APXT 8-K
Apex Treasury Corp (APXT)
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
Date of Report
(Date of earliest event reported):
(Exact name of registrant as specified in its charter)
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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).
Emerging growth company
If an emerging growth company,
indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01 Entry into a Material Definitive Agreement.
On July 21, 2026, Apex Treasury Corporation, a blank check Cayman Islands exempted company (the “Purchaser” or “Apex”), Stepping Stone Merger Sub, Inc., a Delaware corporation and a direct wholly-owned subsidiary of the Purchaser (“Merger Sub”), and TECfusions, Inc., a Florida corporation (the “Company” or “TECfusions”), entered into a business combination agreement (the “Business Combination Agreement”) that contemplates a $4.0 billion equity valuation of the Company and an all-stock combination transaction. The Company is an AI infrastructure company focused on designing, building, and leasing next-generation data centers.
Pursuant to the Business Combination Agreement, the parties thereto will enter into a business combination transaction by which, among other things, (i) the Purchaser will transfer to by way of continuation and domesticate as a Delaware corporation and (ii) Merger Sub will merge with and into the Company (the “Merger”), with the Company being the surviving entity of the Merger and becoming a direct, wholly-owned subsidiary of the Purchaser. Upon closing of the Merger (the “Closing,” and the date on which the Closing occurs, the “Closing Date”), the Company will become a direct, wholly-owned subsidiary of Purchaser and the combined company will be a publicly traded company operating under the TECfusions brand. The combined company’s common stock is expected to trade on Nasdaq under the ticker symbol “TECF.”
Business Combination Agreement
The Domestication
Subject to satisfaction or waiver of the closing conditions of the Business Combination Agreement (as described below), prior to or on the Closing Date , the following events will occur in connection with the Purchaser changing its jurisdiction of organization from the Cayman Islands to Delaware:
| (a) | each then issued and outstanding Class B ordinary share of the Purchaser, par value $0.0001 per share (each, a “Class B Ordinary Share”), will convert (the “Sponsor Share Conversion”) automatically, on a one-for-one basis, into one Class A ordinary share of the Purchaser, par value $0.0001 per share (each, a “Class A Ordinary Share”); | |
| (b) | immediately after the Sponsor Share Conversion, the Purchaser will transfer by way of continuation and deregistration to and domesticate as a Delaware corporation (such continuation and domestication, the “Domestication”); and | |
| (c) | in connection with, and after giving effect to, the Domestication, (i) each then issued and outstanding Class A Ordinary Share will convert automatically, on a one-for-one basis, into one share of common stock of the Purchaser, par value $0.0001 per share (“Common Stock”), (ii) each then issued and outstanding warrant of the Purchaser will convert automatically into a warrant to acquire one (1) share of Common Stock (each a “Domesticated Purchaser Warrant”), and (iii) each then issued and outstanding unit of the Purchaser will be canceled and will thereafter entitle the holder thereof to one share of Common Stock and one-half of one Domesticated Purchaser Warrant in accordance with the terms of the applicable unit (provided that no fractional Domesticated Purchaser Warrants will be issued). |
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Conversion of Securities
Pursuant to the terms of the Business Combination Agreement, the aggregate consideration (“Aggregate Consideration”) to be paid to the existing stockholders of the Company (the “Company Stockholders”) at the Closing is 400.0 million newly issued shares of Common Stock, equal to the $4.0 billion base purchase price divided by $10.00 per share.
At the effective time of the Merger (the “Effective Time”), each (i) share of common stock of the Company (each a “Company Share”) issued and outstanding immediately prior to the Effective Time, other than shares owned by the Purchaser, Merger Sub or the Company (in treasury or otherwise), will be canceled and converted into the right to receive a number of shares of Common Stock equal to the Exchange Ratio, which is equal to the Aggregate Consideration divided by the Company fully diluted shares count, and (ii) each outstanding and unexercised option to purchase Company Shares, whether or not then vested or fully exercisable, will be canceled and converted into an option to purchase shares of Domesticated Purchaser Common Stock. Any Company Share subject to vesting or forfeiture provisions immediately prior to the Effective Time will continue to be subject to the same vesting and forfeiture provisions after conversion.
Registration Statement
As promptly as practicable after the date of the Business Combination Agreement and following receipt by the Purchaser of the audited consolidated financial statements of the Company for the period from January 1, 2024 through December 31, 2025, audited in accordance with PCAOB auditing standards (the “PCAOB Financial Statements”), and any other audited or unaudited financial statements of the Company and its subsidiaries required by applicable law to be included in the Registration Statement (the “Financial Statements”), the Purchaser and the Company will jointly prepare and the Purchaser will file with the Securities and Exchange Commission (the “SEC”), a registration statement on Form S-4, or other appropriate form (the “Registration Statement”), which will include a prospectus with respect to the Purchaser’s securities to be issued in connection with the Business Combination Agreement and a proxy statement (the “Proxy Statement” and, together with the Registration Statement, the combined document is referred to as the “Proxy Statement/Registration Statement”) to be distributed to the Purchaser’s shareholders in connection with the matters to be submitted to the Purchaser’s shareholders for approval.
Representations and Warranties
The Business Combination Agreement contains customary representations and warranties of (a) the Purchaser and Merger Sub and (b) the Company and its subsidiaries, in each case relating to, among other things, their ability to enter into the Business Combination Agreement, their outstanding capitalization, due organization, compliance with laws and other corporate matters. The representations and warranties of the Purchaser, the Company and Merger Sub will not survive the Closing, with the exception of fraud claims, and the Business Combination Agreement does not provide for indemnification with respect to any of the representations and warranties of the parties thereto.
Covenants
The Business Combination Agreement contains customary covenants of the parties, including, among others, covenants requiring (i) the parties to conduct their respective businesses in the ordinary course through the Closing Date, (ii) the Company and its subsidiaries to comply with certain restrictions on soliciting or engaging in discussions regarding certain alternative transactions, (iii) the Purchaser and the Company to prepare and the Purchaser to file with the SEC the Registration Statement, and (iv) the Company to deliver to the Purchaser the PCAOB Financial Statements and the Financial Statements as soon as reasonably practicable following the date of the Business Combination Agreement, and in any event, no later than September 30, 2026. The Company is required to seek approval of the Company Stockholders in the form of a written consent resolution (the “Company Stockholder Consent”) within 72 hours after the Proxy Statement/Registration Statement is declared effective by the SEC and delivered or otherwise made available to the Company Stockholders. None of the covenants and agreements of the parties contained in the Business Combination Agreement will survive the Closing, except for those covenants and agreements contained therein 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.
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Governance
The Business Combination Agreement provides that, effective as of the Closing, the board of directors of the Purchaser (the “Board”) will consist of five (5) directors divided into three (3) classes of directors with staggered terms. One (1) director will be designated by the Sponsor, and will be assigned to the third class of directors, with an initial term expiring at the third annual meeting of stockholders following the Closing, and the remaining directors will each be designated by the Company prior to the Closing. The executive officers of Purchaser immediately following the Closing will be the individuals designated by the Company. If the number of directors serving on the Board is increased or decreased, the number of directors per each class will be apportioned by the Board so as to maintain the proportion of directors in each class as nearly equal as possible.
Closing; Conditions to Closing
The Closing will occur no later than the third business day following the satisfaction or waiver of all of the closing conditions, or at such other time or in such other manner as agreed upon by the Purchaser and the Company in writing.
The obligations of the parties to consummate the Merger and the other transactions contemplated by the Business Combination Agreement (collectively, the “Transactions”) are subject to the satisfaction or waiver (where permissible) of customary closing conditions set forth in the Business Combination Agreement, including: (i) approval of the Transactions by the shareholders of the Purchaser and the Company Stockholders; (ii) any applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, will have expired or been terminated; (iii) the Proxy Statement/Registration Statement having become effective under the Securities Act of 1933, as amended (the “Securities Act”); (iv) the Purchaser’s shares of Common Stock to be issued in connection with the Transactions will be conditionally approved for listing upon the Closing on Nasdaq subject to any requirement to have a sufficient number of round lot holders of Common Stock; (v) no governmental authority of competent jurisdiction will have enacted, issued, promulgated, enforced or entered any law or governmental order that is then in effect that makes the Merger illegal or otherwise prevents or prohibits the Closing; (vi) no Purchaser Material Adverse Effect or Company Material Adverse Effect (each as defined in the Business Combination Agreement) will have occurred since the date of the Business Combination Agreement that is continuing and uncured; (vii) the Domestication will have been completed; and (viii) unless waived by the Company, there will be at least $45.0 million in Available Closing Cash (as defined in the Business Combination Agreement) as of the Closing.
Termination
The Business Combination Agreement may be terminated prior to the Closing in the following circumstances:
| (a) | by mutual written consent of the Purchaser and the Company; | |
| (b) | by the Company if the Purchaser’s board of directors withdraws, amends, qualifies or modifies its recommendation to the Purchaser’s shareholders that they vote in favor of the Transactions; | |
| (c) | by either the Company or the Purchaser if the Purchaser’s shareholders do not approve the Transactions; | |
| (d) | by either the Company or the Purchaser if the Closing has not occurred by March 31, 2027 and no breach or violation of the Business Combination Agreement by the party seeking to terminate caused or resulted in the failure of the Transactions to be consummated by such time; | |
| (e) | by either the Company or the Purchaser if any governmental authority of competent jurisdiction will have issued an order or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of the Transactions, and such order or other action has become final and non-appealable; |
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| (f) | by either the Company or the Purchaser, upon a material breach of any representation, warranty, covenant or agreement on the part of the other in the Business Combination Agreement which would result in a failure of a closing condition and such breach is not cured within 20 days following receipt of a written notice of such breach; | |
| (g) | by either the Company or the Purchaser if all of the closing conditions are satisfied or waived and the other fails to effect the Closing within five business days after the other has irrevocably confirmed in writing it is ready, willing and able to consummate the Closing; or | |
| (h) | by the Purchaser if (i) the Company fails to deliver the PCAOB Financial Statements and the Financial Statements on or before September 30, 2026 or (ii) the Company fails to obtain and deliver the Company Stockholder Consent within five (5) business days after the Registration Statement is declared effective under the Securities Act. |
If the Business Combination Agreement is terminated, the Business Combination Agreement will become void and have no effect, without any liability on the part of any party thereto or its respective representatives, except that (i) certain provisions, including those relating to public announcements, confidential information, and miscellaneous matters, will survive termination, and (ii) nothing will relieve any party from liability for any willful breach or any fraud claim occurring prior to such termination.
The foregoing description of the Business Combination Agreement and the Transactions does not purport to be complete and is qualified in its entirety by reference to the full text of the Business Combination Agreement and any related agreements. The Business Combination Agreement is included to provide securityholders with information regarding its terms. It is not intended to provide any other factual information about the Purchaser, the Company or the other parties thereto. In particular, the assertions embodied in representations and warranties by Purchaser, Merger Sub and the Company contained in the Business Combination Agreement are solely for the benefit of the parties to the Business Combination Agreement, are subject to important qualifications and limitations agreed to by the parties in connection with negotiating such agreement, including being qualified by confidential information in the disclosure schedules provided by the parties in connection with the execution of the Business Combination Agreement, and are subject to standards of materiality applicable to the contracting parties that may differ from those applicable to securityholders. The confidential disclosures contain information that modifies, qualifies and creates exceptions to the representations, warranties, covenants and agreements set forth in the Business Combination Agreement. Moreover, certain representations and warranties in the Business Combination Agreement were used for the purpose of allocating risk between the parties, rather than establishing matters as facts. Investors and securityholders are not third-party beneficiaries under the Business Combination Agreement and 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. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Business Combination Agreement, which subsequent information may or may not be fully reflected in the Purchaser’s public disclosures.
The foregoing description of the Business Combination Agreement is qualified in its entirety by reference to the full text of the Business Combination Agreement, a copy of which is filed as Exhibit 2.1 to this Current Report on Form 8-K (this “Report”) and is incorporated herein by reference.
PIPE Subscription Agreement
Concurrently with the execution of the Business Combination Agreement, the Purchaser and an institutional accredited investor (the “PIPE Investor”) entered into the PIPE subscription agreement (the “PIPE Subscription Agreement”), pursuant to which the Purchaser has agreed to issue, and the PIPE Investor has agreed to subscribe for, 3.5 million Purchaser Class A Ordinary Shares (the “PIPE Shares”) to be issued by the Purchaser at a price per share of $10.00, for an aggregate purchase price of $35 million (the “PIPE Investment”). The closing of the PIPE Investment is conditioned upon the substantially concurrent consummation of the Business Combination.
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Following the closing of the Business Combination, if, on the date the Initial Registration Statement (as defined below) is declared effective by the SEC (the “Measurement Date”), the Common Stock is trading on Nasdaq at a price per share which is less than $10.00 (the “Measurement Price”), the Purchaser will, at its option, either (i) remit to the PIPE Investor a cash amount equal to the product of (1) the difference between $10.00 and the greater of the Measurement Price and $5.00, multiplied by (2) the number of PIPE Shares, or (ii) issue to the PIPE Investor, for no additional consideration, a number of additional shares of Common Stock (the “Make-Whole Shares”) equal to the quotient obtained by dividing (A) the cash amount that would be payable pursuant to clause (i), calculated after giving effect to the $5.00 per share floor, by (B) the actual Measurement Price, without giving effect to such floor.
The PIPE Subscription Agreement provides certain resale registration rights for the PIPE Investor. In particular, the Purchaser is required to file with the SEC, within 20 business days after the Closing Date, a registration statement covering the resale of the PIPE Shares (the “Initial Registration Statement”) and, if Make-Whole Shares are issued, to file with the SEC a registration statement within 45 business days after the issuance of such Make-Whole Shares covering such Make-Whole Shares (the “Make-Whole Registration Statement”, and together with the Initial Registration Statement, the “PIPE Registration Statements”), and, in each case, the Purchaser agrees to use its commercially reasonable efforts to have each PIPE Registration Statement declared effective as soon as practicable after the filing thereof, but in any event no later than the earlier of (i) 90 calendar days after the filing thereof if the SEC notifies the Purchaser that it will “review” the applicable PIPE Registration Statement and (ii) 10 business days after the Purchaser is notified by the SEC that the applicable PIPE Registration Statement will not be “reviewed” or will not be subject to further review. The Purchaser has agreed to use its commercially reasonable efforts to keep each PIPE Registration Statement effective until the earliest of (i) the date on which the PIPE Shares or the Make-Whole Shares, as applicable, may be resold without volume or manner of sale limitations pursuant to Rule 144 under the Securities Act, (ii) the date on which such PIPE Shares or Make-Whole Shares, as applicable, have actually been sold and (iii) the second anniversary of the Closing Date. If the Purchaser fails to cause the applicable PIPE Registration Statement to be declared effective by the SEC within the applicable time period specified above, then the Purchaser will pay the PIPE Investor liquidated damages in an amount equal to $10,000 for each trading day during which such failure continues, beginning on the first trading day after the applicable deadline until the applicable PIPE Registration Statement has been declared effective by the SEC. Any amount due under the foregoing sentence will be paid by the Purchaser within five business days after the applicable PIPE Registration Statement has ultimately been declared effective.
The PIPE Subscription Agreement will terminate, and be of no further force and effect upon the earliest to occur of (a) such date and time as the Business Combination Agreement is terminated in accordance with its terms, (b) the mutual written agreement of the parties to the PIPE Subscription Agreement to terminate such agreement, (c) if any of the conditions precedent set forth in Section 3.2 of the PIPE Subscription Agreement are not satisfied or waived on or prior to the closing of the PIPE Investment and, as a result thereof, the transactions contemplated by the PIPE Subscription Agreement are not consummated at such closing or (d) March 31, 2027.
The foregoing description of the PIPE Subscription Agreement is qualified in its entirety by reference to the full text of the PIPE Subscription Agreement, a copy of which is filed as Exhibit 10.1 to this Report and is incorporated herein by reference.
Stockholder Support Agreement
On July 21, 2026, the Purchaser, the Company and the Company Stockholder party thereto entered into a Stockholder Support Agreement (the “Stockholder Support Agreement”), pursuant to which, among other things, and subject to the terms and conditions set forth therein, the Company Stockholder party thereto agreed (a) to attend and vote at any meeting of the Company Stockholders (including any postponement or adjournment thereof) and execute and deliver the Company Stockholder Consent or other approval of the Company Stockholders requested by the Company, with respect to all of the (i) Company Shares held by the Company Stockholder party thereto and (ii) Company Shares of which beneficial ownership, record ownership, and/or the power to vote (including, without limitation, by proxy or power of attorney) is acquired by such Company Stockholder prior to the termination of the Stockholder Support Agreement (the “Interests”) held by the Company Stockholder party thereto (A) in favor of the approval and adoption of the Business Combination Agreement, the Merger and the other Transactions, and (B) against any action, agreement or transaction or proposal that would reasonably be expected to prevent, impede, interfere with, delay, postpone or adversely affect the Merger or the other Transactions in any material respect and (b) not to transfer any of its Interests prior to the Closing, subject to certain exceptions.
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The foregoing description of the Stockholder Support Agreement is qualified in its entirety by reference to the full text of the Stockholder Support Agreement, a copy of which is filed as Exhibit 10.2 to this Report and is incorporated herein by reference.
Sponsor Support Agreement
On July 21, 2026, Apex Treasury Sponsor LLC, the existing sponsor of the Purchaser (the “Sponsor”), the Company, the Purchaser and certain existing shareholders of the Purchaser named therein, executed a Sponsor Support Agreement (the “Sponsor Support Agreement”), pursuant to which, among other things, and subject to the terms and conditions set forth therein, Sponsor and the other Purchaser shareholders party thereto agreed (a) to vote all of the Purchaser ordinary shares that they hold in favor of the Business Combination Agreement, the Transactions and any related actions, and against any other transactions or proposals intended, or that would reasonably be expected, to prevent, impede, interfere with, delay, postpone or adversely affect the Transactions in any material respect and (b) not to transfer or redeem any of the Purchaser ordinary shares held by them prior to the Closing, subject to certain exceptions.
Additionally, pursuant to the Sponsor Support Agreement, the Sponsor agreed to forfeit certain of its Purchaser Class B Ordinary Shares (in an aggregate amount not to exceed 3.15 million) effective as of immediately prior to (and contingent upon) the Closing. The total number of Class B Ordinary Shares to be forfeited by the Sponsor is equal to the sum of (i) 50% of the number of new shares (if any) to be issued by the combined company at the Closing as consideration or inducement payments pursuant to the terms of any non-redemption agreements or subscription agreements entered into by Purchaser in connection with the PIPE Investment or other forms of financings, plus (ii) the product of the percentage of Purchaser Class A Ordinary Shares redeemed in connection with the Transactions, multiplied by the total number of Sponsor’s remaining Purchaser Class B Ordinary Shares (after giving effect to forfeitures in the immediately preceding clause (i)); provided, however, that in no event will the aggregate number of forfeited Sponsor Class B Ordinary Shares exceed 3.15 million.
The foregoing description of the Sponsor Support Agreement is qualified in its entirety by reference to the full text of the Sponsor Support Agreement, a copy of which is filed as Exhibit 10.3 to this Report and is incorporated herein by reference.
Amended and Restated Registration Rights Agreement
In connection with the Closing, the Purchaser, certain of the Purchaser’s shareholders (including Sponsor) and certain of the Company Stockholders will enter into an Amended and Restated Registration Rights Agreement substantially in the form attached as Exhibit E to the Business Combination Agreement (the “Registration Rights Agreement”), which will amend and restate the Purchaser’s existing registration rights agreement. Pursuant to the terms of the Registration Rights Agreement, effective upon the Closing, the Purchaser will, within 20 business days after the Closing, file with the SEC (at the Purchaser’s sole cost and expense) a shelf registration statement (the “Shelf Registration Statement”) registering the resale of certain securities held by or issuable to the Purchaser’s stockholders party thereto (“Registration Rights Holders”), and the Purchaser will use its reasonable best efforts to have the Shelf Registration Statement declared effective as soon as reasonably practicable after the filing thereof. In certain circumstances, the Registration Rights Holders can demand underwritten offerings and will be entitled to certain customary piggyback registration rights, in each case subject to certain limitations set forth in the Registration Rights Agreement.
The foregoing description of the form of Registration Rights Agreement is qualified in its entirety by reference to the full text of the form of Registration Rights Agreement, a copy of which is included as Exhibit E to the Business Combination Agreement, filed as Exhibit 2.1 to this Report, and incorporated herein by reference.
Lock-Up Agreements
In connection with the Closing, certain of the Purchaser’s shareholders (including Sponsor) and the Company Stockholders will enter into Lock-Up Agreements with the Purchaser substantially in the form attached as Exhibit F to the Business Combination Agreement (each a “Lock-Up Agreement”). Each Lock-Up Agreement will provide that the securities held by such stockholder of the Purchaser will be subject to transfer restrictions (subject to certain customary exceptions) for the period commencing on the Closing Date and ending on the earliest to occur of (x) the six-month anniversary of the Closing Date and (y) subsequent to the Closing, (A) if the last sale price of the Common Stock equals or exceeds $12.00 per share for any 20 trading days within any 30 consecutive trading day period commencing at least 90 days after the Closing or (B) the date on which Purchaser completes a liquidation, merger, share exchange, reorganization or other similar transaction that results in all of its stockholders having the right to exchange their shares of Common Stock for cash, securities or other property. In addition, the Company’s founder and controlling stockholder, Mr. Simon Tusha (and his respective trust(s) and controlled entities), will be permitted under the Lock-Up Agreement to sell up to $100 million in aggregate gross sales price of his shares of Common Stock at any time following the effective date of the Shelf Registration Statement.
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The foregoing description of the form of Lock-Up Agreement is qualified in its entirety by reference to the full text of the form of Lock-Up Agreement, a copy of which is included as Exhibit F to the Business Combination Agreement, filed as Exhibit 2.1 to this Report, and incorporated herein by reference.
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 under the heading “PIPE Subscription Agreement” is incorporated by reference in this Item 3.02. The PIPE Shares (and any related Make-Whole Shares) will be issued to the PIPE Investor in reliance on the exemption from registration requirements thereof provided by Section 4(a)(2) of the Securities Act.
Item 8.01 Other Events.
On July 22, 2026, the Purchaser and the Company issued a joint press release announcing the execution of the Business Combination Agreement. The press release is filed herewith as Exhibit 99.1 and incorporated by reference herein.
Filed herewith as Exhibit 99.2 and incorporated herein by reference is an investor presentation that the Purchaser and the Company have prepared for use in connection with the Business Combination Agreement.
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Additional Information
In connection with the proposed business combination, Apex and the Company intend to file the Registration Statement with the SEC, which will include preliminary and definitive proxy statements to be distributed to Apex’s shareholders in connection with Apex’s solicitation for proxies for the vote by Apex’s shareholders in connection with the proposed business combination and other matters to be described therein, as well as the prospectus relating to the offer of the securities to be issued to the Company’s shareholders in connection with the completion of the proposed business combination. After the Registration Statement has been filed and declared effective, a definitive proxy statement and other relevant documents will be mailed to shareholders of Apex as of the record date established for voting on the proposed business combination.
This Report does not contain all the information that should be considered concerning the proposed business combination and is not a substitute for the Registration Statement, preliminary or definitive proxy statement/prospectus or for any other document that Apex may file with the SEC. Before making any voting or investment decision, Apex shareholders and other interested persons are advised to read, once available, the preliminary proxy statement/prospectus and any amendments thereto and, once available, the Registration Statement, definitive proxy statement/prospectus, as well as other documents filed with the SEC by Apex in connection with the proposed business combination because these documents will contain important information about Apex, the Company and the proposed business combination.
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Shareholders will be able to obtain copies of the preliminary or definitive proxy statement/prospectus, once available, as well as other documents filed by Apex with the SEC, without charge, through the website maintained by the SEC at www.sec.gov. In addition, the documents filed by Apex may be obtained free of charge from Apex’s website at https://www.apextreasurycorp.com. The information contained on, or that may be accessed through, the websites referenced in this Report is not incorporated by reference into, and is not a part of, this Report.
Participants in the Solicitation
Apex, the Company and certain of their respective directors, executive officers and other members of management and employees may be deemed to be participants in the solicitation of proxies from Apex’s shareholders in connection with the proposed business combination. Information regarding the persons who may be deemed participants will be set forth in the proxy statement/prospectus when filed by Apex with the SEC. You can find more information about Apex’s directors and executive officers in the Registration Statement and the proxy statement/prospectus which forms a part thereof, once available. Additional information regarding the participants in the proxy solicitation and a description of their direct and indirect interests will be included in the Registration Statement and the proxy statement/prospectus which forms a part thereof when it becomes available. Shareholders, potential investors and other interested persons should read the proxy statement/prospectus carefully when it becomes available before making any voting or investment decisions.
Cautionary Note Regarding Forward Looking Statements
This Report contains forward-looking statements, including projections of market opportunity and market share; estimates of customer penetration rates and usage patterns; projections regarding TECfusions’ ability to commercialize new products and technologies; projections of development and commercialization costs and timelines; expectations regarding TECfusions’ ability to execute its business model; expectations regarding TECfusions’ ability to attract, retain, and expand its customer base; TECfusions’ expectations concerning relationships with strategic partners, suppliers, governments, state-funded entities, regulatory bodies and other third parties; TECfusions’ ability to maintain, protect, and enhance its intellectual property; future partnerships, ventures or investments in companies, products, services or technologies; the successful consummation and potential benefits of the proposed business combination, including the anticipated PIPE financing; and the potential for TECfusions to increase in value. Forward-looking statements may be identified by the use of words such as “estimate,” “plan,” “project,” “forecast,” “intend,” “will,” “expect,” “anticipate,” “believe,” “seek,” “target,” “continue,” “could,” “may,” “might,” “possible,” “potential,” “predict” or similar expressions that predict or indicate future events or trends or that are not statements of historical matters.
These forward-looking statements are provided for illustrative purposes only and must not be relied on as a guarantee, an assurance, a prediction or a definitive statement of fact or probability. These statements are subject to known and unknown risks, uncertainties and assumptions that may cause the actual results, levels of activity, performance or achievements of the combined company following the proposed business combination (the “Combined Company”) to be materially different from any future results expressed or implied by such statements. Such risks and uncertainties include: that TECfusions is pursuing an emerging technology and may not achieve commercialization or market acceptance; TECfusions’ historical net losses and limited operating history; expectations regarding future financial performance, capital requirements and unit economics; TECfusions’ competitive landscape; dependence on key management; the potential need for additional future financing; TECfusions’ ability to manage growth; reliance on strategic partners and third parties; risks associated with privacy, data protection or cybersecurity incidents; the use, rate of adoption, and regulation of artificial intelligence and machine learning; uncertainty or changes with respect to laws, regulations, taxes, trade conditions and the macroeconomic environment; the Combined Company’s ability to maintain internal control over financial reporting; the possibility that required regulatory approvals for the proposed business combination are delayed or not obtained; the risk that Apex shareholders could elect to have their shares redeemed; the outcome of any legal proceedings or government investigations; failure to realize the anticipated benefits of the proposed business combination; and other factors described in Apex’s filings with the SEC. If any of these risks materialize or assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. There may be additional risks that neither TECfusions nor Apex presently know or that TECfusions or Apex currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward-looking statements reflect TECfusions’ and Apex’s expectations, plans or forecasts of future events and views as of the date of this Report. Neither TECfusions nor Apex undertakes any obligation to revise or update publicly any forward-looking statement to reflect future events or circumstances. Nothing contained herein constitutes or will be deemed to constitute a forecast, projection or estimate of the future financial performance of TECfusions, Apex or the Combined Company, following the implementation of the proposed business combination or otherwise. Accordingly, undue reliance should not be placed on these statements.
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In addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the date of this Report, and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain, and investors are cautioned not to unduly rely upon these statements.
An investment in Apex is not an investment in any of our founders’ or Sponsor’s past investments, companies or affiliated funds. The historical results of those investments are not indicative of future performance of Apex, which may differ materially from the performance of our founders’ or Sponsor’s past investments.
No Offer or Solicitation
The securities to which this Report relates have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or the securities laws of any other jurisdiction. This Report relates to securities that Apex 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. This Report and any statements made in connection with this Report are for informational purposes only and do not constitute an offer to sell or the solicitation of an offer to buy, or a recommendation to purchase, any securities, or a solicitation of any vote, consent or approval, nor shall there be any sale of securities in any jurisdiction in which, or to any person to whom, such offer, solicitation or sale may be unlawful under the securities laws of any such jurisdiction. This communication is not, and under no circumstances is to be construed as, a prospectus, an advertisement or a public offering of the securities described herein in the United States or any other jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, or exemption therefrom.
Investment in any securities described herein has not been approved by the SEC or any other regulatory authority nor has any authority passed upon or endorsed the merits of the business combination or the accuracy or adequacy of the information contained herein. Any representation to the contrary is a criminal offense.
Item 9.01 Financial Statements and Exhibits.
| (d) | Exhibits |
| * | Schedules and/or exhibits omitted pursuant to Item 601(a)(5) of Regulation S-K. Apex Treasury Corporation agrees to furnish supplementally a copy of any omitted schedule and/or exhibit to the Securities and Exchange Commission upon request. |
| § | Certain portions of this exhibit (indicated by “[***]”) have been redacted pursuant to Item 601(a)(6) of Regulation S-K. |
9
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: July 22, 2026
| APEX TREASURY CORPORATION | ||
| By: | /s/ Hugh Cochrane | |
| Name: | Hugh Cochrane | |
| Title: | Co-Chief Executive Officer | |
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Exhibit 2.1
Execution Version
Dated as of July 21, 2026
Business Combination
Agreement
by and among
Apex Treasury Corporation
Stepping Stone Merger Sub, Inc.
and
TECfusions, Inc.
Table of Contents
| Article I THE TRANSACTIONS | 4 | |
| Section 1.01 | The Domestication | 4 |
| Section 1.02 | The Merger | 5 |
| Section 1.03 | Further Assurances | 5 |
| Article II CONSIDERATION | 6 | |
| Section 2.01 | Consideration for Company Securities | 6 |
| Section 2.02 | Conversion of Securities | 6 |
| Section 2.03 | No Fractional Shares | 7 |
| Section 2.04 | Withholding | 7 |
| Article III CLOSING | 7 | |
| Section 3.01 | Closing | 7 |
| Section 3.02 | Closing Documents | 7 |
| Section 3.03 | Payment of Expenses | 8 |
| Article IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY | 8 | |
| Section 4.01 | Organization and Standing | 8 |
| Section 4.02 | Authorization; Binding Agreement | 8 |
| Section 4.03 | Capitalization | 9 |
| Section 4.04 | Subsidiaries | 10 |
| Section 4.05 | No Conflict; Governmental Consents and Filings | 10 |
| Section 4.06 | Financial Statements | 11 |
| Section 4.07 | Undisclosed Liabilities | 12 |
| Section 4.08 | Absence of Certain Changes | 12 |
| Section 4.09 | Compliance with Laws | 12 |
| Section 4.10 | Government Contracts | 12 |
| Section 4.11 | Company Permits | 12 |
| Section 4.12 | Litigation | 13 |
| Section 4.13 | Material Contracts | 13 |
| Section 4.14 | Intellectual Property; Data Privacy | 16 |
| Section 4.15 | Taxes and Tax Returns | 19 |
| Section 4.16 | Real Property | 21 |
| Section 4.17 | Personal Property | 22 |
| Section 4.18 | Title to and Sufficiency of Assets | 22 |
| Section 4.19 | Employee Matters | 23 |
| Section 4.20 | Benefit Plans | 24 |
| Section 4.21 | Environmental Matters | 26 |
| Section 4.22 | Transactions with Related Persons | 27 |
| Section 4.23 | Insurance | 27 |
| Section 4.24 | Customers and Suppliers | 28 |
| Section 4.25 | Certain Business Practices | 28 |
| Section 4.26 | Investment Company Act | 29 |
| Section 4.27 | Finders and Brokers | 29 |
| Section 4.28 | Independent Investigation | 29 |
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| Section 4.29 | Information Supplied | 30 |
| Section 4.30 | Energy Regulatory Laws | 30 |
| Section 4.31 | Fiber Network | 30 |
| Section 4.32 | No Additional Representations or Warranties | 30 |
| Article V REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND MERGER SUB | 31 | |
| Section 5.01 | Organization and Standing | 31 |
| Section 5.02 | Authorization; Binding Agreement | 31 |
| Section 5.03 | Governmental Approvals | 31 |
| Section 5.04 | Non-Contravention | 32 |
| Section 5.05 | Capitalization | 32 |
| Section 5.06 | SEC Filings and Purchaser Financials | 33 |
| Section 5.07 | Absence of Certain Changes | 34 |
| Section 5.08 | Undisclosed Liabilities | 35 |
| Section 5.09 | Compliance with Laws | 35 |
| Section 5.10 | Legal Proceedings; Orders; Permits | 35 |
| Section 5.11 | Taxes and Returns | 35 |
| Section 5.12 | Properties | 37 |
| Section 5.13 | Investment Company Act | 37 |
| Section 5.14 | Trust Account | 37 |
| Section 5.15 | CFIUS | 37 |
| Section 5.16 | Finders and Brokers | 37 |
| Section 5.17 | Information Supplied | 38 |
| Section 5.18 | Independent Investigation | 38 |
| Section 5.19 | No Additional Representations or Warranties | 38 |
| Article VI COVENANTS | 39 | |
| Section 6.01 | Access and Information; Cooperation | 39 |
| Section 6.02 | Conduct of Business of the Company | 40 |
| Section 6.03 | Conduct of Business of the Purchaser | 41 |
| Section 6.04 | Annual and Interim Financial Statements | 44 |
| Section 6.05 | Purchaser Public Filings | 44 |
| Section 6.06 | No Solicitation | 44 |
| Section 6.07 | No Trading | 45 |
| Section 6.08 | Notification of Certain Matters | 46 |
| Section 6.09 | Efforts | 46 |
| Section 6.10 | Trust Account | 47 |
| Section 6.11 | Certain Tax Matters | 48 |
| Section 6.12 | Further Assurances | 49 |
| Section 6.13 | The Preparation of Proxy Statement/Registration Statement; Shareholders’ Meeting and Approvals | 49 |
| Section 6.14 | Employee Matters | 52 |
| Section 6.15 | Public Announcements | 53 |
| Section 6.16 | Confidential Information | 54 |
| Section 6.17 | Documents and Information | 55 |
| Section 6.18 | Post-Closing Board of Directors and Executive Officers | 55 |
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| Section 6.19 | Indemnification of Directors and Officers; Tail Insurance | 55 |
| Section 6.20 | PIPE Investment | 57 |
| Section 6.21 | Redemption | 57 |
| Section 6.22 | Domestication | 58 |
| Section 6.23 | Adoption of Proxy Statement/Registration Statement | 58 |
| Section 6.24 | Data Room | 58 |
| Article VII CLOSING CONDITIONS | 58 | |
| Section 7.01 | Conditions to Each Party’s Obligations | 58 |
| Section 7.02 | Conditions to Obligations of the Company | 59 |
| Section 7.03 | Conditions to Obligations of the Purchaser and Merger Sub | 60 |
| Section 7.04 | Frustration of Conditions | 61 |
| Article VIII TERMINATION AND EXPENSES | 61 | |
| Section 8.01 | Termination | 61 |
| Section 8.02 | Effect of Termination | 63 |
| Article IX MISCELLANEOUS | 63 | |
| Section 9.01 | No Survival | 63 |
| Section 9.02 | Notices | 64 |
| Section 9.03 | Binding Effect; Assignment | 64 |
| Section 9.04 | Third Parties | 64 |
| Section 9.05 | Governing Law | 65 |
| Section 9.06 | Jurisdiction | 65 |
| Section 9.07 | WAIVER OF JURY TRIAL | 65 |
| Section 9.08 | Specific Performance | 65 |
| Section 9.09 | Severability | 65 |
| Section 9.10 | Amendment; Waiver | 66 |
| Section 9.11 | Entire Agreement | 66 |
| Section 9.12 | Interpretation | 66 |
| Section 9.13 | Counterparts; Electronic Signatures | 67 |
| Section 9.14 | Legal Representation | 67 |
| Section 9.15 | Waiver of Claims Against Trust | 68 |
| Section 9.16 | Company and Purchaser Disclosure Letters | 69 |
| Article X DEFINITIONS | 69 | |
| Section 10.01 | Certain Definitions | 69 |
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| Exhibits | ||
| Exhibit A | Form of Purchaser Charter upon Domestication | |
| Exhibit B | Form of Purchaser Bylaws upon Domestication | |
| Exhibit C | Form of Certificate of Merger (Delaware) | |
| Exhibit D | Form of Articles of Merger (Florida) | |
| Exhibit E | Form of A&R Registration Rights Agreement | |
| Exhibit F | Form of Lock-Up Agreement |
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BUSINESS COMBINATION AGREEMENT
This Business Combination Agreement (this “Agreement”) is made and entered into as of July 21, 2026, by and among (i) Apex Treasury Corporation, a blank check Cayman Islands exempted company (which shall transfer by way of continuation and domesticate as a Delaware corporation prior to Closing) (the “Purchaser”), (ii) Stepping Stone Merger Sub, Inc., a Delaware corporation and a direct wholly-owned subsidiary of the Purchaser (“Merger Sub”) and (iii) TECfusions, Inc., a Florida 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, 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;
WHEREAS, (i) immediately prior to the Domestication (as defined below), each then issued and outstanding Purchaser Class B Ordinary Share shall convert automatically, on a one-for-one basis, into one (1) Purchaser Class A Ordinary Share (the “Sponsor Share Conversion”) and (ii) immediately following the Sponsor Share Conversion, in connection with the Domestication, (x) each then issued and outstanding Purchaser Class A Ordinary Share shall convert automatically, on a one-for-one basis, into one (1) share of Domesticated Purchaser Common Stock; (y) each then issued and outstanding warrant of the Purchaser (each a “Cayman Purchaser Warrant”) shall convert automatically into a warrant to acquire one (1) share of Domesticated Purchaser Common Stock (each a “Domesticated Purchaser Warrant”), pursuant to a certain Warrant Agreement, dated as of October 27, 2025 by and between the Purchaser and Lucky, in its capacity as warrant agent (the “Warrant Agreement”); and (z) each then issued and outstanding shares of capital of the Purchaser (the “Cayman Purchaser Shares”) shall be cancelled and will thereafter entitle the holder thereof to one share of Domesticated Purchaser Common Stock and one Domesticated Purchaser Warrant;
WHEREAS, prior to the Closing but after the Sponsor Share Conversion 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 transfer by way of continuation and deregistration and domesticate as a Delaware corporation in accordance with Section 388 of the Delaware General Corporation Law (the “DGCL”), and Part 12, Section 206 of the Companies Act (As Revised) of the Cayman Islands (the “Cayman Companies Act,” and such continuation and domestication, the “Domestication” and such domesticated entity, the “Domesticated Purchaser”);
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, applicable 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) obtain a certificate of de-registration from the Registrar of Companies in the Cayman Islands, (c) 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 (d) 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 Exhibits A and B as may be agreed in writing by the Purchaser and the Company;
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WHEREAS, after the Domestication and 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 and the Florida Department of State an articles of merger substantially in the form attached hereto as Exhibit D (together, the “Certificates of Merger”) in accordance with the applicable provisions of the FBCA and 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 company of the Merger (the Company, in its capacity as the surviving company of the Merger, is sometimes referred to as the “Surviving Company”);
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 a Sponsor Support Agreement, dated as of the date hereof (the “Sponsor Support Agreement”), pursuant to which the Sponsor has agreed to, among other things, (a) vote to adopt and approve this Agreement and the other documents contemplated hereby (including the applicable Ancillary Documents) and the transactions contemplated hereby and thereby, (b) be bound by certain restrictions on transfer with respect to its equity interests in the Purchaser prior to Closing, (c) be bound by certain lock-up provisions during the lock-up periods described therein with respect to its Domesticated Purchaser Common Stock, (d) waive any adjustment to the conversion ratio set forth in the Organizational Documents of Purchaser or any other anti-dilution or similar protection with respect to the Purchaser Class B Ordinary Shares, as more fully set forth in the Sponsor Support Agreement, and (e) dedicate a portion of Purchaser Class B Ordinary Shares as an incentive mechanism to help maximize the Available Closing Cash, as applicable;
WHEREAS, as a condition and inducement to the Purchaser’s willingness to enter into this Agreement, simultaneously with the execution and delivery of this Agreement, certain Stockholders of the Company have executed and delivered to the Purchaser a Stockholder Support Agreement, dated as of the date hereof, pursuant to which such Stockholders have agreed to, among other things, support the transactions contemplated by this Agreement and the Ancillary Documents and oppose any Acquisition Proposal or Alternative Transaction and vote to adopt and approve this Agreement and the other documents contemplated hereby (including the applicable Ancillary Documents) and the transactions contemplated hereby and thereby;
WHEREAS, in connection with the Transactions, the Purchaser has entered into Subscription Agreements (as defined below) with certain investors, pursuant to which such investors have agreed to the PIPE Investment, on the terms and subject to the conditions set forth therein;
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WHEREAS, from time to time following the date hereof and prior to the Closing, the Purchaser may enter into additional subscription, purchase or similar agreements with additional or existing investors, pursuant to which, and on the terms and subject to the conditions of which, such investors will agree to participate in the PIPE Investment;
WHEREAS, in connection with the consummation of the Transactions, simultaneously with the Closing, the Sponsor, the Purchaser 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 E, 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, (i) the Sponsor and the Company Signatories will enter into a lock-up Agreement (the “Lock-Up 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, the Parties intend that, for U.S. federal, and applicable state and local, income tax purposes, (i) the Domestication shall be treated as a “reorganization” described in Section 368(a)(1)(F) of the Code and the Treasury Regulations promulgated thereunder, (ii) the Sponsor Share Conversion shall be treated as a “reorganization” described in Section 368(a)(1)(E) of the Code and the Treasury Regulations promulgated thereunder, and (iii) 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 Sections 354, 361 and 368 of the Code and Treasury Regulations Sections 1.368-2(g) and 1.368-3(a);
WHEREAS, the Directors of the Company have unanimously, pursuant to and in accordance with the Company Bylaws and Company Charter: (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 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 board of directors of the Purchaser has unanimously: (a) 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; (b) approved this Agreement, the Ancillary Documents, to which it is a party, and the Transactions, to which it is a party, on the terms and subject to the conditions of this Agreement; and (c) adopted a resolution recommending the Merger and the other Transactions, to which it is a party, be approved by the Purchaser Shareholders;
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WHEREAS, the Purchaser, as the sole member of Merger Sub, has approved and adopted this Agreement, the Ancillary Documents, the Merger and the other Transactions; 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 prior to the Domestication (the “Redemption”).
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 Companies Act, after the Redemption and 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 (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 Part 12, Section 206 of the Cayman Companies Act and obtaining a certificate of de-registration from the Cayman Registrar.
(b) Effect on Purchaser Securities. (i) Immediately prior to the Domestication, pursuant to the Sponsor Support Agreement, each then issued and outstanding Purchaser Class B Ordinary Share shall convert automatically, on a one-for-one basis, into one (1) Purchaser Class A Ordinary Share and (ii) in connection with the Domestication, (x) each then issued and outstanding Purchaser Class A Ordinary Share shall convert automatically, on a one-for-one basis, into one (1) share of Domesticated Purchaser Common Stock; (y) each then issued and outstanding Cayman Purchaser Warrant shall convert automatically into one (1) Domesticated Purchaser Warrant; and (z) each then issued and outstanding Cayman Purchaser Share shall be cancelled and will thereafter entitle the holder thereof to one (1) share of Domesticated Purchaser Common Stock and one Domesticated Purchaser Warrant.
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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 Certificates of Merger with the Secretary of State of the State of Delaware and the Florida Department of State, as applicable, in accordance with the applicable provisions of the FBCA and 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 Certificates 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 Company after the Merger and as a direct, wholly-owned subsidiary of the Purchaser. References to the Company for periods after the Effective Time shall include the Surviving Company.
(c) Effect of the Merger. At the Effective Time, the effect of the Merger shall be as provided in this Agreement, the Certificates of Merger and the applicable provisions of the FBCA and 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 Company, which shall include the assumption by the Surviving Company 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 articles of incorporation and the bylaws of the Surviving Company shall be those of the Company.
(e) Directors and Officers of the Surviving Company. Immediately after the Effective Time, the initial board of directors and executive officers of the Surviving Company shall be that of the Company.
Section 1.03 Further Assurances. 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.
