favor of approving the Business Combination; (iii) neither the Purchaser nor its designee, nor any of their respective controlled Affiliates, shall submit (or, if submitted, shall validly rescind and withdraw) any redemption election with respect to such Non-Redemption Shares in connection with the Redemption, and shall hold such Non-Redemption Shares through the Closing without redeeming, tendering or otherwise disposing of such shares; (iv) the Purchaser and its designee, and their respective controlled Affiliates, shall reasonably cooperate with the Company and shall promptly provide the Company with such information as the Company may reasonably request regarding the Purchaser’s and its designee’s, and their respective controlled Affiliates’, purchases and holding of such Non-Redemption Shares in order to evidence such Persons’ compliance with this Section 4.17 and for the Company to comply with the SEC’s disclosure requirements.
(d) If the Purchaser or its designee does not, as of the Closing Date, hold at least the Maximum Non-Redemption Share Amount of Non-Redemption Shares for which it has elected to receive the Non-Redemption Payment, then, in lieu of the payment contemplated by Section 4.17(b) with respect to any such shortfall, the Company shall issue to the Purchaser, on the Closing Date, a number of shares of Common Stock equal to the shortfall between the Maximum Non-Redemption Share Amount and the number of Non-Redemption Shares actually acquired and held by the Purchaser through the Closing in compliance with this Section 4.17 (such shares, the “Backstop Shares”).
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(e) The Purchaser acknowledges and agrees that the Backstop Shares will be “restricted securities” within the meaning of Rule 144 and shall be subject to the restrictions on transfer set forth in Section 4.01 of this Agreement. Accordingly, the Backstop Shares and the additional shares set forth in the last sentence of this Section 4.17(e), if any, shall be entitled to the same registration rights afforded to Registrable Securities under the Registration Rights Agreement. For the avoidance of doubt, the acquisition of any Non-Redemption Shares or Backstop Shares in accordance with this Section 4.17 shall not offset or modify the rights or obligations of the parties hereto with respect to the purchase and sale of the Subscribed Securities in this Agreement. In addition, if the VWAP of the Common Stock for the period beginning on the first Trading Day following the Closing Date and ending on the Trading Day immediately prior to the Effective Date (the “VWAP Price”) is greater than the Effectiveness Price, then the Company shall issue a number of additional shares of Common Stock to the Purchaser equal to the following formula (rounded down to the nearest whole share):
where:
Y = the number of additional shares of Common Stock to the Purchaser;
X = the number of Backstop Shares;
B = the VWAP Price; and
A = the Effectiveness Price;
provided that the number of additional shares of Common Stock to the Purchaser shall not exceed twice the number of Backstop Shares.
Section 4.18 Subsequent Equity Sales. Except as set forth above and pursuant to the Business Combination Agreement (as in effect on the date hereof), from the date hereof and ending on the date that is 180 days after the Effective Date, the Company shall not, without the prior written consent of the Purchaser: (A) issue shares of Common Stock or Common Stock Equivalents, (B) effect a reverse stock split, recapitalization, share consolidation, reclassification or similar transaction affecting the outstanding Common Stock or (C) file with the SEC a registration statement under the Securities Act relating to any shares of Common Stock or Common Stock Equivalents, except pursuant to the terms of the Registration Rights Agreement. Notwithstanding the foregoing, the provisions of this Section 4.18 shall not apply to (i) the issuance of the Securities or the Backstop Shares hereunder or under any Other Series A SPAs, (ii) the issuance of Common Stock or Common Stock Equivalents upon the conversion, exercise or vesting of any securities of the Company outstanding on the date of this Agreement, outstanding pursuant to clause (iii) below or issued pursuant to the Other Series A SPAs, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term of such securities, (iii) the issuance of any Common Stock or Common Stock Equivalents pursuant to any Company stock-based compensation plans or in accordance with Nasdaq Stock Market Rule 5635(c)(4), (iv) the filing of a registration statement on Form S-8 under the Securities Act to register the offer and sale of securities on an equity incentive plan or employee stock purchase plan, and (v) solely from the date hereof and ending on the Closing, securities issued in a PIPE Upsize.
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Section 4.19 No Forward Purchase Agreements. Except as set forth in Section 4.17 of this Agreement and Sections 4.17 of the Other Series A SPAs, as of the date hereof, none of the Company, the Target or any of their respective representatives, officers, directors, agents, employees or Affiliates have (i) entered into any forward purchase agreement or arrangement relating to the purchase, sale, or financing of the Company’s equity securities (each, a “Forward Purchase Agreement”) or (ii) entered into, made or promised any agreement, arrangement, understanding, payment, compensation or consideration to induce, incentivize or otherwise cause any holder of Class A ordinary shares of the Company not to submit such shares for redemption in connection with the Business Combination or otherwise (each a “Non-Redemption Incentive”). Except as set forth above and pursuant to the Business Combination Agreement (as in effect on the date hereof), from the date hereof and ending on the date that is 180 days after the Effective Date, none of the Company, the Target or any of their respective representatives, officers, directors, agents, employees or Affiliates shall (i) enter into a Forward Purchase Agreement or (ii) enter into, make or promise any Non-Redemption Incentive.
Section 4.20 Lock-Up Arrangements. Neither the Company nor the Target shall, without the prior written consent of the Purchaser, fail to obtain, fail to implement, amend, modify, waive, terminate or fail to enforce (i) the lock-up obligations contained in the Sponsor Lock-Up Agreement, the Keyframe Lock-Up Agreement and the Cyrus Lock-Up Agreement (each as defined, and in substantially the form attached to, the Business Combination Agreement as in effect on the date hereof) or (ii) the lock-up obligations contained in the bylaws of the Company to be in effect immediately following Closing in substantially the form set forth in the Business Combination Agreement (as in effect on the date hereof) (such lock-up obligations referred to in clauses (i) and (ii), collectively, the “Lock-Up Arrangements”).
Section 4.21 Prefund. The terms of any Prefund shall be no more favorable to the investor(s) or lender(s) thereof than the terms of the outstanding indebtedness of the Target (taking into account all interest, premium, fees and all other amounts for the benefit of the investor(s) or lender(s) (or their Affiliate)), except that such Prefund may include the right to receive a number of additional Incentive Shares (rounded down to the nearest whole share (with no cash paid in lieu of any fractional share)) equal to 3,000,000 multiplied by a fraction, the numerator of which is the amount of PIPE Investment that is Prefunded (not to exceed $130,000,000) and the denominator of which is $130,000,000.
Article
V.
MISCELLANEOUS
Section 5.01 Termination. This Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect hereof, upon the earlier to occur of (a) the mutual written agreement of the parties hereto to terminate this Agreement, or (b) the termination (for any reason) of the Business Combination Agreement by any party to the same. Additionally, (i) the Company may terminate this Agreement with respect to the Purchaser if any of the conditions set forth in Section 2.03(a) applicable to the Purchaser shall have become incapable of fulfillment, and shall not have been waived by the Company; and (ii) the Purchaser may terminate this Agreement (X) if any of the conditions set forth in Section 2.03(b) shall have become incapable of fulfillment, and shall not have been waived by the Purchaser, (Y) if the Closing shall not have occurred on or prior to the date on which the Target is permitted to terminate the Business Combination Agreement pursuant to Section 9.01(d) of the Business Combination Agreement or (Z) pursuant to Section 2.01 or Section 4.15. Notwithstanding the foregoing, nothing herein will relieve any party from liability for any intentional breach hereof prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover losses, liabilities or damages arising from such intentional breach; provided, that in the event that the Business Combination Agreement is ever terminated by the Company and/or the Target for any reason, the Purchaser hereby agrees not to indirectly assert a claim against the Target by funding the Company or any other party to assert any such claim.
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Section 5.02 Fees and Expenses. Except as expressly set forth in the Transaction Documents, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement and the Transaction Documents. The Company shall pay all Transfer Agent fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any conversion notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Subscribed Securities to the Purchaser.
Section 5.03 Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
Section 5.04 Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via email at the e-mail address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered via email attachment at the e-mail address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto.
Section 5.05 Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company, the Target and the Purchaser or, in the case of a waiver, by the Company, the Target or the Purchaser, as the case may be, dependent on the party against whom enforcement of any such waived provision is sought. No amendment, modification, alteration, change or waiver to Section 3.01, Section 3.02, Section 3.03, Section 3.04, Section 4.10, Section 4.14, Section 5.03, this Section 5.05, Section 5.08 and Section 5.20 can be made without the prior written consent of the Placement Agent. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.
Section 5.06 Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.
Section 5.07 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. Neither the Company nor the Target may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other and the Purchaser (other than by merger). The Purchaser may assign any or all of its rights under this Agreement to any Person to whom the Purchaser assigns or transfers any Subscribed Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Subscribed Securities, by the provisions of the Transaction Documents that apply to the “Purchaser.”
Section 5.08 Third-Party Beneficiaries. The Placement Agent shall be the express third-party beneficiary of Section 4.14, Section 5.05 and Section 5.20 hereof, the representations and warranties of the Company in Section 3.01 hereof, the representations and warranties of the Purchaser in Section 3.02 hereof and the representations and warranties of the Target in Sections 3.03 and 3.04 hereof. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section 4.10 and this Section 5.08.
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Section 5.09 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (other than the Certificate of Designation) (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the State of Delaware. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the State of Delaware for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents, other than the Certificate of Designation), and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the parties under Section 4.10, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action or Proceeding.
Section 5.10 Survival. The representations and warranties contained in Section 3.01, Section 3.02 and Section 3.03 herein shall survive the Closing and the delivery of the Subscribed Securities. Without limiting the foregoing, the representations and warranties of the Company and the Target shall survive indefinitely with respect to any claim based on fraud or fraudulent misrepresentation.
Section 5.11 Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such “.pdf” signature page were an original thereof.
Section 5.12 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
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Section 5.13 Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of the other Transaction Documents, whenever the Purchaser exercises a right, election, demand or option under a Transaction Document and the Company does not timely perform its related obligations within the periods therein provided, then the Purchaser may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights; provided, however, that, in the case of (x) a rescission of a conversion of the Purchaser’s Preferred Stock, the Purchaser shall be required to return any shares of Common Stock subject to any such rescinded conversion or (y) a rescission of an exercise of a Warrant, the Purchaser shall be required to return any shares of Common Stock subject to any exercise notice concurrently with the return to the Purchaser of the aggregate exercise price paid to the Company for such shares and the restoration of the Purchaser’s right to acquire such shares pursuant to the Purchaser’s Warrant (including, issuance of a replacement warrant certificate evidencing such restored right).
Section 5.14 Replacement of Subscribed Securities or Backstop Shares. If any certificate or instrument evidencing any Subscribed Securities or Backstop Shares is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Subscribed Securities or Backstop Shares.
Section 5.15 Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, the Purchaser and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would be adequate. For the avoidance of doubt, Section 4.10 shall be the exclusive remedy for any Losses resulting from a breach of any of the representations and warranties contained in ARTICLE III of this Agreement, in each case exclusively to the extent such Losses arise during the survival period of such representations and warranties pursuant to the terms of this Agreement, provided, however, that nothing in this Section 5.15 shall limit or restrict any party’s right to bring a claim based on fraud or fraudulent misrepresentation, including fraud in the inducement, and any such claim shall not be subject to the survival periods set forth in Section 5.10.
