BIII 8-K
Black Spade Acquisition III Co (BIII)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 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)
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
| (Address of Principal Executive Offices) | (Zip Code) |
| Registrant’s telephone number, including area code: + |
| Not Applicable |
| (Former name or former address, if changed since last report) |
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 (see General Instruction A.2. below):
| 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 | ||
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.
Business Combination Agreement
On August 27, 2026, Black Spade Acquisition III Co, an exempted company incorporated with limited liability under the laws of the Cayman Islands (“Black Spade III” or the “Company”) entered into a Business Combination Agreement (the “Business Combination Agreement”) with Astrum Space Inc, an exempted company incorporated with limited liability under the laws of the Cayman Islands (“Astrum”), and Astrum Networks Pte. Ltd., a company incorporated under the laws of Singapore and a direct wholly-owned subsidiary of Astrum (“Astrum Singapore”), pursuant to which, among other transactions, on the terms and subject to the conditions set forth therein, Astrum will merge with and into Black Spade III (the “Merger”), with Black Spade III surviving the Merger (the “Merger Surviving Company”), following which Astrum Singapore will become a direct wholly owned subsidiary of the Merger Surviving Company. The Merger and the other transactions contemplated by the Business Combination Agreement are hereinafter referred to as the “Business Combination”.
The Business Combination
Pursuant to the Business Combination Agreement, among other things, immediately prior to the effective time of the Merger (the “Merger Effective Time”), (i) each unit of Black Spade III (“BIII Unit”) that is issued and outstanding immediately prior to the Merger Effective Time shall be automatically detached and the holder thereof shall be deemed to hold one Class A ordinary share of Black Spade III, par value $0.0001 per share (“BIII Class A Ordinary Share”), and one-third of a redeemable warrant of Black Spade III (“BIII Public Warrant”) (the "Unit Separation"); and (ii) each holder of a Class B ordinary share of Black Spade III, par value $0.0001 per share (“BIII Class B Ordinary Share”) that is issued and outstanding immediately prior to the Merger Effective Time will elect to convert each such share into one BIII Class A Ordinary Share, and each BIII Class B Ordinary Share shall no longer be outstanding and shall be canceled, and each former holder of BIII Class B Ordinary Shares shall thereafter cease to have any rights with respect to such BIII Class B Ordinary Shares (the “Conversion”).
At the Merger Effective Time and as a result of the Merger, (i) the separate corporate existence of Astrum will cease and Black Spade III will continue as the Merger Surviving Company; (ii) the second amended and restated memorandum and articles of association of Black Spade III (the “Listing Articles”) will be adopted and become effective; (iii) the Merger Surviving Company will be renamed “Astrum Space Company” (or such other name as may be agreed by the parties) and will trade on the NYSE under a new ticker symbol; (iv) each BIII Class A Ordinary Share (including the BIII Class A Ordinary Shares issued as a result of the Conversion) that is issued and outstanding immediately prior to the Merger Effective Time (other than BIII Class A Ordinary Shares that are treasury shares, validly redeemed shares or dissenting shares) shall remain issued and outstanding as Class A ordinary shares of the Merger Surviving Company (“Listco Shares”); (v) the ordinary shares of Astrum issued and outstanding immediately prior to the Merger Effective Time and held by Astrum Space Holding Inc (“Astrum Holding”) shall be cancelled in exchange for the right of Astrum Holding to receive 100,000,000 Listco Shares; (vi) each BIII Class A Ordinary Share that is held immediately prior to the Merger Effective Time by Black Spade III as treasury shares, including shares redeemed in connection with the exercise of redemption rights by Black Spade III shareholders (the “BIII Shareholder Redemption”), shall be cancelled and cease to exist; (vii) each BIII Class A Ordinary Share that has been validly redeemed pursuant to the BIII Shareholder Redemption shall be cancelled and cease to exist and shall thereafter represent only the right to be paid a pro rata share of the funds held in Black Spade III’s trust account; and (viii) each BIII Class A Ordinary Share that is held by any person who has validly exercised and not effectively withdrawn or lost their right to dissent from the Merger in accordance with Section 238 of the Companies Act (As Revised) of the Cayman Islands will be cancelled and carry no right other than the right to receive the payment of the fair value of such share determined in accordance with such Section 238.
2
At the Merger Effective Time, each issued and outstanding warrant of Black Spade III (“BIII Warrant”), including each BIII Public Warrant and each warrant (i) originally sold to Black Spade Sponsor LLC III, a limited liability company registered under the laws of the Cayman Islands (the “Sponsor”), and Black Spade III’s IPO underwriters in a private placement in connection with Black Spade III’s initial public offering or (ii) issued in connection with the conversion of working capital loans made to Black Spade III by the Sponsor or its affiliated persons (“BIII Private Warrant”), will continue to be exercisable for Listco Shares on the same terms and conditions as the applicable BIII Warrant.
The Business Combination has been approved by the boards of directors of Black Spade III, Astrum and Astrum Singapore.
Conditions to Closing
The consummation of the Business Combination (the “Closing” and the date of the Closing, the “Closing Date”) is conditioned upon, among other things: (i) the approval for listing of Listco Shares to be issued in connection with the Business Combination on the New York Stock Exchange (“NYSE”); (ii) the absence of any law or governmental order enjoining, prohibiting or making illegal the consummation of the Business Combination; (iii) the receipt of the required approval by the Black Spade III shareholders (the “BIII Shareholder Approval”); (iv) the effectiveness of the Registration Statement (as defined below) in accordance with the Securities Act of 1933, as amended (the “Securities Act”) and the absence of any stop order issued by the U.S. Securities and Exchange Commission (the “SEC”) with respect to the Registration Statement.
The obligations of Black Spade III to consummate the Business Combination are also conditioned upon, among other things: (i) the accuracy of the representations and warranties of Astrum and Astrum Singapore (subject to certain materiality standards set forth in the Business Combination Agreement); (ii) the material compliance by Astrum and Astrum Singapore with their pre-closing covenants; (iii) the absence of any event since the date of the Business Combination Agreement that has had, or would reasonably be expected to have, a material adverse effect on the business, results of operations or financial condition of Astrum and its subsidiaries, taken as a whole (subject to certain exceptions set forth in the Business Combination Agreement); and (iv) Astrum Holding, as the sole shareholder of Astrum, having passed a special resolution approving the execution, delivery and performance of the Business Combination Agreement, the Plan of Merger and the consummation of the transactions, including the Merger.
The obligations of Astrum to consummate the Business Combination are also conditioned upon, among other things: (i) the accuracy of the representations and warranties of Black Spade III (subject to certain materiality standards set forth in the Business Combination Agreement); (ii) the material compliance by Black Spade III with its pre-closing covenants; and (iii) the absence of any event since the date of the Business Combination Agreement that has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ability of Black Spade III to timely consummate the Business Combination.
Covenants
The Business Combination Agreement includes customary covenants of the parties thereto with respect to operation of their respective businesses prior to consummation of the Business Combination and efforts to satisfy conditions for the consummation of the Business Combination. The Business Combination Agreement also contains additional covenants of the parties, including, among others, (i) a covenant providing for Black Spade III, Astrum and Astrum Singapore to cooperate in the preparation of the Registration Statement on Form F-4 required to be prepared in connection with the Business Combination (the “Registration Statement”), (ii) covenants requiring Black Spade III to call, convene and hold an extraordinary general meeting of the Black Spade III shareholders (the “BIII Extraordinary General Meeting”) to consider and vote upon the Business Combination and to provide the Black Spade III shareholders with the opportunity to effect a BIII Shareholder Redemption in connection therewith as promptly as reasonably practicable following the date that the Registration Statement is declared effective by the SEC under the Securities Act, (iii) covenants requiring Astrum to obtain the approval of the Business Combination by Astrum Holding, and (iv) covenants prohibiting Black Spade III and Astrum from, among other things, soliciting or negotiating with third parties regarding alternative transactions and agreeing to certain related restrictions. The Business Combination Agreement also provides that for two (2) years after Closing, the Sponsor will have the right to nominate one (1) director to the Board for a term not less than two (2) years on terms to be mutually agreed by the Merger Surviving Company and the Sponsor.
The Business Combination Agreement also provides that, during the period from the date of the Business Combination Agreement until the Closing, the parties shall use commercially reasonable efforts to raise equity or equity-linked financing or debt financings as mutually agreed by Black Spade III and Astrum, to be consummated no later than the Closing.
Under the Business Combination Agreement, Astrum has covenanted to maintain in full force and effect a letter of support dated August 21, 2026, pursuant to which Mr. Zhou Qingzhi, the founder of Astrum (the “Founder”), has committed to provide funding to the Astrum group in an aggregate amount of up to US$168,000,000 to support the operating, investing and financing activities of the Astrum Group, including the development and launch of the NEASTAR-1 satellite.
Prior to the Closing, Astrum shall cause all outstanding related party indebtedness owed by Astrum or any of its subsidiaries to be novated to Astrum Holding or otherwise forgiven or cancelled, such that no related party indebtedness will be reflected as a liability of Astrum or its subsidiaries for any post-Closing period.
3
Representations and Warranties
The Business Combination Agreement contains representations and warranties of Astrum and Astrum Singapore, relating to, among other things, corporate organization; the authorization, performance and enforceability against Astrum and Astrum Singapore of the Business Combination Agreement; required consents and filings; absence of conflicts; subsidiaries; capitalization of Astrum and its subsidiaries; financial statements; absence of undisclosed liabilities; absence of changes; litigation; compliance with laws; significant contracts; intellectual property; data privacy and security; employee benefits; labor matters; tax matters; insurance; real property; environmental matters; affiliate transactions; vendors; anti-corruption, anti-money laundering and sanctions matters; information supplied for inclusion in the Registration Statement; bankruptcy and insolvency; satellite matters; and broker’s fees.
The Business Combination Agreement contains representations and warranties of Black Spade III, relating to, among other things, corporate organization; the authorization, performance and enforceability against Black Spade III of the Business Combination Agreement; required consents and filings; absence of conflicts; litigation; capitalization; undisclosed liabilities; reports filed with the SEC, financial statements and internal controls; listing and compliance with NYSE rules; information supplied for inclusion in the Registration Statement and Proxy Statement; trust account; absence of changes; compliance with laws; material contracts; employees and employee benefit plans; properties; related party transactions; tax matters; anti-corruption, anti-money laundering and sanctions matters; independent investigation; and broker’s fees.
The representations and warranties made in the Business Combination Agreement will not survive the consummation of the Merger.
Sponsor Transaction Bonus
At the Closing, Astrum shall pay, or cause to be paid, to the Sponsor a transaction bonus equal to US$3,500,000 (the “Sponsor Transaction Bonus”) in consideration for the Sponsor’s efforts in facilitating the consummation of the Business Combination. The Sponsor Transaction Bonus shall be deducted from the trust account or paid from Astrum’s available funds concurrently at Closing.
Performance Shares
Following the Closing, if certain milestone events are achieved, the Merger Surviving Company shall issue, or cause to be issued, to Astrum Holding, up to a total of 25,500,000 Listco Shares (the “Performance Shares”), upon the terms and conditions set forth in the Business Combination Agreement.
If the Merger Surviving Company achieves any of the following milestone events (as evidenced by reasonable documentation) in respect of its geostationary earth orbit satellite named “NEASTAR-1” (each, a “Milestone Event”) on or prior to the applicable milestone date (each, a “Milestone Date”), Astrum Holding shall be entitled to receive the applicable number of Listco Shares:
| (a) | Upon full spacecraft integration, on or prior to February 1, 2028: 7,650,000 Listco Shares; | |
| (b) | Upon shipment to the launch site, on or prior to April 15, 2029: 10,200,000 Listco Shares; and | |
| (c) | Upon launch of the NEASTAR-1 satellite, on or prior to June 30, 2029: 7,650,000 Listco Shares. |
4
Equity Incentive Plan
Black Spade III will adopt an equity incentive plan (the “Equity Incentive Plan”) prior to the Closing, subject to the approval of the Black Spade III shareholders. The Equity Incentive Plan will provide for the grant of awards to employees, service providers, the Founder and other eligible participants of the Merger Surviving Company and its subsidiaries with a total pool of awards of Listco Shares not exceeding 20% of the aggregate number of Listco Shares outstanding as of immediately after the Closing on a fully diluted, as converted and as-exercised basis. The Equity Incentive Plan shall be effective upon and from the Closing.
Termination
The Business Combination Agreement may be terminated under certain customary and limited circumstances prior to Closing, including: (i) by written consent of all parties to the Business Combination Agreement; (ii) by either Astrum or Black Spade III if the Closing shall not have occurred on or before May 27, 2027, or such later date as may be mutually agreed by the Company and Black Spade III (the “Termination Date”), subject to certain exceptions; (iii) by either Astrum or Black Spade III if the consummation of the Merger is permanently enjoined, prohibited, deemed illegal or prevented by the terms of a final, non-appealable governmental order; (iv) by Black Spade III upon a breach of any representation, warranty, covenant or agreement set forth in the Business Combination Agreement by Astrum or Astrum Singapore if such breach gives rise to a failure of certain closing conditions to be satisfied and cannot be or has not been cured within 30 days following the receipt of notice from Black Spade III; (v) by Astrum upon a breach of any representation, warranty, covenant or agreement set forth in the Business Combination Agreement by Black Spade III if such breach gives rise to a failure of certain closing conditions to be satisfied and cannot be or has not been cured within 30 days following the receipt of notice from Astrum; or (vi) by either Astrum or Black Spade III if the BIII Shareholder Approval is not obtained at the BIII Extraordinary General Meeting (subject to any permitted adjournment or postponement).
The foregoing description of the Business Combination Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Business Combination Agreement, a copy of which is filed with this Current Report on Form 8-K (the “Current Report”) as Exhibit 2.1 and the terms of which are incorporated by reference herein.
The Business Combination Agreement contains representations, warranties and covenants that the respective parties made to each other as of the date of such agreement or other specific dates. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract among the respective parties and are subject to important qualifications and limitations agreed to by the parties in connection with negotiating the Business Combination Agreement. The Business Combination Agreement has been included to provide investors with information regarding its terms. It is not intended to provide any other factual information about the parties to the Business Combination Agreement. In particular, the representations, warranties, covenants and agreements contained in the Business Combination Agreement, which were made only for purposes of the Business Combination Agreement and as of specific dates, were solely for the benefit of the parties to the Business Combination Agreement, may be subject to limitations agreed upon by the contracting parties (including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Business Combination Agreement instead of establishing these matters as facts) and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors and reports and documents filed with the SEC. Investors should not rely on the representations, warranties, covenants and agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of any party to the Business Combination Agreement. In addition, the representations, warranties, covenants and agreements and other terms of the Business Combination Agreement may be subject to subsequent waiver or modification. Moreover, information concerning the subject matter of the representations and warranties and other terms may change after the date of the Business Combination Agreement, which subsequent information may or may not be fully reflected in Black Spade III’s public disclosures.
5
Certain Related Agreements
The Business Combination Agreement contemplates the execution of various additional agreements and instruments, on or before the Closing, including, among others, the following:
Shareholders Support and Lock-Up Agreement and Deed
Concurrently with the execution of the Business Combination Agreement, Black Spade III, Astrum and Astrum Holding, as the sole shareholder of Astrum, entered into a shareholders support and lock-up agreement and deed (the “Shareholders Support Agreement”), pursuant to which Astrum Holding agreed to, among other things, (i) attend any Astrum shareholder meeting to establish a quorum for the purpose of approving the Business Combination, and (ii) vote its shares of Astrum in favor of approving the transactions contemplated by the Business Combination Agreement.
In addition, pursuant to the Shareholders Support Agreement, Astrum Holding also agreed to certain lock-up restrictions. Specifically, (i) 4,000,000 Listco Shares held by Astrum Holding shall be free from lock-up restrictions upon Closing; (ii) 7,500,000 Listco Shares held by Astrum Holding shall be subject to lock-up restrictions for a period of twelve (12) months after the Closing Date; and (iii) the remaining Listco Shares held by Astrum Holding shall be subject to lock-up restrictions for a period of two (2) years after the Closing Date, in each case subject to customary exceptions.
The foregoing description of the Shareholders Support Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Shareholders Support Agreement, a copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
Sponsor Support and Lock-Up Agreement and Deed
Concurrently with the execution of the Business Combination Agreement, Astrum, Black Spade III, the Sponsor and certain other holders of BIII Class B Ordinary Shares and BIII Private Warrants (each, and together with the Sponsor, the “Sponsor Parties”) entered into a sponsor support and lock-up agreement and deed (the “Sponsor Support Agreement”), pursuant to which each Sponsor Party agreed to, among other things, (i) attend the BIII Extraordinary General Meeting to establish a quorum for the purpose of approving the Business Combination, and (ii) vote the BIII Class B Ordinary Shares, and any other Black Spade III securities acquired by such Sponsor Party in favor of approving the transactions contemplated by the Business Combination Agreement.
In addition, pursuant to the Sponsor Support Agreement, the Sponsor agreed to certain lock-up restrictions following the Closing: (i) 3,370,000 Listco Shares held by the Sponsor immediately after the Closing (representing converted BIII Class B Ordinary Shares) shall be free from lock-up restrictions upon Closing; (ii) 1,750,000 Listco Shares held by the Sponsor immediately after the Closing shall be subject to lock-up restrictions for a period of twelve (12) months after the Closing Date; and (iii) all BIII Private Warrants held by the Sponsor immediately after the Closing and all Listco Shares issuable upon exercise of such BIII Private Warrants shall be subject to lock-up restrictions until the date that is thirty (30) days after the Closing Date, in each case subject to customary exceptions. In addition, from and after the Closing until the date falling two (2) years after the Closing Date, the Sponsor shall be entitled to designate one (1) representative to attend all meetings of the board of directors of the Merger Surviving Company in a non-voting observer capacity.
The foregoing description of the Sponsor Support Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Sponsor Support Agreement, a copy of which is filed with this Current Report as Exhibit 10.2 and the terms of which are incorporated by reference herein.
6
Registration Rights Agreement
At the Closing, Black Spade III, the Sponsor, Cohen & Company Capital Markets, LLC, Chardan Capital Markets, LLC, Astrum Holding and certain other shareholders of Astrum and Black Spade III will enter into an Amended and Restated Registration Rights Agreement (the “Registration Rights Agreement”) containing customary registration rights for the parties thereof.
The foregoing description of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Registration Rights Agreement, the form of which is attached hereto as Exhibit 10.3 and is incorporated herein by reference.
Warrant Agreement Amendment
On August 27, 2026, Black Spade III and Continental Stock Transfer & Trust Company, in its capacity as warrant agent (the “Warrant Agent”), entered into Amendment No. 1 to the Warrant Agreement (the “Warrant Agreement Amendment”) to amend that certain Warrant Agreement, dated as of January 5, 2026, by and between Black Spade III and the Warrant Agent.
The foregoing description of the Warrant Agreement Amendment does not purport to be complete and is qualified in its entirety by the terms and conditions of the Warrant Agreement Amendment, a copy of which is filed with this Current Report as Exhibit 4.1 and the terms of which are incorporated by reference herein.
Item 7.01 Regulation FD Disclosure
On August 27, 2026, Black Spade III and Astrum issued a joint press release announcing their entry into the Business Combination Agreement. The press release is attached hereto as Exhibit 99.1 and incorporated by reference herein.
The foregoing Exhibit 99.1 is being furnished pursuant to Item 7.01 and will not be deemed to be filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise be subject to the liabilities of that section, nor will it be deemed to be incorporated by reference in any filing under the Securities Act or the Exchange Act, regardless of any general incorporation language in such filings. This Current Report will not be deemed an admission as to the materiality of any information in this Item 7.01, including Exhibit 99.1.
7
Forward-Looking Statements
This document contains certain forward-looking statements within the meaning of U.S. federal securities laws with respect to the proposed transaction between Black Spade III and Astrum, including statements regarding the benefits of the transaction, the anticipated benefits of the transaction, Astrum’s development, manufacture, launch, orbital deployment, commissioning, technical performance and commercial operation of NEASTAR-1, the anticipated launch window and mission profile, the capabilities and expected operating life of NEASTAR-1, Astrum’s planned satellite-to-device network, services, coverage and commercialization strategy, regulatory and market-access approvals, device and technology compatibility, Astrum’s ability to establish commercial and strategic relationships, Black Spade III’s or Astrum’s expectations concerning the outlook for Astrum’s business, productivity, plans and goals for satellite development and launches, deliveries and future operational improvements and capital investments, operational performance, future market conditions or economic performance and developments in the capital and credit markets and expected future financial performance, as well as any information concerning possible or assumed future results of operations. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “opportunity,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions. Forward-looking statements are their managements’ current predictions, projections and other statements about future events that are based on current expectations and assumptions available to Black Spade III and Astrum, and, as a result, are subject to risks and uncertainties. Any such expectations and assumptions, whether or not identified in this document, should be regarded as preliminary and for illustrative purposes only and should not be relied upon as being necessarily indicative of future results. Many factors could cause actual future events to differ materially from the forward-looking statements in this document, including but not limited to: (1) the occurrence of any event, change or other circumstances that could give rise to the termination of definitive agreements with respect to the proposed business combination; (2) the outcome of any legal proceedings that may be instituted against Black Spade III, the combined company or others following the announcement of the business combination and any definitive agreements with respect thereto; (3) the amount of redemption requests made by Black Spade III public shareholders and the inability to complete the business combination due to the failure to obtain approval of the shareholders of Black Spade III, to obtain financing to complete the business combination or to satisfy other conditions to closing; (4) changes to the proposed structure of the business combination that may be required or appropriate as a result of applicable laws or regulations or as a condition to obtaining regulatory approval of the business combination; (5) the ability to meet stock exchange listing standards following the consummation of the business combination; (6) the risk that the business combination disrupts current plans and operations of Astrum as a result of the announcement and consummation of the business combination; (7) the ability to recognize the anticipated benefits of the business combination; (8) costs related to the business combination; (9) risks associated with changes in laws or regulations applicable to Astrum’s business and Astrum’s international operations; (10) the possibility that Astrum or the combined company may be adversely affected by other economic, geopolitical, business, and/or competitive factors; (11) Astrum’s ability to successfully develop, launch and operate satellites and to meet technical and commercial milestones; and (12) risks related to the space industry, including launch delays, satellite failures and regulatory changes. The foregoing list of factors is not exhaustive. Forward-looking statements are not guarantees of future performance. You should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors” section of Black Spade III’s registration statement on Form F-4 to be filed by Black Spade III with the SEC, and other documents filed by Black Spade III and/or Astrum from time to time with the SEC. These filings identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements. Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and all forward-looking statements in this document are qualified by these cautionary statements. Astrum and Black Spade III assume no obligation and do not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise, except to the extent required by applicable law. Neither Astrum nor Black Spade III gives any assurance that either Astrum or Black Spade III will achieve its expectations. The inclusion of any statement in this communication does not constitute an admission by Astrum or Black Spade III or any other person that the events or circumstances described in such statement are material.
Additional Information and Where to Find It
This document relates to a proposed transaction between Black Spade III and Astrum. This document does not constitute an offer to sell or exchange, or the solicitation of an offer to buy or exchange, any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, sale or exchange would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. Black Spade III intends to file a registration statement on Form F-4 that will include a proxy statement of Black Spade III and a prospectus of Black Spade III with the SEC. After the registration statement is declared effective, the definitive proxy statement/prospectus will be sent to all Black Spade III shareholders as of a record date to be established for voting on the proposed transaction. Black Spade III also will file other documents regarding the proposed transaction with the SEC. This document does not contain all the information that should be considered concerning the proposed transactions and is not intended to form the basis of any investment decision or any other decision in respect of the transactions. Before making any voting or investment decision, investors and shareholders of Black Spade III are urged to read the registration statement, the proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC in connection with the proposed transaction as they become available because they will contain important information about the proposed transaction.
8
Participants in the Solicitation
Black Spade III and Astrum and their respective directors and officers may be deemed to be participants in the solicitation of proxies from Black Spade III’s shareholders in connection with the proposed transaction. Information about Black Spade III’s directors and executive officers and their ownership of Black Spade III’s securities is set forth in Black Spade III’s filings with the SEC. Additional information regarding the interests of those persons and other persons who may be deemed participants in the proposed transaction may be obtained by reading the proxy statement/prospectus regarding the proposed transaction when 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. You may obtain free copies of these documents as described in the preceding paragraph.
No Offer or Solicitation
This Current Report is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the Business Combination and does not constitute an offer to sell or the solicitation of an offer to buy any securities, or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act, or an exemption therefrom.
9
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
10
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: August 27, 2026
| BLACK SPADE ACQUISITION III CO | ||
| By: | /s/ Chi Wai Dennis Tam | |
| Name: | Chi Wai Dennis Tam | |
| Title: | Executive Chairman of the Board and Co-Chief Executive Officer | |
11
Exhibit 2.1
BUSINESS COMBINATION AGREEMENT
by and among
BLACK SPADE ACQUISITION III CO,
ASTRUM SPACE INC
and
ASTRUM NETWORKS PTE. LTD.
dated as of August 27, 2026
TABLE OF CONTENTS
| Article 1 Certain Definitions | ||
| Section 1.01. | Definitions | 3 |
| Section 1.02. | Construction | 17 |
| Section 1.03. | Knowledge | 18 |
| Article 2 The Merger; Closing | ||
| Section 2.01. | Merger | 18 |
| Section 2.02. | Effects of the Merger | 19 |
| Section 2.03. | Closing; Merger Effective Time | 19 |
| Section 2.04. | Memorandum and Articles of Association of Merger Surviving Company | 19 |
| Section 2.05. | Directors and Officers of the Merger Surviving Company | 19 |
| Section 2.06. | Name Change | 20 |
| Section 2.07. | Effects of the Merger on the Share Capital of BIII | 20 |
| Article 3 Closing Deliveries | ||
| Section 3.01. | Closing Deliverables | 21 |
| Section 3.02. | Issuance of Merger Consideration Shares | 21 |
| Section 3.03. | No Liability; Withholding | 22 |
| Section 3.04. | Sponsor Transaction Bonus | 22 |
| Section 3.05. | Performance Shares | 22 |
| Article 4 Representations and Warranties of the Company and Astrum Singapore | ||
| Section 4.01. | Corporate Existence and Power | 24 |
| Section 4.02. | Corporate Authorization | 24 |
| Section 4.03. | Governmental Authorizations; Consents | 25 |
| Section 4.04. | Noncontravention | 25 |
| Section 4.05. | Subsidiaries | 26 |
| Section 4.06. | Capitalization | 26 |
| Section 4.07. | Financial Statements | 27 |
| Section 4.08. | Undisclosed Liabilities | 28 |
| Section 4.09. | Absence of Changes | 29 |
| Section 4.10. | Litigation and Proceedings | 29 |
| Section 4.11. | Compliance with Laws; Permits | 29 |
| Section 4.12. | Significant Contracts | 30 |
| Section 4.13. | Intellectual Property | 32 |
| Section 4.14. | Data Privacy | 35 |
| Section 4.15. | Benefit Plans | 36 |
| Section 4.16. | Labor Matters | 37 |
| Section 4.17. | Taxes | 38 |
| Section 4.18. | Insurance | 40 |
| Section 4.19. | Real Property; Assets | 41 |
| Section 4.20. | Environmental Matters | 42 |
| Section 4.21. | Affiliate Transactions | 42 |
| Section 4.22. | Vendors | 42 |
| Section 4.23. | Certain Business Practices; Anti-Corruption; Anti-Money Laundering and Sanctions | 43 |
| Section 4.24. | Registration Statement and Proxy Statement | 44 |
| Section 4.25. | Bankruptcy, Insolvency or Judicial Composition Proceedings | 45 |
| Section 4.26. | Brokers’ Fees | 45 |
| Section 4.27. | Satellite Matters | 45 |
| Section 4.28. | No Additional Representations and Warranties; No Outside Reliance | 47 |
i
| Article 5 Representations and Warranties of BIII | ||
| Section 5.01. | Corporate Organization | 48 |
| Section 5.02. | Corporate Authorization | 48 |
| Section 5.03. | Governmental Authorizations; Consents | 49 |
| Section 5.04. | Noncontravention | 49 |
| Section 5.05. | Litigation and Proceedings | 49 |
| Section 5.06. | BIII Capitalization | 50 |
| Section 5.07. | Undisclosed Liabilities | 50 |
| Section 5.08. | BIII SEC Documents; Controls | 50 |
| Section 5.09. | Listing | 51 |
| Section 5.10. | Registration Statement and Proxy Statement | 51 |
| Section 5.11. | Trust Account | 52 |
| Section 5.12. | Absence of Certain Changes | 52 |
| Section 5.13. | Compliance with Laws; Permits | 52 |
| Section 5.14. | Contracts | 53 |
| Section 5.15. | Employees and Employee Benefit Plans | 53 |
| Section 5.16. | Properties | 53 |
| Section 5.17. | Affiliate Transactions | 53 |
| Section 5.18. | Taxes | 53 |
| Section 5.19. | Certain Business Practices; Anti-Corruption; Anti-Money Laundering and Sanctions | 55 |
| Section 5.20. | Independent Investigation | 56 |
| Section 5.21. | Brokers’ Fees | 57 |
| Section 5.22. | No Additional Representations and Warranties; No Outside Reliance | 57 |
| Article 6 Covenants of the Company and Astrum Singapore | ||
| Section 6.01. | Conduct of Company Business | 57 |
| Section 6.02. | Inspection | 60 |
| Section 6.03. | Audited Financial Statements | 61 |
| Section 6.04. | Trust Account Waiver | 61 |
| Section 6.05. | Shareholder Litigation | 61 |
| Section 6.06. | Satellite Related Matters | 61 |
| Section 6.07. | Founder Support Letter | 61 |
| Section 6.08. | Related Party Loans | 62 |
ii
| Article 7 Covenants of BIII | ||
| Section 7.01. | Conduct of Business | 62 |
| Section 7.02. | Shareholder Litigation | 64 |
| Section 7.03. | BIII NYSE Listing | 64 |
| Article 8 Joint Covenants | ||
| Section 8.01. | Efforts to Consummate | 64 |
| Section 8.02. | Indemnification and Insurance | 65 |
| Section 8.03. | Tax Matters | 66 |
| Section 8.04. | Proxy Statement; Registration Statement | 68 |
| Section 8.05. | BIII Shareholder Approval | 69 |
| Section 8.06. | Post-Closing Board | 70 |
| Section 8.07. | Trust Account | 70 |
| Section 8.08. | Form 8-K Filings | 71 |
| Section 8.09. | Equity Incentive Plan | 71 |
| Section 8.10. | No Shop | 71 |
| Section 8.11. | Notification of Certain Matters | 72 |
| Section 8.12. | PIPE Financing | 72 |
| Article 9 Conditions to Obligations | ||
| Section 9.01. | Conditions to Obligations of BIII and the Company | 73 |
| Section 9.02. | Conditions to Obligations of BIII | 73 |
| Section 9.03. | Conditions to the Obligations of the Company | 75 |
| Section 9.04. | Satisfaction of Conditions | 75 |
| Article 10 Termination | ||
| Section 10.01. | Termination | 76 |
| Section 10.02. | Effect of Termination | 77 |
iii
| Article 11 Miscellaneous | ||
| Section 11.01. | Non-Survival of Representations, Warranties and Covenants | 77 |
| Section 11.02. | Waiver | 77 |
| Section 11.03. | Notices | 78 |
| Section 11.04. | Assignment | 79 |
| Section 11.05. | Rights of Third Parties | 79 |
| Section 11.06. | Expenses | 79 |
| Section 11.07. | Governing Law | 79 |
| Section 11.08. | Dispute Resolution and Waiver of Jury Trial | 80 |
| Section 11.09. | Headings and Captions; Counterparts | 80 |
| Section 11.10. | Entire Agreement | 80 |
| Section 11.11. | Amendments | 80 |
| Section 11.12. | Publicity | 81 |
| Section 11.13. | Severability | 81 |
| Section 11.14. | Disclosure Schedules | 81 |
| Section 11.15. | Enforcement | 81 |
| Section 11.16. | Non-Recourse | 82 |
| Section 11.17. | Legal Representation | 82 |
ANNEXES
Annex A – Form of Listing Articles
Annex B – Form of Shareholders Support and Lock-Up Agreement and Deed
Annex C – Form of Sponsor Support and Lock-Up Agreement and Deed
Annex D – Form of Registration Rights Agreement
Annex E – Form of Plan of Merger
iv
BUSINESS COMBINATION AGREEMENT
This Business Combination Agreement (as it may be amended, restated or otherwise modified from time to time, this “Agreement”), dated as of August 27, 2026, is entered into by and among (i) Black Spade Acquisition III Co, an exempted company incorporated with limited liability under the laws of the Cayman Islands (“BIII”), (ii) Astrum Space Inc, an exempted company incorporated with limited liability under the laws of the Cayman Islands (the “Company”) and (iii) Astrum Networks Pte. Ltd., a private company limited by shares incorporated under the laws of Singapore (“Astrum Singapore”). BIII, the Company and Astrum Singapore are referred to herein collectively as the “Parties.”
RECITALS
WHEREAS, BIII is a blank check company incorporated for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses or assets;
WHEREAS, the Company is the direct owner of one hundred percent (100%) of the equity interests in Astrum Singapore, an entity treated as a corporation for U.S. federal income tax purposes;
WHEREAS, the Company and Astrum Holding have undertaken a restructuring resulting in the (i) Company becoming a direct wholly-owned Subsidiary of Astrum Holding and disregarded as an entity separate from Astrum Holding for U.S. federal income tax purposes, (ii) Astrum Holding becoming classified as a partnership for U.S. federal income tax purposes and (iii) Astrum Singapore becoming a direct wholly-owned Subsidiary of the Company and treated as owned by Astrum Holding for U.S. federal income tax purposes (the “Astrum Restructuring”);
WHEREAS, on the Closing Date (as defined below), in connection with the Merger and with effect from the Merger Effective Time, BIII shall adopt the second amended and restated memorandum and articles of association in substantially the form attached hereto as Annex A (with such changes as may be agreed in writing by BIII and the Company, the “Listing Articles”);
WHEREAS, on the terms and subject to the conditions of this Agreement and in accordance with the applicable provisions of the Companies Act (As Revised) of the Cayman Islands (the “Cayman Islands Companies Act”), at the Merger Effective Time, the Company shall be merged with and into BIII, whereupon the separate corporate existence of the Company shall cease and BIII shall be the surviving company and continue its existence under the Cayman Islands Companies Act as a publicly traded company listed on the NYSE;
WHEREAS, the board of directors of BIII (the “BIII Board”) has unanimously (i) determined that it is fair to, advisable for and in the best interests of BIII and the BIII Shareholders (as defined below) to enter into this Agreement and the Ancillary Agreements to which BIII is a party and to consummate the Merger (as defined below) and the other Transactions, (ii) approved this Agreement and the Ancillary Agreements to which BIII is a party, the execution, delivery and performance of this Agreement and the Ancillary Agreements and the consummation of the Merger and the other Transactions, and (iii) determined to recommend to the BIII Shareholders the approval and adoption of this Agreement, the Plan of Merger, the other Ancillary Agreements to which BIII is a party, the Merger and the other Transactions;
WHEREAS, the respective boards of directors of the Company and Astrum Singapore (respectively, the “Company Board” and “Astrum Singapore Board”) have unanimously (i) determined that it is fair to, advisable for and in the best interests of the Company and Astrum Singapore and their respective shareholders, as applicable, to enter into this Agreement, the Ancillary Agreements to which it is a party and to consummate the Merger and the other Transactions, and (ii) approved this Agreement, the Plan of Merger and the other Ancillary Agreements to which it is a party, the execution, delivery and performance of this Agreement and the Ancillary Agreements to which it is a party and the consummation of the Merger and the other Transactions;
WHEREAS, prior to the Closing, BIII will provide an opportunity to its shareholders to have their issued and outstanding BIII Class A Ordinary Shares redeemed on the terms and subject to the conditions set forth in the Amended and Restated Memorandum and Articles of Association of BIII, adopted by special resolution dated 5 January 2026 and effective on 5 January 2026 (as may be amended, restated or otherwise modified from time to time, the “BIII Governing Document”), in connection with the Transactions;
WHEREAS, concurrently with the execution and delivery of this Agreement, and as an inducement to BIII’s willingness to enter into this Agreement, Astrum Holding has entered into a Shareholders Support and Lock-Up Agreement and Deed with BIII and the Company in the form attached as Annex B hereto (the “Shareholders Support Agreement”);
WHEREAS, concurrently with the execution and delivery of this Agreement, BIII, the Sponsor (as defined below) and the other parties thereto have entered into a Sponsor Support and Lock-Up Agreement and Deed in the form attached as Annex C hereto (the “Sponsor Support Agreement”); and
WHEREAS, concurrently with the consummation of the Transactions, BIII, the Sponsor, Astrum Holding, and other Holders (as defined therein) shall enter into a registration rights agreement substantially in the form attached as Annex D hereto (the “Registration Rights Agreement”);
WHEREAS, the Parties intend that, for U.S. federal income tax purposes (and applicable corresponding state and local income tax purposes), (i) the transfer of the stock of Astrum Singapore to BIII via the mechanism of the Merger (the “Astrum Stock Acquisition”) qualify as (A) a transfer of property described in Section 351 of the Code and the Treasury Regulations thereunder (taken together with any PIPE Financing) and/or (B) a “reorganization” within the meaning of Section 368 of the Code and the Treasury Regulations thereunder (the “Intended Tax Treatment”) and (ii) this Agreement constitute a “plan of reorganization” within the meaning of Section 368 of the Code and Treasury Regulations Sections 1.368-2(g) and 1.368-3(a) with respect to acquisition of stock of Astrum Singapore by BIII;
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement, and intending to be legally bound hereby, BIII, the Company and Astrum Singapore agree as follows:
2
Article 1
Certain Definitions
Section 1.01. Definitions. As used herein, the following terms shall have the following meanings:
“Acquisition Transaction” has the meaning given to such term in Section 8.10.
“Action” means any action, suit, investigation (including Tax audit), litigation, claim (including any crossclaim or counterclaim), assessment, arbitration, charge or proceeding (including any civil, criminal, administrative, arbitral, investigative or appellate proceeding), in each case, that is by or before any Governmental Authority.
“Affiliate” means, with respect to any specified Person, any other Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person, through one or more intermediaries or otherwise. For purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have correlative meanings.
“Affiliate Transactions” has the meaning given to such term in Section 4.21.
“Affiliated Group” means a group of Persons that elects, is required to, or otherwise files a Tax Return or pays a Tax as an affiliated group, consolidated group, combined group, unitary group, or other group recognized by Applicable Law in respect of Tax.
“Agreement” has the meaning given to such term in the preamble hereto.
“Ancillary Agreements” means the Plan of Merger, the Shareholders Support Agreement, the Sponsor Support Agreement, the Registration Rights Agreement, and the other agreements, instruments and documents expressly contemplated hereby.
“Anti-Corruption Laws” means the U.S. Foreign Corrupt Practices Act or any rules or regulations thereunder, the UK Bribery Act, any legislation implementing the Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and all other Applicable Laws regarding anti-corruption and bribery or illegal payments or gratuities.
“Anti-Money Laundering Laws” has the meaning given to such term in Section 4.23(h).
“Antitrust Laws” means any federal, state, provincial, territorial and foreign statutes, rules, regulations, Governmental Orders and other Applicable Laws that are designed or intended to prohibit, restrict or regulate foreign investment or actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
“Applicable Law” means, with respect to any Person, any transnational, domestic or foreign federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree or ruling enacted, adopted, promulgated or applied by a Governmental Authority that is legally binding upon or applicable to such Person.
3
“Astrum Holding” means Astrum Space Holding Inc, an exempted company incorporated with limited liability under the laws of the Cayman Islands.
“Astrum Shareholders” means the holders of issued and outstanding shares in the share capital of Astrum Holding.
“Astrum Singapore” has the meaning given to such term in the preamble hereto.
“Astrum Singapore Board” has the meaning given to such term in the recitals hereto.
“Benefit Plan” has the meaning given to such term in Section 4.15(a).
“BIII” has the meaning given to such term in the preamble hereto.
“BIII Board” has the meaning given to such term in the recitals hereto.
“BIII Board Recommendation” has the meaning given to such term in Section 5.02(c).
“BIII Class A Ordinary Shares” means the Class A ordinary shares of BIII, par value $0.0001 per share.
“BIII Class B Ordinary Shares” means the Class B ordinary shares of BIII, par value $0.0001 per share.
“BIII Cure Period” has the meaning given to such term in Section 10.01(e).
“BIII Disclosure Schedule” means the confidential disclosure schedule delivered by BIII to the Company concurrently with the execution and delivery of this Agreement.
“BIII Excluded Shares” has the meaning given to such term in Section 2.07(c)(ii).
“BIII Extraordinary General Meeting” has the meaning given to such term in Section 8.05(a).
“BIII Governing Document” has the meaning given to such term in the recitals hereto.
“BIII Material Adverse Effect” means any effect, development, event, occurrence, fact, condition, circumstance or change that, individually or in the aggregate, has had, or would reasonably be expected to have, a material adverse effect on the ability of BIII to timely consummate the Closing (including the Merger) on the terms set forth herein or to perform its agreements or covenants hereunder.
“BIII Material Contract” has the meaning given to such term in Section 5.14.
“BIII Ordinary Shares” means the BIII Class A Ordinary Shares and the BIII Class B Ordinary Shares.
“BIII Private Warrant” means each warrant to purchase one BIII Class A Ordinary Share (i) originally issued to the Sponsor and BIII’s IPO underwriters in a private placement which took place concurrently with the closing of BIII’s initial public offering or (ii) were, or are after the date hereof, issued in connection with the conversion of working capital loans made to BIII by the Sponsor, an Affiliate of the Sponsor or certain of BIII’s officers and directors in the aggregate up to 7,000,000 such warrants.
4
“BIII Public Warrant” means each warrant to purchase one BIII Class A Ordinary Share that was included in the BIII Units.
“BIII Redeeming Share” means each BIII Class A Ordinary Share in respect of which the applicable holder thereof has validly exercised his, her or its BIII Shareholder Redemption Right (and not waived, withdrawn or otherwise lost such rights).
“BIII Share Redemption” means the election of an eligible (as determined in accordance with the BIII Governing Document) Pre-Closing BIII Holder to exercise its BIII Shareholder Redemption Right in connection with the consummation of the Transactions.
“BIII Shareholder Approval” means the approval of the Transaction Proposals (other than the Transaction Proposal contemplated by clause (vii) of the definition thereof), in each case, by the requisite number of votes cast by the holders of BIII Ordinary Shares at the BIII Extraordinary General Meeting, in accordance with the Proxy Statement, the BIII Governing Document and Applicable Law.
“BIII Shareholder Redemption Amount” means the aggregate amount payable with respect to the exercise of BIII Shareholder Redemption Rights.
“BIII Shareholder Redemption Right” means the right of the holders of BIII Class A Ordinary Shares to redeem all or a portion of their BIII Class A Ordinary Shares as set forth in the BIII Governing Document.
“BIII Shareholders” means the holders of issued and outstanding BIII Ordinary Shares.
“BIII Units” means the units issued in BIII’s initial public offering (whether purchased in such offering or thereafter in the public market), each consisting of one BIII Class A Ordinary Share and one-third of a BIII Public Warrant.
“BIII Warrants” means the BIII Private Warrants and the BIII Public Warrants.
“Board” means the board of directors of the Merger Surviving Company.
“Business Combination” has the meaning given to such term in the BIII Governing Document.
“Business Day” means a day other than a Saturday, Sunday or another day on which commercial banks in the Cayman Islands, Hong Kong or New York are authorized or required by Applicable Law to close.
“Cayman Islands Companies Act” has the meaning given to such term in the recitals hereto.
“Cayman Islands Registrar of Companies” means the Registrar of Companies of the Cayman Islands.
“Closing” has the meaning given to such term in Section 2.03.
5
“Closing Date” has the meaning given to such term in Section 2.03.
“Closing Press Release” has the meaning given to such term in Section 8.08.
“Code” means the Internal Revenue Code of 1986, as amended.
“Company” has the meaning given to such term in the preamble hereto.
“Company Financial Statements” has the meaning given to such term in Section 4.07(a).
“Company Board” has the meaning given to such term in the recitals hereto.
“Company Cure Period” has the meaning given to such term in Section 10.01(d).
“Company Disclosure Schedule” means the confidential disclosure schedule delivered by the Company to BIII concurrently with the execution and delivery of this Agreement.
“Company IT Systems” means any and all computers, hardware, Software, servers, workstations, routers, hubs, switches, circuits, racks, PCs, laptops, terminals, networking or data communications lines and all other information technology equipment, including all documentation related to the foregoing, owned, licensed, leased, or otherwise used by or on behalf of the Company or any of its Subsidiaries.
“Company Material Adverse Effect” means any effect, development, event, occurrence, fact, condition, circumstance or change that, individually or in the aggregate, (x) has had, or would reasonably be expected to have, a material adverse effect on the business, results of operations, financial condition, assets or liabilities of the Company and its Subsidiaries taken as a whole, or (y) does or would reasonably be expected to prevent any of the Company or Astrum Singapore from timely consummating the Closing on the terms set forth herein or to perform their agreements or covenants hereunder; provided, however, that, in the case of the foregoing clause (x) only, no effect, development, event, occurrence, fact, condition, circumstances or change, to the extent resulting from any of the following, either individually or in the aggregate, shall be deemed to constitute, or be taken into account in determining whether a “Company Material Adverse Effect” has occurred or would reasonably be expected to occur: (i) any change in Applicable Law or IFRS, or regulatory policies or interpretations thereof; (ii) any change in interest rates or economic, financial or market conditions generally; (iii) the announcement or the execution of this Agreement, the pendency or consummation of the Merger or the performance of this Agreement (or the obligations hereunder), including any termination of, reduction in or similar adverse impact (but in each case only to the extent attributable to such announcement, execution, pendency, consummation or performance) on the Company’s and its Subsidiaries’ relationships, contractual or otherwise, with third parties; provided that this clause (iii) shall not prevent a determination that a breach of any representation and warranty set forth herein which addresses the consequences of the execution and performance of this Agreement or the consummation of the Merger has resulted in or contributed to, or would reasonably be expected to result in or contribute to, a Company Material Adverse Effect; (iv) any change generally affecting any of the industries or markets in which the Company or any of its Subsidiaries operates; (v) any acts of war, sabotage, civil unrest or terrorism, changes in global, national, regional, state or local political or social conditions, earthquake, hurricane, tsunami, tornado, flood, mudslide, wild fire or other natural disaster or act of God, any epidemic or pandemic and any other force majeure event (natural or man-made), or any worsening of any of the foregoing; (vi) the compliance with the express terms of this Agreement, including any action required to be taken, or required not to be taken, pursuant to the terms of this Agreement or otherwise taken at the specific prior written request of BIII or omitted to be taken to the extent wholly attributable to BIII unreasonably withholding its consent pursuant to Section 6.01; (vii) in and of itself, the failure of the Company and its Subsidiaries, taken as a whole, to meet any projections, forecasts or budgets or estimates of revenues, earnings or other financial metrics for any period; provided that this clause (vii) shall not prevent a determination that any change or effect underlying such failure to meet projections, forecasts or budgets has resulted in or contributed to, or would reasonably be expected to result in or contribute to, a Company Material Adverse Effect, or (viii) any matter set forth in the Company Disclosure Schedule which matter is reasonably apparent on its face as constituting a Company Material Adverse Effect (disregarding this clause (viii)); except in the case of clauses (i), (ii) and (iv), to the extent that any such effect, development, event, occurrence, fact, condition, circumstance or change has a disproportionate and adverse effect on the business, assets, results of operations or condition of the Company and its Subsidiaries, taken as a whole, relative to other similarly situated participants in the industry in which the Company and its Subsidiaries operate, but only to the extent of the incremental disproportionate effect on the Company and its Subsidiaries, taken as a whole, relative to such similarly situated participants.
6
“Company Ordinary Shares” means the ordinary shares in the capital of the Company, par value $0.01 per share.
“Company Permits” has the meaning given to such term in Section 4.11(b).
“Company PII” means any and all Personally Identifiable Information that is processed by or on behalf of the Company or its Subsidiaries in connection with the development, marketing, delivery, servicing, use or other exploitation of the Company’s or its Subsidiaries’ products, services or operations.
“Company Privacy Policies” means all current and, to the extent applicable, prior public or internal policies, procedures and representations of the Company or its Subsidiaries to the extent relating to data security or the Processing of Personally Identifiable Information.
“Company Satellite” has the meaning given to such term in Section 4.27(a).
“Company Waiving Parties” has the meaning given to such term in Section 11.17.
“Completion 8-K” has the meaning given to such term in Section 8.08.
“Confidentiality Agreement” means that certain Confidentiality Agreement, dated as of February 25, 2026, by and between BIII and Astrum Singapore.
“Contracts” means any contract, agreement, subcontract, lease, sublease, license, sublicense, conditional sales contract, purchase or service order, indenture, note, bond, loan, understanding, undertaking, commitment or other arrangement or instrument, including any exhibits, annexes, appendices and attachments thereto and any amendments, statements of work, modifications, supplements, extensions or renewals thereto, whether written or oral.
“Conversion” has the meaning given to such term in Section 2.07(b).
7
“Damages” means all fines, losses, damages, liabilities, penalties, judgments, settlements, assessments and other reasonable costs and expenses (including reasonable legal, attorneys’ and other experts’ fees).
“Effectiveness Deadline” means (i) January 11, 2027, or (ii) if so agreed in writing by BIII and the Company (such agreement not to be unreasonably withheld), March 27, 2027.
“Eligible BIII Shareholder” means the holder of any Eligible BIII Share.
“Eligible BIII Shares” means the BIII Class A Ordinary Shares that are issued and outstanding immediately prior to the Merger Effective Time (other than the BIII Excluded Shares or BIII Redeeming Shares), including for the avoidance of doubt the BIII Class A Ordinary Shares held as a result of the Unit Separation or the Conversion.
“Employment Agreement” has the meaning given to such term in Section 4.15(a).
“Employment Laws” has the meaning given to such term in Section 4.16(b).
“Environmental Laws” means any Applicable Laws relating to pollution or the protection of the environment, including those related to the use, generation, treatment, storage, handling, emission, transportation, disposal or Release of Hazardous Materials, each as in effect on and as interpreted as of the date of this Agreement.
“Equity Incentive Plan” has the meaning given to such term in Section 8.09.
“Equity Security” means (i) any share capital, partnership interest, membership interest or unit, capital stock, equity interest, voting security or other ownership interest, (ii) any other interest or participation (including phantom units or interests) that confers on a Person the right to receive a unit of the profits and losses of, or distribution of assets of, the issuing entity (including any “profits interests”), (iii) any subscription, call, warrant, option, restricted share, restricted stock unit, stock appreciation right, performance unit, incentive unit or other commitment of any kind or character relating to, or entitling any Person to purchase or otherwise acquire, any of the foregoing and (iv) any security convertible into or exercisable or exchangeable for any of the foregoing.
“Exchange Act” has the meaning given to such term in Section 5.08(a).
“Force Majeure Event” means any event or circumstance beyond the reasonable control of the Merger Surviving Company or its Affiliates that prevents, or materially delays or impedes the achievement of a Milestone Event, including: (i) acts of God, including earthquakes, floods, hurricanes, tsunamis, volcanic eruptions, or other natural disasters; (ii) war (whether declared or undeclared), armed conflict, invasion, act of foreign enemies, hostilities, civil war, terrorism, riot, or insurrection; (iii) explosion, fire, or serious accident at the launch site, satellite manufacturing facility, or integration facility, including explosion or malfunction of a third-party satellite, launch vehicle, or spacecraft at or near the launch site, in each case not caused by the acts or omissions of the Merger Surviving Company or its Affiliates; (iv) launch vehicle failure, launch delay, or launch cancellation by the launch services provider not caused by the Merger Surviving Company or its Affiliates; (v) government action, including expropriation, nationalization, embargo, sanctions, export control restrictions, denial or revocation of licenses or permits, or other regulatory action that prevents or delays launch or satellite operations, provided that such action did not result from any breach, misrepresentation, or failure to comply with Applicable Law by the Merger Surviving Company or its Affiliates; (vi) strikes, labor disputes, or work stoppages (other than those involving solely the employees of the Merger Surviving Company or its Subsidiaries); (vii) epidemic or pandemic, but only to the extent that quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, lockdown, shut down, closure, or similar restrictions are imposed by Governmental Authorities in the jurisdictions in which the Merger Surviving Company and its Subsidiaries operate; and (viii) failure of critical third-party suppliers or subcontractors to deliver components or services, but only to the extent that (A) the Merger Surviving Company has used commercially reasonable efforts to identify and engage an alternative supplier or subcontractor capable of performing the relevant obligation, and (B) no such alternative is available on commercially reasonable terms.
8
“Founder” means Mr. Zhou Qingzhi, the founder of the Company.
“Founder Support Letter” means the letter of support dated August 21, 2026, executed by the Founder in favor of the Company, pursuant to which the Founder has committed to provide, or cause to be provided, funding to the Company Group (as defined in the Founder Support Letter) in an aggregate amount of up to US$168,000,000 to support the operating, investing and financing activities of the Company Group, including capital expenditures necessary for the development, manufacture, testing and preparation of the NEAStar-1 satellite for operational launch.
“GAAP” means United States generally accepted accounting principles as in effect from time to time.
“Governing Documents” means the legal document(s) by which any Person (other than an individual) establishes its legal existence or which govern its internal affairs, including but not limited to, as applicable, the constitution, the memorandum of association, articles of association, certificates of incorporation, by-laws, material intercompany operating agreements, registration statements and equivalent organizational documents, each as amended, supplemented and/or restated to date.
“Government Official” means any public or elected official or officer, employee (regardless of rank), or Person acting on behalf of a national, provincial, or local government, including a department, agency, instrumentality, state-owned or state-controlled company, public international organization (such as the United Nations or World Bank), or non-U.S. political party, non-U.S. party official or any candidate for political office. Officers, employees (regardless of rank), or Persons acting on behalf of an entity that is financed in large measure through public appropriations, is widely perceived to be performing government functions, or has its key officers and directors appointed by a government should also be considered “Government Officials.”
“Governmental Authority” means any supra-national, federal, regional, state, provincial, municipal, local or foreign government, governmental authority, taxing, regulatory or administrative agency, governmental commission, department, agency or instrumentality, court or tribunal, including any political subdivision thereof and any entity or enterprise owned or controlled thereby, any stock exchange or any self-regulatory organization or arbitral body (public or private), or any public international organization.
“Governmental Order” means any order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, issued, promulgated, made or entered by or with any Governmental Authority.
9
“Hazardous Material” means material, substance or waste that is listed, regulated, or otherwise defined as “hazardous,” “toxic,” or “radioactive,” (or words of similar intent or meaning) under applicable Environmental Law, including but not limited to petroleum, petroleum by-products, asbestos or asbestos-containing material, polychlorinated biphenyls, flammable or explosive substances, or pesticides.
“IFRS” means the International Financial Reporting Standards as promulgated by the International Accounting Standards Board.
“Indebtedness” means any (i) indebtedness, whether or not contingent, for borrowed money, or (ii) indebtedness evidenced by any note, bond, debenture, mortgage or other debt instrument or debt security or similar instrument.
“Intellectual Property” means any and all intellectual property rights and similar proprietary rights in any jurisdiction throughout the world, whether registered or unregistered, including such rights in any and all of the following: (i) statutory invention registrations, patents and patent applications (together with any and all re-issuances, continuations, continuations-in-part, divisionals, revisions, provisionals, renewals, extensions and reexaminations of any of the foregoing) and all improvements to the inventions disclosed in each such patent or patent application, (ii) trademarks, service marks, trade dress, trade names, service names, brand names, certifications, corporate names, logos, social media identifiers and any and all other indications of origin, including all goodwill associated therewith, and all applications, registrations and renewals in connection therewith, (iii) designs, copyrights, and all applications and registrations therefor, works of authorship, mask work rights and any and all renewals, extensions, reversions, restorations, derivative works and moral rights in connection with the foregoing, now or hereafter provided by Applicable Law, whether or not published and regardless of the medium of fixation or means of expression, (iv) Internet domain names and social media identifiers and accounts, (v) trade secrets, proprietary know-how (including inventions, discoveries, improvements, processes, market information, trade secrets, techniques, specifications, technical information, methods, tests, reports, component lists, manuals, instructions, drawings and information relating to customers and suppliers), confidential and proprietary information, including processes, data, inventions, technical data, algorithms, formulae, procedures, protocols, techniques, results of experimentation and testing, and business information (including financial and marketing plans, customer and supplier lists, and pricing and cost information), (vi) rights to publicity and privacy, (vii) Software, (viii) databases and data collections, (ix) industrial designs, (x) all registrations and applications (whether provisional, pending or final) to register, and renewals of any of the foregoing, and all common law rights thereto, and (xi) all rights to sue, bring, make, oppose, defend, appeal proceedings, claims or actions and obtain relief, recover and retain damages and costs and attorneys’ fees for past, present and future infringement, misappropriation or other violation of any of the foregoing (including passing off and unfair competition), and all rights to claim priority in such rights, and all rights to apply for and be granted any extensions, renewals, or amendments of or to such rights.
“Intended Tax Treatment” has the meaning given to such term in the recitals hereto.
“Interim Period” has the meaning given to such term in Section 6.01.
“ITU” has the meaning given to such term in Section 4.27(c).
“ITU Rights” has the meaning given to such term in Section 4.27(c).
10
“Labor Contract” has the meaning given to such term in Section 4.12(a)(ix).
“Leakage” means, without duplication, to the extent paid or incurred after the date hereof and prior to the Closing Date, in each case, other than Permitted Leakage: (i) any dividend (whether in the form of cash or other property) or distribution declared, made or paid, by the Company or any Subsidiary of the Company to any Related Party; (ii) any repurchase or redemption of any Equity Securities of the Company or any Subsidiary of the Company, other than any such repurchase or redemption by any Subsidiary of the Company of any Equity Securities owned by the Company or any of its Subsidiaries; (iii) any waiver or release (A) in favor of any Related Party of any sum or obligation owing by any such Related Party to the Company or any of its Subsidiaries or (B) of any claims or rights of the Company or any of its Subsidiaries against any such Related Party, in each case, other than as expressly contemplated by this Agreement; (iv) any payments of any nature made to (or assets transferred to) any Related Party by the Company or any of its Subsidiaries; (v) any liabilities assumed or incurred for the benefit of any Related Party by the Company or any of its Subsidiaries, other than as expressly contemplated by this Agreement; (vi) the creation of any Lien over any asset of the Company or any of its Subsidiaries for the benefit of any Related Party (not including any benefit arising by virtue of the Related Party’s Equity Securities in the Company); (vii) any discharge or waiver by the Company or any of its Subsidiaries of any liability or obligation of any Related Party; (viii) any agreement or arrangement made or entered into by the Company or any of its Subsidiaries to do or give effect to any matter referred to in clause (i) through clause (vii) above; or (ix) any Tax which is payable by the Company or any of its Subsidiaries as a result of any of clause (i) through clause (viii) above.
“Leased Real Property” means all real property and interests in real property leased, subleased or otherwise occupied or used but not owned by the Company or any of its Subsidiaries.
“Licensed Intellectual Property” means any and all Intellectual Property owned by a third party and licensed or sublicensed (or purported to be licensed or sublicensed) to either the Company or any of its Subsidiaries or for which the Company or any of its Subsidiaries has obtained a covenant not to be sued.