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Article II
CONSIDERATION
Section 2.01 Consideration for Company Securities. The aggregate consideration to be paid to holders of equity interests of the Company in, or in connection with, the Merger shall be the Aggregate Consideration. The consideration to be paid in, or in connection with, the Merger in respect of each Company Share immediately prior to the Effective Time shall be a number of shares of Domesticated Purchaser Common Stock equal to the Exchange Ratio (the “Per Share Base Consideration”).
Section 2.02 Conversion of Securities.
(a) Effect on Company Shares. 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 Company Share 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; and
(ii) each Company Share 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 the Per Share Base Consideration; provided that the Per Share Base Consideration received in respect of a Company Share subject to vesting or forfeiture provisions will continue to have, and be subject to, the same vesting and forfeiture provisions applicable to such Company Share immediately prior to the Effective Time.
(b) Effect on Company Options. For purposes of this Agreement, the term “Company Option” means each outstanding and unexercised option to purchase Company Shares, whether or not then vested or fully exercisable, granted prior to the Effective Time to any current or former employee, officer, director or other service provider of the Target Companies (each such individual or Person, a “Company Option Holder” and collectively, the “Company Option Holders”). At the Effective Time, all of the Company Options outstanding immediately prior to the Effective Time will, automatically and without any action on the part of any Company Option Holder or beneficiary thereof, be assumed by Domesticated Purchaser, and each such Company Option shall be converted into an option to purchase shares of Domesticated Purchaser Common Stock (each, a “Converted Option”). Each Converted Option shall continue to be subject to the same terms and conditions as were applicable to such Company Option immediately before the Effective Time (including expiration date, vesting and exercise provisions), except that: (i) the “administrator” with respect to each Converted Option shall be the Board of Directors of Domesticated Purchaser or such committee as the Board of Directors of Domesticated Purchaser may appoint, (ii) each Converted Option shall be exercisable for that number of Domesticated Purchaser Common Stock equal to the product (rounded down to the nearest whole number) of (A) the number of Company Shares subject to the Company Option immediately before the Effective Time multiplied by (B) the Exchange Ratio and (iii) the per share exercise price of each Domesticated Purchaser Common Stock issuable upon exercise of the Converted Option shall be equal to the quotient obtained by dividing (A) the exercise price per Company Share of such Company Option immediately before the Effective Time by (B) the Exchange Ratio (rounded up to the nearest cent); provided, however, that with respect to grantees subject to Taxes in the United States the exercise price and the number of Domesticated Purchaser Common Stock purchasable under each Converted Option shall be determined in a manner consistent with the requirements of Section 409A of the Code and the applicable regulations promulgated thereunder; provided, further, that in the case of any Company Option to which Section 422 of the Code applies, the exercise price and the number of shares of Domesticated Purchaser Common Stock purchasable under such Converted Option shall be determined in accordance with the foregoing in a manner that satisfies the requirements of Section 424(a) of the Code; provided, further, that the foregoing shall not require the Purchaser or Domesticated Purchaser to treat any Converted Option in a manner that assumes the corresponding Company Option was exempt from or compliant with Section 409A of the Code as of its grant, the Company being solely responsible for the status of each Company Option under Section 409A of the Code at and prior to the Effective Time. Prior to the Effective Time, the Company shall deliver to each Company Option Holder a notice, setting forth the effect of the Mergers on such Company Option Holder’s Company Options and describing the treatment of such Company Options in accordance with this Section 2.02(b).
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(c) Effect on Merger Sub Membership Interests. All of Merger Sub’s outstanding membership interests immediately prior to the Effective Time shall automatically be cancelled and converted into validly issued, fully paid and non-assessable membership interests of the Company, which membership interests shall constitute the only outstanding membership interests in the Surviving Company.
Section 2.03 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 Securities 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. No cash settlements shall be made with respect to fractional shares eliminated by rounding.
Section 2.04 Withholding. Notwithstanding any other provision of this Agreement, the Purchaser, Merger Sub, the Company, and the Surviving Company (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 so deducted and withheld and 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, the Purchaser, Merger Sub, the Company and the Surviving Company shall use commercially reasonable efforts to reduce or eliminate any such deduction or withholding, including by providing recipients of consideration with a reasonable opportunity to provide documentation establishing exemptions from or reductions of any such deduction or withholding. 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 relevant Target Company’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 contemplated by this Agreement 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. Four (4) 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 Redemptions; (ii) the aggregate amount of the Purchaser Transaction Costs as of the Closing, including fees associated with the PIPE Investment, and (iii) the number of shares of Domesticated Purchaser Common Stock and Domesticated Purchaser 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 and any forfeiture of Domesticated Purchaser Common Stock or Domesticated Purchaser Warrants pursuant to the Sponsor Support Agreement.
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(b) Company Closing Certificate. Four (4) 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 all invoices, wire instructions and applicable Tax forms for each Person owed (and any other supporting details reasonably requested by the Purchaser).
Section 3.03 Payment of Expenses.
(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 to be paid on the Closing Date.
(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. For the avoidance of doubt, the Purchaser Transaction Costs may be paid by Purchaser from funds available in the Trust Account, after deducting any amounts required to be paid to satisfy the Redemption and any deferred underwriting fees and commissions owed to the underwriters of the IPO on the Closing Date. With respect to any loans or other extensions of credit, including working capital loans, made by the Sponsor and/or its Affiliates to the Purchaser or its Subsidiaries, the Purchaser shall provide to the Company on the Closing Date evidence that all such amounts have been repaid in full and discharged, with no further obligations or Liabilities on Purchaser or the Company.
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, which exceptions shall be deemed to be part of the representations and warranties made hereunder, the Company hereby represents and warrants to the Purchaser and Merger Sub, as of the date hereof and as of the Closing, as follows:
Section 4.01 Organization and Standing. The Company is a Florida corporation duly formed, validly existing and in good standing under the FBCA and has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted and as currently planned to be conducted, except as would not be material to the Target Companies, taken as a whole. The Company 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, except where the failure to be so qualified or licensed or in good standing can be cured without material cost or expense. Each Subsidiary of the Company is a corporation or other entity duly formed, validly existing and in good standing under the Laws of its respective jurisdiction of organization, is duly qualified to do business, and has all requisite corporate power and authority to own, make use of, lease and operate its assets and 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. The Company has heretofore made available to Purchaser prior to the date hereof accurate and complete copies of the Target Companies’ Organizational Documents. No Target Company is in violation of any provision of its Organizational Documents in any material respect.
Section 4.02 Authorization; Binding Agreement. The Target Companies have all requisite power and authority to execute and deliver this Agreement and each Ancillary Document to which it is or is required to be a party, to perform the Target Companies’ respective obligations hereunder and thereunder and to consummate the Transactions, subject to obtaining the Company Stockholder Approval. The execution and delivery of this Agreement and each Ancillary Document to which each Target Company is or is required to be a party and the consummation of the transactions contemplated hereby and thereby, (a) have been duly and validly authorized by the applicable Target Company’s board of managers (or other similar governing body) in accordance with such Target Companies’ Organizational Documents, the FBCA, any other applicable Law or any Contract to which such Target Company or any of its members is a party or by which it or its securities are bound and (b) other than the Company Stockholder Approval, no other proceedings on the part of the Target Companies 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, other than the filing of the Certificates of Merger with the Delaware and Florida Department of State, as applicable. This Agreement has been, and each Ancillary Document to which the Target Companies are or are required to be a party shall be when delivered, duly and validly executed and delivered by the Target Companies 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 Target Companies, enforceable against the Target Companies in accordance with its terms, subject to the Enforceability Exceptions. The Company’s board of directors, by resolutions duly adopted, has (i) determined that this Agreement, the Ancillary Documents and the Transactions are advisable, and in the best interests of, the Company and its Stockholders and (ii) approved this Agreement and the Ancillary Documents and the Transactions in accordance with the FBCA, the Company’s Organizational Documents and any other applicable Law.
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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 Company Securities and the number and type of Company Securities held by each such holder as of the date hereof. Each Company Option was validly granted under a Company Benefit Plan, is set forth (together with its grant date, number of underlying Company Shares and per share exercise price) on Section 4.03(a) of the Company Disclosure Letter, and was granted with a per share exercise price not less than the fair market value of a Company Share on the grant date, determined by a reasonable application of a reasonable valuation method within the meaning of Treasury Regulations Section 1.409A-1(b)(5)(iv) (and, for any Company Option intended to be an “incentive stock option,” Section 422 of the Code).
(b) Prior to giving effect to the Transactions, all of the Company Securities are and will be owned free and clear of any Liens other than Liens imposed under the Company’s Organizational Documents or applicable securities Laws, and other than such securities, the Company does not have any other issued or outstanding membership or any other securities. All of the issued and outstanding Company Securities have been duly authorized and validly issued in accordance with all applicable Laws, including applicable securities Laws, and the Company’s Organizational Documents, are fully paid (or will be fully paid when issued pursuant to the exercise of Company Options) and nonassessable and are not subject to, nor were they issued in violation of, any preemptive rights, rights of first refusal or similar rights. 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 or, to the Knowledge of the Company, any of its security holders is a party or bound relating to any membership interests or other Company Securities, whether or not outstanding. There are no outstanding or authorized subscriptions, options, warrants, rights or other securities (including debt securities) of the Company convertible, exercisable or exchangeable for or measured by reference to any Company Securities, including equity appreciation, phantom equity or similar rights with respect to the Company, and there are no outstanding or authorized commitments, calls, conversion rights, rights of exchange or privilege (whether pre-emptive, contractual or by matter of Law), plans or other agreements of any character providing for the issuance or sale by the Company of any Company Securities. Except as set forth in the Company’s Organizational Documents, 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 Companies’ securities. There are no voting trusts, proxies, shareholder agreements or any other agreements or understandings with respect to the voting of the Company Securities.
(c) Except as provided for in this Agreement, as a result of the consummation of the Transactions, no shares, units, warrants, options or other securities of the Target Companies are issuable and no rights in connection with any shares, units, warrants, options or other securities of the Target Companies accelerate or otherwise become triggered (whether as to vesting, exercisability, convertibility or otherwise).
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(d) Section 4.03(d) of the Company Disclosure Letter sets forth a true, correct and complete list of all Indebtedness of the Target Companies, and, for each such item of Indebtedness, sets forth (i) the outstanding principal amount, (ii) the interest rate (including whether fixed or variable), (iii) the maturity date, (iv) whether such Indebtedness is secured or unsecured and, if secured, the assets securing such Indebtedness and the nature of such Liens and (v) the identity of the creditor. All such Indebtedness is valid and binding on the Target Companies and is in full force and effect. None of the Target Companies are in default under, and no event has occurred that, with or without notice or lapse of time or both, would constitute a default under, any such Indebtedness, except as would not, individually or in the aggregate, be material. None of the Target Companies have guaranteed any Indebtedness of any other Person, and no Person has guaranteed any Indebtedness of the Company. There are no outstanding commitments for the Target Companies to incur any Indebtedness.
(e) The Company has not declared or paid any distribution in respect of its equity interests and has not repurchased, redeemed or otherwise acquired any equity interests of the Company, and the board of directors of the Company has not authorized any of the foregoing.
Section 4.04 Subsidiaries. Section 4.04 of the Company Disclosure Letter sets forth a true and complete list of each of the Company’s direct and indirect Subsidiaries, including for each such Subsidiary its legal name, jurisdiction of organization, legal entity type and, to the extent applicable, its direct equity holders. All of the outstanding equity interests of each Subsidiary are duly authorized, validly issued, fully paid and non-assessable (to the extent applicable), and are owned, directly or indirectly, by the Company free and clear of all Liens (other than Permitted Liens). Such equity interests were issued in compliance in all material respects with applicable securities Laws and are not subject to any preemptive rights or, other than restrictions on transfer arising under applicable securities Laws or the Organizational Documents of the applicable Subsidiary, any restrictions on transfer. There are no outstanding options, warrants, convertible securities or other rights, agreements, arrangements or commitments of any kind obligating the Company or any of its Subsidiaries to issue, transfer, sell, redeem, repurchase or otherwise acquire any equity interests of any Subsidiary (or securities convertible into or exchangeable for such equity interests), and no Subsidiary is party to any Contract requiring it to make any investment in, or acquire any securities of, any other Person.
Section 4.05 No Conflict; Governmental Consents and Filings.
(a) Assuming the truth and completeness of the representations and warranties of Purchaser and Merger Sub contained in this Agreement, the execution and delivery by the Company of this Agreement and each Ancillary Document to which it, or any Target Company, is a party, the consummation by the Company of the transactions contemplated hereby and thereby, and compliance by the Company with any of the provisions hereof and thereof, do not and will not (a) conflict with or violate any provision of the Organizational Documents of any Target Company, (b) subject to obtaining the Consents from Governmental Authorities referred to in Section 4.05(b), 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 Law, Order, Company Permit or Consent applicable to any Target Company or any of its properties or assets, or (c)(i) violate, conflict with or result in a breach of, (ii) constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, (iii) result in the termination, withdrawal, suspension, cancellation or modification of, (iv) accelerate the performance required by any Target Company under, (v) result in a right of termination or acceleration under, (vi) give rise to any obligation to make payments or provide compensation under, (vii) result in the creation of any Lien upon any of the properties or assets of any Target Company under, (viii) give rise to any obligation to obtain any third party Consent or provide any notice to any Person or (ix) give any Person the right to declare a default, exercise any remedy, claim a rebate, chargeback, penalty or change in delivery schedule, accelerate the maturity or performance, cancel, terminate or modify any right, benefit, obligation or other term under, any of the terms, conditions or provisions of, any Company Material Contract or Material Current Government Contract, except in the case of clauses (b) or (c), as would not 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 Purchaser and Merger Sub contained in this Agreement, no Consent of or with any Governmental Authority, on the part of any Target Company is required to be obtained or made in connection with the execution, delivery or performance by the Company of this Agreement and each Ancillary Document to which it is or will be a party or the consummation by any Target Company of the Transactions, other than (a) pursuant to Antitrust Laws, (b) such filings as contemplated by this Agreement, (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, and/ or any state “blue sky” securities Laws, and (e) where the failure to obtain or make such Consents or to make such filings or notifications, would not reasonably be expected to have a Company Material Adverse Effect or delay the Closing Date beyond the Outside Date.
Section 4.06 Financial Statements.
(a) The Company has provided to the Purchaser true, correct and complete copies of each unaudited compiled consolidated financial statements of the Target Companies (including, in each case, any related notes thereto) as of and for the periods from January 1, 2024 ending December 31, 2025, consisting of the consolidated balance sheets of the Target Companies as of such dates and the related consolidated income statements, changes in member equity and statements of cash flows for the periods then ended (the “Company Financials”). The Company Financials were derived in all material respects from 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 commercially reasonable business practices. The Company Financials, when delivered, will have been prepared in all material respects, in accordance with GAAP consistently applied throughout the periods covered thereby and present fairly in all material respects, the consolidated financial position, results of operations, income (loss), changes in equity and cash flows of the Target Companies as of the dates and for the periods indicated in such Company Financials in conformity with GAAP (except in the case of the Company Financials that cover a period of less than one year for the absence of footnote disclosures and other presentation items required for GAAP and exclude year-end adjustments which will not be material in amount) and were derived from and accurately reflect in all material respects, the books and records of the Target Companies. The Target Companies have never 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 system of internal controls. Such internal controls are 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) The Company has not identified and has not received written notice from an independent auditor of (x) any significant deficiency or material weakness in the system of internal controls utilized by the Company (other than a significant deficiency or material weakness that has been previously disclosed in writing to Purchaser and is set forth in the Company Disclosure Letter), (y) any material fraud that involves the Company’s management or other employees who have a significant role in the preparation of financial statements or the internal controls over financial reporting utilized by the Company or (z) any claim or allegation regarding any of the foregoing.
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(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 any Target Company.
Section 4.07 Undisclosed Liabilities. The Target Companies have no Liabilities, except for Liabilities: (a) reflected or reserved for on the Company Financials or disclosed in the notes thereto; (b) incurred in the ordinary course of the operation of business of the Target Companies since the date of the most recent balance sheet included in the Company Financials; (c) incurred in connection with the Transactions; or (d) which would not, individually or in the aggregate, reasonably be expected to be material to the Target Companies, taken as a whole.
Section 4.08 Absence of Certain Changes. Except for activities conducted in connection with this Agreement and the transactions contemplated hereby, since December 31, 2025 through the date of this Agreement, (a) the Company has conducted its business in the ordinary course of business consistent with past practice, (b) there has not been any Company Material Adverse Effect, and (c) the Company has not taken any action nor committed or agreed to take any action that would be prohibited by Section 6.02(b), if such action were taken on or prior to the Closing without the consent of the Purchaser.
Section 4.09 Compliance with Laws. The Company has, during the past three (3) years, 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 a whole. No written, or to the Knowledge of the Company, oral notice alleging non-compliance with any applicable Law in any material respect by the Target Companies has been received by any Target Company.
Section 4.10 Government Contracts. Section 4.10 of the Company Disclosure Letter sets forth a list of each Contract with a Governmental Authority, the period of performance of which has not yet expired or been terminated as of the date hereof (each, a “Material Current Government Contract”). Each Material Current Government Contract was legally awarded to the Target Companies, as applicable. Except as would not reasonably be expected to be material to the Target Companies, taken as a whole, and except for any Material Current Government Contract that is terminated or expires following the date hereof in accordance with its terms, all Material Current Government Contracts are: (i) a legal, valid binding obligation of the Target Companies, as applicable; and (ii) in full force and effect and enforceable against the Target Companies, as applicable, in accordance with its terms, in each case subject to the Enforceability Exceptions.
Section 4.11 Company Permits. Each Target Company (and its employees who are legally required to be licensed by a Governmental Authority in order to perform his or her duties with respect to his or her employment with any Target Company), holds all material Permits required to own, lease and operate its assets and properties as presently owned, leased or operated (collectively, the “Company Permits”), and to the Knowledge of the Company, there is no basis for a Governmental Authority to deny to any Target Company (or its employees who are legally required to be licensed by a Governmental Authority in order to perform his or her duties with respect to his or her employment with the Target Companies) a Permit that will be required for the operations of the Target Companies as currently planned to be conducted. The Company has made available to the Purchaser prior to the date hereof true, correct and complete copies of all the Company Permits. To the Knowledge of the Company, each Company Permit is in full force and effect and will upon its termination or expiration be timely renewed or reissued upon terms and conditions substantially similar to its existing terms and conditions and 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. Each Target Company has at all times operated in material compliance with all Company Permits applicable to such Target Company.
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Section 4.12 Litigation. There is no (a) Legal Proceeding of any nature currently pending or, to the Knowledge of the Company, threatened, against any Target Company or any of its 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; (b) to the Knowledge of the Company, there are no pending or threatened, audits, examinations or investigations by any Governmental Authority against any Target Company; (c) pending or threatened 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; and (e) Orders imposed 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 Company’s Knowledge, any of the directors or officers of any Target Company with regard to their actions as such.
Section 4.13 Material Contracts.
(a) Section 4.13(a) of the Company Disclosure Letter sets forth a true, correct and complete list of all Contracts described in clauses (i) through (xxi) below, 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 or affected (each Contract required to be set forth on Section 4.13(a) of the Company Disclosure Letter, a “Company Material Contract”). True, correct, complete copies of the Company Material Contracts, including amendments thereto, have been delivered or made available to the Purchaser prior to the date hereof. The Company Material Contracts are:
(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, including any non-competition 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, 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) Each Contract that involves 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) Each Contract that is reasonably anticipated to involve the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or shares or other equity interests of any Target Company or another Person;
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(v) Each Contract for the acquisition of any Person or any business division thereof or the disposition of any assets of any Target Company, in each case, whether by merger, purchase or sale of stock or assets or otherwise occurring in the last three (3) years and/or relating to pending or future acquisitions or dispositions;
(vi) Each obligation to make payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons;
(vii) Each lease, rental agreement, installment and conditional sale agreement, or other Contract that, in each case, provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any real or personal property;
(viii) Each Contract that by its terms, individually or with all related Contracts, provides for aggregate payments or receipts by the Target Companies under such Contract or Contracts in excess of $2,500,000 in the aggregate, or that would be reasonably expected to result in payments or receipts in excess of $2,500,000, in any twelve month period and cannot be cancelled by the Target Companies without penalty or without more than sixty (60) days’ notice;
(ix) Each Contract with any Top Customer or Top Supplier (other than purchase orders, invoices, statements of work and non-disclosure or similar agreements entered into in the ordinary course of business consistent with past practice that do not contain any material terms relating to the Contract underlying the applicable Top Customer or Top Supplier relationship);
(x) Each Contract entered into with a Governmental Authority;
(xi) Each Contract involving Indebtedness;
(xii) Each collective bargaining (or similar) agreement or Contract between a Target Company on one hand, and any labor union or other body representing employees of such Target Company on the other hand;
(xiii) Each Contract that obligates any Target Company to provide continuing indemnification or a guarantee of obligations of a third party after the date hereof (other than customary indemnification obligations entered into in the ordinary course of business);
(xiv) Each Contract that is between any Target Company and any directors, officers or employees of any Target Company that provide for change in control, retention or similar payments or benefits that may be contingent upon, accelerated by or triggered by the consummation of the Transactions;
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(xv) Each Contract that obligates the Target Companies to make any capital commitment or expenditure (including pursuant to any joint venture);
(xvi) Each Contract that relates to a settlement;
(xvii) Any Contract that provides another Person (other than any other Target Company or any director or officer of a Target Company, acting in his or her capacity as such) with a power of attorney to act on behalf of any Target Company or to act on behalf of any manager, director or officer of any Target Company with respect to any Target Company;
(xviii) Each (A) Contract which contains any covenant not to assert or enforce any Owned Intellectual Property; (B) Contract pursuant to which any Intellectual Property material to the business of any Target Company is or was developed by, with or for any Target Company or otherwise assigned to any Target Company; or (C) Company IP License, in the case of (A), (B) and (C) excluding (unless they otherwise qualify as Company Material Contracts under a different subsection of this Section 4.13): (v) non-exclusive licenses of Owned Intellectual Property granted to suppliers, customers or end users, in each case, in the ordinary course of business; (w) non-exclusive licenses of Intellectual Property that are incidental to the Contract; (x) licenses of Open Source Software; (y) Off-the-Shelf Software; and (z) invention assignment, nondisclosure agreements and confidentiality agreements with employees and contractors entered into in the ordinary course of business;
(xix) Each Contract involving transactions with an Affiliate or a Related Person of any Target Company (other than employment agreements);
(xx) Each Contract that is a settlement, conciliation, or similar agreement with any Governmental Authority or pursuant to which any Target Company will have material outstanding obligations after the date hereof; and
(xxi) Each Right Of Way.
(b) With respect to each Company Material Contract or for any Company Material Contract that is terminated or expires following the date hereof in accordance with its terms: (i) such Company Material Contract is valid and 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); (ii) except as would not reasonably be expected to be material to the Target Companies, taken as a whole the consummation of the transactions contemplated by this Agreement will not affect the validity or enforceability of any Company Material Contract; (iii) no Target Company is in breach of or default under, in any material respect, 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, under such Company Material Contract; (iv) to the Knowledge of the Company, no other party to such Company Material Contract is in breach or default in any material respect, 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 such a material breach or default by such other party, or permit termination or acceleration by any Target Company, under such Company Material Contract; (v) 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 (A) to terminate such Company Material Contract, (B) amend the terms thereof, other than modifications in the ordinary course of business that do not adversely affect any Target Company in any material respect(C) not to renew such Company Material Contract; and (vi) no Target Company has waived any material rights under any such Company Material Contract.
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(c) Section 4.13(c) of the Company Disclosure Letter sets forth a true, correct and complete list of any executed term sheet, memorandum of understanding, letter of intent, or similar document, whether or not binding, to which any Target Company is a party (each, a “Company Material MOU”). True, correct, complete copies of the Company Material MOUs, including amendments thereto, have been delivered or made available to the Purchaser prior to the date hereof. The Company has not received written or, to the Knowledge of the Company, oral notice of an intention by any party to any Company Material MOU (A) to terminate such Company Material MOU, (B) not to proceed with the arrangements or transactions contemplated by such Company Material MOU, (C) amend the material terms or conditions of such Company Material MOU or (D) delay the execution of such definitive agreements beyond the Company’s current expectations for definitive agreements.
Section 4.14 Intellectual Property; Data Privacy.
(a) Section 4.14(a) of the Company Disclosure Letter sets forth a true, accurate, and complete list of: all U.S. and foreign registered or issued Intellectual Property and applications therefore (including internet domain names) owned by a Target Company (“Company Registered IP”), specifying as to each item, as applicable: (A) the nature of the item, including the title, (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 applicable issuance, registration or application numbers and dates. Each item of Company Registered IP is subsisting, valid and enforceable and has not expired or been cancelled or abandoned. None of the Company Registered IP is subject to any maintenance fees or actions falling due within (60) days after the date hereof. Each Target Company owns, free and clear of all Liens (other than Permitted Liens) all Owned Intellectual Property. No item of Company Registered IP that consists of a pending Patent application fails to identify all pertinent inventors, and for each Patent and Patent application in the Company Registered IP, the Target Companies have obtained valid present assignments of inventions from each inventor. All Company Registered IP 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 Target Company has recorded assignments of all Company Registered IP.
(b) Each Target Company has a valid and enforceable written license or other valid right to use all Third-Party IP used in the conduct of the business of such Target Companies as currently conducted. To the Knowledge of the Company, each Target Company has a reasonable basis for obtaining on commercially reasonable terms any Intellectual Property in addition to the Company IP necessary to operate such Target Company as currently planned to be conducted. 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 Owned Intellectual Property or any Intellectual Property developed by a Target Company under such Contract.
(c) No Target Company nor the operation of the business of any Target Company infringes, misappropriates or otherwise violates, or since February 27, 2023 has infringed, misappropriated, or otherwise violated any Intellectual Property of any Person. No Legal Proceeding has been made since February 27, 2023 or is pending or, to the Company’s Knowledge, threatened against a Target Company that: (i) alleges such infringement, misappropriation or violation; or (ii) challenges the validity, enforceability, ownership, or right to use, sell, license or sublicense, or that otherwise relates to, any Owned Intellectual Property, and to the Knowledge of the Company, there is no reasonable basis for any such Legal Proceeding. There are no Orders or agreements to which any Target Company is a party or is otherwise bound that (i) restrict the rights of a Target Company to use, transfer, license or enforce any Owned Intellectual Property, or (ii) restrict the conduct of the business of a Target Company in order to accommodate a third Person’s Intellectual Property. To the Company’s Knowledge, no third party is currently, or since February 27, 2023 has infringed upon, misappropriated or otherwise violated any Owned Intellectual Property.
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(d) No current or former officer, employee, independent contractor, or other Person employed or engaged by a Target Company has any ownership interest in any Owned Intellectual Property. No Person has claimed 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 violation of a Target Company’s policies or practices related to protection of Company IP or any confidentiality or nondisclosure Contract relating to the Owned Intellectual Property. Each Target Company has taken commercially reasonable efforts and security measures in order to maintain, preserve and protect all Owned Intellectual Property, including to protect the secrecy, confidentiality and value of the trade secrets and other material confidential information included therein. All Persons who have participated in or contributed to the creation or development of Intellectual Property on behalf of the Company have executed written agreements pursuant to which all of such Person’s right, title and interest in and to such Intellectual Property has been assigned (by a present tense assignment or by Law) to one or more of the Target Companies (or all such right, title, and interest vested in one or more of the Target Companies by operation of Law) and such Person agrees to confidentiality provisions protective of the confidential information of the Company. To the Company’s Knowledge, no such Person is in violation of such agreement.
(e) Each Target Company is in all material respects in compliance with all licenses governing any Open Source Software that is included, incorporated or embedded in, linked to, called by, combined, made available or distributed with, or used in the development, maintenance, operation, delivery or provision of any Company 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, maintenance, operation, delivery or provision of any Company Software in a manner that requires any Target Company to: (i) disclose, contribute, distribute, license, offer, deliver or otherwise make available to any Person (including the open source community) any source code to such Company Software; (ii) license any such Company Software or other Owned Intellectual Property for making modifications or derivative works; or (iii) disclose, contribute, distribute, license or otherwise make available to any Person any such Company Software or other Owned Intellectual Property for no or nominal charge; or (iv) grant a license to, or refrain from asserting or enforcing any of, its Patents (“Copyleft Terms”).
(f) No Target Company has delivered, licensed or made available to any escrow agent or other Person any source code for any Company Software except for disclosures to employees and contractors for such Target Company that are subject to written confidentiality obligations to maintain the confidentiality of such source code and who have had such access only during the term of their employment by or provision of services to such Target Company. No Target Company has any duty or obligation (whether present, contingent or otherwise) to deliver, license or make available the source code for any Company Software to any escrow agent or other Person except to the aforementioned employees and contractors.
(g) No government funding, resources or assistance, nor any facilities of a university, college, other educational institution, or similar institution, or research center or private or commercial third parties in their respective research and development activities were used in the development of any Owned Intellectual Property. No Governmental Authority has any (i) ownership interest or exclusive license in or to any 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 Company Software, or (iii) “march in rights” (pursuant to 35 U.S.C. § 203) in or to any Patents constituting Owned Intellectual Property. No Target Company is a member of or party to, or has participated in any patent pool, industry standards body, trade association or other organization pursuant to the rules of which any Target Company is obligated to license or offer to license any existing or future Owned Intellectual Property to any Person.
(h) The IT Assets: (i) are in good repair and operating condition to perform all information technology operations to operate the business of the Company as currently operated; and (ii) to the Company’s Knowledge, do not contain and are not, and have not been, affected by any virus, spyware, malware, worm, Trojan horse, or other disabling codes or instructions, or other similar code or software routines or components.
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(i) None of the Target Companies and, to the Knowledge of the Target Companies, none of its Data Processors, have suffered or are suffering a Security Incident, or have been or are required to notify any Person of any Security Incident. The Target Companies have not received a written notice (including any enforcement notice), letter or complaint from a Person alleging noncompliance or potential noncompliance with any Data Privacy, AI, and Security Requirements and have not been subject to any proceeding relating to noncompliance or potential noncompliance with Data Privacy, AI, and Security Requirements or the Target Companies’ Processing of Target Company Data.
(j) Each Target Company and, with respect to the Processing of Target Company Data, its Data Processors, materially comply and have materially complied at all times in the preceding three (3) years with Data Privacy, AI, and Security Requirements. Each Target Company, to the extent required under Data Privacy, AI and Security Requirements, has: (i) maintained a record of Personal Data Processing activities, (ii) provided required information to data subjects whose Personal Data is Processed and ensures that all Processing of Personal Data is carried out in reliance on a valid legal basis, (iii) retained Personal Data only for as long as is necessary, (iv) conducted vendor due diligence appropriate to the risk posed by a Data Processor; and (v) ensured all cross-border transfers of, or access to, Personal Data are carried out in compliance with Data Privacy, AI, and Security Requirements. Where a Target Company uses a Data Processor or third party to Process Target Company Data, to the extent required by Data Privacy, AI, and Security Requirements, the Target Companies have in place Contracts with all Data Processors and third parties to ensure that the Data Processor or third party maintains the confidentiality and security of the Target Company Data and has complied in the preceding three (3) years with Data Privacy, AI, and Security Requirements, and such Contracts include Processing provisions as required under Data Privacy, AI, and Security Requirements.
(k) With respect to the development, training, uses, and any other Processing of AI Technologies, the Target Companies have in the preceding three (3) years (i) complied with Data Privacy, AI, and Security Requirements in all material respects; and (ii) implemented policies and procedures reasonably designed to ensure the ethical and safe deployment and uses of such technologies and compliance with Data Privacy, AI, and Security Requirements.
(l) The Target Companies have established an Information Security Program that is appropriately implemented and maintained, and there have been no material violations of the Information Security Program. The Target Companies have assessed and tested the Information Security Program on a no less than annual basis, remediated all critical and high risks and vulnerabilities, and the Information Security Program has proven sufficient and materially compliant with Data Privacy, AI, and Security Requirements. The IT Assets currently used by the Target Companies are in good working condition, do not contain any malicious code or defect, and operate and perform as necessary to conduct the business of the Target Companies. Each Target Company maintains, and has maintained, cyber liability insurance with reasonable coverage limits.
(m) The consummation of any of the Transactions will not result in (i) any material violation of Data Privacy, AI, and Security Requirements; or (ii) the material breach, material modification, cancellation, termination, suspension of, or acceleration of any payments with respect to, or release of source code because of (a) any Contract providing for the license or other use of material Intellectual Property owned by a Target Company, or (b) any Company IP License. All Target Company Data will continue to be available for Processing by the Target Companies following the Closing on substantially the same terms and conditions as existed immediately before the Closing.
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(n) All Company IP used in or necessary to the conduct of the business of the Company as currently conducted shall be owned or available for use by the Company immediately after the Closing on terms and conditions substantially similar to those under which the Company owned or used such Company IP immediately prior to the Closing.
Section 4.15 Taxes and Tax Returns.
(a) Each Target Company (i) has or will have timely filed, or caused to be timely filed, all income and material non-income 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, correct 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 and material non-income 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 and otherwise complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes.
(b) There is no Legal Proceeding currently pending or otherwise in progress or threatened in writing against any Target Company by a Governmental Authority in a jurisdiction where such 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.
(c) There is no claim, assessment, audit, examination, investigation or other Legal Proceeding that is pending or otherwise in progress or threatened in writing against any Target Company in respect of any Tax, and no Target Company has been notified in writing of any proposed Tax claim, deficiency or assessment against it. No Target Company is currently contesting any material Tax liability before any Governmental Authority.
(d) There are no Liens with respect to any Taxes upon any assets of any Target Company, other than Permitted Liens.
(e) 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. There are no outstanding requests by any Target Company for any extension of time to file any Tax Return or to pay any Taxes shown to be due on any Tax Return, other than extensions in the ordinary course of business consistent with past practice.
(f) 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: (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 other agreement or arrangement with a Governmental Authority relating to Taxes.
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(g) 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).
(h) No Target Company has been a member of an affiliated, combined, consolidated, unitary or other group for Tax purposes. No Target Company has 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 by operation of Law (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 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.
(i) No Target Company has requested, nor 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.
(j) The Company is, and has at all times since its formation, been classified as an association taxable as a C corporation for U.S. federal and applicable state and local income tax purposes and a “United States person” within the meaning of Section 7701(a)(30)(C) of the Code. Each Subsidiary of the Company is, and has at all times since its formation, been classified as a disregarded entity for U.S. federal and applicable state and local income tax purposes.
(k) No Target Company is or has ever owned (directly or indirectly) (i) any interest in a “controlled foreign corporation” (within the meaning of Section 957 of the Code) or (ii) any interest in a “passive foreign investment company” (within the meaning of Section 1297 of the Code).
(l) No Target Company has ever had a permanent establishment, office, branch, fixed place of business or other taxable presence in any country other than the country of its organization.
(m) No Target Company has 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) within the past three (3) years.
(n) No Target Company has taken any action or agreed to take any action (or permit any action to be taken), nor is aware of any fact or circumstance, that would reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatments.
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Section 4.16 Real Property.
(a) Section 4.16(a)(1) of the Company Disclosure Letter sets forth a true, correct, and complete listing of all real property owned by any Target Company (the “Company Owned Real Properties”), including the street address and owner thereof. Each Target Company has made available to the Purchaser prior to the date hereof true, correct, and complete copies of the title insurance policies, the most recent title reports and surveys with respect to such Company Owned Real Property to the extent such items are in its possession. Each Target Company has good and marketable fee simple title to each Company Owned Real Property free and clear of all Liens (other than Permitted Liens). Other than the Company Owned Real Properties, no Target Company owns any real property. Except as set forth on Section 4.16(a)(2) of the Company Disclosure Letter, there are no parties in possession, as tenants, licensees or, to the Knowledge of the Company, otherwise, or parties having any option, right of first offer or first negotiation or right of first refusal or other similar rights granted to third parties to purchase or lease the Company Owned Real Properties or any portion thereof or interest therein. There is no condemnation or eminent domain proceeding pending or, to the Knowledge of the Company, threatened with respect to any of the Company Owned Real Properties or any portion thereof.
(b) Section 4.16(b) of the Company Disclosure Letter contains a true, correct and complete list of all premises currently leased or subleased or otherwise used or occupied (but not owned) by any Target Company for the operation of its business (the “Company Leased Real Properties”), and of all current leases, lease guarantees, lease amendments, and lease modifications thereof (collectively, the “Company Real Property Leases”), including the street address thereof (if applicable) and parties to such Company Real Property Leases. The Company has provided to the Purchaser a true and complete copy of each of the Company Real Property Leases. Each Company Real Property Lease is valid and binding and enforceable in all respects against the applicable Target Company 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). With respect to each Company Real Property Lease, (i) no Target Company is in material breach of or material default under any Company Real Property Lease, (ii) 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 material breach or default by any Target Company and, (iii) to the Knowledge of the Company, no other party to such Company Real Property Lease is in breach or default, in any material respect, and no event has occurred that with the passage of time or giving of notice or both would constitute such a material breach or default by such other party, or permit termination or acceleration by any Target Company, under such Company Real Property Lease. No Target Company has leased, licensed or otherwise granted use or occupancy rights with respect to any Company Leased Real Properties or any portion thereof to any third party. No party to any Company Real Property Lease has exercised any termination rights with respect thereto. To the Knowledge of the Company, there is no condemnation or eminent domain proceeding pending or threatened with respect to any of the Company Leased Real Properties or any portion thereof. No Target Company has assigned, transferred or pledged any interest in any of the Company Real Property Leases.
(c) Each Target Company owns or has such easements, rights-of-way, consents, permits, licenses, surface rights, surface leases, surface use agreements, land use agreements, servitudes or similar non-possessory interests with respect to real property (collectively “Rights-Of-Way”) as are necessary to conduct its business as currently conducted.
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(d) No Target Company is obligated or bound by any options, obligations or rights of first refusal or contractual rights to sell, lease or acquire any real property (except the Company Leased Real Properties). All buildings, structures, facilities and improvements located on the Company Real Properties, including buildings, structures, facilities and improvements which are under construction, comply in all material respects with valid and current certificates of occupancy or similar Permits to the extent required by Laws for the use thereof, and conform in all material respects with all applicable Laws.
Section 4.17 Personal Property. Each item of Personal Property which is currently owned, used or leased by a Target Company are in operating condition (reasonable wear and tear excepted), as are reasonably suitable for their intended use in the business of the Target Companies. The Company has provided to the Purchaser true and complete copies of all lease agreements, lease guarantees, security agreements and other agreements relating to any material Personal Property used or leased by a Target Company, including all amendments, terminations and modifications thereof or waivers thereto (the “Company Personal Property Leases”). To the Knowledge of the Company, the Company Personal Property Leases are valid, binding and enforceable in accordance with their terms and are in full force and effect. To the Knowledge of the Company, no event has occurred which (whether with or without notice, lapse of time or both or the happening or occurrence of any other event) would constitute a default on the part of any Target Company or any other party under any of the Company Personal Property Leases, and no Target Company has received notice of any such condition.
Section 4.18 Title to and Sufficiency of Assets.
(a) Each Target Company has good and marketable title to, or a valid leasehold interest in or right to use its respective material tangible and intangible assets (excluding Intellectual Property, which is exclusively the subject matter of Section 4.14) that are necessary to conduct the business of the Target Companies as presently conducted, free and clear of all Liens other than (a) Permitted Liens and (b) the rights of lessors under material leasehold interests. The material assets (including Company Real Properties and contractual rights, but excluding Intellectual Property) of the Target Companies constitute all of the assets, rights and properties that are necessary for the normal operation of the businesses of the Target Companies in all material respects as they are now conducted, and the Target Companies have a reasonable basis for obtaining on commercially reasonable terms any additional assets, rights and properties necessary to operate the Target Companies as currently planned to be conducted. The material tangible assets (including Company Real Properties) or personal property of the Target Companies have been maintained in all material respects in accordance with generally accepted industry practice, are in good working order and condition, except for ordinary wear and tear and as would not, individually or in the aggregate, reasonably be expected to be material to the Target Companies, taken as a whole.
(b) The Target Companies have secured all material electrical power, interconnection rights, fuel supply, water, and other utilities necessary to operate each data center facility as currently operated. All such arrangements are in full force and effect, and no Target Company has received written notice of curtailment, termination or material reduction. The data center facilities have been designed and are operated with commercially reasonable redundancy, backup power, cooling and physical security systems consistent with industry standards. All of the assets and tangible property used by each Target Company are in normal operating condition for similar facilities of a similar age and in state of reasonable maintenance and repair suitable for the purposes for which it is being used in the conduct of the business of each Target Company. The assets of the Target Companies include all assets, properties and rights owned, used or held for use in, and are sufficient for, the operation of the business as currently conducted. All of the personal property included in the assets and properties of the Target Companies is in an operable state of repair adequate to maintain normal operations as currently used by or on behalf of the Target Companies, ordinary wear and tear excepted.
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(c) No part of the assets comprising the assets and properties of the Target Companies is located on lands that are not subject to an agreement, easement or other surface right held by a member of the Target Companies permitting the location of such assets on such lands, except as would not reasonably be expected to be material to the ownership, use or operation of the assets and properties of the Target Companies. The assets and properties of the Target Companies include all assets necessary to access, own and operate the assets and properties of the Target Companies and their relevant network as currently accessed, owned and operated by the Target Companies. No member of the Target Companies has received any unresolved written notice from any counterparty to any agreement, easement or other surface right used or held for use in connection with the assets and properties of the Target Companies seeking to terminate or materially amend any such agreement, easement or surface right. The Target Companies collectively own or hold all assets reasonably necessary to access, own and operate the assets and properties of the Target Companies as currently operated.
Section 4.19 Employee Matters.
(a) No Target Company is or has ever been a party to any collective bargaining agreement or other Contract covering any group of employees with any labor organization or other representative of any of the employees of the Company, and to the Knowledge of the Company, there are not, and in the past three (3) years, there have not been, any activities or proceedings of any labor union 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 any strike, slow-down, picketing, work-stoppage, or other similar labor activity with respect to any such employees. No current officer or other key employee of the Company, as of the date of this Agreement, has provided the Company with written notice of his or her intention to terminate his or her employment within the one (1) year period following the Closing.
(b) Each Target Company is, and, within the past three (3) years has been, in compliance 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, family and medical leave, and employee terminations, except for failures to comply which, individually or in the aggregate, have not been and would not reasonably be expected to be, material to such Target Company. No Target Company has received written or, to the Knowledge of the Company, oral notice that there is any pending Legal Proceeding involving unfair labor practices against such Target Company. There are no material Legal Proceedings pending or, to the Knowledge of the Company, threatened against any Target Company 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) No employee is a party to a written employment arrangement with any Target Company and each is employed “at will,” and no Target Company has any obligation or Liability (whether or not contingent) with respect to severance payments to any such employees under the terms of any written or, to the Knowledge of the Company, oral agreement, or commitment or any applicable Law, custom, trade or practice.
(d) In the past three (3) years, no Target Company has received (i) notice of any unfair labor practice charge or material complaint pending or, to the Knowledge of the Company, threatened before the National Labor Relations Board against it, (ii) notice of any material grievances or arbitrations arising out of any collective bargaining agreement to which any Target Company is a party, or (iii) notice of the intent of any Governmental Authority responsible for the enforcement of labor, employment, wages and hours of work, child labor, or immigration to conduct an investigation with respect to or relating to them or notice that such investigation is in progress.
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(e) To the Knowledge of the Company, no present or former employee at the level of vice president or above of any Target Company is in material violation of (i) any restrictive covenant or nondisclosure obligation to any Target Company or (ii) any restrictive covenant or nondisclosure obligation to a former employer of any such individual relating to (A) the right of any such individual to work for or provide services to any Target Company or (B) the knowledge or use of trade secrets.
(f) In the past three (3) years, no target Company has engaged in layoffs, furloughs or employment terminations sufficient to trigger application of the Worker Adjustment and Retraining Notification Act or any similar state or local law.
(g) 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 or individual service provider 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.
Section 4.20 Benefit Plans.
(a) Set forth on Section 4.20(a) of the Company Disclosure Letter is a true and complete list of each material 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, in all material respects. No Target Company is required to provide employee benefits pursuant to a collective bargaining agreement or other Contract covering any group of employees, labor organization or other representative of any of the employees.