Section 5.16 Payment Set Aside. To the extent that the Company makes a payment or payments to the Purchaser pursuant to any Transaction Document or the Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.
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Section 5.17 Usury. To the extent it may lawfully do so, the Company hereby agrees not to insist upon or plead or in any manner whatsoever claim, and will resist any and all efforts to be compelled to take the benefit or advantage of, usury laws wherever enacted, now or at any time hereafter in force, in connection with any Action or Proceeding that may be brought by the Purchaser in order to enforce any right or remedy under any Transaction Document. Notwithstanding any provision to the contrary contained in any Transaction Document, it is expressly agreed and provided that the total liability of the Company under the Transaction Documents for payments in the nature of interest shall not exceed the maximum lawful rate authorized under applicable law (the “Maximum Rate”), and, without limiting the foregoing, in no event shall any rate of interest or default interest, or both of them, when aggregated with any other sums in the nature of interest that the Company may be obligated to pay under the Transaction Documents exceed such Maximum Rate. It is agreed that if the maximum contract rate of interest allowed by law and applicable to the Transaction Documents is increased or decreased by statute or any official governmental action subsequent to the date hereof, the new maximum contract rate of interest allowed by law will be the Maximum Rate applicable to the Transaction Documents from the effective date thereof forward, unless such application is precluded by applicable law. If under any circumstances whatsoever, interest in excess of the Maximum Rate is paid by the Company to the Purchaser with respect to Indebtedness evidenced by the Transaction Documents, such excess shall be applied by the Purchaser to the unpaid principal balance of any such Indebtedness or be refunded to the Company, the manner of handling such excess to be at the Purchaser’s election.
Section 5.18 Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due and payable shall have been canceled.
Section 5.19 Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
Section 5.20 Exculpation of the Placement Agent. The Purchaser agrees for the express benefit of the Placement Agent and its respective Affiliates and Representatives that:
(a) Neither the Placement Agent nor any of its Affiliates or Representatives (i) make any representation or warranty, or have any responsibilities as to the validity, accuracy, value or genuineness of any information, certificates or documentation delivered by or on behalf of the Company or the Target pursuant to this Agreement or the other Transaction Documents or in connection with any of the transactions contemplated by this Agreement or the other Transaction Documents, including any offering or marketing materials; or (ii) shall be liable for anything which any of them may do or refrain from doing in connection with this Agreement or any other Transaction Document.
(b) The Placement Agent and its Affiliates and Representatives shall be entitled to rely on, and shall be protected in acting upon, any certificate, instrument, opinion, notice, letter or any other document or security delivered to any of them by or on behalf of the Company and the Target.
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Section 5.21 Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement. In this Agreement, unless the context otherwise requires: (i) whenever required by the context, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (ii) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding or succeeding such term and shall be deemed in each case to be followed by the words “without limitation”; and (iii) the words “herein”, “hereto” and “hereby” and other words of similar import in this Agreement shall be deemed in each case to refer to this Agreement as a whole and not to any particular portion of this Agreement.
Section 5.22 Trust Account Waiver. The Purchaser hereby acknowledges that, as described in the Company’s prospectus relating to its initial public offering (the “IPO”) available at www.sec.gov, the Company has established a trust account (the “Trust Account”) containing the proceeds of the IPO and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of the Company, its public shareholders and certain other parties. For and in consideration of entering into this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Purchaser on behalf of itself and each of its affiliates and subsidiaries, and each of its and their employees, agents, representatives and any other person or entity acting on its and their behalf hereby (a) agrees that it does not now and shall not at any time hereafter have any right, title, interest or claim of any kind in or to any assets held in the Trust Account, and shall not make any claim against the Trust Account, arising out or as a result of, in connection with or relating in any way to this Agreement, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (any and all such claims are collectively referred to hereafter as the “Released Claims”), (b) irrevocably waives any Released Claims that it may have against the Trust Account now or in the future as a result of, or arising out of, this Agreement, and (c) agrees that it will not seek recourse against the Trust Account as a result of, in connection with or relating in any way to this Agreement; provided, however, that nothing in this Section 5.22 shall be deemed to limit the Purchaser’s right to distributions from the Trust Account in accordance with the Company’s memorandum and articles of association in respect of any redemptions by the Purchaser in respect of securities acquired by any means other than pursuant to this Agreement.
Section 5.23 NO LIABILITY UPON GOOD FAITH TERMINATION. OTHER THAN WITH RESPECT TO ANY LIABILITIES ARISING PURSUANT TO SECTION 4.10 AND/OR SECTION 5.02 ABOVE AND AS SET FORTH IN SECTION 5.01, NONE OF THE COMPANY, TARGET, ANY OF THEIR AFFILIATES, OR ANY OTHER PARTY TO THE BUSINESS COMBINATION AGREEMENT, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EQUITYHOLDERS, MANAGERS, MEMBERS, ADVISORS OR LEGAL COUNSEL SHALL HAVE ANY LIABILITY (INCLUDING, BUT NOT LIMITED TO, AS A RESULT OF POTENTIAL LOST PROFITS AND OPPORTUNITIES) TO THE PURCHASER AS A RESULT OF THE TERMINATION OF THIS AGREEMENT AS A RESULT OF THE GOOD FAITH TERMINATION OF THE BUSINESS COMBINATION AGREEMENT BECAUSE OF A FAILURE OF A CLOSING CONDITION TO BE MET (SOLELY TO THE EXTENT SUCH FAILURE IS OUTSIDE OF THE CONTROL OF THE TARGET OR THE COMPANY, BUT REGARDLESS OF WHETHER THE BUSINESS COMBINATION AGREEMENT IS TERMINATED BY THE COMPANY OR TARGET).
Section 5.24 WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
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IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| ACP HOLDINGS ACQUISITION CORP. | Address for Notice: | ||
| 3131 Eastside Street | |||
| By: | Houston, Texas 77098 | ||
| Name: | Andrew Mallozzi | ||
| Title: | Chief Executive Officer | Email: | |
With a copy to (which shall not constitute notice):
DLA Piper LLP (US)
1251 Avenue of the Americas
New York, New York 10020
Attn: Stephen P. Alicanti; Sidney Burke
Email: [email protected]; [email protected]
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOR TARGET FOLLOWS]
[COMPANY SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
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IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| MAY MOBILITY, INC. | Address for Notice: | ||
| By: | |||
| Name: | |||
| Title: | Email: | ||
With a copy to (which shall not constitute notice):
Latham & Watkins LLP
505 Montgomery Street, Suite 2000
San Francisco, CA 94111 Attn: Haim Zaltman; Tad Freese; Ryan Lynch
Email: [email protected]; [email protected]; [email protected]
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOR PURCHASER FOLLOWS]
[TARGET SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
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IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: ______________________________________________
Signature of Authorized Signatory of Purchaser: _______________________
Name of Authorized Signatory: _____________________________________
Title of Authorized Signatory: ______________________________________
Email Address of Authorized Signatory: ______________________________
Address for Notice to Purchaser: ___________________________________
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Subscription Amount: $
Shares of Preferred Stock:
Warrant Shares:
EIN Number:
Disclosure Schedule Election ☐ No, do not provide the Disclosure Schedules
If you have elected “No” above, please sign where indicated below to confirm that you agree to the following:
The Purchaser acknowledges and understands that (i) the Company, the Target, the Placement Agent, and their respective affiliates possess material nonpublic information regarding the Target and the Company, including the information set forth on the Target Disclosure Letter and the Target’s financial statements not known to the Purchaser that may impact the value of the Subscribed Securities (the “Information”), and that the Company, the Target and the Placement Agent are not disclosing the Information to the Purchaser. The Purchaser understands, based on its experience, the disadvantage to which the Purchaser is subject due to the disparity of information between the Company, the Target and the Placement Agent, on the one hand, and the Purchaser, on the other hand. Notwithstanding such disparity, the Purchaser has deemed it appropriate to enter into this Agreement and to purchase the Subscribed Securities.
The Purchaser agrees that none of the Company, the Target, the Placement Agent, or their respective affiliates, principals, stockholders, partners, employees and agents shall have any liability to the Purchaser, its affiliates, principals, stockholders, partners, employees, agents, grantors or beneficiaries, whatsoever due to or in connection with the Company’s, the Target’s and/or the Placement Agent’s use or non-disclosure of the Information or otherwise as a result of this Agreement or the Purchaser’s acquisition of the Subscribed Securities, and the Purchaser hereby irrevocably waives any claim that it might have based on the failure of the Company, the Target and/or the Placement Agent to disclose the Information.
The Purchaser acknowledges that (i) the Company, the Target and the Placement Agent are relying on the Purchaser’s representations, warranties, acknowledgments and agreements set forth above as a condition to proceeding with the transactions contemplated by this Agreement; and (ii) without such representations, warranties and agreements, the Company, the Target and the Placement Agent would not enter into this Agreement or engage in the transactions contemplated thereby.
Signature of Authorized Signatory of Purchaser: ___________________________________
Name of Authorized Signatory:
Title of Authorized Signatory:
[PURCHASER SIGNATURE PAGE TO SECURITIES PURCHASE AGREEMENT]
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ANNEX A
ELIGIBILITY REPRESENTATIONS OF PURCHASER
This Annex A should be completed and signed by Purchaser
and constitutes a part of the Securities Purchase Agreement.
| 1. | ACCREDITED INVESTOR STATUS (Please check the box) |
| ☐ | Purchaser is an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), and has marked and initialed the appropriate box below indicating the provision under which it qualifies as an “accredited investor.” |
| 2. | AFFILIATE STATUS |
(Please check the applicable box)
PURCHASER:
| ☐ | is: |
| ☐ | is not: |
an “affiliate” (as defined in Rule 144 under the Securities Act) of the Company or acting on behalf of an affiliate of the Company.