“Lien” means, with respect to any property or asset, any mortgage, charge, deed of trust, pledge, hypothecation, encumbrance, real property license, security interest, covenant not to sue, option, right of first refusal, right of first offer, claim, restriction or other lien or similar adverse claim of any kind in respect of such property or asset.
“Listco Shares” means the Class A ordinary shares of the Merger Surviving Company, par value $0.0001 per share, which include, for the avoidance of doubt, the Eligible BIII Shares issued and outstanding upon consummation of the Merger.
“Listing Articles” has the meaning given to such term in the recitals hereto.
“Major Stations” has the meaning given to such term in Section 4.27(d).
“Merger” has the meaning given to such term in Section 2.01(a).
“Merger Effective Time” has the meaning given to such term in Section 2.03.
“Merger Consideration Shares” has the meaning given to such term in Section 2.07(e).
11
“Merger Surviving Company” has the meaning given to such term in Section 2.01(b).
“Milestone Date” has the meaning given to such term in Section 3.05.
“Milestone Event” has the meaning given to such term in Section 3.05.
“New Satellite” has the meaning given to such term in Section 4.27(a).
“Non-Public Eligible BIII Shareholder” means each Eligible BIII Shareholder that is the Sponsor or an Affiliate of the Sponsor.
“NYSE” means the New York Stock Exchange.
“Offer Documents” has the meaning given to such term in Section 8.04(c).
“Open Source Software” means any and all Software that is distributed as “free” Software, “open source” Software, “copyleft” Software or via similar licensing or distribution models that, in each case, require as a condition of use, modification or distribution (including under an ASP or “software as a service” model) of such Software that other Software using, incorporating, linking, integrating or distributing or bundling with such Software be (a) disclosed or distributed in source code form, (b) licensed for the purpose of making derivative works, (c) licensed under terms that allow reverse engineering, reverse assembly or disassembly of any kind or (d) redistributable at no charge. “Open Source Software” includes Software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (A) the Apache Software Foundation License, (B) the GNU General Public License (GPL) or GNU Lesser General Public License (LGPL), (C) the Artistic License (e.g., PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Industry Standards License (SISL), (H) the Affero General Public License (AGPL), (I) the Common Development and Distribution License (CDDL) or (J) any license or distribution agreements or arrangements now listed as “open source” licenses on www.opensource.org or any successor website thereof or in the “Free Software Directory” maintained by the Free Software Foundation on http://directory.fsf.org/ or any successor website thereof.
“Ordinary Course of Business” with respect to any Person means, at any given time, the ordinary and usual course of operations of the business thereof, consistent with past practice, subject to any reasonable changes required to address any then current facts and circumstances (including requirements to comply with Applicable Law).
“Owned Intellectual Property” means any and all Intellectual Property owned (or purported to be owned) by the Company or any of its Subsidiaries.
“Parties” has the meaning given to such term in the preamble hereto.
“Payor” has the meaning given to such term in Section 3.03(b).
“PCAOB” means the U.S. Public Company Accounting Oversight Board.
“Performance Shares” has the meaning given to such term in Section 3.05.
12
“Permits” means all permits, licenses, certificates of authority, authorizations, approvals, registrations, clearances, orders, variances, exceptions or exemptions and other similar consents issued by or obtained from a Governmental Authority.
“Permitted Leakage” means (i) any repurchase or redemption of any Equity Securities of the Company or any of its Subsidiaries by the Company or any of its Subsidiaries, as applicable, in the Ordinary Course of Business in connection with the termination of employment of any employee of the Company or its Subsidiaries, (ii) any payment by the Company or any of its Subsidiaries to (or on behalf of, or for the benefit of) any Related Party in respect of salary, bonus or other ordinary course compensation, director or manager fees, reimbursement or advancement of expenses, indemnification or other benefits due to such individual in their capacity as an employee, independent contractor or director of the Company or any of its Subsidiaries, together with any employer-paid portion of any employment or payroll Taxes related thereto, in each case, in the Ordinary Course of Business and as required by the terms of the Employment Agreements in effect on the date hereof and as made available to BIII, (iii) any payments made by the Company or any of its Subsidiaries to a Related Party pursuant to any of the Affiliate Transactions, Contracts or arrangements to the extent set forth on Section 1.01(a) of the Company Disclosure Schedule; and (iv) any Tax payable by the Company or any of its Subsidiaries as a result of any of clauses (i) through (iii) above.
“Permitted Liens” means (i) Liens that arise in the Ordinary Course of Business and which are not yet due and payable or which are being contested in good faith through appropriate Actions, (ii) Liens incurred in the Ordinary Course of Business in connection with workers’ compensation, unemployment insurance and other mandatory social security legislation, (iii) Liens for Taxes not yet due and payable or which are being contested in good faith through appropriate Actions and with respect to which adequate reserves have been made in accordance with IFRS, (iv) Liens on real property (including zoning, building, or other similar restrictions, variances, encumbrances, easements, covenants, rights of way and similar restrictions of record and irregularities in title) that do not, individually or in the aggregate, materially interfere with the ownership, operation, value, or present uses of such real property, (v) statutory, common law and contractual Liens of landlords with respect to leased real property and the rights of lessors under any leases; (vi) purchase money Liens and Liens securing rental payments in connection with capital lease obligations of the Company; (vii) non-exclusive licenses of Intellectual Property granted in the Ordinary Course of Business, and (viii) Liens described on Section 1.01(b) of the Company Disclosure Schedule.
“Person” means any individual, firm, corporation, company, partnership, limited liability company, incorporated or unincorporated association, joint venture, joint stock company, governmental agency or instrumentality or other entity of any kind.
“Personally Identifiable Information” means any and all (i) information relating to an individual that either contains data elements that identify the individual or that can be used, directly or indirectly, to identify, contact or locate the individual, (ii) information that enables a person to contact the individual (such as information contained in a cookie or electronic device fingerprint), (iii) “personal data,” “personal information,” “nonpublic personal information” or any similar term as defined under any Applicable Law and (iv) other information, the Processing of which is regulated by an Applicable Law in relation to data protection or data privacy. Personally Identifiable Information includes (A) personal identifiers, such as name, address, telephone number, Social Security Number, date of birth, driver’s license number, identification number issued by a Governmental Authority, Taxpayer Identification Number and passport number, (B) online identifiers, e-mail addresses, social media handles, Internet or Software-based usernames, Internet protocol addresses, cookie identifiers, device identifiers, (C) financial information, including credit or debit card numbers, account numbers, access codes, consumer report information and insurance policy numbers, (D) demographic information, including information relating to an individual’s race, gender, age, ethnicity, religion or philosophy, political affiliation or sexual orientation, (E) biometric data, such as fingerprint, retina or iris image, voice print or other unique physical representation or characteristic and (F) geolocation information.
13
“PIPE Engagement Letters” has the meaning given to such term in Section 8.12.
“PIPE Financing” has the meaning given to such term in Section 8.12.
“Plan of Merger” has the meaning given to such term in Section 2.01(a).
“Pre-Closing BIII Holders” means the Members (as defined in the BIII Governing Document) of BIII at any time prior to the Merger Effective Time.
“Privacy Requirements” means any and all (i) Company Privacy Policies, (ii) obligations of the Company under Contracts involving the Processing of Personally Identifiable Information, (iii) Applicable Laws that apply to the security, privacy or Processing of Personally Identifiable Information, (iv) industry self-regulatory principles applicable to the protection or Processing of Personally Identifiable Information to which the Company or any of its Subsidiaries purport to adhere and (v) binding guidance issued by any Governmental Authority that pertains to any Applicable Law or principles outlined in the foregoing clauses (iii) or (iv).
“Process” or “Processing” means, with respect to any data or Personally Identifiable Information, the collection, recording, use, processing, storage, organization, modification, transfer, sale, retrieval, access, disclosure, deletion, dissemination or combination of such data or Personally Identifiable Information.
“Prospectus” has the meaning given to such term in Section 6.04.
“Proxy Statement” has the meaning given to such term in Section 8.04(a).
“Registered Intellectual Property” has the meaning given to such term in Section 4.13(a).
“Registration Rights Agreement” has the meaning given to such term in the recitals hereto.
“Registration Statement” means the Registration Statement on Form F-4, or other appropriate form determined by the Parties, including any pre-effective and post-effective amendments and supplements thereto, to be filed with the SEC by BIII under the Securities Act with respect to (i) the issuance of the BIII Class A Ordinary Share to each holder of BIII Class B Ordinary Shares in connection with the Conversion, (ii) the issuance of the Merger Consideration Shares and the Performance Shares to Astrum Holding pursuant to this Agreement, (iii) the issuance of Listco Shares issuable upon the exercise of BIII Warrants, and (iv) the resale of all Listco Shares (including Listco Shares issuable upon exercise of BIII Warrants) and BIII Warrants held or to be held by the Non-Public Eligible BIII Shareholders.
14
“Related Party” has the meaning given to such term in Section 4.21.
“Related Party Loans” has the meaning given to such term in Section 6.08.
“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into or through the indoor or outdoor environment.
“Reporting Exception Determination” has the meaning given to such term in Section 8.03(a)(ii).
“Representatives” means, collectively, with respect to any Person, such Person’s officers, directors, Affiliates, employees, agents or advisors, including any investment banker, broker, attorney, accountant, consultant or other authorized representative of such Person.
“Resale F-1 Effective Date” has the meaning given to such term in Section 8.04(a).
“Sanctions” has the meaning given to such term in Section 4.23(g).
“Sanctioned Territories” has the meaning given to such term in Section 4.23(g).
“SEC” means the U.S. Securities and Exchange Commission.
“SEC Documents” has the meaning given to such term in Section 5.08(a).
“Securities Act” means the Securities Act of 1933, as amended.
“Security Incident” means any incident involving (i) information security breaches, intrusions, interruptions, breakdowns or failures of the Company IT Systems or (ii) unauthorized access, use, theft, extraction, Processing, transfer, modification, loss, disclosure, corruption, destruction, encryption or other compromise of Company PII or other data held, in whatever form, by or on behalf of the Company or its Subsidiaries, including where the unauthorized event results from the use of any malicious code (including without limitation viruses, Trojan horses, worms, malware, ransomware, bombs, backdoors, clocks, timers or similar harmful or hidden programs or other disabling device or malicious code, design or routine), social engineering, unauthorized access to physical premises, loss of devices, disclosure of passwords or otherwise.
“Service Provider” means, as of any relevant time, any director, officer, employee or individual independent contractor of the Company or any of its Subsidiaries.
“Shareholders Support Agreement” has the meaning given to such term in the recitals hereto.
“Significant Contract” has the meaning given to such term in Section 4.12(a).
“Software” means any and all (i) computer, mobile, or device software, programs, systems, applications and code, including any software implementations of algorithms, models and methodologies and any source code, object code, firmware, middleware, APIs, development and design tools, applets, compilers, assemblers, interfaces, engines, utilities and scripts, (ii) descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing, and (iii) error corrections, updates, modifications, enhancements, documentation, other works of authorship and media, including user manuals and training materials, relating to or embodying any of the foregoing or on which any of the foregoing is recorded.
15
“Sponsor” means Black Spade Sponsor LLC III, a limited liability company registered under the laws of the Cayman Islands.
“Sponsor Support Agreement” has the meaning given to such term in the recitals hereto.
“Sponsor Transaction Bonus” has the meaning given to such term in Section 3.04.
“Subsidiary” means, with respect to a specified Person, a corporation or other entity (i) of which more than 50% of the voting power of the Equity Securities is owned, directly or indirectly, or held through contractual arrangement, by such specified Person or (ii) with respect to which such specified Person controls the management.
“Surviving Provisions” has the meaning given to such term in Section 10.02.
“Tax” means all federal, state, local, or foreign taxes, fees or levies imposed by a Governmental Authority (including income, profits, franchise, alternative minimum, gross receipts, sales, use, customs duties, value added, ad valorem, escheat, transfer, real property, personal property, stamp, capital stock, excise, premium, social security, payroll, occupation, employment, unemployment, severance, disability, registration, license, withholding and estimated tax), and any interest, penalty, or addition with respect thereto.
“Tax Return” means any return, report, schedule, form, election, statement, declaration, or document (including any refund claim, information statement, or amendment) filed or required to be filed with or submitted to a Governmental Authority in connection with the determination, assessment, collection or payment of any Tax.
“Terminating BIII Breach” has the meaning given to such term in Section 10.01(e).
“Terminating Company Breach” has the meaning given to such term in Section 10.01(d).
“Termination Date” has the meaning given to such term in Section 10.01(b).
“Top Vendors” means the most significant vendors of the Company, together with its Subsidiaries, as measured by amounts paid by the Company and its Subsidiaries for the 12-month period ended December 31, 2025, in each case involving aggregate payments of at least $250,000 during such period.
“Transaction Proposals” has the meaning given to such term in Section 8.05(a).
“Transactions” means the transactions contemplated by this Agreement and the Ancillary Agreements.
“Transfer Taxes” has the meaning given to such term in Section 8.03(b).
16
“Treasury Regulations” means the temporary and final regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).
“Trust Account” means the account established by BIII for the benefit of its public shareholders pursuant to the Trust Agreement.
“Trust Agreement” means the Investment Management Trust Agreement, dated as of January 5, 2026, by and between BIII and the Trustee.
“Trustee” means Continental Stock Transfer & Trust Company, a New York corporation.
“Unit Separation” has the meaning given to such term in Section 2.07(a).
“Virtual Data Room” means the virtual data room established and maintained by and on behalf of the Company in connection with BIII’s due diligence investigation of the Company relating to the Transactions, access to which was given to BIII.
“WARN” has the meaning given to such term in Section 4.16(b).
Section 1.02. Construction.
(a) Unless the context of this Agreement otherwise requires, (i) words of any gender include each other gender and neuter form, (ii) words using the singular or plural form also include the plural or singular form, respectively, (iii) the terms “hereof,” “herein,” “hereby,” “hereto,” “herewith,” “hereunder” and derivative or similar words refer to this entire Agreement (including the Annexes and Appendices hereto) and not to any particular provision of this Agreement, (iv) the terms “Article,” “Section” and “Annex” refer to the specified Article, Section or Annex of or to this Agreement unless otherwise specified, (v) whenever any other word derived from a defined term shall be used in this Agreement, such derived word shall have the meaning correlative to such defined term (e.g., “controlled” or “controlling” shall have the meaning correlative to “control”), (vi) the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation” whether or not they are in fact followed by such phrase or phrases or words of like import, (vii) the word “or” shall be disjunctive but not exclusive, and (viii) references to anything having been “provided,” “made available” or “delivered” (or any other similar references) to BIII means the relevant item has been posted in the Virtual Data Room accessible to BIII no later than 5:00 p.m. on the day which is at least two Business Days prior to the date hereof.
(b) All Annexes or Schedules (including the Company Disclosure Schedule and the BIII Disclosure Schedule) annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized term(s) used in any Annex or Schedule (including the Company Disclosure Schedule and the BIII Disclosure Schedule) annexed hereto or referred to herein but not otherwise defined therein shall have the meaning ascribed to such term(s) in this Agreement.
(c) Unless the context of this Agreement otherwise requires, references to agreements and other documents shall be deemed to include all subsequent amendments and other modifications thereto; provided that, with respect to any agreement or other document identified in the Company Disclosure Schedule or the BIII Disclosure Schedule, such amendment or other modification thereto is also identified in the Company Disclosure Schedule or the BIII Disclosure Schedule, respectively.
17
(d) Unless the context of this Agreement otherwise requires, references to any statute, law or other Applicable Law shall include all regulations and rules promulgated thereunder and references to any statute, law or other Applicable Law shall be construed as including all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation.
(e) References to any Person include references to such Person’s successors and assigns (provided, however, that nothing contained in this clause is intended to authorize any assignment or transfer not otherwise permitted by this Agreement), and in the case of any Governmental Authority, to any Person succeeding to its functions and capacities.
(f) The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent. The Parties acknowledge that each Party and its counsel has reviewed and participated in the drafting of this Agreement and that no rule of strict construction, presumption or burden of proof favoring or disfavoring a Party shall be applied against any Party.
(g) Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. If any action is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action may be deferred until the next Business Day. Except as otherwise expressly provided herein, (i) any reference in this Agreement to a date or time shall be deemed to be such date or time in New York, New York and (ii) references from or through any date mean, unless otherwise specified, from and including or through and including, such date, respectively.
(h) The phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”
(i) The terms “writing” and “written” and comparable terms refer to printing, typing and other means of reproducing words (including email) in visible form.
(j) All monetary figures used herein, including references to “$,” shall be in United States dollars unless otherwise specified.
Section 1.03. Knowledge. As used herein, the phrase “to the knowledge” of any Person shall mean the actual knowledge, after reasonable inquiry, of (a) in the case of Astrum Singapore or the Company, the individuals listed on Section 1.03 of the Company Disclosure Schedule and (b) in the case of BIII, the individuals listed on Section 1.03 of the BIII Disclosure Schedule.
Article 2
The Merger; Closing
Section 2.01. Merger.
(a) Upon the terms and subject to the conditions set forth in this Agreement, on the Closing Date, BIII and the Company shall execute a plan of merger (the “Plan of Merger”) in substantially the form attached as Annex E hereto by which the Company shall be merged with and into BIII in accordance with Part 16 of the Cayman Islands Companies Act, with BIII being the surviving company (the “Merger”), following which Astrum Singapore will become a direct wholly owned Subsidiary of the Merger Surviving Company.
18
(b) Upon consummation of the Merger at the Merger Effective Time, the separate corporate existence of the Company shall cease to exist and the Company will be struck off the Register of Companies in the Cayman Islands, and BIII, as the surviving company of the Merger (hereinafter referred to for the periods at and after the Merger Effective Time as the “Merger Surviving Company”), shall continue its corporate existence under the laws of the Cayman Islands.
Section 2.02. Effects of the Merger. At the Merger Effective Time, the Merger shall have the effects specified in this Agreement, the Plan of Merger and the Cayman Islands Companies Act. Without limiting the generality of the foregoing, and subject thereto, at the Merger Effective Time, all the rights, property of every description, including choses in action, and the business, undertaking, goodwill, benefits, immunities and privileges of each of BIII and the Company shall vest in the Merger Surviving Company and the Merger Surviving Company shall be liable for and subject in the same manner as BIII and the Company to all mortgages, charges or security interests and all Contracts, obligations, claims, debts and liabilities of BIII and the Company in accordance with the Cayman Islands Companies Act.
Section 2.03. Closing; Merger Effective Time. Subject to the terms and conditions of this Agreement, the closing of the Merger (the “Closing”) shall take place on the date which is three (3) Business Days after the date on which all conditions set forth in Article 9 shall have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions) or such other time and place as BIII and the Company may mutually agree. The date on which the Closing actually occurs is referred to in this Agreement as the “Closing Date.” Subject to the satisfaction or waiver of all of the conditions set forth in Article 9, on the Closing Date, BIII and the Company shall execute and file, or cause to be filed, the Plan of Merger and other documents required under the Cayman Islands Companies Act to effect the Merger with the Cayman Islands Registrar of Companies as provided by Section 233 of the Cayman Islands Companies Act. The Merger shall become effective at the time the Plan of Merger is registered by the Cayman Islands Registrar of Companies in accordance with the Cayman Islands Companies Act or at such later time or on such later (which shall not be a date later than the ninetieth day after the date the Plan of Merger is registered by the Cayman Islands Registrar of Companies in accordance with the Cayman Islands Companies Act) date as may be agreed by BIII and the Company in writing and, in either case, as specified in or pursuant to the Plan of Merger in accordance with the Cayman Islands Companies Act (the “Merger Effective Time”).
Section 2.04. Memorandum and Articles of Association of Merger Surviving Company. At the Merger Effective Time, in accordance with the Plan of Merger, the memorandum and articles of association of the Merger Surviving Company shall be in the form of the Listing Articles, until thereafter amended or restated as provided therein or by Applicable Law.
Section 2.05. Directors and Officers of the Merger Surviving Company. At the Merger Effective Time, the directors and officers of the Merger Surviving Company shall be appointed pursuant to Section 8.06, unless otherwise determined by BIII and the Company prior to the Merger Effective Time, each to serve until their respective successors are duly elected or appointed and qualified or until the earlier of their death, resignation or removal in accordance with the memorandum and articles of association of the Merger Surviving Company and pursuant to Section 8.06.
19
Section 2.06. Name Change. At the Merger Effective Time, the name of the Merger Surviving Company shall be changed to “Astrum Space Company” (or such other name as may be agreed by the Company and BIII). Immediately after the Merger Effective Time, the Merger Surviving Company shall trade publicly on the NYSE under a new ticker symbol mutually selected by BIII and the Company.
Section 2.07. Effects of the Merger on the Share Capital of BIII and the Company.
(a) Immediately prior to the Merger Effective Time, each BIII Unit that is issued and outstanding immediately prior to the Merger Effective Time shall be automatically detached and the holder thereof shall be deemed to hold one BIII Class A Ordinary Share and one-third of a BIII Public Warrant in accordance with the terms of the BIII Unit (the “Unit Separation”); provided that no fractional BIII Public Warrants will be issued in connection with the Unit Separation such that if a holder of BIII Units would be entitled to receive a fractional BIII Public Warrant upon the Unit Separation, the number of BIII Public Warrants to be issued to such holder upon the Unit Separation shall be rounded down to the nearest whole number of BIII Public Warrants without cash settlement for such rounded fraction.
(b) Immediately prior to the Merger Effective Time, each holder of a BIII Class B Ordinary Share that is issued and outstanding immediately prior to the Merger Effective Time will elect to convert each such share into one BIII Class A Ordinary Share pursuant to Article 18 (other than Article 18.2, the application of which to the Transactions has been or will be duly waived by the written consent of holders of a majority of the issued BIII Class B Ordinary Shares as a separate class pursuant to Article 10 and Article 18.3 of the BIII Governing Document) of the BIII Governing Document, and each BIII Class B Ordinary Share shall no longer be outstanding and shall be canceled, and each former holder of BIII Class B Ordinary Shares shall thereafter cease to have any rights with respect to such BIII Class B Ordinary Shares (the “Conversion”).
(c) At the Merger Effective Time, by virtue of the Merger and without any action on the part of BIII, the Company or any holder of Equity Securities thereof:
(i) each Eligible BIII Share issued and outstanding immediately prior to the Merger Effective Time, including the BIII Class A Ordinary Shares issued as a result of the Conversion, shall remain issued and outstanding and shall not be affected by the Merger, and each Eligible BIII Shareholder shall continue to hold such Eligible BIII Shares as Listco Shares, being the Class A ordinary shares of the Merger Surviving Company;
(ii) each BIII Class A Ordinary Share that is issued and outstanding and held immediately prior to the Merger Effective Time by BIII as treasury shares, including shares redeemed by BIII in connection with the exercise of BIII Shareholder Redemption Rights (if any) (collectively, the “BIII Excluded Shares”) shall be cancelled and cease to exist, and no consideration shall be paid or payable with respect thereto; and
(iii) each BIII Redeeming Share that is issued and outstanding immediately prior to the Merger Effective Time shall be cancelled and cease to exist and shall thereafter represent only the right to be paid a pro rata share of the BIII Shareholder Redemption Amount in accordance with the BIII Governing Document.
(d) At the Merger Effective Time, each whole BIII Warrant that is outstanding and unexercised immediately prior to the Merger Effective Time shall remain outstanding and shall continue to represent the right to purchase one Listco Share on the same terms and conditions as in effect immediately prior to the Merger Effective Time.
20
(e) At the Merger Effective Time, by virtue of the Merger and without any action on the part of BIII, the Company or any holder of Equity Securities thereof, the ordinary shares of the Company, par value $0.01 per share, issued and outstanding immediately prior to the Merger Effective Time and held by Astrum Holding shall be cancelled in exchange for the right of Astrum Holding to receive a total of 100,000,000 validly issued, fully paid and non-assessable Listco Shares (the “Merger Consideration Shares”).
(f) Without limiting the other provisions of this Agreement, if at any time during the period between the date of this Agreement and the Merger Effective Time, the issued and outstanding BIII Ordinary Shares shall have been changed into a different number of shares or a different class by reasons of any reclassification, share split (including reverse share split), share dividend or distribution, reorganization, recapitalization or other similar transaction, then the number of Merger Consideration Shares shall be equitably and proportionately adjusted, if necessary and without duplication, to reflect fully the effect of any such change to provide Astrum Holding the same economic effect as contemplated by this Agreement.
Article 3
Closing Deliveries
Section 3.01. Closing Deliverables.
(a) At or prior to the Closing, the Company shall deliver or cause to be delivered to BIII:
(i) the Registration Rights Agreement, duly executed by Astrum Holding; and
(ii) a certificate signed by an authorized officer of the Company, dated the Closing Date, certifying that the conditions specified in Section 9.02(a), Section 9.02(b) and Section 9.02(c) have been fulfilled.
(b) At or prior to the Closing, BIII shall deliver or cause to be delivered to the Company:
(i) the Registration Rights Agreement, duly executed by BIII, the Sponsor and the other parties named or set out in the signature pages thereto; and
(ii) a certificate signed by an authorized director or officer of BIII, dated the Closing Date, certifying that the conditions specified in Section 9.03(a), Section 9.03(b) and Section 9.03(c) have been fulfilled.
Section 3.02. Issuance of Merger Consideration Shares.
(a) At the Closing, BIII shall issue the Merger Consideration Shares to Astrum Holding pursuant to this Section 3.02, and shall deliver to Astrum Holding the amount of any dividends or other distributions with a record date after the Merger Effective Time theretofore paid with respect to such Merger Consideration Shares.
21
(b) The Merger Consideration Shares shall be issued to Astrum Holding in book-entry form with DTC or its nominee being the holder of record of such Merger Consideration Shares.
Section 3.03. No Liability; Withholding.
(a) None of the Parties and the Merger Surviving Company shall be liable to any Person for any portion of the Merger Consideration Shares delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. Notwithstanding any other provision of this Agreement, any portion of the Merger Consideration Shares that remains undistributed to Astrum Holding as of immediately prior to the date on which such Merger Consideration Shares would otherwise escheat to or become the property of any Governmental Authority shall, to the extent permitted by Applicable Law, become the property of the Merger Surviving Company, free and clear of all claims or interest of any Person previously entitled thereto.
(b) Notwithstanding any other provision of this Agreement, each of the Parties, the Merger Surviving Company, and any other applicable withholding agent (without duplication) (each, a “Payor”) shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Agreement such Taxes as are required to be deducted and withheld with respect to the making of such payment under any applicable Tax law. Any amounts so deducted and withheld shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made.
Section 3.04. Sponsor Transaction Bonus. In consideration for Sponsor’s efforts in facilitating the consummation of the Transaction, including assisting with the PIPE Financing, at and subject to the Closing, the Company shall pay (or cause to be paid) to the Sponsor an amount (the “Sponsor Transaction Bonus”) equal to US$3,500,000. The Sponsor Transaction Bonus shall be deducted from the Trust Account or paid from the Company’s available funds (which for the avoidance of doubt shall include proceeds of any PIPE Financing), in each case concurrently at Closing.
Section 3.05. Performance Shares.
(a) Performance Shares. Following the Closing, the Merger Surviving Company shall issue, or cause to be issued, to Astrum Holding, up to a total of 25,500,000 Listco Shares (the “Performance Shares”), upon the terms and conditions set forth in this Section.
(b) Milestone Events. If the Merger Surviving Company achieves any of the following milestone events (as evidenced by certifications issued by the relevant manufacturer or launch provider, as applicable, or such other reasonable documentation evidencing the satisfaction of the relevant milestone event) in respect of its geostationary earth orbit satellite named “NEASTAR-1” (each, a “Milestone Event”) on or prior to the applicable milestone date (each, a “Milestone Date”) as set forth in the following table, Astrum Holding shall be entitled to receive the applicable number of Listco Shares set out in the following table:
| Milestone Event | Milestone Date | Listco Shares |
| Upon full spacecraft integration | On or prior to February 1, 2028 | 7,650,000 |
| Upon shipment to the launch site | On or prior to April 15, 2029 | 10,200,000 |
| Upon launch of the NEASTAR-1 satellite | On or prior to June 30, 2029 | 7,650,000 |
22
(c) Issuance. The Listco Shares shall be issued as soon as reasonably practicable following the achievement of such Milestone Event on or prior to the applicable Milestone Date, and in any event within ten (10) Business Days of the occurrence of such Milestone Event (for the avoidance of doubt, as evidenced by certifications issued by the relevant manufacturer or launch provider, as applicable, or such other reasonable documentation evidencing the satisfaction of the relevant milestone event).
(d) Milestone Catch-up. Notwithstanding any failure to achieve a prior Milestone Event by its applicable Milestone Date, if a subsequent Milestone Event is achieved by its applicable Milestone Date, then the Performance Share Recipients shall be entitled to receive, in addition to the Listco Shares corresponding to such subsequent Milestone Event, the number of Listco Shares corresponding to any prior Milestone Event(s) that were not previously achieved by the applicable Milestone Date; provided that such Listco Shares shall only be issuable after (and not prior to) the date of achievement of such subsequent Milestone Event.
(e) Force Majeure. If a Force Majeure Event occurs that prevents, or materially delays or impedes the achievement of a Milestone Event, the Milestone Date for the last Milestone Event (i.e., launch of the NEASTAR-1 satellite) shall be automatically extended on a day-for-day basis for the duration of such Force Majeure Event, provided that the Merger Surviving Company has (i) used commercially reasonable efforts to mitigate the effects of such Force Majeure Event and to resume performance as soon as reasonably practicable and (ii) during the Interim Period, provided BIII with prompt written notice specifying the nature of the Force Majeure Event and its anticipated duration; provided further that in no event shall the Milestone Date for the last Milestone Event be extended to a date later than December 31, 2029. For the avoidance of doubt, Section 2.04(d) (Milestone Catch-up) shall continue to apply with respect to any Milestone Event(s) that were not achieved by the applicable Milestone Date (as extended pursuant to this Section 2.04(e)).
(f) The rights to the Performance Shares (i) are solely contractual rights, (ii) will not be evidenced by a certificate, do not constitute securities or other instruments and are not readily marketable, and (iii) if and until such Performance Shares are issued, may not be sold, assigned, transferred, pledged, encumbered or in any other manner transferred or disposed of, in whole or in part.
(g) The terms and conditions governing the right to receive Performance Shares are intended to meet the conditions set forth in Revenue Procedure 84-42, and any issuance of the Performance Shares shall be treated as an adjustment to the Merger consideration by the parties for Tax purposes and not treated as “other property” within the meaning of Section 356 of the Code, unless required pursuant to a “determination” within the meaning of Section 1313(a) of the Code or otherwise required by Law.
23
Article 4
Representations and Warranties of the Company and Astrum Singapore
Except (a) as set forth in the Company Disclosure Schedule (subject to Section 11.14) or (b) as otherwise explicitly set out in this Agreement, each of the Company and Astrum Singapore represents and warrants to BIII as of the date hereof and as of the Closing Date as follows, provided that Astrum Singapore shall give the representations and warranties set forth in this Article 4 only to the extent relating to the Subsidiaries of the Company (and not the Company itself):
Section 4.01. Corporate Existence and Power.
(a) The Company is an exempted company duly incorporated, validly existing and in good standing under the laws of the Cayman Islands and has all requisite corporate or similar organizational power and authority to own or lease its properties and to conduct its business as it is now being conducted.
(b) True and complete copies of the Governing Documents of the Company have been made available to BIII. Such Governing Documents are in full force and effect and, if required under Applicable Law, have been registered with, as applicable, the appropriate Governmental Authorities. The Company is not in violation of any of the provisions of its Governing Documents.
(c) The Company is duly licensed or qualified and, where applicable, in good standing (to the extent such concept exists in the relevant jurisdiction) as a foreign company in each jurisdiction in which the ownership or lease of its property or the character of its activities is such as to require it to be so licensed, qualified or in good standing (to the extent such concept exists in the relevant jurisdiction), as applicable, except where the failure to be so licensed or qualified would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
Section 4.02. Corporate Authorization.
(a) Each of the Company and Astrum Singapore has all requisite power and authority to execute and deliver this Agreement and each Ancillary Agreement to which it is (or is specified to be) a party, to perform its obligations hereunder and thereunder, and (subject to the approvals described in Section 4.03) to consummate the Transactions. The execution, delivery and performance of this Agreement and each Ancillary Agreement to which it is (or is specified to be) a party, and the consummation of the Transactions have been duly and validly authorized and approved by the Company Board and Astrum Singapore Board, and no other corporate or similar organizational action on the part of the Company, Astrum Singapore or any of their respective Subsidiaries or any holders of any Equity Securities of the Company, Astrum Singapore or any of their respective Subsidiaries is necessary to authorize the execution and delivery by the Company and Astrum Singapore of this Agreement or the Ancillary Agreements to which the Company or Astrum Singapore is (or is specified to be) a party, the performance by the Company or Astrum Singapore of its obligations hereunder and thereunder and the consummation of the Transactions. This Agreement has been duly and validly executed and delivered by each of the Company and Astrum Singapore and, assuming this Agreement constitutes a legal, valid and binding obligation of the other Parties, constitutes a legal, valid and binding obligation of each of the Company and Astrum Singapore, enforceable against each of the Company and Astrum Singapore in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity. Each Ancillary Agreement to which the Company or Astrum Singapore is (or is specified to be) a party, when executed and delivered by the Company or Astrum Singapore, will be duly and validly executed and delivered by the Company or Astrum Singapore, and, assuming such Ancillary Agreement constitutes a legal, valid and binding obligation of the other parties thereto, will constitute a legal, valid and binding obligation of the Company or Astrum Singapore, enforceable against the Company or Astrum Singapore in accordance with its terms, except as limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.
24
(b) Each of the Company Board and the Astrum Singapore Board has, by duly adopted resolutions and if applicable, at a meeting duly called and held, unanimously (i) approved, as applicable, this Agreement, the Ancillary Agreements and the Transactions, and (ii) determined that this Agreement, the Ancillary Agreements and the Transactions are advisable and in the best interests of, as applicable, the Company and Astrum Singapore, and their respective shareholders. The Company Board has, by duly adopted resolutions and if applicable, at a meeting duly called and held, unanimously (i) directed that the adoption of this Agreement and the Ancillary Agreements be submitted for approval by the shareholders of the Company, and (ii) recommended that the shareholders of the Company approve this Agreement, the Ancillary Agreements and the Transactions.
Section 4.03. Governmental Authorizations; Consents. Assuming the representations and warranties in Article 5 are true, correct and complete, no consent, approval or authorization of, or designation, declaration to or filing with, notice to, or any other action by or in respect of, any Governmental Authority or other Person is required on the part of the Company or Astrum Singapore with respect to the Company’s or Astrum Singapore’s execution, delivery and performance of this Agreement and each Ancillary Agreement to which it is (or is specified to be) a party or the consummation of the Transactions, except for (a) any applicable requirements of any Antitrust Laws, (b) the filing of the Plan of Merger and related documentation with the Cayman Islands Registrar of Companies in accordance with the Cayman Islands Companies Act and the publication of notification of the Merger in the Cayman Islands Government Gazette in accordance with the Cayman Islands Companies Act or (c) any consents, approvals, authorizations, designations, declarations, filings, notices or actions, the absence of which would not reasonably be expected to be, individually or in the aggregate, material to the Company or its Subsidiaries, taken as a whole.
Section 4.04. Noncontravention. The execution, delivery and performance of this Agreement and each Ancillary Agreement to which the Company or Astrum Singapore is (or is specified to be) a party by the Company or Astrum Singapore and the consummation of the Transactions do not and will not (a) contravene, conflict with, or violate any provision of, or result in the breach of any Applicable Law, (b) contravene, conflict with, or violate any provision of, or result in the breach of the Governing Documents of the Company or Astrum Singapore or any of their respective Subsidiaries, (c) assuming the receipt of the consents, approvals, authorizations and other requirements set forth in Section 4.03, conflict with, violate or result in a breach of any term, condition or provision of any Significant Contract, or terminate or result in a default under, or require any consent, notice or other action by any Person under (with or without notice, or lapse of time, or both) or the loss of any right under, or create any right of termination, acceleration or cancellation of, any Significant Contract, or (d) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Company or Astrum Singapore or any of their respective Subsidiaries, or constitute an event which, with or without notice or lapse of time or both, would result in any such violation, breach, termination or creation of a Lien or result in a violation or revocation of any required license, Permit or approval from any Governmental Authority or other Person, except, in each case of clauses (a), (c) and (d) above, to the extent that the occurrence of any of the foregoing would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole or have a material adverse effect on the ability of the Company or Astrum Singapore to enter into and perform this Agreement and the Ancillary Agreements.
25
Section 4.05. Subsidiaries.
(a) The Subsidiaries of the Company are set forth on Section 4.05(a) of the Company Disclosure Schedule. Each of the Subsidiaries of the Company has been duly incorporated, formed or organized and is validly existing and in good standing (to the extent such concept exists in the jurisdiction of the relevant Subsidiary), where applicable, under the laws of its jurisdiction of incorporation, formation or organization and has all requisite corporate or similar organizational power and authority to own or lease its properties and to conduct its business as it is now being conducted. Each Subsidiary of the Company is duly licensed or qualified and in good standing (to the extent such concept exists in the jurisdiction of the relevant Subsidiary) as a foreign company (or other entity, if applicable) in each jurisdiction in which its ownership or lease of property or the character of its activities is such as to require it to be so licensed or qualified or in good standing (to the extent such concept exists in the jurisdiction of the relevant Subsidiary), as applicable, except where the failure to be so licensed or qualified or in good standing (to the extent such concept exists in the jurisdiction of the relevant Subsidiary) would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(b) True and complete copies of the Governing Documents of the Subsidiaries of the Company have been made available to BIII, and are in full force and effect and such Subsidiaries are not in violation of any of the provisions thereof.
Section 4.06. Capitalization.
(a) All of the issued Company Ordinary Shares have been duly authorized and validly issued in accordance with Applicable Law, including all applicable federal securities laws, and the Governing Documents of the Company, and are fully paid and were not issued in violation of, any preemptive rights, rights of first refusal or similar rights, and are free and clear of all Liens and other restrictions (including any restriction on the right to vote, sell or otherwise dispose of such Company Ordinary Shares), and are not subject to any preemptive rights, rights of first refusal or similar rights, other than generally applicable transfer restrictions imposed by applicable securities laws. Section 4.06(a) of the Company Disclosure Schedule sets forth a true, correct and complete list, as of the date of this Agreement, of all the Company Ordinary Shares that are authorized, issued or outstanding and the holders of such Company Ordinary Shares. Except as set forth in Section 4.06(a) of the Company Disclosure Schedule, there are no authorized, issued or outstanding Equity Securities of the Company.
(b) Set forth on Section 4.06(b) of the Company Disclosure Schedule is (i) the capitalization of each direct and indirect Subsidiary of the Company, including the number of Equity Securities authorized, issued and outstanding (including the holder of any such Equity Securities) for each such Subsidiary and (ii) the name of each other corporation, limited liability company, trust, partnership, joint venture or other entity in which the Company or any of its Subsidiaries owns Equity Securities and the amount and the ownership percentage represented by such Equity Securities. The outstanding Equity Securities of each of the Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and are not subject to, nor were they issued in violation of, any preemptive rights, rights of first refusal or similar rights. Other than as set forth on Section 4.06(b) of the Company Disclosure Schedule, the Company or one or more of its wholly owned Subsidiaries own of record and beneficially all the issued and outstanding Equity Securities of each Subsidiary of the Company free and clear of any Liens other than Permitted Liens.
26
(c) Other than as set forth on Section 4.06(a) of the Company Disclosure Schedule or Section 4.06(b) of the Company Disclosure Schedule, there are no Equity Securities of the Company or any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Equity Securities of the Company or any Subsidiary of the Company. There are no outstanding bonds, debentures, notes or other Indebtedness of the Company or any of its Subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter for which the equityholders of the Company or any Subsidiary of the Company may vote. None of the Company or any of its Subsidiaries is a party to any equityholders agreement, voting agreement or registration rights agreement relating to the Equity Securities of the Company or any Subsidiary of the Company. There are no declared but unpaid dividends or other distributions with regard to any issued and outstanding Equity Securities of the Company or any Subsidiary of the Company.
Section 4.07. Financial Statements.
(a) As used herein, “Company Financial Statements” means (i) the unaudited combined balance sheets and statements of income, other comprehensive loss, shareholders’ equity and cash flows as of and for the fiscal years ended December 31, 2024 and December 31, 2025 for the Company and (ii) once available and delivered by the Company, audited consolidated financial statements of the Company for the fiscal years ended December 31, 2024 and December 31, 2025. prepared in accordance with and pursuant to Section 6.03. The Company Financial Statements present fairly, in all material respects, the consolidated financial position, results of operations, and changes in shareholders’ equity and cash flows of the Company and its Subsidiaries as of the dates and for the periods indicated in the Company Financial Statements in conformity with IFRS consistently applied throughout the period indicated. Attached as Section 4.07(a) of the Company Disclosure Schedule are true and complete copies of the unaudited Company Financial Statements.
(b) The Company Financial Statements have been (i) prepared in all material respects in accordance with IFRS and, to the extent reasonably practicable, Regulation S-X and, upon completion of the PCAOB audit contemplated in Section 6.03, will be audited in accordance with PCAOB auditing standards by a PCAOB-qualified auditor that was independent under Rule 2-01 of Regulation S-X under the Securities Act.
(c) Other than as set forth on Section 4.07(c) of the Company Disclosure Schedule, the Company and its Subsidiaries have established and maintained, and maintain, systems of internal controls over financial reporting. Such systems are designed to provide, in all material respects, reasonable assurance that (i) all transactions are executed in accordance with management’s general or specific authorization, (ii) all transactions are recorded as necessary to permit preparation of proper and accurate financial statements in accordance with IFRS and to maintain accountability for the Company’s and its Subsidiaries’ assets and (iii) access to assets is permitted only in accordance with management’s general or specific authorization, (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any material differences, and (v) material information is communicated to management as appropriate. Other than as set forth on Section 4.07(c) of the Company Disclosure Schedule, none of the Company, its Subsidiaries, or, to the knowledge of the Company, an independent auditor of the Company or its Subsidiaries, has identified or been made aware of (i) any significant deficiency or material weakness in the system of internal accounting controls utilized or maintained by the Company or its Subsidiaries, (ii) any fraud, whether or not material, that involves the Company’s or its Subsidiaries’ management or other employees who have a significant role in the preparation of financial statements or the internal accounting controls utilized or maintained by the Company or its Subsidiaries, or (iii) any claim or allegation regarding any of the foregoing.
27
(d) Neither the Company nor any of its Subsidiaries is a party to, or is subject to any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among the Company and any of its Subsidiaries, on the one hand, and any unconsolidated Affiliate, on the other hand), including any structured finance, special purpose or limited purpose entity or Person, or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under the Securities Act), in each case, where the result, purpose or effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company or any of its Subsidiaries in the Company Financial Statements.
(e) Neither the Company nor any of its Subsidiaries has received from any employee of the Company or its Subsidiaries any written or, to the knowledge of the Company, oral complaint, allegation, assertion or claim with respect to unlawful or potentially unlawful activity regarding accounting, internal accounting controls, auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries, and the Company and its Subsidiaries have not independently identified or received any written notice from their independent accountants regarding any of the foregoing.
(f) As of the date hereof, the Company and its Subsidiaries do not have any Indebtedness except as set forth in Section 4.07(f) of the Company Disclosure Schedule.
Section 4.08. Undisclosed Liabilities.
(a) The Company was incorporated 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 and has no, and at all times prior to the Merger Effective Time except as expressly contemplated by this Agreement and the Ancillary Agreements, will have no, assets, liabilities or obligations of any kind or nature whatsoever other than those incident to its formation.
(b) There is no liability, debt or obligation of the Company or any of its Subsidiaries (x) required to be set forth on a balance sheet of the Company in accordance with IFRS or (y) that is material, except for liabilities, debts and obligations (i) as (and to the extent) reflected or reserved for on the balance sheet of the Company as of December 31, 2025 or disclosed in the notes thereto included in the Company Financial Statements, (ii) that have arisen since December 31, 2025 in the Ordinary Course of Business (none of which results from, arises out of or was caused by any tortious conduct, breach of Contract, infringement or violation of any Applicable Law by the Company or any of its Subsidiaries) or (iii) incurred in connection with the Transactions.
28
Section 4.09. Absence of Changes.
(a) Since December 31, 2025, there has not been any Company Material Adverse Effect.
(b) Since December 31, 2025, the Company and its Subsidiaries (i) have, in all material respects, conducted their business and operated their properties in the Ordinary Course of Business and (ii) have not taken any action (or failed to take any action) that would violate Section 6.01 if such action had been taken (or failed to be taken) after the date of this Agreement.
Section 4.10. Litigation and Proceedings. Except as set forth in Section 4.10 of the Company Disclosure Schedule, since January 1, 2023, there have not been any, and there are currently no, pending or, to the knowledge of the Company, threatened, Actions against the Company or any of its Subsidiaries or any of their respective properties or assets, or, to the knowledge of the Company, any of their respective directors or employees, in their capacity as such except, in each case, as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect. Except as set forth in Section 4.10 of the Company Disclosure Schedule, since January 1, 2023, neither the Company nor any of its Subsidiaries nor any property or asset of the Company or any such Subsidiary, has been subject to any Governmental Order that would reasonably be expected to have a Company Material Adverse Effect.
Section 4.11. Compliance with Laws; Permits.
(a) The Company and its Subsidiaries, and their respective officers, directors and employees are and since January 1, 2023 have been, in compliance with Applicable Law, except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect. Since January 1, 2023, (i) none of the Company or any of its Subsidiaries has been subjected to, or received any notification from, any Governmental Authority of a material violation of any Applicable Law or any investigation by a Governmental Authority for actual or alleged material violation of any Applicable Law, (ii) to the knowledge of the Company, no claims have been filed against the Company or any of its Subsidiaries with any Governmental Authority alleging any material failure by the Company or any of its Subsidiaries to comply with any Applicable Law, and (iii) neither the Company nor any of its Subsidiaries has made a voluntary, directed, or involuntary disclosure to any Governmental Authority regarding any alleged act or omission arising under or relating to any noncompliance with any Applicable Law.
(b) The Company and each of its Subsidiaries has all Permits that are required to own, lease or operate its properties and assets and to conduct its business as currently conducted and as proposed to be conducted (the “Company Permits”), except where the failure to have such Company Permits would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect. As of the date hereof, (i) each Company Permit is in full force and effect in accordance with its terms, (ii) no outstanding notice of revocation, adverse modification, cancellation or termination of any Company Permit has been received by the Company or any of its Subsidiaries, (iii) there are no Actions pending or, to the knowledge of the Company, threatened that seek the revocation, suspension, withdrawal, adverse modification, cancellation or termination of any Company Permit, and (iv) each of the Company and each of its Subsidiaries is, and has been since January 1, 2023, in compliance with all material Company Permits applicable to the Company or such Subsidiary and to the knowledge of the Company, no condition exists that with notice or lapse of time or both would constitute a default under such Company Permits, in each case, except as would not be material to the Company and its Subsidiaries, taken as a whole. The consummation of the Transactions will not cause the revocation, modification or cancellation of any Company Permits, except for any such revocation, modification or cancellation that would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect. Section 4.11(b) of the Company Disclosure Schedule contains a true and complete list of all material Company Permits.
29
Section 4.12. Significant Contracts.
(a) Section 4.12(a) of the Company Disclosure Schedule sets forth a complete and accurate list of all Contracts to which the Company or any of its Subsidiaries is a party or is bound by falling within the following categories and in effect as of the date hereof (each Contract required to be listed on Section 4.12(a) of the Company Disclosure Schedule and, as of the Closing, any other Contract in effect that would have been required to be disclosed pursuant to Section 4.12(a) if in effect on the date hereof, a “Significant Contract”; it being understood that the Company is not required to list any Contract with suppliers, service providers or customers of the Company and its Subsidiaries entered into in the Ordinary Course of Business on Section 4.12(a) of the Company Disclosure Schedule if such Contract falls into categories set forth in Section 4.12(a)(i), (xii) and (xv) but any such Contract shall still constitute a Significant Contract for the purposes of this Agreement):
(i) any Contract, the performance of which involves payments (A) by the Company or its Subsidiaries in the aggregate in excess of $5,000,000 in any fiscal year or (B) to the Company or its Subsidiaries in the aggregate in excess of $5,000,000 in any fiscal year, including the Founder Support Letter;
(ii) any Contract for the voting of Equity Securities of the Company or any of its Subsidiaries;
(iii) any Contract with a Top Vendor (other than purchase or service orders accepted, confirmed or entered into in the Ordinary Course of Business);
(iv) any Contract for the construction, launch or operation of satellites or any associated ground network;
(v) any satellite coordination Contract;
(vi) any Contract with any Governmental Authority governing spectrum reservations;
(vii) any Contract for the lease, license or operation of any Major Station or otherwise related to the operation of any Company Satellite or New Satellite;
(viii) any employment Contract with any of the employees of the Company and/or one of its Subsidiaries that provides for annual base compensation in excess of $500,000;
(ix) each collective bargaining Contract (a “Labor Contract”);
30
(x) any Contract pursuant to which the Company or any of its Subsidiaries leases, subleases, occupies or otherwise uses any real property that involves aggregate payments of $5,000,000 in any calendar year;
(xi) any Contract that (A)(1) contains a covenant not to compete in any line of business or solicit persons for employment (other than non-disclosure agreements and confidentiality agreements entered into in the Ordinary Course of Business), (2) grants exclusive or preferential rights or “most favored nations” status to any person, or (3) obligates the Company or any of its Subsidiaries to purchase or obtain a minimum or specified amount of any product or service in excess of $5,000,000 in the aggregate, in each case that is applicable to the Company or any of its Subsidiaries, or (B) prohibits the Company or any of its Subsidiaries from soliciting any customers or strategic partners;
(xii) (A) any Contract under which the Company or any of its Subsidiaries has granted to a third party any right, license, sublicense or covenant not to sue with respect to any Intellectual Property, other than non-exclusive licenses granted to suppliers, service providers, or customers in the Ordinary Course of Business, or (B) any Contract pursuant to which the Company or any of its Subsidiaries obtains any right, license, sublicense or covenant not to sue from a third party with respect to any Intellectual Property, other than non-exclusive licenses of commercial off-the-shelf Software and Open Source Software that are available to the public generally with annual license, maintenance, support and other fees of less than $5,000,000;
(xiii) any Contract under which the Company or any of its Subsidiaries has (A) created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) any Indebtedness (excluding, for the avoidance of doubt, any intercompany arrangements solely between or among the Company or any of its Subsidiaries), (B) granted a Lien on its assets or group of assets, whether tangible or intangible, to secure any Indebtedness, (C) extended credit to any Person (other than pursuant to Contracts (i) involving immaterial advances made to an employee of the Company or any of its Subsidiaries or (ii) for goods and services, in each case in the Ordinary Course of Business) or (D) granted a material performance bond, letter of credit or any other similar instrument, in each case, in excess of $5,000,000 in the aggregate;
(xiv) any Contract with any Governmental Authority;
(xv) each Contract with a Related Party (other than Employment Agreements or Contracts for compensation for services performed by a Related Party as director, officer, service provider or employee of the Company or any of its Subsidiaries and amounts reimbursable for routine travel and other business expenses in the Ordinary Course of Business);
(xvi) each Contract relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) that contains financial covenants, indemnities or other payment obligations (including “earn-out” or other contingent payment obligations) that would reasonably be expected to result in the making of payments by the Company and its Subsidiaries after the Closing Date in excess of $5,000,000;
(xvii) any Contract establishing any joint venture, strategic alliance, partnership or other collaboration;
31
(xviii) any Contract involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute under which the Company or any of its Subsidiaries has any ongoing obligations (either monetary or non-monetary); and
(xix) any Contract which grants any Person a right of first refusal, right of first offer or similar right with respect to any properties, assets or businesses of the Company or any of its Subsidiaries.
(b) True and correct copies of each Significant Contract (including any side letters, side agreements, amendments, addendums or supplements thereto) as of the date hereof have been delivered to or made available to BIII. Each Significant Contract is in full force and effect and represents the legal, valid and binding obligations of the Company or the Subsidiary party thereto and, to the knowledge of the Company, the counterparties thereto and is enforceable against the Company or any of its Subsidiaries (as applicable), and to the knowledge of the Company, the counterparties thereto, in accordance with its terms and conditions. Neither the Company nor any of its Subsidiaries nor, to the knowledge of the Company, any other party to any such Significant Contract is in material breach of or in material default under such Significant Contract. Neither the Company nor any of its Subsidiaries has received any written claim or notice of material breach of or material default under any Significant Contract, and, to the knowledge of the Company, no event has occurred which individually or together with other events, would reasonably be expected to result in a breach of or a default under any Significant Contract by the Company or any Subsidiary of the Company party thereto or, to the knowledge of the Company, any other party thereto (in each case, with or without notice or lapse of time or both), in each case except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect. To the knowledge of the Company, no party to any Significant Contract has exercised termination rights with respect thereto or has indicated in writing that it intends to terminate or materially modify its relationship with the Company or any of its Subsidiaries.
Section 4.13. Intellectual Property.
(a) Section 4.13(a) of the Company Disclosure Schedule contains a complete and accurate list of: (i) all registrations and applications for registration included in the Owned Intellectual Property as of the date of this Agreement (the “Registered Intellectual Property”), including as to each such item, as applicable, (A) the current owner or registrant, (B) the jurisdiction where the application, registration or issuance is filed, (C) the application, registration or issue number and (D) the applicable application, registration or issue date, (ii) all material unregistered Owned Intellectual Property, including Software owned by the Company and its Subsidiaries, and (iii) all domain names and social media accounts of the Company and its Subsidiaries.
(b) Each item of Registered Intellectual Property (i) has not been abandoned, canceled, allowed to lapse or adjudged invalid or unenforceable in whole or in part, or otherwise subject to opposition, removal, amendment, challenge or surrender or, in case of applications, there are no oppositions nor anything else that would prevent the applications from being granted (and there are no potential grounds for the same), (ii) has been maintained effective by all requisite filings, renewals, payments and registration of transactions and (iii) is valid, subsisting, enforceable and in full force and effect, and the Company and its Subsidiaries have not received advice from any in-house or external professional expressing doubt on, the scope, validity or enforceability of the Registered Intellectual Property.
32
(c) The Company and its Subsidiaries have sufficient trademark protection to protect their Intellectual Property from infringement, misappropriation or violation from third parties, including valid, subsisting and enforceable registrations for all material trademarks used by the Company and its Subsidiaries in the jurisdictions they offer, sell or supply their products.
(d) Except as would not be expected to be material to the Company and its Subsidiaries, taken as a whole, the Company and its Subsidiaries (i) solely and exclusively own all right, title and interest (including all legal and beneficial interests) in and to the Owned Intellectual Property (including all Registered Intellectual Property) free from all Liens (other than Permitted Liens), and (ii) have a valid and enforceable right to use all Licensed Intellectual Property, in each case, free and clear of all Liens (other than Permitted Liens).
(e) The Owned Intellectual Property: (i) has not been licensed to any third party on an exclusive basis; (ii) is fully enforceable against third parties (and there have been no acts or omissions that would prejudice the enforcement by the Company and its Subsidiaries, including acquiescence by the Company, its Subsidiaries, their Affiliates, directors, employees or other representatives in any unauthorized use by third parties). There are no restrictions on the Company’s disclosure, use, license or transfer of the Owned Intellectual Property or any agreements to that effect.
(f) The Company and its Subsidiaries use commercially reasonable efforts in accordance with generally accepted industry practice to maintain, enforce and protect the confidentiality of all the Owned Intellectual Property and the Business Intellectual Property, the value of which to their business is contingent upon maintaining the confidentiality thereof, including maintaining policies requiring all employees, consultants and independent contractors to agree to maintain the confidentiality of such Intellectual Property pursuant to written, valid and enforceable confidentiality agreements. To the knowledge of the Company, there has been no disclosure of or unauthorized access to any trade secrets or confidential information owned by the Company other than under written confidentiality agreements in the Ordinary Course of Business sufficiently protective to preserve the confidentiality of such trade secrets and confidential information.
(g) The Company and each of its Subsidiaries own or have a valid and enforceable license or other right to use any and all Intellectual Property used or held for use in the conduct of the business of the Company and its Subsidiaries as currently conducted (“Business Intellectual Property”). The execution and delivery of this Agreement by the Company and the consummation of the Transactions contemplated hereby will not result in the loss, alteration, encumbrance, termination, extinguishment or impairment of any rights of the Company or its Subsidiaries in the Business Intellectual Property.
(h) Without prejudice to the generality of the foregoing, in respect of the Licensed Intellectual Property: (i) each licence is in full force and effect and binding on the parties to it; (ii) no licence grants to any third party any right or interest in relation to any derivative works or improvements made by or on behalf of the Company and its Subsidiaries pursuant to such licence; (iii) the terms of the licences have been complied with by the parties in all material respects, no notice of termination of any Licensed Intellectual Property has been received or served by the Company and its Subsidiaries and there are no grounds on which they might be terminated in each case except as would not reasonably be expected to have a Company Material Adverse Effect; (iv) to the knowledge of the Company, no disputes have arisen and no circumstances exist which are likely to give rise to a dispute; and (v) to the knowledge of the Company, there is no reason to believe that the licences will not be renewed when they expire on the same or substantially similar terms.
33
(i) To the knowledge of the Company, neither the Company nor any of its Subsidiaries, nor the conduct of their business, has infringed, misappropriated or otherwise violated, nor are any of them infringing, misappropriating or otherwise violating, any third party’s Intellectual Property rights. No Action is pending or, to the knowledge of the Company, has been threatened against the Company or any of its Subsidiaries (i) alleging any infringement, misappropriation or violation of any third party’s Intellectual Property rights by the Company or any of its Subsidiaries or (ii) based upon, or challenging or seeking to deny or restrict, the rights of the Company or any of its Subsidiaries in any of the Owned Intellectual Property, Licensed Intellectual Property, or Business Intellectual Property. To the knowledge of the Company, no third party has infringed, misappropriated or otherwise violated, or is infringing, misappropriating or otherwise violating, any Owned Intellectual Property, Licensed Intellectual Property, or Business Intellectual Property, and there has been no Action by or on behalf of the Company or its Subsidiaries against a third party with respect to the alleged infringement, misappropriation or other violation of the Owned Intellectual Property is currently pending or threatened.
(j) No funding, facilities, personnel or resources of any Governmental Authority or any university, college, research institute or other educational institution was used in the development of any Owned Intellectual Property, except for any such funding or use of facilities, personnel or resources that has not resulted in such Governmental Authority’s or institution’s obtaining ownership or other exclusive rights to such Owned Intellectual Property.
(k) All current and former officers, employees, contractors and consultants or other persons who contributed to the discovery, creation or development of any Owned Intellectual Property for or on behalf of the Company or any of its Subsidiaries have transferred all of their rights, title and interest in and to such Owned Intellectual Property to the Company or one of its Subsidiaries pursuant to Applicable Law and/or have entered into binding written agreements under which they are obliged to disclose and irrevocably assign the legal and beneficial interest, free from Liens, of such Intellectual Property to the Company and/or one or more of its Subsidiaries. No such officer, employee, contractor, consultant or other person has asserted any right, license, claim or interest whatsoever in or with respect to any such Owned Intellectual Property or Business Intellectual Property.