(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 Company is entitled to rely) or (ii) the applicable Target Company has requested an initial favorable IRS determination of qualification and/or exemption within the period permitted by applicable Law and to the Knowledge of the Company, 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 the Company has provided to Purchaser accurate and complete copies, if applicable, of: (i) all Company Benefit Plan documents, service agreements and related trust agreements or annuity Contracts (including any amendments, modifications or supplements thereto); (ii) the most recent summary plan descriptions and material modifications thereto; (iii) the three (3) most recent Form 5500s, if applicable, and annual report, including all schedules thereto; (iv) the most recent annual and periodic accounting of plan assets; (v) the three (3) most recent nondiscrimination testing reports; (vi) the most recent determination letter (or opinion or advisory letter) received from the IRS, if any; (vii) the most recent actuarial valuation; and (viii) 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 Knowledge of the Company, threatened (other than routine claims for benefits arising in the ordinary course 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 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) No 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 no Target Company has incurred any Liability, could not otherwise 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. No Target Company has or has ever maintained, and is not and has never been required to contribute to or otherwise participate in, (i) a multiple employer welfare arrangement or voluntary employees’ beneficiary association as defined in Section 501(c)(9) of the Code or (ii) a “funded welfare plan” within the meaning of Section 419 of the Code.
(f) 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 any Target Company to any severance pay or increase in severance pay or any other compensation payable by such Target Company, (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 any Target Company, (iii) directly or indirectly cause any Target Company to transfer or set aside any assets to fund any material benefits under any Company Benefit Plan, (iv) otherwise give rise to any material Liability under any Company Benefit Plan, or (v) limit or restrict the right to merge, materially amend, terminate or transfer the assets of any Company Benefit Plan on or following the Closing. The consummation of the transactions contemplated hereby 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, including with respect to the Taxes imposed under Sections 409A or 4999 of the Code.
(g) Except to the extent required by Section 4980B of the Code or similar state Law, No Target Company provides health or welfare benefits to any former or retired employee and is not obligated to provide such benefits to any active employee following such employee’s retirement or other termination of employment or service.
(h) Each Company Benefit Plan can be terminated at any time without resulting in any material Liability to any Target Company, the Purchaser, Merger Sub or their respective Affiliates for any additional contributions, penalties, premiums, fees, fines, excise taxes or any other charges or liabilities, other than Liabilities with respect to participant accrued benefits through the effective date of such termination in accordance with the terms of such plan and ordinary administration costs typically incurred in a termination event.
(i) Each Company Benefit Plan and Company Option that is or may be subject to Section 409A of the Code has, in all material respects, been established and administered in documentary and optional compliance with, or any applicable exemption from, Section 409A of the Code.
(j) Each Target Company has complied in all material respects with the applicable provisions of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended, to the extent applicable, including the employer shared responsibility provisions relating to the offer of “affordable” health coverage that provides “minimum essential coverage” to “full-time” employees (as those terms are defined in Section 4980H of the Code and related regulations) and the applicable employer information reporting requirements under Code Section 6055 and Code Section 6056 and related regulations.
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Section 4.21 Environmental Matters.
(a) Each Target Company and its properties and facilities are, and during the past three (3) years have been, in compliance in all material respects with all applicable Environmental Laws and all Contract terms for the protection of health, safety, or the environment, including obtaining, maintaining in good standing, and complying with all Permits required for their business and operations under any Environmental Laws (“Environmental Permits”).
(b) No Legal Proceeding is pending or, to the Knowledge of the Company, threatened against any Target Company or its assets or properties alleging a material violation of, or material liability under, any Environmental Law, Environmental Permit, or Contract terms for the protection of health, safety, or the environment, including with respect to the revocation, modification or termination of any Environmental Permits, and, to the Knowledge of the Company, no facts, circumstances, or conditions currently exist that would reasonably be expected to adversely affect compliance with Environmental Laws, Environmental Permits, or Contract terms for the protection of health, safety, or the environment, or require material capital expenditures to achieve or maintain such compliance.
(c) No Target Company, nor any of its properties, facilities or operations, is the subject of any outstanding material Order or Contract with any Governmental Authority or other Person in respect of any (i) Environmental Law, (ii) Remedial Action, or (iii) Release or threatened Release of a Hazardous Material. No Target Company has assumed, contractually or by operation of Law, or provided indemnity against any material Environmental Liabilities of any other Person.
(d) No Target Company has manufactured, treated, stored, disposed of, arranged for or permitted the disposal of, generated, handled or Released any Hazardous Material, nor owned or operated any property or facility, in a manner that has given or would reasonably be expected to give rise to any material Environmental Liability or obligation under applicable Environmental Laws or Contract terms for the protection of health, safety, or the environment. To the Knowledge of the Company, no fact, circumstance, or condition exists in respect of any Target Company or any property currently or formerly owned, operated, or leased by any Target Company, or any other property that could reasonably be expected to result in any material Environmental Liability to any Target Company.
(e) No Target Company has received written notice of any investigation of the business, operations, or currently or formerly owned, operated, or leased property of any Target Company that could lead to the imposition of any material Liens or Environmental Liabilities and, to the Knowledge of the Company, no such investigations are pending or threatened in writing.
(f) There has been no Release of, or exposure to, any Hazardous Material at, on, under, or from any facility currently or formerly owned or operated by any Target Company or any third-party site, in each case in a manner that could reasonably be expected to give rise to a material Environmental Liability of any Target Company, including for Remedial Action costs, investigation costs, cleanup costs, response costs, corrective action costs, personal injury, property damage, natural resources damages, and attorneys’ fees.
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(g) There are no (i) underground storage tanks, (ii) asbestos-containing materials, (iii) equipment containing polychlorinated biphenyls, or (iv) fire-fighting foam containing per- or polyfluoroalkyl substances located at any of the properties of any Target Company.
(h) The Company has provided to the Purchaser all material written environmental reports, audits, assessments, liability analyses, memoranda and studies in the possession of, or conducted by, any Target Company and concerning the environmental condition of any properties currently or formerly owned or operated by any Target Company, Environmental Liabilities or compliance with Environmental Laws.
Section 4.22 Transactions with Related Persons. 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 or except as set forth in the Company Financials, 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 five percent (5%) or more of the capital stock or equity interests of any of the Target Companies or (c) any Affiliate, “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Exchange Act) of any of the foregoing; excluding, in each case, any transaction or Contract between or among the Company’s Subsidiaries or between or among the Company and any of its Subsidiaries. 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 Company Shares or other 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). The assets of the Target Companies do not include any receivable or other obligation from a Related Person, and the liabilities of the Target Companies do not include any payable or other obligation or commitment to any Related Person.
Section 4.23 Insurance.
(a) Section 4.23(a) of the Company Disclosure Letter contains a list of, as of the date hereof, all material 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 hereof, all premiums due and payable under all such insurance policies have been timely paid and the Target Companies are otherwise in material compliance with the terms of such insurance policies. Each such insurance policy (i) is legal, valid, binding, enforceable and in full force and effect, subject, in each case to the Enforceability Exceptions and (ii) will continue to be legal, valid, binding, enforceable, and in full force and effect on substantially similar terms following the Closing. 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 adverse material change, notice of cancellation, termination or any change other than in the ordinary course of business, in the conditions of insurance, any refusal to issue an insurance policy or non-renewal of a policy.
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(b) Section 4.23(b) of the Company Disclosure Letter identifies each individual insurance claim in excess of $200,000 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. To the Knowledge of the Company, no event has occurred, and no condition or circumstance exists, that would reasonably be expected to (with or without notice or lapse of time) give rise to or serve as a basis for the denial of any such insurance claim. No Target Company has made any claim against an insurance policy as to which the insurer has denied coverage.
Section 4.24 Customers and Suppliers.
(a) Section 4.24(a) of the Company Disclosure Letter lists, as of the date of this Agreement, the top ten (10) customers of the Target Companies for the twelve (12) month period ended December 31, 2025 as determined by revenue recognized by the Target Companies (the “Top Customers”). As of the date hereof, no such 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 with any such Top Customer.
(b) Section 4.24(b) of the Company Disclosure Letter lists, as of the date of this Agreement, the top ten (10) suppliers or manufacturers of goods or services for the twelve (12) months ended December 31, 2025 based on payments made by the Target Companies (the “Top Suppliers”). To the Knowledge of the Company as of the date hereof, no such Top Supplier has provided 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 with any such Top Supplier.
(c) None of the Top Customers or Top Suppliers has, as of the date of this Agreement, notified any Target Company in writing that it is in a material dispute with any Target Company or their respective businesses.
Section 4.25 Certain Business Practices.
(a) No Target Company, nor any of their respective officers or directors, nor, to the Knowledge of the Company, any of their respective Representatives acting on their behalf has, since February 27, 2023, directly or indirectly, 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 where such Target Company or Representative thereof knew, or would have reasonably known after due and proper inquiry, that all or a portion of such thing of value would be offered, given, paid, 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 foreign or domestic political office for the purpose of influencing any act or decision of such official, employee, or candidate to obtain or retain business or direct business to any person (in each case in violation of any Anti-Bribery Laws). No Target Company, nor any of their respective officers and directors, nor, to the Knowledge of the Company, any of their respective Representatives acting on their behalf, has, since February 27, 2023, directly or indirectly corruptly offered, given, paid, promised to give or pay, or authorized the giving or payment of anything of value to any customer, supplier, or other Person who is or may be in a position to assist or hinder any Target Company in connection with any actual or proposed transaction for the purpose of improperly influencing any act or decision of such customer, supplier, or other Person to obtain or retain business or direct business to any person in violation of Anti-Bribery Laws. No Target Company, nor any of their respective officers and directors, nor, to the Knowledge of the Company, any of their respective Representatives acting on their behalf, has, since February 27, 2023, been subject to or conducted or initiated any internal investigation or made a voluntary, directed, or involuntary disclosure to any Governmental Authority with respect to any alleged act or omission relating to any noncompliance with any Anti-Bribery Laws. No Target Company, nor any of their respective officers and directors, nor, to the Knowledge of the Company, any Representatives acting on their behalf has, since February 27, 2023, received any written notice, request, or citation from any Governmental Authority for any actual or potential noncompliance with any Anti-Bribery Laws.
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(b) The operations of each Target Company are and have been, since February 27, 2023, conducted at all times in material compliance with applicable International Trade Laws and Sanctions Laws, and no Legal Proceeding between any Target Company and any Governmental Authority with respect to violations of International Trade Laws or Sanctions Laws is pending or, to the Knowledge of the Company, threatened in writing.
(c) No Target Company nor any of their respective directors or officers, or, to the Knowledge of the Company, any of their respective employees, agents, or Affiliates is or has been, since February 27, 2023: (i) identified on any applicable Sanctions Laws-related list of designated or blocked persons (including the “Specially Designated Nationals and Blocked Persons List” (“SDN List”) maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”)); (ii) located, organized, or resident in any country, geographical region or territory that is itself the subject of comprehensive Sanctions Laws (as of the date of this Agreement, Cuba, Iran, North Korea, the Crimea, so-called Donetsk People’s Republic, and so-called Luhansk People’s Republic regions of Ukraine and, prior to July 1, 2025, Syria) (each a “Sanctioned Jurisdiction”); (iii) owned, directly or indirectly, individually or in the aggregate, 50 percent or more or otherwise controlled by any of the foregoing Persons in clauses (i) or (ii); or (iv) otherwise the target or subject of Sanctions Laws restrictions (collectively, “Sanctioned Persons”).
(d) No Target Company has, since February 27, 2023, directly or knowingly indirectly, engaged in transactions (i) with any Sanctioned Person, in violation of Sanctions Laws, or (ii) in any other manner that would constitute a violation of any applicable U.S. sanctions administered by the U.S. government.
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.
Section 4.27 Finders and Brokers. 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 Article V of 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 of this Agreement (including the related portions of the Purchaser Disclosure Letter) or in any certificate delivered to the Company pursuant hereto. Without limiting the foregoing, the Company acknowledges that the Target Companies, together with their advisors, have made their own investigation of Purchaser and Merger Sub and, except as provided in Article V, is 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 Purchaser and Merger Sub, the prospects (financial or otherwise) or the viability or likelihood of success of the business of Purchaser and Merger Sub as conducted after the Closing, or as contained in any materials provided by Purchaser and Merger Sub or any of their Affiliates or any of their directors, officers, employees, shareholders, partners, members or representatives or otherwise.
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Section 4.29 Information Supplied. To the Knowledge of the Target Companies, none of the information about the Target Companies supplied or to be supplied by, or on behalf of, 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 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 with the Transactions contains or will contain any untrue statement of a material fact or omits or will 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. The Target Companies make no warranty or representation with respect to any such information beyond what is expressly stated herein. Notwithstanding the foregoing, the Target Companies make no representation, warranty or covenant with respect to any information about the Purchaser, Merger Sub or their respective Affiliates.
Section 4.30 Energy Regulatory Laws. No Target Company is subject to regulation as a “public utility”, “electric utility”, “retail electric utility”, “retail electric provider” or a “public utility company” (or similar designation), or a “holding company”, “subsidiary company” or an “affiliate” thereof, in each case by any governmental or regulatory authority, including under the Public Utility Holding Company Act of 2005, 42 U.S.C. §§ 16451 et seq., the Federal Power Act, 16 U.S.C. §§ 791a, et seq., or any applicable state utility laws.
Section 4.31 Fiber Network. Except for violations and defaults that would not have or reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(a) The facilities operated by the Target Companies as commercial data centers and the fibers and fiber miles owned or leased by the Target Companies, taken as a whole, are, in all material respects, working, functional, fit for the purpose intended, have been maintained, subject to ordinary wear and tear, in good repair and working order condition and are without any material defects for purposes of operating the business as operated by the Target Companies.
(b) The Target Companies validly own, or otherwise have the right to use, all equipment reasonably necessary to operate the fibers and fiber miles owned or leased by the Target Companies as currently operated by the Target Companies.
Section 4.32 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, and the Target Companies hereby disclaim, 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.
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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) the disclosure letter delivered by the Purchaser to the Company (the “Purchaser Disclosure Letter”) on the date of this Agreement, which exceptions shall be deemed to be part of the representations and warranties made hereunder, the Purchaser and Merger Sub represent and warrant to the Company, as of the date hereof and as of the Closing, 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, except where the failure to be so qualified or licensed or in good standing can be cured without material cost or expense. 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 in any material respect.
(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 in any material respect.
Section 5.02 Authorization; Binding Agreement. Each of the Purchaser and Merger Sub has all requisite power and authority to execute and deliver this Agreement and each Ancillary Document to which it is 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, other than the filing of the Certificates of Merger with the Delaware Secretary of State and the Florida Department of State, as applicable. 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”).
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 or with any Governmental Authority, on the part of the Purchaser or Merger Sub is required to be obtained or made in connection with the execution, delivery or performance by the Purchaser or Merger Sub of this Agreement and each Ancillary Document to which it is or will be a party or the consummation by the Purchaser or Merger Sub of the Transactions, other than (a) pursuant to Antitrust Laws, (b) such filings as contemplated by this Agreement, (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, and/ or any state “blue sky” securities Laws and (e) where the failure to obtain or make such Consents or to make such filings or notifications, would not reasonably be expected to have a Purchaser Material Adverse Effect.
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Section 5.04 Non-Contravention. Assuming the truth and completeness of the representations and warranties of the Company contained in this Agreement, the execution and delivery by each of Purchaser and Merger Sub of this Agreement and each Ancillary Document to which it is a party, the consummation by Purchaser and Merger Sub of the transactions contemplated hereby and thereby, and compliance by 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, 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 Law, Order or Consent applicable to the Purchaser or Merger Sub or any of its properties or assets, or (c) (i) violate, conflict with or result in a breach of, (ii) constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, (iii) result in the termination, withdrawal, suspension, cancellation or modification of, (iv) accelerate the performance required by the Purchaser or Merger Sub under, (v) result in a right of termination or acceleration under, (vi) give rise to any obligation to make payments or provide compensation under, (vii) result in the creation of any Lien upon any of the properties or assets of the Purchaser or Merger Sub under, (viii) give rise to any obligation to obtain any third party Consent or provide any notice to any Person or (ix) give any Person the right to declare a default, exercise any remedy, claim a rebate, chargeback, penalty or change in delivery schedule, accelerate the maturity or performance, cancel, terminate or modify any right, benefit, obligation or other term under, any of the terms, conditions or provisions of, any material Contract to which Purchaser or Merger Sub is a party or by which its assets are bound, except in the case of clauses (b) or (c), as would not reasonably be expected to have a Purchaser Material Adverse Effect.
Section 5.05 Capitalization.
(a) As of the date of this Agreement, the authorized share capital of Purchaser is $55,500.00 divided into (i) 500,000,000 Class A ordinary shares, par value $0.0001 per share, 34,470,000 of which are issued and outstanding, (ii) 50,000,000 Class B ordinary shares, par value $0.0001 per share, 11,490,000 of which are issued and outstanding, and (iii) 5,000,000 preference shares, par value $0.0001 per share, of which none 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, 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 Purchaser is a party. None of the outstanding Purchaser Ordinary Shares have been issued in violation of any applicable securities Laws.
(b) Subject to the terms and conditions of the Warrant Agreement, 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. There are outstanding (i) warrants to purchase approximately 17,235,000 Class A ordinary shares, par value $0.0001 per share in the capital of the Purchaser, held by public investors and (ii) private placement warrants to purchase an aggregate of approximately 8,894,000 Class A ordinary shares, par value $0.0001 per share in the capital of the Purchaser, held by the Sponsor and the underwriters. 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, 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 issued in violation of any applicable securities Laws
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(c) Other than the Redemption or as contemplated by this Agreement, Purchaser’s Organizational Documents and the Trust 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. 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 disclosed on Section 5.05(c) 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.
(e) Since the date of formation of the Purchaser until the date hereof, and except for the Redemption and as contemplated by this Agreement, Purchaser’s Organizational Documents and the Trust Agreement, the Purchaser has not declared or paid any distribution or dividend in respect of its shares.
(f) Purchaser owns all of the membership interests in Merger Sub. No other membership interests or other voting securities of Merger Sub are issued, reserved for issuance or outstanding. All issued and outstanding membership 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, 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 membership 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.
Section 5.06 SEC Filings and Purchaser Financials.
(a) The Purchaser has, since the IPO, 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 and/or the Exchange Act, together with any amendments, restatements or supplements thereto (collectively, as they have been amended since the time of their filing or furnishing, the “Purchaser SEC Reports”). As of the date hereof, all of the 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 are available on the SEC’s Electronic Data-Gathering, Analysis and Retrieval system (EDGAR) in full without redaction.
(b) As of their respective dates, the Purchaser SEC Reports (i) were prepared in accordance with the requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act, as the case may be, and (ii) did not, at the time they were filed (or if amended or superseded by a filing, then on the date of such filing), 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.
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(c) The financial statements and notes contained or incorporated by reference in the Purchaser SEC Reports 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; and (ii) Regulation S-X or Regulation S-K, as applicable, subject, in the case of interim financial statements, to normal recurring year-end adjustments and the omission of notes to the extent permitted by Regulation S-X or Regulation S-K, as applicable.
(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 and Merger Sub are required by GAAP to be included in the consolidated financial statements of the Purchaser.
(e) 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 “APXT”. The issued and outstanding Cayman Purchaser Warrants are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq under the symbol “APXTW”. There is no action or 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 Shares, the Purchaser Class A Ordinary Shares or the Cayman Purchaser Warrants or to terminate the listing of Purchaser on Nasdaq. Except in connection with the Transactions, none of Purchaser or any of its Affiliates has taken any action in an attempt to terminate the registration of the Cayman Purchaser Shares, the Purchaser Class A Ordinary Shares or Cayman Purchaser Warrants under the Exchange Act.
(f) Except as not required in reliance on exemptions from various reporting requirements by virtue of the 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”), the 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 the Purchaser is made known to the Purchaser’s principal executive officer and its principal financial officer by others within the entity, 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 all material respects in timely alerting the Purchaser’s principal executive officer and principal financial officer to material information required to be included in the Purchaser’s periodic reports required under the Exchange Act. Since the consummation of the IPO, the Purchaser has established and maintained 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 the Purchaser’s financial reporting and the preparation of the financial statements included in the Purchaser SEC Reports for external purposes in accordance with GAAP. Neither the Purchaser nor the Purchaser’s independent auditors identified or have been made aware of any “significant deficiencies” or “material weaknesses” (as defined by the PCAOB) in the design or operation of the Purchaser’s internal controls over financial reporting which would reasonably be expected to adversely affect the Purchaser’s ability to record, process, summarize and report financial data, in each case which has not been subsequently remediated. The Purchaser has no knowledge of any fraud or whistle-blower allegations, whether or not material, that involve management or other employees or consultants who have or had a significant role in the internal control over financial reporting of the Purchaser. Since the IPO, there have been no material changes in the Purchaser’s internal control over financial reporting.
(g) There are no outstanding loans or other extensions of credit made by the Purchaser to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of the Purchaser in their capacity as such, and the Purchaser has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act.
(h) As of the date hereof, there are no outstanding comments from the SEC with respect to the Purchaser SEC Reports. 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 hereof.
Section 5.07 Absence of Certain Changes. As of the date of this Agreement, the Purchaser has, since the date of its formation (a) conducted no business other than its formation, 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 activities and (b) not been subject to a Purchaser Material Adverse Effect. 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.
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Section 5.08 Undisclosed Liabilities. Except for any fees and expenses payable by Purchaser as a result of or in connection with the consummation of the Transactions, Purchaser has no Liabilities, except for Liabilities (a) reflected or reserved for on the 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 of Purchaser, (c) incurred in connection with the Transactions (for the avoidance of doubt, including those incurred in connection with or relating to this Agreement and the consummation of the Transactions, such as Liabilities incurred by Purchaser in connection with or relating to the negotiation of this Agreement or performance hereunder, any diligence relating hereto, the satisfaction of the required closing conditions, or the PIPE Investment) or (d) which would not be, or would not reasonably be expected to be, material to Purchaser. Merger Sub has no, and at all times prior to the Effective Time except as contemplated by this Agreement or the ancillary agreements to this Agreement, 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 formation been, in compliance with all Laws applicable to it and the conduct of its business except for such noncompliance which would not reasonably be expected to be material to the Purchaser or Merger Sub, 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.
Section 5.10 Legal Proceedings; Orders; Permits. There is no pending or, to the Knowledge of the Purchaser, threatened Legal Proceeding to which the Purchaser or Merger Sub is subject which would reasonably be expected to have a Purchaser Material Adverse Effect or that would have a material adverse effect on the ability of the Purchaser to enter into and perform its obligations under this Agreement and 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 material Orders of any Governmental Authority, nor are any such 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, except where the failure to hold such Consent or for such Consent to be in full force and effect would not reasonably be expected to have a Purchaser Material Adverse Effect.
Section 5.11 Taxes and Returns.
(a) The Purchaser (i) is not required to file any income or material non-income Tax Returns in any jurisdiction, and (ii) has timely paid, collected, withheld or remitted, or caused to be timely paid, collected, withheld or remitted, all material Taxes required to be paid, collected, withheld or remitted by it.
(b) There is no Legal Proceeding currently pending or otherwise in progress or, threatened in writing 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.
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(c) There is no claim, assessment, audit, examination, investigation or other Legal Proceeding that is pending or otherwise in progress, or threatened in writing against the Purchaser in respect of any Tax, and the Purchaser has not been notified in writing of any proposed Tax claim, deficiency or assessment 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 Taxes upon any of the Purchaser’s assets, other than Permitted Liens.
(e) 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. There are no outstanding requests by the Purchaser for any extension of time to file any Tax Return or to pay any Taxes shown to be due on any Tax Return, other than extensions in the ordinary course of business consistent with past practice.
(f) 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 other agreement or arrangement with a Governmental Authority relating to Taxes.
(g) 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).
(h) 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 by operation of Law (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 agreements 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.
(i) 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.
(j) The Purchaser has not taken any action or agreed to take any action (or permit any action to be taken), nor is it aware of any fact or circumstance, that would reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatments.
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Section 5.12 Properties. Neither the Purchaser, nor Merger Sub, owns, licenses or otherwise has any right, title or interest in any material Intellectual Property. Neither the Purchaser nor Merger Sub owns or leases any material real property or material Personal Property (except for the Purchaser’s ownership of the Merger Sub membership interests).
Section 5.13 Investment Company Act. To the Knowledge of Purchaser, 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.
Section 5.14 Trust Account. As of the date of this Agreement, Purchaser has at least $344,700,000 in the Trust Account, such monies held in cash and interest-bearing demand deposit account or in 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 (the “Trust Agreement”), dated as of October 27, 2025, between Purchaser and Lucky, as trustee (the “Trustee”). 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 in any material respect 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 with respect to the Redemption of Purchaser Class A Ordinary Shares properly submitted in connection with a shareholder vote to amend the Purchaser’s Organizational Documents to (A) modify the substance or timing of its 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 within the prescribed window or (B) with respect to any other material provisions related to shareholders’ rights or pre-initial business combination activity. 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. As of the date hereof, there are no claims or proceedings pending or, to the Knowledge of Purchaser, threatened in writing 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 in any material respects, and, to the Knowledge of Purchaser, 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 the Knowledge of Purchaser, as of the date hereof, 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 hereof, 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 that any remaining funds available in the Trust Account after payment of Purchaser Transaction Costs will not be available to Purchaser on the Closing Date.
Section 5.15 CFIUS. Merger Sub shall not be a “foreign person” (within the meaning of 31 C.F.R. § 800.224) at the Closing.
Section 5.16 Finders and Brokers. 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, including any deferred underwriting commissions, for which the Purchaser or Merger Sub would be liable in connection with the Transactions based upon arrangements made by the Purchaser or Merger Sub or any of their Affiliates.
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Section 5.17 Information Supplied. None of the information about Purchaser or Merger Sub or 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 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 contains or will contain any untrue statement of a material fact or omits or will 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 about the Target Companies or its Affiliates.
Section 5.18 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 acknowledge 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 Proxy Statement/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. Without limiting the foregoing, the Purchaser and Merger Sub acknowledge that the Purchaser and Merger Sub or their advisors, have made their own investigation of the Target Companies and, except as provided in Article IV, 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 Target Companies, the prospects (financial or otherwise) or the viability or likelihood of success of the business of the Target Companies as conducted after the Closing, or as contained in any materials provided by the Target Companies or any of their respective Affiliates or any of their respective directors, officers, employees, shareholders, partners, members or representatives or otherwise.
Section 5.19 No Additional Representations or Warranties. Except as provided in this Article V, none of the Purchaser, Merger Sub, any of their respective Affiliates, or any of their respective directors, managers, officers, employees, stockholders, partners, members or representatives has made, or is making, and Purchaser and Merger Sub hereby disclaim, any representation or warranty whatsoever to the Target Companies or their respective 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 respective Affiliates.
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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 6.16, the Company shall give, and shall cause the Target Companies and its and their Representatives to give, the Purchaser and its Representatives, at reasonable times during normal business hours and upon reasonable intervals and notice, reasonable access to all offices and other facilities and to all officers, managers, properties, Contracts, agreements, commitments, books and records, financial and operating data and other information, of or pertaining to the Target Companies as the Purchaser or its Representatives may reasonably request regarding the Target Companies and their respective businesses, assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects and cause each of the Target Companies’ Representatives to reasonably cooperate with the Purchaser and its Representatives in their investigation; 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 (C), 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 Contract, obligation or Law and (y) provide such information in a manner without violating such Contract, obligation or Law), or (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.
(b) During the Interim Period, subject to Section 6.16, the Purchaser shall give, and shall cause its Representatives to give, the Company and its Representatives, at reasonable times during normal business hours and upon reasonable intervals and notice, reasonable access to all offices and other facilities and to all officers, directors, properties, Contracts, agreements, commitments, books and records, financial and operating data and other information, of or pertaining to the Purchaser or its Subsidiaries, as the Company or its Representatives may reasonably request regarding the Purchaser, its Subsidiaries and their respective businesses, assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects and cause each of the Purchaser’s Representatives to reasonably cooperate with the Company and its Representatives in their investigation; 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 (B), 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 Contract, obligation or Law and (y) provide such information in a manner without violating such Contract, obligation or Law), or (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.
(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 contemplated by this Agreement (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.
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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, as set forth on Section 6.02(b) 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 its Subsidiaries to, (i) conduct its and their respective businesses, in all material respects, in the ordinary course of business and (ii) comply in all material respects with all Laws applicable to the Target Companies and their respective businesses and assets.
(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 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 its Subsidiaries not to:
(i) authorize for issuance, issue, grant, sell, pledge, dispose of or propose to issue, grant, sell, pledge or dispose of any of its equity securities that are senior to the common stock of the Company (“Senior Securities”) or any options, warrants, commitments, subscriptions or rights of any kind to acquire or sell any Senior Securities;
(ii) take or agree to take any action (or permit any action to be taken), or fail to take any action, where such action or failure to act would reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatments;
(iii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation relating to this Agreement or the transactions contemplated hereby, but excluding any suit, action, claim, proceeding or investigation set forth in the Company Disclosure Letter), to the extent resulting in payments in excess of $30,000,000 or imposing material restrictions on the business of the Company post-Closing;
(iv) 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, in each case, if the acquisition by the Company prior to the Closing would require the inclusion in the Registration Statement of audited, unaudited and/or pro forma financial statements related to the acquired business organization, division or assets, as applicable, and such inclusion would reasonably be expected to cause the Closing to occur later than the Outside Date;
(v) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring or other reorganization, or any voluntary or involuntary bankruptcy or restructuring filing;
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(vi) sell, lease, license, transfer, or otherwise dispose of all or substantially all of the consolidated assets or intellectual property of the Company and its Subsidiaries, taken as a whole;
(vii) take any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement; or
(viii) authorize or agree to do any of the foregoing actions.
(c) If the Company grants any Company Options or other equity or equity-based awards during the Interim Period, the Company shall ensure that each such award (A) has a per share exercise or base price not less than the fair market value of a Company Share on the grant date, determined by a reasonable application of a reasonable valuation method within the meaning of Treasury Regulations Section 1.409A-1(b)(5)(iv), and (B) is otherwise exempt from or compliant with Section 409A of the Code, and shall provide the Purchaser with the supporting valuation and material terms prior to such grant.
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, as set forth on Section 6.03(b) 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, (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.
(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 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;
(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;
(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;
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(iv) incur, create, assume, prepay or otherwise become liable for any Indebtedness (directly, contingently or otherwise) in excess of $1,500,000 in the aggregate, make a loan or advance to or investment in any third party, or guarantee or endorse any Indebtedness 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 administrative costs and expenses and expenses incurred in connection with the consummation of the Transactions (including the PIPE Investment));
(v) (A) make, change or rescind any election relating to Taxes (except in the ordinary course of business consistent with past practice), (B) settle or otherwise compromise any claim, suit, litigation, proceeding, arbitration, investigation, audit, controversy or other Legal Proceeding relating to material Taxes, (C) file any amended income or material non-income Tax Return, (D) surrender or allow to expire any right to claim a refund of material 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 or material non-income Taxes may be issued, (G) enter into any “closing agreement” as described in Section 7121 of the Code or any other agreement or arrangement with any Governmental Authority, (H) enter into 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, or (I) change its jurisdiction of tax residency, except as otherwise contemplated by this Agreement or any Ancillary Documents or the Transactions;
(vi) take or agree to take any action (or permit any action to be taken), or fail to take any action, where such action or failure to act could reasonably be expected to prevent the Transactions from qualifying for the Intended Tax Treatments;
(vii) amend, waive or otherwise change the Trust Agreement in any manner adverse to the Purchaser;
(viii) terminate, waive or assign any material right under any material Contract of Purchaser;
(ix) fail to maintain its books, accounts and records in all material respects in the ordinary course of business consistent with past practice;
(x) establish any Subsidiary or enter into any new line of business;
(xi) 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;
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(xii) make any material change in accounting methods, principles or practices, except to the extent required to comply with GAAP or PCAOB standards;
(xiii) waive, release, assign, settle or compromise any claim, action or proceeding (including any suit, action, claim, proceeding or investigation 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);
(xiv) 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;
(xv) 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 ordinary course administrative costs and expenses and expenses incurred in connection with the consummation of Transactions, including legal or accounting (including the PIPE Investment));
(xvi) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization (other than with respect to the Transactions);
(xvii) voluntarily incur any Liability or obligation (whether absolute, accrued, contingent or otherwise) in excess of $1,000,000 in the aggregate (excluding the incurrence of any ordinary course administrative costs and expenses and expenses incurred in connection with the consummation of Transactions, including legal or accounting (including the PIPE Investment)) 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 or in accordance with the terms of this Section 6.03 during the Interim Period;
(xviii) 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;
(xix) take any action that would reasonably be expected to significantly delay or impair the obtaining of any Consents of any Governmental Authority to be obtained in connection with this Agreement;
(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
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(xxi) authorize or agree to do any of the foregoing actions.
Section 6.04 Annual and Interim Financial Statements. The Company shall use reasonable best efforts to deliver to the Purchaser, as soon as reasonably practicable following the date of this Agreement and in no event later than September 30, 2026, (i) audited consolidated balance sheets and statements of operations, comprehensive loss, stockholders’ equity and cash flows of the Target Companies as of and for the period from January 1, 2024 through December 31, 2025, together with the auditor’s reports thereon, 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 and which have been audited in accordance with GAAP and PCAOB standards (collectively, the “PCAOB Financial Statements”); and (ii) unaudited reviewed consolidated balance sheets and statements of operations, comprehensive loss, stockholders’ equity and cash flows of the Target Companies as of and for the three-month periods ending March 31, 2025 and 2026 (the “Q1 Financial Statements”); provided, that upon delivery of such PCAOB Financial Statements and Q1 Financial Statements, such financial statements shall be deemed “Company Financials” for the purposes of this Agreement and the representations and warranties set forth in Section 4.06 shall be deemed to apply to such PCAOB Financial Statements and Q1 Financial Statements with the same force and effect as if made as of the date of this Agreement. In addition, the Company shall use commercially reasonable efforts to deliver to the Purchaser true and complete copies of any additional financial statements of the Target Companies for each period required to be included in any amendment or supplement to the Registration Statement as soon as practicable prior to the due date for filing any such amendment or supplement.
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 Warrants on Nasdaq; provided, that the Parties acknowledge and agree that (i) if Purchaser fails to timely file any public filing with the SEC, such failure shall not be a breach of this Section 6.05 provided such public filing is made before the effectiveness of the Registration Statement or such late filing does not have a material adverse impact on the consummation of the Transactions and (ii) from and after the Closing, the Parties intend to list on Nasdaq only the Domesticated Purchaser Common Stock and the Domesticated Purchaser Warrants.
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 Company and any of its Subsidiaries, a transaction or a series of transactions (other than the Transactions) concerning the sale (whether directly or indirectly) of (x) all or substantially all of the consolidated business or assets of the Target Companies or (y) any equity securities of the Company representing 50.1% or more of the voting power of the Company, in any case, whether such transaction takes the form of a sale of shares or other equity interests, assets, merger, consolidation, management Contract, joint venture or partnership, or otherwise and (B) with respect to the Purchaser and its Affiliates, a transaction (other than the Transactions) concerning a Business Combination involving Purchaser or any of its Affiliates. For the avoidance of doubt, the Company acknowledges and agrees the Representatives of Purchaser and its Affiliates have been and in the future intend to be involved with other special purpose acquisition companies, and it shall not constitute an “Alternative Transaction” for one or more Persons to propose or discuss a potential business combination with the Representatives of Purchaser and its Affiliates unless such Person specifically identifies the Purchaser as a potential counterparty for a Business Combination.
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(b) During the Interim Period, in order to induce the Purchaser to continue to commit to expend management time and financial resources in furtherance of the transactions contemplated hereby, the Target Companies shall not, and shall cause its Representatives to not, without the prior written consent of 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 the Target Companies 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 could 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 any Target Company 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 Alternative Transaction or (viii) agree or otherwise commit to enter into or engage in any of the foregoing.
(c) The Company shall notify Purchaser as promptly as practicable (and in any event within two (2) Business Days) in writing of the receipt by the Company 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 could be expected to result in an Acquisition Proposal, and (ii) any request for non-public information relating to the Company 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. The Company shall keep Purchaser 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.
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 (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 its 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), 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.
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Section 6.08 Notification of Certain Matters. During the Interim Period, each Party shall give prompt notice 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; (c) becomes aware of the occurrence or non-occurrence of any event the occurrence or non-occurrence of which has caused or is reasonably likely to cause any condition to the obligations of any party to effect the Transactions not to be satisfied; or (d) 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, in each case, with respect to the consummation of the Transactions or the business, properties, assets, or liabilities of the Target Companies. 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 litigation 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 litigation 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 litigation, shall give due consideration to the other Party’s advice with respect to such litigation and shall not settle or agree to settle any such litigation without the prior written consent of the other Party, such consent not to be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary contained herein, any failure to give such notice pursuant to this Section 6.08 shall not give rise to any Liability of the Target Companies or Purchaser or be taken into account in determining whether the conditions in Article VII have been satisfied or give rise to any right of termination set forth in Article VIII.
Section 6.09 Efforts.
(a) Subject to the terms and conditions of this Agreement, each Party shall 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 applicable Consents of Governmental Authorities) and to comply as promptly as practicable with all requirements of Governmental Authorities 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 actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition (“Antitrust Laws”), each Party hereto agrees to make any required filing or application under Antitrust Laws, as applicable, at such Party’s sole cost and expense (except that any fees or other amounts charged by any Governmental Authorities relating to such filings or applications will be paid 50/50 by Purchaser and the Company to the applicable Governmental Authority, with respect to the Transactions as promptly as practicable, to supply as promptly as reasonably practicable any additional information and documentary material that may be reasonably requested pursuant to Antitrust Laws and to take all other actions reasonably necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under Antitrust Laws as soon as practicable, including by requesting early termination of the waiting period provided for under the Antitrust Laws. Each Party shall, in connection with its efforts to obtain all requisite approvals and authorizations 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 proceeding initiated by a private Person; (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 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 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; (iv) in the event a Party’s Representative is prohibited from participating in or attending any meetings or conferences, the other Parties shall keep such Party promptly and reasonably apprised with respect thereto; and (v) use reasonable best efforts to 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, and/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 required, of the Transactions and shall use their reasonable best efforts to have such Governmental Authorities approve the Transactions; provided that with respect to the HSR Act notification filing, it will be made within 20 Business Days of the date of this Agreement. 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 or any Ancillary Document 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. Neither the Company nor Purchaser shall enter into any agreement with any Governmental Authority relating to the Transactions without the prior written consent of the other Party.
(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), (i) in accordance with and pursuant to the Trust Agreement, Purchaser (a) shall cause any documents, opinions and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered and (b) shall use its reasonable best efforts to cause the Trustee to, and the Trustee shall thereupon be obligated to (1) pay as and when due all amounts payable to the Purchaser Shareholders pursuant to the Redemption, and (2) pay all remaining amounts then available in the Trust Account to Purchaser for immediate use, subject to this Agreement and the Trust Agreement, and (ii) thereafter, the Trust Account shall terminate, except as otherwise provided therein.
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Section 6.11 Certain 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 relevant portions of the Transactions 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 take or cause to be taken, or fail to take or cause to be failed to be taken, any action, if such action or failure to act, as the case may be, would prevent or impede, or would reasonably be expected to prevent or impede the Transactions from qualifying for the Intended Tax Treatments. The Parties hereby agree to use reasonable best efforts to cause the Transactions to qualify for the Intended Tax Treatments, including by preparing and filing all Tax Returns on a basis consistent with the Intended Tax Treatments and not taking any action or position inconsistent with the Intended Tax Treatments in any Tax Return, any Tax Legal Proceeding or for any other Tax purposes, unless otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code. Each Party agrees to use reasonable best efforts to promptly notify all other Parties of any challenge to the qualification of any relevant portion of the Transactions for its Intended Tax Treatment 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, to the extent such opinion or disclosure relates to the Company or any of their direct or indirect owners, the Company shall cause such opinion to be provided by Paul Hastings LLP (or another nationally recognized tax advisor to the Company if Paul Hastings LLP is unable to provide such tax opinion), and to the extent such opinion or disclosure relates to Purchaser or any of its direct or indirect owners, Purchaser shall cause such opinion to be provided by Sidley Austin LLP (or another nationally recognized tax advisor to Purchaser if Sidley Austin LLP is unable to provide such tax opinion), and if such Tax opinion is being provided by a Tax counsel, the Parties hereto shall, and shall cause their Affiliates to (i) 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 Purchaser or the Purchaser Shareholders, including that the relevant portions of the Transactions qualify for their respective Intended Tax Treatments and (y) any counsel to Purchaser or its advisors to provide an opinion with respect to any Tax matters relating to or affecting the Company or the holders or beneficial owners of Company Securities, including that the relevant portions of the Transactions qualify for their respective Intended Tax Treatments, in each case, for the avoidance of doubt, other than a customary opinion regarding the material accuracy of any disclosure regarding U.S. federal income tax considerations of the Transactions included in the Proxy Statement/Registration Statement as may be required to satisfy applicable rules and regulations promulgated by the SEC; 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 a condition precedent to the Closing.
(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 equally by the Company and the Purchaser. Each Party shall, at its own expense, timely file all necessary Tax Returns or other documentation with respect to such Transfer Taxes which such Party is required by Law to file and, if required by applicable Law, the other Parties shall join in the execution of any such Tax Returns or other documentation.
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Section 6.12 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 and to otherwise effect, consummate, confirm or evidence the Transactions and carry out the purposes of this Agreement.
Section 6.13 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,(x) the Purchaser and the Company shall jointly prepare and, upon receipt by the Purchaser of the PCAOB Financial Statements, the Q1 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, the Purchaser shall file with the SEC, mutually acceptable materials (such agreement not to be unreasonably withheld, conditioned or delayed by the Purchaser or the Company) that shall include the proxy statement to be filed with the SEC as part of the Registration Statement and to be 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 and the Company shall jointly prepare and the Purchaser shall file with the SEC the Registration Statement, in which the Proxy Statement will be included as a prospectus (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 Cayman Purchaser Ordinary Shares and the Cayman Purchaser Warrants, respectively, in the Domestication, (B) the shares of Domesticated Purchaser Common Stock that constitute the Aggregate Consideration, and (C) the shares of Domesticated Purchaser Common Stock to be issued in exchange for 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 paid 50/50 by Purchaser and the Company. Each of the Purchaser and the Company shall use its reasonable best efforts to cause the Proxy Statement/Registration Statement when filed with the SEC, or when subsequently supplemented or amended, to comply in all material respects with all Laws applicable thereto and with the rules and regulations promulgated by the SEC, to respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement/Registration Statement, 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 contemplated hereby, 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 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 its 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 its counsel with (i) 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 (ii) 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.
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(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 Proxy Statement/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. No information received or provided pursuant to this Section 6.13(a)(iv) shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by the Party who disclosed such information, and no such information shall be deemed to change, supplement or amend the Disclosure Letters.
(b) Purchaser Shareholder Approval. The Purchaser shall (a) as promptly as practicable after the Proxy Statement/Registration Statement is declared effective under the Securities Act, (i) cause the Proxy Statement to be disseminated to Purchaser Shareholders in compliance with applicable Law, (ii) duly (1) give notice of and (2) 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, unless otherwise agreed in writing by the Company and Purchaser, and (iii) solicit proxies from the holders of Purchaser Ordinary Shares to vote in favor of each of the Transaction Proposals, and (b) provide its public shareholders with the opportunity to elect to effect a Redemption. The Purchaser shall, through its board of directors, recommend to the Purchaser Shareholders the (A) adoption and approval of this Agreement in accordance with applicable Law and exchange rules and regulations, (B) approval of the Domestication, (C) adoption of the Purchaser Charter upon Domestication and the Purchaser Bylaws upon Domestication, including any separate or unbundled advisory proposals as are required to implement the foregoing, (D) approval of the issuance of shares of Domesticated Purchaser Common Stock as required by Nasdaq Listing Rule 5635, (E) approval of the adoption by the Purchaser of the Equity Incentive Plan, (F) appointment of the director nominees in accordance with Section 6.18 of this Agreement, (G) adoption and approval of any other proposals as Nasdaq or the SEC (or staff members thereof) may indicate are necessary in its comments to the Registration Statement or correspondence related thereto, (H) adoption and approval of any other proposals as reasonably agreed by the Purchaser and the Company to be necessary or appropriate in connection with the Transactions, and (I) adjournment of the Purchaser Shareholders’ Meeting to a later date or dates, if necessary or convenient, (x) to permit further solicitation and vote of proxies in the event that there are insufficient votes for any of the foregoing, (y) if the Purchaser 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 Transaction (such proposals in (A) through (H), together, the “Transaction Proposals”), and include such recommendation in the Proxy Statement (the “Purchaser Board Recommendation”). The board of directors of Purchaser shall not withdraw, amend, qualify or modify the Purchaser Board Recommendation. To the fullest extent permitted by applicable Law, 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. Without the consent of the Company, the Purchaser Shareholders’ Meeting may not be adjourned to a date that is more than thirty (30) days after the date for which the Purchaser Shareholders’ Meeting was originally scheduled, except Purchaser may adjourn or postpone the Purchaser Shareholders’ Meeting to a date that is more than thirty (30) days after the date for which the Purchaser Shareholders’ Meeting was originally scheduled (1) to the extent necessary to ensure that any supplement or amendment to the Proxy Statement/Registration Statement that the Company or Purchaser reasonably determines (following consultation with the Company) is necessary to comply with applicable Laws, is provided to the Purchaser Shareholders in advance of a vote on the adoption of the Transaction Proposals, (2) if, as of the time that the Purchaser Shareholders’ Meeting is originally scheduled, there are insufficient Purchaser Ordinary Shares represented at such meeting (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Purchaser Shareholders’ Meeting, (3) if, as of the time that the Purchaser Shareholders’ Meeting is originally scheduled, adjournment or postponement of the Purchaser Shareholders’ Meeting is necessary to enable Purchaser to solicit additional proxies required to obtain the Purchaser Shareholder Approval, (4) in order to seek withdrawals from Purchaser Shareholders who have exercised their Redemption right if a number of Purchaser Ordinary Shares have been elected to be redeemed such that Purchaser reasonably expects that the condition set forth in Section 7.01(e) will not be satisfied at the Closing, or (5) to comply with applicable Laws.