Rule 501(a), in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person. Purchaser has indicated, by marking and initialing the appropriate box(es) below, the provision(s) below which apply to Purchaser and under which Purchaser accordingly qualifies as an “accredited investor.”
| ☐ | Any bank, registered broker or dealer, insurance company, registered investment company, business development company, small business investment company, private business development company, or rural business investment company; |
| ☐ | Any investment adviser registered pursuant to section 203 of the Investment Advisers Act or registered pursuant to the laws of a state; |
| ☐ | Any investment adviser relying on the exemption from registering with the Commission under section 203(l) or (m) of the Investment Advisers Act; |
| ☐ | Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess of $5,000,000; |
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| ☐ | Any employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974 (“ERISA”), if (i) the investment decision is made by a plan fiduciary, as defined in section 3(21) of ERISA, which is either a bank, a savings and loan association, an insurance company, or a registered investment adviser, (ii) the employee benefit plan has total assets in excess of $5,000,000 or, (iii) such plan is a self-directed plan, with investment decisions made solely by persons that are “accredited investors”; |
| ☐ | Any (i) corporation, limited liability company or partnership, (ii) Massachusetts or similar business trust, or (iii) organization described in section 501(c)(3) of the Internal Revenue Code, in each case that was not formed for the specific purpose of acquiring the securities offered and that has total assets in excess of $5,000,000; |
| ☐ | Any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Section 230.506(b)(2)(ii) of Regulation D under the Securities Act; |
| ☐ | Any entity, other than an entity described in the categories of “accredited investors” above, not formed for the specific purpose of acquiring the securities offered, owning investments in excess of $5,000,000; |
| ☐ | Any “family office,” as defined under the Investment Advisers Act that satisfies all of the following conditions: (i) with assets under management in excess of $5,000,000, (ii) that is not formed for the specific purpose of acquiring the securities offered, and (iii) whose prospective investment is directed by a person who has such knowledge and experience in financial and business matters that such family office is capable of evaluating the merits and risks of the prospective investment; |
| ☐ | Any “family client,” as defined under the Investment Advisers Act, of a family office meeting the requirements in the previous paragraph and whose prospective investment in the issuer is directed by such family office pursuant to the previous paragraph; or |
| ☐ | Any entity in which all of the equity owners are “accredited investors”. |
| [Specify which tests: ] |
| ☐ | Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer; |
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| ☐ | Any natural person whose individual net worth, or joint net worth with that person’s spouse or spousal equivalent, exceeds $1,000,000. For purposes of calculating a natural person’s net worth: (a) the person’s primary residence shall not be included as an asset; (b) indebtedness that is secured by the person’s primary residence, up to the estimated fair market value of the primary residence at the time of the sale of securities, shall not be included as a liability (except that if the amount of such indebtedness outstanding at the time of sale of securities exceeds the amount outstanding 60 days before such time, other than as a result of the acquisition of the primary residence, the amount of such excess shall be included as a liability); and (c) indebtedness that is secured by the person’s primary residence in excess of the estimated fair market value of the primary residence at the time of the sale of securities shall be included as a liability; |
| ☐ | Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse or spousal equivalent in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; |
| ☐ | Any natural person holding in good standing one or more professional certifications or designations or credentials from an accredited educational institution that the SEC has designated as qualifying an individual for accredited investor status; or |
| ☐ | Any natural person who is a “knowledgeable employee,” as defined in the Investment Company Act, of the issuer of the securities being offered or sold where the issuer would be an investment company, as defined in section 3 of such act, but for the exclusion provided by either section 3(c)(1) or section 3(c)(7) of such act. |
This page should be completed by Purchaser and constitutes a part of the Securities Purchase Agreement.
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| PURCHASER: | ||
| Print Name: | ||
| By: | ||
| Name: | ||
| Title: | ||
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Exhibit A
Form of Certificate of Designation
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Exhibit B
Form of Registration Rights Agreement
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Exhibit C
Form of Warrant
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Exhibit 99.1
May Mobility to Become the First U.S. Publicly Listed Pure-Play Autonomous Ride-Hail Technology Company Through a Business Combination with ACP Holdings Acquisition Corp.
| ● | The business combination implies a pro forma enterprise value of approximately $1.4 billion for May Mobility |
| ● | Fully committed private investment in public equity (PIPE) of $120 million, including leading institutional investors |
| ● | Commercially proven physical AI: more than 550,000 commercial autonomous rides across 1.1 million miles and three driver-out launches in the United States to date |
| ● | May Mobility’s multi-policy reasoning architecture is designed to enable deployment in new cities without the millions of miles of training data conventional AV systems have required, lowering time to market and capital intensity |
| ● | May Mobility’s asset-light Autonomy-as-a-Service model brings together leading partners from across the ride-hail and mobility value chain |
| ● | May Mobility’s partnerships with Uber, Lyft, Grab and CaoCao position it as the only autonomous vehicle company partnered with four of the world’s leading ride-hailing platforms |
| ● | Grab’s partnership with and investment in May Mobility, announced in 2025, will support the company’s continued expansion efforts |
ANN ARBOR, Mich., Sept. 16, 2026 — May Mobility, Inc. (“May Mobility”), a global autonomous vehicle (AV) technology company, and ACP Holdings Acquisition Corp. (Nasdaq: ACGC) (“ACP Holdings”), a publicly traded special purpose acquisition company, today announced that they have entered into a definitive business combination agreement. The transaction is expected to position May Mobility as the first U.S. publicly listed pure-play autonomous ride-hail technology company. The business combination implies a pro forma enterprise value of approximately $1.4 billion. The transaction is expected to deliver gross proceeds of up to $337 million, subject to redemptions by ACP Holdings’ public stockholders. Upon the closing of the transaction, the combined company is expected to operate as “May Mobility, Inc.” and list on the Nasdaq Stock Market under the ticker symbol “MAY.”
May Mobility is a pioneer of an asset-light, partnership-first approach to deploying physical AI in autonomous ride-hail applications, differentiating itself in an industry traditionally dominated by asset-heavy fleet operators.
Commercially Proven
May Mobility has completed more than 550,000 commercial autonomous rides across 1.1 million miles in the United States and Japan, including three driver-out deployments to date. May Mobility is one of just a handful of companies to have deployed public driver-out routes across multiple sites in the United States. May Mobility currently operates commercially in three U.S. locations, with Lyft in Atlanta and autonomous ride services in Eden Prairie and Grand Rapids, Minnesota, and is targeting to launch commercial operations with Uber in Arlington, Texas, in Q4 2026 or Q1 2027. Additionally, a six-month on-demand AV pilot with NTT Mobility in Nagoya, Japan, launched in September, with additional deployments expected to be announced later this year.
Leading Customers and Partners
May Mobility has created a robust partnership ecosystem in line with its Autonomy-as-a-Service strategy, spanning vehicle manufacturers, ride-hail and fleet owners and operators, including the following:
| ● | Toyota Motor Corporation is May Mobility’s primary OEM partner, providing autonomy-ready vehicle platforms—the Sienna and the e-Palette. |
| ● | Uber and Lyft have each entered multi-year, multi-city partnerships with May Mobility to deploy autonomous fleets in the United States on their respective ride-hail platforms. |
| ● | Grab, Southeast Asia’s leading superapp, has committed to a multi-year strategic partnership including investment, technology collaboration and commercial expansion into Southeast Asia. |
| ● | NTT, a global telecommunications and technology leader, led May Mobility’s Series D and E financing rounds. As part of that investment, May Mobility licensed its technology to NTT as the exclusive operator of May Mobility-powered fleets in Japan. |
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| ● | ECARX is May Mobility’s hardware integration and engineering partner, enabling significant bill-of-materials reductions and mass production. |
| ● | CaoCao, a global ride-hail platform, is partnering with May Mobility to launch AVs in Europe and other international markets. May Mobility will provide the technology, and CaoCao will own and operate the May Mobility-powered autonomous fleets. |
May Mobility believes that its partnerships help validate its technology and reduce execution risk.
Asset-Light at Scale
May Mobility’s transition to an Autonomy-as-a-Service model differentiates it from conventional autonomous ride-hail companies. This asset-light model offers ride-hail platforms a proven autonomous technology architecture that navigates diverse driving environments safely and is built to scale efficiently. Fleet operating partners will assume full responsibility for vehicle ownership, depot operations and maintenance costs; May Mobility will deliver the autonomy. May Mobility believes this proprietary approach can reduce capital requirements, expand margins, align with the economics of fleet operators and enable rapid scaling across markets by allowing experienced fleet operators to manage operational complexity. May Mobility receives either fixed fees or per-trip licensing fees from ride-hail partners, with target longer-term gross margins of up to 70%, with target EBIT margins of as much as 30%, a profile more typical of software-as-a-service (SaaS) companies than traditional mobility operators.
Physical AI: Technology That Reasons Through the Real World
Human drivers do not need to experience millions of miles of roads to drive safely. The brain instantly builds a mental model of the world and then reasons through it, and May Mobility’s autonomous driving system (ADS), a form of physical AI, works the same way. Its multi-policy reasoning architecture is a distinct point of differentiation from conventional autonomy stacks that rely on modular or pure end-to-end models. May Mobility’s ADS uses a world model to understand the vehicle’s environment through a distillation of physics, rules of the road and driving culture. The world model runs on-vehicle simulations of up to thousands of possible futures every second, without the need for massive training datasets. May Mobility’s system then evaluates the outcomes of multiple deep-learned and reasoning-based strategies that compete to control the vehicle, rejecting any action that fails to meet safety parameters. Each decision is earned and follows an explicit, scored policy, unlike competitors’ end-to-end approaches, which may not provide any decision-making traceability. As a result, behaviors in the May Mobility system are auditable, a critical property in demonstrating AV safety over the long term. The same reasoning-based approach is designed to enable May Mobility to deploy in new cities without the millions of miles of training data conventional AV systems have required, lowering time to market and capital intensity.
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“We started May Mobility because getting around a city shouldn’t cost people their time, their safety or their freedom. Becoming a public company is how we bring that within reach for more people, faster,” said Dr. Edwin Olson, CEO and founder of May Mobility. “By partnering with the best companies in the world, we can give people a smarter way to move through their cities, at a scale none of us could reach alone.”
Andrew Mallozzi, Chairman & CEO of ACP Holdings and Founder of Atlas Credit Partners said, “Our conviction in May Mobility is grounded in the extensive fundamental and operational work our team has done with the company and in what we believe is a differentiated and capital-efficient approach to autonomous mobility. May Mobility has demonstrated meaningful commercial traction, validation of technology and a robust ecosystem of strategic partners, including Uber, Lyft, Grab and CaoCao. We are pleased to support the company’s next phase of growth through this transaction and the fully committed PIPE secured in connection with the business combination.”
Historical Financials
May Mobility generated approximately $10 million in revenue in 2025 with a 27% gross margin, reflecting early commercialization of its ride-hail partnerships. Despite expansion into new markets and the development of frontier autonomous technology, May Mobility’s cash burn in 2025 totaled approximately $93 million, reflecting a disciplined cost structure and capital allocation relative to its peers—as well as benefits accruing from its partnership model. Since inception in 2017, May Mobility has raised approximately $445 million from leading venture investors, strategic corporate partners and financial investors, each validating the company’s technology and market opportunity.
Transaction Details
The transaction values the combined company at an implied pro forma enterprise value of approximately $1.4 billion. The combined company is expected to receive up to $337 million in gross proceeds, comprising:
| ● | Up to $217 million from ACP Holdings’ trust account, subject to redemptions by ACP Holdings’ public shareholders; and |
| ● | A fully committed PIPE of $120 million with institutional and strategic investors, including an affiliate of Atlas Credit Partners co-anchoring the PIPE. |
The boards of directors of both May Mobility and ACP Holdings have each unanimously approved the proposed business combination. The closing of the business combination is expected to occur by year-end, subject to the satisfaction of customary closing conditions, including the approval of shareholders of each of May Mobility and ACP Holdings, and the approval of the listing of the combined company’s shares on Nasdaq.
The gross proceeds are expected to be used for additional R&D and industrialization investments to extend May Mobility’s driver-out operational domain, supply chain investments to reduce bill-of-materials costs, new deployments in the United States and globally to accelerate growth, and general working capital.
Investor Presentation Discussion
The management teams of May Mobility and ACP Holdings will publish an investor presentation discussing the proposed transaction at 8:30 a.m. ET on September 16, 2026. Interested investors may access the presentation by visiting maymobility.com/investors. Presentation materials will be filed with the U.S. Securities and Exchange Commission (the “SEC”).
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Transaction Advisors
Cantor Fitzgerald & Co. is serving as exclusive financial advisor and lead capital markets advisor to ACP Holdings in connection with the transaction, and as lead PIPE placement agent. O’Melveny & Myers LLP is serving as Cantor Fitzgerald’s legal counsel. DLA Piper LLP (US) is serving as legal advisor to ACP Holdings. Latham & Watkins LLP is serving as legal counsel to May Mobility.