(l) The use of Open Source Software by the Company and its Subsidiaries and in the operation of their businesses, including the use and distribution of products and services incorporating any such Open Source Software by or on behalf of the Company and its Subsidiaries, is in material compliance with the terms and conditions of all applicable licenses for such Open Source Software, including notice and attribution obligations with respect thereto. None of the Software included in the Owned Intellectual Property contains any Open Source Software, and neither the Company nor its Subsidiaries have used Open Source Software as part of any application licensed or otherwise made available to third parties.
(m) The Company and its Subsidiaries are in possession of the source code to the Software included in the Owned Intellectual Property and no third party has a copy of that source code. None of the Software included in the Owned Intellectual Property or otherwise distributed by the Company or any of its Subsidiaries (i) contains any viruses, worms, Trojan horses, bombs, backdoors, clocks, timers or similar harmful or hidden programs, malware or other disabling device or malicious code, design or routine or (ii) with respect to Software included in the Owned Intellectual Property, is subject to any agreement with any Person under which the Company or any of its Subsidiaries has any duty or obligation to deliver, license or make available a copy of that source code available, or has deposited, or could be required to deposit, into escrow the source code of such Software and no such source code has been released to any Person, or is entitled to be released to any Person (on a contingent basis or otherwise), by any escrow agent, escrow service or similar third party. The consummation of the Transactions will not trigger the release of any source code of any Software included in the Owned Intellectual Property.
34
(n) The Company and its Subsidiaries own the Company IT Systems free from any and all Liens. The Company IT Systems are fully functional and operate and perform in accordance with their documentation and functional specifications and otherwise in a manner that, in all material respects, permits the Company and its Subsidiaries to conduct their business as currently conducted and are in sufficiently good working condition to effectively perform all information technology operations undertaken in the course of the conduct of their businesses as currently conducted, and the Company and its Subsidiaries have the benefit of valid and binding arrangements for the maintenance and support of the Company IT Systems. The Company and its Subsidiaries have in place commercially reasonable measures, consistent with current applicable industry standards, to protect the confidentiality, integrity and security of the Company IT Systems, and all information and transactions stored or contained therein or transmitted thereby, against any unauthorized use, access, interruption, modification or corruption, and such measures include commercially reasonable security protocol technologies, including the implementation of commercially reasonable (i) safeguards and security protocol technologies designed to protect against unauthorized access to, and unauthorized use, alteration, disclosure or distribution of Personally Identifiable Information, (ii) data backup, (iii) disaster avoidance and recovery procedures, (iv) security assessments, including penetration tests (and have fully remediated any critical or high risk vulnerabilities identified in its security assessments), and (v) business continuity procedures. There has been no Security Incident involving the Company IT Systems owned by or under the control of the Company or any of its Subsidiaries, or any data or information, including Personally Identifiable Information, stored or contained therein or transmitted thereby.
Section 4.14. Data Privacy.
(a) The Company and its Subsidiaries maintain commercially reasonable safeguards designed to protect Personally Identifiable Information against unauthorized access, use, or disclosure, in compliance in all material respects with all applicable Privacy Requirements. Since January 1, 2023, no Person has claimed any compensation or damages from the Company or any of its Subsidiaries, or has brought, or threatened in writing to bring, any Action against the Company or any of its Subsidiaries in relation to any actual or alleged Security Incident for or arising as a result of any actual or alleged violation, breach or other non-compliance with or of any Privacy Requirement, and, to the Company’s knowledge, no facts or circumstances exist that might give rise to any such claim.
(b) To the knowledge of the Company, the Company and its Subsidiaries have at all times complied, and are currently in compliance, in all material respects with all Privacy Requirements with respect to the Processing of Personally Identifiable Information and other data, including (i) providing adequate notice and obtaining any necessary consents from customers required for the Processing of the Company PII as conducted by or on behalf of the Company or any of its Subsidiaries and (ii) abiding by any privacy choices (including opt-outs, do-not-calls or similar choices) of end users relating to Personally Identifiable Information. The Company and its Subsidiaries are not, and since January 1, 2023, have not been, subject to a Governmental Order of, and have not, since January 1, 2023, received a notice from, a Governmental Authority regarding actual or alleged non-compliance with or violation of any Privacy Requirement. The Company and its Subsidiaries have taken commercially reasonable steps to ensure the reliability of their employees, representatives, consultants, contractors and agents that have access to Company PII, to provide training to such individuals on all applicable Privacy Requirements and to ensure that all such employees, representatives, consultants, contractors and agents with the right to access such Company PII are subject to appropriate written and legally binding obligations of confidentiality with respect to such Company PII.
35
(c) To the knowledge of the Company, each of the Company’s and its Subsidiaries’ third-party data suppliers, vendors, and partners that Process Company PII or other Personally Identifiable Information on behalf of the Company or its Subsidiaries are in compliance in all material respects with the Privacy Requirements and, to the knowledge of the Company, since January 1, 2023, there has been no unauthorized or illegal Processing, or other material breach, violation or default (or event that, with or without the giving of notice or lapse of time, would constitute a breach, violation or default) by any such supplier, vendor or other partner of any Privacy Requirements. To the knowledge of the Company, no circumstances have arisen in which the Privacy Requirements would require the Company or its Subsidiaries to notify any Governmental Authority of any Security Incident.
(d) The consummation of the Transactions will not breach any Privacy Requirement.
Section 4.15. Benefit Plans.
(a) Other than the employment agreements set forth on Section 4.15(a) of the Company Disclosure Schedule (the “Employment Agreements”), neither the Company nor any of its Subsidiaries sponsors, maintains or contributes to or has any obligation to maintain or contribute to, or has any direct or indirect liability, whether absolute or contingent, with respect to any Benefit Plan. A “Benefit Plan” means any employee compensation or benefit contract, plan, policy, program, or arrangement, and any other change in control, transaction bonus, equity or equity-based compensation, severance, retention, employment, change-of-control, bonus, incentive, deferred compensation, retirement, pension, profit-sharing, vacation, disability, medical (including any self-insured arrangement), dental, vision, disability or sick leave benefits, post-retirement benefits (including compensation, pension, health, medical or insurance benefits), health, welfare, prescription, or other fringe or employee benefit plan, agreement, program, policy, or arrangement (other than offer letters for at-will employment without an obligation for severance, except as required by Applicable Law, or guaranteed bonus or similar payment), in each case whether written or unwritten (i) that is maintained, sponsored, administered, entered into or contributed to (or required to be contributed to) by the Company or any of its Subsidiaries for the current or future benefit of any current or former Service Provider or (ii) under which the Company or any of its Subsidiaries has or is reasonably expected to have any direct or indirect obligation or liability. As of the date hereof and except as contemplated by this Agreement, neither the Company nor any of its Subsidiaries has made any plan or commitment to establish or contribute to any new Benefit Plan or modify any Employment Agreement.
(b) The Company has delivered or made available to BIII copies of, the Employment Agreements and any amendments thereto (if applicable).
(c) Neither the Company nor any of its Subsidiaries sponsors, maintains, contributes to (or is obligated to contribute to), or has any liability in respect of, or at any time in the six (6) years preceding the date hereof has sponsored, maintained, contributed to (or was obligated to contribute to), or had any material liability in respect of, a defined benefit pension plan. No Employment Agreement provides any post-termination or retiree life or health insurance or other material employee welfare benefit to any Person, except as may be required by any Applicable Law.
36
(d) There are, and since January 1, 2023 there have been, no pending or, to the knowledge of the Company, threatened Actions (other than routine claims for benefits in the Ordinary Course of Business) with respect to any Employment Agreement. Neither the execution and delivery of this Agreement by the Company nor the consummation of any of the Transactions (either alone or in connection with any other event, contingent or otherwise) will (i) result in any payment or benefit (including notice, severance, golden parachute, bonus, commission or otherwise) becoming due to any current or former Service Provider, (ii) result in any forgiveness of Indebtedness to any current or former Service Provider, (iii) increase any compensation or benefits otherwise payable by the Company or any of its Subsidiaries or under any Employment Agreement, or (iv) result in the acceleration of the time of payment or vesting of any compensation or benefits. No amount that could be received (whether in cash or property or the vesting of property) by any “disqualified individual” (as defined in Section 280G of the Code) under any Employment Agreement or otherwise would be reasonably be expected, separately or in the aggregate, to be nondeductible under Section 280G of the Code or subjected to an excise tax under Section 4999 of the Code, in either case, as a result of the consummation of the Transactions. Neither the Company nor any of its Subsidiaries have an obligation to make a “gross-up” or similar payment in respect of any taxes that may become payable under Section 4999, 409A or 457A of the Code.
Section 4.16. Labor Matters.
(a) Neither the Company nor any of its Subsidiaries is a party to, subject to, or in the process of entering into, any Labor Contract (whether written or unwritten) applicable to current or former Service Providers, nor are there any Service Providers represented by a works council or a labor organization or activities or proceedings of any labor union to organize any Service Providers. The consent of or consultation with, or the rendering of formal advice by, any labor or trade union, works council or other employee representative body is not required for the Company to enter into this Agreement or to consummate any of the transactions contemplated hereby.
(b) Since January 1, 2023, except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries has been in compliance with Applicable Law regarding labor and employment, including provisions thereof relating to wages, hours, collective bargaining, labor management relations, overtime, employee classification, discrimination, sexual harassment, civil rights, equal opportunity, affirmative action, work authorization, immigration, safety and health, plant closings and mass layoffs, workers compensation, continuation coverage under group health plans, wage payment and the payment and withholding of Taxes (collectively, the “Employment Laws”), (ii) there have been no pending or, to the knowledge of the Company, threatened complaints against the Company or its Subsidiaries regarding unfair labor practices before any Governmental Authority, (iii) there has been no pending or, to the knowledge of the Company, threatened (and the Company does not otherwise reasonably anticipate), strike, labor dispute, slowdown, work stoppage or other labor stoppage or disruption with respect to the Company or any of its Subsidiaries, (iv) there have been no pending or, to the knowledge of the Company, threatened Actions against the Company or any of its Subsidiaries with respect to the Employment Laws, (v) neither the Company nor any of its Subsidiaries has (x) taken any action which would constitute a “plant closing” or “mass lay-off” within the meaning of the Worker Adjustment and Retraining Notification Act of 1988 or similar law (collectively, “WARN”) or issued any notification of a plant closing or mass lay-off required by WARN, or (y) incurred any liability or obligation under WARN that remains unsatisfied, and (vi) neither the Company nor any of its Subsidiaries has any material liability with respect to any misclassification of: (A) any Person as an independent contractor rather than as an employee, (B) any employee currently self-employed or employed by another employer, or (C) any employee currently or formerly classified as exempt from any entitlement to overtime wages.
37
(c) Except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, neither the Company nor any of its Subsidiaries has any “joint employer” liability with respect to any use of service providers, including any independent contractors or other Persons employed by a third-party employment agency or similar provider. Since January 1, 2023: (x) no current or former Service Provider has, to the knowledge of the Company, made written allegations of sexual harassment with potential merit against (A) any current or former officer or director of the Company or its Subsidiaries or (B) any Company employee who, directly or indirectly, supervises at least ten (10) Service Providers, and (y) neither the Company nor any of its Subsidiaries have entered into any settlement agreement as a result of any such allegations of sexual harassment or sexual misconduct by a Service Provider.
Section 4.17. Taxes.
(a) All material Tax Returns required to be filed by the Company or any of its Subsidiaries (taking into account applicable extensions) have been timely filed, and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects.
(b) The Company and its Subsidiaries have paid all material Taxes (whether or not shown on any Tax Return) that are due and payable by the Company and its Subsidiaries, except with respect to matters contested in good faith by appropriate proceedings, or with respect to which adequate reserves have been made in accordance with IFRS. No power of attorney with respect to any Taxes of the Company or any of its Subsidiaries has been executed or filed with any Tax Authority which will remain in effect following the Closing.
(c) Except for Permitted Liens, there are no Liens for Taxes upon the property or assets of the Company or any of its Subsidiaries.
(d) Neither the Company nor any of its Subsidiaries has any liability for a material amount of unpaid Taxes which has not been accrued for or reserved on the Company Financial Statements, other than any liability for unpaid Taxes that has been incurred since January 1, 2023 in connection with the operation of the business of the Company and its Subsidiaries in the Ordinary Course of Business.
(e) All material amounts of Taxes required to be withheld by the Company and its Subsidiaries have been withheld and, to the extent required, have been paid over to the appropriate Governmental Authority.
(f) None of the Company or any of its Subsidiaries has received from any Governmental Authority written notice of any threatened, proposed, or assessed deficiency for Taxes of the Company or any of its Subsidiaries, except for such deficiencies that have been satisfied by payment, settled or withdrawn. No material audit or other proceeding by any Governmental Authority is in progress with respect to any Taxes due from the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries has received written notice from any Governmental Authority that any such audit or proceeding is contemplated or pending.
38
(g) No written claim has been made by any Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries does not pay a particular type of Tax or file a particular type of Tax Return that it is or may be required to file such type of Tax Return or pay such type of Tax in such jurisdiction.
(h) Neither the Company nor any of its Subsidiaries has a request for a private letter ruling, a request for administrative relief, a request for technical advice or a request for a change of any method of accounting pending with any Governmental Authority. Neither the Company nor any of its Subsidiaries has extended the statute of limitations for assessment, collection or other imposition of any Tax (other than pursuant to an extension of time to file a Tax Return of not more than seven months obtained in the Ordinary Course of Business), which extension is currently in effect.
(i) Neither the Company nor any of its Subsidiaries is a party to or bound by any Tax sharing, indemnification or allocation agreement or other similar Tax Contract, other than (i) any customary commercial Contracts or Contracts entered into in the Ordinary Course of Business, in each case, which do not primarily relate to Taxes or (ii) any such agreement solely among the Company and its Subsidiaries.
(j) Neither the Company nor any of its Subsidiaries has ever been a member of an Affiliated Group (other than an Affiliated Group the common parent of which is the Company or any of its Subsidiaries and which consists only of the Company and its Subsidiaries). Neither the Company nor any of its Subsidiaries has liability for the Taxes of any other Person (other than the Company and its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of Applicable Law), as transferor or successor, by Contract or otherwise (other than pursuant to any customary commercial Contract or Contract entered into in the Ordinary Course of Business, in each case, which does not principally relate to Taxes).
(k) Neither the Company nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any Tax period (or portion thereof) ending after the Closing Date as a result of: (i) any change in method of accounting for a taxable period ending on or prior to the Closing; (ii) any “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Closing; (iii) any installment sale or open transaction disposition made on or prior to the Closing; or (iv) any deferred revenue or prepaid amount received on or prior to the Closing outside the Ordinary Course of Business.
(l) Neither the Company nor any of its Subsidiaries has been a party to any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).
(m) Neither the Company nor any of its Subsidiaries is a (i) “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code, (ii) U.S. corporation under Section 7874(b) of the Code or (iii) stapled entity within the meaning of Section 269B of the Code.
(n) In the two (2) year period prior to the date of this Agreement, none of the Company nor any of its Affiliates or predecessors by merger or consolidation has been a party to any transaction intended to qualify under Section 355 of the Code.
39
(o) Neither the Company nor any of its Subsidiaries is a partner for Tax purposes with respect to any joint venture, partnership, or other arrangement or Contract which is treated as a partnership for Tax purposes. The Company has filed an election to retroactively change its classification to an entity disregarded as separate from Astrum Holding for U.S. federal income tax purposes and, to its knowledge, such election was properly filed and effective prior to the date of this Agreement. Astrum Holding has filed an election to retroactively change its classification for U.S. federal income tax purposes to fiscally transparent, such that it is classified as a partnership as of the completion of the Astrum Restructuring and, to its knowledge, such election was properly filed and effective as of a date prior to the date of this Agreement. Astrum Singapore is, and has been since the date of its formation, classified as a corporation for U.S. federal income tax purposes. Section 4.17 of the Company Disclosure Schedule sets forth the entity classification of each Subsidiary of the Company and any elections that have been made with respect to the Company and its Subsidiaries pursuant to Treasury Regulations Section 301.7701-3.
(p) Neither the Company nor any of its Subsidiaries incurred any income Tax or other material Tax liabilities as a result of the Astrum Restructuring.
(q) Neither the Company nor any of its Subsidiaries has taken or agreed to take any action, nor does the Company have knowledge of any fact or circumstance, that would reasonably be expected to prevent or impede the Astrum Stock Acquisition from qualifying for the Intended Tax Treatment.
(r) The Company is not aware of any fact or circumstance that the Company expects to cause BIII to be a tax resident of a jurisdiction other than the Cayman Islands immediately after Closing.
Section 4.18. Insurance. Section 4.18 of the Company Disclosure Schedule sets forth a true, correct and complete list of all material policies of insurance held by, or for the benefit of, the Company or any of its Subsidiaries as of the date of this Agreement. True, correct and complete copies of such insurance policies, together with all amendments, modifications, or supplements thereto, have been made available to BIII. With respect to each such insurance policy: (a) the policy is legal, valid, binding and to the knowledge of the Company, enforceable in accordance with its terms and is in full force and effect, (b) neither the Company nor any of its Subsidiaries is in material breach or default (including any such breach or default with respect to the payment of premiums or the giving of notice), and to the knowledge of the Company, no event has occurred which, with or without notice or the lapse of time or both, will constitute such a breach or default, or permit termination or modification, under the policy, (c) to the knowledge of the Company, no insurer on any such policy has been declared insolvent or placed in receivership, conservatorship or liquidation, (d) no written notice of cancellation, termination, non-renewal, disallowance or reduction in coverage has been received (or, to the Company’s knowledge, threatened), nor has there been any lapse in coverage since January 1, 2023 and (e) there are no material claims by the Company nor any of its Subsidiaries pending under any of the insurance policies as to which coverage has been denied or disputed by the underwriters of such policies or in respect of which such underwriters have reserved their rights. Neither the Company nor any of its Subsidiaries have any material self-insurance programs. To the knowledge of the Company, there is no fact, condition, situation or set of circumstances (including the consummation of the transactions contemplated hereby) that could reasonably be expected to result in or be the basis for any material premium increase with respect to, or material alteration of coverage under, any insurance policy. The insurance policies are with reputable insurance carriers and provide coverage to the Company and its Subsidiaries against all risk of the businesses of the Company and its Subsidiaries as are reasonable and appropriate considering the business of the Company and its Subsidiaries (including the Contracts to which they are bound).
40
Section 4.19. Real Property; Assets.
(a) Neither the Company nor any of its Subsidiaries owns any real property.
(b) Section 4.19(b) of the Company Disclosure Schedule (i) correctly describes, as of the date hereof, all real property that the Company and its Subsidiaries lease, sublease, use, license or operate and (ii) contains a complete and accurate list of Leased Real Property. The Leased Real Property constitute all of the real property occupied by the Company and its Subsidiaries in connection with their business.
(c) Each lease related to the Leased Real Property to which the Company or any of its Subsidiaries is a party is a legal, valid, binding and enforceable obligation of the Company or its Subsidiaries party thereto, and to the knowledge of the Company, the counterparties thereto, and is in full force and effect. The Company and its Subsidiaries have valid leasehold interests in, and enjoy undisturbed possession of, all Leased Real Property. Neither the Company nor any of its Subsidiaries is in material breach or material default under any such lease, and no condition exists which (with or without notice or lapse of time or both) would constitute a default by the Company or any of its Subsidiaries thereunder or, to the knowledge of the Company, by the other parties thereto.
(d) Neither the Company nor any of its Subsidiaries have subleased or otherwise granted any Person the right to use or occupy any Leased Real Property, which is still in effect. Neither the Company nor any of its Subsidiaries have mortgaged, deeded in trust, collaterally assigned or granted any other security interest in the Leased Real Property or any interest therein, which is still in effect. Except for Permitted Liens, there exist no Liens affecting all or any portion of the Leased Real Property created by, through or under the Company or any of its Subsidiaries.
(e) There are no pending or, to the knowledge of the Company, threatened (i) Actions or other proceedings to take all or any portion of the Leased Real Property or any interests therein by eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or (ii) sales or dispositions in relation to any such Action or proceeding. There is no purchase option, right of first refusal, first option or other similar right held by the Company or any of its Subsidiaries with respect to, or any real estate, building or other improvement affected by, any portion of the Leased Real Property.
(f) The Company and its Subsidiaries have good title to, or in the case of leased properties and assets, have valid leasehold interests in, all of the property and assets (whether personal, tangible or intangible) reflected on the Company Financial Statements or acquired by the Company and its Subsidiaries after December 31, 2025, except for properties, assets and rights sold since December 31, 2025 in the Ordinary Course of Business (or, with respect to such properties and assets sold after the date of this Agreement, as permitted pursuant to Section 6.01) or where the failure to have such good title or valid leasehold interests would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
41
Section 4.20. Environmental Matters.
(a) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect: the Company and its Subsidiaries are, and at all times since their respective dates of incorporation, organization, or formation have been, in compliance with all Environmental Laws, and there are no existing facts or circumstances which would reasonably be expected to prevent such compliance in the future and all Permits held by the Company pursuant to applicable Environmental Laws are in full force and effect and no appeal or any other Action is pending to revoke or modify any such Permit.
(b) No notice of violation, demand, request for information, citation, summons or order has been received by the Company relating to or arising out of any Environmental Laws, other than those relating to matters that have been fully resolved or that remain pending and, if adversely determined, would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.
(c) Except as would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries has agreed to indemnify any other Person against liability under Environmental Laws, or to assume or undertake any liability of another Person under Environmental Laws.
(d) Copies of all material written reports (in the case of reports with multiple drafts or versions, the final draft or version), notices of violation, orders, audits, assessments and all other material environmental reports, in the possession, custody or control of the Company or its Subsidiaries, relating to environmental conditions in, on or about the Leased Real Property or to the Company’s or its Subsidiaries’ compliance with Environmental Laws have been made available to BIII.
Section 4.21. Affiliate Transactions. Except for any Employment Agreement (including any employment or stock appreciation rights agreements entered into in the Ordinary Course of Business by the Company or any of its Subsidiaries) or as set forth in Section 4.21 of the Company Disclosure Schedule, no (a) beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of 5% or more of the ordinary shares of Astrum Holding, (b) former or current director, officer, manager, employee, indirect or direct equityholder, optionholder or member of the Company or any of its Subsidiaries or (c) any Affiliate or “associate” or any member of the “immediate family” (as such terms are respectively defined in Rules 12b-2 and 16a-1 of the Securities Exchange Act of 1934), of any Person described in the foregoing clauses (a) or (b), in each case, other than the Company or any of its Subsidiaries (each a “Related Party”), is (i) a party to any Contract or business arrangement with the Company or any of its Subsidiaries, (ii) provides any services to, or is owed any money by or owes any money to, or has any claim or right against, the Company or any of its Subsidiaries (other than, in each case, compensation for services performed by a Person as director, officer, service provider or employee of the Company or any of its Subsidiaries and amounts reimbursable for routine travel and other business expenses in the Ordinary Course of Business), or (iii) directly or indirectly owns, or otherwise has any right, title or interest in, to or under, any tangible or intangible property, asset, or right that is, has been, or is currently planned to be used by the Company or any of its Subsidiaries, in each of clauses (i) through (iii ) in excess of $5,000,000 (the Contracts, relationships, or transactions described in clauses (i) through (iii), the “Affiliate Transactions”).
Section 4.22. Vendors. Section 4.22 of the Company Disclosure Schedule sets forth a complete and accurate list of the Top Vendors. Since December 31, 2025, no Top Vendor has cancelled, terminated, reduced or altered (including any material reduction in the rate or amount of sales or purchases or material increase in the prices charged or paid, as the case may be) its business relationship with the Company or any of its Subsidiaries other than due to the expiration of an existing contractual arrangement, and the Company has not received written notice from any of the Top Vendors stating the intention of such Person to do so.
42
Section 4.23. Certain Business Practices; Anti-Corruption; Anti-Money Laundering and Sanctions.
(a) The Company and its Subsidiaries, and to the knowledge of the Company, each of the Company’s and its Subsidiaries’ respective officers, directors, employees, agents, representatives or other Persons acting on its behalf, have in the past five years complied with, are and will be in compliance with Anti-Corruption Laws.
(b) Neither the Company nor any of its Subsidiaries, nor to the knowledge of the Company, any of the Company’s or its Subsidiaries’ respective officers, directors, employees, agents, representatives or other Persons acting on behalf of the Company or its Subsidiaries, in the past five years (i) has offered, promised, given or authorized the giving of money or anything else of value, whether directly or through another Person, to (A) any Government Official or (B) any other Person with the knowledge that all or any portion of the money or thing of value will be offered or given to a Government Official, in each of the foregoing clauses (A) and (B) for the purpose of influencing any action or decision of the Government Official in his or her official capacity, including a decision to fail to perform his or her official duties, inducing the Government Official to use his or her influence with any Governmental Authority to affect or influence any official act, or otherwise obtaining an improper advantage; or (ii) has made or will make or authorize any other Person to make any payments or transfers of value which have the purpose or effect of commercial bribery, or acceptance or acquiescence in kickbacks or other unlawful or improper means of obtaining or retaining business. For purposes of the foregoing clauses (A) and (B), a Person shall be deemed to have “knowledge” with respect to conduct, circumstances or results if such Person is aware of (i) the existence of or (ii) a high probability of the existence of such conduct, circumstances or results.
(c) The Company and each of its Subsidiaries has maintained and currently maintains (i) books, records and accounts which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Company and its Subsidiaries, and (ii) internal accounting controls sufficient to provide reasonable assurances that all transactions and access to assets of each of the Company and its Subsidiaries were, have been and are executed only in accordance with management’s general or specific authorization.
(d) The Company and each of its Subsidiaries has in place policies, procedures and controls that are reasonably designed to promote and ensure compliance with Anti-Corruption Laws.
(e) To the knowledge of the Company, none of the Company’s nor any of its Subsidiaries’ respective beneficial owners, officers, directors, employees, agents, representatives or other persons acting on their behalf is or was a Government Official having the power to decide on policies affecting the Company’s operations or a close family member of such Government Official.
(f) To the knowledge of the Company, no Governmental Authority is investigating or has in the past five years conducted, initiated or threatened any investigation of the Company or any of its Subsidiaries, or the Company’s or its Subsidiaries’ respective officers, directors or employees for alleged violation of Anti-Corruption Laws in connection with activities relating to the Company or any of its Subsidiaries.
43
(g) Neither the Company nor any of its Subsidiaries, nor any of the Company’s or its Subsidiaries’ Affiliates, nor to the knowledge of the Company, any of the Company’s or its Subsidiaries’ directors, officers, employees, agents or representatives or other Persons acting on its behalf, is, or is owned or controlled by one or more Persons that are: (i) the subject of any sanctions administered by the U.S. Department of Treasury’s Office of Foreign Assets Control or the U.S. Department of State, the United Nations Security Council, the European Union, or other relevant sanctions authority (collectively, “Sanctions”), or (ii) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, the Crimea Region of Ukraine, Cuba, Iran, North Korea, and Syria) (collectively, the “Sanctioned Territories”) or has conducted business with any Person or entity, or any of its officers, directors, employees, agents, representatives or other Persons acting on its behalf, that is (i) the subject of any Sanctions, or (ii) located, organized or resident in any of the Sanctioned Territories.
(h) The operations of the Company and each of its Subsidiaries are and have been conducted at all times in the past five years in material compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its Subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority (collectively, the “Anti-Money Laundering Laws”), and no Action involving the Company or any of its Subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the Company’s knowledge, threatened.
(i) There are no (i) claims, damages, liabilities, obligations, losses, penalties, actions, judgments and/or written allegations asserted against, paid or payable by the Company or each of its Subsidiaries, or any of their directors, officers, employees, agents, representatives or other Persons acting on their behalf in relation to the conduct of the business by such Company or Subsidiaries in connection with non-compliance with any applicable Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions by such Person, or (ii) completed, outstanding or to the knowledge of the Company, threatened investigations (whether by the Company or each of its Subsidiaries, any third parties or Governmental Authority) involving possible non-compliance with applicable Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions by any directors, officers, employees, agents, representatives of the Company or each of its Subsidiaries or other Persons acting on their behalf. To the knowledge of the Company, there are no circumstances which may be reasonably expected to give rise to any such claims, damages, liabilities, obligations, losses, penalties, actions, judgments, allegations and/or investigations.
Section 4.24. Registration Statement and Proxy Statement. On the date of any filing pursuant to Rule 424(b), the date that the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to BIII Shareholders, and at the time of the BIII Extraordinary General Meeting, assuming the disclosures of BIII and Affiliates contained in the Registration Statement and Proxy Statement (together with any amendments or supplements thereto) are true, correct and complete, none of the information furnished by or on behalf of the Company or Astrum Singapore in writing specifically for inclusion in the Registration Statement or Proxy Statement will include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. All documents that the Company is responsible for filing with the SEC in connection with the Transactions will comply in all material respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be.
44
Section 4.25. Bankruptcy, Insolvency or Judicial Composition Proceedings. To the knowledge of the Company, no bankruptcy, insolvency or judicial composition proceedings concerning the Company or any of its Subsidiaries have been applied for. To the knowledge of the Company, no circumstances exist which would require an application for any bankruptcy, insolvency or judicial composition proceedings concerning the Company or any of its Subsidiaries. No steps have been taken by the Company or any of its Subsidiaries or proposed by or to the Company or any of its Subsidiaries for the winding-up, bankruptcy, administration, insolvency or dissolution of the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries is insolvent under the laws of its jurisdiction of incorporation or unable to pay its debts as they fall due and neither the Company nor any of its Subsidiaries has stopped paying its debts when due or indicated an intention to do so.
Section 4.26. Brokers’ Fees. There is no broker, finder, investment banker, intermediary or other Person that is entitled to any brokerage fee, finders’ fee or other commission in connection with the Transactions based upon arrangements made by the Company, any of its Subsidiaries or any of their Affiliates.
Section 4.27. Satellite Matters.
(a) Section 4.27(a) of the Company Disclosure Schedule contains (i) a true and complete list of the satellites owned or used by the Company or any of its Subsidiaries (the “Company Satellites”) and any planned satellite (“New Satellite”), by orbital location and a description and/or diagram of its coverage area, including launch and construction status; (ii) for all satellites under construction or satellites that have been constructed but not launched, a description of the status of launch insurance, the coverage thereunder and the premium to be paid in connection therewith, and (iii) the Company Permits issued by Governmental Authorities required for the launch, construction, and/or operation of each Company Satellite and New Satellite.
(b) The Company Satellites are, to the knowledge of the Company, in good condition and repair. To the knowledge of the Company, no Company Satellite (i) has experienced the permanent failure or permanent cessation of operation of any transponder, service beam or other component of such Company Satellite or any other material permanent reduction in bandwidth capacity, or (ii) has experienced a material reduction in its extended operational life. The remaining fuel on board each Company Satellite is reasonably projected to be sufficient to maintain such satellite in geosynchronous orbit at the orbital location identified in Section 4.27(a) of the Company Disclosure Schedule until the dates specified in that schedule. Neither the Company or any of its Subsidiaries has made, and to the knowledge of the Company no other person has made, any launch or in-orbit insurance claims with respect to any of the Company Satellites. To the knowledge of the Company, no person has exercised any right to or has otherwise attempted to interrupt or deny access to or use of any Company Satellite. Except as would not reasonably be expected to be, individually or in the aggregate, material to the Company or its Subsidiaries, taken as a whole, to the knowledge of the Company, no other radio communications facility is causing interference to the transmissions from or the receipt of signals by any Company Satellite.
45
(c) Section 4.27(c) of the Company Disclosure Schedule contains (i) a summary, by orbital location, of the status of frequency registrations at the International Telecommunication Union (“ITU”) used by the Company, including the status with respect to each orbital location hosting a Company Satellite or anticipated to be used to host a New Satellite, (ii) the dates the Company’s ITU rights at each orbital location, for which corresponding frequency assignments have not been brought into use, would expire, and (iii) a list of countries and/or territories in the ITU-defined service areas. The rights to use the frequency assignment(s) described in the ITU filings in Section 4.27(c) of the Company Disclosure Schedule (“ITU Rights”) are reasonably expected to cover the geographic area and technical parameters for the Company’s operations (or planned operations) of the Company Satellites and the New Satellites in all material respects. To the knowledge of the Company, no person has date precedence in filing a request for coordination or plan modification in accordance with the Radio Regulations of the ITU, or has asserted that it has rights to operate a spacecraft in a manner that would result in material interference to any Company Satellite, any New Satellite, or any ground station owned and operated by the Company or any Subsidiary, or leased or licensed from third parties in connection with the operation of any Company Satellite or New Satellite, in each case except as would not reasonably be expected, individually or in the aggregate, to be material to the Company or its Subsidiaries, taken as a whole. The Company has no knowledge of any conflicting claim(s) with respect to its rights to use the frequency assignment(s) described in its ITU filings at any such orbital location(s) that reasonably would be expected to restrict or otherwise be material to the Company or its Subsidiaries, taken as a whole, in the Company’s ability to operate the Company Satellite(s) or New Satellites on such frequency assignment(s) at such location(s). The Company has no knowledge of any dispute with respect to its continued ability to utilize any Company Satellite substantially in the manner that such Company Satellite has been used in connection with its business to date or its ability to deploy any New Satellite in the manner currently proposed in the business. As of the date of this Agreement, the Group’s L-band BSS spectrum is the highest priority spectrum in Region 3 (Asia and Oceania) as defined by the ITU.
(d) Section 4.27(d) of the Company Disclosure Schedule contains a complete and accurate list of all (i) telemetry, tracking and control stations, (ii) receive and/or transmit stations that provide broadcast, telecommunications, information, or other transmission services and (iii) receive and/or transmit stations that provide gateway, teleport, feeder link, or similar services, in each case that are owned or leased by the Company or that are operated as of the date hereof by the Company or by a third party on the Company’s behalf (collectively, the “Major Stations”). No ground station or other facility provides telemetry, tracking and control for a Company Satellite other than those Major Stations specifically identified as providing such services. Except as set forth in Section 4.27(d) of the Company Disclosure Schedule or as would not reasonably be expected to, individually or in the aggregate, be material to the Company or its Subsidiaries, taken as a whole, the improvements to each Major Station and all components and equipment used in connection therewith are (1) in good operating condition and repair, regularly and properly maintained, and suitable for their intended purposes and (2) supported by a back-up generator capable of generating power sufficient to meet the requirements of the operations conducted at the Major Station, in each case, in all material respects. No other radio communications facility is causing interference to the transmissions from or the receipt of signals by any Major Station, except for any instances of interference that is not, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries as a whole. To the knowledge of the Company, the transmission and reception systems and programming and data broadcasting systems at each Major Station have commercially reasonable redundancies designed to prevent material business interruptions from natural disasters and man-made events.
46
(e) The Company and its Subsidiaries have secured or reasonably expect to secure sufficient committed funding to satisfy all funding requirements for the construction and launch of the New Satellite.
(f) The Company and its Subsidiaries have good and valid legal and beneficial title to the Company Satellites, the New Satellites, the L-band spectrum rights and all related assets (including all Intellectual Property associated therewith), in each case free and clear of all Liens (other than Permitted Liens) except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole.
Section 4.28. No Additional Representations and Warranties; No Outside Reliance. Except for the representations and warranties provided in this Article 4, and the representations and warranties as may be provided in the Ancillary Agreements, neither the Company nor any of their respective Subsidiaries or Affiliates, nor any of their respective directors, managers, officers, employees, equity holders, partners, members, advisors, agents or representatives has made, or is making, any representation or warranty of any kind or nature whatsoever, oral or written, express or implied, relating to or with respect to this Agreement or the transactions contemplated hereby or thereby to BIII. Neither the Company nor any of their respective Subsidiaries or Affiliates, nor any of their respective directors, managers, officers, employees, equityholders, partners, members, advisors, agents or representatives has made, or is making, any representation or warranty of any kind or nature whatsoever, oral or written, express or implied, relating or with respect to any financial information, financial projections, forecasts, budgets or any other document or information made available to BIII or any other Person (including information in the Virtual Data Room or provided in any formal or informal management presentation) except for the representations and warranties made by the Company to BIII in this Article 4 and the representations and warranties as may be provided in the Ancillary Agreements. Each of the Company and its Subsidiaries hereby expressly disclaims any representations or warranties other than those expressly given by the Company or Astrum Singapore in this Article 4 and as may be provided in the Ancillary Agreements. The Company and Astrum Singapore acknowledge and agree that, except for the representations and warranties contained in Article 5 or the Ancillary Agreements, neither BIII nor any of its Affiliates nor any other Person has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any information, data, or statement regarding BIII or the transactions contemplated hereunder or thereunder, including in respect of BIII, the business, the operations, prospects, or condition (financial or otherwise), or the accuracy or completeness of any document, projection, material, statement, or other information not expressly set forth in Article 5 or the Ancillary Agreements. Neither the Company nor Astrum Singapore is relying on any representations or warranties other than those representations or warranties set forth in Article 5 or the Ancillary Agreements. Notwithstanding the foregoing, nothing in this Section 4.28 shall limit BIII’s remedies in the event of fraud.
47
Article 5
Representations and Warranties of BIII
Except as set forth in the BIII Disclosure Schedule (subject to Section 11.14) or in any publicly available SEC Document filed by BIII no later than 5:30 p.m., Eastern Time, at least two Business Days before the date of this Agreement (other than disclosures in the “Risk Factors” or “Forward Looking Statements” of any such SEC Document and other disclosures to the extent that such disclosure is predictive or forward-looking in nature, except for any specific factual information contained therein, which shall not be excluded), BIII represents and warrants to the Company and Astrum Singapore as of the date hereof and as of the Closing as follows:
Section 5.01. Corporate Organization.
(a) BIII is an exempted company duly incorporated and is validly existing and in good standing under the laws of the Cayman Islands, and has all requisite corporate or similar organizational power and authority to own or lease its properties and to conduct its business as it is now being conducted.
(b) A true and complete copy of the BIII Governing Document has been made available by BIII to the Company. The BIII Governing Document is in full force and effect and, if required under Applicable Law, have been registered with, as applicable, the appropriate Governmental Authorities and BIII is not in violation of any of the provisions thereof.
(c) BIII is duly licensed or qualified and, where applicable, in good standing as a foreign company or other entity in each jurisdiction in which the ownership of its property or the character of its activities is such as to require it to be so licensed or qualified or in good standing, as applicable, except where the failure to be so licensed or qualified would not reasonably be expected to have a BIII Material Adverse Effect.
Section 5.02. Corporate Authorization.
(a) BIII has all requisite corporate or similar organizational power and authority to execute and deliver this Agreement and each Ancillary Agreement to which BIII is (or is specified to be) a party and, subject to obtaining the BIII Shareholder Approval, to perform all obligations to be performed by it hereunder and thereunder and to consummate the Transactions. The execution, delivery and performance of this Agreement and each Ancillary Agreement to which BIII is (or is specified to be) a party, and the consummation of the transactions contemplated hereby and thereby, have been duly and validly authorized and approved by the BIII Board, and no other corporate or similar organizational action on the part of BIII or any holders of any Equity Securities of BIII is necessary to authorize the execution and delivery by BIII of this Agreement or the Ancillary Agreements to which BIII is (or is specified to be) a party, the performance by BIII of its obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby, other than the BIII Shareholder Approval. This Agreement has been duly and validly executed and delivered by BIII and, assuming this Agreement constitutes a legal, valid and binding obligation of the other parties hereto, this Agreement constitutes a legal, valid and binding obligation of BIII, enforceable against BIII in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity. Each Ancillary Agreement to which BIII is (or is specified to be) a party, when executed and delivered by BIII, will be duly and validly executed and delivered by BIII, and, assuming such Ancillary Agreement constitutes a legal, valid and binding obligation of the other parties thereto, will constitute a legal, valid and binding obligation of BIII, enforceable against BIII in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.
(b) The BIII Shareholder Approval is the only vote of any of BIII’s share capital necessary in connection with the entry into this Agreement by BIII, and the consummation of the transactions contemplated hereby, including the Closing.
48
(c) At a meeting duly called and held, the BIII Board has unanimously: (i) approved this Agreement, the Ancillary Agreements to which BIII is a party and the Transactions, (ii) determined that this Agreement, the Ancillary Agreements to which BIII is a party and the transactions contemplated hereby are advisable and in the best interests of the BIII Shareholders; (iii) determined that the fair market value of the Company is equal to at least 80% of the amount held in the Trust Account, as applicable; (iv) approved the Transactions as a Business Combination; and (v) resolved to recommend to the Pre-Closing BIII Holders approval of the Transaction Proposals (the “BIII Board Recommendation”).
Section 5.03. Governmental Authorizations; Consents. Assuming the representations and warranties of the Company and Astrum Singapore contained in this Agreement are true, correct and complete, no consent, approval or authorization of, or designation, declaration, filing, notice or action with, any Governmental Authority or other Person is required on the part of BIII with respect to BIII’s execution, delivery and performance of this Agreement or any Ancillary Agreement to which BIII is (or is specified to be) a party or the consummation of the transactions contemplated hereby or thereby, except for (a) the filing of the Plan of Merger and related documentation with the Cayman Islands Registrar of Companies in accordance with the Cayman Islands Companies Act and the publication of notification of the Merger in the Cayman Islands Government Gazette in accordance with the Cayman Islands Companies Act, (b) the declaration of effectiveness of the Registration Statement by the SEC, (c) the BIII Shareholder Approval, (d) approval for listing of the Merger Consideration Shares on the NYSE or (e) any consents, approvals, authorizations, designations, filings, notices or actions, the absence of which would not reasonably be expected to be, individually or in the aggregate, material to BIII, taken as a whole.
Section 5.04. Noncontravention. The execution, delivery and performance of this Agreement and each Ancillary Agreement to which BIII is (or is specified to be) a party by BIII and the consummation of the transactions contemplated hereby and thereby do not and will not (a) contravene, conflict with or violate any provision of, or result in the breach of, any Applicable Law, or the BIII Governing Document, (b) assuming the receipt of the consents, approvals, authorizations and other requirements set forth in Section 5.03, conflict with, violate or result in a breach of any term, condition or provision of any material Contract to which BIII is a party or by which BIII is bound, or terminate or result in a default under, or require any consent, notice or other action by any Person under (with or without notice or lapse of time, or both) or the loss of any right under, or create any right of termination, acceleration or cancellation of any such material Contract, or (c) result in the creation of any Lien (except for Permitted Liens) upon any of the properties or assets of BIII or constitute an event which, after notice or lapse of time or both, would reasonably be expected to result in any such violation, breach, termination or creation of a Lien, except in each case of clauses (a), (b) and (c) above to the extent that the occurrence of each of the foregoing would not reasonably be expected to have a BIII Material Adverse Effect.
Section 5.05. Litigation and Proceedings. There are no Actions or, to the knowledge of BIII, investigations pending before or by any Governmental Authority or, to the knowledge of BIII, threatened, against BIII or any of its properties or assets that would reasonably be expected to have, individually or in the aggregate, a BIII Material Adverse Effect or which in any manner challenges or seeks to prevent or enjoin the transactions contemplated hereby. There is no unsatisfied judgment or any open injunction binding upon BIII.
49
Section 5.06. BIII Capitalization.
(a) As of the date hereof, the authorized share capital of BIII consists of (i) 150,000,000 BIII Class A Ordinary Shares, of which 17,250,000 BIII Class A Ordinary Shares are issued and outstanding (assuming the full separation of the BIII Units), (ii) 15,000,000 BIII Class B Ordinary Shares, of which 5,750,000 BIII Class B Ordinary Shares are issued and outstanding, and (iii) 1,500,000 preference shares of BIII, par value $0.0001 per share, of which no preference shares are issued and outstanding. As of the date hereof, there are issued and outstanding BIII Warrants in respect of 13,900,000 BIII Class A Ordinary Shares (assuming the full separation of the BIII Units), which will entitle the holders thereof to purchase BIII Ordinary Shares at an exercise price of $11.50 per share on the terms and conditions set forth in the applicable warrant agreement. All of the issued and outstanding BIII Ordinary Shares (i) have been duly authorized and validly issued and are fully paid and non-assessable and are not subject to, nor were they issued in violation of, any preemptive rights, rights of first refusal or similar rights, and (ii) are free and clear of all Liens and other restrictions (including any restriction on the right to vote, sell or otherwise dispose of such Equity Securities).
(b) Except for the BIII Ordinary Shares and the BIII Warrants as set forth in Section 5.06(a), there are no Equity Securities of BIII. Other than the BIII Shareholder Redemption Right, there are no outstanding contractual obligations of BIII to repurchase, redeem or otherwise acquire any Equity Securities of BIII.
(c) The Merger Consideration Shares to be issued to Astrum Holding pursuant to this Agreement will, upon issuance and delivery at the Closing, (i) be duly authorized and validly issued, and fully paid, (ii) be issued in compliance with Applicable Law and the BIII Governing Document, (iii) not be issued in breach or violation of any preemptive rights or Contract, and (iv) be issued to Astrum Holding with good and valid title, free and clear of any Liens (other than any restrictions on transfer under this Agreement, any of the Ancillary Agreements or Applicable Law).
Section 5.07. Undisclosed Liabilities
. There is no material liability, debt or obligation of BIII, except for liabilities, debts and obligations (i) reflected or reserved for on BIII’s balance sheet for the quarterly period ended June 30, 2026 as reported on Form 10-Q or disclosed in the notes thereto, (ii) that have arisen since June 30, 2026 in the ordinary course of the operation of business of BIII or (iii) incurred in connection with the Transactions.
Section 5.08. BIII SEC Documents; Controls.
(a) BIII has timely filed or furnished with the SEC all forms, reports, schedules and statements required to be filed or furnished under the Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (such forms, reports, schedules, and statements other than the Proxy Statement and the Registration Statement, the “SEC Documents”). As of their respective filing (or furnishing) dates, each of the SEC Documents, as amended (including all exhibits and schedules thereto and documents incorporated by reference therein), complied in all material respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such SEC Documents, and none of the SEC Documents contained, when filed or, if amended prior to the date hereof, as of the date of such amendment with respect to those disclosures that are amended, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the SEC Documents are the subject of ongoing SEC review or outstanding SEC comment and, to BIII’s knowledge, neither the SEC nor any other Governmental Authority is conducting any investigation or review of any SEC Document. No written notice of any SEC review or investigation of BIII or the SEC Documents has been received by BIII.
50
(b) The financial statements of BIII included in the SEC Documents, including all notes and schedules thereto, complied in all material respects when filed, or if amended prior to the date hereof, as of the date of such amendment, with the rules and regulations of the SEC with respect thereto, were prepared in accordance with GAAP (except as may be indicated in the notes thereto, or in the case of the unaudited statements, as permitted by Rule 10-01 of Regulation S-X of the SEC) and fairly present in all material respects in accordance with the applicable requirements of GAAP (except as may be indicated in the notes thereto, subject, in the case of the unaudited statements, to normal year-end audit adjustments that are not material) the financial position of BIII, as of their respective dates, and the results of operations and cash flows of BIII, for the periods presented therein.
(c) BIII has established and maintains disclosure controls and procedures and internal control over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act and the listing standards of the NYSE). BIII’s disclosure controls and procedures are (i) designed to provide reasonable assurance regarding the reliability of BIII’s financial reporting and the preparation of financial statements for external purposes in material conformity with GAAP and (ii) reasonably designed to ensure that material information relating to BIII is accumulated and communicated to BIII’s management as appropriate. Since BIII’s formation, there have been no significant deficiencies or material weakness in BIII’s internal control over financial reporting (whether or not remediated) and no change in BIII’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, BIII’s internal control over financial reporting.
(d) There are no outstanding loans or other extensions of credit made by BIII to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of BIII. BIII has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act.
Section 5.09. Listing. The issued and outstanding BIII Units, BIII Class A Ordinary Shares and BIII Warrants issued as part of the BIII Units are each registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the NYSE under the symbols “BIIIU,” “BIII” and “BIIIW” respectively. BIII is in compliance with the rules of the NYSE and there is no Action pending, or to the knowledge of BIII, threatened against BIII by the NYSE or the SEC with respect to any intention by such entity to deregister any BIII Ordinary Shares or prohibit or terminate the listing of any BIII Ordinary Shares on the NYSE. BIII has not taken any action in an attempt to terminate the registration of BIII Units, BIII Ordinary Shares or BIII Warrants under the Exchange Act except as contemplated by this Agreement. Since listing on the NYSE, BIII has complied in all material respects with the applicable corporate governance requirements of the NYSE.
Section 5.10. Registration Statement and Proxy Statement. On the date the Registration Statement is declared effective, the date the Proxy Statement is first mailed to BIII Shareholders, and at the time of the BIII Extraordinary General Meeting, assuming the disclosures of the Company and its Subsidiaries and Affiliates contained in the Registration Statement and Proxy Statement (together with any amendments or supplements thereto) are true, correct and complete, none of the information furnished by or on behalf of BIII in writing specifically for inclusion in the Registration Statement or Proxy Statement will include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. All documents that BIII is responsible for filing with the SEC in connection with the Transactions will comply in all material respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be.
51
Section 5.11. Trust Account. As of the date of this Agreement, BIII has (and, if no holders of BIII Ordinary Shares exercise the BIII Shareholder Redemption Right, will have immediately prior to the Closing) at least $172,500,000 in the Trust Account, with such funds invested in United States Government securities meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act of 1940 and held in trust by the Trustee pursuant to the Trust Agreement. The Trust Agreement is in full force and effect and is a legal, valid and binding obligation of BIII and the Trustee, enforceable in accordance with its terms. The Trust Agreement has not been terminated, repudiated, rescinded, amended, supplemented or modified, in any respect, and no such termination, repudiation, rescission, amendment, supplement or modification is contemplated. There are no side letters and (except for the Trust Agreement) there are no agreements, contracts, arrangements or understandings, whether written or oral, with the Trustee or any other Person that would (a) cause the description of the Trust Agreement in the Prospectus to be inaccurate in any material respect or (b) entitle any Person (other than (x) holders of BIII Ordinary Shares who shall have exercised their BIII Shareholder Redemption Right and (y) any underwriters in connection with BIII’s initial public offering which may be entitled to deferred underwriting discounts and commissions specified in the Prospectus) 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 except (i) to pay Taxes from any interest income earned in the Trust Account, (ii) to redeem BIII Class A Ordinary Shares pursuant to the BIII Shareholder Redemption Right, and (iii) as permitted under the Trust Agreement. BIII has performed all material obligations required to be performed by it to date under, and is not in material default or delinquent in performance or any other respect (claimed or actual) in connection with, the Trust Agreement, and, to the knowledge of BIII, no event has occurred which, with due notice or lapse of time or both, would constitute such a material default thereunder. There are no Actions pending or, to the knowledge of BIII, threatened with respect to the Trust Account.
Section 5.12. Absence of Certain Changes. Since its formation through the date of this Agreement, BIII has not (a) conducted 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 Prospectus (including the investigation of the Company and its Subsidiaries and the negotiation and execution of this Agreement) and related activities and (b) been subject to a BIII Material Adverse Effect. Except as set forth in BIII’s SEC reports filed prior to the date of this Agreement, and except as contemplated by this Agreement, since June 30, 2026, through the date of this Agreement, there has not been any action taken or agreed upon by BIII that would be prohibited by Section 7.01 if such action were taken on or after the date hereof without the consent of the Company.
Section 5.13. Compliance with Laws; Permits. BIII is, and since its date of formation has been, in compliance with Applicable Law in all material respects, except as would not reasonably be expected to have a BIII Material Adverse Effect. Since BIII’s date of formation, (a) BIII has not been subjected to, or received any notification from, any Governmental Authority of a violation of any Applicable Law or any investigation by a Governmental Authority for actual or alleged violation of any Applicable Law, (b) to the knowledge of BIII, no claims have been filed against BIII with any Governmental Authority alleging any material failure by BIII to comply with any Applicable Law, and (c) BIII has not made a voluntary, directed, or involuntary disclosure to any Governmental Authority regarding any alleged act or omission arising under or relating to any noncompliance with any Applicable Law.
52
Section 5.14. Contracts. Other than this Agreement, the Ancillary Agreements or any Contracts that are exhibits to the SEC Documents, there are no Contracts to which BIII is a party or by which BIII’s properties or assets may be bound, subject or affected, which (a) creates or imposes a liability greater than $50,000, (b) may not be cancelled by BIII on less than 60 days’ prior notice without payment of a material penalty or termination fee or (c) prohibits, prevents, restricts or impairs in any material respect any business practice of BIII as its business is currently conducted, any acquisition of material property by BIII, or restricts in any material respect the ability of BIII from engaging in business as currently conducted by it or from competing with any other Person (each such contract, a “BIII Material Contract”). All BIII Material Contracts have been made available to the Company.
Section 5.15. Employees and Employee Benefit Plans. BIII does not (a) have any paid employees or (b) maintain, sponsor, contribute to or otherwise have any liability under any Benefit Plan. Neither the execution and delivery of this Agreement or the other Ancillary Agreements nor the consummation of any Transactions will: (a) result in any payment (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due to any director, officer or employee of BIII; or (b) result in the acceleration of the time of payment or vesting of any such benefits. Other than reimbursement of any out-of-pocket expenses incurred by BIII’s officers and directors in connection with activities on BIII’s behalf in an aggregate amount not in excess of the amount of cash held by BIII outside of the Trust Account, BIII has no unsatisfied material liability with respect to any officer or director.
Section 5.16. Properties. BIII does not own, license or otherwise have any right, title or interest in any material Intellectual Property rights (other than trademarks). BIII does not own, or otherwise have an interest in, any real property, including under any real property lease, sublease, space sharing, license or other occupancy agreement.
Section 5.17. Affiliate Transactions. Except for equity ownership or employment relationships (including any employment or similar Contract) expressly contemplated by this Agreement, any non-disclosure or confidentiality Contract entered into in connection with the “wall-crossing” of BIII Shareholders, any Ancillary Agreement or any Contract that is an exhibit to the SEC Documents or described therein, (a) there are no transactions or Contracts, or series of related transactions or Contracts, between BIII, on the one hand, and any director or officer of BIII, Sponsor, any beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of 5% or more of the BIII Ordinary Shares or, to the knowledge of BIII, any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, nor is any Indebtedness owed by or to BIII, on the one hand, to or by Sponsor or any such director, officer, beneficial owner, associate or immediate family member, on the other hand, and (b) none of the officers or directors (or members of a similar governing body) of BIII, Sponsor, any beneficial owner of 5% or more of the BIII Ordinary Shares or, to the knowledge of BIII, their respective “associates” or “immediate family members” owns directly or indirectly in whole or in part, or has any other material interest in, (i) any material tangible or real property that BIII uses, owns or leases (other than through any Equity Securities of BIII) or (ii) any customer, vendor or other material business relation of BIII or Sponsor, in each case of (i) and (ii) in excess of $5,000,000.
Section 5.18. Taxes.
(a) All material Tax Returns required to be filed by BIII (taking into account applicable extensions) have been timely filed in all material respects, and all such Tax Returns (taking into account all amendments thereto) are true, correct and complete in all material respects.
53
(b) BIII has paid all material Taxes (whether or not shown on any Tax Return) that are due and payable by BIII, except with respect to matters contested in good faith by appropriate proceedings and with respect to which adequate reserves have been made in accordance with GAAP. No power of attorney with respect to any Taxes of BIII has been executed or filed with any Tax Authority which will remain in effect following the Closing.
(c) Except for Permitted Liens, there are no Liens for Taxes upon the property or assets of BIII.
(d) BIII has no liability for a material amount of unpaid Taxes which have not been accrued for or reserved on BIII’s Financial Statements.
(e) All material amounts of Taxes required to be withheld by BIII have been withheld and, to the extent required, have been paid over to the appropriate Governmental Authority.
(f) BIII has not received from any Governmental Authority written notice of any threatened, proposed, or assessed deficiency for any material Taxes of BIII, except for such deficiencies that have been satisfied by payment, settled or withdrawn. To the knowledge of BIII, no material audit or other proceeding by any Governmental Authority is in progress with respect to any material Taxes due from BIII, and BIII has not received written notice from any Governmental Authority that any such audit or proceeding is contemplated or pending.
(g) No written claim has been made by any Governmental Authority in a jurisdiction where BIII does not pay a particular type of Tax or file a particular type of Tax Return that it is or may be required to file such type of Tax Return or pay such type of Tax in such jurisdiction.
(h) BIII has not requested a private letter ruling, a request for administrative relief, a request for technical advice or a request for a change of any method of accounting pending with any Governmental Authority. BIII has not extended the statute of limitations for assessment, collection or other imposition of any material amount of Tax (other than pursuant to an extension of time to file a Tax Return of not more than seven months obtained in the Ordinary Course of Business), which extension is currently in effect.
(i) BIII is not a party to or bound by any Tax sharing, indemnification or allocation agreement or other similar Tax Contract, other than any customary commercial Contracts or Contracts entered into in the Ordinary Course of Business, in each case, which do not primarily relate to Taxes.
(j) BIII has never been a member of an Affiliated Group. BIII has no liability for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of Applicable Law), as transferor or successor, by Contract or otherwise (other than pursuant to any customary commercial Contract or Contract entered into in the Ordinary Course of Business, in each case, which does not principally relate to Taxes).
(k) BIII will not be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any Tax period (or portion thereof) ending after the Closing Date as a result of: (i) any change in method of accounting for a taxable period ending on or prior to the Closing; (ii) any “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax law) executed on or prior to the Closing; (iii) any installment sale or open transaction disposition made on or prior to the Closing; or (iv) any deferred revenue or prepaid amount received on or prior to the Closing outside the Ordinary Course of Business.
54
(l) BIII has never been a party to any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).
(m) BIII is not a (i) “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code, (ii) U.S. corporation under Section 7874(b) of the Code or (iii) stapled entity within the meaning of Section 269B of the Code.
(n) In the two (2) year period prior to the date of this Agreement, BIII has not been a party to any transaction intended to qualify under Section 355 of the Code.
(o) BIII is not a partner for Tax purposes with respect to any joint venture, partnership, or other arrangement or Contract which is treated as a partnership for Tax purposes. BIII is, and has been since the date of its formation, classified as a corporation for U.S. federal income tax purposes. Section 5.18 of the BIII Disclosure Schedule sets forth the entity classification of BIII and any elections that have been made with respect to BIII pursuant to Treasury Regulations Section 301.7701-3.
(p) BIII has not taken or agreed to take any action, nor does BIII have knowledge of any fact or circumstance, that would reasonably be expected to prevent or impede the Astrum Stock Acquisition from qualifying for the Intended Tax Treatment.
(q) BIII is not aware of any fact or circumstance that BIII expects would cause BIII to be a tax resident of a jurisdiction other than the Cayman Islands immediately after Closing.
Section 5.19. Certain Business Practices; Anti-Corruption; Anti-Money Laundering and Sanctions.
(a) BIII, and to the knowledge of BIII, each of BIII’s officers, directors, employees, agents, representatives or other Persons acting on its behalf, have in the past three years complied with, are and will be in compliance with Anti-Corruption Laws.