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(c) Company Stockholder Approval. Upon the terms set forth in this Agreement, the Company shall seek to obtain the Company Stockholder Approval in the form of a written resolution (the “Company Stockholder Consent”) by the requisite number of votes as required under the Company Bylaws, the Company Charter and the FBCA within seventy-two (72) hours after the Proxy Statement/Registration Statement is declared effective under the Securities Act and delivered or otherwise made available to the Stockholders. The Company shall take all other action reasonably necessary or advisable to secure the Company Stockholder Approval as soon as reasonably practicable after the Proxy Statement/Registration Statement is declared effective. The directors of the Company shall recommend to the Stockholders the approval of this Agreement and the Transactions.
Section 6.14 Employee Matters.
(a) Subject to, and in accordance with, Section 6.13, the required governing body shall approve and adopt an equity incentive plan in form and substance as mutually agreed by the Company and Purchaser (the “Equity Incentive Plan”), in the manner prescribed under applicable Laws, to be effective following the Closing Date, reserving a number of shares for grants thereunder (including any annual evergreen share reserve increases) as provided in the Equity Incentive Plan. Following the expiration of the sixty (60) day period following the date on which the Purchaser has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company, the Purchaser shall file an effective registration statement on Form S-8 (or other applicable form) with respect to the shares issuable pursuant to the Equity Incentive Plan.
(b) Notwithstanding anything herein to the contrary, each of the Parties acknowledges and agrees that all provisions contained in this Section 6.14 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.
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Section 6.15 Public Announcements.
(a) The Parties agree that during the Interim Period no public release, filing or announcement concerning this Agreement or the Ancillary Documents or the transactions contemplated hereby or thereby 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 press release announcing 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 after the execution 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 contemplated by this Agreement (the “Closing Press Release”). Promptly after the issuance of the Closing Press Release (but in any event within four (4) Business Days after the Closing), 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 which the Purchaser shall review, comment upon and approve (which approval shall not be unreasonably withheld, conditioned or delayed) prior to filing. 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 contemplated hereby, 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 contemplated hereby, or any other report, statement, filing, notice or application made by or on behalf of a Party to any third party or any Governmental Authority in connection with the transactions contemplated hereby.
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Section 6.16 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 6.16(a), and (B) in the event that such protective Order or other remedy is not obtained, or the Purchaser waives compliance with this Section 6.16(a) furnish only that portion of such Purchaser Confidential Information which is legally required to be provided as advised in writing by outside counsel and to exercise its commercially reasonable efforts to obtain assurances that confidential treatment will be accorded such Purchaser Confidential Information; 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 contemplated hereby 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 or (ii) legal, fiduciary or professional obligation, (iii) in accordance with written document retention policies and procedures and/or (iv) contained in any electronic file created pursuant to bona fide backup storage or archival processes in the ordinary course of business; 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.
(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 6.16(b) and (B) in the event that such protective Order or other remedy is not obtained, or the Company waives compliance with this Section 6.16(b), furnish only that portion of such Company Confidential Information which is legally required to be provided as advised in writing by outside counsel and to exercise its commercially reasonable efforts to obtain assurances that confidential treatment will be accorded such Company Confidential Information; 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 contemplated hereby are not consummated, the Purchaser shall, and shall cause its Representatives to, promptly deliver to the Company or destroy (at the Purchaser’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 written document retention policies and procedures and/or contained in any electronic file created pursuant to bona fide backup storage or archival processes in the ordinary course of business; 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, (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 6.17 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 its 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 the Target Companies) 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 6.18 Post-Closing Board of Directors and Executive Officers.
(a) The Parties shall take all necessary action, including the Purchaser causing the directors of the Purchaser to resign, so that effective as of the Closing, the board of directors of Purchaser (the “Post-Closing Purchaser Board”) will consist of five (5) individuals (appointed in accordance and such that, as of the Closing, the Post-Closing Purchaser Board shall comply with Nasdaq rules) to be determined by the Company and which such Post-Closing Purchaser Board shall be divided into three classes of directors, with each class to be as nearly equal in number as possible. Immediately after the Closing, the Parties shall take all necessary action to designate and appoint to the Post-Closing Purchaser Board (i) one (1) director designated by Sponsor, who will be assigned to serve in the third class of directors, with an initial term expiring at the third annual meeting of shareholders following the Closing, and (ii) the remaining directors, each of whom will be designated by the Company prior to the Closing. At or prior to the Closing, at least one of the members of the Post-Closing Purchaser Board who qualifies as an independent director under applicable Nasdaq rules shall be designated to serve as lead independent director. 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.
(b) 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 individuals the Company desires to appoint to such roles.
Section 6.19 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 or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or 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 6.19 without limit as to time.
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(b) At or prior to the Closing, the Purchaser shall purchase a “tail” directors’ and officers’ liability insurance policy (the “D&O Tail”) in respect of acts or omissions occurring prior to the Closing covering each such Person that is a director or officer of the Purchaser or a Target Company currently covered by a directors’ and officers’ liability insurance policy of the Purchaser or one or more Target Companies, respectively, on terms with respect to coverage, deductibles and amounts no less favorable than those of such applicable policy in effect on the date of this Agreement for the six (6) year period following the Closing; provided, that in no event shall the Purchaser be required to expend on the premium thereof in excess of $300,000 (the “Premium Cap”); provided, further, that if such minimum coverage under any such D&O Tail is or becomes not available at the Premium Cap, then any such D&O Tail shall contain the maximum coverage available at the Premium Cap. The Purchaser shall maintain the D&O Tail in full force and effect for its full term and cause all obligations thereunder to be honored by the Target Companies, as applicable, and no other party shall have any further obligation to purchase or pay for such insurance pursuant to this Section 6.19(b). No claims made under or in respect of the D&O Tail related to any fiduciary or employee of any Target Company shall be settled without the prior written consent of the Purchaser, such consent not to be unreasonably withheld, delayed or conditioned.
(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 6.19(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 6.19 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 6.19.
(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 6.19.
(e) Purchaser and the Company hereby acknowledge (on behalf of themselves and their respective Subsidiaries) that the D&O Indemnified Parties may have certain rights to indemnification, advancement of expenses and/or insurance provided by current stockholders, members, or other Affiliates of such stockholders or members (“Indemnitee Affiliates”) separate from the indemnification obligations of Purchaser, the Target Companies, and Merger Sub hereunder. The Parties hereby agree (i) Purchaser and the Surviving Company and their respective Subsidiaries are the indemnitors of first resort (i.e., its obligations to the D&O Indemnified Parties are primary and any obligation of any Indemnitee Affiliate to advance expenses or to provide indemnification for the same expenses or Liabilities incurred by the D&O Indemnified Parties are secondary), (ii) that Purchaser and the Surviving Company and their Subsidiaries shall be required to advance the full amount of expenses incurred by the D&O Indemnified Parties and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and required by Purchaser, the Surviving Company and their respective Subsidiaries’ governing documents or any director or officer indemnification agreements, without regard to any rights the D&O Indemnified Parties may have against any Indemnitee Affiliate, and (iii) that the Parties (on behalf of themselves and their respective Subsidiaries) irrevocably waive, relinquish and release the Indemnitee Affiliates from any and all claims against the Indemnitee Affiliates for contribution, subrogation or any other recovery of any kind in respect thereof.
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Section 6.20 PIPE Investment.
(a) Concurrently with the execution of this Agreement, Purchaser has entered into, and prior to the Closing, Purchaser and/or the Company may execute additional subscription agreements with potential investors for the PIPE Investment (collectively, the “Subscription Agreements”). Any Subscription Agreement entered into after the date hereof shall be on terms and conditions mutually consented to in writing by the Company and Purchaser (in each case, such consent shall not be unreasonably withheld, conditioned or delayed); provided, however, that the Purchaser or the Sponsor may, without the Company’s consent, enter into additional Subscription Agreements providing for the purchase of Purchaser Common Stock at a purchase price of $10.00 per share on the same terms and conditions as the Subscription Agreements executed on or prior to the date hereof for an aggregate subscription amount not to exceed $10,000,000. The Company agrees, and shall cause the appropriate officers and employees thereof, to use commercially reasonable efforts to cooperate in connection with the arrangement of such PIPE Investment (including the satisfaction of the conditions precedent set forth therein) as may be reasonably requested by Purchaser, including by (a) participating in a reasonable number of meetings, presentations, due diligence sessions, drafting sessions and sessions with rating agencies at mutually agreeable times and locations and upon reasonable advance notice, (b) assisting with the preparation of customary materials for actual and potential investors, rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with such financing (which shall not include pro forma financial information); provided, that, the Company shall have the right to review and approve (which approval shall not be unreasonably conditioned, withheld or delayed) any such materials prior to their distribution, (c) executing and delivering any pledge and security documents, other definitive financing documents, or other certificates, or documents as may be reasonably requested by Purchaser or otherwise reasonably facilitating the pledging of collateral, provided, that, such documents will not take effect until the Closing, (d) taking or appointing a representative of Purchaser to take all corporate actions, subject to the occurrence of the Closing, reasonably requested by Purchaser to permit the consummation of the PIPE Investment immediately prior to or following the Closing Date, (e) providing the Company Financials and such other financial information regarding the Target Companies that is readily available or within any Target Company’s possession and as is reasonably requested in connection with arrangement of such financing, (f) executing and delivering reasonable and customary certificates and other documentation required by any such equity investor and the Subscription Agreement; provided, that no such certificates, letters or other documentation shall be effective prior to the consummation of the transactions contemplated by the Subscription Agreement, (g) furnishing Purchaser with all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (h) otherwise reasonably cooperating in Purchaser’s efforts to obtain such PIPE Investment.
(b) Each of the Company and Purchaser shall use its reasonable best efforts to take, or to cause to be taken, all actions required, necessary or that it otherwise deems to be proper or advisable to consummate the transactions contemplated by the Subscription Agreements on the terms described therein. Without limiting the generality of the foregoing, each of the Company and Purchaser shall give the other written notice (i) of any requested amendment to any Subscription Agreement, (ii) of any breach or default, to the knowledge of the Company or Purchaser, as applicable, by any party to any Subscription Agreement, (iii) of the receipt of any written notice or other written communication from any party to any Subscription Agreement with respect to any actual, or to the knowledge of the Company or Purchaser, as applicable, potential, threatened or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party to any Subscription Agreement or any provisions of any Subscription Agreement, and (iv) if the Company or Purchaser, as applicable, does not expect to receive all or any portion of the applicable purchase price under any investor’s Subscription Agreement in accordance with its terms.
(c) Notwithstanding any other provision of this Agreement, each of the Company and Purchaser agrees, for the benefit of the other, to take all necessary, legally available steps to enforce against any investor in the PIPE Investment the terms of that investor’s Subscription Agreement if such investor is in material breach of its obligations thereunder, including any breach caused by such investor’s failure to fund its Subscription Amount (as defined in its Subscription Agreement) at the time and in the amount required pursuant to its Subscription Agreement.
Section 6.21 Redemption. In connection with the Purchaser Shareholders’ Meeting, the Purchaser agrees that it shall provide the holders of shares of Purchaser Class A Ordinary Shares the opportunity to elect redemption of such shares of 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 carry out 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.
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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, and Part 12 of the Cayman Companies Act, 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, and (b) completing and making and procuring all those filings required to be made with the Cayman Registrar in connection with the Domestication and (c) obtaining a certificate of de-registration from the Registrar of Companies in the Cayman Islands. In connection with applicable Law, Purchaser shall cause the certificate of domestication filed with the Delaware Secretary of State with respect to the Domestication to provide that at the effective time of the Domestication, by virtue of the Domestication, and without any action on the part of any holder of the issued Purchaser Ordinary Shares, (i) each then issued and outstanding Purchaser Class A Ordinary Share shall convert automatically, on a one-for-one basis, into one (1) share of Domesticated Purchaser Common Stock; (ii) each Cayman Purchaser Warrant shall convert automatically into a Domesticated Purchaser Warrant; and (iii) each Cayman Purchaser Share shall be automatically cancelled and will thereafter entitle the holder thereof to one (1) share of Domesticated Purchaser Common Stock and one (1) Domesticated Purchaser Warrant.
Section 6.23 Adoption of Proxy Statement/Registration Statement. Within one (1) Business Day of the Closing Date, the post-Domestication Purchaser, as the successor to the pre-Domestication Purchaser, shall file a post-effective amendment to the Proxy Statement/Registration Statement pursuant to Rule 414(d) of the Securities Act.
Section 6.24 Data Room. The Company shall provide to Purchaser a true and correct electronically stored copy of the Data Room as such exists (a) twenty-four (24) hours prior to the date hereof, (b) concurrent with the execution and delivery of this Agreement and (c) concurrent with the Closing.
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 legally permitted) by the Company and the Purchaser of the following conditions:
(a) Required Approvals.
(i) Each of the Purchaser Shareholder Approval and the Company Stockholder Approval shall have been obtained.
(ii) Any applicable waiting period (and any extension thereof) under the HSR Act shall have expired or been terminated.
(b) No Adverse Law or Order. No Governmental Authority of competent jurisdiction 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 Merger illegal or which otherwise prevents or prohibits consummation of the Merger.
(c) 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 by the SEC and be in effect with respect to the Registration Statement and no proceedings for that purpose shall have been initiated or threatened in writing by the SEC and not withdrawn.
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(d) 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.
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 are subject to the satisfaction or written waiver (where legally permitted) by the Company of the following conditions:
(a) Representations and Warranties. The representations and warranties of the Purchaser and Merger Sub set forth in Section 5.01 (Organization and Standing), and in Section 5.02 (Authorization; Binding Agreement), Section 5.05 (Capitalization), and Section 5.16 (Finders and Brokers) (collectively, the “Purchaser Specified Representations”) that are (i) qualified by materiality, “material” or “Purchaser Material Adverse Effect” or any similar limitation, shall be true and correct in all respects, and (ii) not qualified by materiality, “material” or “Purchaser Material Adverse Effect” or any similar limitation, shall be true and correct in all material respects, in the case of each of the foregoing clauses (i) and (ii), as of the Closing Date as though then made (except to the extent such representations and warranties expressly relate to a specific date, and in such case, shall be so true and correct on and as of such date). Each of the representations and warranties of the Purchaser and Merger Sub set forth in Article V other than the Purchaser Specified Representations shall be true and correct (without giving any effect to any limitation as to “materiality” or “Purchaser Material Adverse Effect” or any similar limitation set forth therein) in all respects as of the Closing Date as though then made (except to the extent such representations and warranties expressly relate to a specific date, and in such case, shall be so true and correct on and as of such date), except, in any case, where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has 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 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 Condition. There shall be at least $45,000,000 in Available Closing Cash.
(f) Closing Deliveries.
(i) Officer Certificate. The Purchaser shall have delivered to the Company a certificate, dated as of 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).
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(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’s Organizational Documents 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, and the consummation of the Transactions.
(iii) Ancillary Documents. The Purchaser shall have delivered to the Company:
(A) A copy of the A&R Registration Rights Agreement, duly executed by the Purchaser and the Sponsor; and
(B) A copy of the Lock-up 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 legally permitted) by Purchaser of the following conditions:
(a) Representations and Warranties. The representations and warranties of the Company set forth in Section 4.01 (Organization and Standing), Section 4.02 (Authorization; Binding Agreement), Section 4.03 (Capitalization), Section 4.04 (Subsidiaries), Section 4.05(a) (No Conflict; Governmental Consents and Filings) and Section 4.27 (Finders and Brokers) (collectively, the “Company Specified Representations”), shall be true and correct in all respects, other than de minimis inaccuracies, as of the Closing Date as though then made (except to the extent such representations and warranties expressly relate to a specific date, and in such case, shall be so true and correct on and as of such date). Each of the representations and warranties of the Company set forth in Article IV other than the Company Specified Representations shall be true and correct (without giving any effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth therein) in all respects as of the Closing Date as though then made (except to the extent such representations and warranties expressly relate to a specific date, and in such case, shall be so true and correct on and as of such date), except, in any case, where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has 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.
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(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 of 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) and (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, and the consummation of the Transactions.
(iii) Ancillary Documents. The Company shall have delivered to the Purchaser:
(A) A copy of the A&R Registration Rights Agreement, duly executed by each of the Company Signatories;
(B) A properly completed and duly executed IRS Form W-9 from each shareholder of the Company (or if such shareholder of the Company is a disregarded entity for federal income tax purposes, its regarded parent); and
(C) A copy of the Lock-up Agreement, duly executed by each of the Company Signatories.
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 the failure of such Party or its Affiliates to comply with or perform any of its covenants or obligations set forth in this Agreement.
Article VIII
TERMINATION AND EXPENSES
Section 8.01 Termination. This Agreement may be terminated and the transactions contemplated hereby 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 if the Purchaser’s board of directors or any committee thereof has withheld, withdrawn, qualified, amended or modified, or publicly proposed or resolved to withhold, withdraw, qualify, amend or modify, the Purchaser Board Recommendation;
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(c) by written notice from either the Company or Purchaser to the other 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; provided, that such termination right shall not be exercisable by Purchaser if Purchaser has materially breached any of its obligations under Section 6.13(b);
(d) by written notice by the Purchaser or the Company if any of the conditions to the Closing set forth in Article VII have not been satisfied or waived by March 31, 2027, (the “Outside Date”); provided, however, that the right to terminate this Agreement under this Section 8.01(d) shall not be available to a Party if the breach or violation by such Party or its Affiliates of any representation, warranty, covenant or obligation under this Agreement was the cause of, or resulted in, the failure of the Closing to occur on or before the Outside Date;
(e) by written notice by either the Purchaser or the Company if a Governmental Authority of competent jurisdiction shall have issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of the Transactions, and such 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 failure by such Party or its Affiliates to comply with any provision of this Agreement has been a substantial cause of, or substantially resulted in, such action by such Governmental Authority;
(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(a) or Section 7.02(b) 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) twenty (20) 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 there is an uncured 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(a) or Section 7.03(b) to be satisfied;
(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(a) or Section 7.03(b) 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) twenty (20) 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 there is an uncured 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(a) or Section 7.02(b) to be satisfied;
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(h) by written notice by the Purchaser to the Company, if (i) all the conditions set forth in Section 7.01 and Section 7.02 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), (ii) the Company fails to consummate the Transactions on or prior to the day when the Closing is required to occur pursuant to Section 3.01, (iii) the Purchaser shall have irrevocably confirmed in writing to the Company that it is ready, willing and able to consummate the Closing and (iv) the Company fails to effect the Closing within five (5) Business Days following delivery of such confirmation;
(i) by written notice by the Company to the 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), (ii) the Purchaser fails to consummate the Transactions on or prior to the day when the Closing is required to occur pursuant to Section 3.01, (iii) the Company shall have irrevocably confirmed in writing to the Purchaser that it is ready, willing and able to consummate the Closing and (iv) the Purchaser fails to effect the Closing within five (5) Business Days following delivery of such confirmation; or
(j) by written notice from Purchaser to the Company if (i) the Company fails to deliver the PCAOB Financial Statements and the Q1 Financial Statements to Purchaser on or before September 30, 2026 or (ii) the Company fails to obtain and deliver to the Purchaser the Company Stockholder Consent within five (5) Business Days after the Proxy Statement/Registration Statement is declared effective under the Securities Act.
Section 8.02 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 6.15, Section 6.16, Article IX, and this Section 8.02 shall survive the termination of this Agreement, and (ii) nothing herein shall relieve any Party from Liability for any Willful Breach 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).
Article IX
MISCELLANEOUS
Section 9.01 No Survival. Except (x) as otherwise contemplated by Section 8.02 or (y) 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.
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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 (i) when delivered in person, (ii) when delivered by 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). Actual notice is effective notice for all purposes hereunder.
| If to the Purchaser: | with a copy (which will not constitute notice) to: |
| Apex Treasury Corporation | Sidley Austin LLP |
|
2035 Regatta Drive Vero Beach, Florida 32693 |
787 Seventh Avenue New York, NY 10019 |
| Attn: Ajmal Rahman; Hugh Cochrane | Attn: Michael Heinz; J. David Stewart; Nick DeAngelis |
| Email: [***] | Email: [***] |
| If to the Company, to: | with a copy (which will not constitute notice) to: |
| TECfusions, Inc. | Paul Hastings LLP |
|
19995 US 19 Highway Clearwater, FL 33764 |
2050 M St NW Washington, DC 20036 |
| Attn: Simon Tusha; Denis Minihane | Attn: Brad Bondi; Gil Savir; Steve Camahort; Sean Donahue |
| Email: [***] | Email: [***] |
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 Persons granted the rights set forth in Section 6.19, 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 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, 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 proceeding or 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 proceeding or 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 proceeding or Legal Proceeding shall be heard and determined only in any such court, and (iv) agrees not to bring any proceeding or 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 9.06.
Section 9.07 WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT AND THE TRANSACTIONS 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.
Section 9.08 Specific Performance. Each Party acknowledges that the rights of each Party to consummate the transactions contemplated hereby 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 agree 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.
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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 to this Agreement may, at any time prior to the Closing, by action taken by its board of directors or managers or other equivalent body or other officers or Persons thereunto duly authorized, (a) extend the time for the performance of the obligations or acts of the other parties hereto, (b) waive any inaccuracies in the representations and warranties (of another party hereto) that are contained in this Agreement or (c) waive compliance by the other parties hereto 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.
Section 9.11 Entire Agreement. 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, together with the Ancillary Documents, 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.
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 Contract, instrument, Law or Order defined or referred to herein or in any Contract, instrument, Law or Order that is referred to herein means such Contract, instrument, insurance policy, Law or Order as from time to time amended, amended and restated, modified or supplemented, including (in the case of Contract or instruments) by waiver or consent and (in the case of Laws and Orders) by succession of comparable successor Laws or Orders and any statutes, regulations, rules or Orders promulgated thereunder, and 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; (j) the term “Dollars” or “$” means United States dollars; and (k) with respect to the determination of any period of time, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”. 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 been posted at least twenty-four (24) hours prior to the date hereof 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 Representatives have been given access to the electronic folders containing such information (the “Data Room”).
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Section 9.13 Counterparts; Electronic Signatures. This Agreement and each Ancillary Document (including any of the Closing deliverables contemplated hereby) may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement or any Ancillary Document (including any of the Closing deliverables contemplated hereby) by electronic transmission (including by email or in .pdf format) and electronically or digitally executed counterparts (such as DocuSign) shall have the same legal effect as original signatures and shall be considered irrevocable originally executed counterparts of this Agreement or any such Ancillary Document or Closing deliverable.
Section 9.14 Legal Representation.
(a) Conflicts and Privilege.
(i) The Purchaser and the Company, on behalf of their respective successors and assigns (including, after the Closing), hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing between or among (x) the Sponsor, the stockholders, shareholders or holders of other equity interests of the Purchaser or the Sponsor and/or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “Apex Group”), on the one hand, and (y) the Purchaser following the Closing, the Company and/or any Target Company, on the other hand, any legal counsel, including Sidley Austin LLP, that represented the Purchaser and/or the Sponsor prior to the Closing may represent the Sponsor and/or any other member of the Apex 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 and/or the Sponsor. The Purchaser and the Company, on behalf of their respective successors and assigns (including, after the Closing), further agree that, as to all legally privileged communications prior to the Closing (made 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 contemplated hereby or thereby) between or among the Purchaser, the Sponsor and/or any other member of the Apex Group, on the one hand, and Sidley Austin LLP, on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Transactions and belong to the Apex Group after the Closing, and shall not pass to or be claimed or controlled by the Purchaser and its Affiliates (following 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.
(ii) The Purchaser and the Company, on behalf of their respective successors and assigns (including, after the Closing), hereby agree that, in the event a dispute with respect to this Agreement or the transactions contemplated hereby arises after the Closing between or among (x) the stockholders, shareholders or holders of other equity interests of the Company and/or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “Company Parties”), on the one hand, and (y) the Company (following the Closing) and/or any member of the Apex Group, on the other hand, any legal counsel, including Paul Hastings LLP (“PH”) that represented the Company prior to the Closing may represent any Target Company 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 and/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), further agree that, as to all legally privileged communications prior to the Closing (made 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 and/or any Target Company, on the one hand, and PH, on the other hand, the attorney/client privilege and the expectation of client confidence shall survive the Transactions. 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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(iii) PH has represented 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 Apex Group and, following the Closing, the Company, agree that they shall not, and shall cause their Affiliates not to, seek to have PH be disqualified from representing (a) any member of the Target Companies in connection with any dispute that may arise between such parties and the Apex Group or the Company or (b) the Purchaser or the Company in connection with any dispute that may arise between such parties and the Target Companies.
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 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 (i) 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; (ii) 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 (iii) 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 pre-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 (x) 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 Redemptions) 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 redemptions and (y) 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).
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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 and/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 Disclosure Letters 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.
Article X
DEFINITIONS
Section 10.01 Certain Definitions. For the purposes of this Agreement, the following capitalized terms have the following meanings:
“A&R Registration Rights Agreement” has the meaning specified in the Recitals.
“Acquisition Proposal” has the meaning specified in Section 6.06(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 the quotient of: (a) the Base Purchase Price divided by (b) ten dollars ($10.00).
“Agreement” has the meaning specified in the Preamble.
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“AI Technologies” means an engineered or machine-based system, software, model, tool, utility or other technology that, for a given set of human-defined objectives, generates outputs such as predictions, recommendations or decisions, influencing real or virtual environments, and that operates (in whole or in part) through data-driven, learning-based, or otherwise non-deterministic or adaptive methods. This includes, but is not limited to, artificial intelligence, automated decision making, or machine learning technologies.
“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 contemplated in this Agreement, 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).
“Anti-Bribery Law” means, as applicable, (i) the U.S. Foreign Corrupt Practices Act of 1977; (ii) the UK Bribery Act 2010; (iii) legislation implementing the Organisation for Economic Co-operation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and related implementing legislation; (iv) anti-bribery legislation promulgated by the European Union and implemented by its member states and (v) any other applicable Laws relating to bribery or corruption in any governing jurisdiction.
“Antitrust Laws” has the meaning specified in Section 6.09(b).
“Apex Group” has the meaning specified in Section 9.14(a)(i).
“Available Closing Cash” means, as of the Closing, without duplication, (a) the amount of funds contained in the Trust Account (after (i) reduction for the aggregate amount of (A) payments made or required to be made in connection with the Redemption and (B) loans or other extensions of credit, including working capital loans, made by the Sponsor and/or its Affiliates to the Purchaser or its Subsidiaries (which, for the avoidance of doubt, are not Purchaser Transaction Costs), and (ii) prior to the payment of any deferred underwriting commissions and other transaction expenses payable in connection with the Transactions, plus (b) the amount of funds available to consummate the Transactions pursuant to a PIPE Investment and other sources of financing net of any fees and expenses associated with such financing.
“Base Purchase Price” means $4,000,000,000.
“Business Combination” has the meaning specified in Article 1.1 of the Purchaser’s Amended and Restated Articles of Association 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 are authorized or required by Law to close.
“Cayman Companies Act” has the meaning specified in the Recitals.
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“Cayman Purchaser Shares” has the meaning specified in the Recitals.
“Cayman Purchaser Warrants” has the meaning specified in the Recitals.
“Cayman Registrar” means the Cayman Islands Registrar of Companies.
“Certificate of Merger” has the meaning specified in the Recitals.
“Closing Date” has the meaning specified in Section 3.01.
“Closing Filing” has the meaning specified in Section 6.15(b).
“Closing Press Release” has the meaning specified in Section 6.15(b).
“Closing” has the meaning specified in Section 3.01.
“Code” means the U.S. Internal Revenue Code of 1986.
“Company” has the meaning specified in the Preamble.
“Company Benefit Plan” 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 for the benefit of any employee or terminated employee of the Company.
“Company Bylaws” means the Bylaws of the Company, adopted as of February 27, 2023.
“Company Charter” means the Articles of Incorporation of the Company, dated as of February 27, 2023.
“Company Confidential Information” means all confidential or proprietary documents and information concerning the Company or any of its Representatives, furnished in connection with this Agreement or the Transactions; provided, however, that Company Confidential Information shall not include any information which, (i) 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 (ii) 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.
“Company Disclosure Letter” has the meaning specified in the Preamble to Article VI.
“Company Financials” has the meaning specified in Section 4.06(a).
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“Company Fully Diluted Shares” means the sum (without duplication) of (i) the aggregate number of Company Shares that are issued and outstanding, whether vested or unvested, plus (ii) the aggregate number of Company Shares issuable (on an as-converted basis) upon the exercise, exchange or conversion, as applicable, of any and all Company Options, warrants, securities, instruments or other similar items exercisable, exchangeable or convertible in full into Company Shares, provided, that, with respect to any options, warrants or other rights with an exercise or purchase price, the number of Company Shares issuable upon exercise thereof shall be calculated on a Treasury Stock Method basis, in each case of the foregoing clauses (i) and (ii) as of immediately prior to the Effective Time.
“Company IP” means any and all Owned Intellectual Property and Third-Party IP.
“Company IP Licenses” means all Intellectual Property licenses, sublicenses and other agreements or permissions that a Target Company is party to or is otherwise authorized to use or practice any Third Party IP under or pursuant to which a Target Company authorizes a third Person to use or practice any Owned Intellectual Property.
“Company Leased Real Properties” has the meaning specified in Section 4.16(b).
“Company Material Adverse Effect” means any event, state of facts, condition, change, development, circumstance, occurrence or effect (collectively, “Events”), that has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on (i) the business, assets, results of operations or condition (financial or otherwise) of the Target Companies, taken as a whole, or (ii) the ability of the Target Companies to consummate the Transactions or perform their respective obligations in connection with the Transactions; provided, however, with respect to the foregoing clause (i), 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”: (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 or refraining from taking of any action expressly required to be taken or refrained from being taken by this Agreement or any Ancillary Document, (d) any natural disaster (including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions or similar occurrences), pandemic, 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 any Event not otherwise excluded from this definition of Company Material Adverse Effect underlying such failure to meet projections or forecasts from being taken into account in determining whether a Company Material Adverse Effect has occurred or has resulted in a Company Material Adverse Effect), (g) any Events generally applicable to the industries or markets in which the Target Companies operate (including increases in the cost of products, supplies, materials or other goods purchased from third party suppliers), (h) the announcement of this Agreement and the consummation of the transactions contemplated hereby, 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 (provided, that this clause (h) shall not apply to any representations or warranties set forth in Section 4.02 or Section 4.05, but subject to any disclosures set forth in Section 4.02 or Section 4.05 of the Company Disclosure Letter), or (i) any action taken by, or at the written request of, the Purchaser; provided, further, that any Event referred to in clauses (a), (b), (d), (e) or (g) above may be taken into account in determining whether a Company Material Adverse Effect has occurred to the extent it has a disproportionate and adverse effect on the business, prospects, assets, results of operations or condition (financial or otherwise) of the Target Companies, taken as a whole, relative to similarly situated companies in the industries in which the Target Companies operate, but only to the extent of the incremental disproportionate effect.
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“Company Material Contract” has the meaning specified in Section 4.13(a).
“Company Material MOU” has the meaning specified in Section 4.13(c).
“Company Option” has the meaning specified in Section 2.02(b).
“Company Option Holder” has the meaning specified in Section 2.02(b).
“Company Option Plan” shall mean any equity incentive plan of the Company pursuant to which the Company has granted any stock options or other equity awards with respect to the Company Shares.
“Company Owned Real Properties” has the meaning specified in Section 4.16(a).
“Company Parties” has the meaning specified in Section 9.14(a)(ii).
“Company Permits” has the meaning specified in Section 4.11.
“Company Personal Property Leases” has the meaning specified in Section 4.16(b).
“Company Real Properties” shall mean the Company Owned Real Properties, the Company Leased Real Properties and the Company Rights-Of-Way.
“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 Rights-Of-Way” has the meaning specified in Section 4.16(c).
“Company Securities” means, collectively, the Company Shares, the Company Options and all other shares, warrants and other securities of the Company.
“Company Shares” means the shares of Company common stock, as provided for in the Company Charter and Company Bylaws.
“Company Signatories” means the directors, officers, founders and Affiliates of the Company, and each holder of more than five percent (5%) of the outstanding Company Shares, in each case, who will receive Domesticated Purchaser Common Stock in connection with the Transactions.
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“Company Software” means any and all Software which the Company owns or purports to own, in whole or in part.
“Company Specified Representations” has the meaning specified in Section 7.03(a).
“Company Stockholder Approval” means the vote of Stockholders holding a majority of the Company Shares at a duly called meeting of the Stockholders or by way of written consents representing the vote of Stockholders holding a majority of the Company Shares, in each case, to authorize, approve and consent to, the execution, delivery and performance of this Agreement and each of the Ancillary Documents to which the Company is or is required to be a party or bound, and the transactions contemplated hereby and thereby, including the Merger.
“Company Stockholder Consent” has the meaning specified in Section 6.13(c).
“Company Transaction Costs” means all fees, costs and expenses of the Target Companies, 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 that would reasonably be expected to be payable in connection with 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) one-half of the costs, fees and expenses incurred in connection with the filings and applications to any Governmental Authorities relating to Antitrust Laws; (f) one-half of the costs, fees and expenses incurred in connection with the filing of the Registration Statement (and any registration statement filed with the SEC in connection therewith) and the review and/or approval thereof by the SEC; and (g) one-half of the costs, fees and expenses incurred in connection with the listing on, or to otherwise satisfy the listing standards of, Nasdaq of the shares issued in connection with the Transactions.
“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.
“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).
“Converted Option” has the meaning specified in Section 2.02(b).
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“Copyleft Terms” has the meaning specified in Section 4.14(e).
“D&O Indemnified Party” has the meaning specified in Section 6.19(a).
“D&O Tail” has the meaning specified in Section 6.19(b).
“Data Privacy, AI, and Security Requirements” means all applicable Laws, industry requirements (including, to the extent applicable to any of the Target Companies, the Payment Card Industry Data Security Standard (“PCI-DSS”) and NIST AI Risk Management Framework), privacy policies and notices, and Contracts relating to (i) the privacy, confidentiality, integrity, availability, collection, use, access, Processing, protection, Security Incident notification, cross-border transfer, deletion or disclosure of Target Company Data or IT Assets, (ii) cybersecurity (including secure software development), or (iii) AI Technologies.
“Data Processor” means any Person that Processes Target Company Data on behalf of or at the direction of the Target Companies, including a “service provider,” “contractor,” or “processor,” as those terms are defined by Data Privacy, AI, and Security Requirements.
“Data Room” has the meaning specified in Section 9.12.
“DGCL” has the meaning specified in the Recitals.
“Disclosure Letters” means, collectively, the Company Disclosure Letter and the Purchaser Disclosure Letter.
“Domesticated Purchaser” has the meaning specified in the Recitals.
“Domesticated Purchaser Common Stock” means, following the Domestication, common stock of the Purchaser, par value $0.0001 per share.
“Domesticated Purchaser Warrant” has the meaning specified in the Recitals.
“Domestication” has the meaning specified in the Recitals.
“Effective Time” has the meaning set forth in Section 1.02(a).
“Eligible Stockholder” means a holder of Company Shares as of immediately prior to the Effective Time and each of their respective successors and assigns.
“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 human health and safety, (b) the environment, (c) 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), (d) pollution, or (e) Hazardous Materials, including the Comprehensive Environmental Response, Compensation and Liability Act, 42 USC §9601 et seq., the Resource Conservation and Recovery Act, 42 USC §6901 et seq., the Toxic Substances Control Act, 15 USC §2601 et seq., the Federal Water Pollution Control Act, 33 USC §1251 et seq., the Clean Air Act, 42 USC §7401 et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 USC §136 et seq., the Occupational Safety and Health Act, 29 USC §651 et seq., the Asbestos Hazard Emergency Response Act, 15 USC §2641 et seq., the Safe Drinking Water Act, 42 USC §300f et seq., the Oil Pollution Act of 1990, 33 USC §2701 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 5101 et seq., and analogous state or local Laws.
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“Environmental Liabilities” means, in respect of any Person, all Liabilities, obligations, responsibilities, Remedial Actions, 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, sanctions, and interest, 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, Environmental Permit, Order, or Contract with any Governmental Authority or other Person, that relates to any environmental, health or safety condition, violation of Environmental Law, or a Release or threatened Release of, or exposure to, Hazardous Materials.
“Environmental Permits” has the meaning specified in Section 4.21(a).
“Equity Incentive Plan” has the meaning specified in Section 6.14(a).
“ERISA Affiliate” means each “person” (as defined in Section 3(9) of ERISA) which together with the Company would be deemed to be a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code.
“ERISA” means the U.S. Employee Retirement Income Security Act of 1974.
“Exchange Act” means the U.S. Securities Exchange Act of 1934.
“Exchange Ratio” means the Aggregate Consideration divided by the Company Fully Diluted Shares.
“Excluded Share” has the meaning specified in Section 2.02(a)(i).
“FBCA” means the Florida Business Corporation Act, as amended from time to time.
“Federal Securities Laws” has the meaning specified in Section 6.07.
“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.
“Governmental Authority” means any federal, state, municipal, local or other foreign or domestic governmental, quasi-governmental, or administrative body, instrumentality, department, or agency, any court, tribunal, administrative hearing body, arbitration panel, commission, or other similar dispute-resolving panel or body, any self-regulated organization or stock exchange or any government-owned entity.
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“Hazardous Material” means any waste, gas, liquid or other substance or material that is defined, listed, classified or designated as hazardous or toxic or as a pollutant or contaminant or words of similar meaning or regulatory effect under any Environmental Law, or that is otherwise regulated by or for which Liability or standards of care may be imposed under any Environmental Law, including oil, petroleum, petroleum products and by-products, petroleum breakdown products, asbestos, asbestos-containing materials, radioactive materials or wastes, polychlorinated biphenyls, radon, mold, urea formaldehyde insulation and per- and polyfluoroalkyl substances.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
“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), (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 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, (g) all obligations secured by a Lien securing debt for borrowed money on any property of such Person (other than Permitted Liens), (h) any premiums, prepayment fees or other penalties, fees, costs or expenses associated with payment of any Indebtedness of such Person and (i) all obligations described in clauses (a) through (h) 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.
“Indemnitee Affiliates” has the meaning specified in Section 6.19(e).
“Information Security Program” means a written information security program that complies with Data Privacy, AI, and Security Requirements, that when appropriately implemented and maintained would constitute reasonable security procedures and practices appropriate to the nature of Target Company Data and IT Assets, and that is at least as stringent as one or more relevant industry standards and that includes, at a minimum: (i) written policies and procedures regarding Target Company Data, and the Processing thereof; (ii) administrative, technical and physical safeguards designed to protect the security, confidentiality, availability and integrity of any Target Company Data and IT Assets; (iii) disaster recovery, business continuity, incident response, and security plans, procedures and facilities; (iv) a vendor and Data Processor cybersecurity and privacy risk management program; and (v) protections against Security Incidents, malicious code, and against loss, misuse, unauthorized access to, or disruption of, the Processing of Target Company Data and IT Assets.
“Intellectual Property” means all intellectual property rights as they exist in any jurisdiction throughout the world, whether registered or unregistered, published or unpublished, including the following: (i) patents, patent applications, and similar rights, including any continuations, divisions, continuations in part, renewals, divisionals, extensions, substitutions, reexaminations, reissues or foreign counterparts of any of the foregoing (collectively, “Patents”); (ii) trade names, trade dress, trademarks, service marks, slogans, logos or internet domain name registrations, social media usernames and handles, and any other similar identifiers of source of origin, including all goodwill associated therewith, together with all registrations and applications relating thereto; (iii) copyrights (whether registered or unregistered), original works of authorship, copyrightable works and subject matter, together with all registrations and applications relating thereto; (iv) industrial designs and any registrations and applications therefor throughout the world; (v) intellectual property rights in Trade Secrets, (vi) intellectual property rights in Software and data, databases, compilations, and any other electronic data files, including any and all collections of data, whether machine readable or otherwise; and (vii) rights to sue or recover and retain damages and costs and attorneys’ fees for the past, present or future infringement, dilution, misappropriation, or other violation of any of the foregoing anywhere in the world.
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“Intended Tax Treatment(s)” has the meaning specified in the Recitals.
“Interim Period” has the meaning specified in Section 6.01(a).
“International Trade Laws” means any applicable (a) U.S. import and export Laws (including those administered by the U.S. Department of Commerce (Bureau of Industry and Security)); Homeland Security (Customs and Border Protection) codified at 19 C.F.R., Parts 1-192; U.S. Department of State (Directorate of Defense Trade Controls) codified at 22 C.F.R., Parts 120-130; and the U.S. Department of the Treasury (OFAC) codified at 31 C.F.R., Parts 500-598) and (b) all applicable import and export Laws of other jurisdictions in which the Purchaser or any Target Company currently conducts business.
“IPO Prospectus” means the final prospectus of the Purchaser, dated as of October 27, 2025 (File No. 333-289485).
“IPO” means the initial public offering of Cayman Purchaser Shares pursuant to the IPO Prospectus.
“IRS” means the U.S. Internal Revenue Service (or any successor Governmental Authority).
“IT Assets” means all information technology and computer systems relating to the transmission, storage, maintenance, organization, presentation, generation, processing or analysis of data and information whether or not in electronic format, used in or necessary for the conduct of any Target Company’s business.
“JOBS Act” has the meaning specified in Section 5.06(f).
“Knowledge” means, with respect to (i) the Company, the actual knowledge, after reasonable inquiry, of the individuals set forth on Schedule 10-B of the Company Disclosure Letter and (ii) the Purchaser, the actual knowledge, after reasonable inquiry, of the individuals set forth on Schedule 10-A of the Purchaser Disclosure Letter; provided, that, in each case, such reasonable inquiry shall be limited to a reasonable review of information available to such individual in the ordinary course of his or her respective roles and responsibilities and reasonable consultation with the direct reports of such individual, and shall not require any audit or interviewing of other personnel (other than the direct reports of such individual).
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“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.
“Legal Proceeding” means any notice of noncompliance or violation, or any claim, demand, charge, action, suit, litigation, audit, settlement, complaint, stipulation, assessment or arbitration, or examination, or any request (including any request for information), inquiry, hearing or proceeding, by or before any Governmental Authority.
“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 of trust, pledge, security interest, attachment, right of first refusal, right of first offer, survey or title defect, option, proxy, voting trust, license, encumbrance, easement, covenant, 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 Agreement” has the meaning specified in the Recitals.
“Lucky” means Lucky Lucko, Inc., d/b/a Efficiency, a Delaware corporation.
“Material Current Government Contract” has the meaning specified in Section 4.10.
“Merger Sub” has the meaning specified in the Preamble.
“Merger” has the meaning specified in the Recitals.
“Nasdaq” has the meaning specified in Section 5.05(a).
“OFAC” has the meaning specified in Section 4.25(c).
“Offer Documents” has the meaning specified in Section 6.13(a)(i).
“Off-the-Shelf Software” means “shrink wrap,” “click wrap,” and “off the shelf” software agreements and other agreements for a non-exclusive license to download or use of non-customized Software commercially available to the public on standard terms and conditions or a non-exclusive right to access and use the functionality of such Software on a hosted or “software-as-a-service” basis with an annual cost of less than $100,000 per year or a one-time license fee of no more than $100,000.