About May Mobility
May Mobility develops autonomous vehicle technology for commercial ride-hail services. Its patented physical AI system runs entirely on-vehicle, integrating deep learning, a dynamic world model and a real-time reasoning engine to navigate through new and complex situations on the road. In partnership with Toyota Motor Corporation, NTT, Lyft, Uber and Grab, May Mobility delivers Autonomy-as-a-Service (AaaS) at commercial scale and has completed more than half a million commercial autonomous rides across deployments in the U.S. and Japan. For more information, visit maymobility.com.
About ACP Holdings Acquisition Corp.
ACP Holdings Acquisition Corp. is a special purpose acquisition company affiliated with Atlas Credit Partners, formed for the purpose of effecting a merger, amalgamation, share exchange, asset acquisition, share purchase, reorganization or similar business combination.
Investor Contact
Shadee Sclar
Media Contact
Karsten Kutterer
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Forward-Looking Statements
This press release includes “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, as amended. All statements contained in this press release that do not relate to matters of historical fact, including statements about May Mobility’s and ACP Holdings’ beliefs, plans, and expectations, should be considered forward-looking. These forward-looking statements generally are identified by words such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “should,” “strive,” “would,” “strategy,” “outlook,” the negative of these words or other similar expressions, but the absence of these words does not mean that a statement is not forward-looking. These forward-looking statements include but are not limited to statements regarding May Mobility’s future results of operations and financial condition, business strategy, AV technology, systems, research and development costs, regulatory approvals, potential market opportunity, anticipated trends in May Mobility’s business, timing and likelihood of success, as well as plans and objectives of management for future operations, the successful consummation and potential benefits of the proposed transaction and expectations related to its terms and timing; and the potential for May Mobility to increase in value.
These forward-looking statements are based on information available as of the date of this press release and current expectations, forecasts and assumptions, and involve a number of judgments, risks and uncertainties. Accordingly, forward-looking statements should not be relied upon as representing May Mobility’s or ACP Holdings’ views as of any subsequent date, and May Mobility and ACP Holdings do not undertake any obligation to update forward-looking statements to reflect events or circumstances after the date they were made, whether as a result of new information, future events, or otherwise, except as may be required under applicable securities laws.
These forward-looking statements involve significant risks and uncertainties that could cause the actual results to differ materially from the expected results. Most of these factors are outside ACP Holdings’ and May Mobility’s control and are difficult to predict. Factors that may cause such differences include, but are not limited to: the risk that the benefits of the proposed business combination may not be realized; the risk that the proposed business combination may not be completed in a timely manner or at all, which may adversely affect the price of ACP Holdings’ securities; the amount of redemption requests made by ACP Holdings public shareholders and the failure to satisfy the conditions to the consummation of the proposed business combination, including the failure of ACP Holdings’ shareholders to approve and adopt the proposed business combination; risks related to the scaling of May Mobility’s business and the timing of expected business milestones; the ability to meet stock exchange listing standards following the consummation of the proposed business combination; the occurrence of any event, change or other circumstance that could give rise to the termination of the business combination agreement; the outcome of any legal proceedings that may be initiated following announcement of the proposed business combination; the combined company’s continued listing on Nasdaq; the risk that the proposed transaction disrupts current plans and operations of May Mobility as a result of the announcement and consummation of the proposed business combination; the ability to recognize the anticipated benefits of the transaction, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth profitably, maintain relationships with customers and suppliers and retain its management and key employees; costs related to the proposed business combination; risks associated with changes in applicable laws or regulations applicable to May Mobility’s solutions and services and May Mobility’s international operations; the possibility that the combined company may be adversely affected by other economic, geopolitical, business, and/or competitive factors; the ability of May Mobility or the combined company to raise capital in the future; and other risks and uncertainties that will be detailed in the Proxy Statement/Prospectus (as defined below) and as indicated from time to time in ACP Holdings’ filings with the SEC. These filings identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements.
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ACP Holdings and May Mobility caution that the foregoing list of factors is not exclusive. ACP Holdings and May Mobility caution readers not to place undue reliance upon any forward-looking statements, which speak only as of the date made. Forward-looking statements are not guarantees of future performance. Neither May Mobility nor ACP Holdings gives any assurance that either May Mobility or ACP Holdings will achieve its expectations. The inclusion of any statement in this press release does not constitute an admission by May Mobility or ACP Holdings or any other person that the events or circumstances described in such statement are material.
Additional Information and Where to Find It
In connection with the proposed transaction between ACP Holdings and May Mobility, ACP Holdings and May Mobility intend to file with the SEC, as co-registrants, a registration statement on Form S-4 (the “Registration Statement”), which will include a preliminary proxy statement of ACP Holdings and a preliminary prospectus relating to the securities to be issued in connection with the proposed transaction (the “Proxy Statement/Prospectus”). After the Registration Statement is declared effective, ACP Holdings plans to mail a definitive proxy statement/prospectus to all ACP Holdings and May Mobility shareholders as of a record date to be established for voting on the proposed transaction. ACP Holdings will also file other documents regarding the proposed transaction with the SEC. This press release is not a substitute for the Registration Statement, the Proxy Statement/Prospectus or any other document that May Mobility or ACP Holdings may file with the SEC or send to ACP Holdings’ shareholders in connection with the proposed transaction.
This press release does not contain all of the information that should be considered concerning the proposed transaction and is not intended to form the basis of any investment decision or any other decision in respect of the transaction. Before making any voting or investment decision, investors and securityholders of ACP Holdings and May Mobility are urged to read the Registration Statement, the Proxy Statement/Prospectus and all other relevant documents filed or to be filed with the SEC in connection with the proposed transaction carefully when they become available because they will contain important information about May Mobility, ACP Holdings, the proposed transaction and related matters. Investors and securityholders will be able to obtain free copies of the Registration Statement and the Proxy Statement/Prospectus and all other relevant documents filed with the SEC by May Mobility and ACP Holdings through the website maintained by the SEC at www.sec.gov. In addition, the documents filed by ACP Holdings may be obtained by written request to ACP Holdings at ACP Holdings Acquisition Corp., 3131 Eastside Street, Houston, Texas 77098, and the documents filed by May Mobility may be obtained by written request to May Mobility at 650 Avis Drive, Suite 100, Ann Arbor, Michigan 48108.
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Participants in the Solicitation
ACP Holdings, May Mobility and certain of their respective directors, executive officers, and employees may be deemed to be participants in the solicitation of proxies from ACP Holdings’ shareholders in connection with the proposed transaction. Information about ACP Holdings’ directors and executive officers and their ownership of ACP Holdings’ securities is set forth in ACP Holdings’ filings with the SEC. A list of the names of May Mobility’s directors and executive officers and information regarding their interests in the proposed transaction will be included in the Proxy Statement/Prospectus when it becomes available. Additional information regarding the interests of those persons and other persons who may be deemed participants in the proposed transaction may be obtained by reading the Proxy Statement/Prospectus regarding the proposed transaction when available. Investors and securityholders should read the Proxy Statement/Prospectus carefully when it becomes available before making any voting or investment decisions. You may obtain free copies of these documents as described above.
No Offer or Solicitation
This press release shall not constitute a solicitation of any proxy, vote, consent or approval in any jurisdiction in connection with the proposed transaction and shall not constitute an offer to sell or a solicitation of an offer to buy the securities of ACP Holdings, May Mobility or the combined company resulting from the proposed transaction, nor shall there be any sale of any such securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act of 1933, as amended. Distribution of this press release is restricted by law; it is not intended for distribution to, or use by any person in, any jurisdiction in where such distribution or use would be contrary to local law or regulation.
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Exhibit 99.2
Investor Presentation PROPRIETARY & CONFIDENTIAL September 2026
Notice to Recipient Strictly Confidential Disclaimer This presentation (this “Presentation”) has been prepared solely for the purpose of furnishing information on a confidential basis to interested parties to assist them in making their own evaluation with respect to a potential private placement of securities of ACP Holdings Acquisition Corp. (“ACP”) in connection with the contemplated business combination (the “Transaction”) between ACP and May Mobility, Inc. (the “Company” or “May Mobility”) and is being delivered to you on behalf of ACP and the Company by Cantor Fitzgerald & Co. (“Cantor”), as financial advisor and lead placement agent in connection with the Transaction. This information is strictly confidential and proprietary, and its disclosure to an unauthorized recipient could cause significant harm to the Company. By accepting this Presentation, you and your affiliates agree to maintain this information in the strictest confidence and to protect and safeguard this Presentation against any unauthorized publication or disclosure. Without the express prior written consent of the Company, this Presentation and any information contained within it may not be (i) reproduced (in whole or in part), (ii) copied at any time, (iii) used for any purpose other than your evaluation of the Company and the Transaction or (iv) provided to any person except your employees and advisors with a need to know who are advised of the confidentiality of the information, except to the extent required by law. You acknowledge that you are (a) aware that the United States securities laws prohibit any person who has material non - public information concerning a company from purchasing or selling securities of such company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and (b) familiar with the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”), and that you will neither use, nor cause any third party to use, this Presentation or any information contained herein in contravention of the Exchange Act, including, without limitation, Rule 10b - 5 thereunder. You also acknowledge and agree that this Presentation may contain material non - public information concerning the Company. By accepting this Presentation and the information contained herein, you and your institution expressly agree to use this Presentation and the information contained herein in accordance with your compliance policies, contractual obligations and applicable laws, including United States federal and state securities laws and comply with the confidentiality obligations and other requirements set forth herein. This Presentation supersedes and replaces all previous oral and written communications between the parties hereto relating to the subject matter hereof. This Presentation and any oral statements made in connection with this Presentation shall not constitute an offer to sell or a solicitation of an offer to buy securities or an invitation or inducement to engage in investment activity, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification of such securities under the securities law of any such jurisdiction . Any securities to be offered by the Company in connection with the Transaction to which this Presentation relates have not been registered under the Securities Act of 1933 , as amended (the “Securities Act”) or applicable state or foreign securities laws . Any offer of securities, if made, may be made only through definitive offering documents, including, but not limited to a subscription agreement . The information contained herein is qualified in its entirety by reference to the definitive offering documents . This Presentation relates to securities that the Company intends to offer in reliance on exemptions from the registration requirements of the Securities Act and other applicable laws . These exemptions apply to offers and sales of securities that do not involve a public offering . The securities have not been approved or recommended by any federal, state or foreign securities authorities, nor have any of these authorities passed upon the merits of the potential offering or determined that this Presentation is accurate or complete . Any representation to the contrary is a criminal offense . No Representations and Warranties This Presentation is for informational purposes only . The recipient agrees and acknowledges that this Presentation is for informational purposes and is not intended to form the basis of any investment decision by the recipient and does not constitute financial investment, tax or legal advice . No representation or warranty, express or implied, is or will be given by May Mobility, Cantor or any of their respective affiliates, directors, officers, employees or advisers or any other person as to the accuracy or completeness of the information (including as to the accuracy, completeness or reasonableness of statements, estimates, targets, projections, assumptions or judgments) in this Presentation or in any other written, oral or other communications transmitted or otherwise made available to any party and no responsibility or liability whatsoever (including any direct, indirect or consequential loss or loss of profit) is accepted for the accuracy or sufficiency thereof or for any errors, omissions or misstatements, negligent or otherwise, relating thereto . The recipient also acknowledges and agrees that the information contained in this Presentation is subject to change, and any such changes may be material . May Mobility and Cantor disclaim any duty to update the information contained in this Presentation . Forward - Looking Statements This Presentation contains forward - looking statements . All statements other than statements of historical facts contained in this Presentation, including statements regarding May Mobility’s