(b) Neither BIII, nor to the knowledge of BIII, any of BIII’s officers, directors, employees, agents, representatives or other Persons acting on behalf of BIII, since incorporation (i) has offered, promised, given or authorized the giving of money or anything else of value, whether directly or through another Person, to (A) any Government Official or (B) any other Person with the knowledge that all or any portion of the money or thing of value will be offered or given to a Government Official, in each of the foregoing clauses (A) and (B) for the purpose of influencing any action or decision of the Government Official in his or her official capacity, including a decision to fail to perform his or her official duties, inducing the Government Official to use his or her influence with any Governmental Authority to affect or influence any official act, or otherwise obtaining an improper advantage; or (ii) has made or will make or authorize any other Person to make any payments or transfers of value which have the purpose or effect of commercial bribery, or acceptance or acquiescence in kickbacks or other unlawful or improper means of obtaining or retaining business. For purposes of the foregoing clauses (A) and (B), a Person shall be deemed to have “knowledge” with respect to conduct, circumstances or results if such Person is aware of (i) the existence of or (ii) a high probability of the existence of such conduct, circumstances or results.
55
(c) BIII has maintained and currently maintains (i) books, records and accounts which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of BIII, and (ii) internal accounting controls sufficient to provide reasonable assurances that all transactions and access to assets of BIII were, have been and are executed only in accordance with management’s general or specific authorization.
(d) BIII has in place policies, procedures and controls that are reasonably designed to promote and ensure compliance in all material respects with Anti-Corruption Laws.
(e) To the knowledge of BIII, none of BIII’s beneficial owners, officers, directors, employees, agents, representatives or other persons acting on their behalf is or was a Government Official having the power to decide on policies affecting the Company’s operations or a close family member of such Government Official.
(f) To the knowledge of BIII, no Governmental Authority is investigating or has since BIII’s incorporation conducted, initiated or threatened any investigation of BIII, or BIII’s officers, directors or employees for alleged violation of Anti-Corruption Laws in connection with activities relating to BIII.
(g) Neither BIII, nor any of BIII’s Affiliates, nor to the knowledge of BIII, any of BIII’s directors, officers, employees, agents or representatives or other Persons acting on its behalf, is, or is owned or controlled by one or more Persons that are: (i) the subject of any Sanctions, or (ii) located, organized or resident in the Sanctioned Territories or has conducted business with any Person or entity, or any of its officers, directors, employees, agents, representatives or other Persons acting on its behalf that is (i) the subject of any Sanctions, or (ii) located, organized or resident in any of the Sanctioned Territories.
(h) The operations of BIII are and have been conducted at all times in material compliance with Anti-Money Laundering Laws, and no Action involving BIII with respect to the Anti-Money Laundering Laws is pending or, to BIII’s knowledge, threatened.
(i) There are no (i) claims, damages, liabilities, obligations, losses, penalties, actions, judgments and/or written allegations asserted against, paid or payable by BIII, or any of its directors, officers, employees, agents, representatives or other Persons acting on its behalf in relation to the conduct of the business by BIII in connection with non-compliance with any applicable Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions by such Person, or (ii) completed, outstanding or to the knowledge of BIII, threatened investigations (whether by BIII, any third parties or Governmental Authority) involving possible non-compliance with applicable Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions by any directors, officers, employees, agents, representatives of BIII or other Persons acting on their behalf. To the knowledge of BIII, there are no circumstances which may be reasonably expected to give rise to any such claims, damages, liabilities, obligations, losses, penalties, actions, judgments, allegations and/or investigations.
Section 5.20. Independent Investigation. BIII and its Affiliates and their respective representatives have conducted their own independent investigation, review and analysis of the business, results of operations, prospects, condition (financial or otherwise) or assets of the Company and its Subsidiaries, and BIII acknowledges that it and they have been provided adequate access to the personnel, properties, assets, premises, books and records, and other documents and data of the Company and its Subsidiaries for such purpose. BIII acknowledges and agrees that: (a) in making its decision to enter into this Agreement and to consummate the transactions contemplated herein, it has relied solely upon its own investigation and the express representations and warranties of the Company and Astrum Singapore set forth in Article 4 (including the related portions of the Company Disclosure Schedule) or of the Company, Astrum Singapore, Astrum Holding or Astrum Shareholders set forth in the Ancillary Agreements; and (b) none of the Company, Astrum Singapore, its Subsidiaries and Affiliates and their respective representatives have made any express or implied representation or warranty as to the Company, Astrum Singapore, and its Subsidiaries, or this Agreement, except as expressly set forth in Article 4 (including the related portions of the Company Disclosure Schedule) or in the Ancillary Agreements. Notwithstanding the foregoing, nothing in this Section 5.20 shall limit BIII’s remedies in the event of fraud.
56
Section 5.21. Brokers’ Fees. Except for fees described on Section 5.21 of the BIII Disclosure Schedule, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the Transactions based upon arrangements made by BIII or any of its Affiliates.
Section 5.22. No Additional Representations and Warranties; No Outside Reliance. Except for the representations and warranties provided in this Article 5, and the representations and warranties as may be provided in the Ancillary Agreements, neither BIII nor any of its directors, managers, officers, employees, equity holders, partners, members, advisors, agents or representatives has made, or is making, any representation or warranty of any kind or nature whatsoever, oral or written, express or implied, relating to or with respect to this Agreement or the transactions contemplated hereby or thereby to the Company, Astrum Singapore, Astrum Holding or any Astrum Shareholder. Neither BIII nor any of its directors, managers, officers, employees, equityholders, partners, members, advisors, agents or representatives has made, or is making, any representation or warranty of any kind or nature whatsoever, oral or written, express or implied, relating or with respect to any information regarding BIII or otherwise, except for the representations and warranties made by BIII to the Company and Astrum Singapore in this Article 5 and the representations and warranties as may be provided in the Ancillary Agreements. BIII hereby expressly disclaims any representations or warranties other than those expressly given by BIII in this Article 5 and as may be provided in the Ancillary Agreements. BIII acknowledges and agrees that, except for the representations and warranties contained in Article 4 or the Ancillary Agreements, none of the Company, Astrum Singapore or any of its Subsidiaries or Affiliates nor any other Person has made or is making any representation or warranty, express or implied, as to the accuracy or completeness of any information, data, or statement regarding the Company or any of the Subsidiaries of the Company or the transactions contemplated hereunder or thereunder, including in respect of the Company, the business, the operations, prospects, or condition (financial or otherwise), or the accuracy or completeness of any document, projection, material, statement, or other information, not expressly set forth in Article 4 or the Ancillary Agreements. BIII is not relying on any representations or warranties other than those representations or warranties set forth in Article 4 or as may be provided in the Ancillary Agreements. Notwithstanding the foregoing, nothing in this Section 5.22 shall limit the Company’s or Astrum Singapore’s remedies in the event of fraud.
Article 6
Covenants of the Company and Astrum Singapore
Section 6.01. Conduct of Company Business. From the date of this Agreement until the Closing Date or, if earlier, the termination of this Agreement in accordance with Article 10 (the “Interim Period”), each of the Company and Astrum Singapore shall, and shall cause their respective Subsidiaries to, except as set forth in the Company Disclosure Schedule, as necessary to consummate the Transactions in accordance with this Agreement, as consented to by BIII in writing (which consent shall not be unreasonably withheld, conditioned or delayed), or as required by Applicable Law, use commercially reasonable efforts to: (i) operate its business only in the Ordinary Course of Business, (ii) preserve the business of the Company and its Subsidiaries, (iii) maintain the services of its officers and key employees, (iv) make payments of accounts payable and conduct collection of accounts receivable in the Ordinary Course of Business and (v) maintain the existing business relationships of the Company and its Subsidiaries, and (vi) not:
(a) change, amend or propose to amend its Governing Documents except for any such change or amendment (i) made to a Governing Document of a Subsidiary of the Company in the Ordinary Course of Business and which will not have a material adverse impact on the Company’s ability to perform its obligations under this Agreement, the Ancillary Agreements or to consummate the Transactions, and (ii) as may be required in relation to the change of name of the Company prior to the Closing Date (if applicable);
57
(b) directly or indirectly adjust, split, combine, subdivide, issue, pledge, deliver, award, grant, redeem, purchase or otherwise acquire or sell, or authorize or propose the issuance, pledge, delivery, award, grant or sale (including the grant of any encumbrances) of any of its Equity Securities;
(c) take any action that would constitute or result in Leakage (other than Permitted Leakage);
(d) other than in the Ordinary Course of Business, (i) modify, voluntarily terminate, permit to lapse, waive, or fail to enforce any material right or remedy under any Significant Contract, (ii) materially amend, extend or renew any Significant Contract or (iii) enter into any Significant Contract;
(e) except as required by the terms of the Employment Agreements in effect on the date hereof and made available to BIII (i) grant any severance, retention or termination pay to, or enter into or amend any severance, retention, termination, employment, consulting, bonus, change in control or severance agreement with, any current or former Service Provider with an annual compensation exceeding $500,000, (ii) increase the compensation or benefits provided to any current or former Service Provider with an annual compensation exceeding $500,000 other than in the Ordinary Course of Business, (iii) grant any equity or equity-based awards to, or discretionarily accelerate the vesting or payment of any such awards held by, any current or former Service Provider, (iv) establish, adopt, enter into, amend, or terminate any Employment Agreement or Labor Contract or (v) (x) hire any employees with an annual target compensation of over $500,000 other than to fill vacancies arising due to terminations of employment of employees following the date hereof or (y) terminate the employment of any employees other than for cause;
(f) acquire (whether by merger or consolidation or the purchase of a substantial portion of the equity in or assets of or otherwise) any other Person with a purchase price exceeding $1,000,000;
(g) except for Permitted Leakage, (i) repurchase, prepay, redeem or incur, create, assume or otherwise become liable for Indebtedness of over $5,000,000 in the aggregate, including by way of a guarantee or an issuance or sale of debt securities, or issue or sell options, warrants, calls or other rights to acquire any debt securities, enter into any “keep well” or other Contract to maintain any financial statement or similar condition of another Person, or enter into any arrangement having the economic effect of any of the foregoing, (ii) make any loans, advances or capital contributions to, or investments in, any other Person other than another direct or indirect wholly owned Subsidiary of the Company for an amount exceeding $2,000,000 in the aggregate, (iii) cancel or forgive any debts or other amounts owed to the Company or any of its Subsidiaries or (iv) commit to do any of the foregoing;
58
(h) (i) fail to timely pay all material Taxes that become due and payable, (ii) make or change any material Tax election (with any election under Treasury Regulations Section 301.7701-3 being material for this purpose), (iii) adopt or change any material Tax accounting method except as required by Applicable Law, (iv) settle or compromise any material Tax liability, (v) enter into any closing agreement within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Tax Law) with respect to a material amount of Taxes, (vi) enter into any Tax sharing or similar arrangement (other than any such agreement solely between the Company and its Subsidiaries or any customary commercial Contract which does not primarily relate to Taxes), (vii) file any amended material Tax Return unless required by Applicable Law, (viii) consent to any extension or waiver of the statute of limitations regarding any material amount of Taxes, (ix) settle or consent to any claim or assessment relating to any material amount of Taxes or (x) consent to any extension or waiver of the statute of limitations for any such claim or assessment (other than pursuant to an extension of time to file a Tax Return of not more than seven months obtained in the Ordinary Course of Business);
(i) except for non-exclusive licenses granted to customers in the Ordinary Course of Business, assign, transfer or dispose of, license, abandon, sell, lease, sublicense, modify, terminate, permit to lapse, create or incur any Lien (other than a Permitted Lien) on, or otherwise fail to take any action necessary to maintain, enforce or protect any Owned Intellectual Property or Licensed Intellectual Property;
(j) (i) commence, discharge, settle, compromise, satisfy or consent to any entry of any judgment with respect to any pending or threatened Action that would reasonably be expected to (A) result in any material restriction on the Company or any of its Subsidiaries, (B) result in a payment of greater than $5,000,000 in the aggregate or (C) involve any equitable remedies or admission of wrongdoing, or (ii) other than in the Ordinary Course of Business, waive, release or assign any claims or rights of the Company and any of its Subsidiaries;
(k) sell, lease, license, sublicense, exchange, mortgage, pledge, create any Liens (other than Permitted Liens) on, transfer or otherwise dispose of, or agree to sell, lease, license, sublicense, exchange, mortgage, pledge, transfer or otherwise create any Liens (other than Permitted Liens) on or dispose of, any material tangible or intangible assets, properties, securities, or interests of the Company or any of its Subsidiaries (other than Intellectual Property, which is addressed in Section 6.01(i)), in each case other than in the Ordinary Course of Business;
(l) merge or consolidate itself or any of its Subsidiaries with any Person, restructure, reorganize or completely or partially liquidate or dissolve, or adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;
(m) make any material change in financial accounting methods, principles or practices of the Company and its Subsidiaries, except insofar as may have been required by a change in IFRS or any Applicable Law or to obtain compliance with PCAOB auditing standards;
59
(n) permit any insurance policy listed in Section 4.18 of the Company Disclosure Schedule to be canceled or terminated without using commercially reasonable efforts to prevent such cancellation or termination, other than if, in connection with such cancellation or termination, a replacement policy having comparable deductions and providing coverage substantially similar to the coverage under the lapsed policy for substantially similar premiums or less is in full force and effect;
(o) change, in any material respect, (i) the cash management practices of the Company and its Subsidiaries or (ii) the policies, practices and procedures of the Company and its Subsidiaries with respect to collection of accounts receivable and establishment of reserves for uncollectible amounts;
(p) other than commitments or liabilities under existing Contracts and except as set forth in Section 6.01(d) of the Company Disclosure Schedules, make any commitments for capital expenditures or incur any liabilities by the Company or any of its Subsidiaries in respect of capital expenditure, in either case that in the aggregate exceed $5,000,000;
(q) materially amend or modify, or terminate, any material Permit, other than routine renewals, or fail to maintain or timely obtain any Permit that is material to the ongoing operations of the Company and its Subsidiaries; or
(r) enter into any legally binding agreement to do any action prohibited under this Section 6.01.
Nothing contained in this Section 6.01 shall give to BIII, directly or indirectly, the right to control or direct the ordinary course of business operations of the Company prior to the Closing. Prior to the Closing, each of BIII and the Company shall exercise, consistent with the terms and conditions hereof, complete control and supervision of its respective operations, as required by Applicable Law.
Section 6.02. Inspection. Each of the Company and Astrum Singapore shall, and shall cause their respective Subsidiaries to, afford to BIII and its officers, employees, accountants, counsel, financing sources and other representatives reasonable access during the Interim Period, during normal business hours, to all of their respective properties, books and records (including Tax Returns and work papers of, and correspondence with, the Company’s independent auditors), Contracts, commitments, customers, vendors and other business relations and officers and employees of the Company and its Subsidiaries, and shall furnish such representatives with all financial and operating data and other information concerning the affairs of the Company and its Subsidiaries as such representatives may reasonably request in connection with the consummation of this Agreement or the transactions contemplated hereby; provided that no investigation pursuant to this Section 6.02 (or any investigation prior to the date hereof) shall affect any representation or warranty given by the Company, Astrum Singapore or BIII; provided, further, that any investigation pursuant to this Section 6.02 shall be conducted in such manner as not to unreasonably interfere with the conduct of the business of the Company, Astrum Singapore and their respective Subsidiaries during normal business hours under the supervision of appropriate personnel of the Company and its Subsidiaries. All requests for access to the properties, books and records of the Company and its Subsidiaries shall be made in accordance with Section 11.03.
60
Section 6.03. Audited Financial Statements. As promptly as practicable after the date of this Agreement, but in no event later than September 30, 2026, the Company shall use its commercially reasonable efforts to deliver to BIII, audited consolidated financial statements for the fiscal years ended December 31, 2024 and December 31, 2025, which financial statements shall have been audited in accordance with PCAOB auditing standards by a PCAOB-qualified auditor that is independent under Rule 2-01 of Regulation S-X under the Securities Act.
Section 6.04. Trust Account Waiver. Notwithstanding anything to the contrary set forth in this Agreement, each of the Company and Astrum Singapore acknowledges that BIII is a blank check company with the powers and privileges to effect a Business Combination. Each of the Company and Astrum Singapore further acknowledges that, as described in the prospectus dated January 7, 2026 (the “Prospectus”), substantially all of BIII’s assets consist of the cash proceeds of BIII’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 BIII, certain of its public shareholders and the underwriters of BIII’s initial public offering. Each of the Company and Astrum Singapore acknowledges that, except with respect to interest earned on the funds held in the Trust Account that may be released to BIII 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 BIII entering into this Agreement, the receipt and sufficiency of which are hereby acknowledged, each of the Company and Astrum Singapore hereby irrevocably waive 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 agree not to seek recourse against the Trust Account or any funds distributed therefrom as a result of, or arising out of, this Agreement and any negotiations, contracts or agreements with BIII or any other Person; provided, however, that nothing in this Section 6.04 shall amend, limit, alter, change, supersede or otherwise modify the right of the Company and Astrum Singapore to (a) bring any action or actions for specific performance, injunctive and/or other equitable relief or (b) bring or seek a claim for Damages against BIII, or any of its successors or assigns, for any breach of this Agreement (but such claim shall not be against the Trust Account or any funds distributed from the Trust Account to holders of BIII Ordinary Shares in accordance with the BIII Governing Document and the Trust Agreement).
Section 6.05. Shareholder Litigation. Without limiting Section 6.01 above, in the event that any material litigation related to this Agreement, any Ancillary Agreement or the Transactions is brought, or, to the knowledge of the Company or Astrum Singapore, threatened in writing, against the Company, Astrum Singapore or the board of directors of the Company or Astrum Singapore by any Person prior to the Closing, the Company and Astrum Singapore (as applicable) shall promptly after becoming aware of such litigation notify BIII of any such litigation and keep BIII reasonably informed with respect to the status thereof. The Company and Astrum Singapore (as applicable) shall consider in good faith BIII’s reasonable suggestions with respect to such litigation.
Section 6.06. Satellite Related Matters. The Company, Astrum Singapore and their respective Subsidiaries shall take all actions as are commercially reasonably necessary to maintain Company Permits and the ITU Rights in full force and effect, including without limitation timely and properly filing and diligently prosecuting any applications with or notifications to relevant Governmental Authorities or the ITU, as the case may be, in connection with any Company Satellite and any New Satellite.
Section 6.07. Founder Support Letter. The Company shall (a) use commercially reasonable efforts to maintain the Founder Support Letter in full force and effect until the Founder Support Letter expires in accordance with its terms and (b) during the Interim Period, promptly notify BIII in writing upon the Company becoming aware of (i) any material breach or default under the Founder Support Letter, (ii) any termination, amendment or modification of the Founder Support Letter, or (iii) any event or circumstance that could reasonably be expected to materially impair the ability of the Founder to perform his funding obligations under the Founder Support Letter.
61
Section 6.08. Related Party Loans. Prior to the Closing, the Company shall cause all outstanding loans, advances, or other Indebtedness owed by the Company or any of its Subsidiaries to any Related Party (“Related Party Loans”) to be novated to Astrum Holding or otherwise forgiven, cancelled, or contributed (without any cash payment or other consideration from the Company or any of its Subsidiaries) such that, after giving effect thereto, the financial statements of the Company and its Subsidiaries as included in the Registration Statement shall not reflect any Related Party Indebtedness as a liability of the Company or any of its Subsidiaries for any post-Closing period. The Company shall use commercially reasonable efforts to effect such novation or other arrangement in a manner that has the least adverse Tax consequences to the holders of Listco Shares, the Company or any of its Subsidiaries.
Article 7
Covenants of BIII
Section 7.01. Conduct of Business. During the Interim Period, except as set forth on Section 7.01 of the BIII Disclosure Schedule, as expressly contemplated by this Agreement, as required by Applicable Law or as consented to by the Company in writing (which consent shall not be unreasonably withheld, conditioned or delayed), BIII shall: (i) use commercially reasonable efforts to operate its business only in the Ordinary Course of Business, (ii) comply with, and continue performing under the BIII Governing Document, the Trust Agreement and all other agreements or Contracts to which BIII may be party, and (iii) not:
(a) change, amend or propose to amend (i) the BIII Governing Document or (ii) the Trust Agreement or any other agreement related to the Trust Agreement, except for any such action in connection with the BIII Shareholders’ vote on an extension of the deadline for consummating a Business Combination or as provided for in this Agreement in connection with the Merger;
(b) adjust, split, combine, subdivide, issue, pledge, deliver, award, grant redeem, purchase or otherwise acquire or sell, or authorize the issuance, pledge, delivery, award, grant or sale (including the grant of any encumbrances) of, any Equity Securities of BIII, other than (i) any redemption made in connection with the BIII Shareholder Redemption Right, (ii) any action in connection with the BIII Shareholders’ vote on an extension of the deadline for consummating a Business Combination, (iii) in connection with any private placement of securities conducted by BIII after the date hereof, or (iv) as otherwise required by the BIII Governing Document in order to consummate the Transactions;
(c) merge or consolidate itself with any Person, restructure, reorganize or completely or partially liquidate or dissolve, or adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of BIII (other than the Merger);
(d) make, authorize or declare any dividend (whether in the form of cash or other property) or distribution;
(e) (i) enter into any material Contract, (ii) modify, voluntarily terminate, permit to lapse, waive, or fail to enforce any material right or remedy under any material Contract or (iii) materially amend, extend or renew any material Contract, in each case other than in the ordinary course of business;
62
(f) other than as expressly required by the Sponsor Support Agreement or any Ancillary Agreement, required for purposes of funding working capital of BIII, enter into, renew or amend in any material respect, any transaction or Contract with Sponsor or an Affiliate of BIII;
(g) hire any employees or adopt any Benefit Plans;
(h) acquire (whether by merger or consolidation or the purchase of a substantial portion of the equity in or assets of or otherwise) any other Person;
(i) other than required for purposes of funding working capital of BIII, incur any Indebtedness;
(j) make any loans, advances or capital contributions to, or investments in, any other Person;
(k) (i) fail to timely pay all material Taxes that become due and payable, (ii) make or change any material Tax election (with any election under Treasury Regulations Section 301.7701-3 being material for this purpose), (iii) adopt or change any material Tax accounting method except as required by Applicable Law, (iv) settle or compromise any material Tax liability, (v) enter into any closing agreement within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Tax Law) with respect to a material amount of Taxes, (vi) enter into any Tax sharing or similar arrangement, (vii) file any amended material Tax Return unless required by Applicable Law (other than any customary commercial Contract which does not primarily relate to Taxes), (viii) consent to any extension or waiver of the statute of limitations regarding any material amount of Taxes, (ix) settle or consent to any claim or assessment relating to any material amount of Taxes or (x) consent to any extension or waiver of the statute of limitations for any such claim or assessment (other than pursuant to an extension of time to file a Tax Return of not more than seven months obtained in the Ordinary Course of Business);
(l) commence, discharge, settle, compromise, satisfy or consent to any entry of any judgment with respect to any pending or threatened Action that would reasonably be expected to (A) result in any material restriction on the Company or the Merger Surviving Company, or (B) involve any equitable remedies or admission of wrongdoing, or (ii) waive, release or assign any of its material claims or rights;
(m) sell, lease, license, sublicense, exchange, mortgage, pledge, create any Liens (other than Permitted Liens) on, transfer or otherwise dispose of, or agree to sell, lease, license, sublicense, exchange, mortgage, pledge, transfer or otherwise create any Liens (other than Permitted Liens) on or dispose of, any of its material tangible or intangible assets, properties, securities, or interests;
(n) make any material change in its financial accounting methods, principles or practices, except insofar as may have been required by a change in GAAP or Applicable Law;
(o) incur any capital expenditures; or
(p) enter into any agreement to do any action prohibited under this Section 7.01.
63
Nothing contained in this Section 7.01 shall give to the Company or Astrum Singapore, directly or indirectly, the right to control or direct the ordinary course of business operations of BIII prior to the Closing. Notwithstanding anything to the contrary contained in this Agreement, prior to the Closing, each of BIII and the Company shall exercise, consistent with the terms and conditions hereof, complete control and supervision of its respective operations, as required by Applicable Law.
Section 7.02. Shareholder Litigation. Without limiting Section 7.01 above, in the event that any material litigation related to this Agreement, any Ancillary Agreement or the Transactions is brought, or, to the knowledge of BIII, threatened in writing, against BIII or the board of directors of BIII by any BIII Shareholders or any other Person prior to the Closing, BIII shall promptly after becoming aware of such litigation notify the Company of any such litigation and keep the Company reasonably informed with respect to the status thereof. BIII shall consider in good faith the Company’s reasonable suggestions with respect to such litigation.
Section 7.03. BIII NYSE Listing.
(a) From the date hereof through the Closing, BIII shall use reasonable best efforts to ensure it remains listed as a public company on, and for BIII Class A Ordinary Shares to be listed on, NYSE.
(b) Prior to the Closing, BIII shall use its reasonable best efforts to cause the Listco Shares issuable in accordance with this Agreement, including the Conversion and the Merger, to be approved for listing on NYSE, including by submitting an initial listing application with NYSE (the “Listing Application”) with respect to such shares, as promptly as reasonably practicable after the date of this Agreement, and in any event prior to the Merger Effective Time, subject to official notice of issuance thereof. BIII shall use its reasonable best efforts to (i) cause the Listing Application, when filed, to comply in all material respects with all legal requirements applicable thereto, (ii) respond as promptly as reasonably practicable to and resolve all comments received from NYSE or its staff concerning the Listing Application, and (iii) have the Listing Application approved by NYSE as promptly as practicable after such filing, subject to official notice of issuance, on or prior to the Closing Date.
Article 8
Joint Covenants
Section 8.01. Efforts to Consummate.
(a) Subject to the terms and conditions herein provided, each Party shall use their reasonable best efforts 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 Law and regulations to consummate and make effective as promptly as practicable the transactions contemplated hereby, including (x) the satisfaction, but not waiver, of the closing conditions set forth in Article 9, (y) obtaining as promptly as practicable the BIII Shareholder Approval (including, in respect of the Company and Astrum Singapore, conducting and participating in investor presentations to, and addressing questions from, BIII Shareholders) and all other consents, approvals, registrations, authorizations, waivers and permits necessary or advisable to be obtained from any third party or any Governmental Authorities and the expiration or termination of all applicable waiting periods under applicable Antitrust Laws necessary to consummate the transactions contemplated hereby, in each case by no later than the date falling one month after the Registration Statement shall have become effective in accordance with the Securities Act, and (z) obtaining approval for listing the Merger Consideration Shares on the NYSE and satisfying any of the initial listing requirements of the NYSE applicable to the Merger Surviving Company. Subject to Section 11.06, the costs incurred in connection with obtaining such consents of all Governmental Authorities, such expiration or termination of all applicable waiting periods under applicable Antitrust Laws, including any filing fees in connection with any Antitrust Law, shall be paid by the Company.
64
(b) The Sponsor shall use its reasonable efforts to obtain undertakings from the Pre-Closing BIII Holders to waive and not exercise the BIII Shareholder Redemption Right in respect of their BIII Ordinary Shares. The Company shall use its reasonable best efforts to conduct and participate in investor presentations (which may be held remotely) to, and address questions from, BIII Shareholders, as the Sponsor may request for the purposes of reducing the exercise of the BIII Shareholder Redemption Right.
(c) Each Party shall cooperate in connection with any investigation of the transactions contemplated hereby or litigation by, or negotiations with, any Governmental Authority or other Person relating to the transactions contemplated hereby or regulatory filings under Applicable Law and obtaining approval for listing the Merger Consideration Shares on the NYSE.
(d) Each Party shall, in connection with the Agreement, the Ancillary Agreements and the Transactions, to the extent permitted by Applicable Law: (i) promptly notify the other Parties of, and if in writing, furnish the other Parties with copies of (or, in the case of oral communications, advise the other Parties of) any material substantive communications from or with any Governmental Authority, (ii) cooperate in connection with any proposed substantive written or oral communication with any Governmental Authority and permit the other Parties to review and discuss in advance, and consider in good faith the view of the other Parties in connection with, any proposed substantive written or oral communication with any Governmental Authority, (iii) not participate in any substantive meeting or have any substantive communication with any Governmental Authority unless it has given the other Parties a reasonable opportunity to consult with it in advance and, to the extent permitted by such Governmental Authority, gives the other Parties or their outside counsel the opportunity to attend and participate therein, (iv) furnish such other Parties’ outside legal counsel with copies of all filings and communications between it and any such Governmental Authority and (v) furnish such other Parties’ outside legal counsel with such necessary information and reasonable assistance as such other Parties’ outside legal counsel may reasonably request in connection with its preparation of necessary submissions of information to any such Governmental Authority; provided that materials required to be provided pursuant to this Section 8.01(d) may be restricted to outside legal counsel and may be redacted (A) as necessary to comply with contractual arrangements, and (B) to remove references to privileged information.
Section 8.02. Indemnification and Insurance.
(a) At and from the Closing, the Merger Surviving Company will enter into customary indemnification agreements with the members of the Board. Each of the Company and BIII agrees that all rights held by each present and former director and officer of the Company and BIII to indemnification and exculpation from liabilities for acts or omissions (other than such liability (if any) that they may incur by reason of their own actual fraud) occurring at or prior to the Merger Effective Time, whether asserted or claimed prior to, at, or after the Merger Effective Time, provided in the Company’s Governing Document or the BIII Governing Document in effect on the date of this Agreement shall survive the Merger and shall continue in full force and effect until the sixth anniversary of the Merger Effective Time. Without limiting the foregoing, BIII shall cause the Merger Surviving Company (i) to maintain for a period of not less than six years from the Merger Effective Time provisions in its Governing Documents concerning the indemnification and exculpation (including provisions relating to expense advancement) of BIII’s and the Company’s former and current officers and directors that are no less favorable to those Persons than the provisions of BIII’s and the Company’s respective Governing Document as of the date of this Agreement and (ii) not to amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Applicable Law.
65
(b) BIII may cause coverage to be extended under its current directors’ and officers’ liability insurance by obtaining a six year “tail” policy containing terms not materially less favorable than the terms of such current insurance coverage with respect to claims existing or occurring at or prior to the Merger Effective Time; provided that the Company shall not be responsible for bearing any annual premium of such insurance that exceeds 200% of the aggregate annual premium currently payable by BIII for such insurance policy. If any claim is asserted or made within such six year period, the provisions of this Section 8.02 shall be continued in respect of such claim until the final disposition thereof.
(c) Notwithstanding anything to the contrary contained in this Agreement, this Section 8.02 shall survive the consummation of the Merger until the sixth anniversary of the Merger Effective Time and shall be binding, jointly and severally, on all successors and assigns of the Merger Surviving Company. In the event that the Merger Surviving Company or any of its successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving company or entity of such consolidation or merger or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the Merger Surviving Company shall succeed to the obligations set forth in this Section 8.02.
Section 8.03. Tax Matters.
(a) Intended Tax Treatment.
(i) The Parties intend that, for U.S. federal income tax purposes (and applicable corresponding state and local income tax purposes), the Astrum Stock Acquisition qualify for the Intended Tax Treatment.
(ii) The Parties shall file all Tax Returns consistent with each of the two positions constituting the Intended Tax Treatment and shall not take any position on any Tax Return, or in any Tax audit, examination, contest or other proceeding with respect to Taxes, that is inconsistent with the Intended Tax Treatment, unless Astrum Holding determines in good faith (and after consultation with BIII) that there is not a likelihood of success of “more likely than not” for one or both of such positions (a “Reporting Exception Determination”).
(iii) In the event the SEC requests or otherwise requires a tax opinion regarding the Intended Tax Treatment, the Company shall use its commercially reasonable efforts to cause Loeb & Loeb LLP (or such other nationally recognized law or accounting firm representing the Company and mutually acceptable to the Parties) to deliver such tax opinion in form and substance reasonably satisfactory to the Parties. Notwithstanding anything to the contrary in this Agreement, the receipt or delivery of a tax opinion regarding the Intended Tax Treatment shall not be a condition to the obligations of any Party to consummate the Closing. Notwithstanding any provision herein, Loeb & Loeb LLP shall not be required to issue any opinion with respect to the tax consequences of the Business Combination or any of the transactions contemplated herein to BIII or to its shareholders. In the event of a Reporting Exception Determination, this Section 8.03(a)(iii) shall not apply with respect to the Intended Tax Treatment positions or positions that gave rise to such Reporting Exception Determination.
66
(iv) The parties shall cooperate fully, and to the extent reasonably requested by the other Party or its counsel to document and support the Intended Tax Treatment of the Astrum Stock Acquisition. Without limitation of the foregoing, each Party shall use reasonable best efforts to execute and deliver customary tax representation letters to Loeb & Loeb LLP (or such other advisor) in form and substance reasonably satisfactory to such advisor to support any tax opinion provided by such advisor in accordance with Section 8.03(a)(iii).
(b) Transfer Taxes. All transfer, documentary, sales, use, stamp, registration, value added or other similar Taxes incurred in connection with the Transactions (“Transfer Taxes”) shall be borne by the Party responsible under Applicable Law and paid when due. The Company and BIII agree to reasonably cooperate to reduce or eliminate the amount of any such Transfer Taxes. The Party responsible under Applicable Law shall timely file all necessary Tax Returns and other documentation with respect to all Transfer Taxes.
(c) Cooperation. The Parties shall cooperate fully, as and to the extent reasonably requested by the other Party with respect to Tax matters of the Company or otherwise relating to the transactions contemplated by this Agreement. Such cooperation shall include the provision of records and information which are reasonably relevant to any such matters and within such Party’s possession or obtainable without material cost or expense, and making employees or other representatives available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(d) Certain Gain Recognition Agreement Matters. BIII and the Merger Surviving Company shall reasonably cooperate with any Astrum Shareholder that is a party to, or that has filed or files, a gain recognition agreement under Treasury Regulations Section 1.367(a)-8 (or any successor regulation thereto) in connection with the Astrum Stock Acquisition, including by providing such information as may be reasonably requested by such shareholder and as is necessary or advisable to enable such shareholder to (i) enter into any new, amended or restated gain recognition agreement (including any new gain recognition agreement pursuant to Treasury Regulations Section 1.367(a)-8(k)) in connection with the Merger, (ii) comply with the terms of any existing gain recognition agreement (including any annual certification requirements), or (iii) otherwise comply with the gain recognition agreement rules under Section 367(a) of the Code and the Treasury Regulations promulgated thereunder (including Treasury Regulations Section 1.367(a)-8); provided that BIII, the Merger Surviving Company and their respective direct or indirect Affiliates (i) shall not be required to incur any material out-of-pocket costs in connection with such cooperation (other than costs that are reimbursed by the requesting Astrum Shareholder), and (ii) shall not be prohibited or restricted from taking any actions or entering into any transactions that might otherwise result in the Astrum Shareholder recognizing gain under the applicable gain recognition agreement.
67
Section 8.04. Proxy Statement; Registration Statement.
(a) As promptly as reasonably practicable after the date of this Agreement, BIII, the Company and Astrum Singapore shall prepare, and BIII shall file with the SEC the Registration Statement, in which a preliminary proxy statement in connection with the Merger to be sent to the Pre-Closing BIII Holders among other things, relating to the BIII Extraordinary General Meeting in accordance with and as required by the BIII Governing Document, Applicable Law, and any applicable rules and regulations of the SEC and the NYSE (such proxy statement, together with any amendments or supplements thereto, the “Proxy Statement”) for the purposes of the approval of the Transaction Proposals will be included as a prospectus. BIII, the Company and Astrum Singapore shall use commercially reasonable efforts to cooperate, and cause their respective Subsidiaries, as applicable, to reasonably cooperate, with each other and their respective representatives in the preparation of the Proxy Statement and the Registration Statement. BIII, the Company and Astrum Singapore shall use their commercially reasonable efforts to cause the Proxy Statement and the Registration Statement to comply with the rules and regulations promulgated by the SEC, respond as promptly as reasonably practicable to and resolve all comments received from the SEC concerning the Proxy Statement and the Registration Statement (taking into account the matters set forth in Section 8.03(a)(iii) to the extent applicable), to have the Registration Statement declared effective under the Securities Act as promptly as practicable after the filing thereof and by no later than the Effectiveness Deadline, to keep the Registration Statement effective (i) as long as is necessary to consummate the Merger and the other Transactions or (ii) until such date after Closing on which a registration statement on Form F-1 registering (A) the issuance of Listco Shares issuable upon the exercise of BIII Warrants and (B) the resale of all Listco Shares (including Listco Shares issuable upon exercise of BIII Warrants) and BIII Warrants held or to be held by the Non-Public Eligible BIII Shareholders has been declared effective under the Securities Act (the “Resale F-1 Effective Date”), whichever is later, and to use commercially reasonable efforts to keep the resale prospectus included in the Registration Statement current until the Resale F-1 Effective Date.
(b) BIII and the Company shall use commercially reasonable efforts to obtain all necessary state securities law or “blue sky” permits and approvals required to carry out the Merger, and the Company and BIII shall promptly furnish all information concerning itself as may be reasonably requested in connection with any such action.
(c) Each of Astrum Singapore and the Company shall use reasonable best efforts to promptly furnish to BIII all information concerning itself, its Subsidiaries, officers, directors, managers, members and shareholders, as applicable, and such other matters, in each case, as may be reasonably necessary in connection with and for inclusion in the Proxy Statement, the Registration Statement or any other statement, filing, notice or application made by or on behalf of BIII to the SEC or the NYSE in connection with the Merger and the other transactions contemplated hereby (including any amendment or supplement to the Proxy Statement or the Registration Statement) (collectively, the “Offer Documents”).
(d) BIII shall notify the Company promptly after BIII receives notice thereof, of the time when the 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 Merger Consideration Shares 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, the Registration Statement or the other Offer Documents or for additional information. BIII shall provide the Company with a reasonable opportunity to review and comment on the Proxy Statement and the Registration Statement (including each amendment or supplement thereto) and all responses to requests for additional information by and replies to comments of the SEC and give due consideration to all comments reasonably proposed by the Company in respect of such documents and responses prior to filing such with or sending such to the SEC, and, to the extent practicable, the Parties will provide each other with copies of all such filings made and correspondence with the SEC. BIII and the Company shall cooperate and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed) any response to comments of the SEC with respect to the Proxy Statement, the Registration Statement or the other Offer Documents and any amendment filed in response thereto.
68
(e) Each of BIII, Astrum Singapore and the Company shall use commercially reasonable efforts to ensure that none of the information related to it or any of its Affiliates, supplied by it or on its behalf for inclusion or incorporation by reference in (i) the Proxy Statement will, as of the date it is first mailed to the Pre-Closing BIII Holders, or at the time of the BIII Extraordinary General Meeting, or (ii) the Registration Statement will, at the time the Registration Statement is filed, at the time it becomes effective under the Securities Act and at the Merger Effective Time, in either case, 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, in light of the circumstances under which they are made, not misleading.
(f) If, at any time prior to the Merger Effective Time, any information relating to BIII, the Company, Astrum Singapore or any of their respective Subsidiaries, Affiliates, directors or officers, as applicable, or the Astrum Shareholders is discovered by any of BIII or the Company to be inaccurate and is required to be set forth in an amendment or supplement to either the Proxy Statement or the Registration Statement, so that the Proxy Statement or the Registration Statement would not include any misstatement 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, the party that discovers such information shall promptly notify the other parties and an appropriate amendment or supplement describing such information shall, subject to the other provisions of this Section 8.04, be promptly filed by BIII with the SEC and, to the extent required by Applicable Law, disseminated to the Pre-Closing BIII Holders.
Section 8.05. BIII Shareholder Approval.
(a) BIII shall take, in accordance with Applicable Law, the rules of the NYSE, and the BIII Governing Document, all action necessary to call, hold, and convene an extraordinary general meeting of holders of BIII Ordinary Shares (including any permitted adjournment or postponement, the “BIII Extraordinary General Meeting”) to consider and vote upon the Transaction Proposals and to provide the BIII Shareholders with the opportunity to effect a BIII Share Redemption in connection therewith, as promptly as reasonably practicable after the date that the Registration Statement is declared effective under the Securities Act but in no event earlier than 20 days after mailing to the BIII Shareholders. BIII shall, through the BIII Board, recommend to the BIII Shareholders (including in the Proxy Statement) and solicit approval of (i) the adoption and approval of this Agreement and the Transactions as a Business Combination, (ii) the adoption and approval of the Merger and the Plan of Merger, (iii) the amendment to the authorized share capital of BIII from the Merger Effective Time to increase the number of authorized shares for the issuance of the Merger Consideration Shares, the Performance Shares, Listco Shares under the Equity Incentive Plan, Listco Shares upon exercise of BIII Warrants, and such additional Listco Shares as may be necessary or desirable for general corporate purposes, (iv) the amendment and restatement of the BIII Governing Document by its replacement with the Listing Articles from the Merger Effective Time, which Listing Articles shall provide, among other things, the new authorized share capital and the new name of BIII, (v) the change of name of BIII to “Astrum Space Company” (or such other name as may be agreed by the Company and BIII) from the Merger Effective Time, (vi) the issuance of the Merger Consideration Shares and the Performance Shares, (vii) the adoption and approval of the Equity Incentive Plan, (viii) the adoption and approval of any other proposals as the SEC (or staff member thereof) or the NYSE may indicate are necessary in its comments to the Proxy Statement, the Registration Statement or correspondence related thereto, (ix) the adoption and approval of any other proposals as reasonably agreed by BIII and the Company to be necessary or appropriate in connection with the Merger and (x) the adjournment of the BIII Extraordinary General Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing (such proposals in (i) through (x), together, the “Transaction Proposals”). BIII shall use its reasonable best efforts to obtain the approval of the Transaction Proposals at the BIII Extraordinary General Meeting, including by soliciting proxies as promptly as reasonably practicable in accordance with Applicable Law for the purpose of seeking the approval of the Transaction Proposals and adjourning the BIII Extraordinary General Meeting as many times as reasonably necessary to permit further solicitation of proxies in the event there are not sufficient votes to approve and adopt any of the Transaction Proposals.
69
(b) Notwithstanding anything to the contrary contained in this Agreement, once the BIII Extraordinary General Meeting to consider and vote upon the Transaction Proposals has been called and noticed, BIII will not adjourn or postpone the BIII Extraordinary General Meeting without the consent of the Company, other than (i) for the absence of a quorum, in which event BIII shall adjourn the meeting up to three times for up to ten Business Days each time, (ii) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure that BIII has determined in good faith, after consultation with its outside legal advisors, is necessary under Applicable Law, and for such supplemental or amended disclosure to be disseminated to and reviewed by the holders of BIII Ordinary Shares prior to the BIII Extraordinary General Meeting, or (iii) a one-time adjournment or postponement of up to ten Business Days to solicit additional proxies from holders of BIII Ordinary Shares to the extent BIII has determined that such adjournment or postponement is reasonably necessary to obtain the approval of the Transaction Proposals.
Section 8.06. Post-Closing Board.
(a) The Parties shall take all necessary actions to cause the Board as of immediately following the Closing to consist of not more than five directors (including a Chairman of the Board) to be appointed by Astrum Holding, all of whom should meet the director qualification and eligibility criteria of Applicable Laws and the applicable listing rules of the NYSE, with the composition of the Board complying with the director independence rules as required by the applicable listing rules of the NYSE and other Applicable Laws. From Closing and for two (2) years after Closing, the Sponsor will have the right to nominate one (1) director to the Board for a term not less than two (2) years on terms to be mutually agreed by the Merger Surviving Company and the Sponsor.
Section 8.07. Trust Account. Upon satisfaction or waiver of the conditions set forth in Article 9 (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) and provision of notice thereof to the Trustee (which notice BIII shall provide to the Trustee in accordance with the terms of the Trust Agreement), in accordance with, subject to and pursuant to the Trust Agreement and the BIII Governing Document, (a) at the Closing, (i) BIII shall cause the documents, opinions and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered, and (ii) shall cause the Trustee to (A) pay as and when due all amounts payable for BIII Share Redemptions and (B) pay all amounts then available in the Trust Account to, or at the direction of, BIII in accordance with this Agreement (including Section 3.04) and the Trust Agreement, and (b) thereafter, the Trust Account shall terminate, except as otherwise provided therein.
70
Section 8.08. Form 8-K Filings. BIII and the Company shall mutually agree upon and issue a press release announcing the execution of this Agreement. BIII and the Company shall cooperate in good faith with respect to the prompt preparation of, and, as promptly as practicable after the effective date of this Agreement (but in any event within four Business Days thereafter), BIII shall file with the SEC, a Current Report on Form 8-K pursuant to the Exchange Act to report the execution of this Agreement. Prior to the Closing, BIII and the Company shall mutually agree upon and prepare a press release announcing the consummation of the Transactions (“Closing Press Release”). Concurrently with or promptly after the Closing, BIII shall issue the Closing Press Release and BIII shall file it on a Current Report on Form 8-K. BIII and the Company shall cooperate in good faith with respect to the preparation of, and BIII shall prepare, a draft Form 8-K announcing the Closing, together with, or incorporating by reference, the required pro forma financial statements and the historical financial statements prepared by the Company and its accountant (the “Completion 8-K”). Concurrently with the Closing, or as soon as practicable (but in any event within four Business Days) thereafter, the Merger Surviving Company shall file the Completion 8-K with the SEC.
Section 8.09. Equity Incentive Plan. Prior to the Closing Date, BIII shall approve and, subject to the approval of the BIII Shareholders, adopt an equity incentive plan with terms consistent with this Section 8.09 and as otherwise determined by the Company and BIII (the “Equity Incentive Plan”). The Equity Incentive Plan will provide for the grant of awards to employees, service providers, the Founder and other eligible participants of the Merger Surviving Company and its Subsidiaries with a total pool of awards of Listco Shares not exceeding 20% of the aggregate number of Listco Shares outstanding as of immediately after the Closing, on a fully diluted, as converted and as-exercised basis. The Equity Incentive Plan shall be effective upon and from the Closing.
Section 8.10. No Shop. During the Interim Period, BIII, on the one hand, and the Company, Astrum Singapore and their respective Subsidiaries, on the other hand, will not, nor will they direct, authorize, cause or permit their respective Representatives to, directly or indirectly (a) take any action to solicit, initiate or engage in discussions or negotiations with, or enter into any binding agreement with, any Person concerning, or which would reasonably be expected to lead to, an Acquisition Transaction, (b) in the case of BIII, fail to include the BIII Board Recommendation in (or remove the BIII Board Recommendation from) the Registration Statement, or (c) withhold, withdraw, qualify, amend or modify (or publicly propose or announce any intention or desire to withhold, withdraw, qualify, amend or modify), in a manner adverse to the other Party, the approval of such Party’s governing body of this Agreement, the Ancillary Agreements and/or any of the Transactions, or, in the case of BIII, the BIII Board Recommendation, unless, in the case of clauses (b) and (c), the applicable party reasonably determines based on advice of outside counsel that the failure to take, or taking of, such action would be reasonably likely to be in breach of the BIII Board’s fiduciary duties under Applicable Law. Promptly upon receipt of an unsolicited proposal regarding an Acquisition Transaction, BIII, Astrum Singapore and the Company shall notify the other party thereof, which notice shall include a written summary of the material terms of such unsolicited proposal. Notwithstanding the foregoing, the Parties may respond to any unsolicited proposal regarding an Acquisition Transaction only by indicating that such Party has entered into a binding definitive agreement with respect to a business combination and is unable to provide any information related to such Party or any of its Subsidiaries or entertain any proposals or offers or engage in any negotiations or discussions concerning an Acquisition Transaction. From and after the date hereof, BIII shall, and shall instruct its officers and directors to, and BIII shall instruct and cause its Representatives, the Sponsor and their respective Subsidiaries and their respective Representatives to, immediately cease and terminate all discussions and negotiations with any Persons (other than the Company and its Representatives) with respect to an Acquisition Transaction. For the purposes hereof, “Acquisition Transaction” means, (i) with respect to the Company and Astrum Singapore, any merger, consolidation, liquidation, recapitalization, share exchange or other business combination transaction (other than (x) the Transactions, (y) transactions in the Ordinary Course of Business, and (z) other transactions that would not be restricted under Section 6.01 and are not undertaken within the intention of frustrating the Transactions), in each case, involving the sale, lease, exchange or other disposition of at least a majority of the properties or assets of the Company and its Subsidiaries as a whole or Equity Securities of the Company, Astrum Singapore or their respective Subsidiaries representing in aggregate at least 15% of the Company’s total consolidated assets and (ii) with respect to BIII, any transaction (other than the Transactions) involving, directly or indirectly, any merger or consolidation with or acquisition of, purchase of assets, businesses or equity of, consolidation or similar business combination with or other transaction that would constitute a Business Combination with or involving BIII (or any Affiliate or Subsidiary of BIII), on the one hand, and any party other than Astrum Singapore, the Company or the Astrum Shareholders, on the other hand.
71
Section 8.11. Notification of Certain Matters. Each of BIII, Astrum Singapore and the Company shall give prompt notice to the other Party of: (a) any Action or investigation that would have been required to be disclosed to the other Party under this Agreement if such Party had knowledge of it as of the date hereof; (b) the occurrence or non-occurrence of any event whose occurrence or non-occurrence, as the case may be, could reasonably be expected to cause any condition set forth in Section 9.02 or Section 9.03 not to be satisfied at any time from the date of this Agreement to the Merger Effective Time; (c) any notice or other communication from any third Person alleging that the consent of such third Person is or may be required in connection with the Merger or the other Transactions; (d) without limiting Section 8.01, any regulatory notice or report from a Governmental Authority in respect of the Transactions; and (e) in the case of the Company, any information or knowledge obtained by the Company, or any of its Subsidiaries that could reasonably be expected to materially affect the Company’s or any of its Subsidiaries’ current projections, forecasts or budgets or estimates of revenues, earnings or other measures of financial performance for any period.
Section 8.12. PIPE Financing. During the Interim Period, the Parties shall use commercially reasonable efforts to raise equity, structured equity or equity-linked financing, debt financings or any other type of financings, whether from strategic investors or otherwise as mutually agreed by BIII and the Company (a “PIPE Financing”). The Company, Astrum Singapore and BIII shall co-lead the effort to identify potential investors for the PIPE Financing, including institutional and high-net-worth investors across various jurisdictions. In addition, the Company and Astrum Singapore shall take the leading role with BIII providing reasonable cooperation as may be requested by the Company or Astrum Singapore to participate in and deliver presentations at investor meetings with prospective PIPE Financing investors, including by making its officers and representatives available for investor meetings and providing such information regarding BIII, the Company and its Subsidiaries (as applicable) as may be reasonably requested by prospective investors. The Company shall enter into engagement letters with one or more PIPE placement agents in form and substance reasonably acceptable to the Company and BIII (“PIPE Engagement Letters”). Any PIPE Financing shall be consummated pursuant to one or more subscription agreements (including forward purchase agreements) entered into by the Company, in form and substance reasonably acceptable to the Company and BIII, pursuant to which investors mutually approved by the Company and BIII shall agree to purchase Equity Securities of the Merger Surviving Company, or notes or other similar instruments of the Merger Surviving Company, in a private placement or placements to be consummated no later than the Closing, on the terms and conditions set forth therein.
72
Article 9
Conditions to Obligations
Section 9.01. Conditions to Obligations of BIII and the Company
. The obligations of BIII and the Company to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following conditions, any one or more of which may be waived (if permitted by Applicable Law) in writing by both BIII and the Company:
(a) Listing Requirements. The Merger Consideration Shares shall have been approved for listing on the NYSE, subject only to official notice of issuance thereof.
(b) Required Governmental Consents. The consents or approvals of Governmental Authorities as set forth on Section 9.01(b) of the Company Disclosure Schedule shall have been received.
(c) Applicable Law. There shall not be in force any Applicable Law or Governmental Order enjoining, prohibiting, making illegal or preventing the consummation of the Transactions.
(d) BIII Shareholder Approval. The BIII Shareholder Approval shall have been obtained and shall remain in full force and effect.
(e) Effectiveness of Registration Statement. The Registration Statement shall have been declared effective in accordance with the Securities Act.
(f) Stop Order. No stop order shall have been issued by the SEC with respect to the Registration Statement and no Action seeking such stop order shall have been threatened or initiated.
Section 9.02. Conditions to Obligations of BIII
. The obligations of BIII to consummate, or cause to be consummated, the Merger are subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by BIII:
(a) Representations and Warranties.
(i) Each of the representations and warranties of the Company and Astrum Singapore contained in this Agreement (without giving effect to any materiality or “Company Material Adverse Effect” or similar qualifications therein), other than the representations and warranties set forth in Section 4.01, Section 4.02, Section 4.05, Section 4.06, Section 4.09(a), Section 4.25 and Section 4.26, shall be true and correct as of the date of this Agreement and as of the Closing, as if made at and as of such time, except with respect to representations and warranties which speak as to another specified time, which representations and warranties shall be true and correct at and as of such time, except for, in each case, such failures to be true and correct as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
73
(ii) The representations and warranties of the Company and Astrum Singapore contained in Section 4.05, Section 4.06 and Section 4.09(a) shall be true and correct (except for de minimis inaccuracies in respect of any Subsidiaries with respect to Section 4.05 and Section 4.06) as of the date of this Agreement and as of the Closing, as if made at and as of such time.
(iii) Each of the representations and warranties of the Company and Astrum Singapore contained in Section 4.01, Section 4.02, Section 4.25 and Section 4.26 (without giving effect to any materiality or “Company Material Adverse Effect” or similar qualifications therein), shall be true and correct as of the date of this Agreement and as of the Closing, as if made at and as of such time (except to the extent that any such representation and warranty speaks expressly as of another specified time, in which case such representation and warranty shall be true and correct as of such time), except for, in each case, such failures to be true and correct as would not reasonably be expected to be material, individually or in the aggregate, to the Company and its Subsidiaries, taken as a whole.
(b) Covenants.
(i) Each of the covenants, obligations and agreements of the Company and Astrum Singapore hereunder to be performed as of or prior to the Closing (other than the covenant, obligation and agreement set forth in Section 6.08) shall have been performed in all material respects; and
(ii) The covenant, obligation and agreement of the Company and Astrum Singapore set forth in Section 6.08 shall have been performed in all respects,
provided, that for the purposes of this Section 9.02(b), a covenant of the Company or Astrum Singapore shall only be deemed to have not been performed if the Company or Astrum Singapore (as the case may be) has materially breached such covenant and failed to cure, if curable, within 20 days after receipt by the Company or Astrum Singapore (as the case may be) from BIII notice of such breach.
(c) No Company Material Adverse Effect. From the date of this Agreement, there shall not have occurred a Company Material Adverse Effect that is continuing.
(d) Closing Deliverables. BIII shall have received the deliverables set forth in Section 3.01(a).
(e) Astrum Holding Approval. Astrum Holding, as the sole shareholder of the Company, shall have passed a special resolution of the Company approving the execution, delivery and performance of this Agreement, the Plan of Merger and the consummation of the Transactions, including the Merger, and such resolution shall remain in full force and effect.
74
Section 9.03. Conditions to the Obligations of the Company. The obligation of the Company to consummate the Merger is subject to the satisfaction of the following additional conditions, any one or more of which may be waived in writing by the Company:
(a) Representations and Warranties.
(i) Each of the representations and warranties of BIII contained in this Agreement (without giving effect to any materiality or “BIII Material Adverse Effect” or similar qualifications therein), other than the representations and warranties set forth in Section 5.01, Section 5.02, Section 5.06, Section 5.12(b) and Section 5.21, shall be true and correct as of the date of this Agreement and as of the Closing, as if made at and as of such time, except with respect to representations and warranties which speak as to another specified time, which representations and warranties shall be true and correct at and as of such time, except for, in each case, such failures to be true and correct as would not reasonably be expected to have, individually or in the aggregate, a BIII Material Adverse Effect.
(ii) The representations and warranties of BIII contained in Section 5.01(c), Section 5.02 and Section 5.12(b) shall be true and correct as of the date of this Agreement and as of the Closing, as if made at and as of such time.
(iii) Each of the representations and warranties of BIII contained in Section 5.01(a), Section 5.01(b), Section 5.06 and Section 5.21 (without giving effect to any materiality or “BIII Material Adverse Effect” or similar qualifications therein), shall be true and correct in all respects except for de minimis inaccuracies as of the date of this Agreement and as of the Closing, as if made at and as of such time (except to the extent that any such representation and warranty speaks expressly as of another specified time, in which case such representation and warranty shall be true and correct in all respects except for de minimis inaccuracies as of such time).
(b) Covenants. Each of the covenants, obligations and agreements of BIII hereunder to be performed as of or prior to the Closing shall have been performed in all material respects; provided, that for the purposes of this Section 9.03(b), a covenant of BIII shall only be deemed to have not been performed if BIII has materially breached such covenant and failed to cure, if curable, within 20 days after receipt by BIII from the Company notice of such breach (or if earlier, the Termination Date).
(c) No BIII Material Adverse Effect. From the date of this Agreement, there shall not have occurred a BIII Material Adverse Effect that is continuing.
(d) Closing Deliverables. The Company shall have received the deliverables set forth in Section 3.01(b).
Section 9.04. Satisfaction of Conditions. All conditions to the obligations of the Company and BIII to proceed with the Closing under this Agreement will be deemed to have been fully and completely satisfied or waived for all purposes if the Closing occurs.
75
Article 10
Termination
Section 10.01. Termination. This Agreement may be terminated and the transactions contemplated hereby abandoned prior to the Closing only:
(a) by a written instrument executed by all the Parties;
(b) by either the Company or BIII if the Closing shall not have occurred on or before May 27, 2027 or such later date as may be mutually agreed by the Company and BIII (the “Termination Date”); provided that the right to terminate this Agreement pursuant to this Section 10.01(b) shall not be available (i) to BIII if any breach of or failure to perform any provision of this Agreement by BIII results in the failure of the Closing to be consummated by such date or (ii) to the Company if any breach of or failure to perform any provision of this Agreement by the Company or Astrum Singapore results in the failure of the Closing to be consummated by such date;
(c) by either the Company or BIII if the consummation of the Merger is permanently enjoined, prohibited, deemed illegal or prevented by the terms of a final, non-appealable Governmental Order;
(d) by BIII if there is any breach of any representation, warranty, covenant or agreement on the part of the Company or Astrum Singapore set forth in this Agreement, such that the conditions specified in Section 9.02(a) or Section 9.02(b) would not be satisfied at the Closing (a “Terminating Company Breach”), except that, if such Terminating Company Breach is curable by the Company or Astrum Singapore (as applicable), then, for a period of up to 30 days (or any shorter period of the time that remains between the date BIII provides written notice of such violation or breach and the Termination Date) after receipt by the Company of notice from BIII of such breach, but only as long as the Company or Astrum Singapore (as applicable) continues to use its reasonable best efforts to cure such Terminating Company Breach (the “Company Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Company Breach is not cured within the Company Cure Period; provided that BIII shall not have the right to terminate this Agreement pursuant to this Section 10.01(d) if BIII is then in breach of its covenants, agreements, representations or warranties contained in this Agreement, which breach by BIII would cause any condition set forth in Section 9.03(a) or Section 9.03(b) not to be satisfied;
(e) by the Company if there is any breach of any representation, warranty, covenant or agreement on the part of BIII set forth in this Agreement, such that the conditions specified in Section 9.03(a) or Section 9.03(b) would not be satisfied at the Closing (a “Terminating BIII Breach”), except that, if any such Terminating BIII Breach is curable by BIII, then, for a period of up to 30 days (or any shorter period of the time that remains between the date the Company provides written notice of such violation or breach and the Termination Date) after receipt by BIII of notice from the Company of such breach, but only as long as BIII continues to use their reasonable best efforts to cure such Terminating BIII Breach (the “BIII Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating BIII Breach is not cured within the BIII Cure Period; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 10.01(e) if the Company or Astrum Singapore is then in breach of its covenants, agreements, representations or warranties contained in this Agreement, which breach by the Company or Astrum Singapore would cause any condition set forth in Section 9.02(a) or Section 9.02(b) not to be satisfied; or
(f) by either the Company or BIII if the BIII Shareholder Approval is not obtained upon a vote duly taken thereon at the BIII Extraordinary General Meeting (including any permitted adjournment or postponement of the BIII Extraordinary General Meeting).