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“Open Source Software” means any code or software governed by any license meeting the Open Source Definition (as promulgated by the Open Source Initiative) or the Free Software Definition (as promulgated by the Free Software Foundation), or any substantially similar license, including any license approved by the Open Source Initiative or any Creative Commons License.
“Order” means any order, decree, ruling, judgment, injunction, writ, determination, binding decision, verdict, judicial award, subpoena, mandate, precept, command, directive, or other similar 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.
“Outside Date” has the meaning specified in Section 8.01(d).
“Owned Intellectual Property” means any and all Intellectual Property which a Target Company owns (or purports to own), in whole or in part.
“Party(ies)” has the meaning specified in the Preamble.
“Patents” has the meaning set forth in the definition of “Intellectual Property”.
“PCAOB Financial Statements” has the meaning specified in Section 6.04.
“PCAOB” means the U.S. Public Company Accounting Oversight Board (or any successor thereto).
“Per Share Base Consideration” has the meaning specified in Section 2.01.
“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.
“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 for which 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, to the Knowledge of the Company, are not violated in any material respect; (d) non-monetary Liens of record, so long as such matters do not materially detract from the value of or materially interfere with the Target Companies’ ability to conduct its current or planned business at the Companies Real Properties so long as such matters do not materially detract from the value of or materially interfere with any Target Company’s ability to conduct its current or planned business at the Companies Real Properties; (e) all matters that would be disclosed on an accurate survey or inspection of the Company Real Properties so long as such matters do not materially detract from the value of or materially interfere with any Target Company’s ability to conduct its current or planned business at the Companies Real Properties; (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; (h) Liens arising under this Agreement or any Ancillary Document; (i) non-exclusive licenses of Intellectual Property granted in the ordinary course of business; or (j) any Liens set forth on Section 10.01(PL) of the Company Disclosure Letter.
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“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 government, domestic or foreign, or political subdivision thereof, or an agency or instrumentality thereof.
“Personal Data” means (a) any information relating to or reasonably capable of being associated with an identified or identifiable person, device or household; or (b) any information that constitutes “personal data,” “personal information,” “protected health information,” “nonpublic personal information” or other similar terms as defined by Data Privacy, AI, and Security Requirements.
“Personal Property” means any machinery, equipment, tools, vehicles, furniture, leasehold improvements, office equipment, plant, parts and other tangible personal property.
“PH” has the meaning specified in Section 9.14(a)(ii).
“PIPE Investment” means (a) the purchase from the Purchaser of shares of Domesticated Purchaser Common Stock, shares of one or more series of Purchaser preferred stock or debt securities of Purchaser, with such purchases to be consummated prior to or substantially concurrently with the Closing (but, for the avoidance of doubt, no earlier than the calendar day after the day on which the Domestication is consummated), (b) the purchase from the Company of any common equity of the Company, and (c) any other form of equity financing (including backstops, recycling facilities and forward purchase agreements), project financing, debt financing or other credit products of Purchaser or the Company, in each case, that are funded prior to or substantially concurrently with the Closing (but, for the avoidance of doubt, no earlier than the calendar day after the day on which the Domestication is consummated with respect to any financing of the Purchaser).
“Post-Closing Purchaser Board” has the meaning specified in Section 6.18(a).
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“Premium Cap” has the meaning specified in Section 6.19(b).
“Processing,” ”Process,” or “Processed” means any collection, access, acquisition, storage, protection, use, recording, maintenance, operation, dissemination, re-use, disposal, disclosure, re-disclosure, deletion, destruction, sale, sharing, transfer, modification, or any other processing (as defined by Data Privacy, AI, and Security Requirements) of Target Company Data or IT Assets.
“Proxy Statement/Registration Statement” has the meaning specified in Section 6.13(a)(i).
“Proxy Statement” has the meaning specified in Section 6.13(a)(i).
“Purchaser” has the meaning specified in the Preamble.
“Purchaser Board Recommendation” has the meaning specified in Section 6.13(b).
“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 consummation of the Domestication, Class A ordinary shares of the Purchaser, par value $0.0001 per share.
“Purchaser Class B Ordinary Shares” means prior to the consummation of the Domestication, Class B ordinary shares of the Purchaser, par value $0.0001 per share.
“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, (i) 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 (ii) 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.
“Purchaser Disclosure Letter” has the meaning specified in the Preamble to Article V.
“Purchaser Material Adverse Effect” means any change, event, or occurrence, that, individually or when aggregated with other changes, events, or occurrences has had a materially adverse effect (i) on the business, assets, financial condition or results of operations of the Purchaser or (ii) on the ability of Purchaser and Merger Sub to consummate the Transactions or perform their respective obligations in connection with the Transactions; provided, however, with respect to foregoing clause (i), 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 “Purchaser Material Adverse Effect”: (i) the announcement of this Agreement and consummation of the transactions contemplated hereby, 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 Purchaser or Merger Sub; (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 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) 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; (vii) changes or proposed changes in GAAP (or any interpretation thereof) after the date of this Agreement; (viii) any change in interest rates or economic, political, business or financial market conditions generally; (ix) any action taken by, or at the written request of, the Company; (x) any change, event, or occurrence generally applicable to publicly traded special purpose acquisition companies, or (xi) any change in the trading price or volume of the Cayman Purchaser Shares, Purchaser Ordinary Shares or Cayman Purchaser Warrants (provided, that the underlying causes of such changes referred to in this clause (xi) may be considered in determining whether there is a Purchaser Material Adverse Effect except to the extent such cause is within the scope of any other exception within this definition).
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“Purchaser Ordinary Shares” means the Purchaser Class A Ordinary Shares and the Purchaser Class B Ordinary Shares.
“Purchaser SEC Reports” has the meaning specified in Section 5.06(a).
“Purchaser Shareholder Approval” means the approval of (i) those Transaction Proposals identified in clauses (B) and (C) of Section 6.13(b), in each case, by special resolution under Cayman Islands Law, being an affirmative vote of the holders of a majority of at least two-thirds of the outstanding Purchaser Class B Ordinary Shares entitled to vote, who attend and vote thereupon (as determined in accordance with the Purchaser’s Organizational Documents) at the Purchaser Shareholders’ Meeting (or any adjournment or postponement thereof in accordance with Section 6.13(a)(i)), (ii) those Transaction Proposals identified in clauses (A), (D), (F) and (G) of Section 6.13(a)(i), in each case, by an ordinary resolution under Cayman Islands Law, being an affirmative vote of the holders of at least a simple majority of the outstanding Purchaser Ordinary Shares entitled to vote, who attend and vote thereupon (as determined in accordance with the Purchaser’s Organizational Documents), at the Purchaser Shareholders’ Meeting, (or any adjournment or postponement thereof in accordance with Section 6.13(a)(i)), and (iii) 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 (or any adjournment or postponement thereof in accordance with Section 6.13(a)(i)).
“Purchaser Shareholders’ Meeting” has the meaning specified in Section 6.13(b).
“Purchaser Shareholders” means the holders of the Purchaser Ordinary Shares.
“Purchaser Specified Representations” has the meaning specified in Section 7.02(a).
“Purchaser Transaction Costs” means: (a) except as otherwise expressly contemplated in the definition of “Company Transaction Costs” or elsewhere in this Agreement, all fees, costs and expenses of the Purchaser incurred prior to and through the Closing Date, including in connection with the negotiation, preparation and execution of this Agreement and 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) one-half of the costs, fees and expenses incurred in connection with the filings and applications to any Governmental Authorities relating to Antitrust Laws; (d) one-half of the costs, fees and expenses incurred in connection with the preparation and filing of the Registration Statement (and any registration statement filed with the SEC in connection therewith) and the review and/or approval thereof by the SEC; and (e) one-half of the costs, fees and expenses incurred in connection with the listing on, or to otherwise satisfy the listing standards of, Nasdaq of the shares issued in connection with the Transactions.
“Q1 Financial Statements” has the meaning specified in Section 6.04.
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“Redemption” has the meaning specified in the Recitals.
“Registration Statement Securities” has the meaning specified in Section 6.13(a)(i).
“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.
“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, pouring, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping, migrating or leaching into or through the indoor or outdoor environment, or into or out of any property (including indoor air, ambient air, surface water, groundwater, land surface or subsurface strata or within any building, structure, facility or fixture).
“Remedial Action” means all actions to (i) clean up, remove, treat, or in any other way address any Hazardous Material or other substance, (ii) prevent the Release or threatened Release or minimize the further Release of any Hazardous Material or other substance so it does not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, (iii) perform pre-remedial studies and investigations or post-remedial monitoring and care, or (iv) correct or otherwise respond to 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.
“Sanctioned Jurisdiction” has the meaning specified in Section 4.25(c).
“Sanctions Laws” means applicable economic and financial sanctions and trade embargoes administered or enforced by (i) the United States (including OFAC, the U.S. Department of State, and the U.S. Department of Commerce), (ii) the European Union, (iii) the United Nations Security Council, (iv) His Majesty’s Treasury, or (v) any Governmental Authority with jurisdiction over the Purchaser or any Target Company.
“Sanctioned Persons” has the meaning specified in Section 4.25(c).
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“SDN List” has the meaning specified in Section 4.25(c).
“SEC” means the U.S. Securities and Exchange Commission (or any successor Governmental Authority).
“Securities Act” means the Securities Act of 1933.
“Security Incident” means any material unauthorized Processing of Target Company Data, any unauthorized access or disruption to the IT Assets, or any incident that may require notification to any Person under Data Privacy, AI, and Security Requirements.
“Signing Filing” has the meaning specified in Section 6.15(b).
“Signing Press Release” has the meaning specified in Section 6.15(b).
“Software” means any and all software, firmware and other computer programs and applications, including any and all source code, descriptions, schematics, specifications, flow charts, object code, middleware, utilities, application programming interfaces, algorithms, plugins, libraries, subroutines, tools, drivers, microcode, scripts, batch files, instruction sets and macros, models, and methodologies and documentation related thereto including user manuals, user documentation, and training materials.
“Sponsor Share Conversion” has the meaning specified in the Recitals.
“Sponsor Support Agreement” has the meaning specified in the Recitals.
“Sponsor” means Apex Treasury Sponsor LLC, a Delaware limited liability company.
“Stockholder Support Agreement” means that certain Stockholder Support Agreement, dated as of the date hereof (as it may be amended or supplemented from time to time), by and between the Purchaser, the Company and the Stockholders party thereto.
“Stockholders” means the Persons who are stockholders or equityholders of the Company.
“Subscription Agreements” has the meaning specified in Section 6.20(a).
“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.
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“Surviving Company” has the meaning specified in the Recitals.
“Target Companies” means, collectively, the Company and its direct and indirect Subsidiaries.
“Target Company Data” means all data, information and data compilations contained in the IT Assets of the Target Companies, including Personal Data and confidential information that are used by the Target Companies.
“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 or any amendment thereof) filed or submitted or required to be filed or submitted 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 (a) any direct or indirect federal, state, provincial, territorial, local, foreign and other net income tax, alternative or add-on minimum tax, withholding tax, franchise tax, gross income, adjusted gross income or gross receipts tax, employment related tax (including employee withholding or employer payroll tax, social security or national health insurance), ad valorem, transfer, franchise, license, excise, severance, stamp, occupation, environmental, premium, personal property, real property, escheat or unclaimed property, windfall, capital stock, profits, disability, registration, value added, estimated, customs, duties, and sales or use tax, or other tax or like assessment or charge, in each case in the nature of a tax and imposed by any Governmental Authority, together with any interest, indexation, penalty, addition to tax or additional amount imposed with respect thereto (or in lieu thereof) by a Governmental Authority (or relating to an obligation to file a Tax Return), (b) any liability for payment of amounts described in clause (a) whether as a result of being a member of an affiliated, consolidated, combined or unitary group for any period, or as a result of being a transferee or successor, by operation of Contract or Law and (c) any liability for the payment of amounts described in clauses (a) or (b) as a result of any tax sharing, tax group, tax indemnity or tax allocation agreement (excluding customary commercial Contracts entered into in the ordinary course of business the primary purpose of which is not the sharing of Taxes) with, or any other express or implied agreement to indemnify, any other Person.
“Third-Party IP” means all Intellectual Property owned by a third party that is licensed, used or held for use by any Target Company.
“Top Customer” has the meaning specified in Section 4.24(a).
“Top Suppliers” has the meaning specified in Section 4.24(b).
“Trade Secrets” means trade secrets and confidential business information, concepts, ideas, designs, research or development information, processes, procedures, techniques, technical information, specifications, operating and maintenance manuals, engineering drawings, methods, know-how, data, mask works, discoveries and inventions (whether or not patentable).
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“Trading Day” means any day on which shares of Domesticated Purchaser Common Stock are actually traded on the principal securities exchange or securities market on which shares of Domesticated Purchaser Common Stock are then traded.
“Transaction Proposals” has the meaning specified in Section 6.13(b).
“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 provision or provisions of succeeding, similar or substitute, temporary or final Treasury Regulations.
“Treasury Stock Method” means, with respect to any options, warrants or other rights, a calculation method pursuant to which the number of shares deemed issued upon exercise thereof is reduced by the number of shares that could be repurchased with the aggregate exercise price at a price per share equal to ten dollars ($10.00).
“Trust Account” means that certain trust account established pursuant to the Trust Agreement.
“Trust Agreement” has the meaning specified in Section 5.14.
“Trustee” has the meaning specified in Section 5.14.
“Warrant Agreement” has the meaning specified in the Recitals.
“Willful Breach” shall mean, with respect to any agreement, a party’s knowing and intentional material breach of any of its representations or warranties as set forth in such agreement, or such party’s material breach of any of its covenants or other agreements set forth in such agreement, which material breach constitutes or is a consequence of, a purposeful act or failure to act by any such party with the actual knowledge that the taking of such act or failure to take such act would cause a material breach of such agreement.
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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.
| PURCHASER: | ||
| APEX TREASURY CORPORATION | ||
| By: | /s/ Paul Sykes | |
| Name: | Paul Sykes | |
| Title: | Chief Financial Officer | |
| COMPANY: | ||
| TECFUSIONS, INC. | ||
| By: | /s/ Denis Minihane | |
| Name: | Denis Minihane | |
| Title: | Director, Chairman of the Board | |
| MERGER SUB: | ||
| STEPPING STONE MERGER SUB, INC. | ||
| By: | /s/ Paul Sykes | |
| Name: | Paul Sykes | |
| Title: | Chief Financial Officer | |
[Signature Page to Business Combination Agreement]
Exhibit 10.1
Execution Version
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) is entered into as of July 21, 2026, by and between Apex Treasury Corporation, a Cayman Islands exempted company (the “Company”), and the undersigned (“Subscriber” or “you”). Defined terms used but not otherwise defined herein shall have the respective meanings ascribed thereto in the Transaction Agreement (as defined below).
WHEREAS, substantially concurrently with the execution and delivery of this Subscription Agreement, the Company is entering into that certain Business Combination Agreement, dated as of the date of this Subscription Agreement (as amended, modified, supplemented or waived from time to time in accordance with its terms, the “Transaction Agreement”, and the transactions contemplated by the Transaction Agreement, the “Transactions”), among the Company, Stepping Stone Merger Sub, Inc., a Delaware corporation and a direct wholly-owned subsidiary of the Company (“Merger Sub”), and TECfusions, Inc., a Florida corporation (“TECfusions”);
WHEREAS, pursuant to the Transaction Agreement, Merger Sub will be merged with and into TECfusions, with TECfusions surviving as a direct, wholly-owned subsidiary of the Company;
WHEREAS, prior to the closing of the Transactions, the Company will domesticate as a Delaware corporation in accordance with Section 388 of the General Corporation Law of the State of Delaware (“DGCL”) and Part 12, Section 206 of the Companies Act (As Revised) (the “Domestication”).
WHEREAS, in connection with the Transaction, Subscriber desires to subscribe for and purchase from the Company that number of the Company’s Class A ordinary shares, par value $0.0001 per share (the “Ordinary Shares”), set forth on the signature page hereto (the “Shares”) for a purchase price of $10.00 per share (the “Per Share Price”), or the aggregate purchase price set forth on the signature page hereto (the “Purchase Price”), and the Company desires to issue and sell to Subscriber the Shares in consideration of the payment of the Purchase Price by or on behalf of Subscriber to the Company; and
WHEREAS, in connection with the Transaction, certain other “qualified institutional buyers” (as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”)) and certain other “accredited investors” (within the meaning of Rule 501(a) under the Securities Act) (each, an “Other Subscriber”) may, severally and not jointly, enter into separate subscription agreements with the Company (the “Other Subscription Agreements”).
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
1. Subscription. Subject to the terms and conditions hereof, Subscriber hereby agrees to subscribe for and purchase, and the Company hereby agrees to issue and sell to Subscriber, upon the payment of the Purchase Price, in each case, at the Closing (as defined below), the Shares (such subscription and issuance, the “Subscription”).
2. Representations, Warranties and Agreements.
2.1 Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the Shares to Subscriber, Subscriber hereby represents and warrants to the Company and agrees with the Company as follows:
2.1.1 If Subscriber is not an individual, Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation, with power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the authority to enter into, deliver and perform its obligations under this Subscription Agreement.
2.1.2 If Subscriber is not an individual, this Subscription Agreement has been duly authorized, executed and delivered by Subscriber. If Subscriber is an individual, the signature on this Subscription Agreement is genuine, and Subscriber has legal competence and capacity to execute the same. This Subscription Agreement is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
2.1.3 The execution, delivery and performance by Subscriber of this Subscription Agreement and the consummation of the transactions contemplated herein will not (i) 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 Subscriber or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber or any of its subsidiaries is a party or by which Subscriber or any of its subsidiaries is bound or to which any of the property or assets of Subscriber or any of its subsidiaries is subject, which would reasonably be expected to materially affect the legal authority of Subscriber to comply in all material respects with the terms of this Subscription Agreement (a “Subscriber Material Adverse Effect”); (ii) if Subscriber is not an individual, result in any violation of the provisions of the organizational documents of Subscriber or any of its subsidiaries; or (iii) result in any violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of its subsidiaries or any of their respective properties that would reasonably be expected to have a Subscriber Material Adverse Effect or materially affect the legal authority of Subscriber to comply in all material respects with this Subscription Agreement.
2.1.4 As of the Closing Date and the Make-Whole Shares Issuance Date, if applicable, Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) satisfying the applicable requirements set forth on Schedule A, (ii) is aware that the Subscription is being made in reliance on a private placement exemption from registration under the Securities Act and is acquiring the Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer or an accredited investor, and Subscriber 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) is not acquiring the Shares or the Make-Whole Shares, if applicable, with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and shall provide the requested information on Schedule A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Shares. Subscriber understands and acknowledges that the purchase of the Shares pursuant to this Agreement meets an exemption from filing under FINRA Rule 5123. Subscriber is not an entity formed for the specific purpose of acquiring the Shares, unless such newly formed entity is an entity in which all of the equity owners are accredited investors. Subscriber is aware that the Company is not relying specifically on the safe harbor from the registration requirements of the Securities Act provided by Regulation D under the Securities Act, and the Company will not file a Form D under the Securities Act with respect to the offer and sale of the Shares.
2.1.5 Subscriber understands that the Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the offer and sale of the Shares have not been registered under the Securities Act or any other securities laws of the United States or any other jurisdiction. Subscriber understands that the Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act with respect to the Shares or an applicable exemption from the registration requirements of the Securities Act is available, and that any certificates (if applicable) or book entries representing the Shares shall contain a legend to such effect. Subscriber acknowledges that the Shares will not be eligible for resale pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”) until one year from the filing by the Company of the “Form 10 information” with respect to TECfusions, and that the provisions of Rule 144(i) will apply to the Shares. Subscriber understands and agrees that the Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, Subscriber may not be able to readily resell the Shares and may be required to bear the financial risk of an investment in the Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Shares.
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2.1.6 Subscriber understands and agrees that Subscriber is purchasing the Shares directly from the Company. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Company, TECfusions, or any of their respective affiliates, control persons, officers, directors, employees, partners, agents or representatives, any other party to the Business Combination Agreement or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement. Subscriber agrees that none of (i) any other Subscriber (including the controlling persons, members, officers, directors, partners, agents, or employees of any such other Subscriber), (ii) the Placement Agents (as defined below), their respective affiliates or any of their respective affiliates’ control persons, officers, directors or employees, (iii) Apex Treasury Sponsor LLC (the “Sponsor”), its affiliates (other than the Company), or any of its or its affiliates’ respective control persons, officers, directors or employees or (iv) 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, shall be liable to the Subscriber pursuant to this Agreement for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Shares.
2.1.7 As of the Closing Date and the Make-Whole Shares Issuance Date, if applicable, Subscriber represents and warrants that (i) it is not a Benefit Plan Investor as contemplated by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or (ii) its acquisition and holding of the Shares and the Make-Whole Shares, if applicable, will not constitute or result in a non-exempt prohibited transaction under Section 406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended, or any applicable similar law.
2.1.8 In making its decision to subscribe for the Shares, Subscriber represents that it has relied solely upon the representations, warranties and covenants set forth in this Subscription Agreement, the SEC Reports (as defined below), and the independent investigation made by Subscriber. The Subscriber acknowledges and agrees that the Subscriber has received and has had an adequate opportunity to review, such financial and other information as the Subscriber deems necessary in order to make an investment decision with respect to the Shares, including with respect to the Company, TECfusions and the Transactions, and made its own assessment and is satisfied concerning the relevant tax and other economic considerations relevant to the Subscriber’s investment in the Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has reviewed the documents provided to the Subscriber by the Company and the Company’s filings with the SEC. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Subscriber and such Subscriber’s professional advisor(s), if any, have deemed necessary for the Subscriber to make an investment decision with respect to the Shares. The Subscriber acknowledges that no disclosure or any information received by the Subscriber has been prepared by any of Revere Securities LLC (“Revere”) or Cohen & Company Capital Markets, a division of Cohen & Company Securities, LLC (“Cohen” and, together with Revere, the “Placement Agents”), and that the Placement Agents and their respective directors, officers, employees, representatives and controlling persons have made no independent investigation with respect to the Company or the Shares or the accuracy, completeness or adequacy of any information supplied to the Subscriber by the Company. The Subscriber acknowledges that it has not relied on any statements or other information provided by the Placement Agents or any of the Placement Agents’ affiliates with respect to its decision to invest in the Shares, including information related to the Company, the Shares and the offer and sale of the Shares.
2.1.9 Subscriber became aware of this offering of the Shares solely by means of direct contact from the Placement Agents in the case of institutional accredited investors, or directly from the Company as a result of a pre-existing, substantial relationship with the Company or TECfusions, and the Shares were offered to Subscriber solely by direct contact between Subscriber and any of the Placement Agents, the Company or TECfusions. Subscriber did not become aware of this offering of the Shares, nor were the Shares offered to Subscriber, by any other means. Subscriber acknowledges that (a) the Placement Agents have not acted as its financial advisor or fiduciary, (b) each of the Placement Agents is acting solely as placement agent to the Company and is not acting as an underwriter or in any other capacity or as a fiduciary for the Company, TECfusions or any other person or entity in connection with the Transactions and (c) none of the Placement Agents or any of their respective affiliates has prepared any disclosure or offering document in connection with the offer and sale of the Shares. Subscriber acknowledges that the Company represents and warrants that the Shares (i) were not offered by any form of general solicitation or general advertising 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. None of the Company, the Placement Agents, TECfusions, the Sponsor or any of their respective affiliates or representatives acted as investment advisor, broker or dealer to Subscriber in connection with the offer and sale of the Shares.
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2.1.10 Subscriber acknowledges and agrees that (a) the Placement Agents have not made and will not make any representation or warranty, whether express or implied, of any kind or character and have not provided any advice or recommendation in connection with the Transaction, (b) the Placement Agents will have no responsibility with respect to (i) any representations, warranties or agreements made by any person or entity under or in connection with the Transactions or any of the documents furnished pursuant thereto or in connection therewith, or the execution, legality, validity or enforceability (with respect to any person) or any thereof, or (ii) the business, affairs, financial condition, operations, properties or prospects of, or any other matter concerning the Company, TECfusions or the Transactions, and (c) the Placement Agents will have no liability or obligation (including without limitation, for or with respect to any losses, claims, damages, obligations, penalties, judgments, awards, liabilities, costs, expenses or disbursements incurred by Subscriber, the Company or any other person or entity), whether in contract, tort or otherwise, to Subscriber, or to any person claiming through Subscriber, in respect of the Transactions.
2.1.11 Subscriber acknowledges that it is aware that there are substantial risks incident to the subscription for, and ownership of, the Shares, including those set forth in the SEC Reports (as defined below) and the investor presentation provided by the Company. Subscriber 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 Shares, and Subscriber has had an opportunity to seek, and sought, such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision. Subscriber (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 Shares. Subscriber understands and acknowledges that the purchase and sale of the Shares hereunder meets (i) the exemptions from filing under FINRA Rule 5123, (ii) the institutional customer exemption under FINRA Rule 2111(b) and (iii) the institutional account exemption under FINRA Rule 4512(c).
2.1.12 Subscriber represents and acknowledges that Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of the investment in the Shares, has adequately analyzed and fully considered the risks of an investment in the Shares and determined that the Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in the Company. Subscriber further acknowledges specifically that a possibility of total loss of investment exists and that it is able to fend for itself in the transactions contemplated herein.
2.1.13 Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Shares and the Make-Whole Shares or made any findings or determination as to the fairness of this investment.
2.1.14 Subscriber represents and warrants that Subscriber 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 (collectively, a “Prohibited Investor”). Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that Subscriber is permitted to do so under applicable law. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Shares are legally derived.
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2.1.15 Subscriber (i) has, and at the Closing will have, sufficient funds to pay the Purchase Price pursuant to Section 3.1 of this Agreement and any expenses incurred by Subscriber 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..
2.1.16 Subscriber represents that no disqualifying event described in Rule 506(d)(1)(i)-(viii) under the Securities Act (a “Disqualification Event”) is applicable to Subscriber or any of its Rule 506(d) Related Parties (as defined below), except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable. For purposes of this Section 2.1.15, “Rule 506(d) Related Party” shall mean a person or entity that is a direct beneficial owner of Subscriber’s securities for purposes of Rule 506(d) under the Securities Act.
2.1.17 Subscriber acknowledges that certain information provided to it 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. Subscriber further acknowledges that the information provided to it 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 Commission in connection with the Transactions (which will include substantial additional information about the Company, TECfusions and the Transactions and will update and supersede the information previously provided Subscriber). Subscriber further acknowledges that such information and projections were prepared without the participation of the Placement Agents and that the Placement Agents do not assume responsibility for independent verification of, or the accuracy or completeness of, such information or projections. In addition, the Company, TECfusions, the Sponsor, Placement Agents and their respective affiliates or representatives may have acquired non-public information with respect to the Company or TECfusions which Subscriber agrees need not be provided to it. In connection with the issuance of the Shares to Subscriber, none of the Placement Agents, the Company, TECfusions, the Sponsor or any of their respective affiliates or representatives has acted as a financial advisor or fiduciary to Subscriber.
2.1.18 As of the date of this Subscription Agreement and the Measurement Date, if applicable, Subscriber does not have, and during the 30 day period immediately prior to the date of this Subscription Agreement and the Measurement Date, if applicable, Subscriber has not entered into, any “put equivalent position” as such term is defined in Rule 16a-1 under Securities Exchange Act of 1934, as amended (the “Exchange Act”), or short sale positions with respect to the securities of the Company. Notwithstanding the foregoing, Subscriber makes no such representation with respect to any assets of Subscriber managed by an external investment manager pursuant to a separately managed account arrangement.
2.1.19 Except as expressly disclosed in a Schedule 13D or Schedule 13G (or amendments thereto) filed by Subscriber with the Commission with respect to the beneficial ownership of the Company’s outstanding securities prior to the date hereof, Subscriber 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) acting for the purpose of acquiring, holding, voting or disposing of equity securities of the Company (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than a group consisting solely of the Subscriber and its affiliates.
2.1.20 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 subscription and sale of Shares hereunder 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 subscription and sale of Shares hereunder.
2.1.21 At all times on or prior to the Closing Date and the Measurement Date, Subscriber has no binding commitment to dispose of, or otherwise transfer (directly or indirectly), any of the Shares.
2.1.22 No broker or finder is entitled to any brokerage or finder’s fee or commission to be paid by Subscriber solely in connection with the sale of the Shares to Subscriber.
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2.1.23 Subscriber acknowledges that (i) the Company, TECfusions, the Sponsor and the Placement Agents, 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 TECfusions that is not known to Subscriber and that may be material to a decision to purchase the Shares, (ii) Subscriber has determined to purchase the Shares notwithstanding its lack of knowledge of such information, and (iii) none of the Company, TECfusions, the Sponsor or the Placement Agents or any of their respective affiliates, control persons, officers, directors, employees, agents or representatives shall have liability to Subscriber, and Subscriber hereby, to the extent permitted by law, waives and releases any claims it may have against the Company, TECfusions, the Sponsor, the Placement Agent and their respective affiliates, control persons, officers, directors, employees, agents or representatives, with respect to the nondisclosure of such information.
2.1.24 Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.
2.1.25 Subscriber acknowledges that Subscriber shall be responsible for any of Subscriber’s tax liabilities that may arise as a result of the transactions contemplated by this Agreement, and that none of the Company, the Placement Agents, TECfusions, or any of their respective agents or affiliates has offered Subscriber any tax advice relating to Subscriber’s investment in the Shares, or made any representations, warranties or guarantees, whether written or oral, regarding the tax consequences of Subscriber’s investment in the Shares.
2.1.26 Subscriber acknowledges that the Company and the Placement Agents will rely on the acknowledgments, understandings, agreements, representations and warranties of Subscriber contained in this Agreement or any agreements or documents issued in connection herewith; provided, however, that the foregoing clause of this Section 2.1.26 shall not give the Company or the Placement Agents any rights other than those expressly set forth herein. Prior to the Closing, Subscriber agrees to promptly notify the Company and the Placement Agents if it becomes aware that any of the acknowledgments, understandings, agreements, representations and warranties of Subscriber set forth herein are no longer accurate in all material respects. Subscriber acknowledges and agrees that the purchase by Subscriber of Shares from the Company will constitute a reaffirmation of the acknowledgments, understandings, agreements, representations and warranties herein (as modified by any such notice) by Subscriber as of the time of such purchase.
2.2 Company’s Representations, Warranties and Agreements. To induce Subscriber to subscribe for the Shares, the Company hereby represents and warrants to Subscriber and agrees with Subscriber as follows:
2.2.1 The Company is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands. The Company has all requisite corporate power and authority to own, lease and operate its properties and carry on its business as now being conducted. The Company has all requisite power to execute this Subscription Agreement and perform its obligations hereunder. As of the Closing Date, following the Domestication, the Company will be duly incorporated, validly existing as a corporation and in good standing under the laws of the State of Delaware with requisite power and authority to own, lease and operate its assets and properties and conduct its business as it is now being conducted.
2.2.2 As of the Closing Date, the Shares (including any Make-Whole Shares) will be duly authorized and, when issued and delivered to Subscriber against full payment for the Shares in accordance with the terms of this Subscription Agreement and registered with the Company’s transfer agent, the Shares (including any Make-Whole Shares) will be validly issued, fully paid and non-assessable and the Shares will not have been authorized in violation of or subject to any preemptive or similar rights created under the Company’s amended and restated certificate of incorporation or under the DGCL and, in the case of any Make-Whole Shares, will not be subject to any additional shareholder approvals prior to being issued and delivered to Subscriber.
2.2.3 The execution and delivery of this Subscription Agreement has been duly and validly authorized by the Company and is enforceable against it in accordance with its terms, except as may be limited or otherwise affected by (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws of general application affecting the enforcement of creditors’ rights generally, and (ii) 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.
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2.2.4 The execution, delivery and performance of this Subscription Agreement (including compliance by the Company with all of the provisions hereof), issuance and sale of the Shares and the consummation of the certain other transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute (i) 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 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, which would reasonably be expected to have a material adverse effect on the business, properties, financial condition, stockholders’ equity or results of operations of the Company (a “Material Adverse Effect”) or materially affect the validity of the Shares or the legal authority of the Company to comply in all material respects with the terms of this Subscription Agreement; (ii) result in any violation of the provisions of the organizational documents of the Company; or (iii) result in any violation of 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 would reasonably be expected to have a Material Adverse Effect or materially affect the validity of the Shares or the legal authority of the Company to comply in all material respects with this Subscription Agreement.
2.2.5 Assuming the accuracy of the representations and warranties of Subscriber set forth in Section 2.1, no registration under the Securities Act is required for the offer and sale of the Shares and the Make-Whole Shares by the Company to Subscriber. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any governmental authority is required on the part of the Company in connection with such offer and sale of Shares and the Make-Whole Shares contemplated by this Subscription Agreement, except for filings pursuant to applicable state securities laws. Neither the Company, nor any person acting on its behalf has, directly or indirectly, made any offers or sales of any Company security or solicited any offers to buy any security under circumstances that would adversely affect reliance by the Company on Section 4(a)(2) of the Securities Act for the exemption from registration for the transactions contemplated hereby or would require registration of the issuance of the Shares and the Make-Whole Shares pursuant to this Subscription Agreement under the Securities Act.
2.2.6 Neither the Company nor any person acting on its behalf has (a) conducted any general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) in connection with the offer or sale of any of the Shares or (b) offered the Shares in a manner involving a public offering under, or in a distribution in violation of, the Securities Act or any state securities laws.
2.2.7 The Company has provided Subscriber an opportunity to ask questions regarding the Company and made available to Subscriber all the information reasonably available to the Company that Subscriber has requested for deciding whether to acquire the Shares.
2.2.8 No Disqualification Event is applicable to the Company or, to the Company’s knowledge, any Company Covered Person (as defined below), except for a Disqualification Event as to which Rule 506(d)(2)(ii)-(iv) or (d)(3) under the Securities Act is applicable. The Company has complied, to the extent applicable, with any disclosure obligations under Rule 506(e) under the Securities Act. “Company Covered Person” means, with respect to the Company as an “issuer” for purposes of Rule 506 under the Securities Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Act.
2.2.9 As of their respective dates, all forms, reports, schedules, statements and other documents (the “SEC Reports”) required to be filed or furnished by the Company with the U.S. Securities and Exchange Commission (the “SEC”) under the Securities Act and the Exchange Act, and the rules and regulations of the SEC promulgated thereunder, together with any amendments, restatements or supplements thereto, were prepared in accordance with the requirements of the Securities Act, the Exchange Act and the Sarbanes Oxley Act, as the case may be, and none of the SEC Reports, at the time they were filed (or if amended or superseded by a filing, then on the date of such filing) with the SEC, 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. The Company has, since the time of its initial public offering, filed all SEC Reports.
2.2.10 The Company has not entered into any side letter or similar agreement with any Other Subscriber or investor in connection with an Other Subscriber’s or other investor’s direct or indirect investment in the Company, and any Other Subscription Agreement the Company enters into will reflect the same Per Share Price as this Subscription Agreement.
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2.2.11 Except for such matters as have not had and would not reasonably be expected to have a Material Adverse Effect, there is no (i) suit, 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.
2.2.12 The Company is in compliance with all applicable laws and the conduct of its business except for such noncompliance which would not reasonably be expected to be material to the Company, and the Company has not received written notice alleging any violation of any applicable law in any material respect by the Company.
2.2.13 The authorized share capital of the Company immediately prior to the Closing will be $55,500.00 divided into: (a) 500,000,000 Class A ordinary shares, par value $0.0001 per share, (b) 50,000,000 Class B ordinary shares, par value $0.0001 per share (“Class B ordinary shares”); and (c) 5,000,000 preference shares, par value $0.0001 per share (“Preferred Shares”). As of the date hereof, and as of immediately prior to the completion of the Transactions (prior to giving effect to (x) any redemption of any Class A ordinary shares held by the Company’s public shareholders in connection with the consummation of the Transactions and (y) the issuance of the Shares and Class A ordinary shares issued pursuant to any Other Subscription Agreement): (i) no Preferred Shares are and will be issued and outstanding; (ii) 34,470,000 Class A ordinary shares are and will be issued and outstanding; (iii) 11,490,000 Class B ordinary shares are and will be issued and outstanding; (iv) up to 8,894,000 warrants to purchase up to an aggregate of 8,894,000 Class A ordinary shares (“Private Placement Warrants”) are and will be outstanding; and (v) up to 17,235,000 redeemable warrants to purchase an aggregate of 17,235,000 Class A ordinary shares (the “Public Warrants”) are and will be outstanding. All (i) issued and outstanding Class A ordinary shares and Class B ordinary shares have been duly authorized and validly issued, are fully paid and are non-assessable and are not subject to preemptive rights and (ii) outstanding Private Placement Warrants and Public Warrants have been duly authorized and validly issued, are fully paid and are not subject to preemptive rights. Except as set forth above and pursuant to any Other Subscription Agreement the Company may enter into prior to Closing and the Transaction Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company any Class A ordinary shares or Class B ordinary shares, or any other equity interests in the Company, or securities convertible into or exchangeable or exercisable for such equity interests. Other than Merger Sub, 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. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the voting of any securities of the Company, other than (A) as set forth in the SEC Reports and (B) as contemplated by the Transaction Agreement.
2.2.14 The issued and outstanding Class A ordinary shares are registered pursuant to Section 12(b) of the Exchange Act, and are listed for trading on the Nasdaq Stock Market LLC (“Nasdaq”) under the symbol “APXT.” There is no action or proceeding pending or, to the knowledge of the Company, threatened in writing against the Company by Nasdaq or the SEC with respect to any intention by such entity to deregister the Class A ordinary shares or terminate the listing of the Class A ordinary shares on Nasdaq. Except in connection with the Transactions, the Company has not taken any action in an attempt to terminate the registration of the Class A ordinary shares under the Exchange Act.
2.2.15 The Domestication will be duly effected prior to the Closing in accordance with applicable law and the terms disclosed by the Company, and, upon effectiveness of the Domestication, the Shares will automatically convert into duly authorized, validly issued, fully paid and non-assessable shares of common stock, par value $0.0001 per share, of the Company (“Common Stock”) as a Delaware corporation.
2.2.16 As of the date hereof, there are no pending, or, to the knowledge of the Company, threatened impediments, delays or adverse developments that would reasonably be expected to prevent, materially delay, or materially impair the completion of the Domestication.
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3. Settlement Date and Delivery.
3.1 Closing. The closing of the Subscription contemplated hereby (the “Closing”) is contingent upon the substantially concurrent consummation of the Transactions. The Closing shall occur on the closing date of the Transactions. Upon not less than three (3) business days’ written notice from (or on behalf of) the Company to Subscriber (the “Closing Notice”) that the Company reasonably expects all conditions to the closing of the Transactions to be satisfied on a date that is not less than three (3) business days from the date of the Closing Notice, Subscriber shall deliver to the Company at least one (1) business day prior to the closing date specified in the Closing Notice (the “Closing Date”), to be held in escrow until the Closing, the Purchase Price for the Shares by wire transfer of United States dollars in immediately available funds to the account specified by the Company in the Closing Notice against delivery by the Company to Subscriber of the Shares in book-entry form. In the event the Closing does not occur within five (5) business days of the Closing Date, the Company shall promptly (but not later than two (2) business days thereafter) return the Purchase Price to Subscriber.
3.2 Conditions to Closing.
The Closing shall be subject to the satisfaction or valid waiver by the Company, on the one hand, or the Subscriber, on the other, of the conditions that, on the Closing Date:
3.2.1 No suspension of the qualification of the Shares for offering or sale or trading under the Nasdaq rules, or initiation or threatening of any proceedings for any of such purposes, shall have occurred.
3.2.2 All representations and warranties of the Company and Subscriber contained in this Subscription Agreement shall be true and correct in all material respects (other than those qualified by Subscriber Material Adverse Effect or Material Adverse Effect, which shall be true and correct in all respects) as of the Closing Date (other than those representations and warranties expressly made as of an earlier date, which shall be true and correct in all material respects as of such date), and consummation of the Closing shall constitute a reaffirmation by Subscriber of each of the representations, warranties and agreements contained in this Subscription Agreement as of the Closing Date; except, in each case, where the failure of such representations and warranties to be true and correct (whether as of the Closing Date or such earlier date), taken as a whole, does not result in a Subscriber Material Adverse Effect.
3.2.3 The Company and the Subscriber shall have performed or complied in all material respects with all agreements and covenants required by this Subscription Agreement.
3.2.4 No governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the transactions contemplated hereby illegal or otherwise preventing or prohibiting consummation of the transactions contemplated hereby.
3.2.5 All conditions precedent to the consummation of the Transactions set forth in the Transaction Agreement shall have been satisfied or waived (other than those conditions that, by their nature, may only be satisfied at the consummation of the Transactions, but subject to satisfaction of such conditions as of the consummation of the Transactions); provided that the terms of the Transaction Agreement (including the conditions thereto) shall not have been amended or waived in a manner that would reasonably be expected to be materially adverse to the economic benefits the Subscriber reasonably expects to receive under this Subscription Agreement.
3.2.6 All specified waiting periods, if any, under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, shall have expired or been terminated.
3.2.7 The Shares shall have been approved for listing on Nasdaq, subject to official notice of issuance.
3.2.8 Prior to the Closing Date, Subscriber shall deliver to the Company a duly completed and executed Internal Revenue Service Form W-9 or appropriate Form W-8.
3.3. Make-Whole Shares. If, on the date the Initial Registration Statement (as defined below) is declared effective by the SEC (the “Measurement Date”), the closing price of the Company’s Common Stock on the Measurement Date (the “Measurement Price”) is less than $10.00 per share, the Company shall, at its option, either (i) remit to the Subscriber a cash amount, by wire transfer of U.S. dollars in immediately available funds, to an account specified in writing by the Subscriber, equal to the product of (1) the difference between $10.00 and the greater of the Measurement Price and $5.00, multiplied by (2) the number of Shares, or (ii) issue to the Subscriber, for no additional consideration, a number of additional shares of Common Stock (the “Make-Whole Shares”) equal to the quotient obtained by dividing (A) the cash amount that would be payable pursuant to clause (i), calculated after giving effect to the $5.00 per share floor, by (B) the actual Measurement Price, without giving effect to such floor. The Make-Whole Shares (if applicable) shall be issued to the Subscriber (the date of such issuance, the “Make-Whole Shares Issuance Date”) free and clear of all liens, encumbrances and restrictions, other than restrictions arising under applicable federal and state securities laws, and shall be subject to the registration rights set forth in Section 5.
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4. Transfer Restrictions.
4.1 The Shares may only be resold, transferred, pledged or otherwise disposed of in compliance with state and federal securities laws. In connection with any transfer of Shares other than pursuant to an effective registration statement, Rule 144 or pursuant to another applicable exemption from the registration requirements of the Securities Act, or a transfer to the Company, one or more Subscriber Affiliates or to a lender to Subscriber pursuant to a pledge and, thereafter, a transferee thereof pursuant to a foreclosure of the Subscriber, 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 Shares. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Subscription Agreement and such transferee and each Subscriber Affiliate transferee and each lender transferee and their subsequent transferees shall have the rights and obligations of the Subscriber under this Agreement.
4.2 The Subscriber agrees to the imprinting, so long as is required by this Section 4, of a legend on any of the Shares, in the following form:
THIS SECURITY HAS NOT 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 FEDERAL, STATE AND FOREIGN SECURITIES LAWS.
4.3 The Subscriber agrees with the Company that the Subscriber will only sell Shares pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if Shares 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 instruments representing Shares, as set forth in this Section 4 is predicated upon the Company’s reliance upon this understanding.