future results of operations and financial condition, business strategy, AV technology, systems, research and development costs, regulatory approvals, potential market opportunity, anticipated trends in May Mobility’s business, timing and likelihood of success, as well as plans and objectives of management for future operations, are forward - looking statements . These statements involve known and unknown risks, uncertainties, and other important factors that are in some cases beyond May Mobility’s control and may cause May Mobility’s actual results, performance, or achievements to be materially different from any future results, performance, or achievements expressed or implied by the forward - looking statements . The words “anticipate,” “believe,” “contemplate,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “should,” “target,” “will,” “future,” “opportunity” or “would,” or the negative of these terms or other similar expressions, are intended to identify forward - looking statements . These forward - looking statements are subject to a number of risks, uncertainties, and assumptions . Moreover, May Mobility operates in a competitive and rapidly changing environment . New risks emerge from time to time . It is not possible for May Mobility’s management to predict all risks, nor can May Mobility assess the impact of all factors on its business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward - looking statements it may make . In light of these risks, uncertainties, and assumptions, the forward - looking events and circumstances discussed in this Presentation may not occur, and actual results could differ materially and adversely from those anticipated or implied in the forward - looking statements . You should not rely upon forward - looking statements as predictions of future events . Although May Mobility believes that the expectations reflected in the forward - looking statements are reasonable, it cannot guarantee that the future results, advancements, discoveries, levels of activity, performance, or events and circumstances reflected in the forward - looking statements will be achieved or occur . In addition, statements that “May Mobility believes” and similar statements reflect its belief and opinion on the relevant subject . These statements are based upon information available to May Mobility as of the date of this Presentation, and while it believes such information forms a reasonable basis for such statements, such information may be limited or incomplete, and its statements should not be read to indicate that it has conducted an exhaustive inquiry into, or review of, all potentially available relevant information . MAY MOBILITY PROPRIETARY & CONFIDENTIAL 2
Notice to Recipient Strictly Confidential These statements are inherently uncertain, and you are cautioned not to unduly rely upon these statements. May Mobility qualifies all of the forward - looking statements in this Presentation by these cautionary statements. These forward - looking statements speak only as of the date of this Presentation. Except as required by applicable law, May Mobility does not plan to publicly update or revise any forward - looking statements contained in this Presentation, whether as a result of any new information, future events, or otherwise. Use of Projections This Presentation contains projected financial information with respect to May Mobility . Such projected financial information constitutes forward - looking information, and is for illustrative purposes only and should not be relied upon as necessarily being indicative of future results . Further, illustrative presentations are not necessarily based on management's projections, estimates, expectations, or targets but are presented for illustrative purposes only . May Mobility's independent auditors have not audited, reviewed, compiled or performed any procedures with respect to the projections for the purpose of their inclusion in this Presentation, and accordingly, they did not express an opinion or provide any other form of assurance with respect thereto for the purpose of this Presentation . The assumptions and estimates underlying such financial forecast information are inherently uncertain and are subject to a wide variety of significant business, economic, competitive and other risks and uncertainties . See "Forward - Looking Statements" above . Actual results may differ materially from the results contemplated by the financial forecast information contained in this Presentation, and the inclusion of such information in this Presentation is not intended, and should not be regarded, as a representation by any person that the results reflected in such forecasts will be achieved . Further, the metrics referenced in this Presentation regarding select aspects of May Mobility's operations were selected by May Mobility on a subjective basis . Such metrics are provided solely for illustrative purposes to demonstrate elements of May Mobility's business, are incomplete, and are not necessarily indicative of May Mobility's historical or future performance or overall operations . The historical trends shown in these metrics may not continue or otherwise be indicative of May Mobility's future results of operations . Industry, Market Data and Partnerships In this Presentation, May Mobility relies on and refers to certain information and statistics regarding the markets and industries in which May Mobility competes . Such information and statistics are based on management’s estimates and/or obtained from third - party sources, including reports by market research firms and company filings . While May Mobility believes such third - party information is reliable, there can be no assurance as to the accuracy or completeness of the indicated information . May Mobility has not independently verified the accuracy or completeness of the information provided by the third - party sources . This Presentation contains descriptions of certain key business partnerships with May Mobility . These descriptions are based on the May Mobility management team’s discussion with such counterparties, certain written agreements, including non - binding agreements, and the latest available information and estimates as of the date of this Presentation . These descriptions are subject to negotiation and execution of definitive agreements with certain of such counterparties which have not been completed as of the date of this Presentation . Trademarks This Presentation may contain trademarks, service marks, trade names and copyrights of other companies, which are the property of their respective owners, and May Mobility’s use thereof does not imply an affiliation with, or endorsement by, the owners of such trademarks, service marks, trade names and copyrights . Solely for convenience, some of the trademarks, service marks, trade names and copyrights referred to in this Presentation may be listed without the TM, © or ® symbols, but May Mobility and its affiliates will assert, to the fullest extent under applicable law, the rights of the applicable owners, if any, to these trademarks, service marks, trade names and copyrights . Additional Information You are urged to request any additional information you may consider necessary or desirable in making an informed investment decision . None of Cantor or any of its affiliates is acting as a financial advisor, placement agent, arranger or in any other advisory capacity to you with respect to the Transaction or owes such recipient any duty of loyalty or care (whether in contract, in tort or otherwise) with respect to this Presentation or the Transaction (and Cantor, on behalf of itself and its affiliates, expressly disclaims any such advisory, fiduciary or similar relationship) . You (and your representatives, if any) are invited, prior to the entry into any definitive documentation with respect to the Transaction, to ask questions of, and receive answers from, the Company concerning the Transaction and to obtain additional information regarding the Transaction, to the extent the same can be acquired without unreasonable effort or expense, in order to verify the accuracy of the information contained herein . If you decide not to participate in the Transaction, or if the Company requests at any time, you will promptly return to the Company all materials furnished to you in connection with the Transaction, including this Presentation, without retaining any copies thereof (except copies retained for bona fide legal or compliance purposes) . MAY MOBILITY PROPRIETARY & CONFIDENTIAL 3
Notice to Recipient Strictly Confidential If the Transaction is pursued, May Mobility and ACP intend to file a registration statement (which will include a proxy statement/prospectus of ACP) and other relevant documents with the Securities and Exchange Commission (the “SEC”), to be used at the meeting of shareholders to approve the Transaction and as the prospectus related to the offer of the securities to be issued by the combined company in connection with the Transaction and, after the registration statement is declared effective, ACP will mail a definitive proxy statement/prospectus relating to the Transaction to its shareholders. Shareholders and other interested persons are urged to read the proxy statement/prospectus and any other relevant documents filed with the SEC in their entirety when they become available because they will contain important information about May Mobility, ACP and the Transaction. Such registration statement may modify and supersede in its entirety any information in this Presentation, which is preliminary.Shareholders will be able to obtain a free copy of the proxy statement/prospectus (when filed), as well as other filings containing information about May Mobility, ACP and the Transaction at the SEC’s website located at www.sec.gov . There can be no assurance that the Transaction will be completed, or completed on the terms described in this Presentation. Participants in the Solicitation ACP, May Mobility and their respective directors and executive officers may be deemed to be participants in the solicitation of proxies from ACP’s shareholders in connection with the Transaction . Information about ACP’s directors and executive officers and their ownership of ACP’s securities is set forth in ACP’s filings with the SEC, and information about May Mobility’s directors and executive officers will be set forth in the registration statement . To the extent that holdings of ACP’s securities by ACP’s directors and executive officers have changed since the amounts printed in the prospectus for ACP’s initial public offering, such changes have been or will be reflected on Statements of Change in Ownership on Form 4 filed with the SEC . Additional information regarding the interests of those persons and other persons who may be deemed participants in the Transaction may be obtained by reading the registration statement, including the preliminary and definitive proxy statement/prospectus regarding the Transaction, when it becomes available . These documents can be obtained free of charge from the sources indicated above . Financial Information ; Non - GAAP Measures The financial information and data contained in this Presentation is unaudited and does not conform to Regulation S - X promulgated under the Securities Act. Accordingly, such information and data may not be included in, may be adjusted in, or may be presented differently in, any proxy statement, registration statement or prospectus to be filed by ACP or May Mobility with the SEC. Certain of the financial information and data contained in this Presentation has not been prepared in accordance with United States generally accepted accounting principles (“GAAP”). May Mobility and ACP believe these non - GAAP measures provide useful information to management and investors regarding certain financial and business trends relating to May Mobility’s financial condition and results of operations, and provide an additional tool for investors to use in evaluating projected operating results and trends and in comparing May Mobility’s financial measures with those of other similar companies, although other companies may calculate similarly titled measures differently. You should not consider these non - GAAP measures in isolation or as an alternative to financial measures determined in accordance with GAAP. The principal limitation of these non - GAAP financial measures is that they exclude significant expenses and income that are required by GAAP to be recorded in May Mobility’s financial statements, and they are subject to inherent limitations as they reflect the exercise of judgments by management about which expense and income are excluded or included in determining these non - GAAP financial measures. You should review May Mobility’s audited financial statements, which will be included in the definitive proxy statement/prospectus relating to the Transaction. MAY MOBILITY PROPRIETARY & CONFIDENTIAL 4
PROPRIETARY & CONFIDENTIAL Today’s Presenters Edwin Olson CEO & FOUNDER PhD, EECS · Professor, C.S. / AI at the University of Michigan · 20+ years AV / robotics experience Tom Fennimore CHIEF FINANCIAL OFFICER 20+ years financial leadership across public markets, investment banking, and AV operations Sid Venkatesan CHIEF STRATEGY OFFICER & GENERAL COUNSEL 20+ years legal and operational leadership across public - company governance and AV deployment Andrew Mallozzi CHAIRMAN & CEO 20+ years of direct investing experience across public and private opportunities / Founder & Managing Partner of Atlas Credit Partners
PROPRIETARY & CONFIDENTIAL Atlas Credit Partners A proven track record of partnering with businesses to provide capital solutions & operational support, resulting in > $50B in value creation ACP is a Houston, TX based investment manager and sponsor, founded by Andrew Mallozzi in 2019 ● $1.25B+ deployed across alternative private capital solutions through active investing and direct origination ● Over $50B of market value created ; ACP seeks to invest at the intersection of growth & value, a key driver of capital appreciation and firm track record ● Specialists in structured growth & transitional situations with an operational lens and return of capital focus ● ACP Holdings Acquisition Corp. (ACGC) completed its $200M+ IPO in April 2026 to leverage ACP’s robust late - stage private company pipeline, with May Mobility identified as a top opportunity post - IPO May thesis echoes previous ACP success stories Technology Validation Commercialization & Strategic Integration Strategic partnerships validate differentiated technology; Toyota and ECARX provide AV at competitive cost; customer acquisition leveraged through Uber, Lyft, Grab and CaoCao Robust Market / TAM $1T+ Opportunity Drivers take ~70% of every fare, a >$1T 1 pool that autonomy providers aim to capture Proven Management AV Operators & Capital Allocators Management team has significant AV leadership (incl. MIT, Ford, UMich); team brings depth of experience from Toyota, Google, Cruise & Embark Scale / Unit Economics Capital - Light & Cost Reductions Fleet partners own and operate the AVs, creating operating leverage as the fleet scales; decreasing BOM to further incentivize adoption Note: All stats as of December 31, 2025, unless otherwise noted. 1. Bank of America – “The Road Ahead: The Future of Autonomous Vehicles (September 2025). 6
PROPRIETARY & CONFIDENTIAL Market Overview May is targeting the first commercially scaling AV market 700,000+ fully autonomous rides are now completed per week globally, with the U.S. alone accounting for 450,000+ weekly commercial rides 7 The global robotaxi market is projected to reach ~$415B by 2035 with the U.S. alone accounting for ~$48B The U.S. commercial AV fleet is forecasted to grow from ~4,000 vehicles today to ~35,000 by 2030, capturing ~8% of the rideshare market - up from less than 1% today Leading operators are targeting 15 - 20+ cities globally by end of 2026 with the global fleet expected to surge from ~7,000 vehicles last year to ~1 million by 2030 and ~6 million by 2035 Sources: Goldman Sachs Research (Oct 2024, Apr 2025), McKinsey Center for Future Mobility (Jan 2026), BCG AV Market Model (January 2026). 1. Values for 2025 - 2030 estimated from base - case curves; Representative of United States, Europe, and China only.