The Party desiring to terminate this Agreement pursuant to this Section 10.01 (other than Section 10.01(a)) shall give written notice of such termination to each other Party.
76
Section 10.02. Effect of Termination.
(a) Except as otherwise set forth in this Section 10.02, in the event of the termination of this Agreement pursuant to Section 10.01, this Agreement shall forthwith become void and have no effect, without any liability on the part of any party hereto or its respective Affiliates, officers, directors or shareholders, other than liability of any of the Parties for any intentional and wilful material breach of this Agreement or fraud by such Party occurring prior to such termination. The provisions of Sections 6.04, 10.02, 11.05, 11.06, 11.07, 11.08, 11.09, 11.10, 11.13, 11.15, 11.16 and 11.17 (collectively, the “Surviving Provisions”) and the Confidentiality Agreement, and any defined term or other Section or Article of this Agreement referenced in the Surviving Provisions which are required to survive in order to give appropriate effect to the Surviving Provisions, shall, in each case, survive any termination of this Agreement.
(b) Notwithstanding anything herein to the contrary, if this Agreement is terminated pursuant to Section 10.01 other than for reason solely attributable to a breach of or failure to perform any obligations hereunder by BIII, the Company shall allot and issue to the Sponsor, and the Sponsor shall receive from the Company, within ten (10) Business Days after the date of such termination, 0.0035 Company Ordinary Shares (which shall be equitably and proportionately adjusted in the event of any share split (including reverse share split), share dividend or distribution, reorganization, recapitalization or other similar transaction affecting the Company Ordinary Shares after the date of this Agreement). Any Company Ordinary Shares issued to the Sponsor pursuant to this provision shall be subject to such transfer restrictions as the Company may impose from time to time, and no transfer of such shares shall be effected without the prior written approval of the Company; provided, however, subject to applicable securities law restrictions, that no such approval shall be required for any transfer to an Affiliate of the Sponsor.
Article 11
Miscellaneous
Section 11.01. Non-Survival of Representations, Warranties and Covenants. None of the representations, warranties, covenants and agreements in this Agreement or in any instrument, document or certificate delivered pursuant to this Agreement shall survive the Closing, except for (a) those covenants and agreements contained herein and therein which by their terms expressly apply in whole or in part after the Closing and then only to such extent until such covenants and agreements have been fully performed, (b) any covenants and agreements in the Surviving Provisions and (c) any claim arising out of fraud.
Section 11.02. Waiver. Any party to this Agreement may, at any time prior to the Closing, waive any of the terms or conditions of this Agreement. No waiver of any term or condition of this Agreement shall be valid unless the waiver is in writing and signed by the waiving party.
77
Section 11.03. Notices. All notices and other communications among the parties hereto shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (c) when delivered by FedEx or other nationally recognized overnight delivery service, or (d) when delivered by email or other electronic transmission (in each case in this clause (d), solely if receipt is confirmed), addressed as follows:
(i) If to BIII, to:
Black Spade Acquisition III Co
Suite 2902, 29/F, The Centrium
60 Wyndham Street, Central
Hong Kong
| Attention: | Dennis Tam |
| Kester Ng | |
| Email: | |
with copies (which shall not constitute notice) to:
Latham & Watkins LLP
9 Raffles Place
#42 – 02 Republic Plaza
Singapore 048619
| Attention: | Sharon Lau |
| Stacey Wong | |
| Email: | |
(ii) If to the Company or Astrum Singapore, to:
Astrum Networks Pte. Ltd.
160 Robinson Road, #14-04, Singapore Federation Center
Singapore 068914
| Attention: | Jonathan Wang |
| Email: |
with copies (which shall not constitute notice) to:
Loeb & Loeb LLP
345 Park Avenue
New York, NY 10154
| Attention: | David J. Levine |
| Rima Roawad | |
| Joan S. Guilfoyle | |
| Email: | |
Loeb & Loeb LLP
101000 Santa Monica Blvd. #2200
Los Angeles, CA 90067
| Attention: | Victor Chen |
| Email: |
or to such other address or addresses as the parties may from time to time designate in writing by notice to the other parties in accordance with this Section 11.03.
78
Section 11.04. Assignment. No party hereto shall assign, delegate or otherwise transfer (by operation of law or otherwise) any of its rights or obligations under this Agreement or any part hereof without the prior written consent of the other parties hereto. Any assignment in contravention of the preceding sentence shall be null and void ab initio. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Section 11.05. Rights of Third Parties. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any Person, other than the Parties hereto, any right or remedies under or by reason of this Agreement, including, without limitation, the right to rely upon the accuracy or completeness of the representations and warranties set forth herein; provided, however, that, notwithstanding the foregoing (a) in the event the Closing occurs, the present and former officers and directors of BIII (and their successors, heirs and representatives) are intended third-party beneficiaries of, and may enforce, Section 8.02, (b) the past, present and future directors, managers, officers, employees, incorporators, members, partners, equityholders, Affiliates, agents, attorneys, advisors and representatives of the parties and any Affiliate of any of the foregoing (and their successors, heirs and representatives), are intended third-party beneficiaries of, and may enforce, this Section 11.05 and Section 11.16 and (c) the Sponsor is an intended third-party beneficiary of, and may enforce, Section 10.02(b).
Section 11.06. Expenses. Except as otherwise provided herein, each Party shall bear its own expenses incurred in connection with this Agreement, the Ancillary Agreements and the Transactions whether or not such Transactions shall be consummated, including all fees of its legal counsel, financial advisors and accountants; provided that, notwithstanding anything to the contrary, if the Transactions are consummated, the Merger Surviving Company shall pay or cause to be paid all costs and expenses (including reasonable and documented fees and expenses of counsel, auditors and financial and other advisors and fees and expenses under Section 8.02) incurred by the Company and its Subsidiaries and BIII in connection with this Agreement, the Ancillary Agreements, and the Transactions; BIII shall provide the Company, upon the Company’s written request, with written notice (which delivery may be made via email) of its reasonable estimates of the costs and expenses incurred as of such date and to be incurred through the Closing by BIII; provided further that, if the Transactions are not consummated, the Company shall bear all costs and expenses paid to the SEC in connection with the Registration Statement and Proxy Statement and related printer fees, all costs and expenses paid to the New York Stock Exchange in connection with the application for listing of the Merger Surviving Company, all costs and expenses incurred by the Parties or any one of them relating to the satisfaction of stock exchange continued and/or initial listing requirements relating to an entity’s public float, shareholder distribution or related conditions, and all costs and expenses incurred in connection with the PIPE Financing (including any fees and expenses under the PIPE Engagement Letters).
Section 11.07. Governing Law. This Agreement, and all Actions 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 New York, 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.
79
Section 11.08. Dispute Resolution and Waiver of Jury Trial.
(a) Subject to Section 11.15, any Action based upon, arising out of or related to this Agreement or the transactions contemplated hereby may be brought in the courts of the Borough of Manhattan in the State of New York, or, if it has or can acquire jurisdiction, in the United States District Court for the Southern District of New York located therein and, in each case, appellate courts therefrom, and each of the Parties irrevocably submits to the exclusive jurisdiction of each such court in any such Action, waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, agrees that all claims in respect of such Action shall be heard and determined only in any such court, and agrees not to bring any Action 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 Applicable 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 Action brought pursuant to this Section 11.08.
(b) EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY (I) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH 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 BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS Section 11.08.
Section 11.09. Headings and Captions; Counterparts. The headings and captions in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any facsimile or .pdf copies hereof or signatures hereon shall, for all purposes, be deemed originals. Until and unless each party has received a counterpart hereof signed by the other party hereto, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication).
Section 11.10. Entire Agreement. This Agreement (including, for the avoidance of doubt, any Annexes, Appendices, Exhibits or Schedules annexed hereto or referred to herein, including the Company Disclosure Schedule and the BIII Disclosure Schedule), the Confidentiality Agreement, and the Ancillary Agreements constitute the entire agreement among the Parties relating to the transactions contemplated hereby and supersede any other agreements, whether written or oral, that may have been made or entered into by or among any of the parties hereto or any of their respective Subsidiaries relating to the transactions contemplated hereby. No representations, warranties, covenants, understandings, agreements, oral or otherwise, relating to the Transactions exist between the parties hereto except as expressly set forth in this Agreement and the Ancillary Agreements.
Section 11.11. Amendments. This Agreement may be amended or modified in whole or in part, only by a duly authorized agreement in writing executed by each of the Parties; provided that, after the BIII Shareholder Approval has been obtained, there shall be no amendment or modification that would require the further approval of the Pre-Closing BIII Holders under Applicable Law without such approval having first been obtained.
80
Section 11.12. Publicity. Except communications consistent with the final form of joint press release announcing the Transactions and the investor presentation given to investors in connection with the announcement of the Transactions, BIII, on the one hand, and the Company and Astrum Singapore, on the other hand, shall consult with each other, and provide meaningful opportunity for review and give due consideration to reasonable comment by the other, prior to issuing any press releases or other public written communications or otherwise making planned public statements with respect to the Transactions and prior to making any filings with any third party and/or any Governmental Authority with respect thereto, and (other than in the case where the public announcement is required by Applicable Law) shall not make or issue any such press release or other public written communications or otherwise make any planned public statements without the prior written consent of the other Parties, which approval shall not be unreasonably withheld or delayed.
Section 11.13. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. The Parties further agree that if any provision contained herein is, to any extent, held invalid or unenforceable in any respect under any Applicable Law governing this Agreement, they shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Applicable Law and, to the extent necessary, shall amend or otherwise modify this Agreement to replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the parties.
Section 11.14. Disclosure Schedules. Each of the Company and BIII has set forth information on their respective disclosure schedules in a section thereof that corresponds to the section of this Agreement to which it relates. A matter set forth in one section of a disclosure schedule need not be set forth in any other section so long as its relevance to such other section of the disclosure schedule or section of the Agreement is reasonably apparent. Any item of information, matter or document disclosed or referenced in, or attached to, the Company Disclosure Schedules or the BIII Disclosure Schedules shall not (a) be used as a basis for interpreting the terms “material,” “Company Material Adverse Effect,” “BIII Material Adverse Effect,” “material adverse effect” or other similar terms in this Agreement or to establish a standard of materiality, (b) represent a determination that such item or matter did not arise in the Ordinary Course of Business, (c) constitute, or be deemed to constitute, an admission of liability or obligation regarding such matter (other than with respect to any section of the Company Disclosure Schedules or BIII Disclosure Schedules, as applicable, referred to in any representation or warranty in this Agreement that expressly requires listing facts, circumstances or agreements in such section of the Company Disclosure Schedules or BIII Disclosure Schedules, as applicable), or (d) notwithstanding the foregoing in subclause (c), constitute, or be deemed to constitute, an admission to any third party in any respect concerning such item or matter.
Section 11.15. Enforcement.
(a) The Parties agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the Parties do not perform their respective obligations under the provisions of this Agreement in accordance with its specified terms or otherwise breach such provisions. The Parties acknowledge and agree that the Parties shall be entitled to seek an injunction, specific performance, or other equitable relief, to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, without proof of Damages or inadequacy of any remedy at Applicable Law, prior to the valid termination of this Agreement in accordance with Section 10.01, this being in addition to any other remedy to which they are entitled under this Agreement or Applicable Law.
81
(b) Each Party agrees that it will not oppose the granting of specific performance and other equitable relief on the basis that the other Parties have an adequate remedy at law or that an award of specific performance is not an appropriate remedy for any reason at law or equity. The Parties acknowledge and agree that any Party seeking an injunction to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 11.15(b) shall not be required to provide any bond or other security in connection with any such injunction. The Parties acknowledge and agree that nothing contained in this Section 11.15 shall require any Party to institute any proceeding for (or limit any Party’s right to institute any proceeding for) specific performance under this Section 11.15 before exercising any termination right under Section 10.01 or pursuing damages.
Section 11.16. Non-Recourse. This Agreement may only be enforced against, and any Action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby may only be brought against, the entities that are expressly named as parties hereto and then only with respect to the specific obligations set forth herein with respect to such Party. No past, present or future director, officer, employee, incorporator, member, partner, shareholder, Affiliate, agent, attorney, advisor or representative or Affiliate of any named party to this Agreement and no past, present or future director, officer, employee, incorporator, member, partner, shareholder, Affiliate, agent, attorney, advisor or representative or Affiliate of any of the foregoing shall have any liability (whether in contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities of any one or more of the Company, Astrum Singapore or BIII under this Agreement of or for any Action based on, arising out of, or related to this Agreement or the transactions contemplated hereby. Notwithstanding anything to the contrary in this Section 11.16, nothing in this Section 11.16 shall limit (a) any liabilities or obligations against any party to an Ancillary Agreement in respect thereof or (b) any Party’s remedies in the event of fraud.
Section 11.17. Legal Representation . The Company hereby agrees on behalf of itself and its directors, members, partners, officers, employees and Affiliates, and each of their respective successors and assigns (all such parties, the “Company Waiving Parties”), that any legal counsel (including Latham & Watkins LLP and Appleby) that represented BIII and/or the Sponsor prior to the Closing may represent the Sponsor or any of the Sponsor’s Affiliates or the Sponsor’s or its Affiliates’ respective directors, members, partners, officers or employees, in each case, in connection with any Action or obligation arising out of or relating to this Agreement, notwithstanding its representation (or any continued representation) of BIII or other Company Waiving Parties, and each of BIII and the Company on behalf of itself and the Company Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising therefrom or relating thereto. Each of BIII and the Company on behalf of itself and the Company Waiving Parties hereby further agrees that, as to all legally privileged communications prior to the Closing between or among any legal counsel (including Latham & Watkins LLP and Appleby) that represented the Sponsor or any of the Sponsor’s Affiliates or the Sponsor’s or its Affiliates’ respective directors, members, partners, officers or employees prior to the Closing in any way related to the transactions contemplated hereby, the attorney/client privilege and the expectation of client confidence belongs to the Sponsor and may be controlled by the Sponsor, and shall not pass to or be claimed or controlled by the Company (after giving effect to the Closing) or any other Company Waiving Party; provided that the Sponsor shall not waive such attorney/client privilege (x) without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed) or (y) other than to the extent they determine appropriate in connection with the enforcement or defense of their respective rights or obligations existing under this Agreement. Notwithstanding the foregoing, any privileged communications or information shared by the Company or any Company Waiving Party prior to the Closing with BIII or the Sponsor (in any capacity) under a common interest agreement shall remain the privileged communications or information of the Company. The Company acknowledges that the foregoing provisions apply whether or not any legal counsel (including Latham & Watkins LLP and Appleby) that represented BIII and/or the Sponsor prior to the Closing provides legal services to the Company, BIII or any other Company Waiving Parties after the Closing Date.
[Signature pages follow.]
82
IN WITNESS WHEREOF the parties have hereunto caused this Agreement to be duly executed as of the date hereof.
| BLACK SPADE ACQUISITION III CO | ||
| By: | /s/ Chi Wai Dennis Tam | |
| Name: Chi Wai Dennis Tam | ||
| Title: Chairman and Co-Chief Executive Officer | ||
[Signature Page to Business Combination Agreement]
IN WITNESS WHEREOF the parties have hereunto caused this Agreement to be duly executed as of the date hereof.
| ASTRUM SPACE INC | ||
| By: | /s/ Zhou Qingzhi | |
| Name: Zhou Qingzhi | ||
| Title: Director | ||
[Signature Page to Business Combination Agreement]
IN WITNESS WHEREOF the parties have hereunto caused this Agreement to be duly executed as of the date hereof.
| ASTRUM NETWORKS PTE. LTD. | ||
| By: | /s/ Zhou Qingzhi | |
| Name: Zhou Qingzhi | ||
| Title: Director | ||
[Signature Page to Business Combination Agreement]
ANNEX A
FORM OF LISTING ARTICLES
(attached)
ANNEX B
FORM OF SHAREHOLDERS SUPPORT AND LOCK-UP AGREEMENT AND DEED
(intentionally omitted)
ANNEX C
FORM OF SPONSOR SUPPORT AND LOCK-UP AGREEMENT AND DEED
(intentionally omitted)
ANNEX D
FORM OF REGISTRATION RIGHTS AGREEMENT
(intentionally omitted)
ANNEX E
FORM OF PLAN OF MERGER
(intentionally omitted)
Exhibit 4.1
AMENDMENT NO. 1 TO WARRANT AGREEMENT
THIS AMENDMENT NO. 1 TO WARRANT AGREEMENT (this “Agreement”), dated as of August 27, 2026, is entered into by and between Black Spade Acquisition III Co, a Cayman Islands exempted company (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (in such capacity, the “Warrant Agent”), and amends the Warrant Agreement (the “Warrant Agreement”), dated as of January 5, 2026, by and among the Company and the Warrant Agent. Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Warrant Agreement.
WHEREAS, the Company and the Warrant Agent desire to amend the definition of Placement Exercise Fair Market Value in the Warrant Agreement in order to reflect the commercial intent of the parties;
WHEREAS, Section 9.8 of the Warrant Agreement provides that the parties to the Warrant Agreement may amend the Warrant Agreement without the consent of any Registered Holder for the purpose of curing any ambiguity or correcting any mistake, including conforming the provisions of the Warrant Agreement to the description of the terms of the Warrants and the Warrant Agreement set forth in the Prospectus, or defective provision contain in the Warrant Agreement, or adding or changing any provisions with respect to matters or questions arising under the Warrant Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the rights of the Registered Holders under the Warrant Agreement in any material respect; and
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the receipt and sufficiency of which is hereby acknowledged and intending to be legally bound, the parties hereto agree as follows:
1. Amendment of Warrant Agreement. The Company and the Warrant Agent hereby amend the Warrant Agreement as provided in this Section 1, and acknowledge and agree that the amendments to the Warrant Agreement set forth in this Section 1 are necessary or desirable and do not adversely affect the rights of the Registered Holders under the Warrant Agreement.
1.1. Section 3.3.1(c) of
the Warrant Agreement is hereby amended, as follows (added text: added text, deleted
text: deleted text):
“ with respect to any Private Placement Warrant, by surrendering the Private Placement Warrants for that number of Class A ordinary shares equal to the quotient obtained by dividing (x) the product of the number of Class A ordinary shares underlying the Private Placement Warrants, multiplied by the excess of the “Placement Exercise Fair Market Value” (as defined in this subsection 3.3.1(c)) less the Warrant Price, by (y) the Placement Exercise Fair Market Value. Solely for purposes of this subsection 3.3.1(c), the “Placement Exercise Fair Market Value” shall mean the volume-weighted average price of the Class A ordinary shares as reported during the ten (10) trading day period ending on the tenth (10th) trading day prior to the date on which notice of exercise of the Private Placement Warrant is sent to the Warrant Agent; or”
2. Miscellaneous Provisions.
2.1. Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.
2.2. Entire Agreement. This Agreement, together with the Warrant Agreement, constitute the full and entire agreement between the parties with regard to the subjects hereof.
2.3. Effect of Amendment. All provisions of the Warrant Agreement not specifically amended hereby shall remain in full force and effect and shall be unaffected by this Agreement. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and the terms and conditions of the Warrant Agreement, the terms and conditions of this Agreement shall control.
1
2.4. Applicable Law and Exclusive Forum. The validity, interpretation, and performance of this Agreement shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. Subject to applicable law, the Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be the exclusive forum for any such action, proceeding or claim. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Notwithstanding the foregoing, the provisions of this paragraph will not apply to suits brought to enforce any liability or duty created by the Securities Act, the Exchange Act or any other claim for which the federal district courts of the United States of America are the sole and exclusive forum.
2.5. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Delivery of this Agreement by one party to the other may be made by facsimile, electronic mail (including any electronic signature complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable law) or other transmission method, and the parties hereto agree that any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
2.6. Effect of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.
2.7. Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
[Signature Pages Follow]
2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| BLACK SPADE ACQUISITION III CO | |||
| By: | /s/ Chi Wai Dennis Tam | ||
| Name: | Chi Wai Dennis Tam | ||
| Title: | Director | ||
[Signature Page to Amendment No. 1 to the Warrant Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent | |||
| By: | /s/ Ana Gois | ||
| Name: | Ana Gois | ||
| Title: | Vice President | ||
[Signature Page to Amendment No. 1 to the Warrant Agreement]
Exhibit 10.1
SHAREHOLDERS SUPPORT AND LOCK-UP AGREEMENT AND DEED
This SHAREHOLDERS SUPPORT AND LOCK-UP AGREEMENT AND DEED (this “Agreement”) is made as a deed as of August 27, 2026, by and among Astrum Space Inc, an exempted company incorporated with limited liability under the laws of the Cayman Islands, (the “Company”), Black Spade Acquisition III Co, an exempted company incorporated with limited liability under the laws of the Cayman Islands (“BIII”), and Astrum Space Holding Inc, an exempted company incorporated with limited liability under the laws of the Cayman Islands (“Astrum Holding”).
RECITALS
WHEREAS, BIII, the Company and Astrum Networks Pte. Ltd., a private company limited by shares incorporated under the laws of Singapore and a wholly owned subsidiary of the Company (“Astrum Singapore”) are concurrently herewith entering into a Business Combination Agreement (as the same may be amended, restated or supplemented, the “Business Combination Agreement”) providing for, among other things, the merger of the Company with and into BIII, with BIII being the surviving entity and continuing its existence as a publicly traded company listed on the New York Stock Exchange (the “Merger”).
WHEREAS, Astrum Holding is, as of the date of this Agreement, the beneficial and sole legal owner of one Company Ordinary Share (such share, together with any Company Ordinary Shares (a) issued or otherwise distributed to Astrum Holding pursuant to any share dividend or distribution, (b) resulting from any change in any of the Company Ordinary Shares by reason of any share split, recapitalization, combination, exchange of shares or the like, (c) the legal ownership of which is acquired by Astrum Holding by exchange or conversion of any other security acquired after the date of this Agreement, or (d) as to which Astrum Holding acquires the right to vote or share in the voting, in each case after the date of this Agreement and during the term of this Agreement, the “Subject Shares”).
WHEREAS, as a condition to their willingness to enter into the Business Combination Agreement, BIII and the Company have requested that Astrum Holding enters into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
1. definitions; interpretation
Capitalized terms used but not defined in this Agreement shall have the meaning ascribed to such terms in the Business Combination Agreement, and this Agreement shall be interpreted, construed and applied in accordance with the rules of construction set forth in Section 1.02 (Construction) of the Business Combination Agreement.
2. REPRESENTATIONS AND WARRANTIES OF ASTRUM HOLDING
Astrum Holding hereby represents and warrants to BIII and the Company as of the date of this Agreement as follows:
2.1 Organization. Astrum Holding has been duly incorporated or registered and is validly existing and in good standing under the laws of its jurisdiction of incorporation or registration and has the requisite corporate power and authority to own, lease or operate all of its properties and assets and to conduct its business as it is now being conducted. Astrum Holding is duly licensed or qualified and in good standing as a foreign corporation or company in all jurisdictions in which its ownership of property or the character of its activities is such as to require it to be so licensed or qualified or in good standing, as applicable, except where the failure to be so licensed or qualified or in good standing would not reasonably be expected to, individually or in the aggregate, prevent or materially adversely affect the ability of Astrum Holding to consummate the transactions contemplated hereby. Astrum Holding is not the beneficial owner of any Subject Shares held in trust.
2.2 Due Authorization. Astrum Holding has the requisite corporate power and authority to (a) execute and deliver this Agreement, and (b) consummate the transactions contemplated hereby and perform all obligations to be performed by it hereunder. The execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby have been duly and validly authorized and approved by the competent body of Astrum Holding and no other company proceeding on the part of Astrum Holding is necessary to authorize this Agreement. This Agreement has been duly and validly executed and delivered by Astrum Holding, and this Agreement constitutes a legal, valid and binding obligation of Astrum Holding, enforceable against Astrum Holding in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.
2.3 Governmental Authorities; Consents. Assuming the truth and completeness of the representations and warranties of other parties hereto contained in the Business Combination Agreement regarding the execution, delivery and performance of this Agreement, no consent of or with any Governmental Authority on the part of Astrum Holding is required to be obtained or made in connection with the execution, delivery or performance by Astrum Holding of this Agreement, other than (a) applicable requirements, if any, of the Securities Act, the Exchange Act, and/ or any state “blue sky” securities laws, and the rules and regulations thereunder and (b) where the failure to obtain or make such consents or to make such filings or notifications would not prevent, impede or, in any material respect, delay or adversely affect the performance by Astrum Holding of its obligations under this Agreement.
2.4 No Conflict. The execution and delivery of this Agreement by Astrum Holding and the consummation of the transactions contemplated hereby do not and will not:
(a) violate or conflict with any provision of, or result in the breach of or default under the Governing Documents of Astrum Holding;
(b) violate or conflict with any provision of, or result in the breach of, or default under, or require any consent, waiver, exemption or approval under, any Applicable Law or Governmental Order applicable to Astrum Holding;
(c) violate or conflict with any provision of, or result in the breach of, result in the loss of any right or benefit, require any consent, cause acceleration, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration) under any Contract to which Astrum Holding is a party or by which Astrum Holding may be bound, or terminate or result in the termination of any such Contract; or
2
(d) result in the creation of any Lien upon any of the properties or assets of Astrum Holding;
except, in the case of clauses (b) through (d), to the extent that the occurrence of the foregoing would not reasonably be expected to, individually or in the aggregate, prevent or materially adversely affect the ability of Astrum Holding to perform its obligations hereunder or consummate the transactions contemplated hereby.
2.5 Company Securities. Astrum Holding is the sole legal and beneficial owner of one Company Ordinary Share, and such Company Ordinary Share is owned by Astrum Holding free and clear of all Liens, other than Liens pursuant to the Company’s Governing Documents, this Agreement, any Ancillary Agreement, or applicable securities laws. Astrum Holding does not own legally or beneficially any Equity Securities of the Company other than as set forth in this Section 2.5. Astrum Holding has the sole right to vote its Subject Shares, and none of its Subject Shares is subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of its Subject Shares, except as contemplated by the Governing Documents of the Company or this Agreement.
2.6 Business Combination Agreement. Astrum Holding understands and acknowledges that BIII and the Company are entering into the Business Combination Agreement in reliance upon Astrum Holding’s execution and delivery of this Agreement. Astrum Holding has received a copy of the finalized Business Combination Agreement delivered to Astrum Holding on August 27, 2026, is familiar with the provisions of the Business Combination Agreement.
2.7 Adequate Information. Astrum Holding is a sophisticated investor and has adequate information concerning the business and financial condition of BIII and the Company to make an informed decision regarding this Agreement and the transactions contemplated by the Business Combination Agreement and has independently and without reliance upon BIII or the Company and based on such information as Astrum Holding has deemed appropriate, made its own analysis and decision to enter into this Agreement. Astrum Holding acknowledges that BIII and the Company have not made and do not make any representation or warranty to Astrum Holding, whether express or implied, of any kind or character except as expressly set forth in this Agreement.
2.8 Restricted Securities. Astrum Holding understands that the Listco Shares that it may receive in connection with the Transactions may be “restricted securities” under applicable U.S. federal and state securities laws and, if Astrum Holding is an affiliate of the Company or BIII, “control securities” as such term is used under Rule 144 promulgated under the Securities Act, and that, pursuant to these laws, Astrum Holding must hold such Listco Shares indefinitely unless (a) they are registered with the SEC and qualified by state authorities, or (b) an exemption from such registration and qualification requirements is available.
3
2.9 Litigation and Proceedings.
(a) There are no pending or, to the knowledge of Astrum Holding, threatened, legal proceedings against Astrum Holding or any of its Subsidiaries (if applicable), properties or assets; and
(b) there is no outstanding Governmental Order imposed upon Astrum Holding; nor are any Subsidiaries, properties or assets of Astrum Holding or its businesses (if applicable) bound or subject to any Governmental Order;
except, in each case, as would not reasonably be expected to, individually or in the aggregate, prevent or materially adversely affect the ability of Astrum Holding to consummate the transactions contemplated hereby.
3. PRE-CLOSING SUPPORT AND CERTAIN COVENANTS
Astrum Holding hereby covenants and unconditionally and irrevocably undertakes to the Company and BIII during the term of this Agreement as follows:
3.1 Agreement to Vote in Favor of Transactions. At any meeting of the shareholders of the Company called, held or convened, or at any adjournment or postponement thereof, or in connection with any written resolution or consent of the shareholders of the Company, or in any other circumstances upon which a vote, consent, waiver or other approval of shareholders with respect to the Business Combination Agreement, any Ancillary Agreements, the Merger, or any other Transaction is sought or required under the Governing Documents or Contract of the Company or otherwise (the “Company Approvals”), Astrum Holding shall:
(a) if a meeting is held, appear at such meeting (in person or, where proxies are permitted, by proxy) or otherwise cause all of its Subject Shares to be counted as present at such meeting for purposes of establishing a quorum; and
(b) vote or cause to be voted (including by class vote and/or written consent or resolution, if applicable) all of its Subject Shares in favor of granting the Company Approvals and, if there are insufficient votes in favor of granting any Company Approval, in favor of the adjournment or postponement of such meeting of the shareholders of the Company to a later date.
3.2 Agreement to Vote Against Other Matters. At any meeting of the shareholders of the Company or at any adjournment or postponement thereof, or in connection with any written resolution or consent of the shareholders of the Company or in any other circumstances upon which Astrum Holding’s vote, consent or other approval is sought, Astrum Holding shall vote (or cause to be voted) all of its Subject Shares (including by withholding its class vote and/or written consent or resolution, if applicable) against any Acquisition Transaction.
3.3 No Other Proxies. Astrum Holding represents and warrants that no proxies of any nature (other than the proxy given pursuant to Section 3.4) have been given in respect of any of its Subject Shares.
3.4 Irrevocable Power of Attorney. Astrum Holding hereby irrevocably and unconditionally grants to, and appoints, in the event that Astrum Holding shall for whatever reason fail to perform any of its obligations under Section 3.1, the Company and any individual designated in writing by the Company, and each of them individually, as Astrum Holding’s lawful attorney and proxy (with full power of substitution), for and in the name, place and stead of Astrum Holding, to vote all of its Subject Shares, or grant a written consent or approval or approve a written resolution in respect of all of its Subject Shares in a manner consistent with Section 3.1 (the “Irrevocable Power of Attorney”), and execute, deliver and take on Astrum Holding’s behalf and in the name of Astrum Holding, all deeds, documents, and steps necessary for obtaining the Company Approvals as contemplated in Section 3.1. Astrum Holding understands and acknowledges that BIII and the Company are entering into the Business Combination Agreement in reliance upon Astrum Holding’s execution and delivery of this Agreement. Astrum Holding hereby affirms that the Irrevocable Power of Attorney is given in connection with the execution of the Business Combination Agreement, and that such irrevocable power of attorney is given to secure the performance of the duties of Astrum Holding under this Agreement. Astrum Holding hereby further affirms that the Irrevocable Power of Attorney is coupled with a proprietary interest of the Company and may under no circumstances be revoked. Astrum Holding hereby ratifies and confirms all that the Irrevocable Power of Attorney may lawfully do or cause to be done by virtue hereof. The Irrevocable Power of Attorney granted hereunder shall only terminate upon the termination of this Agreement. Promptly upon the written request of the Company or BIII, Astrum Holding shall duly execute and deliver a separate proxy instrument, in form and substance reasonably satisfactory to the Company, making specific reference to the Company Approvals, as applicable.
4
3.5 No Pre-Closing Transfer. Other than pursuant to this Agreement or as expressly contemplated by the Business Combination Agreement, or the Ancillary Agreements, from the date hereof and until the Closing or, if earlier, termination of this Agreement, Astrum Holding shall not:
(a) directly or indirectly, (i) lend, sell, transfer, tender, grant, charge, mortgage, pledge, assign or otherwise encumber, grant a security interests in, assign or otherwise dispose of (including by gift, tender or exchange offer, merger or operation of law), encumber, hedge, swap, convert or utilize a derivative to transfer the economic interest in (collectively, “Transfer”), or (ii) enter into any Contract, option or other binding arrangement (including any profit sharing arrangement) with respect to the Transfer of, any Subject Shares to any person;
(b) grant any proxies or enter into any voting arrangement, whether by proxy, voting agreement, voting trust, voting deed or otherwise (including pursuant to any loan of Subject Shares) with respect to any Subject Shares, or enter into any other Contract with respect to any Subject Shares that would prohibit or prevent the satisfaction of its obligations pursuant to this Agreement;
(c) take any action that would make any representation or warranty of Astrum Holding herein untrue or incorrect, or have the effect of preventing or disabling Astrum Holding from performing its obligations hereunder;
(d) commit or agree to take any of the foregoing actions or take any other action or enter into any Contract that would reasonably be expected to make any of its representations or warranties contained herein untrue or incorrect or would have the effect of preventing or delaying Astrum Holding or the Company from performing any of its obligations hereunder; or
5
(e) publicly announce any intention to effect any such transaction specified in this sentence,
other than any Transfer (x) between Astrum Holding and any of its Affiliates and any of its and its Affiliates’ respective executive officers and directors, or (y) upon the prior written consent of the Company and BIII, provided in each case that such transferee shall enter into a written agreement, in form and substance reasonably satisfactory to the Company and BIII, agreeing to be bound by this Agreement to the same extent as Astrum Holding was prior to such Transfer. Any action attempted to be taken in violation of the preceding sentence will be null and void. Astrum Holding agrees with, and covenants to, BIII and the Company (or any of its directors, secretaries or authorized representatives) that it shall not request that the Company register the Transfer (by book-entry or otherwise) of any certificated or uncertificated interest representing any of the Subject Shares.
3.6 Waiver of Dissent Rights. Astrum Holding shall not apply to any Governmental Authority claiming that the Company Approvals, Business Combination Agreement, any Ancillary Agreement, Merger or any other Transaction is oppressive or unfairly discriminatory to or otherwise prejudicial to, or undertaken without due regard to the interests of, any member, shareholder or holder of debentures of the Company or any other Person. Astrum Holding shall not commence, join in, facilitate, assist or encourage any claim or action challenging the validity of this Agreement, or alleging any breach of any law or duty in connection with the Transactions or alleging that the Company Approvals, Business Combination Agreement, any Ancillary Agreement, or any other Transaction is oppressive or unfairly discriminatory to or otherwise prejudicial to, or undertaken without due regard to the interests of, any member, shareholder or holder of debentures of the Company or any other Person, and hereby releases the Company from all actions, proceedings, claims and demands whatsoever which Astrum Holding has, has had, or will have under or arising out of this Agreement.
4. POST-CLOSING LOCK-UP
4.1 Certain Definitions. As used in this Article 4, notwithstanding the other provisions of this Agreement, the following terms shall have the following meanings:
(a) “affiliate” shall have the meaning set forth in Rule 405 under the Securities Act;
(b) “Applicable Period” shall mean the period commencing on the Closing Date and ending on:
| (i) | in respect of 4,000,000 Listco Shares held by Astrum Holding, the Closing Date (for the avoidance of doubt, such Listco Shares shall be free from the Lock-Up Restrictions upon Closing); |
| (ii) | in respect of 7,500,000 Listco Shares held by Astrum Holding, the date that is twelve (12) months after the Closing Date; and |
| (iii) | in respect of the remaining Listco Shares held by Astrum Holding, the date that is two (2) years after the Closing Date; |
6
(c) “Immediate Family” shall mean, as to a natural person, such individual’s spouse, former spouse, domestic partner, child (including by adoption), father, mother, brother or sister, and lineal descendant (including by adoption) of any of the foregoing persons;
(d) “Lock-Up Restrictions” shall mean the restrictions set forth in Sections 4.2 and 4.5;
(e) “Lock-Up Securities” shall mean (i) such Listco Shares that are referred to in the definition of “Applicable Period” and (ii) any other Equity Security of the Merger Surviving Company issued or issuable to Astrum Holding with respect to any securities referenced in clause (i) above by way of a share dividend or share split or in connection with a recapitalization, merger, consolidation, spin-off, reorganization or similar transaction; and
(f) “Lock-Up Transfer” shall mean the (i) sale of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act and the rules and regulations of the SEC promulgated thereunder, with respect to, any Lock-Up Security, (ii) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Lock-Up Security, whether or not any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (iii) public announcement of any intention to effect any transaction specified in clause (i) or (ii).
4.2 Lock-Up Restriction. Subject to the consummation of the Merger and Section 4.5, Astrum Holding covenants and agrees that it shall not, without the prior written consent of the Board, effect, undertake, enter into or publicly announce any Lock-Up Transfer during the Applicable Period insofar as it relates to the applicable Lock-Up Securities. For the avoidance of doubt, Astrum Holding shall retain all of its rights as a shareholder of the Merger Surviving Company with respect to the Lock-Up Securities it holds at any time during the Applicable Period, including, without limitation, the right to vote any Lock-Up Securities that are entitled to vote and the right to receive any dividends or distributions in respect of such Lock-Up Securities.
4.3 Authorization. Astrum Holding hereby:
(a) acknowledges that the Merger Surviving Company (as the successor of BIII and the Company) may, during the Applicable Period, pursuant to its rights and/or the obligations of Astrum Holding under this Article 4, in its discretion and subject to Applicable Law, instruct its transfer agent for the Lock-Up Securities to decline to transfer, and to note stop-transfer restrictions on the register of book-entry interests and other records relating to, such Lock-Up Securities for which Astrum Holding is the record holder; and
(b) in the case of Lock-Up Securities for which Astrum Holding is the beneficial but not the record holder, agrees during the Applicable Period to cause the record holder to cause the relevant transfer agent to decline to transfer, and to note stop-transfer restrictions on the register of book-entry interests and other records relating to, such Securities;
in each case, if and to the extent such transfer would constitute a Lock-Up Transfer in breach of this Agreement. The Merger Surviving Company shall instruct its transfer agent to remove any stop transfer restrictions on the register of book-entry interests and other records related to the book-entry interests comprising Lock-Up Securities within three Business Days after the expiration of the Applicable Period.
7
4.4 Legend. During the Applicable Period, a certificate or book-entry evidencing any Lock-Up Securities may, in the Merger Surviving Company’s discretion pursuant to its rights and/or the obligations of Astrum Holding under this Article 4, and subject to Applicable Law, be stamped or otherwise imprinted with a legend in substantially the following form, in addition to any other applicable legends:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A SHAREHOLDERS SUPPORT AND LOCK-UP AGREEMENT AND DEED, DATED AS OF AUGUST 27, 2026, BY AND AMONG ASTRUM SPACE INC (“COMPANY”), THE HOLDER NAMED THEREIN AND THE OTHER PARTIES THERETO. A COPY OF SUCH AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”
4.5 Lock-Up Exceptions. Section 4.2 shall not apply to:
(a) in the case of an entity, Lock-Up Transfers to (i) such entity’s officers or directors or any affiliate or Immediate Family of any of such entity’s officers or directors, (ii) any shareholder, partner or member of such entity or their affiliates, (iii) any affiliate of such entity, or (iv) any employees of such entity or of its affiliates;
(b) Lock-Up Transfers to a partnership, limited liability company or other entity of which such transferor is the legal and beneficial owner of all of the outstanding Equity Securities;
(c) in the case of a natural person, Lock-Up Transfers (i) by bona fide gift to any member of such individual’s Immediate Family, (ii) to a family trust, established for the exclusive benefit of such individual and/or any of such individual’s Immediate Family for estate planning purposes, (iii) by virtue of laws of descent and distribution upon death of such individual or (iv) pursuant to a court order or settlement agreement related to the distribution of assets in connection with the dissolution of marriage or civil union;
(d) in the case of an entity, Lock-Up Transfers by virtue of the laws of the jurisdiction of formation of such entity and the entity’s Governing Documents upon dissolution of the entity;
(e) pledges of any Lock-Up Securities to a financial institution that create a security interest in such Lock-Up Securities pursuant to a bona fide loan or indebtedness transaction so long as the holder of such pledged Lock-Up Securities continues to control the exercise of the voting rights of such pledged Lock-Up Securities, and any foreclosures on such pledged Lock-Up Securities;
(f) the entry, at any time after the Closing, into any trading plan providing for the sale of Listco Shares meeting the requirements of Rule 10b5-1(c) under the Exchange Act, provided that such plan does not provide for, or permit, the sale of any Listco Shares during the Applicable Period and no public announcement or filing is voluntarily made or required regarding such plan during the Applicable Period; and
8
(g) Lock-Up Transfers in the event of completion of a bona fide amalgamation, merger, scheme of arrangement, business combination, consolidation, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up or other similar transaction, as approved by the Board, which results in all of the Merger Surviving Company’s security holders having the right to exchange their Listco Shares and other Equity Securities of the Merger Surviving Company for cash, securities or other property;
provided, however, that in the case of clauses (a) through (e) and (g), these permitted transferees shall enter into a written agreement with the Merger Surviving Company, agreeing to be bound by the transfer restrictions in Sections 4.2 through 4.5.
4.6 Effect of Article 4. If any Lock-Up Transfer is made or attempted contrary to the provisions of this Article 4, such purported Lock-Up Transfer shall be null and void ab initio.
5. OTHER AGREEMENTS
5.1 Removal of Restrictions. The Merger Surviving Company shall remove, and shall cause to be removed (including by causing its transfer agent to remove), any legends, marks, stop-transfer instructions or other similar notations pertaining to the lock-up arrangements herein from the book-entries evidencing any Lock-Up Securities at the time any such security is no longer subject to the Lock-Up Restrictions (any such Lock-Up Security, a “Free Security”), and shall take all such actions (and shall cause to be taken all such actions) necessary or proper to cause the Free Security to be consolidated under the CUSIP(s) and/or ISIN(s) applicable to the unrestricted Listco Shares, as and to the extent applicable so that the Free Securities are in a like position. Any holder of a Lock-Up Security is an express third-party beneficiary of this Section 5.1 and entitled to enforce specifically the obligations of the Merger Surviving Company set forth in this Section 5.1 directly against the Merger Surviving Company.
5.2 Disclosure.
(a) Astrum Holding shall be bound by and comply with the Confidentiality Agreement, dated February 25, 2026, by and among BIII and Astrum Singapore (the “Confidentiality Agreement”) and Section 11.12 (Publicity) of the Business Combination Agreement (including any relevant defined terms used in such Confidentiality Agreement and provision) as if Astrum Holding was an original signatory to the Confidentiality Agreement and Business Combination Agreement with respect to such provisions.
(b) Astrum Holding hereby authorizes the Company and BIII to publish and disclose in any announcement or disclosure required by the SEC or pursuant to any Applicable Law Astrum Holding’s identity and ownership of Subject Shares, the nature of Astrum Holding’s obligations under this Agreement and (if deemed appropriate by the Company and BIII) a copy of this Agreement. Astrum Holding will promptly provide any information reasonably requested by the Company and BIII for any regulatory application or filing made or approval sought in connection with the Transactions.
5.3 Termination. This Agreement shall terminate upon the termination of the Business Combination Agreement in accordance with its terms. Upon the occurrence of the Closing, (i) this Agreement (excluding Section 3.6, Article 4 and Article 5) shall immediately terminate, (ii) Section 3.6 and Article 4 shall survive in accordance with its terms, and (iii) Article 5 shall survive indefinitely. Upon termination of this Agreement (or a portion hereof), no party shall have any liability hereunder other than for its willful and material breach of this Agreement (or such terminated portion) prior to such termination.
9
5.4 Further Assurances. Astrum Holding shall, from time to time, (i) execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments as the Company or BIII may reasonably request for the purpose of effectively carrying out the transactions contemplated by this Agreement, the Business Combination Agreement and the Ancillary Agreements and (ii) refrain from exercising any veto right, consent right or similar right under BIII or the Company’s Governing Documents which would materially impede, disrupt, prevent or otherwise adversely affect the consummation of the Merger or any other Transaction. If Astrum Holding acquires record or beneficial ownership of any Subject Shares following the date of this Agreement (or becomes aware, following the date hereof, of its record or beneficial ownership of any Subject Shares as of the date hereof, which shares are not already set forth in Section 2.5), Astrum Holding shall promptly notify the Company and BIII, and Section 2.5 shall be updated to reflect Astrum Holding’s ownership of such additional Subject Shares.
5.5 Notice. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or sent by overnight courier (providing proof of delivery) to BIII or the Company in accordance with Section 11.03 (Notices) of the Business Combination Agreement and to Astrum Holding at its address set forth below (or at such other address as shall be specified by Astrum Holding in a like notice).
Astrum Space Holding Inc
4th Floor, Harbour Place, 103 South Church Street
P.O. Box 10240
Grand Cayman KYI-1002
George Town, Cayman Islands
| Attention: | Jonathan Wang | |
| Email: |
with copies (which shall not constitute notice) to:
Loeb & Loeb LLP
345 Park Avenue
New York, NY 10154
| Attention: | David J. Levine | |
| Rima Roawad | ||
| Joan S. Guilfoyle | ||
| Email: | ||
10
Loeb & Loeb LLP
101000 Santa Monica Blvd. #2200
Los Angeles, CA 90067
| Attention: | Victor Chen | |
| Email: |
5.6 Miscellaneous. The provisions of Sections 11.04 (Assignment), 11.05 (Rights of Third Parties), 11.07 (Governing Law), 11.08 (Dispute Resolution and Waiver of Jury Trial), 11.09 (Headings and Captions; Counterparts), 11.10 (Entire Agreement), 11.11 (Amendments) and 11.15 (Enforcement) of the Business Combination Agreement are incorporated herein by reference, mutatis mutandis, as if set forth in full herein.
[Signature pages follow]
11
IN WITNESS WHEREOF, each party has duly executed this Agreement as of the date first written above as a Deed.
EXECUTED AS A DEED for and on behalf of:
ASTRUM SPACE INC
| By: | /s/ Zhou Qingzhi | |
| Name: | Zhou Qingzhi | |
| Title: | Director | |
| In the presence of: | ||
| Witness: | /s/ Jonathan Wang | |
| Name: | Jonathan Wang | |
| Title: | Chief Financial Officer | |
IN WITNESS WHEREOF, each party has duly executed this Agreement as of the date first written above as a Deed.
[Signature Page to Shareholders Support and Lock-up Agreement and Deed]
12
EXECUTED AS A DEED for and on behalf of:
BLACK SPADE ACQUISITION III CO
| By: | /s/ Chi Wai Dennis Tam | |
| Name: | Chi Wai Dennis Tam | |
| Title: | Chairman and Co-Chief Executive Officer | |
| In the presence of: | ||
| Witness: | /s/ Richard Kirby Taylor | |
| Name: | Richard Kirby Taylor | |
| Title: | Director and Co-Chief Executive Officer | |
[Signature Page to Shareholders Support and Lock-up Agreement and Deed]
13
IN WITNESS WHEREOF, each party has duly executed this Agreement as of the date first written above as a Deed.
EXECUTED AS A DEED for and on behalf of:
ASTRUM SPACE HOLDING INC
| By: | /s/ Zhou Qingzhi | |
| Name: | Zhou Qingzhi | |
| Title: | Director | |
| In the presence of: | ||
| Witness: | /s/ Jonathan Wang | |
| Name: | Jonathan Wang | |
| Title: | Chief Financial Officer | |
[Signature Page to Shareholders Support and Lock-up Agreement and Deed]
Exhibit 10.2
SPONSOR SUPPORT AND LOCK-UP AGREEMENT AND DEED
This SPONSOR SUPPORT AND LOCK-UP AGREEMENT AND DEED (this “Agreement”) is made as a deed as of August 27, 2026, by and among Astrum Space Inc, an exempted company incorporated with limited liability under the laws of the Cayman Islands, (the “Company”), Black Spade Acquisition III Co, an exempted company incorporated with limited liability under the laws of the Cayman Islands (“BIII”), Black Spade Sponsor LLC III, a limited liability company registered under the laws of the Cayman Islands (the “Sponsor”), and each of the undersigned Persons listed on Schedule A to this Agreement (each, together with the Sponsor, the “Sponsor Parties”).
RECITALS
WHEREAS, BIII, the Company and Astrum Networks Pte. Ltd., a private company limited by shares incorporated under the laws of Singapore and a wholly owned subsidiary of the Company (“Astrum Singapore”) are concurrently herewith entering into a Business Combination Agreement (as the same may be amended, restated or supplemented, the “Business Combination Agreement”) providing for, among other things, the merger of the Company with and into BIII, with BIII being the surviving entity and continuing its existence as a publicly traded company listed on the New York Stock Exchange (the “Merger”).
WHEREAS, each of the Sponsor Parties is, as of the date of this Agreement, the beneficial and sole legal owner of such number of BIII Class B Ordinary Shares and such number of BIII Private Warrants that entitle the relevant Sponsor Party to purchase such number of BIII Class A Ordinary Shares as is set forth opposite its name on Schedule A hereto (such shares, together with any BIII Ordinary Shares (a) issued or otherwise distributed to such Sponsor Party pursuant to any share dividend or distribution, (b) resulting from any change in any of the BIII Ordinary Shares by reason of any share split, recapitalization, combination, exchange of shares or the like, (c) the legal ownership of which is acquired by such Sponsor Party by exchange or conversion of any other security acquired after the date of this Agreement, or (d) as to which such Sponsor Party acquires the right to vote or share in the voting, in each case after the date of this Agreement and during the term of this Agreement, the “Subject Shares”).
WHEREAS, as a condition to their willingness to enter into the Business Combination Agreement, BIII and the Company have requested that the Sponsor Parties enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
1. definitions; interpretation
Capitalized terms used but not defined in this Agreement shall have the meaning ascribed to such terms in the Business Combination Agreement, and this Agreement shall be interpreted, construed and applied in accordance with the rules of construction set forth in Section 1.02 (Construction) of the Business Combination Agreement.
2. REPRESENTATIONS AND WARRANTIES OF THE sponsor PARTIES
Each Sponsor Party, severally and not jointly, hereby represents and warrants to BIII and the Company as of the date of this Agreement as follows:
2.1 Organization. If such Sponsor Party is not a natural person, such Sponsor Party has been duly incorporated or registered and is validly existing and in good standing (to the extent such concept is applicable in such Sponsor Party’s jurisdiction of incorporation or registration) under the laws of its jurisdiction of incorporation or registration and has the requisite corporate power and authority to own, lease or operate all of its properties and assets and to conduct its business as it is now being conducted. If such Sponsor Party is not a natural person, such Sponsor Party is duly licensed or qualified and in good standing (to the extent such concept is applicable in such Sponsor Party’s jurisdiction of incorporation or registration) as a foreign corporation or company (or other entity, if applicable) in all jurisdictions in which its ownership of property or the character of its activities is such as to require it to be so licensed or qualified or in good standing (to the extent such concept is applicable in such Sponsor Party’s jurisdiction of incorporation or registration), as applicable, except where the failure to be so licensed or qualified or in good standing would not reasonably be expected to, individually or in the aggregate, prevent or materially adversely affect the ability of such Sponsor Party to consummate the transactions contemplated hereby. Such Sponsor Party is not the beneficial owner of any Subject Shares held in trust.
2.2 Due Authorization. If such Sponsor Party is not a natural person, such Sponsor Party has the requisite corporate power and authority to (a) execute and deliver this Agreement, and (b) consummate the transactions contemplated hereby and perform all obligations to be performed by it hereunder. If such Sponsor Party is not a natural person, the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby have been duly and validly authorized and approved by the competent body of such Sponsor Party and no other company proceeding on the part of such Sponsor Party is necessary to authorize this Agreement. If such Sponsor Party is a natural person, such Sponsor Party has full legal capacity, right and authority to (a) execute and deliver this Agreement, and (b) to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by such Sponsor Party, and this Agreement constitutes a legal, valid and binding obligation of such Sponsor Party, enforceable against such Sponsor Party in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity. If such Sponsor Party is a natural person who is married and resides in a community property jurisdiction and such action has been requested by the Company in writing prior to such Sponsor Party’s execution and delivery of this Agreement, then such Sponsor Party’s spouse has executed and delivered to the Company and BIII a spousal consent, in the form attached as Schedule B, concurrently with its execution and delivery of this Agreement.
2.3 Governmental Authorities; Consents. Assuming the truth and completeness of the representations and warranties of other parties hereto contained in the Business Combination Agreement regarding the execution, delivery and performance of this Agreement, no consent of or with any Governmental Authority on the part of such Sponsor Party is required to be obtained or made in connection with the execution, delivery or performance by such Sponsor Party of this Agreement, other than (a) applicable requirements, if any, of the Securities Act, the Exchange Act, and/ or any state “blue sky” securities laws, and the rules and regulations thereunder and (b) where the failure to obtain or make such consents or to make such filings or notifications would not prevent, impede or, in any material respect, delay or adversely affect the performance by such Sponsor Party of its obligations under this Agreement.
2
2.4 No Conflict. The execution and delivery of this Agreement by such Sponsor Party and the consummation of the transactions contemplated hereby do not and will not:
(a) violate or conflict with any provision of, or result in the breach of or default under the Governing Documents of such Sponsor Party (if such Sponsor Party is not a natural person);
(b) violate or conflict with any provision of, or result in the breach of, or default under, or require any consent, waiver, exemption or approval under, any Applicable Law or Governmental Order applicable to such Sponsor Party;
(c) violate or conflict with any provision of, or result in the breach of, result in the loss of any right or benefit, require any consent, cause acceleration, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration) under any Contract to which such Sponsor Party is a party or by which such Sponsor Party may be bound, or terminate or result in the termination of any such Contract; or
(d) result in the creation of any Lien upon any of the properties or assets of such Sponsor Party;
except, in the case of clauses (b) through (d), to the extent that the occurrence of the foregoing would not reasonably be expected to, individually or in the aggregate, prevent or materially adversely affect the ability of such Sponsor Party to perform its obligations hereunder or consummate the transactions contemplated hereby.
2.5 Company Securities. Such Sponsor Party is the sole legal and beneficial owner of the Subject Shares set forth opposite such Sponsor Party’s name on Schedule A hereto, and all such Subject Shares are owned by such Sponsor Party free and clear of all Liens, other than Liens pursuant to the BIII Governing Documents, this Agreement, any Ancillary Agreement, the letter agreements, each dated as of January 5, 2026, among BIII, Sponsor and certain officers, directors, and advisors of BIII in the form attached as Exhibits 10.1 to 10.12 to BIII’s current report on Form 8-K filed on January 9, 2026 (the “Letter Agreements”) or applicable securities laws. Such Sponsor Party does not own legally or beneficially any Subject Shares other than as set out in Schedule A. Such Sponsor Party has the sole right to vote its Subject Shares, and none of its Subject Shares is subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of its Subject Shares, except as contemplated by the Governing Documents of the Sponsor (in the case of the Sponsor), this Agreement, or the Letter Agreements.
2.6 Business Combination Agreement. Such Sponsor Party understands and acknowledges that BIII and the Company are entering into the Business Combination Agreement in reliance upon the Sponsor Parties’ execution and delivery of this Agreement. Such Sponsor Party has received a copy of the finalized Business Combination Agreement delivered to each Sponsor Party on August 27, 2026, and is familiar with the provisions of the Business Combination Agreement, and has consented to (and hereby consents to) BIII’s entry into the Business Combination Agreement.
3
2.7 Adequate Information. Such Sponsor Party is a sophisticated investor and has adequate information concerning the business and financial condition of BIII and the Company to make an informed decision regarding this Agreement and the transactions contemplated by the Business Combination Agreement and has independently and without reliance upon BIII or the Company and based on such information as such Sponsor Party has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Sponsor Party acknowledges that BIII and the Company have not made and do not make any representation or warranty to such Sponsor Party, whether express or implied, of any kind or character except as expressly set forth in this Agreement.
2.8 Restricted Securities. Such Sponsor Party understands that the BIII Class A Ordinary Shares that it may receive in connection with the Transactions including in connection with the Conversion, may be “restricted securities” under applicable U.S. federal and state securities laws and, if such Sponsor Party is an affiliate of the Company or BIII, “control securities” as such term is used under Rule 144 promulgated under the Securities Act, and that, pursuant to these laws, such Sponsor Party must hold such BIII Class A Ordinary Shares indefinitely unless (a) they are registered with the SEC and qualified by state authorities, or (b) an exemption from such registration and qualification requirements is available.
2.9 Litigation and Proceedings.
(a) There are no pending or, to the knowledge of such Sponsor Party, threatened, legal proceedings against such Sponsor Party or any of its properties or assets; and
(b) there is no outstanding Governmental Order imposed upon such Sponsor Party; nor are any properties or assets of such Sponsor Party or its businesses (if applicable) bound or subject to any Governmental Order;
except, in each case, as would not reasonably be expected to, individually or in the aggregate, prevent or materially adversely affect the ability of such Sponsor Party to consummate the transactions contemplated hereby.
3. PRE-CLOSING SUPPORT AND CERTAIN COVENANTS
Each Sponsor Party, severally and not jointly, hereby covenants and unconditionally and irrevocably undertakes to the Company and BIII during the term of this Agreement as follows:
3.1 Agreement to Vote in Favor of Transactions. At any meeting of the shareholders of BIII called, held or convened to seek the BIII Shareholder Approval, or at any adjournment or postponement thereof, or in connection with any written resolution or consent of the shareholders of BIII or in any other circumstances upon which a vote, consent, waiver or other approval of shareholders with respect to the Business Combination Agreement, any Ancillary Agreements, the Merger, or any other Transaction is sought or required under the Governing Documents or Contract of BIII or otherwise (the “Other BIII Approvals”), such Sponsor Party shall:
(a) if a meeting is held, appear at such meeting (in person or, where proxies are permitted, by proxy) or otherwise cause all of its Subject Shares to be counted as present at such meeting for purposes of establishing a quorum; and
4
(b) vote or cause to be voted (including by class vote and/or written consent or resolution, if applicable) all of its Subject Shares in favor of granting the BIII Shareholder Approval and the Other BIII Approvals and, if there are insufficient votes in favor of granting the BIII Shareholder Approval and/or the Other BIII Approvals, in favor of the adjournment or postponement of such meeting of the shareholders of BIII to a later date.
3.2 Agreement to Vote Against Other Matters. At any meeting of the shareholders of BIII or at any adjournment or postponement thereof, or in connection with any written resolution or consent of the shareholders of BIII or in any other circumstances upon which such Sponsor Party’s vote, consent or other approval is sought, such Sponsor Party shall vote (or cause to be voted) all of its Subject Shares (including by withholding its class vote and/or written consent or resolution, if applicable) against any Acquisition Transaction.
3.3 No Other Proxies. Each Sponsor Party represents and warrants that no proxies of any nature (other than the proxy given pursuant to Section 3.4) have been given in respect of any of its Subject Shares.