5. Registration Rights.
5.1 The Company and Subscriber agree that, within twenty (20) business days after the consummation of the Transactions, the Company will file (or confidentially submit) with the SEC a registration statement registering the resale of the Shares (the “Initial Registration Statement”), and, if Make-Whole Shares are issued pursuant to Section 3.3, within forty-five (45) business days after the issuance of such Make-Whole Shares, the Company will file (or confidentially submit) with the SEC a registration statement (or a post-effective amendment to the Registration Statement) registering the resale of the Make-Whole Shares (the “Make-Whole Registration Statement” and, together with the Initial Registration Statement, the “Registration Statements”), and the Company shall use its commercially reasonable efforts to have each of the Registration Statements declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) ninety (90) calendar days after the filing thereof if the SEC notifies the Company that it will “review” the applicable Registration Statement and (ii) ten (10) business days after the Company is notified by the SEC that the applicable Registration Statement will not be “reviewed” or will not be subject to further review; provided, however, that the timeframe specified in each of clauses (i) and (ii) shall be extended on a day-for-day basis for any period during which the operations of the SEC are subject to a lapse in appropriations, a government shutdown, or any other cessation, suspension, or material reduction in the operations or staffing of the SEC that prevents or materially delays the SEC from reviewing, processing, or declaring effective the applicable Registration Statement; provided, further, that if the Company fails to cause the applicable Registration Statement to be declared effective within the time period required by this Section 5.1, then the Company shall pay to Subscriber as liquidated damages an amount equal to $10,000 for each Trading Day during which such failure continues, commencing on the first Trading Day after the applicable deadline and continuing until the applicable Registration Statement has been declared effective. Any such amount due under this Section 5.1 shall be payable in cash in immediately available funds, shall be paid within five (5) business days after the applicable Registration Statement has been declared effective by the SEC, and shall not be satisfied through the issuance of Common Stock or any other securities unless Subscriber otherwise agrees in writing. The Company shall not withhold, offset, recoup or otherwise reduce any such penalty against any amounts owed by Subscriber to the Company or any of its affiliates; provided, further, that the Company’s obligations to include the Shares or the Make-Whole Shares, as applicable, and those other Shares of the Company held by Subscriber in each of the Registration Statements are contingent upon Subscriber furnishing in writing to the Company such information regarding Subscriber, the securities of the Company held by Subscriber and the intended method of disposition of the Shares and/or the Make-Whole Shares as shall be reasonably requested by the Company to effect the registration of the Shares and the Make-Whole Shares, and shall execute such documents in connection with such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations (other than a lock-up or other similar agreement restricting the ability of Subscriber to transfer the Shares or the Make-Whole Shares). Subject to its rights hereunder to suspend the use of the prospectus forming a part of a Registration Statement, the Company shall use its commercially reasonable efforts to maintain the continuous effectiveness of each Registration Statement until the earliest of (i) the date on which the Shares or the Make-Whole Shares, as applicable, may be resold without volume or manner of sale limitations pursuant to Rule 144, (ii) the date on which such Shares or the Make-Whole Shares, as applicable, have actually been sold and (iii) the date which is two (2) years after the Closing (the “Registration Period”). Further notwithstanding the foregoing, if the SEC prevents the Company from including any or all of the Shares or the Make-Whole Shares proposed to be registered under each Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Shares or the Make-Whole Shares by the applicable shareholders or otherwise, each such Registration Statement shall register for resale such number of Shares or Make-Whole Shares, as applicable, which is equal to the maximum number of Shares or Make-Whole Shares, as applicable, as is permitted by the SEC. In such event, the number of Shares or Make-Whole Shares, as applicable, to be registered for each selling shareholder named in each Registration Statement shall be reduced pro rata among all such selling shareholders. The Company will provide a draft of each Registration Statement to Subscriber for review at least five (5) business days in advance of filing each Registration Statement. In no event shall the Subscriber be identified as a statutory underwriter in any Registration Statement unless requested by the SEC; provided that if the SEC requests that the Subscriber be identified as a statutory underwriter in any Registration Statement, the Subscriber will have an opportunity to withdraw from each Registration Statement. For purposes of this Section 5.1, “Trading Day” means any day on which Nasdaq is open for trading.
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5.2 Notwithstanding anything to the contrary in this Subscription Agreement, the Company shall be entitled to delay or postpone the effectiveness of any Registration Statement, and from time to time to require any Subscriber not to sell under any Registration Statement or to suspend the effectiveness thereof, if the negotiation or consummation of a transaction by the Company or its subsidiaries is pending or an event has occurred, which negotiation, consummation or event, the Company’s board of directors reasonably believes, upon the advice of legal counsel, would require additional disclosure by the Company in any Registration Statement of material information that the Company has a bona fide business purpose for keeping confidential and the non-disclosure of which in any Registration Statement would be expected, in the reasonable determination of the Company’s board of directors, upon the advice of legal counsel, to cause any Registration Statement to fail to comply with applicable disclosure requirements (each such circumstance, a “Suspension Event”); provided, however, that the Company may not delay or suspend any Registration Statement on more than two occasions or for more than sixty (60) consecutive calendar days, or more than ninety (90) total calendar days, in each case during any twelve-month period. Upon receipt of any written notice from the Company of the happening of any Suspension Event (which notice shall not contain material non-public information) during the period that any Registration Statement is effective or if as a result of a Suspension Event the applicable Registration Statement or related prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made (in the case of the prospectus) not misleading, each Subscriber agrees that (i) it will immediately discontinue offers and sales of the Shares and/or the Make-Whole Shares, as applicable, under the applicable Registration Statement (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144) until such Subscriber receives copies of a supplemental or amended prospectus (which the Company agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by the Company that it may resume such offers and sales, and (ii) it will maintain the confidentiality of any information included in such written notice delivered by the Company unless (A) for disclosure to Subscriber’s employees, agents and professional advisers who need to know such information and are obligated to keep it confidential, (B) for disclosures to the extent required in order to comply with reporting obligations to its limited partners who have agreed to keep such information confidential, (C) such information is already known by Subscriber or publicly available and (D) otherwise required by law or subpoena. If so directed by the Company, each Subscriber will deliver to the Company or, in such Subscriber’s sole discretion destroy, all copies of the prospectus covering the Shares or the Make-Whole Shares, as applicable, in such Subscriber’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Shares or the Make-Whole Shares, as applicable, shall not apply (i) to the extent such Subscriber is required to retain a copy of such prospectus (a) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (b) in accordance with a bona fide pre-existing document retention policy or (ii) to copies stored electronically on archival servers as a result of automatic data back-up.
5.3 The Company shall, notwithstanding any termination of this Subscription Agreement, indemnify, defend and hold harmless each Subscriber (to the extent a seller under any Registration Statement), the officers, directors and agents of each of them, and each person who controls such Subscriber (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act ) to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, that arise out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any prospectus included in a Registration Statement or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, or (ii) any violation or alleged violation by the Company of the Securities Act, Exchange Act or any state securities law or any rule or regulation thereunder, in connection with the performance of its obligations under this Section 5, except to the extent, but only to the extent, that such untrue statements, alleged untrue statements, omissions or alleged omissions are based upon information regarding such Subscriber furnished in writing to the Company by such Subscriber expressly for use therein or such Subscriber has omitted a material fact from such information or otherwise violated the Securities Act, Exchange Act or any state securities law or any rule or regulation thereunder; provided, however, that the indemnification contained in this Section 5 shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), nor shall the Company be liable for any Losses to the extent they arise out of or are based upon a violation which occurs (A) in reliance upon and in conformity with written information furnished by a Subscriber, (B) in connection with any failure of such person to deliver or cause to be delivered a prospectus made available by the Company in a timely manner, (C) as a result of offers or sales effected by or on behalf of any person by means of a “free writing prospectus” (as defined in Rule 405 under the Securities Act) that was not authorized in writing by the Company, or (D) in connection with any offers or sales effected by or on behalf of a Subscriber in violation of Section 5.2 hereof. The Company shall notify such Subscriber promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated by this Section 5 of which the Company is aware. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of an indemnified party and shall survive the transfer of the Shares by such Subscriber.
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5.4 Each Subscriber shall, severally and not jointly, indemnify and hold harmless the Company, its directors, officers, agents, trustees, partners, members, managers, stockholders, affiliates, investment advisors and employees, and each person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), to the fullest extent permitted by applicable law, from and against all Losses, as incurred, arising out of or are based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any prospectus included in a Registration Statement, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus, or any form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading to the extent, but only to the extent, that such untrue statements or omissions are based upon information regarding such Subscriber furnished in writing to the Company by such Subscriber expressly for use therein; provided, however, that the indemnification contained in this Section 5 shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the consent of such Subscriber (which consent shall not be unreasonably withheld, conditioned or delayed). In no event shall the liability of any Subscriber be greater in amount than the dollar amount of the net proceeds received by such Subscriber upon the sale of the Shares giving rise to such indemnification obligation. Each Subscriber shall notify the Company promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated by this Section 5 of which such Subscriber is aware. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of an indemnified party and shall survive the transfer of the Shares by such Subscriber.
5.5 Any person or entity 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 or entity’s right to indemnification hereunder to the extent such failure has not 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, conditioned or delayed). 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 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), which settlement shall not include a statement or admission of fault and culpability on the part of such indemnified party, and which settlement shall 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.
5.6 If the indemnification provided under this Section 5 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and 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 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; provided, however, that the liability of Subscriber shall be limited to the net proceeds received by such Subscriber from the sale of Shares giving rise to such indemnification obligation. 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. 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 this Section 5, 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 5.6 from any person or entity who was not guilty of such fraudulent misrepresentation.
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5.7 In the case of any registration effected by the Company pursuant to this Subscription Agreement, the Company shall, upon reasonable request, inform Subscriber as to the status of such registration. At its expense the Company shall:
5.7.1 except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, use its commercially reasonable efforts to keep such registration, and any qualification, exemption or compliance under state securities laws which the Company determines to obtain, continuously effective with respect to Subscriber, and to keep the applicable Registration Statement or any subsequent shelf registration statement free of any material misstatements or omissions during the Registration Period;
5.7.2 advise Subscriber within five (5) business days:
(a) of the issuance by the SEC of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose; and
(b) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
Notwithstanding anything to the contrary set forth in this Section 5.7.2, the Company shall not, when so advising Subscriber of such events, provide Subscriber with any material, nonpublic information regarding the Company other than to the extent that providing notice to Subscriber of the occurrence of the events listed in (a) and (b) above constitutes material, nonpublic information regarding the Company;
5.7.3 use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable;
5.7.4 upon the occurrence of any event that requires the making of any changes in any Registration Statement or any prospectus forming part of a Registration Statement so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading, except for such times as the Company is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement, the Company shall use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus, or file any other required document so that such prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
5.7.5 upon the Subscriber’s request, deliver all the necessary documentation reasonably requested by the Company’s transfer agent for its Common Stock (the “Transfer Agent”) to (i) cause the Transfer Agent to remove the legend set forth above in Section 4.2, as promptly as reasonably practicable and no later than five (5) business days after such request and receipt by the Company of all documents reasonably requested of Subscriber to cause such restrictive legend to be removed and (ii) issue Shares without any such legend in book-entry form or by electronic delivery through The Depository Trust Company (“DTC”), at the Subscriber’s option, provided that in each case (a) such Shares are registered for resale under the Securities Act and the Subscriber has sold such Shares pursuant to such registration or (b)(A) the Subscriber has sold or transferred Shares pursuant to Rule 144 and (B) the Company, its counsel or the Transfer Agent have received customary representations and other documentation from the Subscriber and its broker that is reasonably necessary to establish that such restrictive legend is no longer required as reasonably requested by the Company, its counsel or the Company’s transfer agent (collectively, the “Legend Documents”). If the legend set forth above in Section 4.2 is no longer required for the Shares pursuant to the foregoing, the Company shall, reasonably promptly following any request therefor from Subscriber accompanied by such Legend Documents, deliver to its Transfer Agent irrevocable instructions that the transfer agent shall make a new, unlegended entry for the Shares. The Company shall be responsible for the fees of the Transfer Agent and its counsel and any fees of DTC incurred in connection with such legend removal requests.
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6. Termination. Except for the provisions of Sections 6, 7 and 9, which shall survive any termination hereunder, this Subscription 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 thereof, upon the earlier to occur of (i) such date and time as the Transaction Agreement is terminated in accordance with its terms, (ii) upon the mutual written agreement of each of the parties hereto to terminate this Subscription Agreement (iii) if any of the conditions to Closing set forth in Section 3.2 of this Subscription Agreement are not satisfied or waived on or prior to the Closing and, as a result thereof, the transactions contemplated by this Subscription Agreement are not consummated at the Closing or (iv) March 31, 2027; provided, that, subject to the limitations set forth in Section 8, nothing herein will relieve any party from liability for any willful 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 breach. The Company shall promptly notify Subscriber of the termination of the Transaction Agreement promptly after the termination of such agreement.
7. Miscellaneous.
7.1 Further Assurances. At the Closing, the parties hereto shall execute and deliver such additional documents and take such additional actions as the parties reasonably may deem to be practical and necessary in order to consummate the Subscription as contemplated by this Subscription Agreement.
7.1.1 Subscriber acknowledges that the Company, the Placement Agents and others will rely on the acknowledgments, understandings, agreements, representations and warranties contained in this Subscription Agreement. Prior to the Closing, Subscriber agrees to promptly notify the Company if any of the acknowledgments, understandings, agreements, representations and warranties set forth herein are no longer accurate in all material respects. Subscriber further acknowledges and agrees that the Placement Agents are intended third-party beneficiaries of the representations and warranties of the Subscriber contained in Section 2.1 of this Subscription Agreement.
7.1.2 The Company acknowledges and agrees that the Placement Agents are intended third-party beneficiaries of the representations and warranties of the Company contained in Section 2.2 of this Subscription Agreement.
7.1.3 The Company is entitled to rely upon this Subscription Agreement and is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.
7.1.4 The Company may request from Subscriber such additional information as the Company may deem necessary to evaluate the eligibility of Subscriber to acquire the Shares, and Subscriber shall provide such information as may be reasonably requested, to the extent readily available and to the extent consistent with its internal policies and procedures.
7.1.5 Subscriber shall pay all of its own expenses in connection with this Subscription Agreement and the transactions contemplated herein.
7.1.6 Prior to or at the Closing, Subscriber shall deliver to the Company a duly completed and executed Internal Revenue Service Form W-9 or appropriate Form W-8.
7.2 No Short Sales. Subscriber hereby agrees that neither it, nor any person or entity acting on its behalf, will engage in any Short Sales with respect to securities of the Company prior to the Measurement Date. For purposes of this Section 7.2, “Short Sales” shall include, without limitation, all “short sales” as defined in Rule 200 promulgated under 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).
7.3 Facilitation of Rule 144 Sales. With a view to making available to you the benefits of Rule 144 that may, at such times as Rule 144 is available to you, as a shareholder of the Company, permit you to sell securities of the Company to the public without registration, the Company agrees to use its commercially reasonable efforts to file all reports and other materials to be filed by the Exchange Act so long as the Company remains subject to such requirements and the filing of such reports and other materials is required for the applicable provisions of Rule 144 to enable you to sell the Shares under Rule 144. The Company agrees to furnish to Subscriber, promptly upon request, (x) a written statement by the Company, if true, that it has complied with the reporting requirements of Rule 144, the Securities Act and the Exchange Act, (y) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company and (z) such other information as may be reasonably requested to permit Subscriber to sell such securities pursuant to Rule 144 without registration.
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7.4 Notices. Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, emailed or sent by overnight mail via a reputable overnight carrier, or sent by certified or registered mail, postage prepaid, and shall be deemed to be given and received (i) when so delivered personally, (ii) when sent, with no mail undeliverable or other rejection notice, if sent by email, or (iii) three (3) business days after the date of mailing to the address below or to such other address or addresses as such person may hereafter designate by notice given hereunder:
(i) if to Subscriber, to such address or addresses set forth on the signature page hereto;
(ii) if to the Company (prior to the Transactions closing), to:
Apex Treasury Corporation
2035 Regatta Drive
Vero Beach, Florida 32693
Attention: Ajmal Rahman; Hugh Cochrane
E-mail: [***]
with a required copy to (which copy shall not constitute notice):
Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019
Attention: Michael Heinz; David Stewart; Jason Hyatt
E-mail: [***]
(iii) if to the Company (following the Transactions closing), to:
TECfusions, Inc.
19995 US 19 Highway
Clearwater, FL 33764
Attention: Denis Minihane
E-mail: [***]
with a required copy to (which copy shall not constitute notice):
Paul Hastings LLP
2050 M Street, N.W.
Washington, DC 20036
Attention: Brad Bondi; Gil Savir; Steve Camahort; Sean Donahue
E-mail: [***]
7.5 Entire Agreement. This Subscription Agreement constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof. Except as otherwise expressly set forth in Section 7.1.1 and Section 7.1.2, this Subscription Agreement shall not confer rights or remedies upon any person other than the parties hereto and their respective successors and assigns.
7.6 Modifications and Amendments. This Subscription Agreement may not be modified, waived or terminated except by an instrument in writing, signed by the party against whom enforcement of such modification, waiver, or termination is sought.
7.7 Waivers and Consents. The terms and provisions of this Subscription Agreement may be waived, or consent for the departure therefrom granted, only by a written document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Subscription Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.
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7.8 Assignment. Neither this Subscription Agreement nor any rights that may accrue to Subscriber hereunder (other than the Shares acquired hereunder, if any) may be transferred or assigned; provided, however, Subscriber may transfer its rights and obligations hereunder to another investment fund or account managed or advised by the same manager as Subscriber (or a related party or affiliate), provided, that no such transfer shall release Subscriber of its obligations hereunder.
7.9 Benefit. Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns.
7.10 Governing Law. This Subscription Agreement, and any claim or cause of action hereunder based upon, arising out of or related to this Subscription Agreement (whether based on law, in equity, in contract, in tort or any other theory) or the negotiation, execution, performance or enforcement of this Subscription Agreement, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law thereof.
7.11 Consent to Jurisdiction; Waiver of Jury Trial. The parties hereto agree to submit any matter or dispute resulting from or arising out of the execution, performance, interpretation, breach or termination of this Agreement to the non-exclusive jurisdiction of federal or state courts within the State of Delaware. Each of the parties hereto agrees that service of any process, summons, notice or document in the manner set forth in Section 7.4 hereof or in such other manner as may be permitted by applicable law, shall be effective service of process for any proceeding in the State of Delaware with respect to any matters to which it has submitted to jurisdiction in this Section 7.11. Each of the parties hereto irrevocably and unconditionally agrees that it is subject to, and hereby submits to, the personal jurisdiction of the courts located in the State of Delaware for any action, suit or proceeding arising out of this Subscription Agreement or the transactions contemplated hereunder and waives any objection to the laying of venue 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 hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ITS RIGHTS TO A TRIAL BY JURY.
7.12 Severability. If any provision of this Subscription Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.
7.13 No Waiver of Rights, Powers and Remedies. No failure or delay by a party hereto in exercising any right, power or remedy under this Subscription Agreement, and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power or remedy of such party. No single or partial exercise of any right, power or remedy under this Subscription Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Subscription Agreement shall entitle the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand.
7.14 Survival of Representations and Warranties. All representations and warranties made by the parties hereto in this Subscription Agreement or in any other agreement, certificate or instrument provided for or contemplated hereby, shall survive the execution and delivery hereof and any investigations made by or on behalf of the parties.
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7.15 No Broker or Finder; Expenses. Each of the parties hereto represents and warrants to the other that no broker, finder or other financial consultant has acted on its behalf in connection with this Subscription Agreement or the transactions contemplated hereby in such a way as to create any liability on the other. Each of the parties hereto agrees to indemnify and save the other harmless from any claim or demand for commission or other compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of such party and to bear the cost of legal expenses incurred in defending against any such claim. Each of the parties hereto shall pay all of its own expenses in connection with this Subscription Agreement and the transactions contemplated hereby.
7.16 Headings and Captions. The headings and captions of the various subdivisions of this Subscription Agreement are for convenience of reference only and shall in no way modify or affect the meaning or construction of any of the terms or provisions hereof.
7.17 Counterparts and Electronic Signatures. This Subscription Agreement may be executed in one 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 the other party, it being understood that both parties need not sign the same counterpart. This Subscription Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument. The words “execution,” “signed,” “signature,” and words of like import in this Subscription Agreement or in any other certificate, agreement or document related to this Subscription Agreement shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). 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 the Federal Electronic Signatures in Global and National Commerce Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
7.18 Construction. The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.” Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice versa, unless the context otherwise requires. The words “this Subscription Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and words of similar import refer to this Subscription Agreement as a whole and not to any particular subdivision unless expressly so limited. The parties hereto intend that each representation, warranty, and covenant contained herein will have independent significance. If any party hereto has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party hereto has not breached will not detract from or mitigate the fact that such party hereto is in breach of the first representation, warranty, or covenant.
7.19 Mutual Drafting. This Subscription Agreement is the joint product of Subscriber and the Company and each provision hereof has been subject to the mutual consultation, negotiation and agreement of such parties and shall not be construed for or against any party hereto.
7.20 Several and Not Joint. The obligations of the Subscriber and each Other Subscriber are several and not joint, and Subscriber shall not be responsible in any way for the performance of the obligations of any Other Subscriber. Nothing contained herein or in any Other Subscription Agreement, and no action taken by Subscriber or any Other Subscriber pursuant hereto or thereto, shall be deemed to constitute the Subscriber and any Other Subscriber as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Subscriber and Other Subscribers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated hereby.
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8. Disclosure. The Company shall, within one (1) business day immediately following the date of this Subscription Agreement, file with the SEC a Current Report on Form 8-K (the “Form 8-K”) disclosing all material terms of the transactions contemplated by this Subscription Agreement and the Transaction Agreement, and any other material, nonpublic information that the Company has provided to Subscriber at any time prior to the filing of the Form 8-K. The Subscriber hereby acknowledges that the terms of this Subscription Agreement will be disclosed by the Company on the Form 8-K filed and a form of this Subscription Agreement will be filed with the SEC as an exhibit thereto. Notwithstanding anything in this Subscription Agreement to the contrary, the Company shall not publicly disclose the name of the Subscriber or any of its affiliates or advisers, or include the name of the Subscriber or any of its affiliates or advisers in any press release or in any filing with the SEC or any regulatory agency or trading market, without the prior written consent of the Subscriber, except (i) as required by the federal securities law or pursuant to other routine proceedings of regulatory authorities, (ii) to the extent such disclosure is required by law, at the request of the staff of the SEC or regulatory agency or under the regulations of any national securities exchange on which the Company’s securities are listed for trading or (iii) to the extent such announcements or other communications contain only information previously disclosed in a public statement, press release or other communication previously approved in accordance with this Section 8; provided that, in the case of such disclosures by the Company, the Company shall reasonably consult with Subscriber regarding such disclosure, in each case, to the extent such disclosure specifically names Subscriber.
9. Trust Account Waiver. Subscriber acknowledges that the Company is a blank check company with the powers and privileges to effect a merger, asset acquisition, stock purchase, reorganization or similar business combination involving the Company and one or more businesses or assets. Subscriber further acknowledges that, as described in the Company’s final prospectus relating to its initial public offering dated October 27, 2025 (the “Prospectus”) available at www.sec.gov, substantially all of the Company’s assets consist of the cash proceeds of Company’s initial public offering and private placements of its securities, and substantially all of those proceeds have been deposited in a trust account (the “Trust Account”) for the benefit of Company, its public shareholders and the underwriters of Company’s initial public offering. Except with respect to interest earned on the funds held in the Trust Account that may be released to Company to pay its tax obligations, if any, the cash in the Trust Account may be disbursed only for the purposes set forth in the Prospectus. For and in consideration of the Company entering into this Subscription Agreement, the receipt and sufficiency of which are hereby acknowledged, Subscriber, on behalf of itself and its representatives, hereby irrevocably waives any and all right, title and interest, or any claim of any kind they have or may have in the future, in or to any monies held in the Trust Account, and agrees not to seek recourse against the Trust Account as a result of, or arising out of, this Subscription Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, each of the Company and Subscriber has executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date first set forth above.
| APEX TREASURY CORPORATION | ||
| By: | /s/ Paul Sykes | |
| Name: | Paul Sykes | |
| Title: | Chief Financial Officer | |
[Signature Page to Subscription Agreement]
SUBSCRIBER: |
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| Signature of Subscriber: | Signature of Joint Subscriber, if applicable: | ||||
| By: /s/ Hartley Wasko | By: | ||||
| Name: Hartley Wasko | Name: | ||||
| Title: CEO | Title: | ||||
| Name of Subscriber: | Name of Joint Subscriber, if applicable: | ||||
| Hartley Wasko | |||||
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(Please print. Please indicate name and capacity of person signing above) |
(Please Print. Please indicate name and capacity of person signing above) | ||||
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Eleven Ventures LLC Name in which securities are to be registered (if different from the name of Subscriber listed directly above): |
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| Email Address: [***] | |||||
| If there are joint investors, please check one: | |||||
| ☐ Joint Tenants with Rights of Survivorship | |||||
| ☐ Tenants-in-Common | |||||
| ☐ Community Property | |||||
| Subscriber’s EIN: __________________________ | Joint Subscriber’s EIN: ________________ | ||||
| Business Address-Street: | Mailing Address-Street (if different): | ||||
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[***] |
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City, State, Zip: |
City, State, Zip: | ||||
| Attn: Hartley Wasko | Attn: | |
| Telephone No.: __________________________ | Telephone No.: _____________________ | |
| Facsimile No.: __________________________ | Facsimile No.: ______________________ | |
| Aggregate Number of Shares subscribed for: 3,500,000 | ||
| Aggregate Purchase Price: $35,000,000. | ||
You must pay the Purchase Price by wire transfer of U.S. dollars in immediately available funds to the account specified by the Company in the Closing Notice.
[Signature Page to Subscription Agreement]
Exhibit 10.2
Execution Version
Stockholder SUPPORT AGREEMENT
This STOCKHOLDER SUPPORT AGREEMENT, dated as of July 21, 2026 (this “Agreement”), by and among Apex Treasury Corporation, a Cayman Islands exempted company (“Purchaser”), TECfusions, Inc., a Florida corporation (the “Company”), and Jeremiah 29:11, LLC, a Florida limited lability company (the “Signing Stockholder”). Purchaser, the Company and the Signing Stockholder are sometimes referred to herein as a “Party” and collectively as the “Parties.” Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined below).
WHEREAS, Purchaser, Stepping Stone Merger Sub, Inc., a Delaware corporation and wholly-owned direct Subsidiary of Purchaser (“Merger Sub”), and the Company propose to enter into, simultaneously herewith, a business combination agreement in the form provided to the Signing Stockholder (the “Business Combination Agreement”), which provides, among other things, that, upon the terms and subject to the conditions thereof, Merger Sub will merge with and into the Company (the “Merger”), with the Company surviving as a wholly-owned subsidiary of Purchaser;
WHEREAS, as of the date hereof, the Signing Stockholder has beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act) of and is entitled to dispose of (or direct the disposition of) and, as applicable, to vote (or to direct the voting of) 100% of the Company common stock (“Company Shares”, and all such Company Shares, together with any Company Shares of which beneficial ownership, record ownership and/or the power to vote (including, without limitation, by proxy or power of attorney) is hereafter acquired by the Signing Stockholder prior to the termination of this Agreement collectively being referred to herein as the “Interests”); and
WHEREAS, as a condition to the willingness of Purchaser to enter into the Business Combination Agreement and as an inducement and in consideration therefor, the Signing Stockholder has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the Parties hereby agree as follows:
1. Agreement to Vote. The Signing Stockholder, by this Agreement, hereby agrees to attend and vote at any meeting of the Company’s stockholders (collectively, “Company Stockholders”) (including any postponement or adjournment thereof) and execute and deliver written consent, resolution or approval in any action by written consent or approval of the Company Stockholders requested by the Company (which written consent shall be delivered promptly, and in any event not later than two (2) Business Days, after the Company requests such delivery), all of the Interests held by the Signing Stockholder at such time (a) in favor of the approval and adoption of the Business Combination Agreement, the Merger and the other Transactions, and (b) against any action, agreement or transaction or proposal that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the Business Combination Agreement or that would reasonably be expected to prevent, impede, interfere with, delay, postpone or adversely affect the Merger or the other Transactions in any material respect or would reasonably be expected to result in any of the closing conditions of Purchaser, the Company or Merger Sub under the Business Combination Agreement not being satisfied. Within seventy-two (72) hours after the Proxy Statement/Registration Statement is declared effective under the Securities Act, the Signing Stockholder agrees to execute and deliver to the Company the Company Stockholder Consent, which shall, pursuant to, and in accordance with, the Business Combination Agreement, be delivered by the Company to Purchaser as soon as reasonably practicable after the Proxy Statement/Registration Statement is declared effective. The Signing Stockholder acknowledges receipt and review of a copy of the Business Combination Agreement.
2. Transfer of Interests. The Signing Stockholder agrees that it shall not, directly or indirectly, (a) sell, assign, transfer (including by operation of law), loan, pledge, dispose of or otherwise encumber any of the Interests or otherwise agree to do any of the foregoing, except for a sale, assignment or transfer pursuant to the Business Combination Agreement, the vesting of Company Shares pursuant to agreements that are disclosed under the Business Combination Agreement, or sale, assignment or transfer to another Company Stockholder that is a Party and bound by the terms and obligations hereof, (b) deposit any Interests into a voting trust or enter into a voting agreement or arrangement or grant any proxy, consent or power of attorney with respect thereto (other than pursuant to this Agreement) or (c) enter into any contract, option or other arrangement or undertaking with respect to the direct or indirect acquisition or sale, assignment, transfer (including by operation of law) or other disposition of any Interests; provided that the foregoing shall not prohibit the transfer of the Interests by the Signing Stockholder to an affiliate of the Stockholder, but only if, prior to effecting any such acquisition, sale, assignment, transfer or other disposition of any Interests, such affiliate the Signing Stockholder shall execute this Agreement or a joinder agreeing to become a Party to this Agreement. Any acquisition, sale, assignment, transfer or other disposition of any Interests by the Signing Stockholder in violation of this Section 2 shall, to the fullest extent permitted by applicable Law, be null and void ab initio.
3. No Solicitation of Transactions. The Signing Stockholder agrees not to, directly or indirectly, through any officer, director, representative, agent or otherwise, (a) initiate, solicit, facilitate or encourage (including by way of furnishing non-public information), directly or indirectly, whether publicly or otherwise, any inquiries, offers or proposals with respect to, or the making of, any Acquisition Proposal relating to the Target Companies, (b) engage in any negotiations or discussions concerning, or provide access to or furnish non-public information regarding, the Target Companies’ properties, assets, personnel, books or records or any Confidential Information or data to, any person relating to an Acquisition Proposal relating to the Target Companies, (c) enter into, engage in or maintain discussions or negotiations with respect to any Acquisition Proposal relating to the Target Companies (or inquiries, proposals or offers or other communications that would reasonably be expected to lead to any Acquisition Proposal relating to the Target Companies) or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, offers, efforts, discussions or negotiations, (d) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal relating to the Target Companies, (e) approve, endorse, recommend, execute or enter into any agreement, arrangement or understanding, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, business combination agreement, transaction agreement, option agreement, joint venture agreement, partnership agreement or other written arrangement relating to any Acquisition Proposal relating to the Target Companies or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal relating to the Target Companies or (f) resolve or agree to do any of the foregoing actions or otherwise authorize or permit any of its representatives to take any such action. The Signing Stockholder shall, and shall instruct and cause its representatives and agents to, immediately cease any solicitations, discussions or negotiations with any parties (other than the parties party to the Business Combination Agreement and their respective representatives) in connection with an Acquisition Proposal or the Target Companies (other than the Transactions) and the Signing Stockholder acknowledges that any action taken by it or any representative of it inconsistent with the restrictions set forth in this Section 3, whether or not such representative is purporting to act on the Signing Stockholder’s behalf, shall be deemed to constitute a breach of this Section 3 by the Signing Stockholder.
4. Additional Agreements.
(a) No Challenges. The Signing Stockholder agrees not to commence, join in, facilitate 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, Merger Sub, the Company or any of their respective successors or directors (i) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (ii) alleging a breach of any fiduciary duty of any person in connection with the evaluation, negotiation or entry into the Business Combination Agreement or any other agreement in connection with the Transactions.
(b) Further Actions. The Signing Stockholder agrees, while this Agreement is in effect, not to take or omit to take, or agree to commit to take or omit to take, any action that would make any representation and warranty of the Signing Stockholder contained in this Agreement inaccurate in any material respect. The Signing Stockholder further agrees that it shall take all actions reasonably necessary and cooperate with Purchaser and the Company to effect the transactions contemplated hereby and the Transactions, including to take or omit to take such actions, and execute such agreements, as may be reasonably requested by Purchaser or the Company in connection with the transactions contemplated hereby and the Transactions or that are reasonably necessary to give further effect thereto.
(c) Consent to Disclosure. The Signing Stockholder 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 Securities and Exchange Commission (the “SEC”) or any other securities authorities, any other documents or communications provided by Purchaser or the Company to any Governmental Authority or to securityholders of Purchaser) of the Signing Stockholder’s identity and beneficial ownership of Interests and the nature of the Signing Stockholder’s commitments, arrangements and understandings under and relating to this Agreement and, if deemed appropriate by Purchaser or the Company, a copy of this Agreement. The Signing Stockholder will promptly provide any information reasonably requested by Purchaser or the Company for any regulatory application or filing made or approval sought in connection with the Transactions (including filings with the SEC).
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5. Representations and Warranties. The Signing Stockholder represents and warrants to Purchaser as follows:
(a) The execution, delivery and performance by the Signing Stockholder of this Agreement and the consummation by the Signing Stockholder of the transactions contemplated hereby do not and will not (i) conflict with or violate any United States or non-United States Law applicable to the Signing Stockholder, (ii) require any consent, approval or authorization of, declaration, filing or registration with, or notice to, any person or entity, (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of any encumbrance on any Interests pursuant to any contract or agreement to which the Signing Stockholder is a party or by which the Signing Stockholder is bound (other than under this Agreement, the Business Combination Agreement and the agreements contemplated by the Business Combination Agreement, including the other Ancillary Agreements) or (iv) conflict with or result in a breach of or constitute a default under any provision of the Signing Stockholder’s governing documents.
(b) As of the date of this Agreement, the Signing Stockholder owns exclusively and has good and valid title to the Interests free and clear of any Lien, proxy, option, right of first refusal, agreement, voting restriction, limitation on disposition, charge, adverse claim of ownership or use or other encumbrance of any kind, other than pursuant to (i) this Agreement, (ii) applicable securities Laws and (iii) the Company Charter and the Company Bylaws, and as of the date of this Agreement, the Signing Stockholder has, and will have until the Effective Time, the sole power to vote and right, power and authority to sell, transfer and deliver such Interests, and the Signing Stockholder does not own, directly or indirectly, any other Interests.
(c) The Signing Stockholder has the power, authority and capacity to execute, deliver and perform this Agreement. This Agreement has been duly authorized, executed and delivered by the Signing Stockholder and constitutes a valid and binding agreement of the Signing Stockholder enforceable against it in accordance with its terms (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws of general applicability relating to or affecting creditor’s rights, and to general equitable principles).
(d) Except for this Agreement, the Signing Stockholder has not: (i) entered into any voting agreement, voting trust or similar agreement with respect to any Interest or other equity securities of the Company owned by the Signing Stockholder or (ii) granted any proxy, consent or power of attorney with respect to any Interest or other equity securities of the Company owned by the Signing Stockholder (other than as contemplated by this Agreement).
(e) The Signing Stockholder understands and acknowledges that Purchaser is entering into the Business Combination Agreement in reliance upon the Signing Stockholder’s execution and delivery of this Agreement.
(f) The Signing Stockholder is a sophisticated equityholder and has 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, without reliance upon Purchaser or the Company, and based on such information as the Signing Stockholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. The Signing Stockholder acknowledges that none of Purchaser or the Company has made or makes any representation or warranty, whether express or implied, of any kind or character with respect to the matters covered herein, in each case except as expressly set forth in this Agreement. The Signing Stockholder acknowledges that the agreements contained herein with respect to the Interests held by the Signing Stockholder are irrevocable.
6. Termination. This Agreement and the obligations of the Signing Stockholder under this Agreement shall automatically terminate upon the earliest of (a) the Effective Time, (b) the termination of the Business Combination Agreement in accordance with its terms and (c) the mutual agreement of the Parties. Upon termination of this Agreement, neither Party shall have any further obligations or liabilities under this Agreement; provided that nothing in this Section 6 shall relieve any Party of liability for any willful material breach of this Agreement occurring prior to termination. The representations and warranties contained in this Agreement and in any certificate or other writing delivered pursuant hereto shall not survive the Closing or the termination of this Agreement.
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7. Amendments; Waivers. This Agreement may not be amended except by an instrument in writing signed by each of the Parties. A waiver under this Agreement shall be valid only if set forth in an instrument in writing signed by the Party or Parties granting such waiver. Notwithstanding the foregoing, no failure or delay by a Party in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
8. Miscellaneous.
(a) Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the Party incurring such costs and expenses, whether or not the transactions contemplated hereby are consummated; provided that the fees and expenses of the Company and Purchaser shall be allocated as set forth in Section 3.03 of the Business Combination Agreement.
(b) All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered by 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 given in accordance with this Section 8(b)). Actual notice is effective notice for all purposes hereunder:
If to Purchaser, to it at:
Apex Treasury Corporation
2035 Regatta Drive
Vero Beach, Florida 32693
Attn: Ajmal Rahman; Hugh Cochrane
Email: [***]
with a copy (which will not constitute notice) to:
Sidley Austin LLP
787 Seventh Avenue
New York, New York 10019
Attn: Michael Heinz; J. David Stewart; Nick DeAngelis
Email: [***]
If to the Company or the Signing Stockholder, to it at:
c/o TECfusions, Inc.
19995 US 19 Highway
Clearwater, Florida 33764
Attn: Simon Tusha; Denis Minihane
Email: [***]
with a copy (which will not constitute notice) to:
Paul Hastings LLP
2050 M St NW
Washington, DC 20036
Attn: Brad Bondi; Gil Savir; Steve Camahort; Sean Donahue
Email: [***]
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(c) 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.
(d) This Agreement embodies the entire agreement and understanding among the Parties 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. This Agreement shall not be assigned by operation of law or otherwise without the prior express 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.
(e) This Agreement shall be binding upon and inure solely to the benefit of each Party (and their respective successors and Purchaser’s permitted assigns), and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(f) The Parties agree 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. The right of specific enforcement is an integral part of the Transactions and without that right, none of the Parties would have entered into this Agreement. In the event that any action 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 hereby also waives any requirement for the securing or posting of any bond in connection therewith.
(g) 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, applicable to contracts executed in and to be performed in that State. Any proceeding or 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). Each of the parties irrevocably (i) submits to the exclusive jurisdiction of each such court in any such proceeding or 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 proceeding or Legal Proceeding shall be heard and determined only in any such court, and (iv) agrees not to bring any proceeding or 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 8(g). To the fullest extent permitted by applicable Law, each of the Parties further agrees that notice as provided herein shall constitute sufficient service of process and the Parties further waive any argument that such service is insufficient.
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(h) This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by electronic transmission (including by email or in .pdf format) and electronically or digitally executed counterparts (such as DocuSign) shall have the same legal effect as original signatures and shall be considered irrevocable originally executed counterparts of this Agreement.
(i) At the request of Purchaser, in the case of the Signing Stockholder, or at the request of the Signing Stockholder, in the case of Purchaser, and without further consideration, each Party shall execute and deliver or cause to be executed and delivered such additional documents and instruments and take such further action as may be reasonably necessary to consummate the transactions contemplated by this Agreement.
(j) This Agreement shall not be effective or binding upon the Signing Stockholder until after such time as the Business Combination Agreement is executed and delivered by the Company, Purchaser, and the Merger Sub.
(k) Each of the Parties hereby waives to the fullest extent permitted by applicable Law any right it may have to a trial by jury with respect to any action, suit or proceeding directly or indirectly arising out of or relating to this Agreement or the transactions contemplated hereby. Each of the Parties (i) certifies that no representative, agent or attorney of any other Party has represented, expressly or otherwise, that such other Party would not, in the event of any action, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other Parties have been induced to enter into this Agreement and the transactions contemplated hereby, as applicable, by, among other things, the mutual waivers and certifications in this Section 8(k).
(l) Nothing contained in this Agreement shall be deemed to vest in Purchaser, the Company or Merger Sub any direct or indirect ownership or incidence of ownership of or with respect to any Interests.
(m) Notwithstanding anything to the contrary set forth in this Agreement, the Company and the Signing Stockholder acknowledges that, as described in the final prospectus of Purchaser, filed with the SEC on October 28, 2025 (Registration No. 333-289485) (the “Purchaser Prospectus”), Purchaser has established the trust account described therein (the “Trust Account”) for the benefit of Purchaser’s public shareholders pursuant to the Trust Agreement and that disbursements from the Trust Account are available only in the limited circumstances set forth therein. The Signing Stockholder further acknowledges and agrees that a significant amount of Purchaser’s assets consist of the cash proceeds of Purchaser’s initial public offering (the “IPO”) and private placements of its securities occurring simultaneously with the IPO, and that substantially all of these proceeds have been deposited in the Trust Account for the benefit of its public shareholders. Accordingly, each of the Company (on behalf of itself and its Affiliates) and the Signing Stockholder hereby irrevocably waives any past, present or future claims against, and any right to access, the Trust Account, any trustee of the Trust Account and Purchaser, to collect from the Trust Account any monies that may be owed to them by Purchaser or any of its Affiliates for any reason whatsoever, regardless of whether such claim arises as a result of, in connection with or relating in any way to, this Agreement or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (collectively, the “Released Claims”) and will not seek recourse against the Trust Account at any time for any reason. Notwithstanding the foregoing, nothing herein shall serve to limit or prohibit the Signing Stockholder’s right to pursue a claim against Purchaser pursuant to this Agreement for legal relief against monies or other assets of Purchaser held outside the Trust Account or for specific performance or other equitable relief in connection with the Transactions or for intentional fraud in the making of the representations and warranties in this Agreement. This Section 9(m) shall survive the termination of this Agreement for any reason.
[Signature pages follow]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
| APEX TREASURY CORPORATION | ||
| By: | /s/ Paul Sykes | |
| Name: | Paul Sykes | |
| Title: | Chief Financial Officer | |
| TECFUSIONS, INC. | ||
| By: | /s/ Denis Minihane | |
| Name: | Denis Minihane | |
| Title: | Director, Chairman of the Board | |
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
| SIGNING STOCKHOLDER: | ||
| /s/ Simon Tusha | ||
| Name: | Simon Tusha, Trustee of the Simon Tusha Revocable Trust Dated May 28, 2025, sole member of Jeremiah 29:11, LLC | |
Exhibit 10.3
Execution Version
SPONSOR SUPPORT AGREEMENT
This SPONSOR SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of July 21, 2026, by and among Apex Treasury Corporation, a Cayman Islands exempted company (“Purchaser”), TECfusions, Inc., a Florida corporation (the “Company”), Apex Treasury Sponsor LLC (“Sponsor”) and each of the other shareholders of Purchaser listed under Exhibit A attached hereto (together with Sponsor, each a “Signing Shareholder” and collectively, the “Signing Shareholders”). Purchaser, the Company and each Signing Shareholder are sometimes referred to herein as a “Party” and collectively as the “Parties”. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Business Combination Agreement (as defined below).
RECITALS
A. As of the date hereof, each Signing Shareholder has beneficial ownership (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) of and is entitled to dispose of (or direct the disposition of) and, as applicable, to vote (or to direct the voting of) the number of Purchaser Ordinary Shares set forth opposite such Signing Shareholder’s name on Exhibit A hereto (such Purchaser Securities, together with any other Purchaser Securities of which beneficial ownership, record ownership and/or the power to vote (including, without limitation, by proxy or power of attorney) is hereafter acquired by such Signing Shareholder during the period from the date hereof through the Expiration Time are collectively referred to herein as the “Subject Securities”).
B. On this date, Purchaser, Stepping Stone Merger Sub, Inc., a Delaware corporation and wholly-owned direct Subsidiary of Purchaser (“Merger Sub”), and the Company propose to enter into, simultaneously herewith, a business combination agreement in the form provided to the Signing Shareholders (the “Business Combination Agreement”), which provides, among other things, that, upon the terms and subject to the conditions thereof, Merger Sub will merge with and into the Company (the “Merger”), with the Company surviving as a wholly-owned subsidiary of Purchaser.
C. As a condition to the willingness of the Company to enter into the Business Combination Agreement and as an inducement and in consideration therefor, each Signing Shareholder has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, do hereby agree as follows:
1. Definitions. When used in this Agreement, the following terms in all of their tenses, cases and correlative forms shall have the meanings assigned to them in this Section 1 or elsewhere in this Agreement.
“Expiration Time” shall mean the earlier to occur of (a) the Effective Time and (b) such date and time as the Business Combination Agreement shall be terminated in accordance with Article VIII thereof.
“Purchaser Ordinary Shares” means the Class A Ordinary Shares of Purchaser, par value $0.0001 per share, and the Class B Ordinary Shares of Purchaser, par value $0.0001 per share.
“Purchaser Securities” means Purchaser Ordinary Shares, Cayman Purchaser Shares and Cayman Purchaser Warrants.