PROPRIETARY & CONFIDENTIAL May Mobility: A Snapshot ● Proven autonomous ride - hail leader 550K+ commercial rides across the U.S. and Japan 2 ● Proprietary AI technology - Patented multi - policy reasoning, enabling a leaner, more generalizable autonomy stack ● Asset - light at scale - Transitioning to an autonomy software licensing model where fleet ownership shifts to operating partners Validated by the Benchmark Leading Customers & Partners Customers Multi - city, multi - year partnership; Arlington, TX deployment targeting Q4 2026/Q1 2027 Multi - city, multi - year partnership; commercial deployment launched Atlanta, late 2025 Extends May's ride - hail distribution into Southeast Asia Supports May's commercial deployment in Japan Multi - city, multi - year partnership in Europe Platform Partners Primary OEM partner for autonomy - ready platforms and fleet financing Supply chain and engineering partner targeting significant vehicle cost reduction Attacking a Massive TAM Long - Term U.S. TAM >$1T BofA: AV ride - hail is a trillion dollar opportunity 3 U.S. RIDE - HAIL BOOKINGS SERVED TODAY 0.5% Waymo's est. ~$350M in annualized revenue represents less than 0.5% of annual bookings 4 Differentiated Approach to Autonomous Driving Multi - Policy 1 Reasoning 1. Multi - Policy Reasoning also known as Multi - Policy Decision Making. 2. As of May 2026. 3 Bank of America – “The Road Ahead: The Future of Autonomous Vehicles (September 2025). 4 Bloomberg - “Waymo Raises $16 Billion From Alphabet and Others to Expand” (February 2026).
PROPRIETARY & CONFIDENTIAL May Mobility is one of a limited few to have achieved multiple Driver - Out Deployments, at a fraction of the cost of Waymo May’s ability to generalize across new ODDs enables fast, cost - effective driver out deployments Ability to achieve driver - out in 12 to 18 months for each new deployment AV capabilities supplemented by Remote - assist Agents , which support safety remotely Targeting 4th driver - out deployment by late 2026/early 2027 Note: All stats as of November 30, 2025, unless otherwise noted. 1. Headcount based on disclosures across Waymo’s website as of January 27th, 2026. 2. Represents total raised between 2020 and October 2024 (month during which Waymo achieved its third driver - out deployment). Represents publicly announced external funding rounds. Funding amount shown does not consider internal funding from Alphabet prior to 2020 or any unannounced sources of capital. https://waymo.com/blog/2024/10/investing - to - bring - the - waymo - driver - to - more - riders/ https://waymo.com/blog/2020/03/waymo - raises - first - external - investment - round https://waymo.com/blog/2021/06/transforming - mobility - with - confidence - of - world - class - investors May Accelerating Momentum Across Driver - Out Launches (vs. Deployed Capital) 2009 2015 2025 2020 Driver - out demo First driver - out deployment Second driver - out deployment Third driver - out deployment ~$0.05B ~$0.2B ~$0.3B 280 Employees $11.3B+ Incl. public rounds only 2 ~3,200 Employees Waymo 1
PROPRIETARY & CONFIDENTIAL Market Opportunity The May Solution Predictions are carefully assessed in real - time by Multi - Policy Reasoning – May’s proprietary reasoning model Possible Futures Multi - Policy Reasoning (Reinforcement Learning) AI World Model Prediction 1 Reward Function Good Policy Learning AI World Model Prediction 2 Good AI World Model Prediction 3 Accident Simulates outcomes Thousands of times Traceability/Audit Traceability/Audit Best Policy 10
PROPRIETARY & CONFIDENTIAL Market Opportunity Why is Autonomous Hard to Solve Today? The Challenge of Autonomy Edge cases are infinite Pedestrians, weather, construction, atypical behavior Safety requires the unseen Vehicles must handle scenarios absent from training data Brittle ML stacks Perception → prediction → planning breaks at the long tail Punishing unit economics Fleet capex, supervisory ops cost, city - by - city regulatory friction Conventional AV Models May AI World Model + Reasoning Heavy and compute - intensive MODEL SIZE Lean and performance optimized Billions of miles TRAINING DATASET Thousands of miles, trained on 3D physical sensor data Performance limited by experience NOVEL SITUATION PERFORMANCE Deployable to new geographies without having to retrain Learning occurs in data centers MAY’S TECHNOLOGY ADVANTAGE Reasoning happens at the edge 11
PROPRIETARY & CONFIDENTIAL May Mobility: Competitive Differentiators in the U.S. ~3800 11 5M+ Waymo U.S. SITES, INTL. TESTING ~100 3 550K+ May Mobility U.S. + JAPAN <100 1 0 Zoox LAS VEGAS, SF PRIVATE ~60 6 N/A Tesla (Robotaxi) AUS, DAL, HOU, MIA, ORL, TAMPA ~100 1 ~130K Motional LAS VEGAS ~200 1 N/A Avride DALLAS ~100 0 0 Nuro TESTING N/A 0 0 Wayve TESTING N/A 0 0 Waabi TESTING LAUNCHED DRIVER - OUT COMMERCIAL RIDES ACTIVE REVENUE - GENERATING SITES FLEET SIZE Sources: Company websites & social feeds, press releases and third - party websites: Motional , Nuro , Tesla , Zoox , Zoox , AVride , Waymo . Wayve , Waabi , Pony AI , WeRide . Note: All stats as of May 28, 2026, unless otherwise noted. Waymo co - CEO Dolgov, Cheeky Pint podcast (Mar 24 2026). 12
PROPRIETARY & CONFIDENTIAL May Mobility: Commercialization Timeline PHASE 1 PHASE 2 PHASE 3 R&D Prototypes Driver - in / Data Collection 1 - 10 Units High Unit Cost Serialized Upfit Driver - Out Certified 10s - 100s Units / Moderate Unit Cost Mass Production Driver - Out Certified 1k - 100k Units / Low Unit Cost WE ARE HERE Early Development (2017 - 2019) Proof of Concept (2020 - 2021) Commercialization & Scale (2022 - 2025) May Mobility Founding Toyota Partnership 1st Site Launch: Detroit Via Partnership 1st Japan Intl. Site Launch Lexus AV Service Launch: Arlington, TX 1st Toyota Sienna Deployment 1st Driver - Out Launch: Sun City, AZ 3rd Driver - Out Launch: Peachtree Corners, GA NTT Partnership 2nd Driver - Out Launch: Ann Arbor, MI 13 Lyft Launch Atlanta, GA
PROPRIETARY & CONFIDENTIAL May Mobility: The Basics Next Generation of May: Expected To Be Unveiled 2H 2026 ● Sensors & compute costs decline rapidly at scale ● OEM integration eliminates costly post - production upfitting ● Volume agreements unlock supply chain pricing ● Asset - light at scale via third - party fleet operators Toyota Sienna Autono - MaaS Platform: No custom sensors & no custom silicon Back/side - facing Radar (x2) Remote monitoring (Cellular/5G) Primary LIDAR Camera (x3) Radar (x2) On - Vehicle Traffic Light Detection (OVTL) Camera Secondary LIDAR Back - facing camera Secondary LIDAR Side - facing camera Forward LIDAR Forward camera Forward - facing Radar behind bumper 14 (1) As of December 31, 2025.
PROPRIETARY & CONFIDENTIAL May is positioned to grow nationally Despite differing requirements, regulatory landscape across most U.S. states is constructive for AV deployment. 1 Proposed legislation for AV operations or testing Full AV deployment without operator AV testing No pending regulation Active Deployments 2 15 (1) As of May 20, 2026. (2) May had active deployments in Peachtree Corners, Eden Prairie, Grand Rapids, and Atlanta as of May 29, 2026.
PROPRIETARY & CONFIDENTIAL (1) ADK Engineering & Uplift Sensor install, calibration, validation INTEGRATOR Third - party integrator manages sensor installation, calibration, and validation using off - the - shelf components, enabling a flexible and cost - efficient hardware stack Vehicle Manufacturing Autonomy - ready platforms at scale OEM Strategic OEM partnership provides autonomy - ready vehicle platforms at scale, with integrated financing solutions to support an asset - light fleet model May Mobility: A Partnership Approach Autonomy Provider Asset - light, partner - enabled PATENTS ~ 2,500 Issued, pending and licensed patent claims 1 Commercial Channels Ride - hail demand & dispatch, market access Fleet Ownership & Operations Capital, depots, day - to - day fleet ops DEMAND CHANNEL Partnerships with leading ride - hail networks provide immediate access to existing rider demand, dispatch infrastructure, and market reach across the U.S. and Southeast Asia OPERATOR Established fleet operators own and manage vehicle depots and day - to - day operations, allowing May to transition to a capital - light, software - centric revenue model 16 As of December 31, 2025.
PROPRIETARY & CONFIDENTIAL Commercial Ride - Hail Partnerships Targeting launch Q4 2026/Q1 2027 in Arlington, TX ● Arlington: May’s largest AV service zone upon expected launch ● Additional cities & vehicles planned ● Uber provides an estimated 38 million trips 1 per day globally Launched in September 2025 in Atlanta, GA ● Riders love the service with a 4.85 2 Lyft rating to date ● ~23,700 3 pick - up/drop - off points across Atlanta ● Additional cities expected to follow Atlanta “At Uber, we’re building the future of transportation, working with the world’s leading autonomous vehicle developers like May Mobility to help commercialize and deploy this technology quickly at scale around the world.” Dara Khosrowshahi CEO UBER “We're bringing the future of transportation with May Mobility to Atlanta… with the same safety and community focus that defines Lyft, and the proven technology from May Mobility.” Jeremy Bird EVP LYFT 17 (1) (2) (3) Data as reported by Uber for its quarter ended September 30, 2025. 4.85 aggregate score through January 23, 2026 on a 5 star scale. ~23,700 pick - up/drop - off points across Atlanta as of January 30, 2026.