3.4 Irrevocable Power of Attorney. Each Sponsor Party hereby irrevocably and unconditionally grants to, and appoints, in the event that such Sponsor Party shall for whatever reason fail to perform any of its obligations under Section 3.1, BIII and any individual designated in writing by BIII, and each of them individually, as such Sponsor Party’s lawful attorney and proxy (with full power of substitution), for and in the name, place and stead of such Sponsor Party, to vote all of its Subject Shares, or grant a written consent or approval or approve a written resolution in respect of all of its Subject Shares in a manner consistent with Section 3.1 (the “Irrevocable Power of Attorney”), and execute, deliver and take on each such Sponsor Party’s behalf and in the name of such Sponsor Party, all deeds, documents, and steps necessary for obtaining the BIII Shareholder Approval and the Other BIII Approvals as contemplated in Section 3.1. Each Sponsor Party understands and acknowledges that BIII and the Company are entering into the Business Combination Agreement in reliance upon such Sponsor Party’s execution and delivery of this Agreement. Each Sponsor Party hereby affirms that the Irrevocable Power of Attorney is given in connection with the execution of the Business Combination Agreement, and that such irrevocable power of attorney is given to secure the performance of the duties of such Sponsor Party under this Agreement. Each Sponsor Party hereby further affirms that the Irrevocable Power of Attorney is coupled with a proprietary interest of BIII and may under no circumstances be revoked. Each Sponsor Party hereby ratifies and confirms all that the Irrevocable Power of Attorney may lawfully do or cause to be done by virtue hereof. The Irrevocable Power of Attorney granted hereunder shall only terminate upon the termination of this Agreement. Promptly upon the written request of the Company or BIII, each Sponsor Party shall duly execute and deliver a separate proxy instrument, in form and substance reasonably satisfactory to BIII, making specific reference to the BIII Shareholder Approval and the Other BIII Approvals, as applicable.
5
3.5 No Pre-Closing Transfer. Other than pursuant to this Agreement or as expressly contemplated by the Business Combination Agreement, or the Ancillary Agreements, from the date hereof and until the Closing or, if earlier, termination of this Agreement, such Sponsor Party shall not:
(a) directly or indirectly, (i) lend, sell, transfer, tender, grant, charge, mortgage, pledge, assign or otherwise encumber, grant a security interests in, assign or otherwise dispose of (including by gift, tender or exchange offer, merger or operation of law), encumber, hedge, swap, convert or utilize a derivative to transfer the economic interest in (collectively, “Transfer”), or (ii) enter into any Contract, option or other binding arrangement (including any profit sharing arrangement) with respect to the Transfer of, any Subject Shares to any person;
(b) grant any proxies or enter into any voting arrangement, whether by proxy, voting agreement, voting trust, voting deed or otherwise (including pursuant to any loan of Subject Shares) with respect to any Subject Shares, or enter into any other Contract with respect to any Subject Shares that would prohibit or prevent the satisfaction of its obligations pursuant to this Agreement;
(c) take any action that would make any representation or warranty of such Sponsor Party herein untrue or incorrect, or have the effect of preventing or disabling such Sponsor Party from performing its obligations hereunder;
(d) commit or agree to take any of the foregoing actions or take any other action or enter into any Contract that would reasonably be expected to make any of its representations or warranties contained herein untrue or incorrect or would have the effect of preventing or delaying such Sponsor Party or BIII from performing any of its obligations hereunder; or
(e) publicly announce any intention to effect any such transaction specified in this sentence,
other than any Transfer (x) between any Sponsor Party and any of its Affiliates and any of the Sponsor Parties’ and their Affiliates’ respective executive officers and directors, or (y) upon the prior written consent of the Company and BIII, provided in each case that such transferee shall enter into a written agreement, in form and substance reasonably satisfactory to the Company and BIII, agreeing to be bound by this Agreement to the same extent as such Sponsor Party was prior to such Transfer. Any action attempted to be taken in violation of the preceding sentence will be null and void. Each Sponsor Party agrees with, and covenants to, BIII and the Company (or any of its directors, secretaries or authorized representatives) that such Sponsor Party shall not request that BIII register the Transfer (by book-entry or otherwise) of any certificated or uncertificated interest representing any of the Subject Shares.
3.6 Waiver of Dissent Rights. Such Sponsor Party shall not apply to any Governmental Authority claiming that the BIII Shareholders Approval, Other BIII Approvals, Business Combination Agreement, any Ancillary Agreement, Merger or any other Transaction is oppressive or unfairly discriminatory to or otherwise prejudicial to, or undertaken without due regard to the interests of, any member, shareholder or holder of debentures of BIII or any other Person. Such Sponsor Party shall not commence, join in, facilitate, assist or encourage any claim or action challenging the validity of this Agreement, or alleging any breach of any law or duty in connection with the Transactions or alleging that the BIII Shareholders Approval, Other BIII Approvals, Business Combination Agreement, any Ancillary Agreement, or any other Transaction is oppressive or unfairly discriminatory to or otherwise prejudicial to, or undertaken without due regard to the interests of, any member, shareholder or holder of debentures of BIII or any other Person, and hereby releases BIII from all actions, proceedings, claims and demands whatsoever which such Sponsor Party has, has had, or will have under or arising out of this Agreement. Without limiting the generality of the foregoing, each Sponsor Party hereby irrevocably waives and agrees not to exercise or assert, any dissenters’ rights under Section 238 of the Cayman Islands Companies Act and any other similar statute in connection with the Merger.
6
3.7 No Redemption. Each Sponsor Party irrevocably and unconditionally agrees that, from the date hereof and until the termination of this Agreement, such Sponsor Party shall not elect to cause BIII to redeem any Subject Shares now or at any time legally or beneficially owned by such Sponsor Party, and shall not submit to surrender any of its Subject Shares for redemption.
3.8 Letter Agreement. Each Sponsor Party and BIII hereby agree that (a) from the date hereof until the termination of this Agreement, none of them shall, or shall agree to, amend, modify or vary the applicable Letter Agreement, except as expressly contemplated by the Business Combination Agreement or other Ancillary Agreements to which the Company is a party; and (b) the Lock-up Restrictions (as defined below) shall supersede the lock-up provisions contained in the relevant Letter Agreement to which such Sponsor Party is a party.
3.9 Waiver of Anti-Dilution Protection. Subject to, and conditioned upon the occurrence of the Merger and effective as of immediately prior to the effective time of the Merger, Sponsor, in its capacity as the holder of at least a majority of the BIII Class B Ordinary Shares in the issue, hereby waives, and agrees not to exercise, assert or claim, to the fullest extent permitted by Applicable Law, any adjustment to the conversion ratio set forth in Article 18.2 of the BIII Governing Document with respect to the BIII Class B Ordinary Shares, that may result pursuant to Article 18.2(c) of the BIII Governing Document from the issuance of BIII Class A Ordinary Shares in connection with the transactions contemplated by the Business Combination Agreement or any PIPE Financing; provided, that the foregoing waiver does not waive Article 18.7 of the BIII Governing Document, which provides that in no event may any BIII Class B Ordinary Share convert into BIII Class A Ordinary Share at a ratio that is less than one-for-one.
4. POST-CLOSING LOCK-UP
4.1 Certain Definitions. As used in this Article 4, notwithstanding the other provisions of this Agreement, the following terms shall have the following meanings:
(a) “affiliate” shall have the meaning set forth in Rule 405 under the Securities Act;
(b) “Applicable Period” shall mean the period commencing on the Closing Date and ending on:
| (i) | in respect of 3,370,000 Listco Shares held by the Sponsor immediately after the Closing, the Closing Date (for the avoidance of doubt, such Listco Shares shall be free from the Lock-Up Restrictions upon Closing); |
| (ii) | in respect of 1,750,000 Listco Shares held by the Sponsor immediately after the Closing, the date that is twelve (12) months after the Closing Date; and |
| (iii) | in respect of all BIII Private Warrants held by the Sponsor immediately after the Closing and all Listco Shares issuable upon exercise of such BIII Private Warrants, the date that is thirty (30) days after the Closing Date; |
7
(c) “Immediate Family” shall mean, as to a natural person, such individual’s spouse, former spouse, domestic partner, child (including by adoption), father, mother, brother or sister, and lineal descendant (including by adoption) of any of the foregoing persons;
(d) “Lock-Up Restrictions” shall mean the restrictions set forth in Sections 4.2 and 4.5;
(e) “Lock-Up Securities” shall mean (i) such Listco Shares and BIII Private Warrants (and Listco Shares issued upon exercise of the BIII Private Warrants) that are referred to in the definition of “Applicable Period” and (ii) any other Equity Security of the Merger Surviving Company issued or issuable to the Sponsor with respect to any securities referenced in clause (i) above by way of a share dividend or share split or in connection with a recapitalization, merger, consolidation, spin-off, reorganization or similar transaction; and
(f) “Lock-Up Transfer” shall mean the (i) sale of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act and the rules and regulations of the SEC promulgated thereunder, with respect to, any Lock-Up Security, (ii) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Lock-Up Security, whether or not any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (iii) public announcement of any intention to effect any transaction specified in clause (i) or (ii).
4.2 Lock-Up Restriction. Subject to the consummation of the Merger and Section 4.5, the Sponsor covenants and agrees that it shall not, without the prior written consent of the Board, effect, undertake, enter into or publicly announce any Lock-Up Transfer during the Applicable Period insofar as it relates to the applicable Lock-Up Securities. For the avoidance of doubt, the Sponsor shall retain all of its rights as a shareholder of the Merger Surviving Company with respect to the Lock-Up Securities it holds at any time during the Applicable Period, including, without limitation, the right to vote any Lock-Up Securities that are entitled to vote, the right to receive any dividends or distributions in respect of such Lock-Up Securities, and the right to exercise any BIII Private Warrants held by the Sponsor in accordance with their terms.
4.3 Authorization. The Sponsor hereby:
(a) acknowledges that the Merger Surviving Company (as the successor of BIII and the Company) may, during the Applicable Period, pursuant to its rights and/or the obligations of the Sponsor under this Article 4, in its discretion and subject to Applicable Law, instruct its transfer agent for the Lock-Up Securities to decline to transfer, and to note stop-transfer restrictions on the register of book-entry interests and other records relating to, such Lock-Up Securities for which the Sponsor is the record holder; and
8
(b) in the case of Lock-Up Securities for which the Sponsor is the beneficial but not the record holder, agrees during the Applicable Period to cause the record holder to cause the relevant transfer agent to decline to transfer, and to note stop-transfer restrictions on the register of book-entry interests and other records relating to, such Securities;
in each case, if and to the extent such transfer would constitute a Lock-Up Transfer in breach of this Agreement. The Merger Surviving Company shall instruct its transfer agent to remove any stop transfer restrictions on the register of book-entry interests and other records related to the book-entry interests comprising Lock-Up Securities within three Business Days after the expiration of the Applicable Period.
4.4 Legend. During the Applicable Period, a certificate or book-entry evidencing any Lock-Up Securities may, in the Merger Surviving Company’s discretion pursuant to its rights and/or the obligations of the Sponsor under this Article 4, and subject to Applicable Law, be stamped or otherwise imprinted with a legend in substantially the following form, in addition to any other applicable legends:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A SPONSOR SUPPORT AND LOCK-UP AGREEMENT AND DEED, DATED AS OF AUGUST 27, 2026, BY AND AMONG ASTRUM SPACE INC (“COMPANY”), THE HOLDER NAMED THEREIN AND THE OTHER PARTIES THERETO. A COPY OF SUCH AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”
4.5 Lock-Up Exceptions. Section 4.2 shall not apply to:
(a) in the case of an entity, Lock-Up Transfers to (i) such entity’s officers or directors or any affiliate or Immediate Family of any of such entity’s officers or directors, (ii) any shareholder, partner or member of such entity or their affiliates, (iii) any affiliate of such entity, or (iv) any employees of such entity or of its affiliates;
(b) Lock-Up Transfers to a partnership, limited liability company or other entity of which such transferor is the legal and beneficial owner of all of the outstanding Equity Securities;
(c) in the case of a natural person, Lock-Up Transfers (i) by bona fide gift to any member of such individual’s Immediate Family, (ii) to a family trust, established for the exclusive benefit of such individual and/or any of such individual’s Immediate Family for estate planning purposes, (iii) by virtue of laws of descent and distribution upon death of such individual or (iv) pursuant to a court order or settlement agreement related to the distribution of assets in connection with the dissolution of marriage or civil union;
(d) in the case of an entity, Lock-Up Transfers by virtue of the laws of the jurisdiction of formation of such entity and the entity’s Governing Documents upon dissolution of the entity;
(e) pledges of any Lock-Up Securities to a financial institution that create a security interest in such Lock-Up Securities pursuant to a bona fide loan or indebtedness transaction so long as the holder of such pledged Lock-Up Securities continues to control the exercise of the voting rights of such pledged Lock-Up Securities, and any foreclosures on such pledged Lock-Up Securities;
9
(f) Lock-Up Transfers of Listco Shares or other Equity Securities of the Merger Surviving Company convertible into or exercisable or exchangeable for Listco Shares acquired in open market transactions after the Closing;
(g) the exercise of share options or warrants to purchase Listco Shares and any related transfer of Listco Shares to the Merger Surviving Company in connection therewith (A) deemed to occur upon the “cashless” or “net” exercise of any such options or warrants or (B) for the purpose of paying the exercise price of such options or warrants or for paying taxes due as a result of the exercise of such options or warrants, it being understood that all Listco Shares received upon such exercise, settlement, vesting or transfer will remain subject to the restrictions of this Article 4 during the Applicable Period;
(h) the entry, at any time after the Closing, into any trading plan providing for the sale of Listco Shares meeting the requirements of Rule 10b5-1(c) under the Exchange Act, provided that such plan does not provide for, or permit, the sale of any Listco Shares during the Applicable Period and no public announcement or filing is voluntarily made or required regarding such plan during the Applicable Period;
(i) Lock-Up Transfers in the event of completion of a bona fide amalgamation, merger, scheme of arrangement, business combination, consolidation, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up or other similar transaction, as approved by the Board, which results in all of the Merger Surviving Company’s security holders having the right to exchange their Listco Shares and other Equity Securities of the Merger Surviving Company for cash, securities or other property; and
(j) a Lock-Up Transfer between the Sponsor Parties or to another entity that is an affiliate of such transferor, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with such transferor or affiliates of such transferor or who shares a common investment advisor with such transferor;
provided, however, that in the case of clauses (a) through (e), (i) and (j), these permitted transferees shall enter into a written agreement with the Merger Surviving Company, agreeing to be bound by the transfer restrictions in Sections 4.2 through 4.5.
4.6 Effect of Article 4. If any Lock-Up Transfer is made or attempted contrary to the provisions of this Article 4, such purported Lock-Up Transfer shall be null and void ab initio.
5. OTHER AGREEMENTS
5.1 Board Observer. From and after the Closing until the date falling two (2) years after the Closing Date, the Sponsor shall be entitled to designate by way of written notice to the Company one (1) representative, who may be different individuals from time to time as designated by the Sponsor, to attend all meetings of the Company Board in a non-voting observer capacity (the “Observer”), on such terms to be mutually agreed with the Company. The Company shall give the Observer copies of all materials that are provided to the Company Board; provided, that the Observer shall agree to hold in confidence and trust all information so provided and, if requested by the Company, enter into a customary confidentiality agreement with the Company in a form acceptable to the Company acting reasonably.
10
5.2 Legend Removal. The Merger Surviving Company shall remove, and shall cause to be removed (including by causing its transfer agent to remove), any legends, marks, stop-transfer instructions or other similar notations pertaining to the lock-up arrangements herein from the book-entries evidencing any Lock-Up Securities at the time any such security is no longer subject to the Lock-Up Restrictions (any such Lock-Up Security, a “Free Security”), and shall take all such actions (and shall cause to be taken all such actions) necessary or proper to cause the Free Security to be consolidated under the CUSIP(s) and/or ISIN(s) applicable to the unrestricted Listco Shares or BIII Private Warrants as applicable so that the Free Securities are in a like position. Any holder of a Lock-Up Security is an express third-party beneficiary of this Section 5.2 and entitled to enforce specifically the obligations of the Merger Surviving Company set forth in this Section 5.2 directly against the Merger Surviving Company.
5.3 Disclosure.
(a) Each Sponsor Party shall be bound by and comply with the Confidentiality Agreement, dated February 25, 2026, by and among BIII and Astrum Singapore (the “Confidentiality Agreement”) and Section 11.12 (Publicity) of the Business Combination Agreement (including any relevant defined terms used in such Confidentiality Agreement and provision) as if such Sponsor Party was an original signatory to the Confidentiality Agreement and Business Combination Agreement with respect to such provisions.
(b) Each Sponsor Party hereby authorizes the Company and BIII to publish and disclose in any announcement or disclosure required by the SEC or pursuant to any Applicable Law such Sponsor Party’s identity and ownership of Subject Shares, the nature of such Sponsor Party’s obligations under this Agreement and (if deemed appropriate by the Company and BIII) a copy of this Agreement. Each Sponsor Party will promptly provide any information reasonably requested by the Company and BIII for any regulatory application or filing made or approval sought in connection with the Transactions.
5.4 Termination. This Agreement shall terminate upon the termination of the Business Combination Agreement in accordance with its terms. Upon the occurrence of the Closing, (i) this Agreement (excluding Section 3.6, Article 4 and Article 5) shall immediately terminate, (ii) Section 3.6 and Article 4 shall survive in accordance with its terms, and (iii) Article 5 shall survive indefinitely. Upon termination of this Agreement (or a portion hereof), no party shall have any liability hereunder other than for its willful and material breach of this Agreement (or such terminated portion) prior to such termination.
5.5 Further Assurances. Each Sponsor Party shall, from time to time, (i) execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments as the Company or BIII may reasonably request for the purpose of effectively carrying out the transactions contemplated by this Agreement, the Business Combination Agreement and the Ancillary Agreements and (ii) refrain from exercising any veto right, consent right or similar right under BIII or the Company’s Governing Documents which would materially impede, disrupt, prevent or otherwise adversely affect the consummation of the Merger or any other Transaction. If any Sponsor Party acquires record or beneficial ownership of any Subject Shares following the date of this Agreement (or becomes aware, following the date hereof, of its record or beneficial ownership of any Subject Shares as of the date hereof, which shares are not already set forth on Schedule A), such Sponsor Party shall promptly notify the Company and BIII, and Schedule A shall be updated to reflect such Sponsor Party’s ownership of such additional Subject Shares.
11
5.6 Sponsor Parties. Each Sponsor Party signs this Agreement solely in such Sponsor Party’s capacity as a shareholder of BIII, and not in any other capacity. No Sponsor Party shall be liable or responsible for any breach, default or violation of any representation, warranty, covenant or agreement hereunder by any other Sponsor Party and each Sponsor Party shall solely be required to perform its obligations hereunder in its individual capacity. As promptly as practicable and in any event within 30 days following the date of this Agreement, Sponsor and BIII shall exercise their respective reasonable best efforts to procure that each Person listed on Schedule A who has not yet executed and delivered this Agreement shall join this Agreement as a Sponsor Party by duly executing and delivering to the Company and BIII a counterpart to this Agreement.
5.7 Notice. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or sent by overnight courier (providing proof of delivery) to BIII or the Company in accordance with Section 11.03 (Notices) of the Business Combination Agreement and to each Sponsor Party at its address set forth on Schedule A hereto (or at such other address for a party as shall be specified by like notice).
5.8 Miscellaneous. The provisions of Sections 11.04 (Assignment), 11.05 (Rights of Third Parties), 11.07 (Governing Law), 11.08 (Dispute Resolution and Waiver of Jury Trial), 11.09 (Headings and Captions; Counterparts), 11.10 (Entire Agreement), 11.11 (Amendments) and 11.15 (Enforcement) of the Business Combination Agreement are incorporated herein by reference, mutatis mutandis, as if set forth in full herein.
[Signature pages follow]
12
IN WITNESS WHEREOF, each party has duly executed this Agreement as of the date first written above as a Deed.
EXECUTED AS A DEED for and on behalf of:
ASTRUM SPACE INC
| By: | /s/ Zhou Qingzhi | |
| Name: | Zhou Qingzhi | |
| Title: | Director |
In the presence of:
| Witness: | /s/ Jonathan Wang | |
| Name: | Jonathan Wang | |
| Title: | Chief Financial Officer |
[Signature Page to Sponsor Support and Lock-up Agreement and Deed]
IN WITNESS WHEREOF, each party has duly executed this Agreement as of the date first written above as a Deed.
EXECUTED AS A DEED for and on behalf of:
BLACK SPADE ACQUISITION III CO
| By: | /s/ Chi Wai Dennis Tam | |
| Name: | Chi Wai Dennis Tam | |
| Title: | Chairman and Co-Chief Executive Officer |
In the presence of:
| Witness: | /s/ Richard Kirby Taylor | |
| Name: | Richard Kirby Taylor | |
| Title: | Director and Co-Chief Executive Officer |
[Signature Page to Sponsor Support and Lock-up Agreement and Deed]
IN WITNESS WHEREOF, each party has duly executed this Agreement as of the date first written above as a Deed.
EXECUTED AS A DEED for and on behalf of:
BLACK SPADE SPONSOR LLC III
| By: | /s/ Chi Wai Dennis Tam | |
| Name: | Chi Wai Dennis Tam | |
| Title: | Manager |
In the presence of:
| Witness: | /s/ Richard Kirby Taylor | |
| Name: | Richard Kirby Taylor | |
| Title: | Director and Co-Chief Executive Officer of Black Spade Acquisition III Co | |
[Signature Page to Sponsor Support and Lock-up Agreement and Deed]
IN WITNESS WHEREOF, each party has duly executed this Agreement as of the date first written above as a Deed.
EXECUTED AS A DEED by:
CHI WAI DENNIS TAM
| /s/ Chi Wai Dennis Tam |
In the presence of:
| Witness: | /s/ Richard Kirby Taylor | |
| Name: | Richard Kirby Taylor | |
| Title: | Director and Co-Chief Executive Officer of Black Spade Acquisition III Co | |
[Signature Page to Sponsor Support and Lock-up Agreement and Deed]
IN WITNESS WHEREOF, each party has duly executed this Agreement as of the date first written above as a Deed.
EXECUTED AS A DEED by:
SHING JOE KESTER NG
| /s/ Shing Joe Kester Ng |
In the presence of:
| Witness: | /s/ Chi Wai Dennis Tam | |
| Name: | Chi Wai Dennis Tam | |
| Title: | Chairman and Co-Chief Executive Officer of Black Spade Acquisition III Co | |
[Signature Page to Sponsor Support and Lock-up Agreement and Deed]
IN WITNESS WHEREOF, each party has duly executed this Agreement as of the date first written above as a Deed.
EXECUTED AS A DEED by:
RICHARD KIRBY TAYLOR
| /s/ Richard Kirby Taylor |
In the presence of:
| Witness: | /s/ Chi Wai Dennis Tam | |
| Name: | Chi Wai Dennis Tam | |
| Title: | Chairman and Co-Chief Executive Officer of Black Spade Acquisition III Co | |
[Signature Page to Sponsor Support and Lock-up Agreement and Deed]
SCHEDULE A
PARTICULARS OF SPONSOR PARTIES AND SUBJECT SHARES
SCHEDULE B
FORM OF SPOUSAL CONSENT
Dated [●]
The undersigned represents and warrants that the undersigned is the spouse of:
[Name of Sponsor Party]
and that the undersigned is familiar with the terms of (a) the Sponsor Support and Lock-up Agreement and Deed (the “Agreement”), dated as of August 27, 2026, by and among Astrum Space Inc, an exempted company incorporated with limited liability under the laws of the Cayman Islands (the “Company”), Black Spade Acquisition III Co, an exempted company incorporated with limited liability under the laws of the Cayman Islands (“BIII”), Black Spade Sponsor LLC III, an exempted company incorporated with limited liability under the laws of the Cayman Islands, and each of the Persons listed on Schedule A thereto, and (b) the Business Combination Agreement dated as of August 27, 2026, by and among the Company, BIII and Astrum Networks Pte. Ltd., a private company limited by shares incorporated under the laws of Singapore.
The undersigned hereby agrees that the interest of the undersigned’s spouse in all property which is the subject of the Agreement shall be irrevocably bound by the terms of the Agreement and by any amendment, modification, waiver or termination signed by the undersigned’s spouse.
The undersigned further agrees that the undersigned’s community property interest or quasi community property interest in all property which is the subject of the Agreement shall be irrevocably bound by the terms of the Agreement, and that the Agreement shall be binding on the executors, administrators, heirs and assigns of the undersigned.
The undersigned further authorizes the undersigned’s spouse to amend, modify or terminate the Agreement, or waive any rights thereunder, and that each such amendment, modification, waiver or termination signed by the undersigned’s spouse shall be binding on the community property interest or quasi community property interest of undersigned in all property which is the subject of the Agreement and on the executors, administrators, heirs and assigns of the undersigned, each as fully as if the undersigned had signed such amendment, modification, waiver or termination.
EXECUTED [AS A DEED] for and on behalf of: |
|||
| Name: | [In the presence of: | ||
| Witness: | |||
| Name:] | |||
Exhibit 10.3
FORM OF AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of [●], 2026, is made and entered into by and among [●] (f/k/a Black Spade Acquisition III Co), a Cayman Islands exempted company (the “Company”), Black Spade Sponsor LLC III, a Cayman Islands limited liability company (the “Sponsor”), Cohen & Company Capital Markets, a division of Cohen and Company Securities, LLC and Chardan Capital Markets, LLC (the “Representatives”), and the undersigned parties listed as an Existing Holder on the signature pages hereto (each such party, together with the Sponsor, the Representatives and any other person deemed an “Existing Holder” who hereafter becomes a party to this Agreement pursuant to Section 5.2 hereof, an “Existing Holder” and collectively, the “Existing Holders”), and Astrum Space Holding Inc, a Cayman Islands exempted company and the undersigned parties listed as a New Holder on the signature pages hereto (each such party, together with any other person deemed a “New Holder” who hereafter becomes a party to this Agreement pursuant to Section 5.2 hereof, a “New Holder” and collectively, the “New Holders”). Capitalized terms used but not otherwise defined in this Agreement shall have the meaning ascribed to such terms in the Business Combination Agreement (as defined below).
RECITALS
WHEREAS, the Company, the Sponsor and the Representatives entered into that certain Registration Rights Agreement, dated as of January 5, 2026 (the “Existing Registration Rights Agreement”), pursuant to which the Company granted to the holders named therein certain registration rights with respect to certain securities of the Company;
WHEREAS, the Company has entered into that certain Business Combination Agreement, dated as of August 27, 2026 (as may be amended from time to time, the “Business Combination Agreement”), with Astrum Networks Pte. Ltd., a private company limited by shares incorporated under the laws of Singapore, and Astrum Space Inc, a Cayman Islands exempted company (“Astrum”), pursuant to which Astrum will merge with and into the Company with the Company surviving as a publicly traded company listed on the New York Stock Exchange;
WHEREAS, upon the closing of the transactions contemplated by the Business Combination Agreement and subject to the terms and conditions set forth therein, the Existing Holders and the New Holders will hold Class A ordinary shares, par value $0.0001 per share, of the Company (“Ordinary Shares”) and the Existing Holders will own Private Placement Warrants (as defined herein);
WHEREAS, pursuant to Section 5.5 of the Existing Registration Rights Agreement, the provisions, covenants and conditions set forth in the Existing Registration Rights Agreement may be amended or modified upon the written consent of the Company and the holders of a majority-in-interest of the “Registrable Securities” (as such term was defined in the Existing Registration Rights Agreement) at the time in question;
WHEREAS, in connection with the transactions contemplated by the Business Combination Agreement, the Company, the Sponsor and the Representatives desire to amend and restate the Existing Registration Rights Agreement in its entirety and enter into this Agreement, pursuant to which the Company shall grant the Existing Holders and the New Holders certain registration rights with respect to certain securities of the Company, and pursuant to which the Existing Holders and the New Holders shall agree to certain restrictions on the transfer of certain securities of the Company held by them, in each case as set forth in this Agreement.
NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 The terms defined in this Section 1.1 shall, for all purposes of this Agreement, have the respective meanings set forth below. Capitalized terms used but not defined in this Agreement shall have the meaning ascribed to such terms in the Business Combination Agreement:
“Adverse Disclosure” shall mean any public disclosure of material non-public information, (a) which disclosure, in the good faith judgment of the Chief Executive Officer or Chief Financial Officer of the Company, after consultation with counsel to the Company, (i) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading, and (ii) would not be required to be made at such time if the Registration Statement were not being filed, declared effective or used, as the case may be, and (b) as to which the Company has a bona fide business purpose for not making such information public.
“Agreement” shall have the meaning given in the Preamble.
“Block Trade” shall have the meaning given in subsection 2.9.1.
“Board” shall mean the Board of Directors of the Company.
“BIII” shall mean Black Spade Acquisition III Co, a Cayman Islands exempted company.
“Business Combination Agreement” shall have the meaning given in the Recitals hereto.
“Business Day” shall mean any day other than Saturday, Sunday or another day on which commercial banks located in New York or Hong Kong are authorized or required by law or executive order to be closed.
“Closing” shall have the meaning given in subsection 5.12.1.
“Commission” shall mean the Securities and Exchange Commission.
“Company” shall have the meaning given in the Preamble and includes the Company’s successors by recapitalization, merger, consolidation, spin-off, reorganization or similar transaction.
“Demanding Holder” shall have the meaning given in Section 2.4.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Existing Holder” or “Existing Holders” shall have the meaning given in the Preamble.
“Existing Registration Rights Agreement” shall have the meaning given in the Recitals hereto.
“Form F-1” shall mean such form under the Securities Act as in effect on the date hereof or any successor registration form under the Securities Act subsequently adopted by the Commission.
“Form F-1 Shelf” shall have the meaning given in subsection 2.1.1.
“Form F-3” shall mean such form under the Securities Act as in effect on the date hereof or any registration form under the Securities Act subsequently adopted by the Commission that permits forward incorporation of substantial information by reference to other documents filed by the Company with the Commission.
“Form F-3 Shelf” shall have the meaning given in subsection 2.1.3.
“Holder” or “Holders” shall mean the Existing Holders and the New Holders and any person who hereafter becomes a party to this Agreement pursuant to Section 5.2.
2
“Lock-Up Agreements” shall mean, collectively, the Shareholders Support and Lock-Up Agreement and Deed and the Sponsor Support and Lock-Up Agreement and Deed.
“Maximum Number of Securities” shall mean, as to a given Underwritten Offering, the maximum dollar amount or maximum number of equity securities that can be sold in such Underwritten Offering, in the reasonable determination of the managing Underwriter(s), without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering.
“Misstatement” shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus (in the case of a Prospectus, in the light of the circumstances under which they were made) not misleading.
“New Holder” or “New Holders” shall have the meaning given in the Preamble.
“New Registration Statement” shall have the meaning given in subsection 2.2.1.
“Other Coordinated Offering” shall have the meaning given in subsection 2.9.1.
“Ordinary Shares” shall have the meaning given in the Recitals hereto.
“Permitted Transferees” shall mean a person or entity to whom a Holder of Registrable Securities is permitted to transfer such Registrable Securities prior to the expiration of the lock-up period under the applicable Lock-Up Agreements, and to any transferee thereafter.
“Person” means any individual, firm, corporation, partnership, limited liability company, incorporated or unincorporated association, joint venture, joint stock company, governmental authority or instrumentality or other entity of any kind.
“Piggyback Registration” shall have the meaning given in Section 2.8.1.
“Private Placement Warrants” shall mean the private placement warrants issued pursuant to that certain Sponsor Warrants Purchase Agreement, dated as of January 5, 2026, between the Company and the Sponsor or that certain Private Placement Warrants Purchase Agreement, dated January 5, 2026, among the Company and the Representatives, and in each case pursuant to that certain Warrant Agreement, dated as of January 5, 2026, as amended from time to time, between the Company and Continental Stock Transfer & Trust Company, as warrant agent, including any such warrants issued upon conversion of working capital loans.
“Pro Rata” shall mean, with respect to a given Registration, offering or Transfer of Registrable Securities pursuant to this Agreement, pro rata based on (A) the number of Registrable Securities that each Holder, as applicable, has requested or proposed to be included in such Registration, offering or Transfer and (B) the aggregate number of Registrable Securities that all Holders have requested or proposed to be included in such Registration, offering or Transfer.
“Prospectus” shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all post-effective amendments and including all material incorporated by reference in such prospectus.
3
“Registrable Securities” shall mean (a) the Private Placement Warrants (including any Ordinary Shares issued or issuable upon the exercise of any such Private Placement Warrants), (b) any issued and outstanding Ordinary Shares or any other equity security (including the Ordinary Shares issued or issuable upon the exercise of any other equity security) of the Company held by an Existing Holder as of the date of this Agreement (including any units of the Company issued upon conversion of working capital loans made to the Company, the Ordinary Shares and warrants included in such units and the Ordinary Shares issuable upon exercise of such warrants), (c) any issued and outstanding shares or any other equity security (including the Ordinary Shares issued or issuable upon the exercise of any such other equity security) of the Company held by a New Holder (including shares transferred to a Permitted Transferee) (i) as of the date of this Agreement or (ii) that are otherwise issued in connection with the transactions contemplated by the Business Combination Agreement, (d) any Ordinary Shares or warrants (including, but not limited to, Private Placement Warrants) to purchase Ordinary Shares otherwise acquired or owned by an Existing Holder or New Holder following the date hereof to the extent that such securities are “restricted securities” (as defined in Rule 144) or are otherwise held by an “affiliate” (as defined in Rule 144) of the Company, and (e) any other equity security of the Company issued or issuable with respect to any such Ordinary Shares described in the foregoing clauses (a) through (d) by way of a share dividend or share split or in connection with a combination of shares, recapitalization, merger, consolidation, spin-off, exchange, reorganization or other similar event; provided, however, that, as to any particular Registrable Security, such securities shall cease to be Registrable Securities upon the earliest to occur of: (A) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (B) such securities shall have been otherwise transferred, new certificates or book-entry positions for such securities not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of such securities shall not require registration under the Securities Act; (C) such securities shall have ceased to be outstanding; (D) such securities may be sold without registration pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission) without any volume or manner-of-sale restrictions or limitations and without the requirement for the Company to be in compliance with the requirements of Rule 144(i)(2); or (E) such securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction; provided that securities ceasing to be Registrable Securities by reason of sub-part (D) shall again become Registrable Securities during any period in which there is no adequate current public information with respect to the Company available under Rule 144(c) of the Securities Act and during any period where sales of such securities under Rule 144 are again subject to volume or manner of sale limitations.
“Registration” shall mean a registration, including any related Underwritten Takedown, effected by preparing and filing a registration statement or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.
“Registration Expenses” shall mean the out-of-pocket expenses of a Registration, including the following:
(A) all registration and filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc.) and any securities exchange on which the Ordinary Shares are then listed;
(B) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel for the Underwriters in connection with blue sky qualifications of Registrable Securities);
(C) printing, messenger, telephone and delivery expenses;
(D) reasonable fees and disbursements of counsel for the Company;
(E) reasonable fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such Registration;
(F) the Company’s roadshow and travel expenses, if any;
(G) the fees and expenses of any special experts retained by the Company in connection with such Registration;
(H) the Company’s internal expenses (including, without limitation, all salaries and expenses of the Company’s and its subsidiaries’ officers and employees and all overhead costs of the Company and its subsidiaries);
(I) reasonable fees and expenses of one (1) legal counsel selected by the majority-in-interest of the Demanding Holders initiating an Underwritten Takedown, provided, for the avoidance of doubt, that any Holder that reasonably determines it has a separate interest may appoint separate counsel for itself at such Holder’s own expense; and
4
(J) all other out-of-pocket expenses of a Registration,
in each case, excluding Underwriters’ commissions and any related transfer taxes attributable to the sale of Registrable Securities by a Holder, and the fees and disbursements of legal counsel to the selling Holders, in an Underwritten Takedown, Block Trade or Other Coordinated Offering.
“Registration Statement” shall mean any registration statement that covers the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement (other than a registration statement on Form F-4, Form S-4 or Form S-8, or their successors, or any registration statement covering only securities proposed to be issued in exchange for securities or assets of another entity).
“Remaining Securities” shall have the meaning given in Section 2.3.1.
“Requesting Holder” shall have the meaning given in Section 2.5.
“SEC Guidance” shall have the meaning given in subsection 2.2.1.
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.
“Shelf” shall mean the Form F-1 Shelf, the Form F-3 Shelf or any Subsequent Shelf, as the case may be.
“Shelf Registration” shall mean a Registration of securities pursuant to a Registration Statement filed with the Commission in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect).
“Significant Holder” shall mean [Astrum Holding].
“Sponsor” shall have the meaning given in the Preamble hereto.
“Sponsor Parties” means (a) the Sponsor; and (b) each Person listed in rows 2 through 15 of Schedule 1.
“Sponsor Parties Representative” shall have the meaning given in subsection 5.14.1.
“Subsequent Shelf” shall have the meaning given in subsection 2.3.2.
“Takedown Demand” shall have the meaning given in subsection 2.4.1.
“Takedown Threshold” shall have the meaning given in Section 2.4.
“Transfer” shall mean the (a) sale of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any security, (b) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) public announcement of any intention to effect any transaction specified in clause (a) or (b).
“Underwriter” shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such dealer’s market-making activities.
“Underwritten Registration” or “Underwritten Offering” shall mean a Registration in which securities of the Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.
5
“Underwritten Takedown” shall have the meaning given in Section 2.4.
ARTICLE 2
REGISTRATIONS
2.1 Resale Shelf Registration.
2.1.1 The Company shall use its reasonable best efforts to (a) file within thirty (30) days following the Closing, and use reasonable efforts to cause to be declared effective as soon as practicable thereafter, a Registration Statement for a Shelf Registration on Form F-1 (the “Form F-1 Shelf”) covering the resale of (i) all the Registrable Securities held by the Holders other than the Significant Holder (determined as of two (2) Business Days prior to such filing) unless as otherwise notified in writing by such Holder to the Company at least five (5) Business Days prior to such filing; and (ii) all or part of the Registrable Securities held by the Significant Holder, as shall be notified in writing by the Significant Holder to the Company at least five (5) Business Days prior to such filing, on a delayed or continuous basis, and shall use its reasonable best efforts to have such Shelf declared effective as soon as practicable after the filing thereof, and (b) keep such Form F-1 Shelf continuously effective, available for use and in compliance with the provisions of the Securities Act until such time as a Form F-3 Shelf is declared effective pursuant to Section 2.1.3.
2.1.2 Such Shelf shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein.
2.1.3 Following the filing of a Form F-1 Shelf, the Company shall use reasonable efforts to convert and/or file, and to cause to become effective, the Form F-1 Shelf (and each Subsequent Shelf) to a Shelf Registration on Form F-3 (the “Form F-3 Shelf”) as soon as practicable, and in any event within sixty (60) days, after the Company is eligible to use Form F-3.
2.2 Rule 415 Cutback.
2.2.1 Notwithstanding the registration obligations set forth in Section 2.1, in the event the Commission informs the Company that all requested Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (a) inform each of the Holders and use its reasonable efforts to file amendments to the Shelf Registration as required by the Commission and/or (b) withdraw the Shelf Registration and file a new Registration Statement (a “New Registration Statement”), on Form F-3, or if Form F-3 is not then available to the Company for such Registration Statement, on such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall use its reasonable efforts to advocate with the Commission for the registration of all requested Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the Commission staff (the “SEC Guidance”).
2.2.2 Notwithstanding any other provision of this Agreement, if from time to time any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used reasonable efforts to advocate with the Commission for the registration of all or a greater number of Registrable Securities) (such maximum number of Registrable Securities permitted to be registered, the “Maximum Registrable Number”), unless otherwise directed in writing by a Holder as to its Registrable Securities and subject to a determination by the Commission that certain Holders must be reduced first based on the number of Registrable Securities held by such Holders, the Company shall prioritize the Registration of (a) first, all Registrable Securities not subject to lock-up restrictions as of the Closing pursuant to the terms of the Lock-up Agreements, all Private Placement Warrants (including all Ordinary Shares issuable upon exercise of such warrants) and all Ordinary Shares issued in a PIPE Financing (as defined in the Business Combination Agreement (if any) on a Pro Rata basis, (b) second, all Registrable Securities subject to a one-year lock-up restriction pursuant to the terms of the Lock-up Agreements on a Pro Rata Basis, and third all remaining Registrable Securities on a Pro Rata Basis. For the avoidance of doubt, each Holder hereby acknowledges and agrees that the Company may amend (or withdraw and refile) any Registration Statement filed pursuant to this Agreement in order to give effect to this Section 2.2.
6
2.2.3 If the Company amends the Shelf Registration or files a New Registration Statement, as the case may be, under this Section 2.2, the Company shall use its reasonable efforts to file with the Commission, as promptly as allowed by the Commission or SEC Guidance, one or more registration statements on Form F-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Shelf Registration, as amended, or the New Registration Statement.
2.3 Maintenance, Amendment, Supplement and Subsequent Shelf.
2.3.1 The Company shall use reasonable efforts to maintain each Shelf in accordance with the terms of this Agreement, and shall prepare and file with the Commission from time to time such amendments and supplements to the Shelf as may be necessary (a) to keep the Shelf continuously effective, available for use and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities and (b) to register the resale of all or any Registrable Securities held by the Significant Holder that are not registered for resale on the Form F-1 Shelf initially filed with the Commission pursuant to Section 2.1.1 (the “Remaining Securities”).
2.3.2 If a Shelf ceases to be effective under the Securities Act for any reason at any time while Registrable Securities are still outstanding, the Company shall, subject to Section 3.4, use reasonable efforts to as promptly as is reasonably practicable (a) cause such Shelf to again become effective under the Securities Act (including using reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness of such Shelf), (b) amend such Shelf in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf, or (c) prepare and file an additional Registration Statement for a Shelf Registration (a “Subsequent Shelf”) registering the resale of (i) all the Registrable Securities held by the Holders other than the Significant Holder (determined as of two (2) Business Days prior to such filing) unless as otherwise notified in writing by such Holder to the Company at least five (5) Business Days prior to such filing; and (ii) all or part of the Remaining Securities, as shall be notified in writing by the Significant Holder to the Company at least five (5) Business Days prior to such filing.
2.3.3 If a Subsequent Shelf is filed pursuant to Section 2.3.2, the Company shall use reasonable efforts to (a) cause such Subsequent Shelf to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof, and (b) keep such Subsequent Shelf continuously effective, available for use and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. Any such Subsequent Shelf shall be on Form F-3 to the extent that the Company is eligible to use such form, and shall be an automatic shelf registration statement as defined in Rule 405 promulgated under the Securities Act if the Company is a well-known seasoned issuer as defined in Rule 405 promulgated under the Securities Act at the most recent applicable eligibility determination date. Otherwise, such Subsequent Shelf shall be on another appropriate form.
2.4 Demand for Underwritten Takedown. Subject to the Lock-Up Agreements and to the provisions of this Section 2.4 and Sections 2.5 and 3.4, at any time and from time to time when an effective Shelf is on file with the Commission, any Holder(s) of the then-outstanding number of Registrable Securities (the “Demanding Holders”) may request to sell all or a portion of their Registrable Securities in an Underwritten Offering, a Block Trade or an Other Coordinated Offering, in each case that is registered pursuant to the Shelf (each, an “Underwritten Takedown”) in accordance with this Section 2.4; provided that, the Company shall only be obligated to effect an Underwritten Takedown if such Underwritten Offering shall include Registrable Securities proposed to be sold by the Demanding Holder with a total offering price reasonably expected to exceed, in the aggregate, US$25,000,000.
2.4.1 Takedown Demand Notice. All requests for an Underwritten Takedown shall be made by giving written notice to the Company, which notice shall specify the number of Registrable Securities proposed to be sold in the Underwritten Takedown (such written notice, a “Takedown Demand”).
7
2.4.2 Underwriters. The majority-in-interest of the Demanding Holders initiating an Underwritten Takedown shall have the right to select the Underwriter(s) for such Underwritten Offering (which shall consist of one or more reputable nationally recognized investment banks). The Company shall not be required to include any Holder’s Registrable Securities in such Underwritten Takedown unless such Holder accepts the terms of the underwriting as agreed between the Company and its Underwriter(s) in customary form and enters into and complies with an underwriting agreement with such Underwriter(s) in customary form (after having considered and taken reasonable account of comments of U.S. counsel for the Holders which are selling in the Underwritten Takedown). Notwithstanding anything to the contrary in this Agreement, the Company may effect any Underwritten Takedown pursuant to any then effective Registration Statement, including a Form F-3, that is then available for such offering.
2.4.3 Number and Frequency of Underwritten Takedowns. Notwithstanding anything to the contrary in this Section 2.4, under no circumstances shall the Company be obligated to effect more than an aggregate of two (2) Underwritten Takedowns within any twelve-month period following the Closing.
2.5 Reduction of Underwritten Takedown. If the managing Underwriter or Underwriters in an Underwritten Offering pursuant to a Takedown Demand, in good faith, advises the Company and the Demanding Holders and the Holders requesting piggy back rights pursuant to this Agreement with respect to such Underwritten Offering (such Demanding Holders and other requesting Holders, the “Requesting Holders”) (if any) in writing that the dollar amount or number of Registrable Securities that the Demanding Holders and the Requesting Holders (if any) desire to sell, taken together with all other Ordinary Shares or other equity securities that the Company desires to sell and the Ordinary Shares, if any, as to which a Registration has been requested pursuant to separate written contractual piggy-back registration rights held by any other shareholders who desire to sell, exceeds the Maximum Number of Securities, then the Company shall include in such Underwritten Offering:
2.5.1 first, the Registrable Securities of the Demanding Holders and the Requesting Holders (if any) that can be sold without exceeding the Maximum Number of Securities (to be allocated among the Demanding Holders and Requesting Holders in the manner set forth in subsection 2.2.2 if the Registrable Securities desired to be sold by such Holders in the aggregate would exceed the Maximum Number of Securities);
2.5.2 second, to the extent that the Maximum Number of Securities has not been reached under the foregoing subsection 2.5.1, the Ordinary Shares or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and
2.5.3 third, to the extent that the Maximum Number of Securities has not been reached under the foregoing subsections 2.5.1 and 2.5.2, any Ordinary Shares or other equity securities of other persons or entities that the Company is obligated to register pursuant to any separate written contractual arrangements with such persons and that can be sold without exceeding the Maximum Number of Securities.
2.6 Effective Registration. Notwithstanding any other provision in this Agreement, a Registration will not count as an Underwritten Takedown until the Registration Statement filed with the Commission with respect to such Underwritten Takedown has been declared effective and the Company has complied with all of its obligations under this Agreement with respect to such Underwritten Takedown; provided, however, that if, after such Registration Statement has been declared effective, the offering of Registrable Securities pursuant to such Underwritten Takedown is interfered with by any stop order or injunction of the Commission or any other governmental agency or court, the Registration Statement with respect to such Underwritten Takedown will be deemed not to have been declared effective, unless and until, (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a majority in interest of the Demanding Holders, thereafter elects to continue the offering; provided, further, that the Company shall not be obligated to file a second Registration Statement until the Registration Statement that has been previously filed with respect to such Underwritten Takedown becomes effective or is subsequently terminated.
2.7 Withdrawal of Underwritten Takedown.
2.7.1 Prior to the filing of the applicable preliminary or “red herring” Prospectus used for marketing an Underwritten Takedown, a majority-in-interest of the relevant Demanding Holders shall have the right to withdraw from such Underwritten Takedown for any or no reason whatsoever upon written notification to the Company, each other Demanding Holder and Requesting Holder, and the applicable Underwriter(s).
8
2.7.2 Following the receipt of any notice of withdrawal pursuant to subsection 2.7.1, the other Demanding Holders and Requesting Holders, provided they collectively qualify as Demanding Holders pursuant to Section 2.4 and the Takedown Threshold would still be satisfied, may elect to continue with the Underwritten Offering and such continued Takedown Demand shall count as a Takedown Demand of the continuing Demanding Holders for purposes of subsection 2.4.3 and not of the withdrawing Demanding Holders.
2.7.3 If following a request under subsection 2.7.1 an Underwritten Takedown is withdrawn and not continued pursuant to subsection 2.7.2, then the withdrawn Takedown Demand shall count as an Underwritten Takedown for purposes of subsection 2.4.3 (unless one or more of the Demanding Holders reimburse the Company for all Registration Expenses with respect to such Underwritten Takedown, in which case it shall not count as an Underwritten Takedown).
2.8 Piggyback Registration.
2.8.1 Piggyback Rights. Subject to subsection 2.9.3, if the Company or any shareholder of the Company proposes to conduct a registered offering of, or if the Company proposes to file a Registration Statement under the Securities Act with respect to the Registration of, equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into equity securities, for its own account or for the account of shareholders of the Company (or by the Company and by the shareholders of the Company, including an Underwritten Takedown pursuant to Section 2.4), other than a Registration Statement (a) filed in connection with any employee share option or other benefit plan, (b) for an exchange offer or offering of securities solely to the Company’s existing shareholders, (c) for an offering of debt that is convertible into equity securities of the Company, (d) for a dividend reinvestment plan, or (e) for a rights offering, then the Company shall give written notice of such proposed filing or offering to all of the Holders of Registrable Securities as soon as practicable but not less than ten (10) days before the anticipated filing date of such Registration Statement, or, in the case of an Underwritten Offering pursuant to a Shelf Registration, the applicable preliminary “red herring” Prospectus or prospectus supplement used for marketing such offering, which notice shall (x) describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, in such offering, and (y) offer to all of the Holders of Registrable Securities the opportunity to register the sale of such number of Registrable Securities as such Holders may request in writing within ten (10) days after receipt of such written notice (such Registration a “Piggyback Registration”). Subject to subsection 2.8.2, the Company shall, in good faith, cause such Registrable Securities to be included in such Piggyback Registration and shall use reasonable best efforts to cause the managing Underwriter or Underwriters of a proposed Underwritten Offering to permit the Registrable Securities requested by the Holders pursuant to this subsection 2.8.1 to be included in such Piggyback Registration on the same terms and conditions as any similar securities of the Company included in such Registration and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. The inclusion of any Holder’s Registrable Securities in a Piggyback Registration shall be subject to such Holder’s agreement to enter into and comply with an underwriting agreement in customary form with the Underwriter(s) duly selected for such Underwritten Offering.
2.8.2 Reduction of Piggyback Registration. If the managing Underwriter or Underwriters in an Underwritten Registration that is to be a Piggyback Registration advises the Company and the Holders of Registrable Securities participating in the Piggyback Registration in writing that the dollar amount or number of the Ordinary Shares or other equity securities that the Company desires to sell, taken together with (x) the Ordinary Shares or other equity securities, if any, as to which Registration or a registered offering has been demanded pursuant to separate written contractual arrangements with persons or entities other than the Holders of Registrable Securities hereunder, (y) the Registrable Securities as to which registration has been requested pursuant to Section 2.8 hereof, and (z) the Ordinary Shares or other equity securities, if any, as to which Registration or a registered offering has been requested pursuant to separate written contractual piggy-back registration rights of other shareholders of the Company, exceeds the Maximum Number of Securities, then:
(a) If the Registration or registered offering is undertaken for the Company’s account, the Company shall include in any such Registration or registered offering:
(i) first, the Ordinary Shares or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities;
9
(ii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.8.1 that can be sold without exceeding the Maximum Number of Securities (to be allocated among such Holders in the manner set forth in subsection 2.2.2 if the Registrable Securities desired to be sold by such Holders in the aggregate, when combined with those desired to be sold by the Company, would exceed the Maximum Number of Securities); and
(iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the Ordinary Shares or other equity securities, if any, as to which Registration or a registered offering has been requested pursuant to written contractual piggy-back registration rights of other shareholders of the Company, which can be sold without exceeding the Maximum Number of Securities; and
(b) If the Registration or registered offering is pursuant to a demand by persons or entities other than the Holders of Registrable Securities, then the Company shall include in any such Registration or registered offering:
(i) first, the Ordinary Shares or other equity securities, if any, of such demanding persons or entities, other than the Holders of Registrable Securities, which can be sold without exceeding the Maximum Number of Securities;
(ii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), the Ordinary Shares or other equity securities that the Company desires to sell, Pro Rata, which can be sold without exceeding the Maximum Number of Securities;
(iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.8.1, which can be sold without exceeding the Maximum Number of Securities; and
(iv) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i), (ii) and (iii), the Ordinary Shares or other equity securities for the account of other persons or entities that the Company is obligated to register pursuant to separate written contractual arrangements with such persons or entities, which can be sold without exceeding the Maximum Number of Securities.
(c) If the Registration or registered offering is pursuant to a request by Holder(s) of Registrable Securities pursuant to Section 2.4, then the Company shall include in any such Registration or registered offering securities pursuant to Section 2.5.
2.8.3 Piggyback Registration Withdrawal. Any Holder of Registrable Securities shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Piggyback Registration or in the case of a Shelf Registration, prior to the filing of the applicable preliminary or “red herring” Prospectus used for marketing of the relevant offering or takedown thereunder. The Company (whether on its own good faith determination or as the result of a request for withdrawal by persons pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection with a Piggyback Registration (excluding a Piggyback Registration by Holder(s) in connection with an Underwritten Takedown under Sections 2.1 to 2.6) at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal under this subsection 2.8.3.
2.8.4 Unlimited Piggyback Registration Rights. For purposes of clarity, any Registration effected pursuant to Section 2.8 shall not be counted as an Underwritten Takedown for purposes of subsection 2.4.3, and there shall be no limit on the number of Piggyback Registrations.
10
2.9 Block Trades; Other Coordinated Offerings.
2.9.1 Notwithstanding the foregoing (but subject to Section 3.4), at any time and from time to time when an effective Shelf is on file with the Commission, if a Demanding Holder wishes to engage in an underwritten or other coordinated registered offering not involving a “roadshow,” including (i) an offer commonly known as a “block trade” (a “Block Trade”) and (ii) an “at-the-market” or similar registered offering through a broker, sales agent or distribution agent, whether as agent or principal (an “Other Coordinated Offering”), either (x) with a total offering price reasonably expected to exceed, in the aggregate, US$5,000,000 or (y) where the Demanding Holder is the Significant Holder or the Sponsor, in respect of all remaining Registrable Securities held by such Holder, then such Holder shall notify the Company, the Significant Holder and the Sponsor of the Block Trade or Other Coordinated Offering at least five (5) Business Days prior to the day such offering is to commence and the Company shall as expeditiously as possible use reasonable efforts to facilitate such Block Trade or Other Coordinated Offering; provided that the Holders representing a majority of the Registrable Securities wishing to engage in the Block Trade or Other Coordinated Offering shall use reasonable efforts to work with the Company and any Underwriters or placement agents or sales agents prior to making such request in order to facilitate preparation of the Registration Statement, Prospectus and other offering documentation related to the Block Trade or the Other Coordinated Offering and any related due diligence and comfort procedures, in accordance with subsections 3.1.11 and 3.1.12.
2.9.2 Prior to the filing of the applicable “red herring” Prospectus or prospectus supplement used in connection with a Block Trade or an Other Coordinated Offering, a majority-in-interest of the Holders initiating such Block Trade or Other Coordinated Offering shall have the right to withdraw upon written notification to the Company and the Underwriter or Underwriters (if any) or placement agents or sales agents (if any). Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Block Trade or an Other Coordinated Offering prior to its withdrawal under this subsection 2.9.2. A Block Trade or Other Coordinated Offering withdrawn pursuant to this subsection 2.9.2 shall nonetheless be counted as a demand for purposes of subsection 2.9.5.
2.9.3 Only the Significant Holder or the Sponsor may exercise Piggyback Registration rights in connection with a Block Trade; with respect to any other Holders from time to time, Section 2.8 hereof shall not apply to a Block Trade initiated by a Holder pursuant to this Agreement. Notwithstanding the time periods provided for in Section 2.8, in the Significant Holder’s or the Sponsor’s exercise of Piggyback Registration rights in connection with a Block Trade, the Company and the initiating Holder(s) shall not be obligated to include the Significant Holder’s or the Sponsor’s Registrable Securities in such Block Trade unless requested to do so in writing within the Business Day immediately following the date on which notice of the Block Trade is given pursuant to subsection 2.9.1.
2.9.4 The initiating Holder(s) in a Block Trade shall have the right to select the Underwriters for such Block Trade (which shall consist of one or more reputable nationally recognized investment banks).
2.9.5 Holders in the aggregate may demand no more than one (1) Block Trade or Other Coordinated Offering pursuant to this Section 2.9 in any three (3) month period, and no more than four (4) Block Trades or other Coordinated Offerings pursuant to this Section 2.9 within the first twelve (12) months following the Closing. For the avoidance of doubt, any Block Trade pursuant to this Section 2.9 shall not be counted as an Underwritten Takedown for purposes of subsection 2.4.3.
2.10 Market Stand-Off Agreement. The Company and each Holder given an opportunity to participate in an Underwritten Offering of equity securities of the Company (other than a Block Trade) pursuant to the terms of this Agreement agrees that it shall not Transfer any Ordinary Shares or other equity securities of the Company (other than those included in such offering pursuant to this Agreement, and excepting any Transfers between or among the Sponsor Parties), without the prior written consent of the managing Underwriters, during the ninety (90)-day period (or such shorter time agreed to by the managing Underwriters) beginning on the date of pricing of such offering. The Company and each Holder agrees to execute a customary lock-up agreement in favor of the relevant Underwriters to such effect (in the case of a Holder, in each case on substantially the same terms and conditions as all such Holders). If any Holder or any director or executive officer of such Holder participating in such Underwritten Offering enters into an agreement relating to the subject matter set forth in this section on terms and conditions that are less restrictive than those agreed to herein (or such terms and conditions are subsequently relaxed including as a result of a modification, waiver, amendment, or written consent of the Board), then the less restrictive or relaxed terms and conditions shall apply to each other Holder.
11
ARTICLE 3
COMPANY PROCEDURES
3.1 General Procedures. In connection with any Shelf and/or Underwritten Takedown, the Company shall use reasonable efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible:
3.1.1 prepare and file with the Commission a Registration Statement with respect to such Registrable Securities and use reasonable efforts to cause such Registration Statement to become effective and remain effective until such time as there are no longer any Registrable Securities;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by any Holder that holds at least five percent (5%) of the Registrable Securities registered on such Registration Statement, or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are disposed of in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, (a) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request and (b) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action which would subject it to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on the national securities exchange on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly, and in no event later than one (1) Business Day, after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly take all actions reasonably required to prevent the entry of any stop order or to obtain its withdrawal if such stop order should be entered;
12
3.1.8 at least five (5) Business Days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein), and providing copies promptly upon receipt of any comment letters received with respect to any such Registration Statement or Prospectus or any amendments or supplements thereof, and thereafter, take reasonable account of comments of counsel to such seller;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to promptly correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority-in-interest of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense (other than with respect to Registration Expenses), in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representative, or Underwriters enter into a confidentiality agreement, in customary form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering, a Block Trade, an Other Coordinated Offering or sale by a broker, placement agent or sales agent pursuant to such Registration (subject to such broker, placement agent or sales agent providing such certification or representation reasonably requested by the Company’s independent registered public accountants and the Company’s counsel) in customary form and covering such matters of the type customarily covered by “cold comfort” letters for a transaction of its type as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 in the event of an Underwritten Registration, on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain (a) an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions, and reasonably satisfactory to a majority-in-interest of the participating Holders, and (b) a negative assurance (“10b-5”) letter, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such 10b-5 letter is being given as the placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such 10b-5 letters;
3.1.13 in the event of any Underwritten Offering, Block Trade or Other Coordinated Offering that is registered pursuant to a Registration Statement, enter into and perform its obligations under an underwriting agreement, a sales agreement or a placement agreement, in usual and customary form, with the managing Underwriter, sales agent or placement agent of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule then in effect);
3.1.15 with respect to an Underwritten Offering pursuant to Section 2.4, use reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in such Underwritten Offering; and
13
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the participating Holders, consistent with the terms of this Agreement, in connection with such Registration.