“Subject Shares” shall mean the Subject Securities that are Purchaser Ordinary Shares.
“Transfer” shall mean any sale, assignment, encumbrance, pledge, hypothecation, disposition, loan or other transfer, or entry into any contract, agreement, option or other arrangement or understanding with respect to any sale, assignment, encumbrance, pledge, hypothecation, disposition, loan or other transfer, in each case directly or indirectly and voluntarily or involuntarily, of any interest owned by a person or any interest (including a beneficial interest) in, or the ownership, control or possession of, any interest owned by a person, excluding entry into this Agreement and the Business Combination Agreement and the consummation of the transactions contemplated hereby and thereby.
2. Agreement to Retain the Subject Securities.
2.1 No Transfer of Subject Securities. Until the Expiration Time, each Signing Shareholder agrees not to (a) Transfer any Subject Securities (except (i) to a permitted transferee as set forth in Section 7(c) of that certain letter agreement, dated October 27, 2025, among Purchaser and the Signing Shareholders (the “Insider Letter”) who agrees to be bound by the terms of this Agreement in a writing reasonably satisfactory to Purchaser and the Company or (ii) to any third-party investor who is a party to any non-redemption agreement with Purchaser in connection with any amendment to Purchaser’s Organizational Documents to effectuate an extension of the time Purchaser has to consummate a Business Combination and who agrees to be bound by the terms of this Agreement in a writing reasonably satisfactory to Purchaser and the Company) or (b) deposit any Subject Securities into a voting trust or enter into a voting agreement with respect to any Subject Securities or grant any proxy (except as otherwise provided herein), consent or power of attorney with respect thereto (other than pursuant to this Agreement). Until the Expiration Time, the Signing Shareholder and Purchaser agree not to amend, modify or waive any provision of the Insider Letter without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed).
2.2 Additional Purchases. Until the Expiration Time, each Signing Shareholder agrees that any Purchaser Securities that such Signing Shareholder purchases, that are issued to such Signing Shareholder by Purchaser, that are otherwise hereinafter acquired by such Signing Shareholder or with respect to which such Signing Shareholder otherwise acquires sole or shared voting power (including by proxy or power of attorney) after the execution of this Agreement and prior to the Expiration Time shall, in each case, be subject to the terms and conditions of this Agreement to the same extent as if they were Subject Securities owned by such Signing Shareholder as of the date hereof. Each of the Signing Shareholders agrees, while this Agreement is in effect, to notify Purchaser and the Company promptly in writing (including by e-mail) of the number of any additional Subject Securities acquired, or over which voting power is acquired, by such Signing Shareholder, if any, after the date hereof.
2.3 Unpermitted Transfers. Any Transfer or attempted Transfer of any Subject Securities in violation of this Section 2 shall, to the fullest extent permitted by applicable Law, be null and void ab initio.
3. Voting of Subject Shares. Hereafter until the Expiration Time, each Signing Shareholder hereby unconditionally and irrevocably agrees that, at any meeting of the stockholders of Purchaser (or any adjournment or postponement thereof), and in any action by written consent of the stockholders of Purchaser requested by the board of directors of Purchaser or otherwise undertaken as contemplated by the Transactions (which written consent shall be delivered promptly, and in any event not later than two (2) Business Days, after Purchaser requests such delivery), such Signing Shareholder shall: (a) if a meeting is held, attend and appear at the meeting, in person or by proxy, or otherwise cause its Subject Shares to be counted as present thereat for purposes of establishing a quorum, and such Signing Shareholder shall vote, or cause to be voted, all of the Subject Shares to which such Signing Shareholder has sole or shared voting power and is entitled to vote; and/or (b) if a written consent or approval is requested, duly and promptly execute and provide such written consent or approval (or cause to be voted or so consented or approved), in respect of all of its Subject Shares: (i) to approve and adopt the Business Combination Agreement and the Transactions, (ii) in any other circumstances upon which a vote, consent or other approval with respect to the Business Combination Agreement or the Transactions is sought, to vote, consent or approve (or cause to be voted, consented or approved) all of such Signing Shareholder’s Subject Shares held at such time in favor of the foregoing, and (iii) to vote against and withhold consent with respect to any merger, purchase or divestiture of all or substantially all of Purchaser’s assets or other business combination transaction (other than the Business Combination Agreement and the Transactions), and any other proposal that is intended, or would reasonably be expected, to prevent, impede, interfere with, delay, postpone or adversely affect the Transactions in any material respect or would reasonably be expected to result in any of the closing conditions of Purchaser, the Company or Merger Sub under the Business Combination Agreement not being satisfied, or otherwise result in a breach of any of the representations, warranties, covenants or other obligations or agreements of Purchaser, the Company or Merger Sub, in each case, in accordance with the recommendation of the board of directors of Purchaser as set forth in the Proxy Statement delivered in connection with such meeting of Purchaser’s stockholders. No Signing Shareholder shall take or omit to take, or commit or agree to take or omit to take, any action inconsistent with the foregoing that would be effective prior to the Expiration Time.
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4. Waiver of Anti-Dilution Adjustment. Subject to the satisfaction or waiver of each of the conditions to Closing set forth in Sections 7.01 and 7.03 of the Business Combination Agreement, effective immediately prior to the Closing, each Signing Shareholder hereby waives (for itself and on behalf of its successors and assigns), in accordance with Section 17.4 of Purchaser’s Amended and Restated Articles of Association as in effect as of the date hereof (the “Purchaser Charter”), any and all rights that any holder of Purchaser Class B Ordinary Shares has or will have under Section 17.3 of the Purchaser Charter to receive, with respect to each Purchaser Class B Ordinary Share, more than one (1) Purchaser Class A Ordinary Share upon the automatic conversion of Purchaser Class B Ordinary Shares in accordance with the Purchaser Charter in connection with the consummation of the Transactions. Each Signing Shareholder hereby represents and warrants that the foregoing waiver is binding on all holders of Purchaser Class B Ordinary Shares and their successors and assigns. Without limitation of the foregoing, each Signing Shareholder hereby acknowledges and agrees that pursuant to the Business Combination Agreement, upon consummation of the Transactions, the Purchaser Class B Ordinary Shares shall convert into Purchaser Class A Ordinary Shares on a one-to-one basis. For the avoidance of doubt, if either this Agreement or the Business Combination Agreement is terminated, then this Section 4 shall be deemed null and void ab initio.
5. Sponsor Share Forfeiture.
(a) Sponsor shall, immediately prior to (and contingent upon) the Closing, forfeit, or cause to be forfeited, to Purchaser the sum of (i) a number of Purchaser Class B Ordinary Shares equal to 50% of the number of new shares (if any) to be issued by the Surviving Company at the Closing as consideration or inducement payments pursuant to the terms of any non-redemption agreements or subscription agreements entered into by Purchaser in connection with the PIPE Investment or other forms of financings, plus (ii) an additional number of Purchaser Class B Ordinary Shares equal to the product of the percentage of Purchaser Class A Ordinary Shares redeemed in connection with the Transactions, multiplied by the total number of Sponsor’s remaining Purchaser Class B Ordinary Shares (after giving effect to forfeitures in the immediately preceding clause (i)) (all such forfeited shares, the “Forfeited Founder Shares” and the forfeiture of the Forfeited Founder Shares pursuant to this Section 5(a), the “Sponsor Forfeiture”); provided, however, that in no event shall the aggregate number of Forfeited Founder Shares exceed 3,150,000. For the avoidance of doubt, nothing in this Section 5 shall require Sponsor to forfeit or transfer any other securities apart from the Forfeited Founder Shares.
(b) To effect the Sponsor Forfeiture, immediately prior to (and contingent upon) the Closing: (i) Sponsor shall transfer the Forfeited Founder Shares to Purchaser for cancellation and in exchange for no consideration; (ii) Purchaser shall immediately retire and cancel all of the Forfeited Founder Shares (and shall direct Purchaser’s transfer agent (or such other intermediaries as appropriate) to take any and all such actions incidental thereto); and (iii) Sponsor and Purchaser each shall take such actions as are necessary to cause the Forfeited Founder Shares to be retired and cancelled, after which the Forfeited Founder Shares shall no longer be issued or outstanding.
(c) Prior to the Closing, Sponsor shall not, directly or indirectly, sell, transfer or otherwise dispose of or hypothecate, or otherwise grant any interest in or to, the Forfeited Founder Shares other than pursuant to the Sponsor Forfeiture. Sponsor hereby authorizes Purchaser during the period from the date hereof until the earlier of the Closing or termination of this Agreement to cause its transfer agent for the Forfeited Founder Shares to decline to transfer, and to note stop transfer restrictions on the stock register and/or legends on the stock certificate(s) or book entries relating to the Forfeited Founder Shares.
6. No Redemption. Each Signing Shareholder irrevocably and unconditionally agrees to, from the date hereof and until the Expiration Time, not elect to cause or demand Purchaser to redeem any Subject Shares now or at any time legally or beneficially owned by such Signing Shareholder, or otherwise submit, tender or surrender any of its Subject Shares for redemption, in each case in connection with an extension of Purchaser’s expiration date or the Purchaser Shareholders’ Meeting.
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7. Additional Agreements.
7.1 No Challenges. Each of the Signing Shareholders 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, Merger Sub, 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 (b) alleging a breach of any fiduciary duty of any person in connection with the evaluation, negotiation or entry into the Business Combination Agreement or any other agreement in connection with the Transactions.
7.2 Further Actions. Each of the Signing Shareholders agrees, while this Agreement is in effect, not to take or omit to take, or agree to commit to take or omit to take, any action that would make any representation and warranty of such Signing Shareholder contained in this Agreement inaccurate in any material respect. Each of the Signing Shareholders further agrees that it shall take all actions reasonably necessary and cooperate with Purchaser and the Company to effect the transactions contemplated hereby and the Transactions, including to take or omit to take such actions, and execute such agreements, as may be reasonably requested by Purchaser or the Company in connection with the transactions contemplated hereby and the Transactions or that are reasonably necessary to give further effect thereto.
7.3 Consent to Disclosure. Each Signing Shareholder 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 other documents or communications provided by Purchaser or the Company to any Governmental Authority or to securityholders of Purchaser) of such Signing Shareholder’s identity and beneficial ownership of Subject Securities and the nature of such Signing Shareholder’s commitments, arrangements and understandings under and relating to this Agreement and, if deemed appropriate by Purchaser or the Company, a copy of this Agreement. Each Signing Shareholder will promptly provide any information reasonably requested by Purchaser or the Company for any regulatory application or filing made or approval sought in connection with the Transactions (including filings with the SEC).
8. Representations and Warranties of the Signing Shareholders. Each of the Signing Shareholders, severally and not jointly, hereby represents and warrants to Purchaser as follows:
8.1 Due Authority. Such Signing Shareholder has the full power and authority to make, enter into and carry out the terms of this Agreement. This Agreement has been duly and validly executed and delivered by such Signing Shareholder (and, if such Purchaser Stockholder is married and any of such Signing Shareholder’s Subject Securities constitute community property or otherwise need spousal or other approval for this Agreement to be valid and binding, such Purchaser Stockholder’s spouse), and constitutes a valid and binding agreement of such Signing Shareholder enforceable against it in accordance with its terms (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws of general applicability relating to or affecting creditor’s rights, and to general equitable principles).
8.2 Ownership of the Subject Securities. Such Signing Shareholder is either (a) the owner of the Purchaser Securities indicated on Exhibit A hereto opposite such Signing Shareholder’s name, free and clear of any and all Encumbrances, other than (i) those created by this Agreement, (ii) as may be set forth in the Purchaser’s Organizational Documents or in any agreement included in the Purchaser SEC Filings or (iii) those imposed by applicable Law, including federal and state securities Laws or (b) has the power to vote (including, without limitation, by proxy or power of attorney) the Purchaser Securities indicated on Exhibit A hereto opposite such Signing Shareholder’s name. Such Signing Shareholder has as of the date hereof and, except pursuant to a Transfer permitted in accordance with Section 2.1 hereof, will have until the Expiration Time, sole voting power (including the right to control such vote as contemplated herein), power of disposition, power to issue instructions with respect to the matters set forth in this Agreement and power to agree to all of the matters applicable to such Signing Shareholder set forth in this Agreement, in each case, over all Subject Securities. As of the date hereof, such Signing Shareholder does not own any other voting securities of Purchaser or have the power to vote (including by proxy or power of attorney) any other voting securities of Purchaser other than the Purchaser Securities set forth on Exhibit A hereto opposite such Signing Shareholder’s name. As of the date hereof, such Signing Shareholder does not own any rights to purchase or acquire (i) any other equity securities of Purchaser or (ii) the power to vote any other voting securities of Purchaser, in each case except as set forth on Exhibit A hereto opposite the Signing Shareholder’s name. There are no claims for finder’s fees or brokerage commissions or other like payments in connection with this Agreement or the transactions contemplated hereby payable by any Signing Shareholder pursuant to arrangements made by such Signing Shareholder.
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8.3 No Conflict; Consents.
(a) The execution and delivery of this Agreement by such Signing Shareholder does not, and the performance by such Signing Shareholder of the obligations under this Agreement and the compliance by such Signing Shareholder with the provisions hereof do not and will not: (i) conflict with or violate any Law applicable to such Signing Shareholder, (ii) contravene or conflict with, or result in any violation or breach of, any provision of any charter, certificate of incorporation, limited liability company agreement, certificate of formation, articles of association, by-laws, operating agreement or similar formation or governing documents and instruments of such Signing Shareholder, as applicable, or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the Subject Securities owned by such Signing Shareholder pursuant to any contract or agreement to which such Signing Shareholder is a party or by which such Signing Shareholder is bound, except in the case of clause (i) or (iii) as would not reasonably be expected, either individually or in the aggregate, to materially impair the ability of such Signing Shareholder to perform its obligations hereunder or to consummate the transactions contemplated hereby.
(b) No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority or any other person is required by or with respect to such Signing Shareholder in connection with the execution and delivery of this Agreement or the consummation by such Signing Shareholder of the transactions contemplated hereby. If such Signing Shareholder is a natural person, no consent of such Signing Shareholder’s spouse is necessary under any “community property” or other Laws in order for such Signing Shareholder to enter into and perform its obligations under this Agreement.
8.4 Absence of Other Voting Agreement. Except for this Agreement and the Insider Letter, such Signing Shareholder has not: (a) entered into any voting agreement, voting trust or similar agreement with respect to any Subject Securities or other equity securities of Purchaser owned by such Signing Shareholder or (b) granted any proxy, consent or power of attorney with respect to any Subject Securities or other equity securities of Purchaser owned by such Signing Shareholder (other than as contemplated by this Agreement).
8.5 Reliance by the Company. Such Signing Shareholder understands and acknowledges that the Company is entering into the Business Combination Agreement in reliance upon the Signing Shareholder’s execution and delivery of this Agreement.
8.6 Signing Shareholder Has Adequate Information. Such Signing Shareholder is a sophisticated stockholder and has 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, without reliance upon Purchaser or the Company, and based on such information as such Signing Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Signing Shareholder acknowledges that none of Purchaser or the Company has made or makes any representation or warranty, whether express or implied, of any kind or character with respect to the matters covered herein, in each case except as expressly set forth in this Agreement. Such Signing Shareholder acknowledges that the agreements contained herein with respect to the Subject Securities held by such Signing Shareholder are irrevocable.
9. Termination. This Agreement shall terminate upon the earliest to occur of (a) the Expiration Time and (b) the mutual written agreement of Purchaser, the Company and the Signing Shareholders.
10. Acquisition Proposals and Alternative Transactions. Until the Expiration Time, each of the Signing Shareholders agrees to comply with the obligations applicable to such Signing Shareholder pursuant to Section 6.06 of the Business Combination Agreement as if it were a party with respect thereto.
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11. Miscellaneous.
11.1 Further Assurances. At the request of the Company, in the case of any Signing Shareholder, or at the request of the Signing Shareholders, in the case of the Company, and without further consideration, 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.
11.2 Fees and Expenses. Each of the Parties shall be responsible for its own fees and expenses (including the fees and expenses of investment bankers, accountants and counsel) in connection with the entering into of this Agreement and the consummation of the transactions contemplated hereby; provided that the fees and expenses of the Company and Purchaser shall be allocated as set forth in Section 3.03 of the Business Combination Agreement.
11.3 No Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Purchaser, the Company or Merger Sub any direct or indirect ownership or incidence of ownership of or with respect to any Subject Securities.
11.4 Amendments, Waivers. This Agreement may be amended, supplemented or modified only by execution of a written instrument signed by each of the Parties. Any party to this Agreement may, at any time prior to the Closing, (a) extend the time for the performance of the obligations or acts of the other parties hereto, (b) waive any inaccuracies in the representations and warranties (of another party hereto) that are contained in this Agreement or (c) waive compliance by the other parties hereto 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.
11.5 Notices. All notices, consents, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered by 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 in a notice given in accordance with this Section 11.5). Actual notice is effective notice for all purposes hereunder.
if to Purchaser:
Apex Treasury Corporation
2035 Regatta Drive
Vero Beach, Florida 32693
Attn: Ajmal Rahman; Hugh Cochrane
Email: [***]
with a copy (which shall not constitute notice) to:
Sidley Austin LLP
787 Seventh Avenue
New York, New York 10019
Attn: Michael Heinz; J. David Stewart; Nick DeAngelis
Email: [***]
if to the Company:
TECfusions, Inc.
19995 US 19 Highway
Clearwater, Florida 33764
Attn: Simon Tusha; Denis Minihane
Email: [***]
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with a copy (which shall not constitute notice) to:
Paul Hastings LLP
2050 M St NW
Washington, DC 20036
Attn: Brad Bondi; Gil Savir; Steve Camahort; Sean Donahue
Email: [***]
if to a Signing Shareholder, to the address for notice set forth on Exhibit A hereto,
with a copy (which shall not constitute notice) to:
Sidley Austin LLP
787 Seventh Avenue
New York, New York 10019
Attn: Michael Heinz; J. David Stewart; Nick DeAngelis
Email: [***]
11.6 Headings. The headings 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.
11.7 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.
11.8 Entire Agreement; Assignment. This Agreement and the exhibit hereto (together with each Transaction Document to which the Parties are parties, to the extent 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 with respect to the subject matter contained herein. Except for transfers permitted by Section 2.1, no Party shall assign this Agreement or any part hereof without the prior written consent of the other Parties, and any assignment without such consent shall be null and void. Subject to the foregoing, 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.
11.9 Restrictions. Promptly following the date of this Agreement, Purchaser shall advise its transfer agent in writing that each Signing Shareholder’s Subject Securities are subject to the restrictions set forth herein and, in connection therewith, provide the transfer agent of Purchaser in writing with such information as is reasonable to ensure compliance with such restrictions.
11.10 Parties in Interest. this Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of each Party, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. No Signing Shareholder shall be liable for the breach by any other Signing Shareholder of this Agreement.
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11.11 Interpretation.
(a) Unless the context of this Agreement otherwise requires, (i) 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, (ii) 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, (iii) “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”, (iv) 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, (v) 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”, (vi) the term “or” means “and/or”, (vii) any reference to the term “ordinary course” or “ordinary course of business” shall be deemed in each case to be followed by the words “consistent with past practice”, (viii) any contract, instrument, law or order defined or referred to herein or in any contract, instrument, law or order that is referred to herein means such contract, instrument, insurance policy, law or order as from time to time amended, amended and restated, modified or supplemented, including (in the case of contracts or instruments) by waiver or consent and (in the case of laws and orders) by succession of comparable successor laws or orders and any statutes, regulations, rules or orders promulgated thereunder, and to all attachments thereto and instruments incorporated therein, (ix) except as otherwise indicated, all references in this Agreement to the words “Section,” “Article” and “Exhibit” are intended to refer to Sections, Articles and Exhibits to this Agreement, (x) the term “Dollars” or “$” means United States dollars, and (xi) with respect to the determination of any period of time, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”. 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 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 a Party to be given, delivered, provided or made available by a Party, in order for such contract, document, certificate or instrument to have been deemed to have been given, delivered, provided and made available to the Parties, such contract, document, certificate or instrument shall have been posted at least twenty-four (24) hours prior to the date hereof to the electronic data site maintained on behalf of the Party for the benefit of the Parties and the Parties have been given access to the electronic folders containing such information.
(b) The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent and no rule of strict construction shall be applied against any Party.
11.12 Governing Law; Waiver of Jury Trial. 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. Each of the Parties further agrees that notice as provided herein shall constitute sufficient service of process and the Parties further waive any argument that such service is insufficient. Any proceeding or 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 proceeding or 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 proceeding or legal proceeding shall be heard and determined only in any such court, and (iv) agrees not to bring any proceeding or 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 11.12. The Parties hereby consent to and grant any such court jurisdiction over the person of such Parties and over the subject matter of such dispute and agree that mailing of process or other papers in connection with such action, suit or proceeding in the manner provided in Section 11.5 hereof or in such other manner as may be permitted by law shall be valid and sufficient service thereof. 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. Each Party certifies and acknowledges that (i) no representative, agent or attorney of any other Party has represented, expressly or otherwise, that such other Party would not, in the event of litigation, seek to enforce the foregoing waiver; (ii) such Party understands and has considered the implications of the foregoing waiver; (iii) such Party makes the foregoing waiver voluntarily and (iv) such Party has been induced to enter into this Agreement by, among other things, the mutual waiver and certifications in this Section 11.12.
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11.13 Specific Performance. Each Party acknowledges that the rights of each Party to consummate the transactions contemplated hereby 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 agree 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.
11.14 Counterparts; Electronic Delivery. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by electronic transmission (including by email or in .pdf format) and electronically or digitally executed counterparts (such as DocuSign) shall have the same legal effect as original signatures and shall be considered irrevocable originally executed counterparts of this Agreement.
11.15 Directors and Officers. Nothing in this Agreement shall be construed to impose any obligation or limitation on votes or actions taken by any director, officer, employee, agent, designee or other representative of the Signing Shareholders or by the Signing Shareholders that is a natural person, in each case, in his or her capacity as a director or officer of Purchaser or any of its Subsidiaries. The Signing Shareholders are executing this Agreement solely in such capacity as record or beneficial holders of Purchaser Securities.
11.16 Trust Account Waiver. Notwithstanding anything to the contrary set forth in this Agreement, the Company and each Signing Shareholder acknowledges that, as described in the final prospectus of Purchaser, filed with the SEC on October 28, 2025 (Registration No. 333-289485) (the “Purchaser Prospectus”), Purchaser has established the trust account described therein (the “Trust Account”) for the benefit of Purchaser’s public shareholders pursuant to the Trust Agreement and that disbursements from the Trust Account are available only in the limited circumstances set forth therein. Each Signing Shareholder further acknowledges and agrees that a significant amount of Purchaser’s assets consist of the cash proceeds of Purchaser’s initial public offering (the “IPO”) and private placements of its securities occurring simultaneously with the IPO, and that substantially all of these proceeds have been deposited in the Trust Account for the benefit of its public shareholders. Accordingly, each Signing Shareholder hereby irrevocably waives any past, present or future claims as a result of, or arising out of, this Agreement, any negotiation, contracts or agreements with the Company, each Signing Shareholder, or its respective representative, against, and any right to access, the Trust Account, any trustee of the Trust Account and Purchaser, to collect from the Trust Account any monies that may be owed to them by Purchaser or any of its Affiliates for any reason whatsoever, regardless of whether such claim arises as a result of, in connection with or relating in any way to, this Agreement or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (collectively, the “Released Claims”) and will not seek recourse against the Trust Account at any time for any reason. Notwithstanding the foregoing, nothing herein shall serve to limit or prohibit any Signing Shareholder’s right to pursue a claim against Purchaser pursuant to this Agreement for legal relief against monies or other assets of Purchaser held outside the Trust Account or for specific performance or other equitable relief in connection with the Transactions or for intentional fraud in the making of the representations and warranties in this Agreement. This Section 11.16 shall survive the termination of this Agreement for any reason.
11.17 Effectiveness. This Agreement shall not be effective or binding upon any Signing Shareholder until after such time as the Business Combination Agreement is executed and delivered by the Company, Purchaser and Merger Sub.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first set forth above.
| PURCHASER: | ||
| APEX TREASURY CORPORATION | ||
| By: | /s/ Paul Sykes | |
| Name: | Paul Sykes | |
| Title: | Chief Financial Officer | |
[Signature Page to Sponsor Support Agreement]
| COMPANY: | ||
| TECFUSIONS, INC. | ||
| By: | /s/ Denis Minihane | |
| Name: | Denis Minihane | |
| Title: | Director, Chairman of the Board | |
[Signature Page to Sponsor Support Agreement]
| SIGNING SHAREHOLDER: | ||
| APEX TREASURY SPONSOR LLC | ||
| By: | /s/ Ajmal Rahman | |
| Name: | Ajmal Rahman | |
| Title: | Manager | |
[Signature Page to Sponsor Support Agreement]
| SIGNING SHAREHOLDER: | ||
| By: | /s/ Ajmal Rahman | |
| Name: | Ajmal Rahman | |
| By: | /s/ Hugh Cochrane | |
| Name: | Hugh Cochrane | |
| By: | /s/ Paul Sykes | |
| Name: | Paul Sykes | |
| By: | /s/ James McNaught-Davis | |
| Name: | James McNaught-Davis | |
| By: | /s/ William Mann | |
| Name: | William Mann | |
| By: | /s/ David Mikulecky | |
| Name: | David Mikulecky | |
| By: | /s/ Stephen CuUnjieng | |
| Name: | Stephen CuUnjieng | |
| By: | /s/ Betty Liu | |
| Name: | Betty Liu | |
| By: | /s/ John Linden | |
| Name: | John Linden | |
| By: | /s/ Richard Ma | |
| Name: | Richard Ma | |
| By: | /s/ Kester Ng | |
| Name: | Kester Ng | |
[Signature Page to Sponsor Support Agreement]
Exhibit 99.1
TECFUSIONS, A RAPIDLY GROWING DEVELOPER AND OPERATOR OF AI-READY DATA CENTERS AND POWER INFRASTRUCTURE, SIGNS BUSINESS COMBINATION AGREEMENT WITH APEX TREASURY CORP.
TECfusions is positioned where accelerating AI data center demand meets a scarcity of power-secured capacity.
Company ethos centered on the fusion of ‘Technology, Environment, Community’ focuses on delivering AI-ready capacity while advancing environmental redevelopment and local community outcomes.
Unique adaptive reuse strategy designed to convert legacy industrial sites into AI-ready, power-enabled data center infrastructure, accelerating deployment in power-constrained markets.
The Transaction values TECfusions at a pre-money equity value of $4.0 billion and includes a $35 million PIPE from an institutional investor at $10.00 per share.
Clearwater, FL, and Vero Beach, FL, July 22, 2026 -- TECfusions, Inc. (“TECfusions” or the “Company”), an AI infrastructure company focused on designing, building, and leasing next-generation data centers, and Apex Treasury Corp. (Nasdaq: APXT) (“Apex Treasury”), a publicly traded special purpose acquisition company, today announced that they have entered into a definitive agreement for a business combination (the “Transaction” or the “Business Combination”) that would result in TECfusions becoming a publicly traded company on Nasdaq under the proposed ticker symbol “TECF”. Concurrent with the entry into the definitive Business Combination agreement (the “Business Combination Agreement”), an institutional investor entered into a subscription agreement for an aggregate of $35 million of securities in a PIPE investment at the same $4.0 billion pre-money equity valuation of TECfusions.
BACKGROUND
TECfusions is building a differentiated digital infrastructure platform for the AI era through a vertically integrated approach to AI-ready data center development. The Company’s approach aims to combine adaptive reuse of existing real estate, efficient low water usage cooling, and integrated power infrastructure to support large-scale compute deployments for hyperscalers, neocloud tenants, and enterprise AI customers. This platform is built around three core pillars of Technology, Environment, and Community guiding site selection, development, and operations. TECfusions aims to provide space, power and cooling to its tenants, while avoiding direct exposure to the more volatile GPU ownership and compute layer.
Today, TECfusions has operating and development activity in three strategic U.S. markets, namely Clarksville, Virginia; Tucson, Arizona; and New Kensington, Pennsylvania. These sites have the potential to support a multi-gigawatt (“GW”) development pipeline over time while enabling environmental redevelopment and community partnership programs in legacy industrial markets, and providing a foundation for expansion into additional markets as AI data center demand continues to grow and power availability, site readiness, and speed of deployment become increasingly important.
A core part of TECfusions’ strategy is the adaptive reuse of legacy industrial properties, which can materially accelerate deployment, lower capital expenditures, and reduce zoning and entitlement complexity relative to traditional greenfield development. When paired with an integrated power strategy that includes on-site generation, this approach is designed to give TECfusions greater control over speed, cost, resilience, and scalability as demand for power-secured AI infrastructure continues to increase. By focusing on adaptive reuse, TECfusions aims to convert underutilized industrial properties into productive assets that can support jobs, tax base, and community programs in host markets. This adaptive reuse approach, combined with low-water, high-efficiency cooling and integrated power infrastructure, is designed to support large-scale compute deployments while reducing environmental impact.
TECfusions’ current portfolio reflects a mix of live, contracted, and planned capacity. In Clarksville, Virginia, the Company has 37 megawatts (“MW”) live; in Tucson, Arizona, it has 16 MW live, and an additional 12 MW contracted; and in New Kensington, Pennsylvania, Phase 1 comprises 12 MW that is fully contracted, with 2 MW currently live, and subsequent phases planned to provide for future expansion capacity. Each of these sites has been developed with TECfusions’ Technology, Environment, Community framework in mind, including plans for local employment, training, and redevelopment initiatives.
Simon Tusha, Founder of TECfusions, commented, “This Transaction marks an important milestone for TECfusions and reflects the strength of our strategy to build AI-ready infrastructure where power availability, speed, and execution matter most. We believe the opportunity is being driven not only by rising AI demand, but also by the growing scarcity of power-secured capacity and the need for faster, more flexible deployment models.”
Tusha continued, “As demand for AI and high-performance compute continues to grow, customers increasingly need scalable, resilient data center capacity on timelines that traditional development models often cannot match. As a public company, we anticipate access to the public capital markets will enhance our ability to accelerate development across our existing portfolio, expand into additional strategic markets, and continue building a leading infrastructure platform for the global AI economy in partnership with the communities.”
Ajmal Rahman, Chairman of the Board and Co-Chief Executive Officer of Apex Treasury, stated, “We have been deeply impressed by both the ambition of the TECfusions strategy and the progress the leadership team has already made in bringing that strategy to life. The Company has built a platform that speaks directly to where the market is today, with a focus on power access, accelerated deployment, and AI-ready infrastructure. We also believe the investment opportunity is supported by a visible set of potential catalysts, including customer commitments, site expansion, infrastructure partnerships, and other milestones that can help demonstrate execution as the Company enters the public markets. We are excited to undertake this Transaction with TECfusions; we believe the business is well positioned for its next chapter as a public company, and look forward to supporting that next phase of growth and helping build long-term shareholder value.”
MARKET OPPORTUNITY & CATALYSTS
The U.S. data center market is experiencing a period of sustained expansion, with projected growth of more than 10% annually from $126 billion in 2025 to $277 billion by 2033. Within that market the AI data center segment is expected to grow at more than 20% annually, expanding from $35 billion to $167 billion over the same period, underscoring that an increased share of industry growth is being driven by AI workloads rather than traditional enterprise demand. Supply of suitable AI data center capacity remains tight, leasing activity is expected to remain elevated, and power availability has become a primary bottleneck in site selection.
Alongside this expansion, stakeholders are increasingly focused on the impact of data center growth on power availability, water resources, and local communities. TECfusions’ strategy is designed to address these concerns by combining adaptive reuse, integrated power, and low-water cooling with community partnerships and redevelopment initiatives. At the same time, customers, communities, and policymakers are focused on how data center growth affects power availability, water resources, and local economies. TECfusions’ Technology, Environment, Community model - combining adaptive reuse, integrated power, and low-water cooling - is designed to respond to those concerns while delivering AI-ready capacity.
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Importantly, the timing of this opportunity is being shaped by a market that is expanding quickly while becoming harder to serve. AI-driven demand is increasing at the same time that power availability, interconnection timing, and site readiness are all becoming major constraints, which is increasing the value of platforms that can move from site control to energized capacity on accelerated timelines.
Against that backdrop, TECfusions is positioned around one of the most critical constraints in the market: the ability to deliver powered, AI-ready capacity quickly in an environment where demand is accelerating and both power-secured and thermally capable capacity remain constrained. The business model aims to combine adaptive reuse, integrated power, and a stated 3+ GW development plan, which the Company believes can compress deployment timelines from years to months and reduce reliance on constrained utility interconnection queues.
TECfusions also sees a number of visible catalysts that could support continued momentum, including additional government-backed infrastructure or energy initiatives, hyperscaler and neocloud commitments, new site announcements, offtake and leasing agreements, and community partnerships tied to redevelopment and job creation. The Company believes the policy backdrop is becoming increasingly relevant, as government-supported energy and infrastructure initiatives may further elevate the strategic importance of grid-resilient, rapidly deployable AI infrastructure. Visible catalysts include site development milestones, leasing and offtake agreements, hyperscaler and neocloud commitments, government-supported energy and infrastructure initiatives, and community redevelopment and job-creation programs across TECfusions’ markets.
DIFFERENTIATION
TECfusions’ differentiation is built around three key elements - experienced leadership, infrastructure control, and exposure to a structurally supply-constrained market - all underpinned by its Technology, Environment, Community focus. The Company provides powered shell, colocation, and turnkey deployment options depending on customer needs.
At the center of that positioning is founder Simon Tusha, who over more than two decades has worked across five continents and completed more than 1,500 data center projects.
Under the founder’s guidance and with a leadership team with extensive experience in the data center market, TECfusions has built a model intended to offer greater control over the elements that matter most in today’s development environment. By combining site development, power strategy, and infrastructure delivery in one coordinated approach, and by using adaptive reuse and on-site generation to reduce dependence on traditional greenfield timelines and utility interconnection processes, the Company is aiming to improve speed to market, delivery certainty, and capital efficiency. Those attributes are increasingly important as customers seek deployable, high-density infrastructure on tighter timelines.
Accordingly, TECfusions’ strategy is designed to compete where market friction is highest. Rather than approaching development as a sequence of separate real estate, utility, and construction steps, the Company integrates those elements into a single execution model intended to reduce delays, improve delivery certainty, and better align capacity build-out with customer demand. That is particularly relevant in markets where power access and speed to deployment are becoming key differentiators.
TECfusions has already demonstrated initial execution of its strategy:
| ● | 37 MW live and fully leased in Clarksville, Virginia, | |
| ● | 16 MW live and fully leased, with an additional 12 MW contracted, in Tucson, Arizona, and | |
| ● | 2 MW live and fully leased, with an additional 10 MW contracted, in New Kensington, Pennsylvania. |
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The Company’s flagship site at New Kensington, Pennsylvania includes a 1,400-acre campus with existing industrial structures totaling more than one million square feet, as well as on-site wells accessing Marcellus Shale natural gas. The New Kensington campus is also a focal point for TECfusions’ environmental redevelopment and community partnership efforts, including plans for local employment, training, and long-term engagement with regional stakeholders.
The Company believes its existing site plans can support capacity of at least 3 GW reflecting the scale of the development opportunity embedded in the current portfolio and future phases of site expansion.
TECfusions’ strategy is tied not only to long-term AI demand growth, but also to participation in one of the more supply-constrained and strategically important layers of digital infrastructure, where power, cooling, and deployment capacity are becoming increasingly important drivers of value creation. The Company also believes its strategy can support environmental redevelopment, local job creation, and community partnerships across the Company’s markets.
TRANSACTION SUMMARY
The Transaction values TECfusions at a pre-money equity value of $4.0 billion and implies a pro forma enterprise value of approximately $4.2 billion, assuming no redemptions by existing Apex Treasury public shareholders and $35 million in gross committed PIPE proceeds. Expected proceeds are intended to support development across existing sites and balance sheet growth and pay transaction expenses. The Transaction is expected to provide TECfusions with additional access to the public capital markets to support site development, future expansion, and broader strategic flexibility as demand for AI-ready infrastructure continues to grow.
Following closing, TECfusions’ existing management team is expected to continue leading the combined company following the Transaction (the “Combined Company”), and TECfusions shareholders are expected to roll over 100% of their equity into the public company. The Transaction has been approved by the boards of directors of both TECfusions and Apex Treasury and is anticipated to close during the fourth quarter of 2026, subject to customary closing conditions, including approval by Apex Treasury’s shareholders.
A summary of the material terms of the Transaction, including a copy of the Business Combination Agreement and other related documents, will be included in a Current Report on Form 8-K to be filed by Apex Treasury with the U.S. Securities and Exchange Commission (the “SEC”). Additional information about the proposed Business Combination will be described in the registration statement on Form S-4, which Apex Treasury and TECfusions will file with the SEC.
INVESTOR WEBINAR
TECfusions and Apex Treasury will host a joint investor information webinar on Tuesday, July 28, 2026 at 11:00am Eastern Time, to provide additional detail on the Transaction, TECfusions’ strategy, its operating footprint, and the outlook for AI-focused data center infrastructure demand.
The webinar will feature a management presentation followed by a live question-and-answer session. Discussion topics are expected to include the Company’s adaptive reuse model, integrated power strategy, and community engagement efforts across its strategic markets.
To register for the webinar, please visit: https://us06web.zoom.us/webinar/register/WN_08lojRIWTv6fb3IoFxg-Iw
For those unable to attend live, a replay of the webinar will be made available on the TECfusions website following the event at www.tecfusions.com.
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ADVISORS
Revere Securities LLC is acting as financial advisor to TECfusions and PIPE placement agent in connection with the Transaction. Paul Hastings LLP is serving as legal counsel to TECfusions, and Sidley Austin LLP is serving as legal counsel to Apex Treasury. Alliance Advisors Investor Relations is serving as investor and media relations advisor for the Transaction.
ABOUT TECFUSIONS
TECfusions is building the future of AI infrastructure with a planned multi-gigawatt capacity opportunity across a rapidly expanding data center portfolio, guided by its Technology, Environment, Community framework. Designed for speed, scale, and sustainability, TECfusions’ facilities support demanding high-density compute environments and enable rapid deployment for neocloud, enterprise AI, and GPU-as-a-Service providers. By combining adaptive reuse strategies, low-water, high-efficiency cooling, robust power availability, and operational excellence, TECfusions develops and manages next-generation data center infrastructure built to support the growing demands of AI and high-performance computing while advancing environmental redevelopment and community outcomes. For more information, visit www.tecfusions.com.
ABOUT APEX TREASURY CORP.
Apex Treasury Corp. (Nasdaq: APXT) is a special purpose acquisition company formed to pursue a business combination with a high-potential target company. For more information, visit www.apextreasurycorp.com.
FORWARD-LOOKING STATEMENTS
The information in this press release may include “forward-looking statements”. Forward-looking statements may be identified by the use of words such as “estimate,” “plan,” “project,” “forecast,” “intend,” “will,” “expect,” “anticipate,” “believe,” “seek,” “target,” “continue,” “could,” “may,” “might,” “possible,” “potential,” “predict” or similar expressions that predict or indicate future events or trends or that are not statements of historical matters. These statements include: projections of market opportunity and market share; estimates of customer penetration rates and usage patterns; projections regarding TECfusions’ ability to commercialize new products and technologies; projections of development and commercialization costs and timelines; expectations regarding TECfusions’ ability to execute its business model; expectations regarding TECfusions’ ability to attract, retain, and expand its customer base; TECfusions’ expectations concerning relationships with strategic partners, suppliers, governments, state-funded entities, regulatory bodies and other third parties; TECfusions’ ability to maintain, protect, and enhance its intellectual property; future partnerships, ventures or investments in companies, products, services or technologies; the successful consummation and potential benefits of the Transaction, including the anticipated PIPE financing; and the potential for TECfusions to increase in value.
These forward-looking statements are provided for illustrative purposes only and must not be relied on as a guarantee, an assurance, a prediction or a definitive statement of fact or probability. These statements are subject to known and unknown risks, uncertainties and assumptions that may cause the actual results, levels of activity, performance or achievements of the Combined Company to be materially different from any future results expressed or implied by such statements. Such risks and uncertainties include: that TECfusions is pursuing an emerging technology and may not achieve commercialization or market acceptance; TECfusions’ historical net losses and limited operating history; expectations regarding future financial performance, capital requirements and unit economics; TECfusions’ competitive landscape; dependence on key management; the potential need for additional future financing; TECfusions’ ability to manage growth; reliance on strategic partners and third parties; risks associated with privacy, data protection or cybersecurity incidents; the use, rate of adoption, and regulation of artificial intelligence and machine learning; uncertainty or changes with respect to laws, regulations, taxes, trade conditions and the macroeconomic environment; the Combined Company’s ability to maintain internal control over financial reporting; the possibility that required regulatory approvals for the Transaction are delayed or not obtained; the risk that Apex Treasury shareholders could elect to have their shares redeemed; the outcome of any legal proceedings or government investigations; failure to realize the anticipated benefits of the Transaction; and other factors described in Apex Treasury’s filings with the SEC. If any of these risks materialize or assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. There may be additional risks that neither TECfusions nor Apex Treasury presently know or that TECfusions or Apex Treasury currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward-looking statements reflect TECfusions’ and Apex Treasury’s expectations, plans or forecasts of future events and views as of the date of this press release. Neither TECfusions nor Apex Treasury undertakes any obligation to revise or update publicly any forward-looking statement to reflect future events or circumstances. Nothing contained herein constitutes or will be deemed to constitute a forecast, projection or estimate of the future financial performance of TECfusions, Apex Treasury or the Combined Company, following the implementation of the Transaction or otherwise. Accordingly, undue reliance should not be placed on these statements.
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In addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the date of this press release, and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain, and investors are cautioned not to unduly rely upon these statements.
An investment in Apex Treasury is not an investment in any of our founders’ or sponsors past investments, companies or affiliated funds. The historical results of those investments are not indicative of future performance of Apex Treasury, which may differ materially from the performance of our founders’ or sponsors past investments.
ADDITIONAL INFORMATION AND WHERE TO FIND IT
The Transaction will be submitted to shareholders of Apex Treasury for their consideration. Apex Treasury and TECfusions intend to file a registration statement on Form S-4 (the “Registration Statement”) with the SEC, which will include preliminary and definitive proxy statements to be distributed to Apex Treasury’s shareholders in connection with Apex Treasury’s solicitation for proxies for the vote by Apex Treasury’s shareholders in connection with the Transaction and other matters to be described in the Registration Statement, as well as the prospectus relating to the offer of the securities to be issued to TECfusions’ shareholders in connection with the completion of the Transaction. After the Registration Statement has been filed and declared effective, a definitive proxy statement and other relevant documents will be mailed to shareholders of Apex Treasury as of the record date established for voting on the Transaction. Before making any voting or investment decision, Apex Treasury shareholders and other interested persons are advised to read, once available, the preliminary proxy statement/prospectus and any amendments thereto and, once available, the Registration Statement, definitive proxy statement/prospectus, as well as other documents filed with the SEC by Apex Treasury in connection with the Transaction because these documents will contain important information about Apex Treasury, TECfusions and the Transaction. Shareholders may obtain a copy of the preliminary or definitive proxy statement/prospectus, once available, as well as other documents filed by Apex Treasury with the SEC, without charge, at the SEC’s website located at www.sec.gov or by directing a written request to Apex Treasury Corp, 2035 Regatta Drive, Vero Beach, FL 32963; or TECfusions, Inc., 19995 US Highway 19 N, Clearwater, FL 33764.
PARTICIPANTS IN THE SOLICITATION
Apex Treasury, TECfusions and certain of their respective directors, executive officers and other members of management and employees may be deemed to be participants in the solicitation of proxies from Apex Treasury’s shareholders in connection with the Transaction. Information regarding the persons who may be deemed participants will be set forth in the proxy statement/prospectus when filed by Apex Treasury with the SEC. You can find more information about Apex Treasury’s directors and executive officers in the Registration Statement and the proxy statement/prospectus that forms a part thereof, once available. Additional information regarding the participants in the proxy solicitation and a description of their direct and indirect interests will be included in the Registration Statement and the proxy statement/prospectus which forms a part thereof when it becomes available. Shareholders, potential investors and other interested persons should read the proxy statement/prospectus carefully when it becomes available before making any voting or investment decisions.
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PRIVATE PLACEMENT; NO OFFER OR SOLICITATION
The securities to which this press release relates have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or the securities laws of any other jurisdiction. This press release relates to securities that Apex Treasury 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. This press release and any statements made in connection with this press release are for informational purposes only and do not constitute an offer to sell or the solicitation of an offer to buy, or a recommendation to purchase, any securities, or a solicitation of any vote, consent or approval, nor shall there be any sale of securities in any jurisdiction in which, or to any person to whom, such offer, solicitation or sale may be unlawful under the securities laws of any such jurisdiction. This communication is not, and under no circumstances is to be construed as, a prospectus, an advertisement or a public offering of the securities described herein in the United States or any other jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, or exemption therefrom.
INVESTMENT IN ANY SECURITIES DESCRIBED HEREIN HAS NOT BEEN APPROVED BY THE SEC OR ANY OTHER REGULATORY AUTHORITY NOR HAS ANY AUTHORITY PASSED UPON OR ENDORSED THE MERITS OF THE BUSINESS COMBINATION OR THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED HEREIN. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
CONTACTS
TECfusions & Apex Treasury Corp.
Media Contact
Fatema Bhabrawala
[email protected]
Investor Relations
Simon Willcocks
[email protected]
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Exhibit 99.2
TECFUSIONS INC. | CONFIDENTIAL 1 INFRASTRUCTURE AND POWER FOR THE AI ERA PIPE Investor Presentation Proposed Business Combination with Apex Treasury Corp (Nasdaq: APXT) July 2026 Technology. Environment. Community.
TECFUSIONS INC. | CONFIDENTIAL 2 Important Disclaimer Disclaimers This presentation and any accompanying oral commentary are provided for informational purposes only and have been prepared to assist interested parties in making their own evaluation with respect to a proposed business combination among TECfusions, Inc. ("TECfusions"), Apex Treasury Corporation ("Apex Treasury") and related transactions (the "proposed transaction") and for no other purpose. The information in this presentation is highly confidential. The distribution of this presentation by an authorized recipient to any other person is unauthorized. Any photocopying, disclosure, reproduction or alteration of the contents of this presentation and any forwarding of a copy of this presentation or any portion of this presentation to any person is prohibited. The recipient of this presentation shall keep this presentation and its contents confidential and shall be required to return or destroy all copies of this presentation or portions thereof in its possession following request for the return or destroy all copies of this presentation or portions thereof in its possession promptly following request for the return or destruction of such copies. By accepting delivery of this presentation, the recipient is deemed to agree to the foregoing confidentiality requirements. The information contained herein does not purport to be all inclusive and none of TECfusions, Apex Treasury nor any of their respective affiliates, directors, officers, employees or advisers or any other person has independently verified the information in this presentation and no representation or warranty, express or implied, is or will be given any such person as to the accuracy or completeness of information in this presentation. You are also being advised that United States securities laws restrict persons with material non-public information about 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 on the basis of such information. To the fullest extent permitted by law, in no circumstances will TECfusions, Apex Treasury or any of their respective subsidiaries, interest holders, affiliates, representatives, partners, directors, officers, employees, advisers or agents be responsible or liable for any direct, indirect or consequential loss or loss of profit arising from the use of this presentation, its contents, its omissions, reliance on the information contained within it, or on opinions communicated in relation thereto or otherwise arising in connection therewith. Recipients of this presentation are not to construe its contents as investment, legal or tax advice. Recipients should each make their own evaluation of TECfusions, Apex Treasury and the proposed transaction and of the relevance and adequacy of the information and should make such other investigations as they deem necessary. Forward-Looking Statements This presentation includes, and any accompanying oral commentary may include, "forward-looking statements" for purposes of the safe harbor provisions under the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words such as "estimate," "plan," "project," "forecast," "intend," "will," "expect," "anticipate," "believe," "seek," "target," "continue," "could," "may," "might," "possible," "potential," "predict" or similar expressions that predict or indicate future events or trends or that are not statements of historical matters. These statements include: projections of market opportunity and market share; estimates of customer penetration rates and usage patterns; projections regarding TECfusions' ability to commercialize new products and technologies; projections of development and commercialization costs and timelines; expectations regarding TECfusions' ability to execute its business model; expectations regarding TECfusions' ability to attract, retain, and expand its customer base; TECfusions' expectations concerning relationships with strategic partners, suppliers, governments, state-funded entities, regulatory bodies and other third parties; TECfusions' ability to maintain, protect, and enhance its intellectual property; future partnerships, ventures or investments in companies, products, services, or technologies; the successful consummation and potential benefits of the proposed transaction, including the anticipated PIPE financing; and the potential for TECfusions to increase in value. These forward-looking statements are provided for illustrative purposes only and must not be relied on as a guarantee, an assurance, a prediction or a definitive statement of fact or probability. These statements are subject to known and unknown risks, uncertainties and assumptions that may cause the actual results, levels of activity, performance or achievements of the combined company following the proposed transaction (the "Combined Company") to be materially different from any future results expressed or implied by such statements. Such risks and uncertainties include: that TECfusions is pursuing an emerging technology and may not achieve commercialization or market acceptance; TECfusions' historical net losses and limited operating history; expectations regarding future financial performance, capital requirements and unit economics; TECfusions' competitive landscape; dependence on key management; the potential need for additional future financing; TECfusions' ability to manage growth; reliance on strategic partners and third parties; risks associated with privacy, data protection or cybersecurity incidents; the use, rate of adoption, and regulation of artificial intelligence and machine learning; uncertainty or changes with respect to laws, regulations, taxes, trade conditions and the macroeconomic environment; the Combined Company's ability to maintain internal control over financial reporting; the possibility that required regulatory approvals for the proposed transaction are delayed or not obtained; the risk that Apex Treasury shareholders could elect to have their shares redeemed; the outcome of any legal proceedings or government investigations; failure to realize the anticipated benefits of the proposed transaction; and other factors described in Apex Treasury's filings with the U.S. Securities and Exchange Commission ("SEC"). If any of these risks materialize or assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. There may be additional risks that neither TECFusions nor Apex Treasury presently know or that TECFusions or Apex Treasury currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward-looking statements reflect TECFusions' and Apex Treasury's expectations, plans or forecasts of future events and views as of the date of this presentation. Neither TECFusions nor Apex Treasury undertakes any obligation to revise or update publicly any forward-looking statement to reflect future events or circumstances. Nothing contained herein constitutes or will be deemed to constitute a forecast, projection or estimate of the future financial performance of TECFusions, Apex Treasury or the Combined Company, following the implementation of the proposed transaction or otherwise. Accordingly, undue reliance should not be placed on these statements. In addition, statements that "we believe" and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the date of this presentation, and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain, and investors are cautioned not to unduly rely upon these statements. An investment in Apex Treasury is not an investment in any of our founders' or sponsors past investments, companies or affiliated funds. The historical results of those investments are not indicative of future performance of Apex Treasury, which may differ materially from the performance of our founders' or sponsors past investments.
TECFUSIONS INC. | CONFIDENTIAL 3 Important Disclaimer Financial and Other Information The financial information contained in this presentation has been taken from or prepared based on unaudited historical financial statements of TECfusions and its constituent businesses. The audit of these financial statements of TECfusions is in process. Accordingly, such financial information and data may not be included in, may be adjusted in or may be presented differently in any proxy statement/prospectus to be filed with the SEC by Apex Treasury or TECfusions in connection with the proposed transaction. This presentation contains certain preliminary financial results and key operating metrics for the period ended December 31, 2025. This information is preliminary and subject to change. As such, TECfusions's results may differ from the preliminary results presented herein and will not be finalized until TECfusions' audit for the period ended December 31, 2025, is completed. This presentation includes certain non-GAAP financial measures (including on a forward-looking basis) such as EBITDA. These non-GAAP measures are an addition, and not a substitute for or superior to, measures of financial performance prepared in accordance with GAAP and should not be considered as an alternative to net income or any other measures derived in accordance with GAAP. TECfusions believes that these non-GAAP measures of financial results (including on a forward-looking basis) provide useful supplemental information to investors about TECfusions. TECfusions' management uses forward-looking non-GAAP measures to evaluate TECfusions' projected financial and operating performance. However, there are a number of limitations related to the use of these non-GAAP measures and their nearest GAAP equivalents, including [that they exclude significant expenses that are required by GAAP to be recorded in TECfusions' financial measures]. In addition, other companies may calculate non-GAAP measures differently or may use other measures to calculate their financial performance, and therefore, TECfusions' non-GAAP measures may not be directly comparable to similarly titled measures of other companies. Additionally, to the extent that forward-looking non-GAAP financial measures are provided, they are presented on a non-GAAP basis without reconciliations of such forward-looking GAAP measures due to the inherent difficulty in forecasting and quantifying certain amounts that are necessary for such reconciliations. Investors and security holders of Apex Treasury are used to read the Registration Statement and the proxy statement/prospectus which forms a part thereof and other relevant documents that will be filed with the SEC carefully and in their entirety when they become available because they will contain important information about the proposed transaction. Use of Projections The financial projections, estimates and targets in this presentation are forward-looking statements that are based on assumptions that are inherently subject to significant uncertainties and contingencies, many of which are beyond TECfusions or Apex Treasury's control. While all financial projections, estimates and targets are necessarily speculative, TECfusions and Apex Treasury believe that the presentation of prospective financial information involves increasingly higher levels of uncertainty the further out the projection, estimate or target extends from the date of preparation. The assumptions and estimates underlying the projected, expected or target results 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 financial projections, estimates and targets to be a reliable prediction of future events. Neither TECfusions nor Apex Treasury's independent auditors have reviewed, compiled or performed any procedures with respect to the projections for the purpose of their inclusion in this presentation, and, accordingly, neither of them has expressed an opinion or provided any other form of assurance with respect thereto for the purpose of this presentation. Additional Information About the Proposed Transaction and Where to Find It The proposed transaction will be submitted to shareholders of Apex Treasury for their consideration. Apex Treasury and TECfusions intend to file a registration statement on Form S-4 (the "Registration Statement") with the SEC, which will include preliminary and definitive proxy statements to be distributed to Apex Treasury's shareholders in connection with Apex Treasury's solicitation for proxies for the vote by Apex Treasury's shareholders in connection with the proposed transaction and other matters to be described in the Registration Statement, as well as the prospectus relating to the offer of the securities to be issued to TECfusions' shareholders in connection with the completion of the proposed transaction. After the Registration Statement has been filed and declared effective, a definitive proxy statement and other relevant documents will be mailed to Apex Treasury as of the record date established for voting on the proposed transaction. Before making any voting or investment decision, Apex Treasury shareholders and other interested persons are advised to read, once available, the preliminary proxy statement/prospectus and any amendments thereto and, once available, the Registration Statement, definitive proxy statement/prospectus, as well as other documents filed with the SEC by Apex Treasury in connection with the proposed transaction because these documents will contain important information about Apex Treasury, TECFusions and the proposed transaction. Shareholders may obtain a copy of the preliminary or definitive proxy statement/prospectus, once available, as well as other documents filed by Apex Treasury with the SEC, without charge, at the SEC's website located at www.sec.gov or by directing a written request to Apex Treasury. Participants in the Solicitation Apex Treasury, TECfusions and certain of their respective directors, executive officers and other members of management and employees may be deemed to be participants in the solicitation of proxies from Apex Treasury's shareholders in connection with the proposed transaction. Information regarding the persons who may be deemed participants will be set forth in the proxy statement/prospectus when filed by Apex Treasury with the SEC. You can find more information about Apex Treasury's directors and executive officers in the Registration Statement and the proxy statement/prospectus which forms a part thereof, once available. Additional information regarding the participants in the proxy solicitation and a description of their direct and indirect interests will be included in the Registration Statement and the proxy statement/prospectus which forms a part thereof when it becomes available. Shareholders, potential investors and other interested persons should read the proxy statement/prospectus carefully when it becomes available before making any voting or investment decisions.
TECFUSIONS INC. | CONFIDENTIAL 4 Important Disclaimer Private Placement; No Offer or Solicitation The securities to which this presentation relates have not been registered under the Securities Act of 1933, as amended (the "Securities Act"), or the securities laws of any other jurisdiction. This presentation relates to securities that TECfusions 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. This presentation and any statements made in connection with this presentation are for informational purposes only and do not constitute an offer to sell or the solicitation of an offer to buy, or a recommendation to purchase, any securities, or a solicitation of any vote, consent or approval, nor shall there be any sale of securities in any jurisdiction in which, or to any person to whom, such offer, solicitation or sale may be unlawful under the securities laws of any such jurisdiction. This communication is not, and under no circumstances is to be construed as, a prospectus, an advertisement or a public offering of the securities described herein in the United States or any other jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended, or exemptions therefrom. INVESTMENT IN ANY SECURITIES DESCRIBED HEREIN HAS NOT BEEN APPROVED BY THE SEC OR ANY OTHER REGULATORY AUTHORITY NOR HAS ANY AUTHORITY PASSED UPON OR ENDORSED THE MERITS OF THE OFFERING OR THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED HEREIN. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. No Incorporation by Reference The information contained in the third-party citations and websites referenced in this communication is not incorporated by reference into this communication. Trademarks This presentation contains trademarks, service marks, trade names and copyrights of TECfusions, Apex Treasury, and other companies, each of which are the property of their respective owners. All third-party brand names and logos appearing in this presentation are trademarks or registered trademarks of their respective holders. Any such appearance does not necessarily imply any relationship with or endorsement of or by Apex Treasury, TECfusions or the proposed transaction. Risk Factors For a description of certain risks relating to TECfusions, including its business and operations, and to the proposed transaction, we refer you to "Risk Factors" at the end of this presentation. Use of Data Information in this presentation is based on data and analyses from various sources as of July 2026, unless otherwise indicated. References in this presentation to "$" are to the lawful currency of the United States. This presentation also contains estimates and other statistical data made by independent parties and by us relating to market size and growth and other industry data. These estimates and other statistical data involve a number of assumptions and limitations, and you are cautioned not to give undue weight to such estimates and other statistical data. We have not independently verified the statistical and other industry data generated by independent parties and contained in this presentation and, accordingly, we cannot guarantee their accuracy or completeness. In addition, expectations, assumptions, estimates and projections of the future performance of relevant markets in which TECfusions operates are necessarily subject to a high degree of uncertainty and risk. No representation is made as to the reasonableness of the assumptions made within or the accuracy or completeness of any projections or modeling or any other information contained herein. Accordingly, such information and data may not be included in, may be adjusted in, or may be presented differently in, any registration statement, prospectus, proxy statement or other report or document to be filed or furnished with the SEC by TECfusions, Apex Treasury or the Combined Company in connection with the proposed transaction. Use of Non-GAAP Financial Measures This presentation includes non-GAAP financial measures, including Net Income from Operations. Net Income from Operations is defined as net income (loss) plus interest expense, net, provision for income taxes plus depreciation and amortization. TECfusions believes that this non-GAAP measures of financial results provide useful information to management and investors regarding certain financial and business trends relating to TECfusions' financial condition and results of operations. Management of TECfusions does not consider these non-GAAP measures in isolation or as an alternative to financial measures determined in accordance with GAAP. We have not reconciled the non-GAAP forward-looking information to their corresponding GAAP measures because we do not provide guidance for the various reconciling items such as provision for income taxes and depreciation and amortization, as certain items that impact these measures are out of our control or cannot be reasonably predicted without unreasonable efforts. You should review TECfusions' and its subsidiaries, financial statements, which will be included in Apex Treasury's proxy statement filings with the SEC, and not rely on any single financial measure to evaluate TECfusions' business. Other companies may calculate Net Income from Operations and other non-GAAP measures differently, and therefore TECfusion's Net Income from Operations and other non- GAAP measures may not be directly comparable to similarly titled measures of other companies.
TECFUSIONS INC. | CONFIDENTIAL 5 Business Overview of TECfusions TECfusions at a Glance What We Do • Design, build and lease AI-ready data centers through adaptive reuse of legacy industrial sites • Provide turnkey data center shell, cooling infrastructure and high-density, reliable power • Avoid providing the volatile, expensive and high-risk GPU/compute capacity layer • Serve hyperscalers and neo-cloud tenants requiring immediate, large-scale capacity • Operate a real estate landlord / developer business model with long- term contracted lease revenues Why We Win • Access to on-site power eliminates years of power grid interconnection delays • Adaptive reuse cuts construction timelines from 3–5 years to less than 6 months • Tax abatements and incentives at all sites reduce total development cost • Experienced management with proven ability to execute at scale and speed The Opportunity • AI compute demand is growing exponentially; power access is the critical limiting growth constraint • We believe only a handful of developers can deliver GW-scale capacity in rapid timeframes • TECfusions 3 GW+ portfolio under development positions the company to be among the largest U.S. data center developers • Access to public market debt and equity markets will accelerate site development and expansion into international markets
TECFUSIONS INC. | CONFIDENTIAL 6 TECFUSIONS INC. | CONFIDENTIAL 6 TECHNOLOGY ENVIRONMENT COMMUNITY T E C Integration of the latest cooling, power, and high- density configurations ensures immediate readiness and high performance. Through our 'Adaptive Reuse' strategy, we adopt environmentally friendly practices that align with corporate social responsibility goals while accelerating the deployment process. We demonstrate unwavering dedication to our local communities through active engagement as we continuously strive to be an ethical leader exceeding industry standards and delivering exceptional outcomes for our local communities.
TECFUSIONS INC. | CONFIDENTIAL 7 Market Overview Image for illustrative purposes only (AI-generated rendering) U.S. Data Center Market $126B → $277B 2025 → 2033 | 10.4% CAGR U.S. AI Data Center Market $35B → $167B 2025 → 2033 | 21.7% CAGR Key Demand Drivers AI Inference Expansion Inference workloads projected at ~2/3 of AI compute by end of 2026 (vs. 1/3 in 2023), driving sustained demand for low-latency, high- density colocation Persistent Supply Tightness 25.3 GW under construction across the Americas with ~89% pre-committed before delivery Power-Constrained Growth Record U.S. leasing expected in 2026; power availability is the primary bottleneck for site selection Source: https://www.grandviewresearch.com/industry-analysis/data-center-market-report https://www.deloitte.com/us/en/insights/industry/power-and-utilities/data-center-infrastructure-artificial-intelligence.html https://www.cbre.com/insights/reports/north-america-data-center-trends-h1-2025 https://www.cushmanwakefield.com/en/insights/americas-data-center-update
TECFUSIONS INC. | CONFIDENTIAL 8 3+ GW Capacity Buildout Over The Next Five Years Speed-to-Market Model Sustainability AI & HPC Ready Attractive Growth Profile Non-utility-dependent power leveraging on-site gas generation and other renewables High-density configurations purpose-built for GPU clusters, neocloud providers, and enterprise AI workloads Projected strong revenue growth trajectory with expanding margins as our data center portfolio scales and contracted capacity ramps Adaptive reuse of industrial facilities enables deployment in months vs. years — critical differentiator vs. greenfield Expanding portfolio across strategic U.S. locations with near-term capacity to serve hyperscalers and AI compute demand Experienced Management Proven operators with deep experience in data center development, power infrastructure, and capital markets 8 Image for illustrative purposes only (AI-generated rendering) Investment Opportunity Highlights
TECFUSIONS INC. | CONFIDENTIAL 9 TECFUSIONS INC. | CONFIDENTIAL 9 Business Combination – Illustrative Transaction Overview Transaction Highlights Sidley Austin LLP Estimated Sources & Uses ($ Millions) (7) Assumes estimated $350 million of cash proceeds from Apex Treasury's Trust at $10.00 per share. (8) Assumes $35 million PIPE raise. (9) Includes estimated banker fees, Apex Treasury fees and TECfusions fees; excludes PIPE placement fees. Shares (Millions) % Own. TECfusions Inc (1) 400 89.0% 3.50 0.8% SPAC Public Shareholders (3) 34.47 7.6% SPAC Sponsor (4) 11.49 2.6% PIPE Investors (2) SOURCES TECfusions Rollover Equity $4,000 Cash in Trust (7) $350 PIPE (8) $35 Total Sources $4,385 USES Equity to TECfusions $4,000 Cash to Balance Sheet (6) $360 Transaction Expenses (9) $25 Total Uses $4,385 Valuation • TECfusions valuation of $4.0B • Transaction implies ~$4.2B pro-forma EV • Combined company to trade on Nasdaq – ticker "TECF" Financing • Assumed $35M common PIPE • Expected uses includes data center ramps on existing sites and further expansion Structure • TECfusions shareholders to rollover 100% of equity • Expected to hold ~89% of pro-forma equity (1) • Minimum cash at closing (prior to expenses) at least $45M Apex Treasury Advisors & Counsel Pro Forma Share Ownership Revere Securities LLC | Paul Hastings LLP TECfusions (1) Pro forma TECfusions share count calculated based on rollover equity of $4.0 billion and a price of $10.00 per share. (2) Pro forma PIPE investors share count calculated based on an estimated $35 million PIPE raise at $10.00 per share. (3) Pro forma SPAC Public Shareholders share count is based on $344.7 million in gross cash proceeds (exclusive of an estimated PIPE raise), which converts into 34.47 million shares assuming $10.00 per share. Share count assumes no redemptions by Apex Treasury shareholders. Share count does not include any outstanding out-of-the-money warrants at $11.50 per share exercise price. (4) SPAC Sponsor share count is based on 11,490,000 founder shares of Apex Treasury, assuming no redemptions or transfer of sponsor shares to institutional shareholders (5) Assuming no redemptions. (6) Assumed cash in trust at closing plus PIPE Investment proceeds after payment of estimated transaction expenses. • During Q4 2026 Expected Close
TECFUSIONS INC. | CONFIDENTIAL 10 Competitive Positioning Slow + Grid-Dependent Traditional developers 12-24 mo. build cycles Fast + Vertically Integrated <6 mo. deployment | On-site power Slow + No Owned Infra No owned power / facilities Fast + Power-Only BTM (Behind-the-Meter) Power-as-a-Service Speed to Market → Infrastructure Independence TECFusions: <6 mo. deployment | On-site power generation | AI-ready high density ↑
TECFUSIONS INC. | CONFIDENTIAL 11 The TECfusions Portfolio Today Clarksville, VA First-to-Market AI Data Center PHASE 1 — 37 MW (Fully leased) 1 Power secured / entitled / design locked / equipment procured 2 Shell/civil built / MEP installed / energised 3 L1–L5 commissioned / operations accepted 4 IT deployed / IT burn-in 5 Live compute — fully leased PHASE 2 — 220 MW expansion (1) (2) 1 Power secured / entitled / design locked / equipment procured 2 Shell/civil built / MEP installed / energising — in progress 3 L1–L5 commissioned / operations accepted 4 IT deployed / IT burn-in 5 Live compute Tucson, AZ Neocloud Data Center PHASE 1 — 16 MW (Fully leased; additional 12 MW contracted) 1 Power secured / entitled / design locked / equipment procured 2 Shell/civil built / MEP installed / energized 3 L1–L5 commissioned / operations accepted 4 IT deployed / IT burn-in 5 Live compute — fully contracted PHASE 2 — 20 MW (2) expansion 1 Power secured (AZ grid) / entitled / design locked / equipment procured 2 Shell/civil built / MEP installed / energizing — in progress 3 L1–L5 commissioned / operations accepted 4 IT deployed / IT burn-in 5 Live compute New Kensington, PA (Keystone Connect) Flagship Adaptive Reuse Campus PHASE 1 — 2 MW (Fully leased; additional 10 MW contracted) 1 Power secured / ground lease executed / design locked / equipment deposits placed 2 Shell/civil — adaptive reuse underway / MEP design progressing 3 L1–L5 commissioned / operations accepted 4 IT deployed / IT burn-in 5 Live compute — 2MW Live / 10MW build out PHASES 2–5 — 3 GW (2) build plan (5-year pipeline to 2031) 1 Power secured (on-site) / site entitled / phasing design in progress 2 Shell/civil built / MEP installed / energised 3 L1–L5 commissioned / operations accepted 4 IT deployed / IT burn-in 5 Live compute — 3 GW pipeline, build-out to 2031 Complete In progress Not yet commenced (1) 42 MW currently under contract. (2) Based on management estimates as of the date of this presentation, which is preliminary and subject to significant risks of change.
TECFUSIONS INC. | CONFIDENTIAL 12 Fast & Vertical: Used Factory Plant Reconfiguration CORE CONCEPT TECfusions acquires and repurposes existing industrial buildings into sustainable, high-performance data centers—delivering faster deployment, lower environmental impact, and infrastructure that serves both the digital economy and local communities. Time & Cost Advantage • Time-to-Market: Our Adaptive Reuse model makes us significantly faster than average greenfield construction, driven by existing zoning, structural shell, and expected utility access • Capital Efficiency: significantly lower upfront CapEx vs. ground-up builds through reuse of existing site infrastructure • Permitting & Zoning: Industrial-zoned sites generally reduce entitlement risk, approval cycles, and environmental review complexity vs. greenfield parcels • Infrastructure in Place: Existing power corridors, utility easements, road access, drainage, and structural shells materially reduce scope, cost, and schedule risk Competitive Differentiation • Time-to-Market: Competitors typically optimize for scale over speed, accepting multi-year development cycles and higher upfront capital intensity • Multidisciplinary Due Diligence: Adaptive reuse demands integrated evaluation across engineering, power, environmental, zoning, and financial domains—capabilities many competitors are not structured to execute simultaneously • Target Portfolio: Focus on underutilized or legacy industrial properties in power-constrained or strategically emerging markets • Capital Deployment: Adaptive reuse allows TECfusions to deploy capital incrementally, matching supply with contracted demand while preserving balance-sheet efficiency We believe TECfusions competes where greenfield developers may have difficulties unlocking speed, capital efficiency, and scalability through its disciplined reuse of existing industrial infrastructure. Source: Management estimates.
TECFUSIONS INC. | CONFIDENTIAL 13 Fast & Vertical: On-Site Power Generation A HUGE DIFFERENTIATOR VS. COMPETITORS TECfusions integrates on-site power generation directly into its data center development model—structurally separating itself from many of the traditional operators that remain dependent on constrained utility grids. Power Economics • Predictable, contracted energy pricing; reduced exposure to congestion pricing, demand charges, and curtailment risk • Modular MW-block deployment aligned to leasing for rapid energization and scalable expansion • Integrated power + optimized cooling supports lower total delivered $/kW and improved operating leverage Reliability & Control • Utility-independent uptime and enterprise- grade SLAs for hyperscale and AI workloads • Reduced exposure to grid outages, congestion events, load shedding, and interconnection delays • Purpose-built turbine-led and microgrid- ready architectures with layered redundancy for always-on compute vs. Competitors • Most operators rely on grid power, subject to congestion, demand charges, and third- party interconnection timelines • New capacity constrained by multi-year utility queue backlogs and regional transmission approvals • TECfusions develops power, site, and facility as one integrated system—enabling faster energization and cost control
TECFUSIONS INC. | CONFIDENTIAL 14 Power Strategy: Grid-Dependent vs. TECfusions Integrated Model (1) Grid-Dependent Model Utility Grid Substation Data Center • Reliant on utility grid capacity • Long interconnection queues • Exposed to rate volatility • Limited scalability in constrained markets • Schedule risk tied to utility timelines TECfusions Integrated Model (1) On-Site Power Generation TECfusions Power Control Data Center Campus • On-site power owned & controlled • Grid as supplement, not dependency • Predictable energy costs • Faster deployment in constrained markets • Scalable capacity beyond grid queues TECfusions removes grid dependency by integrating on-site power—unlocking speed, cost control, and scalability that is difficult for traditional models to replicate. POWER AS A STRATEGIC ADVANTAGE vs. (1) Applicable model at New Kensington, PA (Keystone Connect) location
TECFUSIONS INC. | CONFIDENTIAL 15 Keystone Connect: TECfusions' Competitive Edge in Action REFERENCE DEPLOYMENTS TECfusions hosts a large tenant-owned GPU cluster (Clarksville, VA) and a large AMD-based AI deployment (Tucson, AZ)—a deployment where the client has contracted to duplicate at Keystone Connect. Expedited Deployment On-Site Power & Resilience Community Impact • 300 MW Phase I goal is to be operational in 18–24 months, with ambition to scale to up to 1.1 GW IT load • Phases 2-5: 5-year goal to achieve full build out of up to 3 GW (1) total • Adaptive reuse: Shuttered industrial site transformed into AI-ready campus— minimizing disruption • Significantly faster than the average greenfield construction via existing zoning, shell, and utility access • 675+ MW (2) potential tenant pipeline • Aiming to achieve 99.999% uptime via on- site natural gas-fired microgrids with layered redundancy • Significantly lower CapEx through turnkey microgrid integration vs. traditional builds • Grid-independent: Eliminates utility queue backlogs, congestion pricing, and interconnection delays • Clean energy aligned: Low-emission turbines supporting Pennsylvania clean energy goals under Title 17 • Resilient by design: Strengths during peak demand or outages, not vulnerabilities • Investment across construction, power generation, and tenancy • Construction jobs expected to be created in Years 1–2; with many permanent roles (avg. salary $85K+) • Significant expected annual economic impact at full build-out, bolstering tax revenue for schools and infrastructure • Focused on domestic sourcing of Transformers, HVAC, immersion cooling— stimulating Pennsylvania fabrication • Brownfield reuse: Preserving Pennsylvania landscapes while fostering local manufacturing sectors Keystone Connect: America-first power, AI-ready infrastructure, and record deployment speed—keeping critical compute on American soil. (1) Based on management estimates of anticipated power capacity to be built within the next 5 years. (2) Based on management estimates of contracts with potential tenants which may be executed within the next 2 years as of the date of this presentation. This estimate is preliminary and subject to significant risks of change.
TECFUSIONS INC. | CONFIDENTIAL 16 TECfusions — A Differentiated, Competitive Player Infrastructure Commercial Edge & Customer Traction Market & Location Strong Data Center Experience Operational at 3 U.S. sites Management experience Scalable Data Centers 3+ GW pipeline enables economies of scale; expected to attract large premium tenants AI-optimized, High-density Liquid cooling and modular configs for hyperscale AI compute Contracts with Key Industry Players 1 GW anchor tenant with right-of-first-refusal; Existing leases with two leading companies Flexible Offerings and Scalability Shell, colocation and turnkey options for hyperscalers and neoclouds Execution Credibility Clarksville built and revenue-generating in just 3 months; proven at speed Sales Relationships Experienced CRO leading hyperscale leasing and enterprise sales Source: TECFusions Company materials. Government Relationships Department of Energy and state governments focused on data center opportunities Strategic Hubs Sites in Virginia, Arizona and Pennsylvania Reliable Power Data centers can operate entirely from on-site power; supports 24x7 compute Favorable Regulation Virginia, Arizona and Pennsylvania state governments actively support AI data center buildout Stable Environment Tax abatements, incentives and long-term contracted revenues reduce risk.
TECFUSIONS INC. | CONFIDENTIAL 17 SPAC Management Team Apex Treasury Corp. (Nasdaq: APXT) Ajmal Rahman Chairman of the Board & Co-CEO 30+ years in global financial markets. Former MD & Regional Head, Merrill Lynch Asia ECM. Led $20B+ in equity transactions. M.A. Law, University of Cambridge Hugh Cochrane Co-Chief Executive Officer 30+ years spanning finance, technology & blockchain. Co-founded Cryptogon EOS LP (London's first blockchain VC fund). B.A., Government & Foreign Affairs, University of Virginia Paul Sykes Chief Financial Officer 30+ years in public & private company finance. Former CFO of Springbig Holdings (led de-SPAC merger, $50M+ equity financing). B.Sc. Economics (First Class), Univ. of Leicester; ICAEW, ACT James McNaught-Davis Head of Mergers & Acquisitions 35+ years in M&A, PE & corporate development. Former MD/Partner at Warburg Pincus. Led €280M clean tech PE funds at WHEB. M.B.A., Wharton School; M.A., University of Cambridge
TECFUSIONS INC. | CONFIDENTIAL 18 Experienced data center veterans driving innovation, growth, and value creation DM Denis Minihane Chief Executive Officer Irish-born and internationally experienced business leader with over 33 years spanning government service, the private sector, and multinational enterprise. Beginning his career in the Irish government—where he was recognized as one of the youngest employees appointed—he has built a strong foundation at the intersection of policy and public service. Andrea Judkins President 35 years of comprehensive achievements within Business, Financial, Process and Entrepreneurial platforms. Focused on keeping the organization running smoothly by overseeing daily operations and ensuring internal systems work efficiently, translating executive strategy into practical policies, processes, and cross-department coordination. Paul Sykes Chief Financial Officer (designate) MH Mark Hamilton Chief Operating Officer Brings over three decades of experience as a senior leader with a demonstrated history of working in the digital infrastructure industry. Skilled in IT Service Management, Data Center Management, Engineering, and Cross- functional Team Leadership. ST Meytal Cohen Marco Chief Legal Officer Licensed in New York and Israel with over 20 years of experience leading legal departments for multinational corporations. Deep expertise in corporate law, cross-border transactions, complex commercial contracts, litigation, and regulatory compliance. Her career spans energy, financial services, manufacturing, construction, and infrastructure. SH Steve Hackenburg Chief Revenue Officer Brings more than 20 years of experience across the global data center and digital infrastructure ecosystem. Began his career with the Uptime Institute and has since held senior leadership roles spanning hyperscale leasing, enterprise sales, and critical supply-chain strategy. ED Eric Daniels Chief Engineering Officer Over two decades of professional leadership in Electrical Design, Construction, and Operational Management of data centers and critical facilities. He has designed hyperscale data centers for multiple "household name" technology companies across the country. Key skills include high- and medium-voltage power generation and distribution. AJ . TECfusions Leadership Team Over 30 years of experience spanning public and private companies, with deep expertise in IPOs, mergers and acquisitions, structured finance, and international financial leadership . Currently serves as CFO of Apex Treasury Corp. and previously served as CFO of Nasdaq-listed Springbig Holdings; dmg information, the technology division of London stock exchange listed DMGT plc and as Group Treasurer at EMAP plc
TECFUSIONS INC. | CONFIDENTIAL 19 Founder Significant experience in power and data center development Simon Tusha Founder Professional Background Simon Tusha brings over two decades of data center expertise spanning across five continents, with senior roles at leading global technology and infrastructure organizations. TECfusions, Founder, 2023–present. Founded to convert under utilized industrial assets into AI-ready, power-generating data center campuses. Defined the strategy for on-site generation and adaptive reuse across a 30+ site global portfolio, drawing on 20+ years of sector experience and 1,500+ completed data center projects. True Data Centers/Tusha & Associates, Owner/Founder, 2011–present. Consultancy delivering management, sales and design services to major data center operators. Active in enterprise and government infrastructure development. Quality Technology Services, LLP, Chief Technology Officer, 2009–2011. Corporate officer driving brand growth, business development, M&A, real estate and equity financing. Led data center development program that grew company valuation from $300M to over $1.3B. Google, International Director, Strategic Development, 2007–2009. Directed mergers, acquisitions and development projects for Google's global data center infrastructure. Negotiated major commercial transactions with utilities, governments and landowners across North America, Latin America, Europe, the Middle East, Asia and Australia. Mission Critical Enterprises Inc., Founder & CEO, 2000–2007. Data center architecture and design firm. Executed strategic projects spanning acquisition, development, capital formation, joint ventures, technology licensing, site selection and major real estate transactions. "The key is to align engineering and energy usage with the actual needs of the client. By mapping out energy consumption to what is being delivered to the end user, we can design more efficient systems that not only meet operational demands but also drive sustainability forward. It's about understanding the big picture and recognizing that working together will benefit both the industry and the communities we serve." (CIOinfluence) See Risk Factors on Slide 22
TECFUSIONS INC. | CONFIDENTIAL 20 Summary Power, Cooling & Space TECfusions provides power, cooling and space to the high-growth AI Data Center market, serving hyperscalers and neo-cloud tenants requiring immediate, large-scale capacity. Strong U.S. Government Support The Trump administration has provided strong policy support for AI as a national strategic priority, including invoking the Defense Production Act of 1950 (April 2026) to finance large-scale energy assets. Key TECfusions Differentiators Adaptive reuse model, proven speed-to- market capability, and proprietary access to established on-site power — eliminating years of grid interconnection delays. Proven Management Team Experienced leadership with a proven track record of executing at scale and speed across three operational U.S. data center locations, including Kensington Connect — one of the largest data center projects in the continental U.S. Attractive Financial Profile (1) Compelling growth trajectory with positive Net Income from Operations targeted from 2028 and $1.5B+ Net Income from Operations within a 3-year timeline, underpinned by long- term contracted lease revenues. (1) See assumptions on Slide 25
TECFUSIONS INC. | CONFIDENTIAL 21 Risk Factors Risks Relating to the Business Combination • TECfusions's business relationships may be subject to disruption due to uncertainty associated with the business combination • Third parties may terminate or alter existing contracts or relationships with TECfusions • Completion of the business combination is subject to certain conditions and if these conditions are not satisfied, waived or fulfilled in a timely manner, the business combination may be delayed or not completed within the anticipated timeframe or at all. • After completion of the business combination, TECfusions may fail to realize the anticipated benefits of the business combination. • The historical financials of TECfusions as provided in this presentation may not be an indication of the future financial condition or results of operations of TECfusions following the consummation of the business combination. • The financial forecasts are based on various assumptions that may not be realized. • Failure to complete the business combination could negatively impact the stock price and the future business and financial results of TECfusions. • Potential litigation against TECfusions could result in substantial costs, an injunction preventing the completion of the business combination and/or a judgment resulting in the payment of damages. Risks Relating to TECfusions • The construction of the TECfusions data centers involves significant risks and uncertainties. • The TECfusions data centers are subject to complex governmental regulation, including environmental regulation, and may subject TECfusions to monetary penalties. • TECfusions has a limited number of suppliers for significant components of the equipment it uses to build and operate its platform and provide its solutions and services. Any disruption in the availability of these components could delay TECfusions' ability to expand or increase the capacity of its infrastructure or replace defective equipment. • If TECfusions' data center providers fail to meet the requirements of its business, or if the data center facilities experience damage, interruption, or a security breach, TECfusions' ability to provide access to its infrastructure and maintain the performance of its network could be negatively impacted. • A substantial portion of TECfusions' revenue is driven by a limited number of its customers, and the loss of, or a significant reduction in, spend from one or a few of its top customers would adversely affect TECfusions' business, operating results, financial condition, and prospects. • If TECfusions fails to efficiently enhance its platform and develop and sell new solutions and services and respond effectively to rapidly changing technology, evolving industry standards, changing regulations, and changing customer needs, requirements, or preferences, TECfusions' platform may become less competitive. • The broader adoption, use, and commercialization of artificial intelligence ("AI") technology, and the continued rapid pace of developments in the AI field, are inherently uncertain. Failure by TECfusions' ability to keep up with evolving AI technology requirements and regulatory frameworks, could have a material adverse effect on TECfusions' business, operating results, financial condition, and prospects. • TECfusions' operations require substantial capital expenditures, and it will require additional capital to fund its business and support its growth, and any inability to generate or obtain such capital on acceptable terms, if at all, or to lower our total cost of capital, may adversely affect TECfusions' business, operating results, financial condition, and prospects. • TECfusions' substantial indebtedness could materially adversely affect its financial condition, its ability to raise additional capital to fund its operations, its ability to operate its business, its ability to react to changes in the economy or its industry, its ability to meet its obligations under its outstanding indebtedness and could divert its cash flow from operations for debt payments, and it may still incur substantially more indebtedness in the future. • TECfusions' reputation, business and results of operations may be adversely affected by its founder's and majority shareholder's prior criminal convictions and alleged misconduct.
TECFUSIONS INC. | CONFIDENTIAL 22 Risk Factors Risks Relating to the SPAC • As a result of becoming a public company, TECfusions will be obligated to develop and maintain proper and effective internal controls over financial reporting in order to comply with Section 404 of the Sarbanes-Oxley Act. TECfusions may not complete its analysis of its internal control over financial reporting in a timely manner, or these internal controls may not be determined to be effective, which may adversely affect investor confidence in TECfusions and, as a result, the value of TECFusions' shares. • The JOBS Act will allow TECfusions to postpone the date by which it must comply with certain laws and regulations intended to protect investors and to reduce the amount of information TECfusions provides in its reports filed with the SEC. TECfusions cannot be certain if this reduced disclosure will make its ordinary shares less attractive to investors. • The requirements of being a public company may strain TECfusions' resources and distract its management, which could make it difficult to manage the business, particularly after TECfusions is no longer an "emerging growth company". • If there are substantial redemptions, there will be a lower float of TECfusions' common stock outstanding, which may cause further volatility in the price of TECfusions' securities and adversely impact TECfusions' ability to secure financing following the closing of the business combination • Securities of companies formed through SPAC mergers such as the proposed transaction may experience a material decline in price relative to the share price of the SPAC prior to the merger. • The valuation of TECfusions in the business combination agreement will be subject to market factors after the shares of the resulting issuer are listed on the NASDAQ stock exchange, and there is no guarantee that the trading price of the shares will not fall. • An active, liquid trading market for TECfusions' common stock may not develop, which may limit your ability to sell your shares. • If securities or industry analysts do not publish research or reports about TECfusions' business, if the publish unfavorable research or reports, or adversely change their recommendations regarding TECfusions' common stock or if its results of operations do not meet their expectations, TECfusions' stock prices and trading volume could decline. • TECfusions has broad discretion to use the proceeds from the proposed transaction, and its investment of those proceeds may not yield a favorable return. • TECfusions could be subject to securities class action litigation. • Apex Treasury, officers and directors of the SPAC (the "SPAC Board") have agreed to vote in favor of the proposed business combination, regardless of how the SPAC's public shareholders vote. • Apex Treasury, certain members of the SPAC Board and certain officers of the SPAC have interests in the proposed business combination that are different from or are in addition to public shareholders, which may include direct or indirect ownership of the SPAC's founder shares and/or private placement units, each of which will lose their value if a business combination is not consummated. • Apex Treasury and the SPAC Board have potential conflicts of interest in recommending that shareholders vote in favor of approval of the proposed business combination proposal and approval of the other proposals in connection therewith. • The SPAC's shareholders will experience dilution as a consequence of the proposed business combination • Apex Treasury, the SPAC Board, officers, advisors and their affiliates may elect to purchase shares or rights from public shareholders of the SPAC, which may influence the vote on the proposed business combination and reduce the public "Float" of the SPAC shares. • There is no certainty that the closing conditions to the proposed business combination are satisfied, and the SPAC and/or TECfusions may waive one or more of the closing conditions to the proposed business combination • The business combination agreement may be terminated upon the occurrence of certain events and circumstances.
TECFUSIONS INC. | CONFIDENTIAL 23 APPENDIX Supporting Materials
TECFUSIONS INC. | CONFIDENTIAL 24 TECfusions : 3-Year Financial Forecast 2026 $110M Total Revenue 2027 $289M Total Revenue 2028 $2.14B Total Revenue $4.81B $6.77B Total Expenses ($23M) Net Income ($20M) Interest Expense ($66M) D&A ($41M) Net Income from Operations $87M Total Expenses ($47M) Net Income ($10M) Interest Expense ($145M) D&A ($107M) Net Income from Operations $242M Total Expenses ($252M) Net Income $189M Interest Expense ($1.0B) D&A ($681M) Net Income from Operations $1.88B ($652M) ($1.02B) Key assumptions • Revenue is primarily derived from recurring monthly fees based on the quantum of power per client at a fixed price per kW, with annual escalators and subject to multi-year contractual obligations. • Additional revenue is assumed to be derived through the build out of compute capacity and is assumed to be placed in service with the addition of 42 MW during 2026, a further 350 MW during 2027 and a further 1,045 MW during 2028. These expansions are factored into the revenue forecast during various points during each year. • At the end of 2026, 2027 and 2028 the total capacity in service, and generating revenue, is assumed to be 92 MW, 422 MW and 1,467 MW respectively. • Additional revenue is assumed to accrue from having an on-site power plant operating at New Kensington from Q4 '27 onwards and is assumed to contribute approximately $0.5B in revenue during 2028. • Capital expenditures, incurred to build out the additional capacity, including the New Kensington power plant, are assumed to be $1.4B, $16.9B and $16.1B in each of 2026, 2027 and 2028, respectively, and are assumed to be debt financed with annual interest rates in the range of approximately 6% to 13%. • The capitalized data center infrastructure costs and power plant costs are assumed to be depreciated over the estimated useful life of 25 years. Key risks • TECfusions may be unable to expand capacity at the pace forecasted, in which case revenue may be be less than forecast. • TECfusions may be unable to secure the cash required to adequately fund its capital expenditure requirements on terms acceptable to TECfusions, at the assumed interest rates, noted, or at all. • TECfusions may be unable to acquire customers to occupy its data centers on terms subject to the above assumptions, or at all, which would materially affect projected revenue.