PROPRIETARY & CONFIDENTIAL Strategic Partnerships A multi - year strategic and commercial partnership to launch AV services. ● Operational readiness underway ● Companies to collaborate on mapping technology ● Southeast Asia pilot launch under evaluation Led May Mobility’s Series D and E financings and is the exclusive fleet owner, operator and provider of May’s proprietary AV tech in Japan. ● Completed three pilot sites in Nagoya, Tokyo, and Saito ● Launching new Nagoya pilot in September 2026 ● Long - term collaboration to encompass multiple market segments and vehicle platforms “We see our partnership with May Mobility as a powerful synergy of hyperlocal expertise and global capabilities. We are excited to learn from them and work with them to adapt their technology to Southeast Asia’s needs.” Dominic Ong General Manager of Autonomous GRAB 18
PROPRIETARY & CONFIDENTIAL May Mobility is the only AV provider partnered with 4 of the leading global ride - hailing companies, as well as a Japanese partnership with NTT 1. Motional - Lyft Las Vegas robotaxi partnership was paused in 2024; Motional now deploys via Uber. Note: Global and regional rank of Ride - Hailing Companies is based upon # of annual trips per publicly available information. Note: Waymo’s fleet size and monthly trip rate suggests 1 robo - taxi can perform ~8,500 trips annually, or 120,000 Avs can perform ~1B trips annually. 19 N/A #2 China #2 North America #1 Southeast Asia #1 North America Regional Rank N/A 0.8B 1B 3B 15B Est. Annual Trips Internal AV Tech Japan Europe Atlanta $ SE Asia Arlington, TX May Mobility Selected AV Competitors Nashville Austin, Atlanta Waymo Las Vegas Motional $ Dallas Avride $ S.F. Bay Area Nuro Exclusive to Uber for the Lucid Robotaxi Platform $ London / Tokyo Wayve Zoox announced partnership $ ride - hailing co. invested in the AV co. no announced partnership Cities/Regions named where deployments are active or announced
PROPRIETARY & CONFIDENTIAL May Mobility: A Differentiated, Asset - Light Business Model Median U.S Driver Earnings (excluding tips) 1 May’s Ride - Hail Revenue Model Today May’s B2G and Japan Business Today and Ride - Hail Target with Fleet Operating Partners Driver Earnings ~$28/hr 1 (Net of Lyft commissions) Fixed Fee Based on Vehicle Availability 2025 Gross Margins: 25%+ Targeted “Fleet Operator Asset Light Model” 2 (Based on Hrs. Deployed or Per Trip) SaaS - like Gross Margins from lower fleet costs Fleet Operators May keeps 100% of revenue but also incurs 100% of fleet operating costs TARGETED May splits revenue with fleet operating partners, who incur 100% of fleet operating and ownership costs Note: Illustrative and based on management estimates from public disclosures, and thus is subject to change and may not be representative of our business. 1. Based on $28 of median U.S Lyft driver earnings, and excludes tips and bonuses for every hour of engaged time (Lyft Q1 2024 Earnings Call). 2. We are in the process of transitioning to an asset - light, software licensing model and have yet to generate material revenue from fleet operator revenue share model. 20
PROPRIETARY & CONFIDENTIAL Illustrative “Asset Light” Transition & Unit Economics Asset Light Transition (Target 12 to 18 Months After Launch) Initial U.S Ride - Hailing Site Launch N/A (Safety Driver - out) May Mobility Safety Driver Cost Fleet Operating Partner May Mobility Vehicle Cost (Financing, Depreciation, Insurance, Maintenance) Fleet Operating Partner May Mobility Site Operating Cost (Staff, Fuel / Charging, Depot Operations, Other) May Mobility May Mobility Remote & Other COGs (Remote vehicle supervisors, software maintenance & storage, field engineers) Several Hundred Depending Upon Size 10 to 50 Target Fleet Size @ Each Site $50k to 72K Revenue / Vehicle @ $35K to $50K Margin / Vehicle ~$130K to 150K Revenue / Vehicle @ Negative Margin with Safety Driver Illustrative May Mobility Annual Revenue & Gross Margin per Vehicle 1 1. At Initial US Ride - hailing Site Launch, revenue per vehicle assumes $24/hour fixed fee per vehicle with the vehicle operating 330 - 350 days per year and 16 - 18 hours per day; safety driver out assumes revenue split with fleet operating partner and/or license fee per vehicle based upon current agreements in place & target margins of ~70% per vehicle. 21
PROPRIETARY & CONFIDENTIAL Initiatives Underway to Reduce BOM Costs >50% Targeted BOM Reduction ● Compute & Sensors — Significant cost - downs expected as next - gen chip alternatives emerge and the lidar/radar/camera markets mature ● Hardware & Integration — Components targeted for meaningful reductions through design innovation and supply scale ● Labor & Vehicle Platform — Integration labor and base vehicle costs expected to compress materially via process standardization and deeper partnerships ADK ADK Base Vehicle Base Vehicle Today Next 12 Months 2028 Target Note: Illustrative figures for discussion purposes only. 22 $0 $100 $200 BOM Reduction ($ in thousands) $300
PROPRIETARY & CONFIDENTIAL Illustrative Fleet Size Targets & Revenue Profile 23 Note: Illustrative unit economics and revenues presented are estimates only, reflecting management's current expectations and based on numerous assumptions. The illustrative unit economics and revenues presented may not be realized, and actual results could differ materially from the illustrative estimates presented. Longer - Term Driver - Out Margin Targets 40K 30K 20K 10K $2,000M $1,500M $1,000M $500M $50K $2,440M $1,830M $1,220M $610M $61K $2,880M $2,160M $1,440M $720M $72K Illustrative Annual Revenue Per Vehicle Illustrative Fleet Size Illustrative Total Fleet Size Targets 300 - 400 ~100 2026YE 2027YE Thousands 2028YE Tens of Thousands 2030YE Illustrative May Mobility Revenue ($M) Gross Margin: ~70% EBIT Margin: ~30%
PROPRIETARY & CONFIDENTIAL Capital Efficient Business Model 24 (1) Break - even fleet size to offset illustrative Non - GAAP OPEX assuming a 70% gross margin. Illustrative Annual Revenue Per Vehicle based upon current agreements in place. (2) Non - GAAP Opex excludes D&A, Stock - based compensation expense, impairment and other one - time expenses; free cash flow is cash flow from operations less capex and fleet principal payments. Comparison based on management estimates based on headcounts of Waymo and Tesla. Illustrative “Break - even” Fleet Size 1 Capital Efficient Business Model • May Mobility has raised $445M of capital since its inception in 2017 • Cash spend low relative to other AV players 2 o 2025 Non - GAAP OPEX: $81M o 2025 Free Cash Flow: ($93M) • Expected higher investments in OPEX & Free Cash Flow to support new site launches, fleet growth and other growth initiatives Expected Use of Proceeds $72K $61K $50K 2,976 3,513 4,286 $150M 3,968 4,684 5,714 $200M 4,960 5,855 7,142 $250M Illustrative Non - GAAP OPEX ($M) Illustrative Annual Revenue Per Vehicle • Strengthen balance sheet and liquidity profile • Additional R&D and industrialization investments to extend driver - out domain • Supply chain investments to reduce costs • New site launches • General corporate purposes
PROPRIETARY & CONFIDENTIAL Transaction: Market Valuation Dynamics Pure Play Robotaxi Trucking / Freight Enterprise Value 1 ($ in millions) $126,000 Source: Company filings and FactSet as of 8/6/2026. 1. Waymo, Wayve, and Nuro enterprise values based on post - money of last funding round, Feb 2026, Feb 2026, and Aug 2025, respectively; Waabi and Avride excluded due to undisclosed valuation. 2. May Mobility implied enterprise valuation shown. 25 $8,600 $6,000 [$1,482] $12,272 $797 $823
Transaction Overview 26 MAY MOBILITY PROPRIETARY & CONFIDENTIAL Sources & Uses (1) Transaction Highlights Business Combination Structure • De - SPAC via a merger of May Mobility into ACP • Targeting an expected close in Q1 2027 Valuation • The business combination implies a pro forma combined EV of $1,482 • Existing May Mobility shareholders would roll over 100% of their equity Capital structure • The business combination is to be funded by a combination of ACP cash held in trust and PIPE financing Pro Forma Valuation Pro Forma Ownership (2) ($ in millions) (1) Assumes no ACP shareholder has exercised redemption rights to receive cash from the trust account; this amount will be reduced by the amount of cash used to satisfy any redemptions. (2) Excludes impact of warrants, including public warrants, private warrants and warrants granted to PIPE investors. Public warrants are redeemable by the company once shares trade at or above $18.00 for 20 trading days within a 30 - trading day period. (3) PIPE Investors will hold 12.0% Series A Cumulative Convertible Preferred Stock; Assumes $120.0M PIPE commitment (post 15% OID) at the time of BCA signing converted at $12.00/share, and 2.9M incentive shares transferred from sponsor and/or newly issued by the Company.