3.2 Registration Expenses. The Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Holders that each Holder shall bear any Underwriters’ commissions and discounts, brokerage fees and Underwriter marketing costs (if reimbursable to the Underwriter(s)), and any related transfer taxes attributable to the sale of such Holder’s Registrable Securities in connection with any Underwritten Takedown and that the selling Holders shall bear the fees and disbursements of legal counsel to the selling Holders.
3.3 Requirements for Participation in Underwritten Offerings. Each Holder shall provide such information as may reasonably be required by the Company, or the managing Underwriter or placement agent or sales agent, if any, in connection with the preparation of any Registration Statement or Prospectus, including amendments and supplements thereto, in order to effect the Registration of any Registrable Securities under the Securities Act pursuant to Article 2 and in connection with the Company’s obligation to comply with federal and applicable state securities laws. Notwithstanding anything in this Agreement to the contrary, if any Holder does not provide such information, the Company may exclude such Holder’s Registrable Securities from the applicable Registration Statement or Prospectus if the Company determines, based on the advice of reputable external counsel, that such information is necessary to effect the Registration and such Holder continues thereafter to withhold such information. No person may participate in any Underwritten Offering for equity securities of the Company pursuant to a Registration initiated by the Company hereunder unless such person:
3.3.1 agrees to sell such person’s securities on the basis provided in any customary underwriting arrangements approved by the Company (after having considered and taken reasonable account of comments of U.S. counsel for the Holders which are selling in the Underwritten Offering); and
3.3.2 completes and executes all customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting agreements and other customary documents as may be reasonably required under the terms of such underwriting arrangements.
The exclusion of a Holder’s Registrable Securities as a result of this Section 3.3 shall not affect the Registration of the other Registrable Securities to be included in such Registration.
3.4 Suspension of Sales; Adverse Disclosure. Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement (including pursuant to subsection 3.1.9), each of the Holders shall forthwith discontinue disposition of Registrable Securities until it has received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants to prepare and file such supplement or amendment as soon as practicable after the time of such notice), or until it is advised in writing by the Company that the use of the Prospectus may be resumed. In addition, if the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would (a) require the inclusion in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control, or (b) in the good faith view of the Company, require the Company to make an Adverse Disclosure, the Company may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the period of time determined in good faith by the Company to be necessary for such purpose; provided, however, that the Company shall not have the right to exercise the rights set forth in this Section 3.4 more than twice or for more than sixty (60) consecutive days or more than a total of one-hundred-and-twenty (120) days, in each such case in any twelve (12)-month period. In the event the Company exercises its rights under the preceding sentence, the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities. The Company shall promptly notify the Holders of the expiration of any period during which it exercised its rights under this Section 3.4.
14
3.5 Reporting Obligations. As long as any Holder shall own Registrable Securities, the Company, at all times while it remains a reporting company under the Exchange Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holders with true and complete copies of all such filings; provided that any documents publicly filed or furnished with the Commission pursuant to the Electronic Data Gathering, Analysis and Retrieval system shall be deemed to have been furnished or delivered to the Holders pursuant to this Section 3.5. The Company further covenants that it shall take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell Ordinary Shares held by such Holder without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act (or any successor rule then in effect). Upon the request of any Holder, the Company shall deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such requirements.
ARTICLE 4
INDEMNIFICATION AND CONTRIBUTION
4.1 Indemnification by the Company. To the extent permitted by law, the Company agrees to indemnify and hold harmless each Holder of Registrable Securities, its officers, directors, attorneys and agents, and each person, if any, who controls such Holder (within the meaning of the Securities Act) (each, a “Holder Indemnified Party”), from and against all losses, judgments, claims, damages, liabilities and expenses (including without limitation reasonable outside attorneys’ fees), whether joint or several, arising out of or that are based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto, or arising out of or that are based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, or any violation by the Company of the Securities Act or any rule or regulation promulgated thereunder applicable to the Company and relating to action or inaction required of the Company in connection with any such registration, except insofar as the same are (x) caused by or contained in any information or affidavit furnished in writing to the Company by such Holder expressly for use therein, or (y) based on any such Holder’s violation of federal securities laws or failure to sell the Registrable Securities in accordance with the intended plan of distribution contained in the Prospectus. The Company shall promptly reimburse the Holder Indemnified Party for any reasonable expenses properly incurred by such Holder Indemnified Party in connection with investigating and defending any proceeding or action to which this Section 4.1 applies (including the reasonable fees and disbursements of legal counsel), loss, judgment, claim, damage, liability or action, except insofar as such proceeding or action (x) are caused by or are based on any information or affidavit furnished in writing to the Company by such Holder expressly for use in the relevant Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto, or (y) are based on any such Holder’s violation of federal securities laws or failure to sell the Registrable Securities in accordance with the intended plan of distribution contained in the Prospectus.
4.2 Information Provided by Holders. In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus. To the extent permitted by law, each Holder shall indemnify and hold harmless the Company, its officers, directors, attorneys and agents and each person, if any, who controls the Company (within the meaning of the Securities Act) from and against all losses, judgments, claims, damages, liabilities and expenses (including without limitation reasonable outside attorneys’ fees), whether joint or several, arising out of or that are based upon any untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission was contained in any information or affidavit furnished in writing by such Holder to the Company expressly for use therein, or if such losses, judgments, claims, damages, liabilities and expenses are based on any such Holder’s violation of the federal securities laws or failure to sell the Registrable Securities in accordance with the intended plan of distribution contained in the Prospectus; provided, however, that the obligation to indemnify shall be several, not joint or joint and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement.
15
4.3 Indemnification Process.
4.3.1 Any person entitled to indemnification herein shall:
(a) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party); and
(b) permit an indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party.
4.3.2 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).
4.3.3 The indemnified party shall have the right to employ separate counsel (but no more than one (1) such separate counsel, which counsel is reasonably acceptable to the indemnifying party) to represent the indemnified party and its controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the indemnified party against the indemnifying party, with the reasonably incurred fees and expenses of such counsel to be paid by such indemnifying party if the indemnified party and the indemnifying party are named as defendants and, based upon the written opinion of counsel of such indemnified party, representation of both the indemnified party and the indemnifying party by the same counsel would be inappropriate due to actual or potential differing interests between them.
4.3.4 No indemnifying party shall, without the prior written consent of the indemnified party, consent to the entry of any judgment or enter into any settlement of any claim or pending or threatened proceeding in respect of which the indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party which (i) cannot be settled in all respects by the payment of money (and if any such money is required to be paid under such judgment or settlement it shall be so paid by the indemnifying party pursuant to the terms of such judgment or settlement), or (ii) settlement includes a statement or admission of fault or culpability on the part of an indemnified party or (iii) settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to each indemnified party of a release from all liability in respect to such claim or litigation.
4.3.5 The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling person of such indemnified party and shall survive the transfer of securities.
4.4 Contribution. If the indemnification provided under Sections 4.1, 4.2, and 4.3 from the indemnifying party is judicially determined to be unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and out-of-pocket expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities and out-of-pocket expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party in connection with the actions or omissions which resulted in such loss, claim, damage, liability or action, as well as any other relevant equitable considerations. The relative fault of any indemnifying party and any 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 omitted to be 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 statement or omission; provided, however, that the liability of any Holder under this subsection 4.4 shall be limited to the amount of the net proceeds actually received by such Holder in such offering giving rise to such liability, and no Holder shall have any liability for contribution to the extent that such Holder would not have been liable for indemnification pursuant to this Agreement. The amount paid or payable by an indemnified 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 subsections 4.1, 4.2 and 4.3 above, legal or other fees, charges or out-of-pocket expenses reasonably incurred by such indemnified party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection 4.4 were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this subsection 4.4. 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 subsection 4.4 from any person who was not guilty of such fraudulent misrepresentation.
16
ARTICLE 5
MISCELLANEOUS
5.1 Notices. All general notices, demands or other communications required or permitted to be given or made hereunder (“Notices”) shall be in writing and delivered personally or sent by courier or sent by electronic mail to the intended recipient thereof. Any such Notice shall be deemed to have been duly served (a) if given personally or sent by local courier, upon delivery during normal business hours at the location of delivery or, if later, then on the next Business Day after the day of delivery; (b) if sent by electronic mail during normal business hours at the location of delivery, immediately, or, if later, then on the next Business Day after the day of delivery; or (c) the third Business Day following the day sent by reputable international overnight courier (with written confirmation of receipt). Any notice or communication under this Agreement must be addressed, if to the Company, to the principal office of the Company or to such email address or address as subsequently modified by written notice given in accordance with this Section 5.1, with a copy to 345 Park Avenue, New York, NY 10154, to the attention of David J. Levine, and if to any Holder, at such Holder’s address or contact information as set forth in Schedule 1 (as updated from time to time, including pursuant to Section 5.2.5) or to such Holder’s address as found in the Company’s books and records. Any party may change its address for notice at any time and from time to time by written notice to the other parties hereto, and such change of address shall become effective thirty (30) days after delivery of such notice as provided in this Section 5.1. Any Holder not desiring to receive Notices at any time and from time to time may so notify the other parties, who shall thereafter not make, give or deliver any Notice to such Holder until duly notified otherwise (or until the expiry of any period specified in such Holder’s notice).
5.2 Assignment; No Third Party Beneficiaries.
5.2.1 This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part.
5.2.2 No Holder may assign or delegate such Holder’s rights, duties or obligations under this Agreement, in whole or in part, except in connection with a transfer of Registrable Securities by such Holder to a Permitted Transferee but only if such Permitted Transferee agrees to become bound by the terms and conditions of this Agreement. After the expiration of the lock-up period applicable to such Holder pursuant to any Lock-Up Agreement, the Holder may assign or delegate such Holder’s rights, duties or obligations under this Agreement, in whole or in part, to any person to whom it transfers Registrable Securities; provided that such Registrable Securities remain Registrable Securities following such transfer, and such person agrees to be bound by the terms and conditions of this Agreement.
5.2.3 This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and the permitted assigns of the Holders, which shall include Permitted Transferees.
5.2.4 This Agreement shall not confer any rights or benefits on any persons that are not parties hereto, other than as expressly set forth in this Agreement and Section 5.2 hereof.
5.2.5 No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless and until the Company shall have received (i) written notice of such assignment as provided in Section 5.1 hereof and (ii) the written agreement of the assignee, in the form attached as an Exhibit hereto (an “Addendum Agreement”), to be bound by the terms and conditions of this Agreement. Any transfer or assignment made other than as provided in this Section 5.2 shall be null and void. The execution of an Addendum Agreement by the parties thereto shall constitute a permitted amendment of this Agreement notwithstanding the provisions of Section 5.9. Upon a transfer or assignment made in accordance with this Section 5.2, Schedule 1 shall be deemed updated accordingly to reflect the removal of the assignor and addition of the assignee.
17
5.3 Counterparts. This Agreement may be executed in multiple counterparts (including by electronic means), each of which shall be deemed an original, and all of which together shall constitute the same instrument, but only one of which need be produced. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
5.4 Governing Law; Venue. Each party expressly agrees that 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 New York, 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. Any claim or cause of action based upon, arising out of or related to this Agreement or the transactions contemplated hereby may be brought in federal and state courts located in the State of New York, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court, waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, agrees that all claims in respect of any cause of action may be heard and determined only in any such court, and agrees not to bring any cause of action 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 action brought pursuant to this Section 5.4. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
5.5 Remedies. The parties hereto agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the parties hereto do not perform their obligations under the provisions of this Agreement in accordance with its specified terms or otherwise breach such provisions. The parties hereto acknowledge and agree that (a) such parties shall be entitled to an injunction, specific performance, or other equitable relief, to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof and thereof, without proof of damages and without posting a bond, prior to the valid termination of this Agreement, this being in addition to any other remedy to which they are entitled under this Agreement, and (b) the right of specific enforcement is an integral part of the transactions contemplated hereby and without that right, none of the parties hereto would have entered into this Agreement. Each party agrees that it will not oppose the granting of specific performance and other equitable relief on the basis that the other parties hereto have an adequate remedy at law or that an award of specific performance is not an appropriate remedy for any reason at law or equity. The parties acknowledge and agree that any party seeking an injunction to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 5.5 shall not be required to provide any bond or other security in connection with any such injunction.
5.6 Severability. The invalidity or unenforceability of any specific provision of this Agreement shall not invalidate or render unenforceable any of its other provisions. Any provision of this Agreement held invalid or unenforceable shall be deemed reformed, if practicable, to the extent necessary to render it valid and enforceable and to the extent permitted by law and consistent with the intent of the parties to this Agreement.
5.7 Entire Agreement. This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof. There are no agreements, representations, warranties, covenants or understandings among the parties with respect to the subject matter hereof other than those expressly set forth herein and therein. This Agreement supersedes all other prior agreements and understandings between the parties with respect to such subject matter.
18
5.8 Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party. Unless the context otherwise requires: (a) “or” is disjunctive but not exclusive; (b) words in the singular include the plural, and in the plural include the singular; (c) the words “hereof,” “herein,” “hereunder” and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement, and section and subsection references are to this Agreement unless otherwise specified; (d) the term “including” is not limiting and means “including without limitation”; (e) whenever the context requires, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms; (f) references to agreements and other documents shall be deemed to include all subsequent amendments and other modifications or supplements thereto; and (g) references to statutes shall include all regulations promulgated thereunder and references to statutes or regulations shall be construed as including all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation. The headings, subheadings and captions contained in this Agreement are included for convenience of reference only, and in no way define, limit or describe the scope of this Agreement or the intent of any provision hereof.
5.9 Amendments and Modifications. Upon the written consent of the Company and the Holders of at least fifty percent (50%) of the Registrable Securities at the time in question, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however, that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects one Holder, solely in its capacity as a holder of the shares of capital stock of the Company, in a manner that is materially different from the other Holders (in such capacity) shall require the prior written consent of the Holder so affected. No course of dealing between any Holder or the Company and any other party hereto or any failure or delay on the part of a Holder or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or the Company. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party.
5.10 Termination of Existing Registration Rights. The registration rights granted under this Agreement shall supersede any registration, qualification or similar rights of the Holders with respect to any shares or securities of BIII or the Company granted under any other agreement, and any of such preexisting registration, qualification or similar rights and such agreements shall be terminated and of no further force and effect.
5.11 Other Registration Rights. The Company represents and warrants that no person, other than a Holder of Registrable Securities, has any right to require the Company to register any securities of the Company for sale or to include such securities of the Company in any Registration filed by the Company for the sale of securities for its own account or for the account of any other person, and that this Agreement supersedes any other registration rights agreement or agreement with similar terms and conditions and in the event of a conflict between any such agreement or agreements and this Agreement, the terms of this Agreement shall prevail.
5.12 Effectiveness of this Agreement.
5.12.1 This Agreement shall take effect as of and from the closing of the transactions contemplated by the Business Combination Agreement (the “Closing”); provided, that if the Business Combination Agreement is terminated prior to the Closing, this Agreement shall not become effective and shall be deemed void.
5.12.2 With effect from the Closing, each party to this Agreement hereby irrevocably waives and agrees not to exercise or enforce any rights it may have in respect of the registration of Registrable Securities pursuant to any other agreement including, without limitation, the Existing Registration Rights Agreement.
5.13 Term. This Agreement shall terminate (a) on the date as of which all of the Registrable Securities have been sold or disposed of and (b) with respect to any particular Holder, the date as of which such Holder ceases to hold any Registrable Securities held by such Holder. The provisions of Section 3.2, Section 3.5 and ARTICLE 4 shall survive any termination.
19
5.14 Sponsor Parties Representative.
5.14.1 Each Sponsor Party hereby irrevocably appoints the Sponsor to act as the Sponsor Parties’ representative (the “Sponsor Parties Representative”) for all purposes under this Agreement. Any notice by any party to the Sponsor Parties Representative made in accordance with this Agreement shall be deemed to be a notice to all of the Sponsor Parties, and any notice of any Sponsor Party to the Company or any other party shall be valid only if given by the Sponsor Parties Representative. The Company and each other party shall be entitled to rely on a notice or instruction from the Sponsor Parties Representative on behalf of a Sponsor Party.
5.14.2 The Sponsor undertakes that, and the Sponsor Parties agree that, prior to the Sponsor (i) ceasing to hold any Registrable Securities or (ii) undertaking any liquidation, dissolution or winding up, the Sponsor shall designate the Sponsor Party holding the largest number of Registrable Securities at such time as the “Sponsor Parties Representative”, and the provisions of this sentence shall also apply subsequently, mutatis mutandis, if any such Sponsor Party ceases to hold Registrable Securities or undertakes any liquidation, dissolution or winding up.
[Signature Pages Follow]
20
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| [●] (F/K/A BLACK SPADE ACQUISITION III CO) | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Registration Rights Agreement]
21
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| Existing Holder: | |||
| BLACK SPADE SPONSOR LLC III | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Registration Rights Agreement]
22
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| Existing Holder: | |||
| COHEN & COMPANY CAPITAL MARKETS, A DIVISION OF COHEN AND COMPANY SECURITIES, LLC | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Registration Rights Agreement]
23
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| Existing Holder: | |||
| CHARDAN CAPITAL MARKETS, LLC | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Registration Rights Agreement]
24
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| Existing Holder: | |||
| CHI WAI DENNIS TAM | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Registration Rights Agreement]
25
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| Existing Holder: | |||
| SHING JOE KESTER NG | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Registration Rights Agreement]
26
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| Existing Holder: | |||
| RICHARD KIRBY TAYLOR | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Registration Rights Agreement]
27
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| Existing Holder: | |||
| RUSSELL WILLIAM GALBUT | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Registration Rights Agreement]
28
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| Existing Holder: | |||
| ROBERT STEVEN MOORE | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Registration Rights Agreement]
29
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| Existing Holder: | |||
| PO YI PATSY CHAN | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Registration Rights Agreement]
30
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| Existing Holder: | |||
| WING HONG SAMMY HSIEH | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Registration Rights Agreement]
31
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| Existing Holder: | |||
| YUEN WAI SAMUEL TSANG | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Registration Rights Agreement]
32
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| Existing Holder: | |||
| CHUNG YIK LEE | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Registration Rights Agreement]
33
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| Existing Holder: | |||
| LUXI LI | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Registration Rights Agreement]
34
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| Existing Holder: | |||
| SEK YAN HO | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Registration Rights Agreement]
35
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| Existing Holder: | |||
| CHIU YI ZOE TSE | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Registration Rights Agreement]
36
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above.
| New Holder: | |||
| ASTRUM SPACE HOLDING INC | |||
| By: | |||
| Name: | |||
| Title: | |||
[Signature Page to Registration Rights Agreement]
37
SCHEDULE 1
| 1. | Black Spade Sponsor LLC III |
Address: c/o Black Spade Acquisition III Co
Ste 2902
29/F The Centrium 60 Wyndham Road
Central, Hong Kong
Attention: Dennis Tam
E-mail:
| 2. | Chi Wai Dennis Tam |
Address: c/o Black Spade Acquisition III Co
Ste 2902
29/F The Centrium 60 Wyndham Road
Central, Hong Kong
Attention: Dennis Tam
E-mail:
| 3. | Shing Joe Kester Ng |
Address:
Attention: Shing Joe Kester Ng
E-mail:
| 4. | Richard Kirby Taylor |
Address:
Attention: Richard Kirby Taylor
E-mail:
| 5. | Russell William Galbut |
Address:
Attention: Russell William Galbut
E-mail:
| 6. | Robert Steven Moore |
Address:
Attention: Robert Steven Moore
E-mail:
38
| 7. | Po Yi Patsy Chan |
Address:
Attention: Po Yi Patsy Chan
E-mail:
| 8. | Wing Hong Sammy Hsieh |
Address:
Attention: Wing Hong Sammy Hsieh
E-mail:
| 9. | Yuen Wai Samuel Tsang |
Address:
Attention: Yuen Wai Samuel Tsang
E-mail:
| 10. | Chung Yik Lee |
Address: Suite 2902, 29/F, The Centrium
60 Wyndham Street,
Central, Hong Kong
Attention: Chung Yik Lee
E-mail:
| 11. | Luxi Li |
Address: Suite 2902, 29/F, The Centrium
60 Wyndham Street,
Central, Hong Kong
Attention: Luxi Li
E-mail:
| 12. | Sek Yan Ho |
Address: Suite 2902, 29/F, The Centrium
60 Wyndham Street,
Central, Hong Kong
Attention: Sek Yan Ho
E-mail:
| 13. | Chiu Yi Zoe Tse |
Address: Suite 2902, 29/F, The Centrium
60 Wyndham Street,
Central, Hong Kong
Attention: Chiu Yi Zoe Tse
E-mail:
39
| 14. | Cohen & Company Capital Markets, a division of Cohen & Company Securities, LLC |
Address: 3 Columbus Circle, 24th Floor
New York, NY 10019
Attn: General Counsel
Email:
| 15. | Chardan Capital Markets, LLC |
Address: 17 State Street, Suite 2130
New York NY 10004
40
EXHIBIT
Addendum Agreement
This Addendum Agreement (“Addendum Agreement”) is executed on , 20 , by the undersigned (the “New Holder”) pursuant to the terms of that certain Amended and Restated Registration Rights Agreement dated as of [●], 2026 (the “Agreement”), by and among [●] (f/k/a Black Spade Acquisition III Co), an exempted company incorporated with limited liability under the laws of the Cayman Islands, having its registered office at [●] (the “Company”) and each of the Persons listed on Schedule 1 thereto (each a “Holder”). Capitalized terms used but not defined in this Addendum Agreement shall have the respective meanings ascribed to such terms in the Agreement. By the execution of this Addendum Agreement, the New Holder agrees as follows:
Acknowledgment. The New Holder acknowledges that the New Holder is acquiring certain Registrable Securities (as defined in the Agreement) as a transferee of such Registrable Securities from a party in such party’s capacity as a holder of Registrable Securities under the Agreement, and after such transfer, the New Holder shall be considered a “Holder” and a holder of Registrable Securities for all purposes under the Agreement.
Agreement. The New Holder hereby (a) agrees that the Registrable Securities shall be bound by and subject to the terms of the Agreement and (b) adopts the Agreement with the same force and effect as if the New Holder were originally a party thereto.
Notice. Any notice required or permitted by the Agreement shall be given to the New Holder at the address or email address listed below the New Holder’s signature below.
| NEW HOLDER: | ACCEPTED AND AGREED: | |||
| Print Name: | [●] (f/k/a Black Spade Acquisition III Co) | |||
| By: | By: | |||
| Address: | ||||
| Email: | ||||
41
Exhibit 10.4
FORM OF PLAN OF MERGER
THIS PLAN OF MERGER is made on _________________ 2026.
BETWEEN
| (a) | Black Spade Acquisition III Co, an exempted company incorporated with limited liability under the laws of the Cayman Islands on August 21, 2025, with its registered office situated at the office of Appleby Global Services (Cayman) Limited, Suite 210, 2nd Floor, Windward III, Regatta Office Park, PO Box 500, Grand Cayman KY1-1106, Cayman Islands (“BIII” or the “Merger Surviving Company”); and |
| (b) | Astrum Space Inc, an exempted company incorporated with limited liability under the laws of the Cayman Islands on May 13, 2026, with its registered office situated at the office of Ascentium (Cayman) Limited, 4th Floor, Harbour Place, 103 South Church Street, P.O. Box 10240, Grand Cayman KY1-1002, Cayman Islands (the “Merging Company” and together with the Merger Surviving Company, the “Constituent Companies”). |
WHEREAS
| (a) | The Merging Company and BIII have agreed to merge (the “Merger”) on the terms and conditions contained or referred to in a business combination agreement, dated as of August 27, 2026 as may be amended and modified from time to time, the “Agreement”), between BIII, the Merging Company and Astrum Networks Pte. Ltd., a private company limited by shares incorporated under the laws of Singapore (“Astrum Singapore”), a copy of which is attached as Appendix I to this Plan of Merger, and under the provisions of Part 16 of the Companies Act (As Revised) of the Cayman Islands (the “Companies Act”), pursuant to which the Merging Company will merge with and into BIII and cease to exist, and the Merger Surviving Company will continue as the surviving company in the Merger at the Merger Effective Time (as defined below). |
| (b) | Astrum Space Holding Inc, as the sole shareholder of the Merging Company, and the shareholders of the Merger Surviving Company have authorised this Plan of Merger on the terms and subject to the conditions set forth herein and otherwise in accordance with the Companies Act. |
| (c) | Terms used in this Plan of Merger and not otherwise defined in this Plan of Merger shall have the meanings given to them in the Agreement. |
INTERPRETATION
| 1. | The following rules apply in this Plan of Merger unless the context requires otherwise: |
| (a) | Headings are for convenience only and do not affect interpretation. |
| (b) | The singular includes the plural and the converse. |
| (c) | A gender includes all genders. |
| (d) | Where a word or phrase is defined, its other grammatical forms have a corresponding meaning. |
| (e) | A reference to any agreement, deed or other document (or any provision of it), includes it as amended, varied, supplemented, extended, replaced, restated or transferred from time to time. |
| (f) | A reference to any legislation (or any provision of it) includes a modification or re-enactment of it, a legislative provision substituted for it and any regulation or statutory instrument issued under it. |
APPENDIX
Appendix I forms part of this Plan of Merger and shall have effect as if set out in full in the body of this Plan of Merger. Any reference to this Plan of Merger includes Appendix I.
Appendix II includes a copy of the Second A&R M&A (as defined below) which will be the memorandum of association and articles of association of the Merger Surviving Company with effect from the Merger Effective Time.
CONSTITUENT COMPANIES
| 2. | The constituent companies (as defined in the Companies Act) to the Merger are the Merging Company and BIII. |
NAME OF THE SURVIVING COMPANY
| 3. | The surviving company (as defined in the Companies Act) is the Merger Surviving Company. At the Merger Effective Time, the name of the surviving company shall be Astrum Space Company. |
REGISTERED OFFICE
| 4. | The registered office of BIII at the time of this Plan of Merger is at the office of Appleby Global Services (Cayman) Limited, Suite 210, 2nd Floor, Windward III, Regatta Office Park, PO Box 500, Grand Cayman KY1-1106, Cayman Islands. The registered office of the Merging Company is at the office of Ascentium (Cayman) Limited, 4th Floor, Harbour Place, 103 South Church Street, P.O. Box 10240, Grand Cayman KY1-1002, Cayman Islands. At the Merger Effective Time, the Merger Surviving Company shall maintain its registered office at the office of Appleby Global Services (Cayman) Limited, [Suite 210, 2nd Floor, Windward III, Regatta Office Park, PO Box 500, Grand Cayman KY1-1106, Cayman Islands. |
AUTHORIZED AND ISSUED SHARE CAPITAL
| 5. | Immediately prior to the Merger Effective Time, the authorized share capital of the Merging Company is US$50,000 divided into 5,000,000 ordinary shares of a par value of US$0.01 each (“Merging Company Shares”), of which one (1) Merging Company Share has been issued and is fully paid and outstanding. |
| 6. | Immediately prior to the Merger Effective Time, the authorized share capital of BIII is US$16,650 divided into (a) 150,000,000 Class A ordinary shares of a par value of US$0.0001 each (“BIII Class A Ordinary Shares”), (b) 15,000,000 Class B ordinary shares of a par value of US$0.0001 each (“BIII Class B Ordinary Shares”), and (c) 1,500,000 preference shares of a par value of US$0.0001 each (“BIII Preference Shares”), of which ________________ BIII Class A Ordinary Shares have been issued and are fully paid and outstanding, and no BIII Class B Ordinary Shares or BIII Preference Shares are issued and outstanding. |
| 7. | At the Merger Effective Time, the authorized share capital of the Merger Surviving Company shall be [US$[*] divided into (a) [*] Class A ordinary shares of a par value of US$0.0001 each (“Merger Surviving Company Class A Ordinary Shares”), and (b) 1,500,000 preference shares of a par value of US$0.0001 each (“Merger Surviving Company Preference Shares” and together with the Merger Surviving Company Class A Ordinary Shares, collectively the “Merger Surviving Company Shares”)]. |
TERMS AND CONDITIONS OF THE MERGER
| 8. | The terms and conditions of the Merger, including the number of shares in the Merging Company to be converted, and the manner and basis of converting shares in the Merging Company into shares in the Merger Surviving Company or other property as provided in Section 233(5) of the Companies Act, including into Merging Surviving Company Class A Ordinary Shares, are set out in Section 2.07 of the Agreement pursuant to the below: |
| a. | each Eligible BIII Share (as defined in the Agreement) issued and outstanding immediately prior to the Merger Effective Time, including the BIII Class A Ordinary Shares issued as a result of the conversion of all BIII Class B Ordinary Shares then outstanding, shall remain issued and outstanding and shall not be affected by the Merger, and each Eligible BIII Shareholder (as defined in the Agreement) shall continue to hold such Eligible BIII Shares as Merger Surviving Company Class A Ordinary Shares; |
| b. | each BIII Class A Ordinary Share that is issued and outstanding and held immediately prior to the Merger Effective Time by BIII as treasury shares, including shares redeemed by BIII in connection with the exercise of redemption rights of BIII’s shareholders (if any) shall be cancelled and cease to exist, and no consideration shall be paid or payable with respect thereto; |
| c. | each BIII Redeeming Share (as defined in the Agreement) that is issued and outstanding immediately prior to the Merger Effective Time shall be cancelled and cease to exist and shall thereafter represent only the right to be paid a pro rata share of the BIII Shareholder Redemption Amount (as defined in the Agreement) in accordance with the amended and restated memorandum and articles of association of BIII; and |
| d. | the 1 (one) Merging Company Share issued and outstanding immediately prior to the Merger Effective Time shall be cancelled in exchange for the right to receive 100,000,000 validly issued, fully paid and non-assessable Merger Surviving Company Class A Ordinary Shares. |
| 9. | At the Merger Effective Time, the rights and restrictions attaching to Merger Surviving Company Shares are set out in the second amended and restated memorandum of association and articles of association of the Merger Surviving Company, in the form attached as Appendix II to this Plan of Merger (the “Second A&R M&A”). |
EFFECTIVE TIME
| 10. | The Merger shall take effect on the date on which this Plan of Merger is registered by the Registrar of Companies in the Cayman Islands (the “Registrar”) in accordance with Section 233(13) of the Companies Act unless the Constituent Companies shall deliver a notice to the Registrar signed by a director of each of the Constituent Companies specifying a later time and date in accordance with Section 234 of the Companies Act, in which case the effective time of the Merger shall be such later time and date specified in such notice to the Registrar (the “Merger Effective Time”). |
PROPERTY
| 11. | At the Merger Effective Time, all the rights, property of every description, including choses in action, and the business, undertaking, goodwill, benefits, immunities and privileges of each of the Constituent Companies shall immediately vest in the Merger Surviving Company which shall be liable for and subject, in the same manner as the Constituent Companies, to all mortgages, charges or security interests and all contracts, obligations, claims, debts and liabilities of each of the Constituent Companies. |
MEMORANDUM OF ASSOCIATION AND ARTICLES OF ASSOCIATION
| 12. | At the Merger Effective Time, the memorandum of association and articles of association of the Merging Company, as in effect immediately prior to the Merger Effective Time, shall cease and the memorandum of association and articles of association of the Merger Surviving Company shall be in the form of the Second A&R M&A. |
DIRECTORS’ BENEFITS
| 13. | No amounts or benefits are or shall be paid or payable to any director(s) of either of the Constituent Companies consequent upon the Merger becoming effective. |
DIRECTORS OF THE SURVIVING COMPANY
| 14. | At the Merger Effective Time, the name and address of the director[s] of the Merger Surviving Company is/are as follows: |
| NAME | ADDRESS |
| [*] | [*] |
| [*] | [*] |
SECURED CREDITORS
| 15. | Neither of the Constituent Companies has any secured creditors1 and neither Constituent Company has granted any fixed or floating security interests that are outstanding as at the date of this Plan of Merger. |
1 Constituent companies to confirm.
AMENDMENTS AND TERMINATION
| 16. | At any time prior to the Merger Effective Time, this Plan of Merger may be amended by the board of directors of both BIII and the Merging Company in accordance with section 235(1) of the Companies Act, including to: |
| (a) | change the Merger Effective Time provided that the new merger effective time shall not be a date later than the ninetieth (90th) day after the date of registration of this Plan of Merger by the Registrar; and |
| (b) | effect any changes to this Plan of Merger which the directors of both BIII and the Merging Company deem advisable, provided that such changes do not materially adversely affect any rights of the shareholders of BIII or the Merging Company, as determined by the directors of both BIII and the Merging Company, respectively. |
| 17. | At any time prior to the Merger Effective Time, this Plan of Merger may be terminated by the board of directors of both BIII and the Merging Company, provided that such termination is in accordance with Section 10.01 of the Agreement. |
| 18. | If this Plan of Merger is amended or terminated in accordance with Clauses 16 or 17 of this Plan of Merger after it has been filed with the Registrar but before it has become effective, the Constituent Companies shall file notice of the amendment or termination of this Plan of Merger (as applicable) with the Registrar in accordance with Sections 235(2) and 235(4) of the Companies Act and shall distribute copies of such notice in accordance with section 235(3) of the Companies Act. |
APPROVAL AND AUTHORIZATION
| 19. | This Plan of Merger has been approved by the board of directors of each of the Merging Company and BIII pursuant to section 233(3) of the Companies Act. |
| 20. | This Plan of Merger has been authorized by the shareholders of each of the Merging Company and BIII pursuant to section 233(6) of the Companies Act. |
COUNTERPARTS
| 21. | This Plan of Merger may be executed and delivered (including by email of PDF or scanned versions or by facsimile transmission) in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. |
GOVERNING LAW
| 22. | This Plan of Merger shall be governed by and construed in accordance with the laws of the Cayman Islands. The Constituent Companies hereby agree to submit any dispute arising from this Plan of Merger to the exclusive jurisdiction of the courts of the Cayman Islands. |
[Signature pages follow.]
IN WITNESS whereof this Plan of Merger has been entered into by the parties on the day and year first above written.
|
SIGNED for and on behalf of |
) | ||
| Black Spade Acquisition III Co | ) | ||
| ) | Duly Authorised Signatory | ||
| ) | |||
| ) | Name: | ||
| ) | |||
| ) | Title: | Director | |
|
SIGNED for and on behalf of Astrum SPACE INC |
) | ||
| ) | |||
| ) | Duly Authorised Signatory | ||
| ) | |||
| ) | Name: | ||
| ) | |||
| ) | Title: | Director | |
Appendix I
Business Combination Agreement
Appendix II
Second Amended and Restated Memorandum of Association and Articles of Association
Exhibit 10.5
FORM OF LISTING ARTICLES
THE COMPANIES ACT (AS REVISED)
of the cayman islands
company limited by shares
SECOND Amended and Restated MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
Astrum Space INC
(Adopted by Special Resolution dated [*] 2026 and effective on [*])
i
THE COMPANIES Act (as revised)
of the cayman islands
company limIted by shares
SECOND Amended and Restated MEMORANDUM OF ASSOCIATION
of
ASTRUM SPACE INC
(Adopted by Special Resolution dated [*] 2026 and effective on [*])
| 1. | The name of the Company is Astrum Space Inc. |
| 2. | The registered office of the Company will be situated at the offices of Appleby Global Services (Cayman) Limited, Suite 210, 2nd Floor, Windward III, Regatta Office Park, PO Box 500, Grand Cayman KY1-1106, Cayman Islands or at such other place in the Cayman Islands as the Directors may from time to time decide. |
| 3. | The objects for which the Company is established are unrestricted and the Company shall have full power and authority to carry out any object that is not prohibited by the laws of the Cayman Islands. |
| 4. | The liability of each Member is limited to the amount, if any, unpaid on such Member's shares. |
| 5. | The share capital of the Company is US$[*] divided into [*] Class A ordinary shares of a par value of US$0.0001 each, [*] Class B ordinary shares of a par value of US$0.0001 each and [*] preference shares of a par value of US$0.0001 each. |
| 6. | The Company has power to register by way of continuation as a body corporate limited by shares under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman Islands. |
| 7. | Capitalised terms that are not defined in this Memorandum of Association bear the respective meanings given to them in the Articles of Association of the Company. |
ii
THE COMPANIES Act (As Revised)
of the cayman islands
company limited by shares
SECOND Amended and Restated ARTICLES OF ASSOCIATION
of
ASTRUM SPACE INC
(Adopted by Special Resolution dated [*] 2026 and effective on [*])
| 1. | INTERPRETATION |
| 1.1 | In the Articles, Table A in the First Schedule to the Statute does not apply and, unless there is something in the subject or context inconsistent therewith: |
Affiliate: means, with respect to a Person, any other Person that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person, and (a) in the case of a natural person, shall include such Person's spouse, parents, children, siblings, mother-in-law and father-in-law and brothers and sisters-in-law, whether by blood, marriage or adoption or anyone residing in such Person's home, a trust for the benefit of any of the foregoing, or a corporation, a company, a partnership or other entity wholly or jointly owned by any of the foregoing and (b) in the case of an entity, shall include a corporation, a company, a partnership or other entity which directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such entity. The term Affiliated has meaning correlative to the foregoing;
Applicable Law: means, with respect to any Person, all applicable provisions of all constitutions, treaties, statutes, laws (including the common law), codes, rules, regulations, ordinances or orders of any Governmental Authority, and any orders, decisions, injunctions, judgments, awards and decrees of or agreements with any Governmental Authority;
Articles: means these articles of association of the Company;
1
[Audit Committee: means the audit committee of the board of Directors of the Company formed pursuant to the Articles;]
Auditor: means the Person for the time being performing the duties of auditor of the Company (if any);
Class A Share: means a Class A ordinary share of a par value of US$0.0001 in the share capital of the Company;
Class B Share: means a Class B ordinary share of a par value of US$0.0001 in the share capital of the Company;
Class B Share Conversion: means the conversion of Class B Shares in accordance with Article 18;
Class or Classes: means any class or classes of Shares as may from time to time be issued by the Company;
Company: means the above named company;
[Compensation Committee: means the compensation committee of the board of Directors of the Company established pursuant to the Articles, if any;]
Control: means with respect to a Person, the power or authority, whether exercised or not, to direct the business, management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; provided that such power or authority shall conclusively be presumed to exist upon possession of beneficial ownership or power to direct the vote of more than fifty per cent (50%) of the votes entitled to be cast at a meeting of the members or shareholders of such Person or power to control the composition of a majority of the board of directors of such Person. The terms Controlled and Controlling have meanings correlative to the foregoing;
Designated Stock Exchange: means any national securities exchange or automated system on which the Company's securities are listed for trading, including the New York Stock Exchange, the Nasdaq Stock Market LLC or any over-the-counter (OTC) market;
Directors: means the directors for the time being of the Company;
Dividend: means any dividend (whether interim or final) resolved to be paid on Shares pursuant to the Articles;
Electronic Record: has the same meaning as in the Electronic Transactions Act;
2
Electronic Transactions Act: means the Electronic Transactions Act (As Revised) of the Cayman Islands;
Governmental Authority: means any nation or government or any province or state or any other political subdivision thereof, or any entity, authority or body exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any court, tribunal, arbitrator, government authority, agency, department, board, commission or instrumentality or any political subdivision thereof, and any self-regulatory organisation;
Indemnified Person: has the meaning ascribed to such term in Article 49.1;
Initial Conversion Ratio: has the meaning ascribed to such term in Article 18.1;
Member: has the same meaning as in the Statute;
Memorandum: means the memorandum of association of the Company;
[Nominating and Corporate Governance Committee: means the nominating and corporate governance committee of the board of Directors of the Company established pursuant to the Articles, if any;]
Ordinary Resolution: means a resolution:
| (a) | passed by a simple majority of the Members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of the Company and where a poll is taken regard shall be had in computing a majority to the number of votes to which each Member is entitled; or |
| (b) | approved in writing by all of the Members entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Members and the effective date of the resolution so adopted shall be the date on which the instrument or the last of such instruments, if more than one, is executed; |
Ordinary Shares: means together the Class A Shares and Class B Shares;
Person: means any individual, corporation, company, limited liability company, partnership, limited partnership, proprietorship, association, joint venture, institution, public benefit corporation, firm, trust, estate or other enterprise or entity (whether or not having a separate legal personality) or Governmental Authority or any of them as the context so requires, other than in respect of a Director or officer of the Company, in which circumstances Person shall mean any individual or entity permitted to act as such in accordance with the laws of the Cayman Islands;
3
Preference Share: means a preference share of a par value of US$0.0001 in the share capital of the Company;
Register of Members: means the register of Members maintained in accordance with the Statute and includes (except where otherwise stated) any branch or duplicate register of Members;
Registered Office: means the registered office for the time being of the Company;
Seal: means the common seal of the Company and includes every duplicate seal;
SEC: means the United States Securities and Exchange Commission;
Series: means a series of a Class as may from time to time be issued by the Company;
Share: means a Class A Share, a Class B Share or a Preference Share and includes a fraction of a share in the Company;
Share Premium Account: means the share premium account established in accordance with the Articles and the Statute;
Special Resolution: means a resolution that is described as such in its terms:
| (a) | passed by a majority of not less than two-thirds of such Members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of the Company of which notice specifying the intention to propose the resolution as a special resolution has been duly given and where a poll is taken regard shall be had in computing a majority to the number of votes to which each Member is entitled; or |
| (b) | approved in writing by all of the Members entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Members and the effective date of the special resolution so adopted shall be the date on which the instrument or the last of such instruments, if more than one, is executed; |
Statute: means the Companies Act (As Revised) of the Cayman Islands;
Treasury Share: means a Share held in the name of the Company as a treasury share in accordance with the Statute; and
4
US Exchange Act: means the United States Securities Exchange Act of 1934, as amended, or any similar US federal statute and the rules and regulations of the SEC thereunder, all as the same shall be in effect at the time.
| 1.2 | In these Articles: |
| (a) | words importing the singular number include the plural number and vice versa; |
| (b) | words importing the masculine gender include the feminine gender; |
| (c) | words importing persons include corporations and any other legal or natural persons; |
| (d) | “written” and “in writing” include all modes of representing or reproducing words in visible form, including in the form of an Electronic Record; |
| (e) | “shall” shall be construed as imperative and “may” shall be construed as permissive; |
| (f) | references to provisions of any law or regulation shall be construed as references to those provisions as amended, modified, re-enacted or replaced; |
| (g) | any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; |
| (h) | the term “and/or” is used herein to mean both “and” as well as “or.” The use of “and/or” in certain contexts in no respect qualifies or modifies the use of the terms “and” or “or” in others. The term “or” shall not be interpreted to be exclusive and the term “and” shall not be interpreted to require the conjunctive (in each case, unless the context otherwise requires); |
| (i) | headings are inserted for reference only and shall be ignored in construing the Articles; |
| (j) | any requirements as to delivery under the Articles include delivery in the form of an Electronic Record; |
| (k) | any requirements as to execution or signature under the Articles including the execution of the Articles themselves can be satisfied in the form of an electronic signature as defined in the Electronic Transactions Act; |
| (l) | sections 8 and 19(3) of the Electronic Transactions Act shall not apply; |
5
| (m) | the term “clear days” in relation to the period of a notice means that period excluding the day when the notice is received or deemed to be received and the day for which it is given or on which it is to take effect; |
| (n) | the term “holder” in relation to a Share means a Person whose name is entered in the Register of Members as the holder of such Share; |
| (o) | reference to any determination by the Directors shall be construed as a determination by the Directors in their sole and absolute discretion and shall be applicable either generally or in any particular case; and |
| (p) | reference to a dollar or dollars or USD or US$ or $ and to a cent or cents is reference to dollars and cents of the United States of America. |
| 2. | COMMENCEMENT OF BUSINESS |
| 2.1 | The business of the Company may be commenced as soon after incorporation of the Company as the Directors shall see fit. |
| 2.2 | The Directors may pay, out of the capital or any other monies of the Company, all expenses incurred in or about the formation and establishment of the Company, including the expenses of registration. |
| 3. | ISSUE OF SHARES AND OTHER SECURITIES |
| 3.1 | Subject to the provisions, if any, in the Memorandum (and to any direction that may be given by the Company in general meeting) and, where applicable, the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law, and without prejudice to any rights attached to any existing Shares, the Directors may allot, issue, grant options over or otherwise dispose of Shares (including fractions of a Share) with or without preferred, deferred or other rights or restrictions, whether in regard to Dividends or other distributions, voting, return of capital or otherwise and to such Persons, at such times and on such other terms as they think proper, and may also (subject to the Statute and the Articles) vary such rights, save that the Directors shall not allot, issue, grant options over or otherwise dispose of Shares (including fractions of a Share) to the extent that it may affect the ability of the Company to carry out a Class B Share Conversion set out in the Articles. |
| 3.2 | The Company may issue rights, options, warrants or convertible securities or securities of similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any class of Shares or other securities in the Company, upon such terms as the Directors may from time to time determine and for such purposes the Directors may reserve an appropriate number of Shares for the time being unissued. |
6
| 3.3 | The Company may issue units of securities in the Company, which may be comprised of whole or fractional Shares, rights, options, warrants or convertible securities or securities of similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any class of Shares or other securities in the Company, upon such terms as the Directors may from time to time determine and for such purposes the Directors may reserve an appropriate number of Shares for the time being unissued. |
| 3.4 | The Company shall not issue Shares to bearer. |
| 3.5 | Subject to Article 10, the Directors, or the Members by Ordinary Resolution, may authorise the division of Shares into any number of Classes and sub-classes and Series and sub-series and the different Classes and sub-classes and Series and sub-series shall be authorised, established and designated (or re-designated as the case may be) and the variations in the relative rights (including, without limitation, voting, dividend and redemption rights), restrictions, preferences, privileges and payment obligations as between the different Classes and Series (if any) may be fixed and determined by the Directors or the Members by Ordinary Resolution. |
| 3.6 | The Directors may refuse to accept any application for Shares, and may accept any application in whole or in part, for any reason or for no reason. |
| 3.7 | The Directors may issue fractions of a Share and, if so issued, a fraction of a Share shall be subject to and carry the corresponding fraction of liabilities (whether with respect to nominal or par value, premium, contributions, calls or otherwise), limitations, preferences, privileges, qualifications, restrictions, rights (including, without prejudice to the generality of the foregoing, voting and participation rights) and other attributes of a whole Share. If more than one fraction of a Share of the same Class is issued to or acquired by the same Member such fractions shall be accumulated. |
| 4. | Register of Members |
| 4.1 | The Company shall maintain or cause to be maintained the Register of Members in accordance with the Statute at such place or places as the Directors may from time to time determine. In the absence of any such determination, the Register of Members shall be kept at the Registered Office. Title to Shares may be evidenced and transferred in accordance with the laws applicable to and the rules and regulations of the Designated Stock Exchange. |
| 4.2 | The Directors may determine that the Company shall maintain one or more branch registers of Members in accordance with the Statute. The Directors may also determine which register of Members shall constitute the principal register and which shall constitute the branch register or registers, and to vary such determination from time to time. |
7
| 5. | Closing of Register of Members or Fixing Record Date |
| 5.1 | For the purpose of determining Members entitled to notice of, or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any Dividend or other distribution, or in order to make a determination of Members for any other purpose, the Directors may, by any means in accordance with the requirements of the Designated Stock Exchange, provide that the Register of Members shall be closed for transfers for a stated period which shall not in any case exceed forty days. |
| 5.2 | In lieu of, or apart from, closing the Register of Members, the Directors may fix in advance or arrears a date as the record date for any such determination of Members entitled to notice of, or to vote at any meeting of the Members or any adjournment thereof, or for the purpose of determining the Members entitled to receive payment of any Dividend or other distribution, or in order to make a determination of Members for any other purpose. |
| 5.3 | If the Register of Members is not so closed and no record date is fixed for the determination of Members entitled to notice of, or to vote at, a meeting of Members or Members entitled to receive payment of a Dividend or other distribution, the date on which notice of the meeting is sent or the date on which the resolution of the Directors resolving to pay such Dividend or other distribution is passed, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Article, such determination shall apply to any adjournment thereof. |
| 6. | Certificates for Shares |
| 6.1 | A Member shall only be entitled to a share certificate if the Directors resolve that share certificates shall be issued. Share certificates representing Shares, if any, shall be in such form as the Directors may determine. Share certificates shall be signed by one or more Directors or other Persons authorised by the Directors. The Directors may authorise certificates to be issued with the authorised signature(s) affixed by mechanical process. All certificates for Shares shall be consecutively numbered or otherwise identified and shall specify the Shares to which they relate. All certificates surrendered to the Company for transfer shall be cancelled and, subject to the Articles, no new certificate shall be issued until the former certificate representing a like number of relevant Shares shall have been surrendered and cancelled. |
| 6.2 | The Company shall not be bound to issue more than one certificate for Shares held jointly by more than one Person and delivery of a certificate to one joint holder shall be a sufficient delivery to all of them. |
| 6.3 | If a share certificate is defaced, worn out, lost or destroyed, it may be renewed on such terms (if any) as to evidence and indemnity and on the payment of such expenses reasonably incurred by the Company in investigating evidence, as the Directors may prescribe, and (in the case of defacement or wearing out) upon delivery of the old certificate. |
8
| 6.4 | Every share certificate sent in accordance with the Articles will be sent at the risk of the Member or other Person entitled to the certificate. The Company will not be responsible for any share certificate lost or delayed in the course of delivery. |
| 6.5 | Every share certificate of the Company shall bear legends required under Applicable Law, including the US Exchange Act. |
| 7. | Transfer of Shares |
| 7.1 | Subject to the Articles and the rules or regulations of the Designated Stock Exchange or any relevant rules of the SEC or securities laws (including, but not limited to, the US Exchange Act), a Member may transfer all or any of his or her Shares by an instrument of transfer. |
| 7.2 | The instrument of transfer of any Share shall be in (a) writing in any usual or common form, (b) such form as is prescribed by the Designated Stock Exchange or any relevant rules of the SEC or securities laws, or (c) any other form as the Directors may approve, and shall be executed by or on behalf of the transferor (and if in respect of a nil or partly paid-up Share or the Directors so require, signed by or on behalf of the transferee) and shall be accompanied by the certificate (if any) of the Shares to which it relates and such other evidence as the Directors may reasonably require to show the right of the transferor to make the transfer. The transferor shall be deemed to remain the holder of a Share until the name of the transferee is entered in the Register of Members in respect of the relevant Share. |
| 7.3 | Subject to the terms of issue thereof and the rules or regulations of the Designated Stock Exchange or any relevant rules of the SEC or securities laws (including, but not limited to, the US Exchange Act), the Directors may determine to decline to register any transfer of Shares without assigning any reason therefor. If the Shares in question were issued in conjunction with rights, options, units or warrants issued pursuant to the Articles on terms that one cannot be transferred without the other, the Directors shall refuse to register the transfer of any such Share without evidence satisfactory to them of the like transfer of such rights, option, unit or warrant. |
| 7.4 | The registration of transfers may be suspended at such times and for such periods as the Directors may from time to time determine. |
| 7.5 | All instruments of transfer that are registered shall be retained by the Company, but any instrument of transfer that the Directors decline to register shall (except in any case of fraud) be returned to the Person depositing the same. |
9
| 8. | Redemption, Repurchase and Surrender of Shares |
| 8.1 | Subject to the provisions of the Statute and the rules of the Designated Stock Exchange, the Company may: |
| (a) | issue Shares that are to be redeemed or are liable to be redeemed at the option of the Member or the Company in such manner and upon such other terms as the Directors may determine before the issuance of the Shares; and |
| (b) | purchase its own Shares (including any redeemable Shares) in such manner and on such other terms as the Directors may determine and agree with the relevant Member. |
| 8.2 | The Company may make a payment in respect of the redemption or purchase of its own Shares in any manner permitted by the Statute, including out of capital. |
| 8.3 | Any Share in respect of which notice of redemption has been given shall not be entitled to participate in the profits of the Company in respect of the period after the date specified as the date of redemption in the notice of redemption. |
| 8.4 | The redemption, purchase or surrender of any Share shall not be deemed to give rise to the redemption, purchase or surrender of any other Share. |
| 8.5 | The Directors may when making payments in respect of redemption or purchase of Shares, if authorised by the terms of issue of the Shares being redeemed or purchased or with the agreement of the holder of such Shares, make such payment either in cash or in specie including, without limitation, interests in a special purpose vehicle holding assets of the Company or holding entitlement to the proceeds of assets held by the Company or in a liquidating structure. |
| 8.6 | The Directors may accept the surrender for no consideration of any fully paid Share (including any redeemable share). |
| 9. | Treasury Shares |
| 9.1 | The Directors may, prior to the purchase, redemption or surrender of any Share, determine that such Share shall be held as a Treasury Share. |
| 9.2 | The Directors may determine to cancel a Treasury Share or transfer a Treasury Share on such terms as they think proper (including, without limitation, for nil consideration). |
| 9.3 | No Dividend may be declared or paid, and no other distribution (whether in cash or otherwise) of the Company's assets (including any distribution of assets to Members on a winding up) may be declared or paid in respect of a Treasury Share. |
10
| 9.4 | The Company shall be entered in the Register of Members as the holder of the Treasury Shares provided that: |
| (a) | the Company shall not be treated as a Member for any purpose and shall not exercise any right in respect of the Treasury Shares, and any purported exercise of such a right shall be void; and |
| (b) | a Treasury Share shall not be voted, directly or indirectly, at any meeting of the Company and shall not be counted in determining the total number of issued Shares at any given time, whether for the purposes of the Articles or the Statute, save that an allotment of Shares as fully paid bonus shares in respect of a Treasury Share is permitted and Shares allotted as fully paid bonus shares in respect of a Treasury Share shall be treated as Treasury Shares. |
| 10. | Variation of Share Rights |
| 10.1 | If at any time the share capital of the Company is divided into different classes of Shares, all or any of the rights attached to any class (unless otherwise provided by the terms of issue of the Shares of that class) may, whether or not the Company is being wound up, be varied without the consent of the holders of the issued Shares of that class where such variation is considered by the Directors not to have a material adverse effect upon such rights; otherwise, any such variation shall be made only with the consent in writing of the holders of not less than two-thirds of the issued Shares of that class, or with the approval of a resolution passed by a majority of not less than two-thirds of the votes cast at a separate meeting of the holders of the Shares of that class (other than with respect to a waiver of the provisions of the Article in respect of Class B Share Conversion hereof, which as stated therein shall only require the consent in writing of the holders of a majority of the issued Shares of that class). For the avoidance of doubt, the Directors reserve the right, notwithstanding that any such variation may not have a material adverse effect, to obtain consent from the holders of Shares of the relevant class. To any such meeting all the provisions of the Articles relating to general meetings shall apply mutatis mutandis, except that the necessary quorum shall be one or more Persons holding or representing by proxy at least one-third of the issued Shares of the class (but so that if at any adjourned meeting of such holders a quorum as above defined is not present, those Members who are present shall form a quorum) and that any holder of Shares of the class present in person or by proxy may demand a poll. |
| 10.2 | For the purposes of a separate class meeting, the Directors may treat two or more or all the classes of Shares as forming one class of Shares if the Directors consider that such class of Shares would be affected in the same way by the proposals under consideration, but in any other case shall treat them as separate classes of Shares. |
| 10.3 | The rights conferred upon the holders of the Shares of any Class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the Shares of that class, be deemed to be varied by the creation or issue of further Shares ranking pari passu therewith or Shares issued with preferred or other rights, any variation of the rights conferred upon the holders of Shares of any other Class, or the redemption or purchase of any Shares of any Class by the Company. |
11
| 11. | Commission on Sales of Shares |
The Company may, in so far as the Statute permits, pay a commission to any Person in consideration of his subscribing or agreeing to subscribe (whether absolutely or conditionally) or procuring or agreeing to procure subscriptions (whether absolutely or conditionally) for any Shares. Such commissions may be satisfied by the payment of cash and/or the issue of fully or partly paid-up Shares. The Company may also on any issue of Shares pay such brokerage as may be lawful.
| 12. | Non-Recognition of Trusts |
The Company shall not be bound by or compelled to recognise in any way (even when notified) any equitable, contingent, future or partial interest in any Share, or (except only as is otherwise provided by the Articles or the Statute) any other rights in respect of any Share other than an absolute right to the entirety thereof in the holder.
| 13. | Lien on Shares |
| 13.1 | The Company shall have a first and paramount lien on all Shares (whether fully paid-up or not) registered in the name of a Member (whether solely or jointly with others) for all debts, liabilities or engagements to or with the Company (whether presently payable or not) by such Member or his estate, either alone or jointly with any other Person, whether a Member or not, but the Directors may at any time declare any Share to be wholly or in part exempt from the provisions of this Article. The registration of a transfer of any such Share shall operate as a waiver of the Company's lien thereon. The Company's lien on a Share shall also extend to any amount payable in respect of that Share. |
| 13.2 | The Company may sell, in such manner as the Directors think fit, any Shares on which the Company has a lien, if a sum in respect of which the lien exists is presently payable, and is not paid within fourteen clear days after notice has been received or deemed to have been received by the holder of the Shares, or to the Person entitled to it in consequence of the death or bankruptcy of the holder, demanding payment and stating that if the notice is not complied with the Shares may be sold. |
| 13.3 | To give effect to any such sale the Directors may authorise any Person to execute an instrument of transfer of the Shares sold to, or in accordance with the directions of, the purchaser. The purchaser or his nominee shall be registered as the holder of the Shares comprised in any such transfer, and he shall not be bound to see to the application of the purchase money, nor shall his title to the Shares be affected by any irregularity or invalidity in the sale or the exercise of the Company's power of sale under the Articles. |
12
| 13.4 | The net proceeds of such sale after payment of costs shall be applied in payment of such part of the amount in respect of which the lien exists as is presently payable and any balance shall (subject to a like lien for sums not presently payable as existed upon the Shares before the sale) be paid to the Person entitled to the Shares at the date of the sale. |
| 14. | Calls on Shares |
| 14.1 | Subject to the terms of the allotment and issue of any Shares, the Directors may make calls upon the Members in respect of any monies unpaid on their Shares (whether in respect of par value or premium), and each Member shall (subject to receiving at least fourteen clear days' notice specifying the time or times of payment) pay to the Company at the time or times so specified the amount called on the Shares. A call may be revoked or postponed, in whole or in part, as the Directors may determine. A call may be required to be paid by instalments. A Person upon whom a call is made shall remain liable for calls made upon him notwithstanding the subsequent transfer of the Shares in respect of which the call was made. |
| 14.2 | A call shall be deemed to have been made at the time when the resolution of the Directors authorising such call was passed. |
| 14.3 | The joint holders of a Share shall be jointly and severally liable to pay all calls in respect thereof. |
| 14.4 | If a call remains unpaid after it has become due and payable, the Person from whom it is due shall pay interest on the amount unpaid from the day it became due and payable until it is paid at such rate as the Directors may determine (and in addition all expenses that have been incurred by the Company by reason of such non-payment), but the Directors may waive payment of the interest or expenses wholly or in part. |
| 14.5 | An amount payable in respect of a Share on issue or allotment or at any fixed date, whether on account of the par value of the Share or premium or otherwise, shall be deemed to be a call and if it is not paid all the provisions of the Articles shall apply as if that amount had become due and payable by virtue of a call. |
| 14.6 | The Directors may issue Shares with different terms as to the amount and times of payment of calls, or the interest to be paid. |
| 14.7 | The Directors may, if they think fit, receive an amount from any Member willing to advance all or any part of the monies uncalled and unpaid upon any Shares held by him, and may (until the amount would otherwise become payable) pay interest at such rate as may be agreed upon between the Directors and the Member paying such amount in advance. |
13
| 14.8 | No such amount paid in advance of calls shall entitle the Member paying such amount to any portion of a Dividend or other distribution payable in respect of any period prior to the date upon which such amount would, but for such payment, become payable. |
| 15. | Forfeiture of Shares |
| 15.1 | If a call or instalment of a call remains unpaid after it has become due and payable the Directors may give to the Person from whom it is due not less than fourteen clear days' notice requiring payment of the amount unpaid together with any interest which may have accrued and any expenses incurred by the Company by reason of such non-payment. The notice shall specify where payment is to be made and shall state that if the notice is not complied with the Shares in respect of which the call was made will be liable to be forfeited. |
| 15.2 | If the notice is not complied with, any Share in respect of which it was given may, before the payment required by the notice has been made, be forfeited by a resolution of the Directors. Such forfeiture shall include all Dividends, other distributions or other monies payable in respect of the forfeited Share and not paid before the forfeiture. |
| 15.3 | A forfeited Share may be sold, re-allotted or otherwise disposed of on such terms and in such manner as the Directors think fit and at any time before a sale, re-allotment or disposition the forfeiture may be cancelled on such terms as the Directors think fit. Where for the purposes of its disposal a forfeited Share is to be transferred to any Person the Directors may authorise some Person to execute an instrument of transfer of the Share in favour of that Person. |
| 15.4 | A Person any of whose Shares have been forfeited shall cease to be a Member in respect of them and shall surrender to the Company for cancellation the certificate for the Shares forfeited and shall remain liable to pay to the Company all monies which at the date of forfeiture were payable by him to the Company in respect of those Shares together with interest at such rate as the Directors may determine, but his liability shall cease if and when the Company shall have received payment in full of all monies due and payable by him in respect of those Shares. |
| 15.5 | A certificate in writing under the hand of one Director or officer of the Company that a Share has been forfeited on a specified date shall be conclusive evidence of the facts stated in it as against all Persons claiming to be entitled to the Share. The certificate shall (subject to the execution of an instrument of transfer) constitute a good title to the Share and the Person to whom the Share is sold or otherwise disposed of shall not be bound to see to the application of the purchase money, if any, nor shall his title to the Share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the Share. |
| 15.6 | The provisions of the Articles as to forfeiture shall apply in the case of non-payment of any sum which, by the terms of issue of a Share, becomes payable at a fixed time, whether on account of the par value of the Share or by way of premium as if it had been payable by virtue of a call duly made and notified. |
14
| 16. | Transmission of Shares |
| 16.1 | If a Member dies, the survivor or survivors (where he was a joint holder), or his legal personal representatives (where he was a sole holder), shall be the only Persons recognised by the Company as having any title to his Shares. The estate of a deceased Member is not thereby released from any liability in respect of any Share, for which he was a joint or sole holder. |
| 16.2 | Any Person becoming entitled to a Share in consequence of the death or bankruptcy or liquidation or dissolution of a Member (or in any other way than by transfer) may, upon such evidence being produced as may be required by the Directors, elect, by a notice in writing sent by him to the Company, either to become the holder of such Share or to have some Person nominated by him registered as the holder of such Share. If he elects to have another Person registered as the holder of such Share he shall sign an instrument of transfer of that Share to that Person. The Directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by the relevant Member before his death or bankruptcy or liquidation or dissolution or any other case than by transfer, as the case may be. |
| 16.3 | A Person becoming entitled to a Share by reason of the death or bankruptcy or liquidation or dissolution of a Member (or in any other case than by transfer) shall be entitled to the same Dividends, other distributions and other advantages to which he would be entitled if he were the holder of such Share. However, he shall not, before becoming a Member in respect of a Share, be entitled in respect of it to exercise any right conferred by membership in relation to general meetings of the Company and the Directors may at any time give notice requiring any such Person to elect either to be registered himself or to have some Person nominated by him be registered as the holder of the Share (but the Directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by the relevant Member before his death or bankruptcy or liquidation or dissolution or any other case than by transfer, as the case may be). If the notice is not complied with within ninety days of being received or deemed to be received (as determined pursuant to the Articles) the Directors may thereafter withhold payment of all Dividends, other distributions, bonuses or other monies payable in respect of the Share until the requirements of the notice have been complied with. |
| 17. | Share Rights |
With the exception that the holder of a Class B Share shall have the conversion rights referred to in Article 18 and except as otherwise specified in the Articles or required by law or the applicable rules of the Designated Stock Exchange, the rights attaching to all Class A Shares and Class B Shares shall rank pari passu in all respects, and the Class A Shares and Class B Shares shall vote together as a single class on all matters.