Summary Risk Factors MAY MOBILITY PROPRIETARY & CONFIDENTIAL 27 All references to "we," "us" or "our" refer to the Company prior to the consummation of a potential transaction with a special purpose acquisition company. The risks described below are a non - exhaustive list of the key risks related to Company and the factors that could cause actual results to differ from the intentions and assumptions described in this presentation. This list has been prepared solely for potential investors in this private placement transaction and not for any other purpose. You should carefully consider these risks and uncertainties, carry out your own due diligence, and consult with your own financial and legal advisors concerning the risks and suitability of an investment in this private placement transaction before making an investment decision. The list below is qualified in its entirety by disclosures contained in future documents filed or furnished with the SEC in respect of a potential transaction. The risks presented in such filings would include risks associated with the post - transaction operation of Company and the risks associated with the potential transaction, and these risks may differ significantly from, and will be more extensive than, those risks presented below. The Company may be subject to the following factors, many of which are outside of Company's control: Risks Related to our Business and Industry ∙ AV technology is an emerging and rapidly evolving technology and involves significant risks and uncertainties. ∙ We have a limited operating history with our current business in an evolving industry, which makes it difficult to evaluate our future prospects and may increase the risk that we are not successful. ∙ We have a history of net losses, and we may not be able to achieve or maintain profitability in the future. ∙ Our history of net losses and negative cash flows raise substantial doubt about our ability to continue as a going concern. ∙ We will require a significant amount of additional capital to fund our operations and growth. If we cannot obtain sufficient capital on acceptable terms, our business, financial condition, and results of operations may be adversely affected. ∙ Since the markets for AV technology are still at relatively early stages of growth, if such markets do not continue to grow, grow more slowly than expected, fail to grow as large as expected, or if our AV technology fails to gain acceptance or traction from passengers and other stakeholders, our business, financial condition, and results of operations could be adversely affected. ∙ We face risks associated with AV technology and may not be able to develop solutions on schedule, or at all, and we may experience significant delays in the design, commercialization, and launch of new solutions. We may fail to develop partnerships with other companies to offer AV technologies in a timely manner. ∙ Our plan is to transition to an AaaS fleet operator - driven business model while we continue to grow and develop our technology. If we are unable to manage our transition and growth strategy effectively, including by developing our technology and infrastructure, maintaining and expanding on our partnerships and obtaining new partners and customers, our business, financial condition, and results of operations may be adversely affected. ∙ The success of our AaaS model will depend on its effective deployment and operation by third parties, such as ride - hail and commercial fleet operators. ∙ Any failure to commercialize at scale would have an adverse effect on our business, financial condition, results of operations, harm our reputation, and could result in substantial liabilities that exceed our resources. ∙ We operate in a highly competitive market, and many of our competitors have greater resources than we do. ∙ If we fail to effectively price our bids for competitive procurements, our business, financial condition, and results of operations could be adversely affected. ∙ Our business plans rely in large part upon certain assumptions and analyses. If these assumptions or analyses prove to be incorrect, our actual results of operations may be materially different from our projections, and our estimates of certain financial metrics may prove inaccurate. ∙ Our expansion into new geographical areas, jurisdictions, and applications involves inherent risks, which may adversely affect our business, financial condition, and results of operations. ∙ The operation of AVs equipped with our AV technology is different from non - autonomous vehicles and may be unfamiliar to customers and other drivers. ∙ We may not effectively identify, pursue and consummate strategic alliances, collaborations, investments, or acquisitions. Even if we do, such transactions could divert management’s attention, result in our incurring significant costs or operating difficulties, dilute our stockholders, disrupt our operations, and adversely affect our business, financial condition, and results of operations. ∙ If we are no longer able to benefit from our agreements with key strategic partners, such as Toyota, NTT, or other related parties, our business may be adversely affected. ∙ Any flaws or misuse of AV technologies, whether actual or perceived, intended or inadvertent, committed by us or by other third parties, could have an adverse effect on our reputation, prospects, business, financial condition, and results of operations. ∙ We invest significantly in R&D, and to the extent our R&D efforts are unsuccessful, our competitive position could be negatively impacted, and our business, financial condition, and results of operations may be adversely affected. ∙ We source key materials and components from third - party suppliers, including in the production of our ADKs, which involves certain risks that may result in increased costs, pricing fluctuations, delayed deliveries of our products or services, and other quality or compliance issues. If one or more of these third - party suppliers becomes inoperable, capacity - constrained or if operations are disrupted, our business, financial condition, and results of operations could be adversely affected. ∙ Failure to address the service requirements and expectations of our partners, customers, or passengers could harm our reputation and may adversely affect our business, financial condition, and results of operations. ∙ Leveraging contract manufacturers to install our AV hardware and provide other services is subject to risks.
Summary Risk Factors MAY MOBILITY PROPRIETARY & CONFIDENTIAL 28 Risks Related to our Business and Industry ∙ We use third - party providers of cloud infrastructure to operate our business. Any disruption in the operations of these third - party providers, limitations on capacity, or interference with our use could adversely affect our business, financial condition, and results of operations. ∙ It is possible that the unit economics of our products and services do not develop as expected, in particular as we transition to an AaaS fleet operator - driven business model, which could adversely affect our business, financial condition, and results of operations. ∙ We are required to comply with laws and regulations across jurisdictions, including obtaining and maintaining permits and licenses to operate certain aspects of our business operations. ∙ Our business may suffer from claims relating to, among other things, actual or alleged defects in our AV technology, or if our AV technology actually or allegedly fail to perform as expected. Any publicity related to these claims could harm our reputation and decrease demand for our AV technology or increase regulatory scrutiny of our AV technology. ∙ Our business depends on retaining and attracting high - quality personnel, particularly in our senior management team and technical engineering team, and continued attrition, future attrition, or unsuccessful succession planning could adversely affect our business. ∙ Growth of our business will partially depend on the recognition of our brand. Our brand and reputation could be harmed by negative publicity or safety, data security, and others concerns regarding our AV technology. Failure to maintain, protect, and enhance our brand could limit our ability to expand or retain our partner and/or customer base, which could adversely affect our business, financial condition, and results of operations. ∙ If we are unable to manage the risks presented by our international operations, our business, financial condition, and results of operations may be adversely impacted. ∙ If our business development plans are not effective, our business development may be negatively affected. ∙ Recent and further changes in the tariff and trade policies of the United States or of other countries could increase manufacturing costs, decrease demand for our AV technology, disrupt supply chains, or otherwise adversely affect our business, financial condition, and results of operations. ∙ Certain of our deployments, including those in the B2G sector, are funded in whole or in part by government grants and may be negatively impacted if those grants were to cease. ∙ We may not have sufficient insurance coverage for our operations. ∙ We face risks related to natural disasters, extreme weather conditions, health epidemics, and other catastrophic incidents which could significantly disrupt our operations. ∙ General business and economic conditions, and risks related to the larger automotive ecosystem, including consumer demand, could adversely affect the market for vehicles, which could reduce our revenue. ∙ If we fail to grow at the rate we currently expect, we may not be able to achieve and maintain profitability, which would adversely affect our business, financial condition, and results of operations. ∙ Because a portion of our business depends on contracting with government entities and other heavily regulated organizations, we face a number of challenges and risks unique to such business. ∙ Our workforce and operations have grown substantially since inception, and we expect that they will continue to do so using different labor models. If we are unable to effectively manage that growth, our reputation and brand, business, financial condition, and results of operations will be adversely affected. ∙ Our company culture has contributed to our success and if we cannot maintain this culture as we grow, our business, financial condition, and results of operations could be harmed. ∙ Changes in tax laws may adversely affect our business, financial condition, and results of operations. ∙ Our ability to use our net operating loss carryforwards and certain other tax attributes may be limited. ∙ We are exposed to fluctuations in currency exchange rates and interest rates. ∙ Because a portion of our revenue is recognized over the term of the contract, downturns or upturns in our business may not be reflected in our results of operations until future periods. ∙ We have incurred indebtedness, and we may not generate sufficient cash flow from operations to meet our debt service requirements, which could adversely affect our business, financial condition, and results of operations. Risks Related to Regulation and Legal Compliance ∙ Our business is subject to substantial regulations and may be adversely affected by changes in automotive safety regulations or concerns that increase regulation of the automobile safety market. ∙ We are subject to a variety of laws and regulations that affect our operations and that could adversely affect our business, financial condition, and results of operations. ∙ We may be subject to claims, lawsuits, government and regulatory investigations, and other proceedings that may adversely affect our business, financial condition, and results of operations. ∙ Certain members of our management have previously held senior positions at other public companies and have been, are currently, or may become, involved in litigation, investigations or other proceedings related to those companies or otherwise. This may adversely affect our reputation, business, financial condition, and results of operations. ∙ We have regular interactions with governmental officials in the ordinary course of business and are subject to anti - corruption laws and other anti - bribery and anti - kickback laws and regulations. ∙ We are subject to economic sanctions and governmental export and import control laws and regulations. Our failure to comply with these laws and regulations may adversely affect our business, financial condition, and results of operations.
Summary Risk Factors MAY MOBILITY PROPRIETARY & CONFIDENTIAL 29 Risks Related to our Intellectual Property, Data, and Cybersecurity ∙ Our business operations could be adversely affected if we fail to adequately obtain, maintain, enforce, or protect our intellectual property rights. ∙ We may be sued by third parties for infringement, misappropriation, or other violation of their proprietary technology or other intellectual property, which could be time - consuming and costly and result in significant legal liability or require us to cease using certain technology or other intellectual property, which could harm our business, financial condition, and results of operations. ∙ We use certain software governed by open - source licenses, and failure to comply with such licenses could restrict our ability to offer our products and services, which could adversely affect our business, financial condition, and results of operations. ∙ We and our third - party providers are exposed to cybersecurity risks and incidents which may result in damage to our brand and reputation, material financial penalties, and legal liability, which could in turn adversely affect our business, financial condition, and results of operations. ∙ Unauthorized control or manipulation of systems in AV may cause them to operate improperly or not at all, or compromise their safety and cybersecurity, which may result in loss of confidence in us and our AV technology and adversely affect our business, financial condition, and results of operations. ∙ Our software is highly technical, and any undetected errors could adversely affect our business, financial condition, and results of operations. ∙ Our business depends upon the interoperability of our software across devices and operating systems that we do not control. ∙ Complying with evolving laws and regulations across multiple jurisdictions regarding cybersecurity, information security, privacy and data protection, and other related laws and requirements may be expensive and force us to make adverse changes to our business . Many of these laws and regulations are subject to changes and uncertain interpretations, including in ways that may result in conflicting requirements among various jurisdictions . Any failure or perceived failure to comply with these laws and regulations could result in negative publicity, legal and regulatory proceedings, suspension or disruption of operations, fines, increased cost of operations, remediation costs, indemnification expenditures, or otherwise harm our business . ∙ Our products and solutions rely on the stable performance of both internal and external servers, networks, IT infrastructure and data processing systems, and any error, bug, vulnerability, systems defect or failure, disruption or unauthorized access, such as cyber - attacks, to such servers, networks, assets, or systems due to internal or external factors could diminish demand for our products and services, harm our business, financial condition, and results of operations and subject us to liability ∙ We are incorporating AI technologies into some of our products and processes . These technologies may present business, compliance, and reputational risks . ∙ The regulatory framework for AI and ML technology is rapidly evolving, and we cannot predict how future laws, regulations, or standards will impact our business . Risks Relating to this Offering and Ownership of our Common Stock ∙ An active trading market for our common stock may never develop or be sustained. ∙ The market price of our common stock may be volatile or may decline steeply or suddenly regardless of our operating performance, and we may not be able to meet investor or analyst expectations. You may not be able to resell your shares at or above the price per share in the private placement and may lose all or part of your investment. ∙ If securities or industry analysts either do not publish research about us or publish inaccurate or unfavorable research about us, our business, or our market, or if such analysts change their recommendations regarding our common stock adversely, the trading price or trading volume of our common stock could decline. ∙ Future sales of shares by our existing stockholders could cause our stock price to decline. ∙ We have broad discretion in how we use the net proceeds from this offering, and we may not use them effectively. ∙ We qualify as an emerging growth company within the meaning of the Securities Act, and if we take advantage of certain exemptions available to emerging growth companies, this could make our securities less attractive to investors and may make it more difficult to compare our performance with other public companies ∙ We have not paid and do not intend to pay cash dividends for the foreseeable future. ∙ The issuance by us of additional shares of any class of common stock or convertible securities may dilute your ownership and could adversely affect our stock price. ∙ Delaware law and certain provisions of our amended and restated certificate of incorporation and amended and restated bylaws that will be in effect at the completion of this offering could make a merger, tender offer, or proxy contest difficult, thereby adversely affecting the market price of our common stock. ∙ Our amended and restated certificate of incorporation and amended and restated bylaws will contain exclusive forum provisions for certain claims, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or any of our directors, officers, other employees, or stockholders. ∙ As a result of becoming a public company, we will be required to develop and maintain proper and effective internal controls over financial reporting, and any failure to maintain the adequacy of these internal controls may adversely affect investor confidence in our company and, as a result, the value of our common stock. ∙ Operating as a public company will require us to incur significant costs and requires substantial management attention. In addition, key members of our management team have limited or no experience managing a public company.
PROPRIETARY & CONFIDENTIAL Non - GAAP OpEx Reconciliation 30
PROPRIETARY & CONFIDENTIAL Free Cash Flow Reconciliation 31