15
| 18. | Class B Share Conversion |
| 18.1 | Class B Shares shall convert into Class A Shares on a one-for-one basis (the Initial Conversion Ratio) at any time and from time to time at the option of the holder thereof. |
| 18.2 | The Initial Conversion Ratio shall be adjusted to account for any share capitalisation, subdivision (by share split, subdivision, exchange, rights issue, reclassification, recapitalisation or otherwise) or combination (by reverse share split, share consolidation, exchange, reclassification, recapitalisation or otherwise) or similar reclassification or recapitalisation of the Class A Shares in issue into a greater or lesser number of shares occurring after the original filing of the Articles without a proportionate and corresponding share capitalisation, subdivision, combination or similar reclassification or recapitalisation of the Class B Shares in issue. |
| 18.3 | Each Class B Share shall convert into its pro rata number of Class A Shares pursuant to this Article. The pro rata share for each holder of Class B Shares will be determined as follows: each Class B Share shall convert into such number of Class A Shares as is equal to the product of 1 multiplied by a fraction, the numerator of which shall be the total number of Class A Shares into which all of the Class B Shares in issue shall be converted pursuant to this Article and the denominator of which shall be the total number of Class B Shares in issue at the time of conversion. |
| 18.4 | References in this Article to converted, conversion or exchange shall mean the compulsory redemption without notice of Class B Shares of any Member and, on behalf of such Members, automatic application of such redemption proceeds in paying for such new Class A Shares into which the Class B Shares have been converted or exchanged at a price per Class B Share necessary to give effect to a conversion or exchange calculated on the basis that the Class A Shares to be issued as part of the conversion or exchange will be issued at par. The Class A Shares to be issued on an exchange or conversion shall be registered in the name of such Member or in such name as the Member may direct. |
| 18.5 | Notwithstanding anything to the contrary in this Article, in no event may any Class B Share convert into Class A Shares at a ratio that is less than one-for-one. |
| 19. | Amendments of Memorandum and Articles of Association and Alteration of Capital |
| 19.1 | The Company may by Ordinary Resolution: |
| (a) | increase its share capital by such sum to be divided into Shares of such classes and amount and with such rights, priorities and privileges annexed thereto as the Ordinary Resolution shall prescribe; |
16
| (b) | consolidate and divide all or any of its share capital into Shares of larger amount than its existing Shares; |
| (c) | convert all or any of its paid-up Shares into stock, and reconvert that stock into paid-up Shares of any denomination; |
| (d) | by subdivision of its existing Shares or any of them divide the whole or any part of its share capital into Shares of smaller amount than is fixed by the Memorandum or into Shares without par value; and |
| (e) | cancel any Shares that at the date of the passing of the Ordinary Resolution have not been taken or agreed to be taken by any Person and diminish the amount of its share capital by the amount of the Shares so cancelled. |
| 19.2 | All new Shares created in accordance with the provisions of the preceding Article shall be subject to the same provisions of the Articles with reference to the payment of calls, liens, transfer, transmission, forfeiture and otherwise as the Shares in the original share capital. |
| 19.3 | Subject to the provisions of the Statute, the provisions of the Articles as regards the matters to be dealt with by Ordinary Resolution, the Company may by Special Resolution: |
| (a) | change its name; |
| (b) | alter or add to the Articles; |
| (c) | alter or add to the Memorandum with respect to any objects, powers or other matters specified therein; and |
| (d) | reduce its share capital or any capital redemption reserve fund. |
| 20. | Offices and Place of Business |
Subject to the provisions of the Statute, the Company may by resolution of the Directors change the location of its Registered Office. The Company may, in addition to its Registered Office, maintain such other offices or places of business as the Directors determine.
| 21. | General Meetings |
| 21.1 | All general meetings other than annual general meetings shall be called extraordinary general meetings. |
17
| 21.2 | The Company may, but shall not (unless required by the Statute or, for so long as any Shares are traded on a Designated Stock Exchange, the rules or regulations of the Designated Stock Exchange) be obliged to, in each year hold a general meeting as its annual general meeting, and shall specify the meeting as such in the notices calling it. Any annual general meeting shall be held at such time and place as the Directors shall appoint. At these meetings the report of the Directors (if any) shall be presented. |
| 21.3 | The Company may, and any co-chief executive officer or the chairman of the board of Directors may call, general meetings, and, for the avoidance of doubt, Members shall not have the ability to call general meetings. |
| 21.4 | Members seeking to bring business before the annual general meeting or to nominate candidates for appointment as Directors at the annual general meeting must deliver notice to the principal executive offices of the Company not less than 120 calendar days before the date of the Company’s proxy statement released to Members in connection with the previous year’s annual general meeting or, if the Company did not hold an annual general meeting the previous year, or if the date of the current year's annual general meeting has been changed by more than 30 days from the date of the previous year’s annual general meeting, then the deadline shall be set by the Directors with such deadline being a reasonable time before the Company begins to print and send its related proxy materials. |
| 22. | Notice of General Meetings |
| 22.1 | At least five clear days' notice shall be given of any general meeting. Every notice shall specify the place, the day and the hour of the meeting and the general nature of the business to be conducted at the general meeting and shall be given in the manner hereinafter mentioned or in such other manner if any as may be prescribed by the Company by Ordinary Resolution to such Persons as are, under the Articles, entitled to receive such notices from the Company, provided that a general meeting of the Company shall, whether or not the notice specified in this Article has been given and whether or not the provisions of the Articles regarding general meetings have been complied with, be deemed to have been duly convened if it is so agreed: |
| (a) | in the case of an annual general meeting, by all of the Members entitled to attend and vote thereat; and |
| (b) | in the case of an extraordinary general meeting, by a majority in number of the Members having a right to attend and vote at the meeting, together holding not less than ninety-five per cent in par value of the Shares giving that right. |
| 22.2 | The accidental omission to give notice of a general meeting to, or the non-receipt of notice of a general meeting by, any Person entitled to receive such notice shall not invalidate the proceedings of that general meeting. |
18
| 23. | Proceedings at General Meetings |
| 23.1 | No business shall be transacted at any general meeting unless a quorum is present. Save as otherwise provided by the Articles, one or more Members holding at least a majority of the paid-up voting share capital of the Company present in person or by proxy and entitled to vote at that meeting shall form a quorum. |
| 23.2 | A Person may participate at a general meeting by conference telephone, video, a virtual platform or other communications equipment by means of which all the Persons participating in the meeting can communicate with each other. Participation by a Person in a general meeting in this manner is treated as presence in person at that meeting. |
| 23.3 | A meeting of the Members may be held by conference telephone, video, a virtual platform or other communications equipment by which all the Persons participating in the meeting can communicate with each other, and participation in such a general meeting in such manner shall constitute presence in person at such meeting. |
| 23.4 | A resolution (including a Special Resolution) in writing (in one or more counterparts) signed by or on behalf of all of the Members for the time being entitled to receive notice of and to attend and vote at general meetings (or, being corporations or other non-natural persons, signed by their duly authorised representatives) shall be as valid and effective as if the resolution had been passed at a general meeting of the Company duly convened and held. |
| 23.5 | If a quorum is not present within half an hour from the time appointed for the meeting to commence, the meeting shall stand adjourned to the same day in the next week at the same time and place or to such other day, time and/or place as the Directors may determine, and if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting to commence, the Members present shall be a quorum. |
| 23.6 | The Directors may, at any time prior to the time appointed for the meeting to commence, appoint any Person to act as chairman of a general meeting of the Company or, if the Directors do not make any such appointment, the chairman, if any, of the board of Directors shall preside as chairman at such general meeting. If there is no such chairman, or if he shall not be present within fifteen minutes after the time appointed for the meeting to commence, or is unwilling to act, the Directors present shall elect one of their number to be chairman of the meeting. |
| 23.7 | If no Director is willing to act as chairman or if no Director is present within fifteen minutes after the time appointed for the meeting to commence, the Members present shall choose one of their number to be chairman of the meeting. |
19
| 23.8 | The chairman may adjourn a meeting from time to time and from place to place either: |
| (a) | with the consent of a meeting at which a quorum is present (and shall if so directed by the meeting by Ordinary Resolution); or |
| (b) | without the consent of such meeting if, in his sole opinion, he considers it necessary to do so to: |
| (i) | secure the orderly conduct or proceedings of the meeting; or |
| (ii) | give all Persons present in person or by proxy and having the right to speak and/or vote at such meeting, the ability to do so, |
but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.
| 23.9 | When a general meeting is adjourned for thirty days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Otherwise it shall not be necessary to give any such notice of an adjourned meeting. |
| 23.10 | When a general meeting is postponed for thirty days or more, notice of the postponed meeting shall be given as in the case of an original meeting. Otherwise it shall not be necessary to give any such notice of a postponed meeting. All proxy forms submitted for the original general meeting shall remain valid for the postponed meeting. The Directors may postpone a general meeting which has already been postponed. |
| 23.11 | A resolution put to the vote of the meeting shall be decided on a poll. |
| 23.12 | A poll shall be taken in such manner as the chairman directs, and the result of the poll shall be deemed to be the resolution of the general meeting at which the poll was demanded. |
| 23.13 | In the case of an equality of votes the chairman of the general meeting shall be entitled to a second or casting vote. |
| 23.14 | A poll on the election of a chairman or on a question of adjournment shall be taken forthwith. A poll on any other question shall be taken at such date, time and place as the chairman of the general meeting directs. |
| 24. | Votes of Members |
| 24.1 | Subject to any rights or restrictions attached to any Shares, every Member who being an individual, is present in person or by proxy or, if a corporation or other non-natural person, is present by its duly authorised representative or by proxy, shall have one vote for every Share of which he is the holder. |
20
| 24.2 | In the case of joint holders the vote of the senior holder who tenders a vote, whether in person or by proxy (or, in the case of a corporation or other non-natural person, by its duly authorised representative or proxy), shall be accepted to the exclusion of the votes of the other joint holders, and seniority shall be determined by the order in which the names of the holders stand in the Register of Members. |
| 24.3 | A Member of unsound mind, or in respect of whom an order has been made by any court, having jurisdiction in lunacy, may vote by his committee, receiver, curator bonis, or other Person on such Member’s behalf appointed by that court, and any such committee, receiver, curator bonis or other Person may vote by proxy. |
| 24.4 | No Person shall be entitled to vote at any general meeting unless he is registered as a Member on the record date for such meeting nor unless all calls or other monies then payable by him in respect of Shares have been paid. |
| 24.5 | No objection shall be raised as to the qualification of any voter except at the general meeting or adjourned general meeting at which the vote objected to is given or tendered and every vote not disallowed at the meeting shall be valid. Any objection made in due time in accordance with this Article shall be referred to the chairman whose decision shall be final and conclusive. |
| 24.6 | Votes may be cast either personally or by proxy (or in the case of a corporation or other non-natural person by its duly authorised representative or proxy). A Member may appoint more than one proxy or the same proxy under one or more instruments to attend and vote at a meeting. Where a Member appoints more than one proxy the instrument of proxy shall specify the number of Shares in respect of which each proxy is entitled to exercise the related votes. |
| 24.7 | A Member holding more than one Share need not cast the votes in respect of his Shares in the same way on any resolution and therefore may vote a Share or some or all such Shares either for or against a resolution and/or abstain from voting a Share or some or all of the Shares and, subject to the terms of the instrument appointing him, a proxy appointed under one or more instruments may vote a Share or some or all of the Shares in respect of which he is appointed either for or against a resolution and/or abstain from voting a Share or some or all of the Shares in respect of which he is appointed. |
| 25. | Proxies |
| 25.1 | The instrument appointing a proxy shall be in writing and shall be executed under the hand of the appointor or of his attorney duly authorised in writing, or, if the appointor is a corporation or other non-natural person, under the hand of its duly authorised representative. A proxy need not be a Member. |
21
| 25.2 | The Directors may, in the notice convening any meeting or adjourned meeting, or in an instrument of proxy sent out by the Company, specify the manner by which the instrument appointing a proxy shall be deposited and the place and the time (being not later than the time appointed for the commencement of the meeting or adjourned meeting to which the proxy relates) at which the instrument appointing a proxy shall be deposited. In the absence of any such direction from the Directors in the notice convening any meeting or adjourned meeting or in an instrument of proxy sent out by the Company, the instrument appointing a proxy shall be deposited physically at the Registered Office not less than 48 hours before the time appointed for the meeting or adjourned meeting to commence at which the Person named in the instrument proposes to vote. |
| 25.3 | The chairman may in any event at his discretion declare that an instrument of proxy shall be deemed to have been duly deposited. An instrument of proxy that is not deposited in the manner permitted, or which has not been declared to have been duly deposited by the chairman, shall be invalid. |
| 25.4 | The instrument appointing a proxy may be in any usual or common form (or such other form as the Directors may approve) and may be expressed to be for a particular meeting or any adjournment thereof or generally until revoked. An instrument appointing a proxy shall be deemed to include the power to demand or join or concur in demanding a poll. |
| 25.5 | Votes given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the previous death or insanity of the principal or revocation of the proxy or of the authority under which the proxy was executed, or the transfer of the Share in respect of which the proxy is given unless notice in writing of such death, insanity, revocation or transfer was received by the Company at the Registered Office before the commencement of the general meeting, or adjourned meeting at which it is sought to use the proxy. |
| 26. | Corporate Members |
Any corporation or other non-natural person which is a Member may in accordance with its constitutional documents, or in the absence of such provision by resolution of its directors or other governing body, authorise such Person as it thinks fit to act as its representative at any meeting of the Company or of any class of Members, and the Person so authorised shall be entitled to exercise the same powers on behalf of the corporation which he represents as the corporation could exercise if it were an individual Member.
| 27. | Clearing Houses |
If a clearing house (or its nominee(s)), being a corporation, is a Member it may authorise such Person or Persons as it thinks fit to act as its representative or representatives at any general meeting of the Company or at any meeting of any class of Members provided that, if more than one Person is so authorised, the authorisation shall specify the number and class of Shares in respect of which each such Person is so authorised. A Person so authorised pursuant to this Article shall be deemed to have been duly authorised without further evidence of the facts and be entitled to exercise the same powers on behalf of the clearing house (or its nominee(s)) which he represents as if such Person was the registered holder of such Shares held by that clearing house (or its nominee(s)).
22
| 28. | Shares that May Not be Voted |
Shares in the Company that are beneficially owned by the Company shall not be voted, directly or indirectly, at any meeting and shall not be counted in determining the total number of outstanding Shares at any given time.
| 29. | Directors |
The Company may by Ordinary Resolution from time to time fix the maximum and minimum number of Directors to be appointed but unless such numbers are fixed as aforesaid the minimum number of Directors shall be one and the maximum number of Directors shall be unlimited.
| 30. | PowerS of Directors |
| 30.1 | Subject to the provisions of the Statute, the Memorandum and the Articles and to any directions given by Special Resolution, the business of the Company shall be managed by the Directors who may exercise all the powers of the Company. No alteration of the Memorandum or Articles and no such direction shall invalidate any prior act of the Directors which would have been valid if that alteration had not been made or that direction had not been given. A duly convened meeting of the Directors at which a quorum is present may exercise all powers exercisable by the Directors. |
| 30.2 | All cheques, promissory notes, drafts, bills of exchange and other negotiable or transferable instruments and all receipts for monies paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed, as the case may be, in such manner as the Directors shall determine by resolution. |
| 30.3 | The Directors on behalf of the Company may pay a gratuity or pension or allowance on retirement to any Director who has held any other salaried office or place of profit with the Company or to his widow or dependants and may make contributions to any fund and pay premiums for the purchase or provision of any such gratuity, pension or allowance. |
| 30.4 | The Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and assets (present and future) and uncalled capital or any part thereof and to issue debentures, debenture stock, mortgages, bonds and other such securities whether outright or as security for any debt, liability or obligation of the Company or of any third party. |
23
| 30.5 | The Directors shall have the authority to present a winding up petition on behalf of the Company without the sanction of a resolution passed by the Company in general meeting. |
| 31. | APPOINTMENT AND REMOVAL OF DIRECTORS |
| 31.1 | The Company may by Ordinary Resolution appoint any Person to be a Director or may by Ordinary Resolution remove any Director. |
| 31.2 | The board of Directors shall consist of five members elected as a single class [with concurrent two year terms. At the expiry of such two-year term one or more Directors shall be elected or re-elected to succeed the Directors whose terms expire at such date.] Notwithstanding the foregoing provisions of this Article, each Director shall hold office until the expiration of his term or until his earlier death, resignation or removal. |
| 31.3 | The Directors may appoint any Person to be a Director, either to fill a vacancy or as an additional Director, provided that the appointment does not cause the number of Directors to exceed any number fixed by or in accordance with the Articles as the maximum number of Directors. |
| 32. | VACATION OF OFFICE OF DIRECTOR |
The office of a Director shall be vacated if:
| (a) | the Director gives notice in writing to the Company that he resigns the office of Director; or |
| (b) | the Director absents himself (for the avoidance of doubt, without being represented by proxy or an alternate Director appointed by him) from three consecutive meetings of the board of Directors without special leave of absence from the Directors, and the Directors pass a resolution that he has by reason of such absence vacated office; or |
| (c) | the Director dies, becomes bankrupt or makes any arrangement or composition with his creditors generally; or |
| (d) | the Director is found to be or becomes of unsound mind; or |
| (e) | all of the other Directors (being not less than two in number) determine that he should be removed as a Director, either by a resolution passed by all of the other Directors at a meeting of the Directors duly convened and held in accordance with the Articles or by a resolution in writing signed by all of the other Directors; or |
| (f) | the Director is removed from office pursuant to any other provision of the Articles. |
24
| 33. | PROCEEDINGS OF DIRECTORS |
| 33.1 | The quorum for the transaction of the business of the Directors may be fixed by the Directors, and unless so fixed shall be a majority of the Directors then in office. A Person who holds office as an alternate Director shall, if his appointor is not present, be counted in the quorum. A Director who also acts as an alternate Director shall, if his appointor is not present, count twice towards the quorum. |
| 33.2 | Subject to the provisions of the Articles, the Directors may regulate their proceedings as they think fit. Questions arising at any meeting of the Directors shall be decided by a majority of votes. In the case of an equality of votes, the chairman shall have a second or casting vote. A Director who is also an alternate Director shall be entitled in the absence of his appointor to a separate vote on behalf of his appointor in addition to his own vote. |
| 33.3 | A Person may participate in a meeting of the Directors or any committee of Directors by conference telephone, video, a virtual platform or other communications equipment by means of which all the Persons participating in the meeting can communicate with each other at the same time. Participation by a Person in a meeting in this manner is treated as presence in person at that meeting. Unless otherwise determined by the Directors the meeting shall be deemed to be held at the place where the chairman is located at the start of the meeting. |
| 33.4 | A meeting of the Directors or any committee of Directors may be held by conference telephone, video, a virtual platform or other communications equipment by which all the Persons participating in the meeting can communicate with each other, and participation in such a general meeting in such manner shall constitute presence in person at such meeting. |
| 33.5 | A resolution in writing (in one or more counterparts) signed by all the Directors or all the members of a committee of the Directors or, in the case of a resolution in writing relating to the removal of any Director or the vacation of office by any Director, all of the Directors other than the Director who is the subject of such resolution (an alternate Director being entitled to sign such a resolution on behalf of his appointor and if such alternate Director is also a Director, being entitled to sign such resolution both on behalf of his appointor and in his capacity as a Director) shall be as valid and effectual as if it had been passed at a meeting of the Directors, or committee of Directors as the case may be, duly convened and held. |
| 33.6 | A Director or alternate Director may, or other officer of the Company on the direction of a Director or alternate Director shall, call a meeting of the Directors by at least two days' notice in writing to every Director and alternate Director which notice shall set forth the general nature of the business to be considered unless notice is waived by all the Directors (or their alternates) either at, before or after the meeting is held. To any such notice of a meeting of the Directors all the provisions of the Articles relating to the giving of notices by the Company to the Members shall apply mutatis mutandis. |
25
| 33.7 | The continuing Directors (or a sole continuing Director, as the case may be) may act notwithstanding any vacancy in their body, but if and so long as their number is reduced below the number fixed by or pursuant to the Articles as the necessary quorum of Directors the continuing Directors or Director may act for the purpose of increasing the number of Directors to be equal to such fixed number, or of summoning a general meeting of the Company, but for no other purpose. |
| 33.8 | The Directors may elect a chairman of their board and determine the period for which he is to hold office, but if no such chairman is elected, or if at any meeting the chairman is not present within five minutes after the time appointed for the meeting to commence, the Directors present may choose one of their number to be chairman of the meeting. |
| 33.9 | Subject to any regulations imposed on it by the Directors, including where the Directors have designated a chairman of the committee, a committee appointed by the Directors may elect a chairman of its meetings and determine the period for which he is to hold office, but if no such chairman is elected, or if at any meeting the chairman is not present within five minutes after the time appointed for the meeting to commence, the committee members present may choose one of their number to be chairman of the meeting. |
| 33.10 | A committee appointed by the Directors may meet and adjourn as it thinks proper. Subject to any regulations imposed on it by the Directors, questions arising at any committee meeting shall be determined by a majority of votes of the committee members present and, in the case of an equality of votes, the chairman shall have a second or casting vote. |
| 33.11 | All acts done by any meeting of the Directors or of a committee of the Directors (including any Person acting as an alternate Director) shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment of any Director or alternate Director, and/or that they or any of them were disqualified, and/or had vacated their office and/or were not entitled to vote, be as valid as if every such Person had been duly appointed and/or not disqualified to be a Director or alternate Director and/or had not vacated their office and/or had been entitled to vote, as the case may be. |
| 33.12 | A Director (but not an alternate Director) may be represented at any meetings of the board of Directors by a proxy appointed in writing by him. The proxy shall count towards the quorum and the vote of the proxy shall for all purposes be deemed to be that of the appointing Director. |
26
| 34. | PRESUMPTION OF ASSENT |
A Director or alternate Director who is present at a meeting of the board of Directors at which action on any Company matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent from such action with the Person acting as the chairman or secretary of the meeting before the adjournment thereof or shall forward such dissent by registered post to such Person immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Director or alternate Director who voted in favour of such action.
| 35. | DIRECTORS' INTERESTS |
| 35.1 | A Director or alternate Director may hold any other office or place of profit under the Company (other than the office of Auditor) in conjunction with his office of Director for such period and on such terms as to remuneration and otherwise as the Directors may determine. |
| 35.2 | A Director or alternate Director may act by himself or by, through or on behalf of his firm, in a professional capacity for the Company and he or his firm shall be entitled to remuneration for professional services as if he were not a Director or alternate Director. |
| 35.3 | A Director or alternate Director may be or become a director or other officer of or otherwise interested in any company promoted by the Company or in which the Company may be interested as a shareholder, a contracting party or otherwise, and no such Director or alternate Director shall be accountable to the Company for any remuneration or other benefits received by him as a director or officer of, or from his interest in, such other company. |
| 35.4 | No Person shall be disqualified from the office of Director or alternate Director or prevented by such office from contracting with the Company, either as vendor, purchaser or otherwise, nor shall any such contract or any contract or transaction entered into by or on behalf of the Company in which any Director or alternate Director shall be in any way interested be or be liable to be avoided, nor shall any Director or alternate Director so contracting or being so interested be liable to account to the Company for any profit realised by or arising in connection with any such contract or transaction by reason of such Director or alternate Director holding office or of the fiduciary relationship thereby established. A Director (or his alternate Director in his absence) shall be at liberty to vote in respect of any contract or transaction in which he is interested provided that the nature of the interest of any Director (or alternate Director) in any such contract or transaction shall be disclosed by him at or prior to its consideration and any vote thereon. |
| 35.5 | A general notice that a Director or alternate Director is a shareholder, director, officer or employee of any specified firm or company and is to be regarded as interested in any transaction with such firm or company shall be sufficient disclosure for the purposes of voting on a resolution in respect of a contract or transaction in which he has an interest, and after such general notice it shall not be necessary to give special notice relating to any particular transaction. |
27
| 36. | MINUTES |
| 36.1 | The Directors shall cause minutes to be made in books kept for the purpose of recording all appointments of officers made by the Directors, all proceedings at meetings of the Company or the holders of any class of Shares and of the Directors, and of committees of the Directors, including the names of the Directors or alternate Directors present at each meeting. |
| 36.2 | When the chairman of a meeting of the Directors or of a committee of the Directors signs the minutes of such meeting the same shall be deemed to have been duly held notwithstanding that all the Directors have not actually come together or that there may have been a technical defect in the proceedings. |
| 37. | DELEGATION OF DIRECTORS' POWERS |
| 37.1 | The Directors may delegate any of their powers, authorities and discretions, including the power to sub-delegate, to any committee consisting of one or more Directors (including, without limitation, the [Audit Committee, the Compensation Committee and the Nominating and Corporate Governance Committee]); any committee so formed shall in the exercise of the powers so delegated conform to any conditions that may be imposed on it by the Directors. The Directors may also delegate to any managing director or any Director holding any other executive office such of their powers, authorities and discretions as they consider desirable to be exercised by him provided that an alternate Director may not act as managing director and the appointment of a managing director shall be revoked forthwith if he ceases to be a Director. Any such delegation may be made subject to any conditions the Directors may impose and either collaterally with or to the exclusion of their own powers and any such delegation may be revoked or altered by the Directors. Subject to any such conditions that may be imposed by the Directors, the proceedings of a committee of Directors shall be governed by the Articles regulating the proceedings of Directors, so far as they are capable of applying. |
| 37.2 | The Directors may adopt formal written charters for committees. [Each of the Audit Committee, the Compensation Committee and the Nominating and Corporate Governance Committee, if established, shall consist of such number of Directors as the Directors shall from time to time determine.] |
| 37.3 | The Directors may by power of attorney or otherwise appoint any Person to be the agent of the Company on such conditions as the Directors may determine, provided that the delegation is not to the exclusion of their own powers and may be revoked by the Directors at any time. |
28
| 37.4 | The Directors may by power of attorney or otherwise appoint any company, firm, Person or body of Persons, whether nominated directly or indirectly by the Directors, to be the attorney or authorised signatory of the Company for such purpose and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors under the Articles) and for such period and subject to such conditions as they may think fit, and any such powers of attorney or other appointment may contain such provisions for the protection and convenience of Persons dealing with any such attorneys or authorised signatories as the Directors may think fit and may also authorise any such attorney or authorised signatory to delegate all or any of the powers, authorities and discretions vested in him. |
| 37.5 | The Directors may from time to time appoint any Person, whether or not a Director, to hold such office in the Company as the Directors may think necessary for the administration of the Company (including, for the avoidance of doubt and without limitation, a chairman, chief executive officer, chief operating officer, chief financial officer, vice-president, secretary, treasurer or any other officers as may be determined by the Directors), for such term and at such remuneration (whether by way of salary or commission or participation in profits or partly in one way and partly in another), and with such powers and duties as the Directors may think fit. Any Person so appointed by the Directors may be removed by resolution of the Directors or by the Company by Ordinary Resolution. An officer of the Company may vacate his office at any time if he gives notice in writing to the Company that he resigns his office. |
| 38. | ALTERNATE DIRECTORS |
| 38.1 | Any Director (but not an alternate Director) may by writing appoint any other Director, or any other Person willing to act, to be an alternate Director and by writing may remove from office an alternate Director so appointed by him. |
| 38.2 | An alternate Director shall be entitled to receive notice of all meetings of Directors and of all meetings of committees of Directors of which his appointor is a member, to attend and vote at every such meeting at which the Director appointing him is not personally present, to sign any written resolution of the Directors (except where such written resolution of the Directors have been signed by the appointing Director), and generally to perform all the functions of his appointor as a Director in his absence. |
| 38.3 | An alternate Director shall cease to be an alternate Director if his appointor ceases to be a Director. |
| 38.4 | Any appointment or removal of an alternate Director shall be by notice to the Company signed by the Director making or revoking the appointment or in any other manner approved by the Directors. |
29
| 38.5 | Subject to the provisions of the Articles, an alternate Director shall be deemed for all purposes to be a Director and shall alone be responsible for his own acts and defaults and shall not be deemed to be the agent of the Director appointing him. |
| 39. | NO MINIMUM SHAREHOLDING |
The Company in general meeting may fix a minimum shareholding required to be held by a Director, but unless and until such a shareholding qualification is fixed, a Director is not required to hold Shares.
| 40. | REMUNERATION OF DIRECTORS |
| 40.1 | The remuneration to be paid to the Directors, if any, shall be such remuneration as the Directors shall determine. The Directors shall also be entitled to be paid all travelling, hotel and other expenses properly incurred by them in connection with their attendance at meetings of Directors or committees of Directors, or general meetings of the Company, or separate meetings of the holders of any class of Shares or debentures of the Company, or otherwise in connection with the business of the Company or the discharge of their duties as a Director, or to receive a fixed allowance in respect thereof as may be determined by the Directors, or a combination partly of one such method and partly the other. |
| 40.2 | The Directors may by resolution approve additional remuneration to any Director for any services which in the opinion of the Directors go beyond his ordinary routine work as a Director. Any fees paid to a Director who is also counsel, attorney or solicitor to the Company, or otherwise serves it in a professional capacity, shall be in addition to his remuneration as a Director. |
| 41. | SEAL |
| 41.1 | The Company may, if the Directors so determine, have a Seal. The Seal shall only be used by the authority of the Directors or of a committee of the Directors authorised by the Directors. Every instrument to which the Seal has been affixed shall be signed by at least one Person who shall be either a Director or officer of the Company or other Person appointed by the Directors for the purpose. |
| 41.2 | The Company may have for use in any place or places outside the Cayman Islands a duplicate Seal or Seals each of which shall be a facsimile of the common Seal of the Company and, if the Directors so determine, with the addition on its face of the name of every place where it is to be used. |
| 41.3 | A Director or officer, representative or attorney of the Company may without further authority of the Directors affix the Seal over his signature alone to any document of the Company required to be authenticated by him under seal or to be filed with the Registrar of Companies in the Cayman Islands or elsewhere wheresoever. |
30
| 42. | DIVIDENDS, DISTRIBUTIONS AND RESERVES |
| 42.1 | Subject to the Statute and this Article and except as otherwise provided by the rights attached to any Shares, the Directors may resolve to pay Dividends and other distributions on Shares in issue and authorise payment of the Dividends or other distributions out of the funds of the Company lawfully available therefor. A Dividend shall be deemed to be an interim Dividend unless the terms of the resolution pursuant to which the Directors resolve to pay such Dividend specifically state that such Dividend shall be a final Dividend. No Dividend or other distribution shall be paid except out of the realised or unrealised profits of the Company, out of the Share Premium Account or as otherwise permitted by law. |
| 42.2 | Except as otherwise provided by the rights attached to any Shares, all Dividends and other distributions shall be paid according to the par value of the Shares that a Member holds. If any Share is issued on terms providing that it shall rank for Dividend as from a particular date, that Share shall rank for Dividend accordingly. |
| 42.3 | The Directors may deduct from any Dividend or other distribution payable to any Member all sums of money (if any) then payable by him to the Company on account of calls or otherwise. |
| 42.4 | The Directors may resolve that any Dividend or other distribution be paid wholly or partly by the distribution of specific assets and in particular (but without limitation) by the distribution of shares, debentures, or securities of any other company or in any one or more of such ways and where any difficulty arises in regard to such distribution, the Directors may settle the same as they think expedient and in particular may issue fractional Shares and may fix the value for distribution of such specific assets or any part thereof and may determine that cash payments shall be made to any Members upon the basis of the value so fixed in order to adjust the rights of all Members and may vest any such specific assets in trustees in such manner as may seem expedient to the Directors. |
| 42.5 | Except as otherwise provided by the rights attached to any Shares, Dividends and other distributions may be paid in any currency. The Directors may determine the basis of conversion for any currency conversions that may be required and how any costs involved are to be met. |
| 42.6 | The Directors may, before resolving to pay any Dividend or other distribution, set aside such sums as they think proper as a reserve or reserves which shall, at the discretion of the Directors, be applicable for any purpose of the Company and pending such application may, at the discretion of the Directors, be employed in the business of the Company. |
31
| 42.7 | Any Dividend, other distribution, interest or other monies payable in cash in respect of Shares may be paid by wire transfer to the holder or by cheque or warrant sent through the post directed to the registered address of the holder or, in the case of joint holders, to the registered address of the holder who is first named on the Register of Members or to such Person and to such address as such holder or joint holders may in writing direct. Every such cheque or warrant shall be made payable to the order of the Person to whom it is sent. Any one of two or more joint holders may give effectual receipts for any Dividends, other distributions, bonuses, or other monies payable in respect of the Share held by them as joint holders. |
| 42.8 | No Dividend or other distribution shall bear interest against the Company. |
| 42.9 | Any Dividend or other distribution which cannot be paid to a Member and/or which remains unclaimed after six months from the date on which such Dividend or other distribution becomes payable may, in the discretion of the Directors, be paid into a separate account in the Company's name, provided that the Company shall not be constituted as a trustee in respect of that account and the Dividend or other distribution shall remain as a debt due to the Member. Any Dividend or other distribution which remains unclaimed after a period of six years from the date on which such Dividend or other distribution becomes payable shall be forfeited and shall revert to the Company. |
| 43. | CAPITALISATION |
The Directors may at any time capitalise any sum standing to the credit of any of the Company's reserve accounts or funds (including the Share Premium Account and capital redemption reserve fund) or any sum standing to the credit of the profit and loss account or otherwise available for distribution; appropriate such sum to Members in the proportions in which such sum would have been divisible amongst such Members had the same been a distribution of profits by way of Dividend or other distribution; and apply such sum on their behalf in paying up in full unissued Shares for allotment and distribution credited as fully paid-up to and amongst them in the proportion aforesaid. In such event the Directors shall do all acts and things required to give effect to such capitalisation, with full power given to the Directors to make such provisions as they think fit in the case of Shares becoming distributable in fractions (including provisions whereby the benefit of fractional entitlements accrue to the Company rather than to the Members concerned). The Directors may authorise any Person to enter on behalf of all of the Members interested into an agreement with the Company providing for such capitalisation and matters incidental or relating thereto and any agreement made under such authority shall be effective and binding on all such Members and the Company.
32
| 44. | SHARE PREMIUM ACCOUNT |
| 44.1 | The Directors shall in accordance with the Statute establish a Share Premium Account and shall carry to the credit of such account from time to time a sum equal to the amount or value of the premium paid on the issue of any Share. |
| 44.2 | There shall be debited to any Share Premium Account on the redemption or purchase of a Share the difference between the nominal value of such Share and the redemption or purchase price provided always that at the determination of the Directors such sum may be paid out of the profits of the Company or, if permitted by the Statute, out of capital. |
| 45. | BOOKS OF ACCOUNT |
| 45.1 | The Directors shall cause proper books of account (including, where applicable, material underlying documentation including contracts and invoices) to be kept with respect to all sums of money received and expended by the Company and the matters in respect of which the receipt or expenditure takes place, all sales and purchases of goods by the Company and the assets and liabilities of the Company. Such books of account must be retained for a minimum period of five years from the date on which they are prepared. Proper books shall not be deemed to be kept if there are not kept such books of account as are necessary to give a true and fair view of the state of the Company's affairs and to explain its transactions. |
| 45.2 | The Directors shall determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company or any of them shall be open to the inspection of Members not being Directors and no Member (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by Statute or authorised by the Directors or by the Company in general meeting. |
| 45.3 | The Directors may cause to be prepared and to be laid before the Company in general meeting profit and loss accounts, balance sheets, group accounts (if any) and such other reports and accounts as may be required by law. |
| 46. | AUDIT |
| 46.1 | The Directors may appoint an Auditor of the Company who shall hold office on such terms as the Directors determine. |
| 46.2 | If the office of Auditor becomes vacant by resignation or death of the Auditor, or by his becoming incapable of acting by reason of illness or other disability at a time when his services are required, the Directors shall fill the vacancy. |
| 46.3 | Every Auditor of the Company shall have a right of access at all times to the books and accounts and vouchers of the Company and shall be entitled to require from the Directors and officers of the Company such information and explanation as may be necessary for the performance of the duties of the Auditor. |
33
| 46.4 | Auditors shall, if so required by the Directors, make a report on the accounts of the Company during their tenure of office at the next annual general meeting following their appointment in the case of a company which is registered with the Registrar of Companies as an ordinary company, and at the next extraordinary general meeting following their appointment in the case of a company which is registered with the Registrar of Companies as an exempted company, and at any other time during their term of office, upon request of the Directors or any general meeting of the Company. |
| 46.5 | [Without prejudice to the freedom of the Directors to establish any other committee, if any of the Shares (or depositary receipts therefor) are listed or quoted on a Designated Stock Exchange, and if required by the rules of the Designated Stock Exchange, the Directors shall establish and maintain an Audit Committee as a committee of the board of Directors and shall adopt a formal written audit committee charter and review and assess the adequacy of the formal written charter on an annual basis. The composition and responsibilities of the Audit Committee shall comply with the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority.] |
| 46.6 | If any of the Shares (or depositary receipts therefor) are listed or quoted on a Designated Stock Exchange, the Company shall conduct an appropriate review of all related party transactions on an ongoing basis [and shall utilise the Audit Committee for the review and approval of potential conflicts of interest]. |
| 46.7 | The remuneration of the Auditor shall be fixed by [the Audit Committee (if one exists) or otherwise by] the Directors. |
| 46.8 | [Any payment made to members of the Audit Committee (if one exists) shall require the review and approval of the Directors, with any Director interested in such payment abstaining from such review and approval.] |
| 47. | NOTICES |
| 47.1 | Notices shall be in writing and may be given by the Company to any Member either personally or by sending it by courier, post, cable, telex, fax or e-mail to him or to his address as shown in the Register of Members (or where the notice is given by e-mail by sending it to the e-mail address provided by such Member). For so long as any of the Shares are traded on a Designated Stock Exchange, notice may also be served in accordance with the requirements of the Designated Stock Exchange. |
34
| 47.2 | Where a notice is sent by courier, service of the notice shall be deemed to be effected by delivery of the notice to a courier company, and shall be deemed to have been received on the third day (not including Saturdays or Sundays or public holidays in the Cayman Islands) following the day on which the notice was delivered to the courier. Where a notice is sent by post, service of the notice shall be deemed to be effected by properly addressing, pre-paying and posting a letter containing the notice, and shall be deemed to have been received on the fifth day (not including Saturdays or Sundays or public holidays in the Cayman Islands) following the day on which the notice was posted. Where a notice is sent by cable, telex or fax, service of the notice shall be deemed to be effected by properly addressing and sending such notice and shall be deemed to have been received on the same day that it was transmitted. Where a notice is given by e-mail, service shall be deemed to be effected by transmitting the e-mail to the e-mail address provided by the intended recipient and shall be deemed to have been received on the same day that it was sent, and it shall not be necessary for the receipt of the e-mail to be acknowledged by the recipient. |
| 47.3 | A notice may be given by the Company to the Person or Persons which the Company has been advised are entitled to a Share or Shares in consequence of the death or bankruptcy of a Member in the same manner as other notices which are required to be given under the Articles and shall be addressed to them by name, or by the title of representatives of the deceased, or trustee of the bankrupt, or by any like description at the address supplied for that purpose by the Persons claiming to be so entitled, or at the option of the Company by giving the notice in any manner in which the same might have been given if the death or bankruptcy had not occurred. |
| 47.4 | Notice of every general meeting shall be given in any manner authorised by the Articles to every holder of Shares carrying an entitlement to receive such notice on the record date for such meeting except that in the case of joint holders the notice shall be sufficient if given to the joint holder first named in the Register of Members and every Person upon whom the ownership of a Share devolves by reason of his being a legal personal representative or a trustee in bankruptcy of a Member where the Member but for his death or bankruptcy would be entitled to receive notice of the meeting, and no other Person shall be entitled to receive notices of general meetings. |
| 48. | WINDING UP |
| 48.1 | If the Company shall be wound up, the liquidator shall apply the assets of the Company in satisfaction of creditors' claims in such manner and order as such liquidator thinks fit. Subject to the rights attaching to any Shares, in a winding up: |
| (a) | if the assets available for distribution amongst the Members shall be insufficient to repay the whole of the Company's issued share capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the Members in proportion to the par value of the Shares held by them; or |
35
| (b) | if the assets available for distribution amongst the Members shall be more than sufficient to repay the whole of the Company's issued share capital at the commencement of the winding up, the surplus shall be distributed amongst the Members in proportion to the par value of the Shares held by them at the commencement of the winding up subject to a deduction from those Shares in respect of which there are monies due, of all monies payable to the Company for unpaid calls or otherwise. |
| 48.2 | If the Company shall be wound up the liquidator may, subject to the rights attaching to any Shares and with the approval of a Special Resolution of the Company and any other approval required by the Statute, divide amongst the Members in kind the whole or any part of the assets of the Company (whether such assets shall consist of property of the same kind or not) and may for that purpose value any assets and determine how the division shall be carried out as between the Members or different classes of Members. The liquidator may, with the like approval, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the Members as the liquidator, with the like approval, shall think fit, but so that no Member shall be compelled to accept any asset upon which there is a liability. |
| 49. | INDEMNITY AND INSURANCE |
| 49.1 | Every Director and officer of the Company (which, for the avoidance of doubt, shall not include Auditors of the Company), together with every former Director and former officer of the Company (each an Indemnified Person) shall be indemnified out of the assets of the Company against any liability, action, proceeding, claim, demand, costs, damages or expenses, including legal expenses, whatsoever which they or any of them may incur as a result of any act or failure to act in carrying out their functions other than such liability (if any) that they may incur by reason of their own actual fraud, wilful default or wilful neglect. No Indemnified Person shall be liable to the Company for any loss or damage incurred by the Company as a result (whether direct or indirect) of the carrying out of their functions unless that liability arises through the actual fraud, wilful default or wilful neglect of such Indemnified Person. No Person shall be found to have committed actual fraud, wilful default or wilful neglect under this Article unless or until a court of competent jurisdiction shall have made a finding to that effect. |
| 49.2 | The Company shall advance to each Indemnified Person reasonable attorneys' fees and other costs and expenses incurred in connection with the defence of any action, suit, proceeding or investigation involving such Indemnified Person for which indemnity will or could be sought. In connection with any advance of any expenses hereunder, the Indemnified Person shall execute an undertaking to repay the advanced amount to the Company if it shall be determined by final judgment or other final adjudication that such Indemnified Person was not entitled to indemnification pursuant to this Article. If it shall be determined by a final judgment or other final adjudication that such Indemnified Person was not entitled to indemnification with respect to such judgment, costs or expenses, then such party shall not be indemnified with respect to such judgment, costs or expenses and any advancement shall be returned to the Company (without interest) by the Indemnified Person. |
36
| 49.3 | The Directors, on behalf of the Company, may purchase and maintain insurance for the benefit of any Director or officer of the Company against any liability which, by virtue of any rule of law, would otherwise attach to such Person in respect of any negligence, default, breach of duty or breach of trust of which such Person may be guilty in relation to the Company. |
| 49.4 | The rights to indemnification and advancement of expenses conferred on any Indemnified Person as set out in this Article will not be exclusive of any other rights that any Indemnified Person may have or hereafter acquire. |
| 50. | FINANCIAL YEAR |
Unless the Directors otherwise prescribe, the financial year of the Company shall end on December 31 in each year and, following the year of incorporation, shall begin on January 1 in each year.
| 51. | TRANSFER BY WAY OF CONTINUATION |
If the Company is exempted as defined in the Statute, it may, subject to the provisions of the Statute, by resolution of the Directors, resolve to be registered by way of continuation in a jurisdiction outside the Cayman Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing (including, but not limited to, the approval of the organisational documents to be adopted by the Company in such other jurisdiction to the extent applicable). In furtherance of a resolution adopted pursuant to this Article, the Directors may cause an application to be made to the Registrar of Companies to deregister the Company in the Cayman Islands and may cause all such further steps as they consider appropriate to be taken to effect the transfer by way of continuation of the Company.
| 52. | MERGERS AND CONSOLIDATIONS |
The Company shall have the power to merge or consolidate with one or more other constituent companies (as defined in the Statute) upon such terms as the Directors may determine and (to the extent required by the Statute) with the approval of a Special Resolution.
| 53. | DISCLOSURE |
The Directors, officers of the Company or any authorised service providers (including the registered office agent of the Company) shall be entitled to disclose to any regulatory or judicial authority, or to any Designated Stock Exchange on which the Shares may from time to time be listed, any information regarding the affairs of the Company including, without limitation, information contained in the Register of Members and books of the Company.
37
Exhibit 99.1
PRESS RELEASE
 |  |
ASTRUM SPACE INC TO GO PUBLIC THROUGH BUSINESS
COMBINATION WITH
BLACK SPADE ACQUISITION III CO
| · | Astrum Space Inc (“Astrum”) is developing a next-generation satellite-to-device (“S2D”) broadcast network to serve the Asia-Pacific region. |
| · | Astrum holds 25 MHz of contiguous L-band spectrum at 1467–1492 MHz and spectrum and orbital resources associated with the strategic 105°E GEO position. |
| · | Astrum currently operates its own in-orbit GEO satellite and is developing the SWISSto12-manufactured NEASTAR-1 satellite, with launch and orbital-delivery services contracted with Impulse Space for a planned late-2028 to first-quarter-2029 launch. |
| · | The proposed business combination values Astrum at an equity value of approximately US$1 billion. |
EL SEGUNDO, California – August 27, 2026 – Astrum Space Inc (“Astrum” or the “Company”), a satellite communications company developing a wholesale satellite-to-device (“S2D”) broadcast and data-distribution network, and Black Spade Acquisition III Co (NYSE: BIII, “BIII”) announced today that they have entered into a business combination agreement. Upon the completion of the transactions contemplated by the business combination agreement, the combined company will be renamed as “Astrum Space Company” and its ordinary shares will be listed on the New York Stock Exchange.
The business combination values Astrum at an equity value of approximately US$1 billion, not including cash from BIII’s approximately US$172.5 million of cash in trust (assuming no BIII shareholders elect to have their BIII shares redeemed for cash as permitted).
The transaction is expected to close by the end of 2026, subject to regulatory and shareholder approvals, and other customary closing conditions. After the transaction, assuming no BIII shareholders elect to have their BIII shares redeemed for cash as permitted, existing shareholders of Astrum will hold over 80% of the combined company.
Mr. Dennis Tam, Executive Chairman of the Board and Co-Chief Executive Officer of Black Spade Acquisition III Co, said: “We are delighted to support Astrum in its efforts to advance S2D connectivity across the Asia Pacific region. We have been encouraged by the dedication and long-term vision of Astrum’s management team as they develop services designed to broaden connectivity across the region. Astrum has developed a satellite network and a spectrum position intended to support its connectivity and broadcast initiatives. Over the years, the space sector has evolved into one of today’s most dynamic industries and continues to play an increasingly important role in everyday life. This partnership with Astrum reflects our belief in the power of enabling technologies to create meaningful impact.”
Mr. Michael Do, President and Chief Executive Officer of Astrum Space Inc, said: “Astrum has reached an important inflection point. We have assembled the spectrum, orbital resources and satellite infrastructure to develop a differentiated S2D broadcast platform across Asia-Pacific. With our NEASTAR-1 satellite under development and launch and orbital-delivery services secured from Impulse Space, we believe we have a clear path toward deployment of our next-generation geostationary platform. The proposed combination with Black Spade Acquisition III Co is expected to strengthen our ability to execute our commercialization strategy and expand strategic partnerships across the region.”
Additional information about the proposed transaction, including a copy of the business combination agreement, is available in BIII’s Current Report on Form 8-K, filed on August 27, 2026, with the Securities and Exchange Commission (“SEC”) at www.sec.gov.
More information about the proposed transaction will also be described in a registration statement that includes BIII’s proxy statement relating to the business combination, which BIII and Astrum will file with the SEC.
***
About Astrum Space Inc
Astrum Space Inc is developing a next-generation S2D broadcast network designed to deliver wide-area data and content services across the Asia-Pacific region. Astrum combines 25 MHz of contiguous L-band spectrum at 1467–1492 MHz, spectrum and orbital resources associated with the strategic 105°E geostationary (“GEO”) position. Astrum is pursuing a wholesale business model serving mobile network operators, broadcasters, governments and enterprise customers, positioning its GEO platform as a complementary one-to-many broadcast layer for terrestrial mobile networks.
About Black Spade Acquisition III Co
Black Spade Acquisition III Co (“BIII”) is a special purpose acquisition company incorporated for the purpose of effecting a business combination (Special Purpose Acquisition Company or SPAC). While it may pursue a business combination in any industry, BIII is focused on identifying a business combination target in the cross section of entertainment-related enabling technology and digital financial infrastructure. Listed on the NYSE, BIII is the third SPAC from Black Spade Capital Limited (“Black Spade Capital”), a global SPAC sponsor managing a diversified portfolio across regions, sectors and asset classes, including equities (including SPAC and pre-IPO investments), fixed income and real estate. In August 2023, Black Spade Capital’s first SPAC, Black Spade Acquisition Co, completed a US$23 billion business combination with VinFast Auto Ltd. In June 2025, the second SPAC of Black Spade Capital, Black Spade Acquisition II Co, completed a US$488 million business combination with a global media and entertainment powerhouse, The Generation Essentials Group, approximately nine months after BSII’s IPO.
Advisors
Cohen & Company Capital Markets, a division of Cohen & Company Securities, LLC, is serving as financial advisor to BIII. Latham & Watkins LLP is serving as U.S. legal counsel to BIII. Loeb & Loeb LLP is serving as U.S. legal counsel to Astrum.
***
From the left: Mr. Jonathan Wang, CFO of Astrum, Mr. Michael Do, President and CEO of Astrum, Mr. Zhou Qingzhi, founder of Astrum, Mr. Lawrence Ho, founder of Black Spade Capital, Mr. Dennis Tam, Chairman and Co-CEO of Black Spade Acquisition III Co, Mr. Kester Ng, Co-CEO and CFO of Black Spade Acquisition III Co, Mr. Richard Taylor, Co-CEO and COO of Black Spade Acquisition III Co
Forward-Looking Statements Legend
This document contains certain forward-looking statements within the meaning of U.S. federal securities laws with respect to the proposed transaction between Astrum and BIII, including statements regarding the benefits of the transaction, the anticipated benefits of the transaction, Astrum’s development, manufacture, launch, orbital deployment, commissioning, technical performance and commercial operation of NEASTAR-1; the anticipated launch window and mission profile; the capabilities and expected operating life of NEASTAR-1; Astrum’s planned satellite-to-device network, services, coverage and commercialization strategy; regulatory and market-access approvals; device and technology compatibility; and Astrum’s ability to establish commercial and strategic relationships, the Company or BIII’s expectations concerning the outlook for the Company’s business, productivity, plans and goals for product launches, deliveries and future operational improvement and capital investments, operational performance, future market conditions or economic performance and developments in the capital and credit markets and expected future financial performance, as well as any information concerning possible or assumed future results of operations of the Company. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “opportunity,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions. Forward-looking statements are their managements’ current predictions, projections and other statements about future events that are based on current expectations and assumptions available to the Company and BIII, and, as a result, are subject to risks and uncertainties. Any such expectations and assumptions, whether or not identified in this document, should be regarded as preliminary and for illustrative purposes only and should not be relied upon as being necessarily indicative of future results. Many factors could cause actual future events to differ materially from the forward-looking statements in this document, including but not limited to: (1) the occurrence of any event, change or other circumstances that could give rise to the termination of definitive agreements with respect to the proposed business combination; (2) the outcome of any legal proceedings that may be instituted against BIII, the combined company or others following the announcement of the business combination and any definitive agreements with respect thereto; (3) the amount of redemption requests made by BIII public shareholders and the inability to complete the business combination due to the failure to obtain approval of the shareholders of BIII, to obtain financing to complete the business combination or to satisfy other conditions to closing and; (4) changes to the proposed structure of the business combination that may be required or appropriate as a result of applicable laws or regulations or as a condition to obtaining regulatory approval of the business combination; (5) the ability to meet stock exchange listing standards following the consummation of the business combination; (6) the risk that the business combination disrupts current plans and operations of the Company as a result of the announcement and consummation of the business combination; (7) the ability to recognize the anticipated benefits of the business combination; (8) costs related to the business combination; (9) risks associated with changes in laws or regulations applicable to the Company’s diverse business lines and the Company’s international operations; (10) the possibility that the Company or the combined company may be adversely affected by other economic, geopolitical, business, and/or competitive factors; (11) the Company’s ability to anticipate trends and respond to satellite development and launch, orbital deployment, spectrum and regulatory rights, device ecosystem development, commercialization, financing, customer adoption and transaction-closing risks. The foregoing list of factors is not exhaustive. Forward-looking statements are not guarantees of future performance. You should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors” section of the registration statement on Form F-4 to be filed by BIII and the Company with the U.S. Securities and Exchange Commission (the “SEC”), and other documents filed by the Company and/or BIII from time to time with the SEC. These filings identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements. Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and all forward-looking statements in this document are qualified by these cautionary statements. The Company and BIII assume no obligation and do not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise, except to the extent required by applicable law. Neither the Company nor BIII gives any assurance that either the Company or BIII will achieve its expectations. The inclusion of any statement in this communication does not constitute an admission by the Company or BIII or any other person that the events or circumstances described in such statement are material.
Additional Information and Where to Find It
This document relates to a proposed transaction between the Company and BIII. This document does not constitute an offer to sell or exchange, or the solicitation of an offer to buy or exchange, any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, sale or exchange would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. The Company and BIII intend to file a registration statement on Form F-4 that will include a proxy statement and a prospectus with the SEC. After the registration statement is declared effective, the definitive proxy statement/prospectus will be sent to all BIII shareholders as of a record date to be established for voting on the proposed transaction. BIII also will file other documents regarding the proposed transaction with the SEC. This document does not contain all the information that should be considered concerning the proposed transactions and is not intended to form the basis of any investment decision or any other decision in respect of the transactions. Before making any voting or investment decision, investors and shareholders of BIII are urged to read the registration statement, the proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC in connection with the proposed transaction as they become available because they will contain important information about the proposed transaction.
Investors and shareholders will be able to obtain free copies of the registration statement, proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC by BIII through the website maintained by the SEC at www.sec.gov. In addition, the documents filed by BIII may be obtained by written request to BIII at Black Spade Acquisition III Co, Suite 2902, 29/F, The Centrium, 60 Wyndham Street, Central Hong Kong.
Participants in Solicitation
BIII and the Company and their respective directors and officers may be deemed to be participants in the solicitation of proxies from BIII’s shareholders in connection with the proposed transaction. Information about BIII’s directors and executive officers and their ownership of BIII’s securities is set forth in BIII’s filings with the SEC. Additional information regarding the interests of those persons and other persons who may be deemed participants in the proposed transaction may be obtained by reading the proxy statement/prospectus regarding the proposed transaction when 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. You may obtain free copies of these documents as described in the preceding paragraph.
Investor Contact: